Tag: blog post

By Bharat Manwani[1]

The size of the world’s debt market is humongous. By the end of 2022, it had surpassed $300 trillion.[2] The sheer size itself, brings along several challenges with mainstream lending markets such as financial inclusion and subprime problems. Financial inclusion has been affected post-global financial crisis due to stricter lending rules, particularly impacting small businesses, immigrants, and women. The rise of alternative lending markets, like peer-to-peer lending, fills the gap but faces challenges of high risk, fraud, and default due to less stringent regulations. Technology has played a part attempting to make lending markets relatively inclusive and efficient than previously, particularly the applications of AI with alternate credit scoring[3] that have made borrowing more inclusive. However, these problems persist, leaving small enterprises, immigrants and women with no recourse other than attaining credit at higher interest rates. High NPAs with respect to retail lending compel institutions to make borrowing even more inaccessible. Blockchain could be a promising avenue to resolve these concerns, with Decentralized Financing as a viable approach.

Lending markets and ancillary financial activities operate upon the notion of ‘trust’. The lender, banks or other institutions must bestow ‘trust’ in the borrower to uphold their end of the agreement. Otherwise, the parties would have to fall back on the legal systems to enforce such agreements in order to recover their debts. The need for ‘trust’ is the reason why financial systems tend to exhibit greater size and advancement in nations characterized by elevated social capital, increased trust levels, and more robust legal frameworks.[4] The introduction of blockchain, with lending activities conducted within decentralized finance (DeFi) markets holds potential to alleviate the need for trust altogether. DeFi dispenses with the requirement of trust, since lending agreements automatically enforce the terms of the “smart contract.”

What is DeFi? Understanding Smart Contracts as Vending Machines

As utopian as it gets, DeFi is not just a theoretical framework anymore. Over 6 million people trade within DeFi markets, with the total value locked surpassing $50 billion at the start of this year.[5] Financial arrangements in DeFi markets are designed solely with the help of smart contracts, which rely upon the Ethereum blockchain. These smart contracts are essentially computer codes that transfer digital assets relying upon pre-determined instructions agreed upon by contracting parties. Illustratively, it shares parallels with a vending machine. A vending machine relies upon a logical function to dispense a particular item at the instance of receiving money, with no intermediary such as a store or cashier overseeing the said transaction. Smart contracts contain an enforcement mechanism that bears semblance to a vending machine, they execute automatically once certain conditions are satisfied without the involvement of any intermediary. These encompass confidential, permissionless financial frameworks that endeavor to supplant conventional intermediaries through the execution of smart contracts that are immutable, deterministic computer programs within a blockchain environment. Every DeFi lending protocol comes with its own peculiarities, but almost all of them diverge from centralized credit assessment and deploy smart contracts to manage crypto assets.[6] In contrast to established financial frameworks reliant on intermediaries administered by external entities, this paradigm automation of contract execution holds the potential to mitigate challenges linked to human discretion[7] (like fraud, censorship, and cultural bias), enhance the accessibility of financial services, and complement established financial domains.

DeFi lending protocols offer significant advantages over conventional frameworks. With the advent of blockchain but more particularly the idea of “decentralizing” finance aims to bridge information asymmetry in lending markets.[8] Implemented within a public blockchain, the precise content of smart contracts within each DeFi lending protocol is openly accessible and subject to audit. Moreover, users’ historical engagements with protocols, along with their lending and borrowing activities, are meticulously documented on the blockchain, ensuring a transparent record. Market information is transparent and universally accessible. Another core advantage of DeFi lies in its approach to liquidity management. Within DeFi lending, funds contributed to lending protocols are strategically aggregated, fostering optimal utilization and enhancing overall market liquidity. This efficacy is bolstered by the integration of smart contracts and blockchain technology, which facilitate streamlined processes for lending, borrowing, and arbitrage, characterized by both rapidity and cost-efficiency. Furthermore, DeFi lending protocols extend their impact by ensuring the complete transferability and exchangeability of debt holdings. This is achieved through a robust mechanism wherein IOU tokens, representative of these holdings, are safeguarded by the guarantee of redemption to fund suppliers. This design not only promotes trust and reliability within the DeFi ecosystem but also contributes to a fluid marketplace where debt instruments can be seamlessly managed and traded.

