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Disparities in eLearning during the COVID-19 Pandemic

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On November 13, 2020

In Blog Posts

By Peyton Reed

 

When the world shut down in March, supplies began to sell out fast. Toilet paper, cleaning products, and office supplies quickly became scarce.[1] As families attempted to transition to working and learning from home, they were met with a harsh reality—public schools were grossly under-prepared for the transition to distance learning. Some districts reacted quickly, making bulk purchases of iPads and Chromebooks.[2] However, school districts in less affluent areas were at a distinct disadvantage.

 

The upfront cost of purchasing enough devices for each student to use at home is tens of millions of dollars.[3] School districts with deep pockets were able to shell out the money for their students. However, for low income school districts, buying a device for each of their students would eat up a huge chunk of their budget, if not the whole thing. School districts who had the cash on hand were able to purchase laptops in early 2020. School districts who did not have the ability to purchase devices had to wait for grants and COVID relief money.

 

From March to June, Chromebook sales rose 124%.[4] The increased demand for Chromebooks and other affordable laptops created an inevitable shortage.[5] Although we are well into October, hundreds of thousands of students across the United States are still waiting for Chromebooks to arrive.[6] This is particularly alarming for students since truancy laws are still being enforced in many states.[7] This fear is not unfounded. For example, Grace, a teenager from Michigan, was sent to juvenile detention in May for not completing her online schoolwork.[8]

 

Another big issue for students in disadvantaged areas is a lack of accessibility to Wi-Fi. School districts have scrambled to find solutions for students who cannot connect to the internet. A recent study by Common Sense Media details the severity of the gap in technology access.[9] Approximately 15 million students and 300,000 teachers across the United States do not have access to a stable Wi-Fi connection.

 

Some school districts have attempted to correct this inequity by creating hotspots in school buses. [10] This allows students at home to access Wi-Fi when they otherwise could not.[11] However, these Wi-Fi buses have some limitations. Most of the buses can only serve about 40 students at a time.[12] Additionally, some students might be on the outer limits of the Wi-Fi’s reach and need to move closer to the Wi-Fi for a good connection.[13] This could force some students to sit outside or in their cars (their parent’s car) to complete their schoolwork. Additionally, these buses operate on limited hours. The school buses are generally only available during hours of e-learning, between 8am and 2pm.[14] With this limited schedule, students who are given homework that requires access to Wi-Fi are met with the undue burden of finding other ways to complete it, or not completing it at all. For example, one student in the Charlotte-Mecklenburg School district was still unable to access Wi-Fi five weeks into the school year, and in turn has not been able to complete any class work all year.[15]

 

Fortunately, some internet companies are offering free trials for low income students and waiving installation fees.[16]After the trial ends, some companies are even offering discounted rates.[17] Regardless of school and corporations’ efforts, it is clear that low income students are severely disadvantaged in comparison to their peers that have access to adequate technology and stable Wi-Fi.

 

[1] Amanda Tarlton, 24 things that have been selling out online during the coronavirus pandemic, USA Today (Apr. 20, 2020), https://www.usatoday.com/story/tech/reviewedcom/2020/04/20/24-products-selling-out-online-due-coronavirus-pandemic-toilet-paper-cleaning-wipes-yeast-and-more/5161629002/

[2] Tim Newcomb, Technology Shortage Hits Schools: As Remote Learning Jolts Demand for Chromebooks and iPads, Districts Warn Communities’ Needed Supplies Could Take Months, The 74 Million (Apr. 21, 2020), https://www.the74million.org/article/technology-shortage-hits-schools-as-remote-learning-jolts-demand-for-chromebooks-and-ipads-districts-warn-communities-needed-supplies-could-take-months/

[3] U.S. schools face shortage of laptops crucial for online learning amid pandemic, CBS News (Aug. 24, 2020), https://www.cbsnews.com/news/distance-learning-laptop-shortage-remote-virtual-education/

[4] Iein Valdez, ChromeOS.dev — A blueprint to build world-class apps and games for Chrome OS, Google Blog: Android Developers Blog (Aug. 12, 2020), https://android-developers.googleblog.com/2020/08/introducing-chrome-os-dev.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+blogspot/hsDu+(Android+Developers+Blog)&m=1

[5] CBS News, supra note 3.

[6] Id.

