Richmond Journal of Law and Technology

By: Garrett Kelly

If you ask Andy Williams, it’s the “most wonderful time of the year.”[1] The holiday season is upon us. According to Forbes, in 2018, Cyber Monday recorded total sales of $7.9 billion.[2] This week Cyber Monday broke the record for total sales of $9.4 billion, $2 billion more sales than Black Friday.[3] Of the $9.4 billion in sales, 33% were via smartphones, which is a 46% increase from last year.[4] These sales differences highlights a significant trend in the shopping habits of consumers. In an age where consumers are incentivized to shop online instead of in person, why are consumers punished at the checkout by surcharges and convenience fees?

When you make a purchase using a credit or debit card, online or by phone, we have been convinced that the company is doing us a favor by providing the consumer with the convenience of using a credit or debit card.[5] But who is this convenience truly benefiting? At the end of the day, the convenience is bestowed on the company who is able to reach a much larger market by offering online shopping and credit or debit payment methods.[6] Yet the consumer is the one paying the company for the ability to buy their product.[7] This fallacy defies economics and makes me nauseous.

Luckily, I am not the only one. In 2011, Bank of America planned to implement a $5 monthly charge to customers who used debit cards.[8] Wait, it costs $5 dollars for a consumer to spend their money? The Bank’s plan came to a holt when a courageous customer, Molly Katchpole, petitioned the fee and fostered 306,000 signatures.[9] Weeks later the $5 fee was abandoned. Moreover, Verizon Wireless learned a similar lesson months later when it planned to charge customers $2 for making one-time credit or debit card payments.[10] Again, Katchpole petitioned the fee and again the fee was abandoned, this time only days after it was proposed.[11] These petitions highlight yet another issue surrounding the implementation of convenience fees and surcharges by merchants. Are these charges constitutional?

The Supreme Court first addressed the constitutionality of restrictions on commercial advertising in the form of surcharges in Central Hudson Gas & Electric Corp. v. Public Service Commission.[12] Applying a four-part test, the Court created a standard for determining the constitutionality of governmental regulations on commercial speech.[13] The first consideration is whether the speech in question constitutes false or misleading advertising that is unprotected by the First Amendment.[14] Second, the Court considered whether the legislative restriction on the speech would serve to further any substantial governmental interest.[15] Third, the Court considered how closely the applicable law purported to advance that interest.[16] Finally, the Court questioned the effectiveness of the regulation at achieving the government’s interest.[17] The four factor test set out in Central Hudson provided a key frame work from which states can base their legislation.[18]

Since Central Hudson, a total of 11 states have enacted new laws prohibiting sellers from charging buyers with surcharges on credit card transactions.[19] These states include California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas.[20] According to Section 518 of the New York General Business Law: “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.”[21] In the 2016 U.S. Supreme Court case Expressions Hair Design v. Schneiderman, the Court held that § 518 regulated free speech under the First Amendment.[22] Petitioners in the case were the owners of five New York businesses that challenged the constitutionality of § 518 under the First Amendment.[23] Similar to Bank of America and Verizon Wireless, the owners planned to implement surcharges on customers that used credit cards because of the 3% transaction fees the owners were charged by the credit card companies.[24] The owners planned to offer “single-sticker” pricing that would communicate to customers the surcharge amount for using a credit card as opposed to cash.[25] The petitioners claimed § 518 regulated the way that sellers communicate their prices to buyers and therefore the statute unconstitutionally regulated the sellers’ First Amendment right.[26] The Supreme Court agreed that the statute regulates speech rather than conduct, because § 518 does not regulate all sellers, rather, the statue targets the ways sellers communicate their charges to buyers who use credit card instead of cash.[27] However, the Court choose not to conclude whether § 518 was fundamentally unconstitutional under the First Amendment.[28]

The Court’s conclusion in Expressions Hair Design is unsatisfying for the fact that it failed to address whether § 518 is constitutional under the First Amendment. The result of the Court’s ambivalence leaves both consumers and merchants without guidance. In the wake of such uncertainty, the consumer can only assume that business will continue to use their First Amendment right of “commercial speech,” afforded to them by common law, to hold consumers hostage to the unconscionable convenience and surcharge fees. Fortunately, the First Amendment is not an exclusive right of businesses. Overtime, I am optimistic that our Judicial System will embrace the challenge of determining the constitutionality of these fees and will recognize the demand forced upon the consumer. But until then, just throw it on my tab.

 

 

 

 

[1] Andy Williams, It’s the Most Wonderful Time of the Year (Columbia Records 1963).

[2] Sergei Klebnikov, Cyber Monday 2019 By The Numbers: A Record $9.4 Billion Haul, Forbes (Dec. 3, 2019, 9:01 AM), https://www.forbes.com/sites/sergeiklebnikov/2019/12/03/cyber-monday-2019-by-the-numbers-a-record-94-billion-haul/#39af49be2ef0.

[3] Id.

[4] Id.

[5] See generally Tamara R. Holmes, Convenience Fees: When is it OK to charge extra to use a credit card?, CreditCards.com, (Apr. 13, 2017), https://www.creditcards.com/credit-card-news/credit-card-convenience-fees-cost-surcharges-1280.php.

[6] Id.

[7] Id.

[8] See Minda Zetlin, Meet-fee fighting vigilante Molly Katchpole, CreditCards.com, (Jan. 18, 2012), https://www.creditcards.com/credit-card-news/qa-molly-katchpole-bank-of-america-verizon-fees-1278.php.

[9] Id.

[10] Id.

[11]Id.

[12] See Leading Case, Expressions Hair Design v. Schneiderman, 131 Harv. L. Rev. 223 (Nov. 10, 2017); Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980); Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017).

[13] See Central, 447 U.S. at 564.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] See supra note 4.

[19] Id.

[20] Id.

[21] Id.; N.Y. Gen. Bus. Law. §518 (McKinney 2016).

[22] See Wayne Streibich & Jonathan M. Robbin, U.S. Supreme Court Rules That New York General Business Law § 518 Regulates Free Speech Provided for in the First Amendment, Blanke Rome: Alert (Mar. 2017). https://www.blankrome.com/publications/us-supreme-court-rules-new-york-general-business-law-ss-518-regulates-free-speech. See also Expressions Hair Design v. Schneiderman, supra note 11.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

image source: https://www.creditcards.com/credit-card-news/how-contactless-cards-work.php

By: Sheridan Maxey

The advent of the telephone brought about a new age of communication that many individuals would never have fathomed. As time has gone on telephones, specifically cellular phones, have become an almost required accessory to live a functional life.[1] It is not all that surprising that children are beginning to receive phones so they can easily remain in contact with their parents.[2] Phones have become incredibly beneficial and while there is some speculation that it may eventually be replaced, it is unlikely that they will fall out of favor anytime soon.[3]

Of course, not all great things come without their drawbacks. Almost any person with a cell phone, whether it be a flip phone or a smart phone, can claim that they have been called by robotic spam calls.[4] These calls come in the form of telemarketers seeking to gain money for a product or service, scammers seeking to relinquish individuals of their earnings, or even calls that seemingly have no purpose other than to bother you.[5] One company reports that there were as many as 5.3 billion spam calls made in March alone.[6] Earlier this year, the Federal Communications Commission (FCC) ruled that it will allow telephone service providers to block these unwanted calls by default.[7] This means that many owners of cell phones who previously used third-party apps to block spam calls may be able to do so through their service provider. One concern with the FCC’s ruling is that although companies are now allowed to block spam calls by default, there is no regulation that would stop them from charging customers to do so.[8] In addition to the FCC’s regulations, the House passed a bill in July named the Stopping Bad Robocalls Act which is intended to protect consumers from unwanted and malicious spam calls.[9] Just this past Wednesday the 4th, the House voted in favor of the Pallone-Thune TRACED Act which is a follow-up measure from the one passed earlier in July.[10] Supporting Representatives’ statements indicate that the purpose of the bill is to allow for spam calls to be consistently blocked, and to allow for the FCC and law enforcement to punish scammers.[11]