Current use cases and the Collateral Paradox

Despite the apparent advantages of DeFi lending, its current use cases are restricted to mainly two practical applications; token rewards and arbitrage trading. Retail users often end up in a borrowing spiral wherein they continue to borrow cryptocurrency to pay off previous DeFi loans. Interestingly, such lending protocols reward tokens to their users for making periodic payments, and hence retail users voluntarily create such borrowing spirals. Another practical application of DeFi lending is arbitrage trading, wherein users borrow a certain cryptocurrency to sell it on a different platform which has it listed at a higher price. Such arbitrage transactions and token rewards have fueled the growth of DeFi lending protocols, and hence their market capitalization is valued over $4.75 billion dollars in August 2023.[9] A particular conundrum exists, which has cramped the real-word applications of DeFi lending. The fact that such loans can be secured after depositing collateral, which is in the sole form of cryptocurrency. Built on the foundation to serve retail users that are underserved by traditional finance and to make it more inclusive, DeFi lending protocols fallaciously require users to deposit tokenized collateral of up to 150% of the loan amount. The ridiculous collateral preconditions are in place owing to the volatile nature of cryptocurrency itself, and hence this lingers as a major disincentive to enter the world of decentralized finance.

Real Estate Tokens: New kid on the block(chain)

The collateral problem obscures a technological revolution altogether, combatting this conundrum would leverage DeFi’s innovative elements. Nevertheless, a solution exists, one that lies within the fundamental design of DeFi protocols themselves. These protocols offer composability in the blockchain, which essentially enables the interaction of different financial components. It is illustratively the same as building a Lego set, where the user can link several financial products to a single transaction. For example, a retail user when entering a lending contract, could link cryptocurrency that he has already lent to another user, to act as collateral for the present transaction. Duplicating the nature of Lego blocks, several different smart contracts are snapped together into blocks within a single transaction, promoting a more efficient blockchain.[10] This precise capability offers the opportunity to tokenize real world assets, which would fill the lacuna created by the collateral conundrum.

The approach behind the solution is straightforward, tokenized real-world assets could replace cryptocurrency as security of debt, and ultimately dispense with the strict collateral preconditions in DeFi lending protocols. Additionally, the relative low volatility of real estate would mitigate overcollateralization of such secured loans, making decentralized finance efficient and financially more inclusive. The proposed solution requires sovereign authorities to have frameworks in place, which would encompass properties or any sort of physical infrastructure and store them within a digital ledger. Blockchain’s composability would further enable users to pledge their tokenized assets as security to initiate DeFi lending protocols. Lending contracts would essentially comprise enforcement mechanisms that automatically execute, and hence transfer real-estate token ownership to the lender in the case of non-payment. This facilitates the acquisition and divestiture of fractional ownership in properties, streamlines the process, enhances market liquidity and assures that secured loans with DeFi lending protocols do not require overcollateralization of loan amounts.[11] Retail users would no longer need to pledge cryptocurrency in order to take a DeFi loan, expanding the class of individuals that would have access to debt within this framework. Blockchain based land record management models have already been implemented in certain parts of India[12], wherein the framework stores ownership information and transaction histories on a decentralized ledger, leaving no scope to tamper with such data. The moot point being that such efficient frameworks are already in place and offer the opportunity to make decentralized finance inclusive and accessible to a greater extent.

The world’s lending market is replete with challenges of financial inclusion and subprime issues, and hence DeFi reevaluates the trust-based lending system within traditional finance. Its transformative potential is evident in its operational shift from theoretical concept to practical reality, offering transparent, automated, and efficient lending mechanisms. The major roadblock in the way of technology revolutionizing lending systems, remains to be the collateral conundrum. Nevertheless, the remedy is inherent within DeFi, the ability to tokenize real-world assets, substituting the volatile cryptocurrency collateral. Real estate tokenization aligns with the existing frameworks for blockchain-based land record management, offering a way to enhance inclusivity and accessibility while streamlining lending processes. By reimagining lending dynamics through DeFi’s automated smart contracts and blockchain’s reliability, the potential emerges for a more equitable, transparent, and efficient financial future.