[7] KDE issues COVID-19 guidance on school ventilation and truancy, pupil transportation revised, Kentucky Teacher (Sept. 20, 2020), https://www.kentuckyteacher.org/news/2020/09/kde-issues-covid-19-guidance-on-school-ventilation-truancy-pupil-transportation-revised/

[8] Jodi S. Cohen, A Teenager Didn’t Do Her Online Schoolwork. So a Judge Sent Her to Juvenile Detention., Pro Publica (July 14, 2020), https://www.propublica.org/article/a-teenager-didnt-do-her-online-schoolwork-so-a-judge-sent-her-to-juvenile-detention

[9] K–12 Student Digital Divide Much Larger Than Previously Estimated and Affects Teachers, Too, New Analysis Shows, Common Sense Media(June 29, 2020), https://www.commonsensemedia.org/about-us/news/press-releases/k-12-student-digital-divide-much-larger-than-previously-estimated-and

[10] Megan Sims, Wi-Fi buses and beyond: How schools are creating internet hotspots for students in the era of remote learning, Yahoo! Sports (Sept. 20, 2020), https://sports.yahoo.com/schools-offering-hotspots-wifi-buses-during-remote-learning-210711259.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAIlRRx2g-tcb7C0jGwHDuAr1unxJiG_lx7yVbHtRqdyvB_Hh5O-Gw2d-SZ8LV-S83L6TVvP4v5yPJpkt33RgpKAytfrTa_-0ZnK-iY-9n1wK4kVH220VAO2uF4cVhdPVmCIgavQhvfVEP7–fOO-M6pCucYW301bYfhozXicqu99

[11] Id.

[12] Lex Gray, ‘Smart Buses’ roll WiFi to students without access, KXAN (Oct. 12, 2020), https://www.kxan.com/pass-or-fail/smart-buses-roll-wifi-to-students-without-access/

[13] Alaa Elassar, Austin school district deployed over 100 school buses equipped with WiFi for students without internet access, CNN (Apr. 14, 2020), https://www.cnn.com/2020/04/14/us/austin-wifi-busses-independent-school-district-trnd/index.html

[14] Id.

[15] Caroline Hicks, High schooler unable to access internet with CMS hot spot five weeks into school year, WBTV (Sept. 18, 2020), https://www.wbtv.com/2020/09/18/high-schoolers-unable-access-internet-with-cms-hot-spot-five-weeks-into-school-year/

[16] Joyeeta Biswas, Comcast, AT&T, Sprint offering free or low-cost internet for students amid COVID-19 crisis, ABC 30 (Apr. 9, 2020), https://www.google.com/amp/s/abc30.com/amp/comcast-coronavirus-att-t-mobile-sprint/6069869/

[17] Id.

Image Source: https://search.creativecommons.org/photos/fd0e0cee-af63-4806-a5d1-8f18b454e28e

Click Here to Vote: An Overview of the Impact of COVID-19 on Annual Shareholder Meetings

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On November 9, 2020

In Blog Posts

By Tristan Smith

 

While the world continues to reel from the continued impact of COVID-19, the corporate world has also had to make substantial adjustments in how individual corporations conduct business on both a day-to-day and long-term level.[1]  Although corporate work life may be in upheaval as a result of the pandemic, profit margins continue to flourish on Wall St., much to the delight of both c-suite executives and shareholders across industries.[2]  For corporations, the challenges in organizing and conducting in-person work present unique challenges when executives begin planning required annual shareholder meetings to discuss pertinent topics that require shareholder approval.  Recently, we have seen corporations introduce new models to conduct shareholder meetings in response to COVID-19; by analyzing these approaches, it will be possible for legal and business leaders to assess the viability of further changes to in-person meetings on the corporate level as the world hopefully begins to recover.

 

Prior to the pandemic, shareholder meetings were conducted based on a series of corporate policies, industry norms, and state and federal statutes.[3]  A shareholder meeting must be called on a regularly scheduled basis; if a shareholder meeting has not been held within a fifteen month timeframe, any shareholder who holds voting stock has the power to require the corporation to call an annual meeting.[4]  At the annual shareholder meeting, the only required matter of discussion is the election of new directors for the company; however, a number of other issues may also be raised for shareholder approval.[5]  Shareholders can either choose to vote in person or by sending a proxy to vote in their place to the shareholder meeting.[6]  One of the most important elements of the shareholder meeting is the need for the meeting to meet quorum in order for any votes to be taken.[7]  Under most statutes, a quorum is established when at least a majority of shares (50% plus one) is present, although the quorum requirement may be increased or decreased based on individual company’s bylaws.[8]