Although laws are in the works, it is not evident whether they will truly be effective in heavily reducing the number of calls that consumers receive on a daily basis. To avoid having to rely solely on service providers to block all of the spam calls coming in, there are steps that people can take to mitigate them. Social media and online forums have quickly become popular among many individuals. These outlets often require that individuals divulge their email addresses and phone numbers to participate on their websites.[12] Although it may be difficult, refraining from participating in social media and forums, or at least refusing to provide sensitive information whenever possible, can help prevent unwanted calls.[13] Phone owners should not have to worry about being called by people or programs who are not supposed to have their phone numbers, but until effective progress is made in limiting those calls we will have to remain strong and endure.

 

[1] See Andrew D. Selbst & Julia Ticona, Supreme Court Must Understand: Cell Phones Aren’t Optional, Wired (Nov. 29, 2017), https://www.wired.com/story/supreme-court-must-understand-cell-phones-arent-optional/.

[2] See Jacqueline Howard, When Kids Get Their First Cell Phones Around The World, CNN Health (Dec. 11, 2017), https://www.cnn.com/2017/12/11/health/cell-phones-for-kids-parenting-without-borders-explainer-intl/index.html.

[3] See Damien McFerran, When Will The Smartphone Die?, Techradar (Sept. 26, 2018), https://www.techradar.com/news/when-will-the-smartphone-die.

[4] See Ajit Pai, FCC Should Block Robocalls By Default, USA Today (Jun. 6, 2019), https://www.usatoday.com/story/opinion/2019/06/06/fcc-proposal-help-stop-robocalls-vote-column/1355299001/.

[5] Id.

[6] See Mike Snider, Robocall Ruling By FCC Will Let Phone Companies Block Unwanted Calls By Default, USA Today (Jun. 6, 2019), https://www.usatoday.com/story/tech/news/2019/06/06/robocall-rule-fcc-phone-companies-block-unwanted-calls/1366898001/.

[7] Id.

[8] Id.

[9] See Octavia Blanco, Robocall Bill Wins Approval In The House, Consumer reports (Jul. 24, 2019), https://www.consumerreports.org/robocalls/robocall-bill-wins-approval/.

[10] See Victor Reklaitis, Robocalls Bill Looks On Track To Become Law, But Lacks Bite of Earlier House Measure, Marketwatch (Dec. 4, 2019), https://www.marketwatch.com/story/compromise-robocalls-bill-that-appears-headed-for-passage-lacks-bite-of-earlier-house-measure-2019-12-03.

[11] Id.

[12] See Madeline Purdue, How Do They Have My Number? 5 Ways To Avoid Being Put On Robocall Lists, USA Today (Jun. 6, 2019), https://www.usatoday.com/story/tech/2019/06/06/stop-robocalls-before-they-dial-your-number/1346212001/.

[13] Id.

 

image source: https://consumerfinancialserviceslawmonitor.lexblogplatform.com/wp-content/uploads/sites/501/2014/07/Grayscale-Robot.jpg

By: Ryan Leonard

A majority of Americans report being concerned about gun violence and support stricter gun laws.[1]  However, part of the quandary facing state and federal policymakers regarding prospective gun regulation is the desire to reduce gun violence without infringing on the Second Amendment of the Constitution which protects “…the right of the people to keep and bear arms.”[2] While handguns are involved in more fatalities than rifles or shotguns,[3] the right to own a handgun is specifically given Constitutional protection.[4]

 

One possible solution for making guns safer but still fully available is the implementation of smart-gun technology.[5]  One style of smart-gun is a firearm that is embedded with a sensor.[6] The sensor then controls whether the firearm is operational.[7]  The owner or other authorized user may render the firearm operational by bringing a corresponding sensor within range of the firearm (the corresponding sensor may be located in a watch, ring, or other wearable accessory near the hand).[8]  Another style of smart-gun is fingerprint operated.[9]  In such a model, only users with authorized fingerprints would be able to operate the gun.[10]

 

A primary rationale for putting forth smart-gun technology is the avoidance of gun accidents, as opposed to the prevention of mass shootings.[11]  If a child, for example, came into possession of a smart-gun it would not be operational, thus greatly reducing the threat of an accidental discharge.[12]  According to the Harvard Injury Control Research Center, “the majority of people killed in firearm accidents are under age 24, and most of these young people are being shot by someone else, usually someone their own age.”[13]

 

In 1986 Congress passed the Firearm Owners Protection Act which states that in the United States “…it shall be unlawful for any person to transfer or possess a machinegun.”[14]  The prohibition, however, did not render all machineguns illegal.  Rather, an exception is made for machineguns “lawfully possessed” before the law goes into effect.[15]  Effectively, no new machineguns could be produced.[16]  Likewise, Congress could pass legislation requiring that all firearms henceforth produced be equipped with smart-gun technology.

 

New Jersey has in fact already become the first state to pass legislation regarding the sale of smart-guns.[17]  The New Jersey law requires that “licensed firearm retail dealers make available for purchase at least one personalized handgun within 60 days of the first personalized handgun being included on a state roster of approved personalized handguns.”[18]

 

Handguns without sensor or biometric technology typically range in price $250-$1000.[19]  However, at approximately $1,800 each, smart-guns are currently prohibitively expensive.[20]  It remains to be seen whether a cost-effective smart-gun design could be feasibly produced.  If and when such technology is more made more affordable, state legislatures and the United States Congress may find themselves in the position of being asked to craft legislation that will effectively change the nature of modern civilian firearms.

[1] See Giffords Law Center, https://lawcenter.giffords.org/facts/polling/ (last visited Dec. 5, 2019).

[2] U.S. Const. amend. II.

[3] See Peter Dujardin, ‘Assault’ Rifles vs. Handguns: Which Are the Bigger Problem?, (Mar. 21, 2018, 8:42 AM), https://www.dailypress.com/news/crime/dp-nws-assault-rifles-handgun-violence-20180312-story.html.

[4] See District of Columbia v. Heller, 554 U.S. 570, 570 (2008).

[5] See Sam Levin, Smart Guns: Could Fingerprint Technology Solve America’s Shooting Deaths?, Guardian (Feb. 24, 2016, 3:13 PM), https://www.theguardian.com/technology/2016/feb/24/personalized-smart-guns-biometric-access-fingerprints-gun-control.

[6] See Nicole Nguyen, Here’s What’s Up With “Smart Guns” and Why You Can’t Buy One in the US, BuzzFeed News (Mar. 13, 2018, 5:02 PM), https://www.buzzfeednews.com/article/nicolenguyen/what-is-smart-gun-technology.

[7] See id.

[8] See id.

[9] See Levin, supra note 5.

[10] See Levin, supra note 5.

[11] See Nguyen, supra note 6.

[12] See Giffords Law Center, https://lawcenter.giffords.org/gun-laws/policy-areas/child-consumer-safety/smart-guns/ (last visited Dec. 5, 2019).