[1] Bharat Manwani is a Student pursuing BBA LLB (Hons.) at Gujarat National Law University (GNLU), Gandhinagar. He takes active interest in the intersection of Law and Technology. For any feedback, he can be contacted at bharat21bbl020@gnlu.ac.in

[2] Rodrigo Campos, Global debt on the rise, emerging markets cross $100 trillion mark, Reuters (May. 17, 2023), https://www.reuters.com/markets/global-debt-rise-em-crosses-100-trillion-mark-iif-2023-05-17/#:~:text=The%20Institute%20of%20International%20Finance,second%2Dhighest%20quarterly%20reading%20ever.

[3] Joginder Rana, Alternate Credit Scoring Can Further Financial Inclusion, Outlook India (May. 21, 2022), https://www.outlookindia.com/business/alternate-credit-scoring-can-further-financial-inclusion-in-india-read-here-for-details-news-197707.

[4] Luigi Guiso, The Role of Social Capital in Financial Development, 94 Am Econ Rev 3 (2022).

[5] What are the fastest-growing DeFi categories by market share, CNBC (May. 9, 2023) https://www.cnbctv18.com/cryptocurrency/what-are-the-fastest-growing-defi-categories-by-market-share-16612751.htm.

[6] Massimo Bartoletti, SoK: Lending Pools in Decentralized Finance, Vol. 12676 Lecture Notes in Computer Science (2022).

[7] Chiu, Jonathan and Ozdenoren, Emre and Yuan, Kathy Zhichao and Zhang, Shengxing, On the Fragility of DeFi Lending, SSRN E-Journal (2023).

[8] Jiahua Xu and Nikhil Vadgama, From Banks to DeFi: the Evolution of the Lending Market, in Horst Treiblmaier, Defining the Internet of Value (Springer 2022).

[9] Crypto, <https://crypto.com/price/categories/lending> (Aug. 31, 2023).

[10] Sirio Aramonte, DeFi lending: intermediation without information? BIS Bulletin (Jun. 14, 2022), https://www.bis.org/publ/bisbull57.pdf.

[11] Andres Zunino, The Future Of Real Estate: Tokenization And Its Impact On The Industry, Forbes (May. 22, 2023) https://www.forbes.com/sites/forbestechcouncil/2023/05/22/the-future-of-real-estate-tokenization-and-its-impact-on-the-industry/?sh=42f96ee346bf.

[12] Shruti Shashtry, Karnataka to use blockchain for property registration, Deccan Herald (Jan. 4, 2021) https://www.deccanherald.com/india/karnataka/karnataka-to-use-blockchain-for-property-registration 934862.html.

Data Protection in the Times of COVID-19: Indian Aspect

By JOLT

On May 21, 2020

In Blog Posts

By: Aditi Jaiswal & Anubhav Das, 4th Year students of NUALS Kochi, RMLNLU Lucknow

Introduction

In the wake of COVID-19, where the collection of data is an essential tool to search and track the individuals infected, an issue might arise in the near future when this pandemic is over. The data collected now by the state can be used for its intended purpose, but it can also be used to the detriment of an individual. As a result of this data collection, the right to privacy, which has been declared a fundamental right by the Supreme Court, may be infringed.

Among the data collected to track individuals infected—or potentially infected—with COVID-19 is location data and biographical data. This data is personal and can be used to understand an individual and make predictions about that individual which can be then be used against them. For an example, look at the app recently launched by the Indian government, the Aarogya Setu App. This app predicts the chances of an individual having COVID-19 by tracking the location of an individual. Using the individual’s location, the app then checks if that individual has come into proximity with an infected person. This location data can be used to predict the number of family members present, which grocery store they shop at, and more. Just as Target[1] predicted the pregnancy of a woman by analysing her shopping list, algorithms can be used to process the data collected, ostensibly for COVID-19 tracking, to learn things that one might never wish to reveal. The location tracking could even be used to predict something as personal as an extramarital affair.

Although the privacy policy[2] of the app mentions that the data collected, will be deleted after a certain period of time, do we have any legislation which could be used to make the state liable should they fail to do so? This article will deal with a very basic concept in data protection law: purpose limitation. This article will analyse the existing law in India and whether or not it can combat such issues, before further analysing the Data Protection Bill of 2019 and its importance in the current case.

The Present:

The principle of purpose limitation under the data protection law is this: the data collected must be used for the purpose specified and when that specified purpose is accomplished, the data must later be deleted. It is essential that this principle is adhered to with the data collected by the state to track COVID-19 cases. This is the only way to ensure the data can never be used later for any other purpose.