 

Because of both the importance and the requirement of annual shareholder meetings, corporations have had to adapt in a timely fashion to new models of gathering; indeed, prior to the pandemic, very few companies had any policies or guidelines for hosting virtual shareholder meetings in lieu of in-person gatherings.[9]  Generally, there have been three different models proposed to replace traditional all-in person meetings: 1) switching to a completely virtual meeting, 2) hold an in-person or hybrid form of an annual meeting, or 3) delay the annual meeting.[10]  For the option of switching to an entirely virtual format, corporations will need to review both the company’s charter and bylaws as well as the state law in which the company is incorporated.[11]  For the large number of companies incorporated in Delaware, the Delaware General Corporation Law (DGCL) grants the board authority to institute a virtual shareholder meeting in the place of an in-person gathering.[12] Additionally, California, Connecticut, Georgia, Massachusetts, New Jersey, New York, and North Carolina have issued either executive orders or passed emergency legislation permitting the implementation of virtual shareholder meetings during the state of emergency in their respective states or simply allowing for them with no definite end date.[13]  Several issues arise when converting to an all virtual setting, including selecting a service platform, coordinating presentations of shareholder proposals, and most importantly, determining how votes for directors and proposals will be collected before and during the meeting.[14]  The challenges for hybrid meetings include deciding what representatives from the c-suite and other executives will be physically present versus attending remotely, how to properly screen in-person attendees to ensure the safety of everyone present, and finding host buildings or locations that are equipped to conduct the shareholder meeting in a socially responsible manner.[15] Finally, for companies who choose to simply delay their annual meeting, it is important for them to consult the bylaws to ensure that they are not bound to hold the meeting on a specific day; if so, a bylaw amendment may be required to allow for a delay to take place.[16]

 

However, the decision to move shareholder meetings to a virtual format has not been without drawbacks.  Meetings on average are lasting seven minutes shorter when contrasted with in-person shareholder meetings conducted in 2019; while not a significant amount of time, the reduction has left shareholders with less time to pose questions to corporate executives before taking votes on important issues for the company.[17] Furthermore, only about 80% of United Kingdom companies were implementing electronic options for shareholders to be able to ask questions at all.[18]  These kind of restrictions continue to raise questions about the long-term viability of virtual meetings replacing in-person shareholder gatherings.

 

[1] Lynn S. Paine, COVID-19 is Rewriting the Rules of Corporate Governance, Harvard Business Review (Oct. 6, 2020), https://hbr.org/2020/10/covid-19-is-rewriting-the-rules-of-corporate-governance.

[2] See generally Liz Hoffman, Goldman’s Pandemic Hot Streak Continues in Third Quarter, The Wall St. Journal ( last updated Oct. 14, 2020, 4:07 PM), https://www.wsj.com/articles/goldman-sachss-third-quarter-profit-nearly-doubles-11602675770?mod=hp_lead_pos1; see generally Hugh Son, JPMorgan Beats Analysts’ Profit Estimate as the Bank Sets Aside Less for Loan Losses, CNBC ( last updated Oct. 13, 2020, 12:20 PM), https://www.cnbc.com/2020/10/13/jpm-.html

[3] Alan Palmiter et al., Business Organizations: A Contemporary Approach 400 (West Academic Publishing, 3RD ed. 2019).

[4] Id.

[5] Id.

[6]  Id. at 401.

[7] Id.

[8] Id.

[9] Lynn S. Paine, COVID-19 is Rewriting the Rules of Corporate Governance, Harvard Business Review (Oct. 6, 2020), https://hbr.org/2020/10/covid-19-is-rewriting-the-rules-of-corporate-governance.

[10] Holly Gregory Et al., Considerations for Annual Shareholder Meetings in the Time of COVID-19, Sidley-Austin LLP (April 8, 2020), https://www.sidley.com/en/insights/newsupdates/2020/03/annual-shareholder-meetings-in-the-time-of-covid19.

[11] Id.

[12] Del. Gen. Corp. Law § 211(a)(2) (2020).

[13] Gregory, supra note 11.

[14] Id.

[15] Id.

[16] Id.

[17] U.K. Regulator Finds Companies Often Mute Shareholders in Remote Meetings, The Wall Street Journal (October 7, 2020, 5:30 AM) https:wsj.com/articles/u-k-regulator-finds-companies-often-mute-shareholders-in-remote-meetings-11602063000.