[13] Harvard Injury Control Research Center, https://www.hsph.harvard.edu/hicrc/firearms-research/gun-threats-and-self-defense-gun-use/ (last visited Dec. 5, 2019).

[14] 18 U.S.C.A. § 922 (1986).

[15] See id.

[16] See id.

[17] See Giffords Law Center, https://lawcenter.giffords.org/gun-laws/policy-areas/child-consumer-safety/smart-guns/ (last visited Dec. 5, 2019).

[18] Id.

[19] See Nguyen, supra note 6.

[20] See Nguyen, supra note 6.

 

image source: https://img.buzzfeed.com/buzzfeed-static/static/2018-03/5/21/asset/buzzfeed-prod-fastlane-01/sub-buzz-21528-1520303162-1.jpg?downsize=700%3A%2A&output-quality=auto&output-format=auto

By: Rebecca Meadows

The agriculture industry loses money every year due to significant food waste caused by inefficiencies in maintaining crops, predicting of consumer demand, and packaging products, among other factors.[1] Over the past decade, the data industry has been moving into agriculture, in an effort to solve some of these problems and make the entire farm to table chain more efficient.[2] Since 2012, the world of agriculture technology has seen annual increases of over 80% in venture capital investments.[3] Some of these investments are aimed at enabling the consumer to make more informed choices, while others are aimed at making farming and processing more efficient.[4] It is suggested that implementation of new technologies in agriculture could create a level of growth in productivity and efficiency that has not been seen since agriculture was first mechanized.[5]

 

One company aiming to use data technology to revolutionize the agriculture industry is Agri Stats, Inc..[6] For years, they have operated by gathering data from farmers and meat processors, and organizing that data into confidential and highly-detailed reports that are sent weekly to their paying subscribers.[7] Most important for legal purposes, they collect data that estimates future production, for example by showing the number of hens at a farm, which suggests the number of eggs that they are capable of producing.[8]

 

Agri Stats insists that they are in full compliance with antitrust laws and that this data does not amount to price-fixing.[9] However, Agri Stats has lately been the subject of many lawsuits alleging that by providing this historical data, which food companies use to predict future production of their competitors, Agri Stats is acting as a co-conspirator in a plot of the country’s largest agriculture companies to fix their prices.[10] According to these complaints, this hurts the wholesalers and consumers who end up paying more than necessary, because the large food companies have worked together to inflate prices.[11] Although accusations of price-fixing have been around since Agri Stats first started collecting data, they have increased momentum in recent years as a result of mergers that have made the industry concentrated in a few large companies.[12]

 

Many of these cases have been dismissed for the class-action plaintiffs’ failure to meet heightened pleading standards, because they have been unable to plead with particularity that Agri Stats and the various food companies are participating in antitrust conspiracy.[13]

 

In 2016, a class of Tyson shareholders brought a class action suit, claiming that the company’s success was due to antitrust conspiracy.[14] They pointed to information shared through Agri Stats, coordinated efforts to change business practices, and a drop in stock price when the alleged conspiracy was exposed, in order to suggest the existence of a conspiracy.[15] However, this case was dismissed in 2017 because plaintiffs did not plead with enough particularity to show conspiracy.[16]

 

Another leading poultry provider, Sanderson Farms, was granted a motion to dismiss in a case that the courts recognized was very similar to the Tyson case.[17] Again, the class action plaintiffs alleged that Sanderson Farms engaged in unlawful antitrust conspiracies with other major poultry companies.[18] They claim that the companies fixed their prices by cooperating to reduce supply, increase prices, and not disclose these conspiracies in their public statements.[19] Once again, the large company defendant was granted a motion to dismiss.[20]

 

These lawsuits have been increasingly common, and all appear to look to each other for guidance on how to handle this influx of agriculture antitrust cases. As the agriculture industry has become concentrated in the hands of a few major companies, there has been an understandable growth in the number of antitrust cases faced by each of these large companies.[21] Just a few weeks ago, Agri Stats was named in another antitrust lawsuit, this time involving the pork industry.[22] It again has been alleged that large companies are using Agri Stats reports to access standardized data and conspire to increase their prices.[23] This case certainly won’t be the last of its kind, because the food industry’s desire to implement technology to reduce inefficiencies combined with frequent mergers creates the perfect environm

[1] See Tim Sparapani, How Big Data and Tech Will Improve Agriculture, From Farm to Table, Forbes (Mar. 23, 2017, 8:00AM), https://www.forbes.com/sites/timsparapani/2017/03/23/how-big-data-and-tech-will-improve-agriculture-from-farm-to-table/#527238145989.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] See Christopher Leonard, Is the Chicken Industry Rigged?, Bloomberg Businessweek (Feb. 15, 2017, 5:30PM), https://www.bloomberg.com/news/features/2017-02-15/is-the-chicken-industry-rigged.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See supra, note 6 (discussing the allegations made by Maplevale Farms and other wholesalers).

[12] See Victoria Graham, Turkey Remains Rare Meat Not Embroiled in Antitrust Probes, Bloomberg Law (Nov. 26, 2019, 6:01AM), https://news.bloomberglaw.com/mergers-and-antitrust/turkey-remains-rare-meat-not-embroiled-in-antitrust-probes.

[13] See, e.g., In re Tyson Foods, Inc. Securities Litigation, 275 F. Supp. 3d 970 (W.D. Ark. 2017); Gamm v. Sanderson Farms, Inc., No. 16-Cv-8420, 2018 WL 1319157 (S.D. N.Y. 2018).

[14] See Tyson, 275 F. Supp. 3d at 976–979.

[15] See id. at 978.

[16] See id. at 981–985.

[17] See Gamm, 2018 WL 1319157 at *1, *6.

[18] See id. at *1.

[19] See id.

[20] See id. at *6.

[21] See Graham, supra note 11.

[22] See Leah Douglas, More Antitrust Lawsuits Hit the Meat Industry. This Time, It’s Pork., The Fern (Nov. 7, 2019), https://thefern.org/ag_insider/more-antitrust-lawsuits-hit-the-meat-industry-this-time-its-pork/.

[23] See id.

image source: https://s3-eu-west-1.amazonaws.com/proagrica-assets-live/sites/1/2018/07/Agr-Workflows-6.jpg

By: Rachel Whalen

In the time of emails and texting, phone calls are become less and less appealing.[1] One reason for this change is the dramatic increase in spam and robocalls.[2] At this point, an estimated 70 percent of people no longer answer phone calls from numbers that they do not recognize.[3] Alas, when people stop answering the phone, they can miss important calls.[4] Several industries and business that relied on phone calls are also suffering.[5] Doctors cannot contact their patients, small businesses are struggling to network, and non-profit organization are receiving fewer donations.[6] Consumers have lost faith in the phone industry.[7]

Unfortunately, scam and robocalls are on the rise and show no sign of stopping. In 2017, 3.7 percent of total calls were spam callers.[8] That percentage jumped up to 29.2 percent in 2018, and is expected to pass 50 percent by the end of 2019.[9] In total, there were more than 30 billion robocalls in 2017 costing consumers 350 million dollars.[10] The amount of robocalls has been estimated at 167.3 million calls per day with an average of over 15 calls per person.[11]

The increase in scam and robocalls can be attributed to the low costs of entry.[12] The technology used to make these robocalls is cheap and easy to make, costing a speculated price of only one penny per call placed.[13] Scam calling can also be quite lucrative, making an average of 430 dollars for each successful call[14] and costing consumers an estimated 10.5 billion dollars in 2018.[15] However, these spam calls are difficult to stop, sending millions of calls at the press of a button.[16]