Currently, the IT (Reasonable Security Practices And Procedures And Sensitive Personal Data or Information) Rules, 2011 (“IT Act”) governs the collection of data.[3] The IT Act recognizes the need for a privacy policy, information collection requirements, information disclosure requirements and more. Rule 5 (4) of the IT Act deals with purpose limitation. Rule 5 states that the “body corporate” cannot retain the data collected after the purpose for which it was collected has been accomplished. This means the “body corporate” are mandated to delete the data once the purpose is accomplished. Had this rule been written more broadly, it could have effectively dealt with the issue of data collection by the state. The problem lies in the definition of “body corporate” under the rule. Rule 5(4) only defines “body corporate” to be “any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities”.[4] Thus, this rule does not apply to the state and the data collection done by the state to track cases of COVID-19. This oversight in the IT Act can be dealt with, either through an amendment to the IT Act or with new data protection legislation.

The Future:

In the Puttuswamy case,[5] the Supreme Court acknowledged the need for separate legislation for data protection in India. As a result, after much deliberation, the Personal Data Protection Bill, 2019 (the “PDP Bill”) was introduced in parliament on December, 11 2019. The bill is currently being analysed by a Joint Parliamentary Committee and it includes important provisions which could be used to combat the problem of data collection by the state in the times of COVID-19.

Section 9(1) of the PDP Bill states that the “data fiduciary” shall not retain personal data once the purpose of collecting that data is fulfilled.[6] An important aspect of this provision is that the rule governs not just any “body corporate,” but rather any “data fiduciary.” Section 3 (13) of the PDP Bill defines “data fiduciary” to include the state. This means that if this Bill was law right now, the data collected by the state would be required to be deleted once the pandemic is over or once that data has been used for its purpose. Moreover, if the state does not comply with this provision then it “shall be liable to a penalty which may extend to fifteen crore rupees or four percent of its total worldwide turnover of the preceding financial year, whichever is higher.” However, the PDP Bill is not law right now and there is no a chance of it being enacted soon. This might give the state an active chance to evade liability, even if they violate the privacy of an individual.

The Reality:

As mentioned above, the PDP Bill is still being considered by a Joint Parliamentary Committee. It has not even seen the floor of discussion in the parliament. No one knows when or if this Bill will pass and become law. Moreover, considering the current situation of the COVID-19 pandemic, such discussions or deliberations will only take place once the pandemic is over. Thus, even if the Bill becomes an Act, the important thing to consider now is the retrospective applicability of it.

The state will only be liable for misuse of the data collected now if, when the PDP Bill becomes law, the law has retrospective application. The Bill, in its current form, is silent regarding retrospective application. As per the BN Srikrishna Committee report,[7] which presented the draft Personal Data Protection Bill 2018, the PDP Bill will have no retrospective application. The rationale given by the committee is that retrospective application of the law will not give the data fiduciary enough time to come into compliance. Thus, the state can evade all liability for misuse of personal data and the data collected now can be misused without legal repercussion until the PDP Bill becomes law. This will ultimately hamper the privacy of individuals.

Conclusion:

Data protection legislation in India is needed now. This legislation will help prevent data misuse in the future and will help to maintain the privacy of an individual. The issue of data collection in the times of COVID-19 can also be remedied by amending the IT Act’s definition of “body corporate” to include the state or by enacting the PDP Bill along with a provision for its retrospective application. The retrospective application of the Bill will be an essential step towards curbing the potential misuse of data being done now by the state. This in turn will preserve and protect the informational privacy of individuals.

[1] See Kashmir Hill, How Target Figured Out A Teen Girl Was Pregnant Before Her Father Did, FORBES (Feb. 16, 2012, 11:02am), https://www.forbes.com/sites/kashmirhill/2012/02/16/how-target-figured-out-a-teen-girl-was-pregnant-before-her-father-did/#69f563446668.

[2] See Rohit Chatterjee, Arogya Setu App Gets Revised Privacy Policy, ANALYTICSINDIAMAG (Apr. 2020), https://analyticsindiamag.com/arogya-setu-app-gets-revised-privacy-policy/.

[3] See S.S. Rana & Co, Advocates, India: Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data Or Information) Rules, 2011, Mondaq (Sept. 5, 2017), https://www.mondaq.com/india/data-protection/626190/information-technology-reasonable-security-practices-and-procedures-and-sensitive-personal-data-or-information-rules-2011.