[18] Id.

Image Source: https://www.gazprom.com/f/posts/27/668826/shareholders-1.jpg

Telemedicine, Controlled Substances, and the Pandemic: How a Public Health Emergency Can Further Contribute to Inequalities in Healthcare

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On November 4, 2020

In Blog Posts

By Emma Phillips

The Covid-19 pandemic has drastically changed the American healthcare field in many ways, one being the rise in popularity of telemedicine.  Some of the first examples of modern telemedicine came about in the 1950s and 1960s, when a “closed-circuit television link was established between the Nebraska Psychiatric Institute and Norfolk State Hospital for psychiatric consultations.”[1]  It became a way to link mental professionals across great distances, aiding in their ability to consult psychiatric patients from afar without needing to see and diagnose patients in person.  More recently, even before the Covid pandemic, telemedicine has become popularized through the internet.  Telephone and video appointments with doctors have increased dramatically over the few decades.  Regardless, up until the beginning of the pandemic in 2020, in-person doctor’s visits were still largely regarded as the norm.

One of the reasons that this is the case is the Controlled Substances Act.  Under 21 U.S.C. 829(e), telemedicine conferences are generally not sufficient mediums through which doctors can prescribe controlled substances to their patients- an in-person consultation is required instead.[2]  The intent behind this was clear; the legislature wanted to insure the accuracy of prescription of controlled substances through in-person evaluations, since these substances carry risk of abuse.  Since medical professionals found in-person evaluations to be the most accurate assessment of whether they should prescribe these medications, this provision was written into law.

But the Controlled Substances Act does state instances in which there may be exceptions to this provision, one of which is illustrated in 21 U.S.C. § 802(54)(D).[3] This provision allows that, in the case of a national public health emergency (which is designated under 42 U.S.C. § 247(d)[4]), schedule II-schedule V substances, which include, but are not limited to oxycodone, methadone, and morphine.[5]

The Covid pandemic triggered this exception; in January of 2020, the Secretary of the Department of Health and Human Services issued a Public Emergency Declaration, and the DEA updated its website announcing the change to the telemedicine prescription policy.[6]  The statement stated that this change would be in effect for the duration of the public health emergency, or essentially, the duration of the pandemic.[7]  Essentially, this exception allows the prescription of controlled substances so long as the prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of her professional practice, the telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system,  and the practitioner is acting in accordance with applicable federal and state law.[8]

So what does this mean for the future of telemedicine, and how will this affect patients who depend on medication that qualifies as a controlled substance? A few glaring issues almost immediately come to mind.  First and foremost, 21 U.S.C. § 802(54)(D) contains a provision that allows the exception to be limited to “patients located in [certain] areas, and such controlled substances, as the Secretary, with the concurrence of the Attorney General, designates.”[9]  This essentially allows the for the unequal application of this exception; as time goes on, if restrictions continue to lift, only certain areas may be able to take advantage of it.[10]  Secondly, and more obviously, the fact that a video conference is necessary to obtain a prescription or a refill disproportionately affects lower income communities, who may not have consistent access to internet or a webcam.  By forcing those in this position to choose between going without medication or risking exposure to the virus, the switch to telemedicine during pandemic times creates a massive disadvantage to an already vulnerable population, and this problem is not one that is easily solved.

Ultimately, the ability to prescribe controlled substances via telemedicine during the coronavirus pandemic does help to minimize the risk of infection with the virus to a large proportion of the population.  However, the way the law is structured also exposes many holes in its efficiency and allows for dramatically inequal application of the exception.  If this pandemic is to last much longer, the legislature should take a close look at how this section of the U.S. code can be made more accessible to all communities, and how they can improve upon it in the future, should they need to.

[1] Thomas S. Nesbitt, M.D., M.P.H., The Evolution of Telehealth: Where Have We Been and Where Are We Going? National Center for Biotechnology Information (2012) https://www.ncbi.nlm.nih.gov/books/NBK207141/.

[2] 21 U.S.C. § 829(e).

[3] 21 U.S.C. § 802(54)(D).

[4] 42 U.S.C. § 247(d).

[5] Controlled Substance Schedules (2020) https://www.deadiversion.usdoj.gov/schedules/.

