Richmond Journal of Law and Technology

By: Kirk Kaczmarek

I clicked the YouTube link, and my phone screen showed the stock portfolio of reddit user u/ControlTheNarrative. His face was stoic in the upper right hand corner of the screen as he showed viewers his 358 contracts for Apple stock valued at $57,684. The clock struck 9:30 AM, and the market opened. u/ControlTheNarrative audibly gagged and closed his eyes in disbelief as his portfolio value immediately plummeted to -$2,600.[1] u/ControlTheNarrative was one of a handful of amateur investors who exploited a glitch to obtain “infinite” leverage when trading on Robinhood in late October 2019.[2]

 

Robinhood is a free stock trading app that allows unsophisticated investors easy access to the stock market.[3] Among the services Robinhood provides is the ability to buy stock on margin.[4] When you buy stock, you simply exchange money for a share of stock. When you buy stock on margin, you borrow money from a broker to purchase the stock, offering your own cash or other securities as collateral; this is called leverage.[5] Robinhood also allows users to sell covered calls, which is a contract for the sale of stock set at a certain price before a set time.[6]

 

Robinhood allowed users to buy stock on margin at a 2:1 debt to capital asset ratio.[7] u/ControlTheNarrative and others would then buy stock on margin, and then immediately sell a covered call on that stock at a price slightly below what they just paid.[8] Normally, a broker would see this transaction and either recall its debt or at least refuse to issue a new loan.[9] Because of a glitch in the app, Robinhood did not behave like a normal broker. Robinhood combined the stock value and covered call value to effectively double the user’s assets.[10] u/ControlTheNarrative and others took advantage of this glitch by using their falsely inflated asset values to buy more stock on margin at a 2:1 ratio without any limit, thus obtaining “infinitely” leveraged positions.[11] Unsurprisingly, this scheme failed spectacularly, leaving the amateur investors severely in debt.[12]

 

Although Robinhood has seemingly run afoul of consumer protection law, it has not suffered legal consequences resulting from the infinite leverage incident.[13] And strangely, while Robinhood has not paid out any ill-gotten gains to users who may have benefited from the glitch, it may still hold liable investors like u/ControlTheNarrative who lost money.[14]

 

Robinhood’s commission-free investing business model is risky, because amateur investors may not behave in ways that do not conform to industry norms. At least two people in addition to u/ControlTheNarrative were able to leverage up to $1 million based on initial capital of only $4,000 and $15,000 respectively.[15] Sophisticated investors may not have taken such outlandish bets. But the risk has not stopped established firms from adapting Robinhood’s model. Charles Schwab and Fidelity removed trading commissions in October 2019.[16]

 

When software glitches can cause such gross investing mismanagement, brokerage firms ought to be held accountable. However, the SEC ought to also exercise caution in issuing new regulations for fear of stifling access to the stock market for amateur investors. Rather, the SEC should enforce consumer protection laws already on the books, while firms should beef up their insurance to protect from future technical failures.

[1] GG Boys, Guy loses $50k swinging during earnings on Robinhood, YouTube (Oct. 2019), https://www.youtube.com/watch?time_continue=0&v=d80ahvRSV8E&feature=emb_title.

 

[2] See Edward Ongweso Jr., A Robinhood Exploit Let Redditors Bet Infinite Money on the Stock Market, Vice (Nov. 6, 2016, 12:48 PM) https://www.vice.com/en_ca/article/gyz9kj/a-robinhood-exploit-let-redditors-bet-infinite-money-on-the-stock-market.

 

[3] See Robinhood, https://robinhood.com/ (last visited Jan. 24, 2020).

 

[4] See Supercharge your Investing, Robinhood, https://robinhood.com/about/gold/.

 

[5] See What is Margin?, Robinhood, https://learn.robinhood.com/articles/3ya72NeLXpiAvpV5QPQVl6/what-is-margin/; and Adam Hayes, Leverage, Investopedia (Apr. 24, 2019), https://www.investopedia.com/terms/l/leverage.asp.

 

[6] See Placing an Options Trade, Robinhood, https://robinhood.com/support/articles/360001227566/placing-an-options-trade/; and Akhilesh Ganti, Covered Call, Investopedia (Oct. 14, 2019), https://www.investopedia.com/terms/c/coveredcall.asp.

 

[7] See Modern Wall Street, Turchman: “Someone hacked Robinhood, bet against Apple & now owes $150,000”, YouTube (Nov. 6, 2019), https://www.youtube.com/watch?v=1SqeS8nSZA0&feature=emb_title.

 

[8] See Ongweso Jr., supra.

 

[9] See Modern Wall Street, supra.

 

[10] See Ongweso Jr., supra.

 

[11] See id.

 

[12] See id.

 

[13] See Regulators could punish Robinhood for glitch (CNBC television broadcast Nov. 6, 2019), https://www.msn.com/en-us/news/videos/regulators-could-punish-robinhood-for-glitch/vp-AAJXirx.

 

[14] See id.

 

[15] See Ongweso Jr., supra.

 

[16] See Kate Rooney, ‘Infinite Leverage’ – some Robinhood users have been trading with unlimited borrowing money, CNBC (Nov. 5, 2019, 1:43 PM),  https://www.cnbc.com/2019/11/05/some-robinhood-users-were-able-to-trade-with-unlimited-borrowed-money.html.

 

image source: https://pixabay.com/photos/stock-exchange-boom-economy-pay-3972311/

 

 

By: Will Garnett

News of multiple governmental organizations using facial recognition technology has sparked a conversation about the protection of children online. The Children’s Online Privacy and Protection Act (COPPA) was enacted in 1998 to protect children using the internet.[1] The act was meant for force websites to take certain precautions when knowingly interacting with individuals under the age of 13, the specifics of those precaution were left to the FTC for regulation.[2] The FTC’s COPPA rules has been revised since its inception, but they have maintained organized standards for websites to follow.[3] These rules require parental consent before personal information about the child can be collected and disseminated.[4] The rules also ensure that once a child’s information is collected properly, it is only transmitted to other entities with the capability of protecting that information.[5] Children currently have access to a lot of different technology which could collect their information, such as mobile games, apps, and social networking sites. Further, as technology creeps into previously unknown domains, COPPA regulations to protect children has become more important.