[4] See Elonnai Hickok, Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011, Centre for internet & society (Aug. 11, 2015), https://cis-india.org/internet-governance/blog/big-data-and-information-technology-rules-2011.

[5] See K. S. Puttaswamy v. Union of India, Writ Petition (Civil) No . 494 of 2012 (Sup. Ct. India Aug. 24, 2017).

[6] See The Personal Data Protection Bill, 2019, PRS Legislative Research, https://www.prsindia.org/billtrack/personal-data-protection-bill-2019.

[7] Committee of Experts Under the Chairmanship of Justice B.N Srikrishna, A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians, Ministry of Electronics & Info. Technology, July 2018, https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf.

Health Information Technology: Technology in Your Health Care

By JOLT

On May 3, 2020

In Blog Posts

By: Rachel Whalen

“In 2019, healthcare consumers continue to demand greater transparency, accessibility and personalization.”[1] In this increasingly digital age, incorporating Health information technology (“Health IT”) into the health industry is very important. Health IT is “the exchange of health information in an electronic environment.”[2] A variety of electronic methods are used, such as computerized disease registries, electronic record systems (“EHRs”), and electronic prescribing.[3] Health care systems are implementing Health IT to mange health information and care for individuals and groups.[4]

The widespread use of Health IT improves quality of care, prevents medical error, reduces costs, and decreases inefficiencies.[5] Communication between health care providers and patients is better than ever before thanks to advances in securing Health IT networks.[6] More accurate EHRs can follow a patient to different health care providers. Apps and increased access to information can give patients more control over their care. This has improved the ability to help patients meet their health goals and to give the patients more control over their health.[7] Health IT’s merging of technology with healthcare has improved access to healthcare and the consistency of care.[8]

There are several different components of Health IT that add complexity to the system which does not exist in other communication technologies. The central component of Health IT infrastructure is the EHR.[9] These EHRs, or electronic medical records (“EMRs”), contain all of a person’s official health record in a digital format.[10] These digital records can be viewed even when the doctor’s office is closed, providing greater access to a person’s health information.[11] EHRs can also be used to share information between multiple healthcare providers and agencies within the healthcare system.[12] This makes it easier for doctors to share information with specialists and ensure consistent care.[13] Health IT also works outside of the healthcare system with personal health records (“PHRs”). PHRs are self-maintained health records controlled by the patient themself.[14] PHRs can be used to track doctor visits and treatments, as well as activities outside of the doctor’s office.[15] Patients can track their eating and exercise habits, as well as their blood pressure, heartbeat, and other medical parameters.[16] PHRs may even record medications and prescriptions if the PHR is linked to the doctor’s electronic prescribing (“E-prescribing”).[17] E-prescribing connects the doctors directly to the pharmacy, so no paper prescriptions are lost or misread.[18] This gives patients wider access to pharmaceuticals without having to bring paper prescriptions with them.[19]

Developments in Health IT have improved the popularity and access to health records among patients. Smartphones and apps have encouraged patients to use PHRs and have helped patients become more comfortable with their digital health information.[20] Health care providers have also increasingly implemented and used patient portals due to more consumer-friendly designs. Apps and patient portals were clunky and limited near the beginning of Health IT, but modern systems provide more options and customization options.[21] Patient portals used to only provide information of upcoming appointments and perhaps some test results.[22] Now, patient portals are used to download health records, securely communicate with physicians, pay bills, check services, check insurance coverage, and order prescriptions.[23] These Health IT services grant patients more access to and control over their health information and health care treatment.

In addition to individual records, Health IT has established a health information exchange (“HIE”).[24] Health care providers must manage a mountain of patient health information. Thus, there has been a consequential increase in the importance of data analytics.[25] HIEs are systems developed by groups of health care providers to share data between Health IT networks.[26] These shared systems and agreements between health care providers not only allow for better communication and consistent care, but also provide a large database of health information to analyze the health of communities as a whole.[27] Academic researchers can use the shared health information to develop new medical treatments and pharmaceuticals.[28] This plethora of information can be used to manage population health goals and research health trends.[29]