Scam and robocalls are the number one consumer complaint and a top priority for the Federal Communications Commission (FCC).[17] Over 200,000 complaints are received each year regarding spam calls, forming about 60 percent of the total complaints received.[18] The FCC received 63,000 complaints per month in 2009 which increased almost sixfold to 375,000 complaints per month in 2017.[19] In 2016, the FCC created a Robocall Strike Force as an industry-led initiative to “prevent, detect, and filter unwanted robocalls.”[20] The FCC also adopted new rules allowing phone companies to block illegal or unwanted calls by default using reasonable call analytics, and the FCC is working to implement a caller ID authentication to prevent “neighborhood spoofing” where fake phone numbers are used to appear local.[21] Additional consumer options have also been allowed to block calls that do not appear in the customer’s contact list or “white list.”[22] Furthermore, the FCC has issued “hundreds of millions of dollars in enforcement actions” against spammers.[23]

The FCC has also been working with several technology companies to find solutions to the plethora of robocalls.[24] In fact, spam calls are such a big problem that a sub-industry has been created to combat it.[25] Many phone providers offer screening services to block probable scammers.[26] Cellphone carriers recognize the need to fight spammers and are heavily investing in new technologies in a sort of “arms race.”[27] Despite this investment, telephone networks are so interconnected that they must work together to flag spam calls and block them.[28] Additionally, third-party applications, such as Nomorobo, Hiya, YouMail, Mr. Number, RoboKiller, and Truecaller, have sprung up to help screen calls, but the services are still spotty.[29]

Due to the ineffective solutions to spam calls and the growing problem of consumers losing faith in phone calls, Congress has pushed a bipartisan effort for anti-robocall legislation.[30] The House recently approved the Stopping Bad Robocalls Act in July, building on the TRACED Act which was passed by the Senate in May.[31] The Stopping Bad Robocalls Act was sent to the Senate in July to reconcile the two bills before being sent to the President.[32]

The Stopping Bad Robocalls Act would require phone carriers to offer spam screening by default for no additional costs,[33] applying an opt out program instead of the current option for screening. [34] However, the act also shields phone carriers from liability for blocking calls based on reasonable call analytics.[35] The screening is intended to resemble “the way email providers filter messages into spam folders.”[36] Phone carriers would also be required to implement call identification technology to verify the origin of calls and prevent “spoofing.”[37]

The FCC also has additional obligations under the Stopping Bad Robocalls Act. The FCC would be required to submit an annual report to Congress including the amount of complaints, enforcement citations, forfeiture penalties, and total fines collected regarding robocalls.[38] The FCC will also maintain a database of phone number changes to avoid calls to old numbers.[39] Finally, the Stopping Bad Robocalls Act increases the one year statute of limitation to allow three years to report robocalling violations.[40]

The bill has been met with overwhelming support from Congress, consumer protection advocates, and the industry. The Stopping Bad Robocalls Act passed the House with a staggering 429 to 3 vote after a comparable anti-robocall bill passed the Senate with similar support.[41] Representative Frank Pallone Jr., Democrat of New Jersey and chairman of the House Energy and Commerce Committee, stated his optimism that the bill will ultimately be passed into law.[42] In addition, 80 consumer rights groups have sent a letter to Congress expressing their support including Consumer Reports and the National Consumer Law Center.[43] Furthermore, the wireless industry trade group CTIA has thanked the House committee for promoting this bill and “look[s] forward to working on getting robocall legislation enacted.”[44] The phone carrier Verizon Wireless also supports anti-robocall legislation stating, “[t]he key here is to restore trust in voice calls.”[45] Hopefully this bill can indeed deliver the “peace of mind that [consumers

[1] See Yuki Noguchi, ‘Do I Know You?’ And Other Spam Phone Calls We Can’t Get Rid Of, NPR, June 6, 2019, https://www.npr.org/2019/06/06/727711432/do-i-know-you-and-other-spam-phone-calls-we-can-t-get-rid-of.

[2] See Neil Vigdor, Want the Robocalls to Stop? Congress Does, Too, N.Y. Times, June 20, 2019, https://www.nytimes.com/2019/06/20/us/politics/stopping-robocalls.html.

[3] See Tim Harper, Why Robocalls Are Even Worse Than You Thought, Consumer Reports, May 15, 2019, https://www.consumerreports.org/robocalls/why-robocalls-are-even-worse-than-you-thought/.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See Nearly 50 percent of U.S. Mobile Traffic Will Be Scam Calls by 2019, First Orion, Sep. 12, 2018. https://firstorion.com/nearly-50-of-u-s-mobile-traffic-will-be-scam-calls-by-2019/

[9] See id.

[10] See Nicole Lyn Pesce, Here’s Why You’re Getting so Many Spam Phone Calls, Mkt. Watch, Feb. 12, 2019, https://www.marketwatch.com/story/heres-why-youre-getting-so-many-spam-phone-calls-2018-10-12.

[11] Robocall Index, YouMail, https://robocallindex.com/ (last visited Dec. 2, 2019).

[12] See Pesce, supra note 10.

[13] See id.

[14] See id.

[15] See Noguchi, supra note 1 (citing Kim Fai Kok, Phone Scams Cause Americans to Lose $10.5 Billion in Last 12 Months Alone, Truecaller Insights, Apr. 17, 2019, https://truecaller.blog/2019/04/17/truecaller-insights-2019-us-spam-phone-scam-report/#more-6066).

[16] See id.

[17] See Stop Unwanted Robocalls and Texts, Fed. Commc’ns Comm’n, Aug. 2, 2019, https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts#call-blocking-resources.

[18] See The FCC’s Push to Combat Robocalls & Spoofing, Fed. Commc’ns Comm’n, https://www.fcc.gov/about-fcc/fcc-initiatives/fccs-push-combat-robocalls-spoofing (last visited Dec. 2, 2019).

[19] See Pesce, supra note 10.

[20] Stop Unwanted, supra note 16; see also Pesce, supra note 10.

[21] See Stop Unwanted, supra note 16; Pesce, supra note 10.

[22] See Stop Unwanted, supra note 16

[23] Id.

[24] See Nearly, supra note 8.

[25] See Noguchi, supra note 1.

[26] See Harper, supra note 3.

[27] See Noguchi, supra note 1 (quoting Chris Oatway, the associate general counsel for Verizon Wireless).

[28] See id.; see also Harper, supra note 3; Pesce, supra note 10.

[29] See Harper, supra note 3; see also Pesce, supra note 10.

[30] See Vigdor, supra note 2.

[31] See Octavio Blanco, Robocall Bill Wins Approval in the House, Consumer Reports, July 24, 2019, https://www.consumerreports.org/robocalls/robocall-bill-wins-approval/.

[32] See id.

[33] See Vigdor, supra note 2.

[34] See Merrit Kennedy, FCC Wants Phone Companies To Start Blocking Robocalls By Default, NPR, May 15, 2019, https://www.npr.org/2019/05/15/723569324/fcc-wants-phone-companies-to-start-blocking-robocalls-by-default.

[35] See id.

[36] Id. (citing FCC Chairman Ajit Pai).

[37] See Blanco, supra note 30; Kennedy, supra note 33.

[38] See Blanco, supra note 30.

[39] See id.; Vigdor, supra note 2.

[40] See Blanco, supra note 30.