In January, multiple news outlets contained reports of governmental organizations using facial recognition software as part of their operations.[6] One entity that seems to be favorite of the government is a company called Clearview AI. This company has been selling facial recognition data to over 600 law enforcement agencies in the country.[7] The idea behind using facial recognition data is that images or criminals and other people of interest could be captured innocuously and could later be used to find and apprehend those individuals after an incident. But, Clearview AI has a database of over three billion photos, collected from the las year alone.[8] This company has been able to amass this hefty war chest of photos by craping various parts of the internet for photos, particularly social media platforms.[9] With the current popularity of social media platforms among teens and children, there has been a rise in skepticism about the data collection being done by companies like Clearview AI. With a simple swipe of the finger, people can access Tik Tok videos of children (certainly some under the age of 13) performing fun dances and lip syncing to hit songs. How much of that easy to access information is also being scraped by facial recognition technology and being stored for later use? Further, suppose one believes that the simple capturing of facial images of children is innocuous, consider what other personal information is being captured through videos on apps like Tik Tok. Scraping social media platforms can produce very personal information about someone, such as their full name, home location, current location, and even the contents of their bedroom.

Concern over the private collection and government’s use of facial recognition data has risen to the highest levels of power. Senator Ed Markey of Massachusetts recently sent a letter with a series of questions to Clearview AI to address this very problem.[10] The Senator’s letter raised even more serious questions about personal information collection, such as questions about biometric data that can be collected with facial recognition technology. His letter also addressed how the use of this technology could potentially violate COPPA regulations.[11] Although the alarm-bell has been rung in one branch of the government, there are forces within the FTC which already see COPPA regulations as too cumbersome and far reaching.[12] One FTC board member dissented to the 2012 update of the regulations, stating that they would implicate too many websites.[13] While the government remains split on decisions about regulation and the implementation of new technology, children (those least able to protect themselves) remain in harm’s way. But, what’s new?

[1] See 15 U.S.C §§ 6501-6506 (2019).

[2] See id.

[3] See 16 C.F.R § 312 (2019).

[4] See id.

[5] See id.

[6] See Chris Mills Rodrigo, Democratic senator presses facial recognition company after reports of law enforcement collaboration, The Hill (Jan. 23, 2019), https://thehill.com/policy/technology/479564-democratic-senator-presses-facial-recognition-company-after-reports-of-law.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See 5 Computer Law §28.05 (2019).

image source: https://www.verywellfamily.com/parental-controls-2634209

By: Garrett Kelly

Leading up to the 2018 midterm elections, Secretary of State Mark Warner announced that voters in designated counties in West Virginia would be able to access their voting ballots on their mobile devices.[1] Since 2018, the Mobile Voting Project, a philanthropy focused on increasing voting accessibility, has expanded its pilot locations to Utah, Oregon, Colorado, and Washington.[2] As of January, 2020 in King County, Washington, all 1.2 million of the County’s voters were able to vote on their mobile devices using a platform called Democracy Live.[3] Ironically, Oregon Senator Ron Wyden has stated that internet voting is “the worst thing you could do in terms of electronic security in America, short of putting ballot boxes on a Moscow street.”[4] In response to the controversial 2016 presidential election, select areas of the United States have begun testing with mobile voting methods.[5] The threats of mobile voting to cyber security are rather tacit, however, the real threat of mobile voting is posed against our legal right to vote. According to the established doctrines such as the 15th Amendment of U.S. Constitution, and Section 21 of The Universal Declaration of Human Rights, the right to vote is granted to us by law.[6] Although the right to vote in “genuine elections” are secured rights, there are currently no federal voting regulations specially tailored to the insurgence of voting technology in the age of the internet.[7]

Advocates claim the current voting system is not working and the lack of voter turnout is leading our democracy to a state of crises.[8] Advocates also acknowledge the need of securing the integrity of every vote but claim that the current voting system does not accommodate voter accessibility which is evidenced by the fact that the voter turnout rate in the U.S. is lower than most other developed countries.[9] Advocates attribute the low voter turnout rate in the U.S. to several factors. One factor advocates point to is that elections are held during the workday, which excludes some working citizens from being able to vote.[10] Additionally, voting is too “old-school.”[11] Voters are less likely to vote if they are forced to congregate at a local church, high school gym, or retirement home and wait in line to cast their vote.[12] Furthermore, a popular concern is that the younger generation will naturally trend toward internet voting because they will have less understanding of paper ballot voting.[13] Advocates point to all of these factors as an explanation for the average voter turnout rate of 55%.[14] Advocates claim that outdated and ineffective voting system has caused too much “friction” between the registration and voting process and is the catalyst for diminished legitimacy for our elected officials.[15]

The question becomes, does the hope of increased voter turnout outweigh the cyber security risks? Perhaps an obvious counter argument to the claim that voter accessibility will increase election legitimacy, is precisely the opposite. If votes are being conducted at the touch of a finger, election legitimacy would decrease because the mere fact that people are not making the effort to wait in line at the polls is evidence that voters are not serious about their votes. An alarming analogy used by cyber security experts when comparing the cyber security risks of internet voting is to the cyber security statistics in the American financial system. Allegedly 5-7% of annual expenses are included in the operating costs of most big banks. It is bad enough that the American financial system is complacently allowing fraud and financial misconduct to continue at such a rate. How would this work in the political setting? Would 5-7% of all votes be the result of fraud? This does not sound like a successful sales pitch to the growing rational apathetic population in the United States. However, the question remains, whether the threat of fraud is greater than the threat of the increasing population of apathetic voters and people are unable to vote due to lack of accessibility.[16] The bottom line, if people are unwilling or unable to vote in person, there vote is guaranteed not to count.[17]

 

 

[1] Tusk Philanthropies, Mobile Voting Project, https://mobilevoting.org/where-is-it-happening/.