Unfortunately, this amount of information is very difficult to manage, which again increases the reliance on data analytics to find relevant files.[30] This is where other Health IT technologies come in, specifically picture archiving and communication systems (“PACs”) and vendor-neutral archives (“VNAs”). While images have been of most importance to radiologists, other specialties, such as cardiology and neurology, are also producing a large amount of clinical images.[31] PACs and VNAs are widely used to store and manage patient medical images and, in some cases, have even been integrated into shared systems between facilities and health providers.[32] Some Health IT systems even use artificial intelligence (“AI”) to sort and manage files.[33]

In addition to the advantages discussed above, the ability to quickly share accurate information, called “interoperability,” could be the difference between life and death for a patient. Health IT tools improve the necessary cooperation between health care providers for improved patient care and lower healthcare costs.[34] The “interoperability” and rapid information sharing provided by Health IT tools provides health care providers with the most updated information and can even provide patients with immediate access to their health records. Health care providers need personal information and basic medical history, which requires patients to provide repetitive information and paperwork. Interoperability information sharing provides that basic information to health care providers without the excess paperwork and allows for faster treatment. Similarly, health care providers have access to test results from other facilities, which prevents unnecessary tests and improves consistency of treatment. Consistent treatment is further aided by follow up treatment with alerts and reminders for ongoing health conditions, appointments, and medications.[35]

Digital records protect patient information in the event of emergency by allowing recovery of documents, as well as constant access to health records, which can follow patients to any provider, regardless of location. This allows for consistent treatment. The use of electronic systems also provides the ability to encrypt information so only authorized personnel have access. Electronic information can also be tracked to record who accesses the information and when they accessed it. Several of these safety advantages are required by the Federal Government. For example, certified Health IT systems are required to designate professionals and others, to limit access to information, so as to manage care effectively.[36]

Strict government regulations limit Health IT due to the amount of confidential information contained in the health information managed by Health IT.[37] Privacy and security is a top priority for the Federal Government as well as patients and health care providers.[38] Medical records can commonly contain the most intimate details of a patient’s life.[39] These files document physical health, mental health, behavioral issues, family information including child care relationships, and financial status.[40] Health care providers need all of this sensitive information to properly treat patients, but a breach of that information could cause innumerable harms to the patients.[41] Therefore, patients are guaranteed clearly defined rights to the privacy of their health information, including electronic health information.[42]

Health care and technology touch on every aspect of our lives. Ever since the computer was invented, various methods have been implemented to improve the efficiency and access of health care incorporation.[43] From EHRs to electronic prescriptions, Health IT has been connecting vital information for patients and health care providers.[44] There are still some issues and miscommunications within the systems, but Health IT will improve as technology improves, providing crucial information and technical support to the health care industry.

[1] Ashley Brooks, What Is Health Information Technology? Exploring the Cutting Edge of Our Healthcare System, Rasmussen C. Health Sci. Blog (June 10, 2019), https://www.rasmussen.edu/degrees/health-sciences/blog/what-is-health-information-technology/ (quoting Patrick Gauthier, director of healthcare solutions at Advocates for Human Potential, Inc.).

[2] Health Information Technology Integration, Agency for Healthcare Research and Quality, https://www.ahrq.gov/ncepcr/tools/health-it/index.html (last visited Apr. 15, 2020).

[3] See id.

[4] See id.

[5] See Department of Health and Human Services, Health Information Technology, Health Information Privacy, https://www.hhs.gov/hipaa/for-professionals/special-topics/health-information-technology/index.html (last visited Apr. 15, 2020).

[6] See Brooks, supra note 1.

[7] See id.

[8] See id.

[9] See Margaret Rouse, Health IT (health information technology), SearchHealthIT (June 2018), https://searchhealthit.techtarget.com/definition/Health-IT-information-technology.

[10] See id.

[11] See Office of the National Coordinator for Health Information Technology, Health IT: Advancing America’s Health Care, https://www.healthit.gov/sites/default/files/pdf/health-information-technology-fact-sheet.pdf (last visited Apr. 15, 2020) [hereinafter “ONC”].

[12] See Rouse, supra note 9.

[13] See ONC, supra note 11.

[14] See Rouse, supra note 9.

[15] See ONC, supra note 11.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] See Rouse, supra note 9.

[21] See id.

[22] See id.

[23] See id.

[24] See id.

[25] See Rouse, supra note 9.

[26] See id.

[27] See id.

[28] See id.

[29] See id.

[30] See Rouse, supra note 9.