[41] See id.; Vigdor, supra note 2.

[42] See Vigdor, supra note 2.

[43] See Blanco, supra note 30.

[44] Vigdor, supra note 2 (quoting Kelly Cole, the senior vice president for government affairs at the wireless industry trade group CTIA based in Washington); see also Blanco, supra note 30.

[45] Noguchi, supra note 1 (quoting Chris Oatway, the associate general counsel for Verizon Wireless).

image source: https://www.npr.org/2018/05/10/609117134/chinese-robocalls-bombarding-the-u-s-are-part-of-an-international-phone-scam

By: Olivia Akl

Reports of “[u]nprecedented” malaria and dengue fever epidemics are coming out of North Darfur.[1] Pakistan is seeing its own outbreak with 13,800 cases since January of this year, 12,844 of them in the city of Karachi alone.[2] Dengue fever, also called “Break-Bone Fever,”[3] is a vector-borne disease which “occur[s] in many countries of the [world] in the Americas, Africa, the Middle East, Asia, and the Pacific Islands.”[4]

Since the “1877 discovery that mosquitoes transmitted filariases from human to human,”[5] vector-borne diseases­­–“[d]iseases that result from an infection transmitted to humans and other animals by blood-feeding arthropods, such as mosquitoes, ticks, and fleas”[6]–have been a focus of public health planning.  Historically, vector-borne diseases were the cause of “more human disease and death in the 17th through the early 20th centuries than all other causes combined.”[7] While prevention and control programs for arthropods from the 1910s to the 1960s, focusing on “elimination of arthropod breeding sites (source reduction) through environmental hygiene along with limited use of chemical insecticides,” were, for a time, largely successful in ending the major public health problem of these vector-borne illnesses everywhere but Africa, in the 1970s a resurgence occurred.[8]

This resurgence–due to lost funds, lost public health infrastructure, “reliance on quick-fix solutions such as insecticides and drugs,”[9] growing insecticide resistance,[10] and increased global temperatures[11]–has led to the current state of affairs: vector-borne diseases spreading throughout the world,[12] and doing so at “[u]nprecedented” rates.[13]

To best combat these epidemics, scientists have been relying on spatial epidemiology–an analysis of diseases and the geographic variations thereof, based on environmental, socioeconomic, and other infectious risk factors.[14] Advancing technology has made spatial epidemiology even more precise and valuable­–rapid diagnostic tests, mobile phone-based reporting, and advanced genome sequencing technology have all been invaluable in predicting the distributions of diseases and their vectors.[15] As “human mobility is a major factor in the spread of vector-borne diseases such as malaria and dengue [fever] even over short intra-city distances,”[16] the value of GPS data from mobile phones is immense. The problem with relying on mobile phone data is that it is “owned by private companies.”[17]

Emanuele Massaro, a scientist with Ecole Polytechnique Fédérale de Lausanne said “[i]n an emergency, having accurate information makes all the difference.”[18] Massaro placed significant weight on the accuracy of mobile phone data over census models and articulated some concern with the current legal gray area of using this data, saying “[w]e need to think seriously about changing the law around accessing this kind of information — not just for scientific research, but for wider prevention and public health reasons.”[19] Massaro’s research team was able to demonstrate that mobile phone data could be used without infringing on the phone owner’s privacy.[20]

Whatever accord researchers and the law find, it is clear that something must be done before these “[u]nprecedented”[21] outbreaks become the norm. Whether it is using spatial epidemiology to better apply limited resources, further deployment of existing pesticides to help fight back the spread, or even weaponizing new technology against the carriers of these diseases, more attention should be paid to their spread.

 

[1] See El Fasher, ‘Unprecedented’ Malaria, Dengue Epidemics in North Darfur, Dabanga (Nov. 22, 2019), https://www.dabangasudan.org/en/all-news/article/malaria-dengue-epidemics-in-north-darfur-unprecedented.

[2] See More Dengue Fever Cases Surface in Karachi, Frontier Post (Nov. 21, 2019), https://thefrontierpost.com/more-dengue-fever-cases-surface-in-karachi/.

[3] See Acute Communicable Disease Control, Cty. of L.A. Dep’t of Pub. Health, http://publichealth.lacounty.gov/acd/VectorDengue.htm.

[4] Dengue Around the World, Ctrs. for Disease Control & Prevention (Sept. 26, 2019), https://www.cdc.gov/dengue/areaswithrisk/around-the-world.html.

[5] Duane J. Gubler, Resurgent Vector-Borne Diseases as a Global Health Problem, 4 Emerging Infectious Diseases 442, 442 (1998), https://wwwnc.cdc.gov/eid/article/4/3/98-0326_article.

[6] Acute Communicable Disease Control, County of Los Angeles Department of Public Health, http://publichealth.lacounty.gov/acd/Vector.htm.

[7] Gubler, supra note 5.

[8] See id.

[9] Id.

[10] See Kat Eschner, Mosquitos Are Becoming Resistant to Our Best Defenses, Popular Sci. (Nov. 22, 2019), https://www.popsci.com/story/health/malaria-mosquitoes-insecticide-resistance/.

[11] See Diarmid Campbell-Lendrum et al., Climate Change and Vector-Borne Diseases: What Are the Implications for Public Health Research and Policy?, Phil. Transactions Royal Soc’y B, Apr. 5, 2015, at 1, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4342958/.

[12] See Dengue Around the World, supra note 4.

[13] See Fasher, supra note 1.

[14] See Paul Elliot & Daniel Wartenberg, Spatial Epidemiology: Current Approaches and Future Challenges, 112 Envtl Health Persp. 998, 998 (2004), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1247193/.

[15] See Andrew J. Tatum, Innovation to Impact Spatial Epidemiology, BMC Med., Nov. 2018, at 1. https://bmcmedicine.biomedcentral.com/articles/10.1186/s12916-018-1205-5

[16] Mapping Disease Outbreaks in Urban Settings Using Mobile Phone Data, ScienceDaily (Nov. 15, 2019), https://www.sciencedaily.com/releases/2019/11/191115074409.htm

[17] See id.

[18] Id.

[19] Id.

[20] See id.

[21] See Fasher, supra note 1.

image source: https://www.bbc.com/news/health-48464510

 

By: Erin Kidd

[1]       An LRAD, short for long-range acoustic device, was used against American protesters for the first time at the G20 Summit Pittsburgh protests in September 2009.[1] Over the past decade, LRADs have only become increasingly popular among law enforcement, to the point where the device is now a common feature of many department’s crowd control arsenals.[2] The device’s use, particularly during protests, is increasingly controversial and contentious and one case in the Second Circuit may change how law enforcement uses this technology.[3]

The LRAD Device

[2]       The LRAD was originally designed for the military as both an acoustic hailing device (AHD) to broadcast commands over long distances and as a painful repellant for approaching enemies.[4] However, the developer of LRAD, which was first known as the American Technology Corporation until 2010 and very recently rebranded from the LRAD Corporation to Genasys in late October 2019,[5] has been adamant in maintaining the LRAD is not a weapon.[6] Despite this, the devices are often referred to as sonic or acoustic weapons and the media coined the term “sound cannon” in order to describe the nature of the LRAD’s capabilities.[7]

[3]       The sound produced by the LRAD is directed forward in a “beam” that is about fifteen to thirty degrees wide.[8] This can be used to broadcast just about anything, from live commands to recorded music, and it is less controversial than the LRAD’s second possible setting, the deterrent alert tone or “area denial function.”[9] The “area denial” tone comes in the form of a manually controlled series of sharp, piercing beeps which can hit the peak decibel capabilities of the device.[10] More than anything else, it is this setting that have led many to refer to the LRAD as a weapon.[11]