[2] See id.

[3] Id.

[4] Miles Parks, In 2020, Some Americans Will Vote On Their Phones. Is That The Future?, NPR (Nov. 7, 2019, 5:01 AM), https://www.npr.org/2019/11/07/776403310/in-2020-some-americans-will-vote-on-their-phones-is-that-the-future.

[5] Mobile Voting Project, supra note 1.

[6] See generally, U.S. Const. amend 15; see also G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

[7] Emily Goldberg, America faces a voting security crisis in 2020. Here’s why-and what officials can do about it, Politico, (Sept. 16, 2019, 4:03 pm), https://www.politico.com/story/2019/08/16/voting-security-crisis-q-a-1466704.

[8] Tusk Philanthropies, Mobile Voting Project, https://mobilevoting.org/why-mobile-voting/.

[9] Parks, supra note 4.

[10] See id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Goldberg, supra note 7.

[17] See id.

image source: https://static.politico.com/dims4/default/a985f3b/2147483647/resize/1160x/quality/90/?url=https%3A%2F%2Fstatic.politico.com%2F5d%2F4f%2F08ad183c44b1b72837846f0a0d3e%2F190816-votingmachine-getty-773.jpg

By: Eric Richard

With the adoption of the General Data Protection Regulation in 2018, many curious onlookers watched and waited to see whether there would be any like legislation surface in the United States. Federally, those onlookers are still waiting, but some states are taking up the initiative, the most notable being California.[1] Just this month (January 2020), the California Consumer Privacy Act (CCPA) became effective.[2] The new legislation is currently the strongest data privacy law in the United States, providing consumers with ample rights related to accessing their data, having their personal data deleted when requested, and even opting out of having their data sold.[3] Vermont also enacted data protection legislation recently.[4] However, Vermont’s law only covers third parties that buy or resell consumer data, and is not as pervasive.[5]

So, what kinds of businesses need to be scared, or at least aware, of these new laws? The CCPA covers businesses operating in the state of California, such as: ride-hailing services, retailers, mobile service providers, and others that may collect personal data for commercial purposes.[6] Further, the CCPA only applies to companies that have more than $25 million dollars in gross revenues, annually buys, receives or sells personal information of at least 50,000 or more consumers, households, or devices, or derives 50% or more of its annual revenue from selling personal information.[7] Consumers will now be able to see exactly what categories of data any subject company has on them.[8] This includes things like smartphone locations or voice recordings (look out Snapchat).[9] The CCPA even provides specific protection for children.[10] It stipulates that companies must obtain parental permission before selling person details of anyone under the age of 13.[11]

Another California initiative is potentially about to change the way students go through law school in the Golden State. A recent rule change by the State Bar of California will allow state-accredited law schools to teach JD programs entirely online.[12] The result has been two-fold: accredited law schools are now filing applications to offer all online curriculums and non-accredited law schools who currently offer those online curriculums are filing for accreditation.[13] Just like the number of employees who want the option to work from home, this change is likely stemming from the American preference for flexibility in scheduling one’s life. There will be several layers of hoops to jump through in order for all online programs to become accredited, and we’ve yet to see how many students will opt for an online experience as a result, but California is certainly changing the landscap

[1] See Jill Cowan, How California’s New Privacy Law Affects You, NY Times (Jan. 3, 2020), https://www.nytimes.com/2020/01/03/us/ccpa-california-privacy-law.html.

[2] See id.

[3] See id.

[4] See Jason Tashea, Vermont’s new consumer protection law could be a harbinger for tech industry, A.B.A. J. (June. 1, 2019, 12:50 AM), http://www.abajournal.com/magazine/article/sunlight-in-vermont-states-new-consumer-protection-law-regulating-companies-that-buy-or-sell-data-could-be-a-harbinger-for-tech-industry.

[5] See id.

[6] See Cowan, supra note 1.

[7] See Jason Tashea, California’s new data privacy law could change how companies do business in the Golden State, A.B.A. J. (Jan. 1, 2019, 1:50 AM), http://www.abajournal.com/magazine/article/gdpr_california_data_privacy_law.

[8] See Cowan, supra note 1.

[9] See id.

[10] See id.

[11] See id.

[12] See Stephanie Ward, California may offer more opportunities for JDs taught entirely online, A.B.A. J. (Jan. 14, 2020, 6:30 AM), http://www.abajournal.com/web/article/california-may-offer-more-opportunities-for-jds-taught-entirely-online.

[13] See id.

 

image source: https://www.bbklaw.com/news-events/insights/2019/legal-alerts/01/new-year,-new-laws-impacting-public-agencies-i-(1)

By: Monica J. Malouf

The newest generation of mobile networking is upon us. AT&T and Verizon have rolled out their 5G—which stands for 5th generation—plans, and in 2020 both providers intend expansion to nationwide coverage.[1]

In a nutshell, 5G is “a new cellular standard.”[2] It will improve interconnection between users, as well as connection with “smart” devices.[3] It will deliver multi-gigabyte/second rates, decreased latency or lag, increased capacity, and provide “a more uniform user experience.”[4]

Not only will 5G transform cellular network connection, but it will also improve mission-critical communications, “enable[ing] new services that can transform industries with ultra-reliable/available, low latency links—such as remote control of critical infrastructure, vehicles, and medical procedures.”[5] 5G could also generate significant revenue for the U.S. economy, although the full economic effect is yet to be realized.[6]

These improvements obviously appeal to consumers across all network providers. But the appeal comes at a high cost.

To implement nationwide access, the large wireless companies will need to construct or install thousands of new towers. Although they are not “towers,” technically—more like pole-like extensions with booster antennas connected to lamp-posts and stop lights. Nonetheless, these towers prove semi-invasive, and people across the country are displeased.

5G requires that towers be erected in closer proximity to users,[7] which means closer proximity to homes.  AT&T plans to implement 300,000 this year.[8] These towers are eye-sores that the company plans to attach to already existing infrastructure in neighborhoods.[9] Quicker access and connectivity comes a price, right?