[6] Thomas Sullivan, DEA Allows Controlled Substance Prescriptions to Be Issued Via Telemedicine (Apr. 9, 2020) https://www.policymed.com/2020/04/dea-allows-controlled-substance-prescriptions-to-be-issued-via-telemedicine.html.

[7] Id.

[8] Id.

[9] 21 U.S.C. § 802(54)(D)(ii).

[10] Thomas Sullivan, DEA Allows Controlled Substance Prescriptions to Be Issued Via Telemedicine (Apr. 9, 2020) https://www.policymed.com/2020/04/dea-allows-controlled-substance-prescriptions-to-be-issued-via-telemedicine.html.

Image Source: https://apnews.com/article/189668d9268243b2921a6a0764ddd511

There Might be a Fly on the Wall of Your Exam Room: Protecting Patient Privacy During the Pandemic

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On October 5, 2020

In Blog Posts

By Chloe Hillard

Use of telehealth has skyrocketed during the coronavirus pandemic. Telehealth claims for privately insured patients jumped 4,347% nationally from March 2019 to March 2020.[1] Telehealth utilization among Medicare patients also drastically increased during the pandemic.[2] The increase in telehealth utilization is facilitated by relaxed telehealth regulations. When the nation entered lockdown and access to care was restricted, the U.S. Department of Health and Human Services (HHS) and the Center for Medicare & Medicaid Services (CMS) took action.

In an effort to expand telehealth utilization, CMS used its waiver authority under section 1135 of the Social Security Act to waive certain restrictions on telehealth.[3] CMS removed restrictions around site of service, approved 135 additional services for telehealth, and increased the types of providers who could provide care via telehealth.[4] These changes paved the way for greater telehealth utilization, allowing more patients to receive care.

At the same time, the HHS Office for Civil Rights loosened patient privacy protections. The agency exercised its enforcement discretion and decided not to impose Health Insurance Portability and Accountability Act (HIPAA) penalties on covered health care providers for HIPAA violations in connection with the good faith delivery of telehealth during the pandemic.[5] Not only did the agency reduce the risk of penalty for a HIPAA violation, it also increased the number of video applications providers could use for telehealth visits.[6] The agency permitted use of video applications such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype, to provide telehealth.[7] However, the agency did prohibit use of public-facing video applications such as Facebook Live, Twitch, and TikTok.[8]

Relaxing telehealth regulations during the pandemic has served an important purpose. Telehealth provided access to care at a time when patients could not go see their doctor as they usually would. Relaxed regulations also provided protection to providers, who were doing their best to care for patients under stressful, unusual circumstances. There are certainly benefits of relaxed regulations, but it begs the question—at what cost?

HIPAA provides important protections of patient privacy, including restrictions around the use and disclosure of a patient’s protected health information (PHI).[9] PHI includes any information that could identify an individual, such as their name, Social Security Number, address, and a host of demographic data.[10] Although disclosure is allowed in some circumstances (e.g. to enable treatment, payment, and health care operations), HIPAA tries to limit disclosure of PHI to protect patient privacy.[11]

There are a number of concerns about patient privacy when conducting telehealth from home, including home network security and software-associated risks.[12] However, patients and health care entities should also be concerned about another patient privacy risk: a fly on the wall.

Patient appointments are typically conducted in the privacy of an exam room, where a passerby cannot overhear the conversation. The privacy of an exam rooms helps prevent impermissible disclosures of PHI. During quarantine, the typical exam room changed. Many care providers worked from home and saw patients virtually.[13] Not only were providers working from home, but so were their significant others, children, and roommates. With everyone working from home, finding a quiet spot to work is more difficult than ever. We’ve all been in Zoom calls where someone’s significant other or child inadvertently walks in on the call. Who’s to say the same isn’t happening during an appointment with your doctor? Suddenly it’s not just your doctor who knows that your overindulgence in dessert is a problem, but her husband too.

Telehealth use has drastically increased and HIPAA regulations have been relaxed, resulting in an unprecedented risk that someone will overhear your doctor’s appointment and your PHI will be disclosed. Health care entities should be mindful of this risk and institute policies to mitigate it. Providers should be given clear instructions on what constitutes a HIPAA breach, HIPAA-related concerns and suggestions while working from home, and how to report a suspected breach while working from home. There may be a fly on the wall, but health care entities can swat it.