[4]       The military-grade versions of the LRAD can transmit sounds up to five and a half miles away at a potential maximum level of 162dB.[12] For comparison, 140dB is roughly equivalent to standing next to a jet engine while a plane takes off or having a shotgun go off next to a person’s ear.[13] According to ASHA, the American Speech-Language-Hearing Association, sound usually starts to be severely painful at 120dB and once sounds which reach 140dB or higher are not safe for any period of time, meaning they can cause instant and permanent damage.[14] Much lower levels can still cause pain and permanent harm, often it just becomes a matter of how long a person was exposed.[15]

[5]       The models preferred by law enforcement, which seem to be the LRAD 500X and the 100X, are not quite as powerful as the military-grade version.[16] However, at apparent maximum levels of 137-140dB and 149-154dB respectively, both are still capable of causing severe pain, disorientation, nausea, migraines, and permanent damage.[17] Though an informational packet from the developer seems to suggest otherwise.[18]

[6]       It seems that, at least as of early 2018, many police departments using LRADs lacked specific training and written policies for use of the device.[19]

The Second Circuit and Sound as a Use of Force

[7]       LRAD has some definite potential benefits, particularly in how it can be utilized to communicate in emergency situations, however, a case in the Second Circuit may help determine the extent to which it can be used against civilians.[20] The case, which was heard as Edrei v. City of New York[21] in the district court and Edrei v. Maguire[22] in the Court of Appeals for the Second Circuit, arose from the NYPD’s use of an LRAD 100X during the 2014 Black Lives Matter protests which followed a grand jury’s refusal to indict Officer Daniel Pantaleo in the killing of Eric Garner.[23]

[8]       Anika Edrei, a photojournalist who was a photography student at the time of the protest, and five other plaintiffs witnessed, but did not interfere with, NYPD officers arresting protesters around the early hours of December 5, 2014.[24] During the arrests, some unknown protesters likely threw glass bottles towards the police and a few others began throwing trash at the street.[25] In response, officers ordered everyone present to return to the sidewalk and some officers began deploying pepper.[26] Two officers began using the LRAD 100X’s to direct people out of the street and, while doing so, they utilized the LRAD’s area denial function “deterrent tone” fifteen to twenty times in the course of about three minutes.[27] Plaintiffs described the use of the tone being used “indiscriminately” and “almost continuously.”[28] Also according to plaintiffs, the officers “fired” the deterrent tone, with the LRAD pointed in their direction, while less than 10 feet away from the plaintiffs and other protesters, photographers, filmmakers, and observers.[29] Per some of the court documents, it seems the LRAD may have had specific warnings posted on it, warning against using the device at such a close range.[30]

[9]       The plaintiffs seem to have suffered migraines, sinus pain, dizziness, facial pressure, ringing in ears, and ongoing sensitivity to noise.[31] One plaintiff was diagnosed with tinnitus in both ears and vertigo which continued even a year and half later.[32] Another experienced hearing loss caused by nerve damage.[33]

[10]     The plaintiffs initially claimed violations of their First Amendment rights, their Fourth and Fourteenth Amendment rights against unreasonable seizure and excessive force under, their rights to equal protection under the Fourteenth Amendment, as well as various other claims.[34] The defendants filed a motion to dismiss, mostly based on qualified immunity.[35] On May 31, 2017, Judge Robert Sweet of the United States District Court for the Southern District of New York granted the motion to dismiss for all but two claims: the Fourteenth Amendment excessive force claim and an assault and battery claim.[36]

[11]     Judge Sweet determined, through comparing the potential harm that can come from the LRAD’s amplified sound to what can happen when “distraction devices” such as stun grenades and flashbangs are used improperly, that the LRAD’s sound was a use of force and it could be used excessively.[37] He further decided the defendants’ defense of qualified immunity was “unavailing” at the motion to dismiss stage and whether or not it applied would need to be determined by the facts of the case.[38]

[12]     When defendants appealed this decision, the Second Circuit Court of Appeals agreed on both counts.[39] In finding the LRAD sound was a use of force the court explained “a device that has ‘incapacitating and painful effects’ when used on a person is considered an instrument of force.”[40] The Appeals Court also agreed with analogizing the LRAD with other other “non-lethal” options available to officers that have been litigated about in the past.[41] In showing that qualified immunity could not dismiss the case at this stage the court explained a reasonable officer, through analogy to standards for use of pepper spray and stun grenades, would have known that excessive force from the LRAD would violate a “clearly established” right.[42]

[13]     The Appeals Court ultimately affirmed the lower court’s decision and remanded the case for further proceedings.[43] This May, the Supreme Court of the United States denied certiorari on the case, which will allow the case to proceed on those findings.[44]

[14]     If the plaintiffs win, not only will they be afforded damages, but the NYPD may face an injunction on using the LRAD devices they own until more studies about the LRAD’s effects are available and appropriate policies, guidelines, and trainings are in place.[45]

 

[1] See, e.g., Matthew Weaver, G20 Protesters Blasted by Sonic Cannon, The Guardian (Sept. 25, 2009, 5:19 AM), https://www.theguardian.com/world/blog/2009/sep/25/sonic-cannon-g20-pittsburgh.

[2] See, e.g., Alex Pasternack, The New Sound of Crowd Control, Vice (Dec. 17, 2014, 10:15 AM), https://www.vice.com/en_us/article/qkve7q/the-new-sound-of-crowd-control.

[3] See, Alex Pasternack, Piercing Sound Can Be Excessive Force, Federal Court Rules, Fast Company (June 14, 2018), https://www.fastcompany.com/40585221/piercing-sound-can-be-excessive-police-force-federal-court-rules.

[4] See, e.g., Ben Kesslen, ‘Plug Your Ears and Run’: NYPD’s Use of Sound Cannons Is Challenged in Federal Court, NBC News (May 22, 2019), https://www.nbcnews.com/news/us-news/plug-your-ears-run-nypd-s-use-sound-cannons-challenged-n1008916.

[5] See LRAD® Corporation Rebranding as Genasys Inc. to Reflect Broader Commitment to Critical Communications, Genasys: Press Releases, (Oct. 23, 2019) https://genasys.com/press-releases/lrad-corporation-announces-corporate-name-change-to-genasys-inc-to-reflect-broader-commitment-to-critical-communications/.

[6] See, e.g.,Halley Bondy, How the LRADWent From a Pirate Deterrent to a Police Crod-Control Tool, The Daily Beast (Sept. 30, 2019, 11:20 AM), https://www.thedailybeast.com/how-the-lrad-went-from-a-pirate-deterrent-to-a-police-crowd-control-tool?ref=scroll.

[7] See, id.

[8] See, e.g., Roberto Baldwin, What Is the LRAD Sound Cannon?, Gizmodo (Aug. 14, 2014, 11:40 AM), https://gizmodo.com/what-is-the-lrad-sound-cannon-5860592.

[9] See Kesslen, supra note 4; Pasternack, supra note 3.

[10] See, e.g., Pasternack, supra note 3.

[11] See,e.g., Kesslen, supra note 4; Pasternack, supra note 3.

[12] See Baldwin, supra note 8.