Homeowners from New York to Maryland have expressed their concerns about these new cell towers popping up in their neighborhoods.[10] They claim health concerns regarding increased radiation exposure, specifically fears that the exposure causes cancer.[11]  Citizens in Albany have created a group demanding a moratorium on construction until health concerns are addressed.[12]

However, research on the health effects of cell-phone emitted radiation has been inconsistent.[13]  The Telecom industry and even the Federal Communications Commission (FCC) have assured the public that 5G is safe.[14] Additionally, some scientists proffer statistics which show that the human skin can block radio waves at higher frequencies.[15] Nonetheless, people across the world have banded around health concerns surrounding 5G, slowing the implementation of the new generation of mobile networking.[16]

Like any advance in technology, new legal questions arise with the unveiling of the new network. Questions of health, privacy, intellectual property, and other legal implications circle around this next generation of mobile networking. In the race with China to implement nationwide 5G access, the FCC has placed constraints on cities and local governments in their ability to regular 5G within their localities.[17]

The U.S. Conference of Mayors released a statement in opposition following the FCC’s order, stating:

“Despite efforts by local and state governments, including scores of commenters in the agency’s docket, the Commission has embarked on an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers, including reduced funding for essential local government services, and needlessly introduce increased risk of right-of-way and other public safety hazards.”[18]

Legal questions will continue to circle around 5G. Will new towers expose users to new levels of radiation? Will the new connective features among smart devices lead to privacy breaches? Will the new towers affect property prices or other elements of the real estate market? The list continues.

Societal desires for faster, more efficient and innovative data-access move with a momentum that the law seems to never quite match. And while that seems daunting for consumers, it means unchartered territory for attorneys. And with unchartered territory means works. Lots of work.

[1] See Brian X. Chen, What You Need to Know About 5G in 2020, N.Y. Times: Tech Fix ( Jan. 8, 2020), https://www.nytimes.com/2020/01/08/technology/personaltech/5g-mobile-network.html?auth=login-google1tap&login=google1tap.

[2] Id.

[3] See Everything You Need to Know About 5G, Qualcomm: 5g FAQ (last visited Jan. 16, 2020), https://www.qualcomm.com/invention/5g/what-is-5g.

[4] Id.

[5] Id.

[6] See id.

[7] See Chen, supra note 1.

[8] 5G Service is Coming – And So Are Health Concerns Over The Towers That Support It, CBS News (May 29, 2018, 8:39 AM), https://www.cbsnews.com/news/5g-network-cell-towers-raise-health-concerns-for-some-residents/.

[9] See id.

[10] See id.; see also Paul Grondahl, 5G Cell Protests Span from Albany to Europe to Russia, Times Union (May 14, 2019, 8:41 PM), https://www.timesunion.com/news/article/Grondahl-5G-cell-protests-span-from-Albany-to-13843495.php#photo-17439917.

[11] See 5G Service is Coming, supra note 8.

[12] See Grondahl, supra note 10.

[13] See id.

[14] See Tad Simons, The Great Rollout: Will 5G Be a Boon for Lawyers?, Thompson Reuters: Legal Executive Institute (July 23, 2019), http://www.legalexecutiveinstitute.com/5g-lawyers-boon/.

[15] See William J. Broad, The 5G Health Hazard That Isn’t, N.Y. Times (July 16, 2019), https://www.nytimes.com/2019/07/16/science/5g-cellphones-wireless-cancer.html; see also Reality Check Team, Does 5G Pose Health Risks?, BBC News ( July 15, 2019), https://www.bbc.com/news/world-europe-48616174.

[16] See Thomas Seal & Albertina Torsoli, Health Scares Slow the Rollout of 5G Cell Towers in Europe, Bloomberg Businessweek (Jan. 15, 2020, 12:01 AM), https://www.bloomberg.com/news/articles/2020-01-15/health-scares-slow-the-rollout-of-5g-cell-towers-in-europe.

[17] See Simons, supra note 14.

[18] Statement by U.S. Conference of Mayors CEO & Executive Director Tom Cochran on FCC’s Order Subordinating Local Property Rights, The United States Conference of Mayors, https://www.usmayors.org/2018/09/26/statement-by-u-s-conference-of-mayors-ceo-executive-director-tom-cochran-on-fccs-order-subordinating-local-property-rights/.

image source: https://www.computerworld.com/article/3310067/why-5g-will-disappoint-everyone.html

By: Tabetha Soberdash

Once used purely in science fiction movies to portray a far-off, technological-advanced future, smart technology is now something that many individuals use daily in their homes, employment, cars, and so on.[1] Quickly, more and more smart devices are being created and placed into the market for consumers to purchase.[2] Examples of smart devices include: Google Assistant, Amazon Echo, smart lights, programable vacuums, and smart doorbells.[3] These devices allow individuals to do things like search the internet for a new recipe, purchase a book from Amazon, turn off all the lights in the house, or view what is front of a video-doorbell with just a simple voice command.[4] Further, through features, linking sensors, and the connection of the Internet of Things (IoT), smart devices can conveniently be monitored, controlled, or accessed even from a distance.[5]

Overall, the technology is created to be useful and respond to the needs of the users.[6] The devices have even offered new ways for individuals to protect their loved ones and their homes.[7]  An example of this is well demonstrated by the events of December 22, 2019 when an Amazon Alexa device notified the daughter of an elderly man that a theft was taking place in his assistant living facility in Florida.[8]  The device had a “check-in” feature which allowed the daughter to check on her father in Florida from her home in Alaska.[9]  Using that feature, the daughter was able to see the strange man who was going through her father’s wallet. Afterwards, the family was able to notify the police, who then proceeded to arrest a suspect.[10]

While there are many advantages to smart devices, they do come with the major risk of eliminating any realistic expectation of privacy, as many of the devices function by recording nearby interactions and storing the recordings or by providing a visual of what is near the device.[11] As such, there is a great need to protect the users of the devices from any unsolicited uses of the device and its data.[12] In recent years, manufactures of the device have began to provide some options to protect users and their data.[13] One such option is that many of the devices now provide access to the stored recorded data via the user’s account and allow the information to be deleted.[14] Additionally, many devices allow one to turn off the camera or microphone portions when the device is not being used.[15] However, the need for greater protection is clearly being demonstrated as manufacturers, such as Amazon’s home security company, Ring, are finding themselves in the position of firing employees for abusing their ability to view customers’ video feeds and responding to reports of hacking of the devices.[16] As smart devices can be placed in even the most intimate locations of one’s home, including the bedroom, these happenings are causing many to worry about potential intrusions from hackers and abusive employees.[17] Overall, while consumers are gaining many benefits from this new technology, they are also gaining new risks. As time and these concerns are causing manufacturers to alter what protections they provide to users, regulations and suits are sure to follow as policies change. Only time will tell how the law can best catch up to the increase of smart devices and protect the users.