[31] See id.

[32] See id.

[33] See id.

[34] See Brooks, supra note 1.

[35] See ONC, supra note 11.

[36] See id.

[37] See Brooks, supra note 1.

[38] See ONC, supra note 11.

[39] See Institute of Medicine, Beyond the HIPAA Privacy Rule: Enhancing Privacy, Improving Health Through Research (Laura A. Levit & Lawrence O. Gostin eds., 2009).

[40] See id.

[41] See id.

[42] See ONC, supra note 11.

[43] See The History of Healthcare Technology and the Evolution of EHR, VertitechIT (Mar. 11, 2018), https://www.vertitechit.com/history-healthcare-technology/.

[44] See id.

Courts Across America Adapt and Respond to COVID-19

By JOLT

On April 29, 2020

In Blog Posts

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By: Derek Reigle

The COVID-19 pandemic has resulted in extraordinary changes across America and the world. This phenomena has not escaped the American legal system. Last week, the Supreme Court announced that it will begin hearing cases via teleconference, a first for the court.[1] The Supreme Court is not alone in its changes. Indeed, all over America, courts have moved hearings online, which are conducted through video teleconference software programs like Zoom.[2]

States have responded to these new online courts in interesting ways. In Texas, there are guidelines on how to dress and present oneself on Zoom in Court.[3] This makes sense because some attorneys are appearing online while still in bed, leading to judicial reprimands.[4] Further problems also have emerged. Some court hearings have even been hacked into—online trolls “zoom bombing” a court proceeding in order to disrupt the process.[5] As a result of “zoombombing,” federal prosecutors are now issuing warnings that declare intruding into uninvited zoom calls is a felony.[6]

Issues beyond just the logistical impact of online court proceedings have also developed. Some of these substantive concerns will inevitably lead to several interesting and complicated constitutional questions. One of the concerns raised by criminal defense counsels is already being argued in some state courts. They argue that the video examination of witnesses during criminal trials does not fulfill the confrontation requirement enumerated in our Constitution.[7] Another issue is the right to a speedy trial. Cases are being pushed back to June and July across the country,[8] but what if the pandemic continues to linger? The result of these complicated legal questions could determine the future plans that are put in place for the next potential pandemic.

As of now, the extent and length of the pandemic is unknown. However, several additional changes are already permanently altering the legal landscape. Some of these changes could be beneficial in the long run for judges. Confrontation Clause issues aside, many courtroom procedures that require face to face interaction could be moved online.[9] This could help provide some transitional juice to an antiquated profession. Think about it: lawyers could handle cases further away, access to courts could be increased because people could call in remotely, and judicial efficiency could be increased as a result.

Another positive of this situation is that some prisoners who are eligible for parole are now being released in greater numbers.[10] This is due to fears of the coronavirus spreading throughout our prisons and infecting prisoners.[11]America has highest number of incarcerated persons in the world,[12] and reducing those numbers through the release of non-violent offenders would be a great thing.

Ultimately, the next few months and, potentially, years will bring about a significant amount of changes in the way Court is conducted, both in person and online. There will also be changes in how we handle our vulnerable prison population. All of this will lead to several interesting constitutional questions. Hopefully, we can take note of all of these noteworthy changes and implement the unexpected positives from a terrible situation.

[1] See Pete Williams, In Historic First, Supreme Court to Hear Arguments by Phone, NBC News (Apr. 20, 2020), https://www.nbcnews.com/politics/supreme-court/historic-first-supreme-court-hear-arguments-phone-n1182681.

[2] See Aaron Holmes, Courts and Government Meetings Have Fallen into Chaos After Moving Hearings to Zoom and Getting Swarmed With Nudity and Offensive Remarks, Business Insider (Apr. 20, 2020), https://www.businessinsider.com/zoom-courts-governments-struggle-to-adapt-video-tools-hearings-public-2020-4.

[3] See Electronic Hearings with Zoom, Texas Judicial Branch, https://www.txcourts.gov/programs-services/electronic-hearings-with-zoom/.

[4] See Danielle Wallace, Florida Judge Urges Lawyers to Get Out of Bed and Get Dressed for Zoom Court Cases, Fox News (Apr. 15, 2020), https://www.foxnews.com/us/florida-coronavirus-judge-lawyers-zoom-shirtless-bed-poolside-dressed.

