Richmond Journal of Law and Technology

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

By: Derek Reigle

Law enforcement and prosecutors have been collecting the American people’s genetic information. This isn’t a shock. Violent felons have been required to submit their DNA into a federal DNA database for the past several decades.[1] However, genetic collection by law enforcement is no longer being limited to just violent criminals. One of the more disturbing ways that law enforcement has been expanding their DNA harvesting is by merely asking individuals for their DNA. These requests for DNA have been made by law enforcement as a possible way to lower a criminal sentence in plea bargain misdemeanor cases, or to even dismiss simple traffic tickets.

For example, in Orange County, California a program known as “spit and acquit” has been ongoing for over a decade.[2] The program is simple. One must merely consent to giving the Orange County Attorney General their DNA and charges may be waived or significantly decreased.[3] In short, DNA has become a bargaining tool in prosecutorial negotiations with the accused.[4] In fact, in order to plead guilty to nearly any misdemeanor, you must now voluntary submit to giving your DNA to the Orange County District Attorney’s office.[5]  As a result of this program, Orange County prosecutors now have a colossal 150,000 person genetic database in their possession. [6]

In the past decade in Florida, and other states, another unusual genetic collection practice by law enforcement has emerged. This time it has been dubbed “stop and spit”.[7] An example of this would be the police stopping someone for speeding and during their traffic stop, they ask for a sample of saliva, and agree to let the person go if they provide it.[8]

Proponents of these genetic collection tactics argue that it deters crime because potential criminals are now aware that their genetic information is out there.[9] Critics of this system argue that the value is significantly outweighed by the scary precedent that is starts in regard to DNA collection and genetic surveillance.[10]

Obviously, this collection of DNA and genetic information by law enforcement and prosecutors has led to the storage of massive amounts of data.[11] These databases of genetic information have been coined “dragnets” because of the analogy of a net dragging through a pond, collecting anything that it can scoop up.[12] These unregulated and unusual genetic databases are not going away, and their practice is continuing.[13]

So how useful are these databases to catch criminals? Despite what supporters of genetic surveillance say, these databases are not particularly useful for investigating crime.[14] Furthermore, these databases open up a pandora’s box of troubling questions. Why exactly are police creating these massive genetic databases? Could these databases be used against innocent people? What is this mass genetic collection leading to? Ultimately, it seems clear that most people do not have any idea of the ramifications and information that they are giving away when providing a DNA sample.[15]  For these reasons, it seems wholly inappropriate for law enforcement to use their position of authority to collect and gather DNA.

 

 

 

[1] Bruce Budowle et.al, CODIS and PCR-Based Short Tandem Repeat Loci: Law Enforcement Tools, Promega (last visited Nov. 20, 2019), https://www.promega.com/~/media/files/resources/conference%20proceedings/ishi%2002/oral%20presentations/17.pdf..

[2] Andrea Roth, “Spit and Acquit”: Prosecutors As Surveillance Entrepreneurs, 107 Cal. L. Rev. 405 (2019).

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Lauren Kircher, DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit, ProPublica (Sep. 12, 2016), https://www.propublica.org/article/dna-dragnet-in-some-cities-police-go-from-stop-and-frisk-to-stop-and-spit.

[8] See id.

[9] See id.

[10] See Id.

[11] See Sheldon Krimsky & Tania Simoncelli, Genetic Justice, 28-46 (2011).

[12] See Id.

[13] See Id.

[14] See id.

[15] See generally Tania Lombrozo, Scientific Literacy: It’s Not (Just) About The Facts,NPR (Sep. 14, 2015), https://www.npr.org/sections/13.7/2015/09/14/440213603/scientific-literacy-it-s-not-just-about-the-facts

image source: https://www.aclu.org/blog/privacy-technology/medical-and-genetic-privacy/proposal-expand-mandatory-dna-collection

 

By: Anne Groves

Introduction

 

Customers of personal technology companies are specifically vulnerable to warranty breach, because these customers rely on the technology they purchase, yet they often don’t understand their rights pertaining to the warranties for their devices.[1] This has taken the form of class action lawsuits against personal technology companies.[2] Following is a brief overview of two noteworthy class action lawsuits against personal technology companies:

 

 

Close Call: Best Buy Class Action

 

Recently, Best Buy and Samsung narrowly dodged a Warranty Class Action Lawsuit. This class action lawsuit was filed by Tawana and Anthony Ware.[3] Plaintiffs claim that Best Buy and Samsung provided their customers with fraudulent warranties, and plaintiffs argued that the Geek Squad Protection Plan they purchased with their Samsung television qualifies as a warranty and consequently should be subject to the standards laid out in the Magnuson-Moss Warranty Act. Plaintiffs alleged that Best Buy failed to live up to their protection plan’s promises pertaining to how they compensated customers for issues with their device. [4] Best Buy and Samsung first endeavored to have the class action lawsuit dismissed by claiming the customers’ allegations were time-barred. However, Samsung and Best Buy withdrew this motion to dismiss in November 2018.[5] Then, in December 2018, Samsung and Best Buy filed a new motion to dismiss, and this motion was accepted by U.S. District Judge Sharon Coleman. Judge Coleman determined that the protection plan in question is listed separately on the Wares’ receipt, meaning it was a separately purchased item and not a warranty for the item.[6] If the protection plan was included in the price of the item, it would fit the statutory definition of a warranty and therefore would be subject to the standards of the Magnuson-Moss Warranty Act. Judge Coleman also explained that the Magnuson-Moss Act intends to cover the materials and workmanship of a product and does not refer to service plans that cover wear and tear or preventative maintenance.[7]

 

Active Class Action: Lawsuit Against Apple

 