[1] See Jessamyn Dahmen et al., Smart secure homes: a survey of smart home technologies that sense, assess, and respond to security threats, 3 J. Reliable Intelligent Env’ts 83, 83 (2017).

[2] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[3] See Gordon D. Cruse, The Trouble with Devices and the Data They Contain, 41 Fam. Advoc. 33, 34 (2019).

[4] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[5] See Heetae Yang et al., IoT Smart Home Adoption: The Importance of Proper Level Automation, 2018 J. Sensors 1 (2018).

[6] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[7] See, e.g., Holly Bristow, Amazon Alexa device alerts family to man suspected of stealing from loved one at assisted living facility in Florida, Fox10 Phoenix (Jan. 09, 2020), https://www.fox10phoenix.com/news/amazon-alexa-device-alerts-family-to-man-suspected-of-stealing-from-loved-one-at-assisted-living-facility-in-florida.

[8] See id.

[9] See id.

[10] See id.

[11] See Tara Melancon, ARTICLE: “Alexa, Pick an Amendment”: A Comparison of First and First Amendment Protections of Echo Device Data, 45 S.U. L. Rev. 302, 314–15 (2018).

[12] See, e.g., Malena Carollo, Got a smart home device as a gift? Don’t forget to secure it, Tampa Bay Times (Dec. 26, 2019),  https://www.tampabay.com/news/business/2019/12/26/got-a-smart-home-device-as-a-gift-dont-forget-to-secure-it/.

[13] See, e.g., Amazon Privacy Notice, Amazon, https://www.amazon.com/gp/help/customer/display.html?nodeId= 468496.

[14] See, e.g., Amazon Help and Customer Service View Your Dialog History, Amazon, https://www.amazon.com/gp/help/customer/display.html/ref=help_search_17?ie=UTF8&nodeId=201602040&qid=1513968463&sr=1-7.

[15] See, e.g., Lauren Barack, Here’s how to make Alexa stop listening to your conversations, Mediafeed (Apr. 27, 2019),  https://mediafeed.org/heres-how-to-make-alexa-stop-listening-to-your-conversations/.

[16] See Audrey Conklin, Amazon’s Ring fired four members of staff for snooping on customers, Fox Business (Jan. 09, 2020), https://www.foxbusiness.com/technology/amazon-ring-fired-four-employees-video-footage.

[17] See id.

image source: https://dss.tcs.com/breaking-down-barriers-to-big-data-analytics-connected-intelligence-platform/

By: Merrin Overbeck

A rising issue in today’s society is that of deep fake videos, “. . . a portmanteau of ‘deep-learning’ and ‘fake,’ [deep fake videos] are audio or visual material digitally manipulated to make it appear that a person is saying or doing something that they have not really said or done.”[1] This technology uses algorithms to create incredibly realistic videos through the use of images or audio recordings of actual people.[2] These videos have been increasingly common on social media platforms, Facebook being one of the main locations where these videos are posted.[3]

These videos have become increasingly common because new technology allows average individuals to create deep fake videos without the need for specific experience or skill with technology. For example, in January 2018, a free user-friendly application was released that made deep fake technology available to the general public.[4] This application allowed any individual with access to the internet and images of a person’s face to create a deep fake video.[5] Not only has this technology become more easily accessible, but it also has grown so sophisticated in that “an average internet user by the 2020 election could create doctored videos so realistic forensic experts will have to verify whether the content is real.”[6]

While this technology can be used in harmless ways, individuals with access to this technology have unfortunately found illegal uses for it. One example is “deep-fake pornography,” which is related to nonconsensual pornography in which there is a disclosure of private, intimate images or videos of another person without that individual’s consent.[7] This illegal use of deep fake technology is harmful because individuals are turned into “objects of sexual entertainment against their will, causing intense distress, humiliation, and reputational injury.”[8] Another example is its use in white collar crime and financial crimes. This technology has been used by criminals to impersonate company executives to defraud businesses.[9] In order to understand how harmful this technology can be, consider a situation in which, right before a company’s Initial Public Offering:

a deepfake video . . . show[s] the company’s CEO soliciting a child prostitute or saying something he shouldn’t say in a way that upends the initial public offering. . . If released at a crucial time, a deep-fake video could destroy the marketplace’s faith in a CEO or company. Depending on the timing of the release, a deep-fake video can hijack people’s lives and companies’ fortunes.[10]

Another example of the illegal use of deep fake technology, and the example that the rest of this post is going to discuss, is its use to distribute false news and information by malicious groups. According to Europol, “little or no technical expertise is required to [create these videos], and recent developments in deep fake video and audio mimicking technology make it easier to spread disinformation and impersonate individuals.”[11] In this context, these videos are created in order to sway voters to prefer one political ideology over another.[12] This was a major issue in the 2016 presidential election, and the primary location where these videos were sent was Facebook.[13] Social media platforms such as Facebook is a popular platform for individuals to post these videos on because of the ability for individuals to post frequently about the topic of their choice.[14] The ease of posting these videos to Facebook has led to Facebook receiving criticism about its complacency in the issue of the spread of false information.[15]