[1] Telehealth Claim Lines Increase 4,347 Percent Nationally from March 2019 to March 2020, FAIR Health (June 2, 2020), https://www.fairhealth.org/press-release/telehealth-claim-lines-increase-4-347-percent-nationally-from-march-2019-to-march-2020

[2] HHS Issues New Report Highlighting Dramatic Trends in Medicare Beneficiary Telehealth Utilization amid COVID-19, U.S. Dep’t. Health & Human Serv. (Jul. 28, 2020), https://www.hhs.gov/about/news/2020/07/28/hhs-issues-new-report-highlighting-dramatic-trends-in-medicare-beneficiary-telehealth-utilization-amid-covid-19.html

[3] Id.

[4] Id.

[5] Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency, U.S. Dep’t. Health & Human Serv., https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html

[6] See id.

[7] Id.

[8] Id.

[9] See 45 C.F.R. § 160.103

[10] See id.

[11] See 45 C.F.R. § 164.506(c).

[12] Andrew Steger, How to Stay HIPAA Compliant from Home, HealthTech (May 22, 2020), https://healthtechmagazine.net/article/2020/05/how-stay-hipaa-compliant-home-perfcon

[13] Working from Home During COVID-19 Pandemic, Am. Med. Ass’n, https://www.ama-assn.org/system/files/2020-04/cybersecurity-work-from-home-covid-19.pdf

Image Source: https://search.creativecommons.org/photos/3a003cea-8953-423f-9169-6b3b39ae4969

Zoomin’ Into the Future

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On September 30, 2020

In Blog Posts

By Noah Holman

As we have all become far too familiar with, the world we are now living in is the world of Zoom. Thanks to the COVID-19 pandemic, Zoom has become the platform of choice for the closest simulation of in-person human connectivity that technology can offer. While there is no perfect substitute for real, live connection, the technology that drives our lives continues advancing with each passing day. One of the latest examples of this innovation is the integration of Zoom with technology we have been using for years: Snapchat filters and lenses.[1]

Because Zoom is commonly used for large group meetings or educational classrooms, there are usually too many people on any one Zoom call to all talk at once. Although Zoom does have features like the chat, raise hand, and thumbs up and wave reactions, these features can feel inefficient. Snapchat filters and lenses may very well be a solution to this, albeit certainly not without its own drawbacks.

While the filters simply put a “filter” over an image or video that alters its color, balance, brightness, etc. with no discrimination for the persons, shapes, or surroundings of that image or video,[2] the lenses actually track faces, body movements, and even surroundings such that the lenses will superimpose interactive graphics over people’s faces and surroundings.[3] The coolest and most notable feature is that these lenses react to the things they are tracking.[4] For example, certain lenses will react in a certain way when the face on screen raises its eyebrows or opens its mouth.[5] Others will react to movements of the whole body, like swinging arms.[6] And while Snapchat produces many filters and lenses of its own, the Lens Studio is what allows artists, creators, and everyday people everywhere to create their own.[7]

Through the “Snap Camera” app, Snap Inc. (inventor/owner of Snapchat) has allowed users to take these filters and lenses that were traditionally exclusive to the Snapchat app and utilize these features on platforms beyond Snapchat, such as Zoom.[8] Most people are sticking to the silly and entertaining uses of these features, like appearing on screen as a potato or a horse, but thanks to the innovation of Cameron Hunter, an engineer at Netflix, these Snapchat lenses can be used for a variety of practical purposes.[9]

Hunter utilized the Lens Studio to create a package of lenses designed for Zoom meetings.[10] This group of lenses adds comic book dialogue boxes to react to a number of different situations universally applicable to Zoom meetings, like saying “hello,” “yes” or “no,” a question, laughing, and goodbye.[11] There is even a feature that creates a “Be right back” speech bubble when the user steps out of frame.[12]

This is extremely valuable for providing instantaneous feedback, which allows for a professor or other speaker to continue talking without having to pause and allow others to talk, feel a need to constantly monitor the chat, or look for the tiny blue icons that indicate a raised hand. It also allows for those in the meeting to provide this feedback without having to unmute themselves.