[13] See Decibel Levels, Hearing Health Foundation, https://hearinghealthfoundation.org/decibel-levels (last visited Nov. 22, 2019); Paul Virostek, Sound Effects Decibel Level Chart, Creative Field Recording (Nov. 1, 2017), https://www.creativefieldrecording.com/2017/11/01/sound-effects-decibel-level-chart/.

[14] Loud Noise Dangers, ASHA, https://www.asha.org/public/hearing/Loud-Noise-Dangers/

 (last visited Nov. 22, 2019).

[15] See, e.g., Decibel Exposure Time Guidelines, Dangerous Decibels, http://dangerousdecibels.org/education/information-center/decibel-exposure-time-guidelines/ (last visited Nov. 22, 2019); How Loud Is Too Loud?, OSHA, https://www.osha.gov/SLTC/noisehearingconservation/loud.html (last visited Nov. 22, 2019).

[16] See Baldwin, supra note 8.

[17] See Curtis Waltman, Police Across the Country Are Adding Sonic Weapons to Their Crowd Control Arsenal, MuckRock (Feb. 5, 2018), https://www.muckrock.com/news/archives/2018/feb/05/lrad-update/ (analyzing LRAD product white pages and other documents received from FOIA requests sent to the Chicago and Houston Police Departments as well as the Massachusetts State Police).

[18] See id.

[19] See Bondy, supra note 6.

[20] See Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018), cert. denied 139 S. Ct. 2614 (2019)

[21] Edrei v. City of New York, 254 F. Supp. 3d 565 (S.D.N.Y. 2017).

[22] Edrei, 892 F.3d at 525.

[23] See Kesslen, supra note 4; Pasternack, supra note 3

[24] See Edrei, 254 F. Supp 3d at 571.

[25] See id. at 571—72.

[26] See id. at 572.

[27] See id.

[28] See id. at 576.

[29] See id. at 572.

[30] See,e.g., Kesslen, supra note 4.

[31] See Edrei, 254 F. Supp 3d at 572.

[32] See id.

[33] See id.

[34] See Edrei, 254 F. Supp. 3d at 573—83.

[35] See id. at 570, 576.

[36] See id. 577, 582.

[37] See id.at 575.

[38] See id.at 576.

[39] Edrei, 892 F.3d at 545

[40] See id. at 543.

[41] See id. at 542—43.

[42] See id.

[43] See id. at 545.

[44] Maguire v. Edrei, 139 S. Ct. 2614 (2019).

[45] See,e.g., Kesslen, supra note 4.

 

image source: https://www.hawaiitribune-herald.com/2019/07/11/hawaii-news/blnr-char-lrad-is-not-a-weapon/

By: Cassidy Crockett-Verba

As with many things in the internet age, cannabis is relatively easy to find online. A simple Google search of “buy marijuana online” returns over 29 million results. These range from sites that purport to sell marijuana, to sites that help a person find a seller or sites that tell you anything you want to know about a specific strain.[1] Of the websites that purport to sell marijuana, some will only operate within a legal state, while some offer to ship to any non-federal address.[2] While the sites that are offering to ship to any non-federal address may seem appealing to many, they are not risk free. Shipping cannabis by mail is considered drug trafficking and the USPS may confiscate any packages containing restricted items.[3] In addition to legal consequences, many of these sites are scams and do not deliver any products.[4]

As marijuana remains federally illegal and regulating the internet remains next to impossible, consumers are benefitting from the ease of access to cannabis. In the age of instant gratification, consumers are clamoring for an easy way to obtain everything, including weed.[5] Today you can catch a ride, order dinner, and buy groceries all from your phone.[6] You can also order almost anything from Amazon, sometimes in as little as a few hours. Cannabis is no different depending on where you live. In states where cannabis is legal to use, a few apps that offer delivery to your door have popped up.[7] Companies such as Eaze, GreenRush, and Bud have developed apps and websites specifically devoted to ordering cannabis to be delivered to door of anyone in the states in which they operate.[8] These “Uber for weed” apps make marijuana appear as though it were just another item to purchase, not a drug with federal prohibitions attached. The sites have a pop-up with an “are you 21 or older?” barrier to access, but many brewery and distillery sites also have these even though neither are required by law to have them.[9] These websites do not reflect the age-old stereotypes of “stoners.” They are bright, clean, up-to-date, and modern. Companies are promising easy access to cannabis via modern technological models that already exist (like Uber).

In addition to delivery services, there are companies dedicated to putting dispensaries and even individual sellers on the map.[10] These sites often create a literal map of dealers, dispensaries, and medical clinics where people can receive cannabis.[11] Companies like Leafly, Leafdin, and WeedMaps allow consumers to locate, rate, and review sellers which provides consumers with options like never before.[12] Apps like WheresWeed allow consumers to purchase via online ordering in addition to these actions as well.[13] This newfound availability puts cannabis in the hands of people who were perhaps skeptical, embarrassed, nervous or just incapable before this innovation.

People with disabilities may not have access to transportation and may also experience mobility concerns, prohibiting them from visiting a dispensary. This new technology is enabling people with disabilities to have access to life-changing medicine.[14] As the medical benefits are studied more, more dispensaries are moving towards disability-friendliness.[15] However, the ability to receive medicine without leaving the house is incredibly appealing to those with disabilities as they do not need to worry about transportation, mobility, or whether the physical building of the dispensary is accessible. Unfortunately, this is not an area many researchers have concerned themselves with, so there is little information about disabled consumers and their views on the matter. However, it is clear, from social media and personal testimony found on these websites and apps, that disabled customers are benefiting from this technology. Many patients and consumers congregate in closed and secret internet forums and Facebook groups to discuss the benefits and risks of cannabis and purchasing it as well. Although impossible to cite a group without the reader having access to said forum, it is clear from the testimonies available that disabled consumers are thriving with access and availability. The availability of marijuana on the internet (whether illegal or legal) is allowing new patients to discover for themselves whether cannabis can be an effective treatment. This raises concerns for the effect on physicians and the medical community. As more and more people decide for themselves, especially in states with recreational availability, physicians are left out of the conversation and this concerns many healthcare providers.

[1] See generally, www.theamsterdamcompany.com; www.leafedin.com; www.leafly.com.

[2] See, e.g., www.potlala.com.

[3]See U.S. Postal Service, Pub. No. 52, Hazardous, Perishable, and Restricted Material § 453.12–13 (2019); see also Garyn Angel, High Tech Is Powerfully Influencing the Future of the Cannabis Industry, GreenEntrepreneur (Nov. 28, 2018) https://www.greenentrepreneur.com/article/323868.

[4] See, e.g., Gabe Fine, BBB Issues Warning About Online Marijuana Retailer Scams, Westworld (June 21, 2017) https://www.westword.com/marijuana/better-business-bureau-issues-warning-about-online-marijuana-retailer-scams-9178816.

[5] London Ryynanen England, Comment, Not to Be Blunt, but Consumers Demand Weed with Their Pizza: Model Legislation for Marijuana Courier and Home Delivery Services, 20 S.M.U. Sci. & Tech. L. Rev. 343, 343 (2017).

[6] Uber, GrubHub, Instacart

[7] England, supra note 5, at 343-44.

[8] Angel, supra note 3.

[9] Julie R. Thompson, The Surprising Truth About Why Alcohol Websites Make You Enter Your Age, Huffington Post (July 21, 2017), https://www.huffpost.com/entry/liquor-website-age verification_n_59c3b549e4b06f93538cdd18.

[10] Angel, supra note 3.

[11] Angel, supra note 3.