After learning of the issues that deep fake videos have caused on its platform, Facebook recently implemented a new policy that bans some deep fake videos from its website.[16] In its official announcement regarding this new policy, Facebook noted that deep fake videos that were “meant for satire are still fine, along with any that have a more serious purpose.”[17] This means that videos that were edited to enhance the clarity or quality of the video are still allowed.[18] Facebook’s announcement is largely focused on just preventing videos that are part of “a misinformation campaign, what Facebook calls manipulated media.”[19] Facebook is able to do this because various technology companies have created means of detecting videos that are created using this technology. For example, one way of determining that a video is a deep fake is observing the lack of blinking in the subject of the videos.[20]

While this policy decision by Facebook helps to partially solve the issue of the harmful use and distribution of deep fake videos, there is still a wide variety of harm that these videos can cause. In order to be able to detect videos in which only a small portion is altered, technology companies are going to have to focus on the development of technology that keeps up with the fast-paced development of deep fake technology. This is an important consideration because circumvention “used to take years, [but] it can now occur in two- or three-months’ time.”[21] Unfortunately, this technology that was developed with the intention of helping to detect deep fake videos can also actually be used to create more convincing fakes.[22] An example of this occurred when German researchers created an algorithm that would be able to detect “face swaps”[23] in videos, but then discovered that this technology could actually be used to “improve the quality of face swaps in the first place- and that could make them harder to detect.”[24]

Therefore, while Facebook’s decision to start to ban harmful deep fake videos does help solve the problem partially on that specific platform, deep fake technology is a rising issue that technology companies, governments, law enforcement agencies, and society as a whole must be aware of. Facebook is just one example of entities becoming aware of this issue and responding.

 

[1] Mary Anne Franks & Ari Ezra Waldman, Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions, 78 md. l. Rev. 892, 893 (2019).

[2] See id. at 894.

[3] See Josh Brandon, Facebook Bans Deepfake Videos That Could Sway Voters, But Is It Enough?, Forbes, (Jan. 13, 2020) https://www.forbes.com/sites/johnbbrandon/2020/01/13/facebook-bans-deepfake-videos-that-could-sway-voters-but-is-it-enough/#4a6d6283476b.

[4] Nancy McKenna, Head to Head, 15 No. 7 Quinlan, Computer Crime and Technology in Law Enforcement, July 2019.

[5] See id.

[6] Olivia Beavers, House intel to take first major deep dive into threat of ‘deepfakes’, The Hill, (June 13, 2019) https://thehill.com/homenews/house/448278-house-intel-to-take-first-major-deep-dive-into-threat-of-deepfakes.

[7] Supra note 1, at 893.

[8] See id. at 893.

[9] Henry Kenyon, AI creates many new malicious opportunities for crime, Europol says, Congreessional Quarterly Roll call, 2019 WL 3244189 (July 19, 2019).

[10] Robert Chesney & Danielle Keats Citron, 21st Century-Style Truth Decay: Deep Fakes and the Challenge for Privacy, Free Expression, and National Security, 78 Md. L. Rev. 882, 887 (2019).

[11] Supra note 5.

[12] Supra note 3.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] Supra note 5.

[21] See id.

[22] See id.

[23] See id.

[24] See id.

 

image source: https://pixabay.com/photos/twitter-facebook-together-292994/

 

By: Mariah L. Bayless Davis

The sport of baseball has forever been known as America’s Pastime. However, each year, less and less people are requesting to taken out to the ballgame.[1] In fact, from 2008 to 2018, the NFL, NBA, and NHL also experienced a steady decline in game attendance.[2] While “it is tough to know exactly what is stopping fans from coming to games,” the MLB proposed their solution: enhancing the fan experience, because happy fans come back.[3]

 

Enhancing the fan experience was an easy answer because “to survive as a major sport, baseball needs to be […] more accessible and entertaining to younger generations that might have different viewpoints on what is or isn’t fun.”[4]  The current commissioner, Rob Manfred commented on the attempt to evolve the fan experience saying, “stadiums have focused on creating more social spaces for fans to congregate and experience the game atmosphere without being glued to their seats for nine innings.”[5] For example, the Minnesota Twins opened their Bat & Barrel club in right field during the 2018 season.[6] Bat & Barrel was created as a social space that immersed fans in Twins history while giving fans a new way to watch the Twins play.[7] The new space did such a good job at enhancing the fan experience at Target Field that it was awarded the 2018 Ballpark Digest Award for Best MLB Renovation.[8] The Twins had stiff competition for this award as the Oakland A’s unveiled their Treehouse complex during the same season.[9] The “complex” comprised of “three spaces in one: A 10,000 square foot indoor bar, patio deck, and outdoor terraced bar and lounge where the left field bleachers used to be.”[10] Some clubs have gone further than unveiling social spaces. “What started as WiFi-enabled stadiums and electronic ticketing has morphed into deploying a variety of technology to create better fan experience, virtual reality and augmented reality tech posted on-field and on-court enables the broadcast of highlights and other content in VR and AR, and entire games in VR.”[11] All of these changes in the MLB stadiums were made with new, young fans in mind and are very important to the future of the game that is now competing with other entertainment.[12]

 

“With the inflow of new technologies every year and the many alternatives to experiencing games in-stadium, sports teams have found themselves in a constant race; desperately trying to improve attendance by pushing the limits of experiential marketing and fan engagement in your venue.”[13] In order to push the limits, MLB is currently partnering with CLEAR, a biometric identification company, to switch from paper and the once innovative electronic tickets to biometric identification.[14] The technology company has already partnered with the New York Yankees, Colorado Rockies, Seattle Mariners, New York Mets, Atlanta Braves, the Los Angeles Football Club, Oakland Athletics, San Jose Quakes, and Madison Square Garden to provide easy access.[15] In 2018, the Seattle Seahawks became the first NFL team to use CLEAR’s technology.[16] The technology is being marketed to patrons as a way to gain quick entry into the game via a fast pass lane and the ability to purchase food or alcohol by simply scanning a fingerprint.[17] Seems like steal, but do patrons know what they’re actually sacrificing for convenience?