If the next time you inevitably find yourself on a Zoom call, you decide you want to implement some of these features, it is relatively simple to do. First, you will need to download the Snap Camera app.[13] Next, you will need to open this app and select the filter you would like to use.[14] Once selected, open the Zoom meeting you wish to join and change the camera source Zoom will use.[15] To do this, find the video button on the bottom bar of the Zoom window, and click on the small arrow in the top right corner of that button.[16] Then, simply change the selected camera to “Snap Camera.”[17] You can change your filter at any time from the Snap Camera app, and from there, you should be good to go![18]

As for the legal implications of this, Snap, Inc. retains full ownership and control of the lenses that Hunter generated per its Snap Inc. Lens Studio Terms.[19] Not only does Snap own the lenses, but it was granted this ownership by mere virtue of Hunter using its Lens Studio software.[20] In other words, it pays no licensing fee to use the creative content that Hunter or other users like him create for Snapchat to disseminate to its millions of users.[21] Until someone challenges Snap Inc.’s severely restrictive terms agreements in court, Snap Inc. will continue profiting off of users’ creativity.

[1] See generally James Vincent, Add Comic Book Dialogue Boxes to Your Next Video Call with This Amazing Gesture-based Add-on, The Verge (Sept. 15, 2020, 11:26 AM), https://www.theverge.com/tldr/21437836/comic-book-dialogue-boxes-video-call-gesture-add-on-zoom-snap-camera-hangouts-google-meet.

[2] Cf. How to Use Photo Filters to Enhance Your Images, Canva, https://www.canva.com/learn/how-to-use-photo-filters-to-enhance-your-images/, (last visited Sep. 17, 2020).

[3] Cf. James Le, Snapchat’s Filters: How Computer Vision Recognizes Your Face, Medium (Jan. 28, 2018), https://medium.com/cracking-the-data-science-interview (scroll down through reverse chronological list of articles until you find Snapchat’s Filters: How Computer Vision Recognizes Your Face, dated Jan. 28, 2018).

[4] Cf. Id.

[5] Cf. Id.

[6] Cf. Lens Studio, Snap Inc., https://lensstudio.snapchat.com/, (last visited Sep. 17, 2020).

[7] See Id.

[8] Snap Camera, Snap Inc., https://snapcamera.snapchat.com/, (last visited Sep. 17, 2020).

[9] See Vincent, supra note 1.

[10] Id.

[11] Id.

[12] Id.

[13] Lance Whitney, How to Use Snapchat Filters on Zoom, PCMag (July 20, 2020), https://www.pcmag.com/how-to/how-to-use-snapchat-filters-on-zoom.

[14] Id.

[15] Id.

[16] See Id.

[17] Id.

[18] Id.

[19] See Snap Inc. Lens Studio Terms, Snap Inc., https://www.snap.com/en-US/terms/lens-studio-terms/, (last visited Sep. 17, 2020) (“You acknowledge and agree that Snap and our affiliates own all rights in the Lens product . . . .”).

[20] Id.

[21] Id. (“You agree that neither Snap nor our affiliates are under any obligation to pay you or any third party any consideration or compensation for the Assets or any use of the Assets.”).

Image Source: https://www.theverge.com/tldr/21437836/comic-book-dialogue-boxes-video-call-gesture-add-on-zoom-snap-camera-hangouts-google-meet

How the Coronavirus Pandemic is Exposing a Dangerous Loophole in Federal Firearm Laws

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On September 25, 2020

In Blog Posts

By: Emma Phillips

The coronavirus pandemic has brought about many significant changes in the daily lives of Americans: social distancing measures have changed the way citizens live, work, and interact; businesses and governments have experienced unprecedented strife; and social unrest has, in some ways, reached a peak.  But amid the chaos, a specific and unexpected change in Americans’ behavior has served to illuminate a major flaw in current legislation: the sharp rise in gun purchases within the United States.

March 2020 saw a dramatic increase in the attempted purchase of firearms, and the requisite background checks that accompany them; 3.7 million background checks were requested in the National Instant Criminal Background Check System (NICS), 1.1 million more than the previous year.[1]  While these background checks are being requested according to procedure, the uptick in gun purchases combined with the coronavirus pandemic has shone a spotlight on a dangerous loophole in the current digital background check system.  The Brady Handgun Violence Prevention Act, passed in 1993, mandates that those who wish to purchase a firearm must pass a background check, which are currently conducted through the FBI-run NICS interface.[2]  It also states, however, that if three days should pass without a result returned by the background check service, then the person hoping to purchase the gun should be allowed to do so anyway, and no further regard should be paid to the pending background check.[3]

Since it is conducted through an electronic server, most of the background checks conducted through NICS are returned almost immediately.  Studies have shown, however, that the FBI does often struggle to complete many background checks on time; up to three percent of background check results are delayed for three days or longer.[4]  Furthermore, up to 30% of the background checks of those who have been convicted of misdemeanor crimes of domestic violence have been shown to be delayed for over three days, thus allowing those convicted of those crimes to purchase firearms anyway.[5]  Ultimately, this loophole allows guns to fall into the hands of the criminals the law was trying to keep them from, and provides a dangerous avenue for crimes to be committed.