Alleges apple violated consumer protection charge, namely by charging customers high prices for what they think to be new or “like new” devices and parts under their AppleCare/AppleCare+  programs. In reality, these replacements were actually inferior or used parts.[8] Effectively, plaintiffs are arguing that refurbished parts by definition does not comport with the wording of the AppleCare+ contract. The class action is saying Apple committed fraud by failing to uphold its promise of iPhone, iPad and iPhone replacements that are equivalent to new in both performance and reliability. The class action seeks damages for consumers who paid for AppleCare+ and the additional cost for a device replacement through AppleCare+.[9] On Sept. 17, 2019, U.S. District Judge William H. Orrick issued  an order certifying this class of consumers against Apple in this class action. In this same order, Judge Orrick also denied Apple’s motion for summary judgement.[10] The class is being represented by Hagens Berman. Hagens Berman is an incredibly successful consumer litigation law firms in the country. They have achieved over $260 billion in consumer settlements.[11]

 

 

The takeaway here? Read and understand the warranty before your next big technology purchase.

[1] See generally What You need to Know About Warranty Laws You Have More Rights Than You Might Think, Consumer Reports (May 2013), https://www.consumerreports.org/cro/magazine/2013/05/the-word-on-warranty-protection/index.htm.

[2] See generally id.

[3] See Emily Sorter, Best Buy Dodges ‘Geek Squad’ Warranty Class Action Lawsuit, Top Class Actions (Feb. 4, 2019),  https://topclassactions.com/lawsuit-settlements/consumer-products/electronics/877480-best-buy-dodges-geek-squad-warranty-class-action-lawsuit/.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See AppleCare, Hagens Berman https://www.hbsslaw.com/cases/applecare.

[9] See Chance Miller, Judge Says Class-Action Suit Against Apple over Refurb AppleCare+ Replacements Can Continue, 9TO5Mac (Sept. 17, 2019), https://9to5mac.com/2019/09/17/applecare-lawsuit-refurbished-devices/.

[10] See id.

[11] See supra note 9.

image source: https://www.marketwatch.com/story/supreme-court-allows-lawsuit-over-apples-iphone-apps-to-proceed-2019-05-13

By: Matt Romano

This week a federal district court in Boston ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment.[1]  This ruling came in a lawsuit, Alasaad v. Nielsen, filed by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of eleven travelers whose smartphones and laptops were searched without reasonable suspicion at a US port of entry.[2]  The suit was filed against both U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) whose officers conducted these searches.[3]

 

A suspicionless search of a cell phone or laptop may seem like a clear violation of these travelers fourth amendment rights, but that’s not necessarily true when the search is conducted at a port of entry into the United States.  Under the Fourth Amendment, people are protected against unreasonable searches and seizures.[4] A warrantless search is per se unreasonable under the Fourth Amendment, unless one of a few specifically established and well-delineated exceptions apply.[5] One of these exceptions applies to border searches.[6] This border search exception applies to all ports of entry within the US including airports.[7] It is not limitless, but in many cases it does not even require reasonable suspicion.[8] When evaluating whether a suspicionless search under the border exception is permissible, courts generally balance of its necessity for the promotion of legitimate governmental interests and the level of intrusion upon an individual’s privacy.[9]

 

ICE and CBP argued that conducting these searches is invaluable to helping ensure national security; prevent the entry of criminals, inadmissible aliens, and contraband; and to facilitate lawful trade and travel.[10]  To support this argument,  ICE and CBP referenced 34 published cases involving the seizure of at the border of digital contraband or evidence.[11]  The court was not persuaded that these 34 cases were significant enough to overcome the traveler’s privacy interests though.[12] The CBP alone reportedly conducted 108,000 searches of electronic devices between 2012 and 2018, and the 34 cases were from a much larger period of time than just those seven years.[13]

 

When considering the privacy interest of travelers, the Supreme Court has court applied the border search exception without requiring reasonable suspicion to searches that it considers “routine.”[14] Whether a search is considered routine depends solely on degree of invasiveness and intrusiveness of the search.[15] ICE and CBP classify all border searches of electronic devices as either basic or advanced, requiring a showing of reasonable suspicion for advance searches only.[16]  The court in this case could not discern difference in the amount of information accessed between basic and advanced searches though.[17]  Most of the seizures of the eleven travelers’ devices in this case were all considered basic, and yet their duration ranged from 45 minutes to 15 days.[18]  During these “basic” searches, the officers accessed photographs, contacts, and data of both a personally and professionally sensitive nature.[19]  Based on how intrusive these searches were and the comparably weak governmental interest in conducting them without reasonable suspicion, the court held that neither advanced nor basic searches were routine and both require reasonable suspicion.[20]  This may only be a district court decision, but it still marks a major step toward protecting international travelers’ privacy rights.

 

[1] Federal Court Rules Suspicionless Searches of Traveler’s Phones and Laptops Unconstitutional, ALCU, Nov. 12, 2019, https://www.aclu.org/press-releases/federal-court-rules-suspicionless-searches-travelers-phones-and-laptops.

[2] Id.

[3] Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2019 U.S. Dist. LEXIS 195556, at 2 (D. Mass. Nov. 12, 2019).

[4] See Id. at 23.

[5] Id.

[6] Id.

[7] See U.S. v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015).

[8] See. Alasaad, 2019 U.S. Dist. LEXIS 195556, at 25.

[9] See Id.

[10] See id. at 26.

[11] Id. at 43.

[12] See Id.

[13] Id.

[14] See Id. at 33.

[15] Id.

[16] See Id. at 5.

[17] Id. at 51–52.

[18] See Id. at 48–51.

[19] See Id.  (accessing photos of a woman without her headscarf and a man’s privileged conversation with his lawyers).

[20] See Id. at 52.

image source: https://wtop.com/wp-content/uploads/2019/05/TSA-Border_Protection_16473.jpg