 

This CLEAR technology will surely provide a seamless experience for fans, as it has “reduced hour-long wait times to a matter of minutes” at the airports it is installed in.[18] However, what is the cost fans are paying for lesser waiting times for a hot dog and a Coors Light? The CLEAR program is free for anyone at any of the partnered ballparks.[19] Patrons simply register by “submitting biometric data – like fingerprints and a retina scan – and once approved, merely have to be scanned through much quicker security line.”[20] What is stored in our fingerprints and retina scan is not just biometric data, but our identity. The want for less friction makes patrons vulnerable. Jay Stanley, a senior policy analyst for the American Civil Liberties Union, said, “the sort of intimate data that biometric tools collect becomes a honeypot for hackers and the unique identifiers can be used to track people and merge information about various parts of their lives into broader visions of how they live.”[21] Patrons do not understand that by submitting six total fingerprints, their ID, an email address and phone number, they are handing over their privacy.[22] By making convenience so alluring in an instant gratification society, patrons are left to choose between convenience and privacy – because they cannot have both.

 

The biggest issue with this technology is that it is a legal Wild West, as there is no federal law regulating the collection, use, and protection of biometric data.[23] “The collection of details related to someone’s face is classified as ‘biometric’ information, which requires specific forms of notice and consent in live with the laws of certain states.”[24] Seattle Seahawks and Seattle Mariners fans are protected, as Washington is one of three states that regulates biometric data.[25] However, fans in other states “need to be informed and they need to understand what information is being collected and how it’s being used.”[26] Although fans still have the the power to decide whether they are treated like another data point, “facial identification is becoming too convenient to avoid – even if laws or public pressure continues to make it voluntary.”[27] The availability of convience incentivizes patrons to just give in.[28]

 

The only way for patrons to choose between convenience and privacy is to first be informed, because “once you’ve lost your privacy, you’ve lost an extremely valuable thing.”[29] Biometric data could save lives or ruin them, depending on how its managed.[30] “Unlike a username and password, people can’t change their fingerprints or retinas” if they are compromised in a breach.[31] So what will it be: skipping the line to buy a beer or your privacy?

[1] See Danielle Allentuck and Kevin Draper, Baseball Saw a Million More Empty Seats. Does It Matter?, NY Times (Oct. 1, 2019), http://www.nytimes.com/2019/09/29/sports/baseball/mlb-attendance.html.

[2] See Grant Suneson, These Pro Sports Teams Are Running Out of Fans, usa today (Jul. 20, 2019), https://www.usatoday.com/story/money/2019/07/15/nfl-nba/nhl-mlb-sports-teams-running-out-of-fans/39667999/

[3] Id.

[4] Dave Sheinin, In Seeking New Fans Without Offending Current Ones, MLB Faces Its Toughest Call, Wash. Post (Jul. 20, 2018), https://www.washingtonpost.com/news/sports/wp/2018/07/20/in-seeking-new-fans-without-offending-current-ones-mlb-faces-its-toughest-call/

[5] Chris Hine, Major League Baseball Fans Turning Gray While Millennials Tunring Out, Star Tribune (Jul. 16, 2018), www.startribune.com/major-league-baseball-fans-turning-gray-while-millennials-turning-out/488240861/?refresh=true

[6] See id.

[7] See Target Field Bat & Barrel Named Best MLB Renovation for 2018, Populous (Nov. 21, 2018), https://populous/com/target-field-bat-barrel-named-best-mlb-renovation-2018

[8] See id.

[9] See Bill Frijoles, A’s Announce New “Treehouse” Complex in Left Field, Athletics Nation (Feb. 28, 2018), https://www.athleticsnation/com/2018/2/28/17064134/as-announce-new-treehouse-complex-in-left-field-coliseum

[10] Id.

[11] Douglas N. Masters, How Technology is Improving the Fan Experience – And Creating Legal Challenges for Clubs and Leagues, Law In Sport (Feb. 22, 2019), https://www.lawinsport.com/topics/sports/items/how-technology-is-improving-the-fan-experience-and-creating-legal-challenges-for-clubs-and-leagues

[12] See Allentuck and Draper, supra note 1.

[13] Team Brizi, 3 Reasons Why Improving the Fan Experience Will Drive Revenue, Brizi (Mar. 18, 2018), https://brizicam.com/insights/3-reasons-why-improving-the-fan-experience-will-drive-revenue/

[14] See Logan Huff, MLB Partnership Could Change the Way Fans Access Stadiums, GlobalSport Matters (Mar. 27, 2019), https://globalsportmatters.com/business/2019/03/27/mlb-targets-bioetric-identification-nationwide/

[15] See id.

[16] See Taylor Sopher, Scan Your Fingerprint, Get a Beer: Testing CLEAR’s Biometric Tech at A Seahawks Game, Geek Wire (Nov. 10, 2018), https://www.geekwire.com/2018/scan-your-fingerprint-get-beer-testing-clears-biometric-techology-seattle-seahawks-game/

[17] See id.

[18] Brandi Vincent, Biometrics Offer Travelers a Deal: Convenience and Security in Exchange for Personal Info, NBC News (Dec. 21, 2018), https://www.nbcnews.com/tech/security/biometrics-offer-travelers-deal-convenience-security-exchange-your-info-n950966

[19] See Geoff Baker, Registering Your Biometric Data Will Get You Into Safeco Faster, But At What Cost?, Seattle Times (Apr. 9, 2018), https://www.seattletimes.com/sports/mariners/registering-your-biometric-data-will-get-you-into-safeco-faster-but-theres-reason-for-concern/

[20] Id.

[21] Vincent, supra note 18.

[22] See Sopher, supra note 16.