[5] See Nick Statt,’Zoombombing’ is a Federal Offense That Could Result in Imprisonment, Prosecutors Warn, The Verge (Apr. 3, 2020), https://www.theverge.com/2020/4/3/21207260/zoombombing-crime-zoom-video-conference-hacking-pranks-doj-fbi.

[6] See id.

[7] See Interview with Hon. Anne Hartnett, Judge, Court of Common Pleas of The State of Delaware, in Dover, Del. (Apr. 21, 2020).

[8] See id.

[9] See id.

[10] See Iowa to Release Prisoners to Minimize Spread of COVID-19, KCCI (Apr. 20, 2020), https://www.kcci.com/article/iowa-to-release-prisoners-to-minimize-spread-of-covid-19/32216621.

[11] See id.

[12] See Drew Kann, 5 facts behind America’s High Incarceration Rate, CNN (Apr. 21, 2019), https://www.cnn.com/2018/06/28/us/mass-incarceratio.n-five-key-facts/index.html.

Image Source: https://www.drugtargetreview.com/news/57287/3d-visualisation-of-covid-19-surface-released-for-researchers/

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Blog: The New Cybersecurity Executive Order

By JOLT

On March 6, 2013

In Blog Posts

By Airen Adamonis, Copy Editor

The United States is currently at war with China. However, this war is not taking place on any battlefields. It’s taking place in cyberspace. According to a recent article published by the Washington Post, the United States has been the target of an immense “cyber-espionage campaign” that is threatening the country’s economic competitiveness.

Just days after a private security firm released a study accusing the Chinese military of carrying out numerous cyber-attacks against U.S. businesses, the Obama Administration released a long-awaited Executive Order on cybersecurity measures. The Executive Order on Improving Critical Infrastructure Cybersecurity (the “Order”), released on February 12, 2013, has a goal to address cyber threats through a strengthened partnership between the U.S. Government and critical infrastructure owners. To accomplish this goal, the Order:

Requires the development of new information sharing programs to provide both classified and unclassified threat and attack information to U.S. companies;
Requires the NIST’s creation of a Framework of cybersecurity practices (“Cybersecurity Framework”) to reduce cyber risks to critical infrastructure;
Compels agencies to conduct regular assessments of privacy and civil liberties impacts of their activities and to make such assessments available to the public;
Establishes a voluntary program to promote the adoption of the Cybersecurity Framework, which will provide incentives for companies to comply; and
Calls for a review of existing cybersecurity regulation.

What does all of this mean for businesses? For now, it does not mean much since none of the industries covered by the order will actually have to meet the completely voluntary standards. According to Hunton & Williams’ Privacy Blog, the Order could potentially impact businesses in the following ways:

(1) Businesses in the private sector will receive a surge of notifications from the government concerning cyber threats and recommended ways to respond to threats based on a process developed by the Department of Homeland Security (“DHS”). The current DHS process mainly shares classified cyber threats only with defense companies, but under the new Order, information will be shared with other critical infrastructure companies, such as energy companies.

(2) Critical infrastructure companies and secondary actors (i.e. insurance companies) will be able to voluntarily use the new Cybersecurity Framework to address potential risks. Since participation is completely voluntary, it is likely that DHS will create incentives for companies to comply. An example included in the Order is the call for a review of the federal procurement process to create a preference for vendors who meet the Cybersecurity Framework standards.

(3) Certain private sector companies, who if targeted would have a devastating effect, will be named on a list of “Critical Infrastructure at Greater Risk.” If added onto the list, companies can request reconsideration of their inclusion on the list. However, this list does not change the fact that compliance with the Framework remains completely voluntary.

Although the new Order appears to be a positive step in the right direction by encouraging information sharing between the public and private sectors, it is unlikely that it is enough to prevent what seems like an inevitable national cybersecurity catastrophe. Congress needs to make the next move fast.

Additional Sources:

http://www.huntonprivacyblog.com/2013/02/articles/obama-signs-presidential-policy-directive-on-critical-infrastructure-security-and-resilience/

http://www.huntonprivacyblog.com/2013/02/articles/observations-on-the-cybersecurity-executive-order-and-presidential-policy-directive/

http://www.bna.com/president-obama-signs-n17179872423/

http://www.whitehouse.gov/sites/default/files/uploads/07_eo_quotes_02132013.pdf