[12] Angel, supra note 3.

[13] See Home, WheresWeed, www.wheresweed.com.

[14] Lisa Rough, How to Make Your Cannabis Dispensary More Disability Friendly, Leafly (Aug. 16, 2017), https://www.leafly.com/news/industry/how-to-make-marijuana-dispensaries-disability-friendly.

[15] Id.

image source: https://myflorida420.com/medical-marijuana-can-spark-budding-cannabis-industry/weedkeyboard/

By: Patrick Macher

The year is 2000 and I just woke up and ran down the stairs to sit in front of the TV for the next 2 hours. If I was lucky, a new Yu-Gi-Oh or Pokémon would be released, and I could watch as long as my parents let me skip my brother’s basketball game. During the early commercials I would pour a bowl of frosted flakes, and at the noon conclusion of my favorite morning, I would eat a handful of zebra cakes. Today’s kids will never experience the rush of a Saturday morning release because all of their content is just a click-away.

 

In November of 2018, Disney CEO Bob Iger announced the companies’ plan for a new streaming service called Disney+ (“Disney Plus”).[1] In the coming months, Disney+ would gather subscribers, accumulating more than ten million customers by the first week of launch.[2] Investors credit Disney+ for a return of almost 30% on Disney stock through November, 2019.[3]

 

Rewind the clock twenty years to when Cable and Satellite TV companies were fighting for the same market space, a space that had few competitors.[4] Dish, DirecTV and EchoStar battled for customers while providing almost identical products.[5] The companies provided very little on-demand content, as viewers were limited to the scheduled programming on the channels to which they subscribed.

 

Return to the year 2019 and the market has completely changed. Cable and Satellite TV companies hemorrhage customers as the phenomenon of “cord-cutting,” or suspending the traditional TV services, has become a fad with young consumers.[6]

 

The majority of Americans subscribe to at least one streaming service, while the average streamer is now subscribing to three separate platforms.[7] American consumers are exercising more control over the content for which they are willing to pay.[8] Ten years ago, a college football fan may have purchased an extravagant sports package through their TV provider to hopefully watch their teams regular season matchups. Today an ESPN+ account allows fans to live-stream the majority of games even from their mobile devices.[9]

 

In 2007, Netflix announced that it would offer PC streaming in addition to the mailbox subscription service the company had been founded on.[10] Today the market has been flooded with a plethora of streaming services including Netflix, Apple TV, Amazon Prime Video, Hulu, HBO Max, ESPN+ and now Disney+.[11]

 

Streaming giants such as Netflix and Amazon Prime have known for years that the key to maximizing profitability in the streaming world is creating original content.[12] Original content establishes a high-level of control for the streaming platforms and avoids headaches such as international content rights and content contract disputes.[13] Netflix achieved great success with their series Stranger Things, but has struggled to create additional content with the notoriety of the Disney products.[14]

 

Disney’s decision to enter the streaming market comes with an inherit competitive advantage, as Disney owns the rights to the content it will be offering.[15] Disney owns the Disney classics many streamers grew up with such as Beauty and the Beast and 101 Dalmatians, but has also, through the years, purchased the rights to cinematic giants such as the Star Wars and Marvel series.[16]

 

With Disney’s emergence into the streaming market, many investors feared that Netflix and other leading platforms would suffer substantial market losses, but after the first week of Disney+, it seems investors are optimistic that multiple streaming platforms will be able to co-exist.[17] Netflix bounced back from predicted losses in the first week of Disney+, climbing 2.6% on the week, but Disney stock soared 8% following the first week of Disney+.[18]

 

The question seems to have taken a fundamental shift from should consumers have a streaming service, to which streaming services should consumers carry. Sports, cartoons, movies, classics, the options seem almost limitless. However, one thing has remained constant, at the end of whatever show you are watching, on whichever platform you choose, have a couple zebra cakes.

 

 

[1] See Cynthia Littleton, Bob Iger Talks Disney+, Hulu Plans and His Vision for Enlarged TV Studio, Variety (Nov. 8, 2019) https://variety.com/2018/digital/news/disney-disney-streaming-service-launch-2019-1203023789/

 

[2] See Daniel Strauss, Disney Shares Spike After Company Announces Disney Plus Surpassed 10 million Sign-Ups Since Launch, Markets Insider (Nov. 13, 2019) https://markets.businessinsider.com/news/stocks/disney-stock-price-jumps-on-disney-plus-sign-up-count-2019-11-1028686618

 

[3] See id.

 

[4] See Dish Network, J.D. Power Ranks Dish Network No.1 in Customer Satisfaction; EchoStar Ranks Ahead of Cable, Satellite Competitors in Overall Customer Satisfaction (Sep. 1, 2019) https://ir.dish.com/static-files/87451047-7c28-4721-a9cc-dc4e49db41bb

 

[5] See id.

 

[6] See Jon Brodkin, Cable and Satellite TV Sinks Again as Online Streaming Soars, ARS Technica (Mar. 7, 2019) https://arstechnica.com/information-technology/2019/03/cable-and-satellite-tv-sinks-again-as-online-streaming-soars/

 

[7] See Dennis Sellers, There’s a Massive Consumer Shift Toward Streaming Video Services, AppleWorkd.Today (Apr. 13, 2019) https://www.appleworld.today/blog/2019/4/13/theres-a-massive-consumer-shift-toward-streaming-video-services

 

[8] See id.

 

[9] See Sara Jane Harris, How to Find ACC Network: TV Channels, Live Stream, Watch Online, Sporting News (Sep. 07, 2019) https://www.sportingnews.com/us/ncaa-football/news/how-to-find-acc-network-tv-channels-live-stream-watch-online/1kkk677chbhfb1lb2j865wch9f#live-stream

 

[10] See Miguel Helft, Netflix to Deliver Movies to the PC, New York Times (Jan. 16, 2007) https://www.nytimes.com/2007/01/16/technology/16netflix.html?mtrref=en.wikipedia.org&gwh=7D248A0F0C9318DB726094B71284A484&gwt=pay&assetType=REGIWALL

 

[11] See Alex Sherman, Disney+ isn’t Really the Beginning of the Streaming Wars – the Next Year is Just a Warm-Up, CNBC (Nov. 16, 2019) https://www.cnbc.com/2019/11/16/disney-plus-streaming-wars-just-warming-up.html

 

[12] See Brian Barrett, Amazon and Netflix Look to Their Own Shows as the Key to World Domination, Wired (Dec. 12, 2016) https://www.wired.com/2016/12/amazon-netflix-look-shows-key-world-domination/

 

[13] See id.

 

[14] See David Trainer, Netflix’s Original Content Strategy is Failing, Forbes (Jul. 19, 2019) https://www.forbes.com/sites/greatspeculations/2019/07/19/netflixs-original-content-strategy-is-failing/#243bb62b3607

 

[15] See Dan Jackson, Everything We Know About Disney’s New Streaming Service, Thrillest (Oct. 15, 2019) https://www.thrillist.com/entertainment/nation/disney-streaming-service-disney-plus

 

[16] See id.

 

[17] See Noel Randewich, One Week In, Netflix’s Stock is Weathering Disney+, Rueters (Nov. 19, 2019) https://www.reuters.com/article/us-streaming-stocks/one-week-in-netflixs-stock-is-weathering-disney-idUSKBN1XT1D8

 

[18] See id.

 

image source: https://www.polygon.com/2019/11/11/20959171/disney-plus-shows-movies-subscription-pricing-news-devices-and-more