[23] See Kevin Draper, Madison Square Garden Has Used Face-Scanning Technology on Customers, Ny Times (Mar. 13, 2018), https://www.nytimes.com/2018/03/13/sports/facial-recognition-madison-square-garden.html

[24] Richard L. Brand and Eva Pulliam, Faces in The Crowd: Legal Considerations for Use of Facial Recognition Technology at Sports Arenas, Law In Sport (Aug. 29, 2018), https://www.lawinsport.com/topics/sports/item/faces-in-the-crowd-legal-considerations-for-use-of-facial-recognition-technology-at-sports-arenas

[25] See Biometric Data and Data Protection Regulations, Gemalto (Sept. 4, 2019), https://www.gemalto.com/govt/biometrics/biometric-data

[26] Huff, supra note 14.

[27] Geoffrey A. Fowler, Don’t Smile for Surveillance: Why Airport Face Scans Are a Privacy Trap, Wash. Post (Jun. 10, 2019), https://www.washingtonpost.com/technology/2019/06/10/your-face-is-now-your-boarding-pass-thats-problems/

[28] See Vincent, supra note 18.

[29] Nancy Gibbs and Michael Duffy, A New Book Reveals What Graham Learned – and What He Regretted – In His 50-Year Ministry to U.S. Presidents, Time (Aug. 9, 2007), content.time.com/time/subscriber/article/0,33009,1651625-2,00.html

[30] See Lisa Joy Rosner, How Biometric Data Will Shift the Privacy Conversation, Forbes (Jul. 2, 2019), https://www.forbes.com/sites/forbescommunicationscouncil/2019/07/02/how-biometric-data-will-shift-the-privacy-conversation/#46f194113f4c

[31] Rosner, supra note 30.

image source: https://www.mobilesportsreport.com/2018/10/paying-for-beer-with-a-fingerprint-gets-thumbs-up-at-seattles-centurylink-field/

 

By: Cam Kollar

One of the latest innovations in food is the trend of ‘Ghost Kitchens.’[1] Also known as dark kitchens, cloud kitchens, and virtual restaurants, they are an extension of the gig economy.[2] A Ghost Kitchen is a restaurant that has been created only for delivery or take-out.[3] A growing market, online food ordering had $26.8 billion in sales last year with a growth of about 20% each year.[4] Some restaurants are sharing their kitchens with these virtual restaurants, while other business models are where the physical kitchen is for online ordering and delivery only.[5] Although often used interchangeably, there are differences between a ghost kitchen and a virtual kitchen. One key difference between a virtual restaurant and a ghost kitchen is that virtual restaurants do not sublet kitchen space and instead use their own established brick and mortar locations or food trucks to create specialty menus filled with items available exclusively online and for delivery.[6]

It is easy to see the appeal to businesses, there is a decreased overhead because you do not require waitresses, or tables, you see a decrease in dishes used (because they limited to what was cooked with -not the dishes for each patron), and you have the flexibility to easily modify a menu based on interest and fresh ingredients, and there is minimal need for expensive aesthetics or large volumes of square footage.[7] Driving the opportunities are the various food delivery apps that many rely on such as UberEats, DoorDash, Grubhub, or Postmates.[8] In one business model, the brick and mortar ghost kitchen operates for new restaurants or menu concepts in a similar way to how business incubators help tech startups.[9] The shared fixed expenses between several new entities, thus decreasing start up costs, can inspire new creativity into a chef’s work of art, but also has the potential to go drastically wrong. In a kitchen that is simultaneously shared by three or four entities, who is responsible for the licensure? The maintenance of the equipment? And where a third party contractor is delivering food, who is responsible for food poisoning? The restaurant industry has safety standards that need to be accounted for when planning to start a Ghost Kitchen.[10] For instance in California, ghost kitchen operators must still comply with the state’s business licensing and commercial kitchen requirements.[11] Additionally, each person involved in food prep and handling has to obtain a California Food Handler Card.[12]The best time to plan for these contingencies is in the beginning-such as when beginning negotiations with third-party delivery services, and/or the licensed kitchen.

As someone who enjoys food, and has little time to cook between law school classes, having access to new menus has significant appeal. Growing up, my options (way back when) were limited to pizza and Chinese food but now delivery competition can be fierce, exciting, and invigorating. With the potential for hundreds of virtual restaurants available on Uber Eats[13], the convenience of delivery makes this a great option during finals when you are glued to your study spot.

[1] See Jimmy Bui & Mark R. Vowell, Ghost Kitchens: Considerations in Negotiating Agreements with Third Party Delivery Services, Hunton Andrews Kurth: Tech. & E-Commerce (Mar. 21, 2019), https://www.huntonretailindustryblog.com/2019/03/articles/technology-e-commerce/ghost-kitchens-considerations-in-negotiating-agreements-with-third-party-delivery-services/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original.

[2] See id.

[3] See Alexandra Olson, The Rise of ‘Ghost Kitchens’: Here’s What the Online Food Ordering Boom has Produced, USA Today (Oct. 21, 2019), https://www.usatoday.com/story/tech/2019/10/21/ghost-kitchen-virtual-restaurant-heres-how-works/4053659002/.

[4] See id.

[5] See Bui & Vowell, supra note 1.

[6] See Guide to Ghost Kitchens (2019): All You Need to Know, Roaming Hunger (Sept. 27, 2019), https://roaminghunger.com/blog/15623/ghost-kitchens-everything-you-must-know.

[7] See Bui & Vowell, supra note 1.

[8] See id.

[9] See Olson, supra note 3; see also Maggie Hennessy, Are Ghost Kitchens the Future?, QSR (July 2019), https://www.qsrmagazine.com/technology/are-ghost-kitchens-future.

[10] E.g., Bui & Vowell, supra note 1.

[11] See Thompson Coburn, Ghost Kitchens: A Scary-good Real Estate Opportunity in California, Lexology (Oct. 7, 2019), https://www.lexology.com/library/detail.aspx?g=4e1257e2-33a0-407a-ab63-3b526a57a917.

[12] See id.

[13] See Shannon Bond, Delivery Only: The Rise of Restaurants with No Diners as Apps Take Orders, NPR (Dec. 5, 2019), https://www.npr.org/2019/12/05/783164944/delivery-only-the-rise-of-restaurants-with-no-diners-as-apps-take-orders.

image source: http://www.ticketdfw.com/whats-on/2019/from-the-table-a-celebration/