With the massive uptick in gun purchases due to the coronavirus pandemic, this avenue has widened.  The combination of over a million more background checks being run through NICS, and the FBI only stating that it would “allocate more resources” to the overwhelmed NICS system in July indicate that no immediate fix to this loophole is on its way.[6]  Ultimately, only new gun legislation or an updated NICS interface will serve to fix this problem, but with a raging pandemic, political tumult, and an upcoming election all in the forefront of the government’s psyche, it does not seem to be likely to place urgent emphasis on either.

[1] NICS Firearm Checks: Month/Year (Aug 31, 2020), https://www.fbi.gov/file-repository/nics_firearm_checks_-_month_year.pdf/view.

[2]  Brady Handgun Violence Prevention Act, Pub. L. No: 103-159, 107 Stat. 1536.

[3] Id.

[4] Joshua Eaton, FBI Never Completes Hundreds of Thousands of Gun Checks, Roll Call (Dec. 3, 2019, 11:54 AM), https://www.rollcall.com/2019/12/03/fbi-never-completes-hundreds-of-thousands-of-gun-checks/.

[5] Gov’t Accountability Office: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records (2016), https://www.gao.gov/assets/680/678204.pdf.

[6] Betsy Woodruff Swan, Blocked gun sales skyrocket amid coronavirus pandemic, Politico (Jul. 23, 2020, 4:30 AM), https://www.politico.com/news/2020/07/23/blocked-gun-sales-skyrocket-amid-coronavirus-pandemic-379452.

Say “I Might” to Zoom: Weddings During a Global Pandemic

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On September 21, 2020

In Blog Posts

By: Logan Childress

Social distancing, self-isolation, and travel restrictions resulting from the COVID-19 global pandemic have led to unfavorable circumstances for hopeful couples looking forward to becoming married in 2020.[1] Still, despite these unexpected interruptions, wedding bells continue to ring across the globe.[2] Earlier this year, many couples decided to postpone their weddings; but others opted out of traditional wedding venues for untraditional weddings via Zoom.[3] However, if you are considering a Zoom wedding, do not virtually say “I do” just yet. In the United States, the requirements for a legal marriage vary across the states and localities.[4] Accordingly, Zoom weddings are not legally binding in all 50 states.[5] Check before you plan!

One of the biggest obstacles to becoming legally married earlier on in the pandemic was obtaining a marriage license.[6] In the early stages of the pandemic, many local clerks’ offices across the United States shut down in response to the spread of COVID-19.[7] As a result, thousands of appointments for marriage licenses were canceled, postponed, or otherwise halted.[8] Since this a process that is typically required to be done in person, legal marriages came to a temporary stand-still.[9]

To meet the new obstacles presented by the pandemic, California, New York, and Colorado were the pioneers of Zoom weddings.[10] Not only did these states temporarily allow residents to apply for marriage licenses remotely, but also some recognized virtual ceremonies during these unprecedented times.[11] For example, in California, the Governor issued an executive order on April 30 to allow California residents to (1) obtain marriage licenses virtually, rather than in-person and (2) officially wed via video conference as long as both parties are present, and have at least one witness who can join the live video conference.[12] Similarly, in New York, the Governor issued an executive order on April 18 to allow New York residents to (1) obtain marriage licenses remotely and (2) allow clerks to perform ceremonies via video conference.[13] And, in Colorado, the Governor issued an executive order on March 26 to allow clerks to issue marriage licenses through an application by mail.[14] While these executive orders did not immediately make Zoom weddings legally binding, it gave local clerks the discretion and opportunity to develop a system through which marriage licenses could be issued and, in some cases, legally binding marriages could be performed for a limited period of time.[15]

However, in some states, changes never came, even on a temporary basis.[16] For example, in Virginia, the law required, and continues to require, that couples and their wedding officiant be physically present for the vows and the signing of the marriage license.[17] So, unless the couple was willing to invite their officiant to be physically present with them, a Zoom wedding was not a legally binding option.[18]

Thankfully, as states are beginning to reopen, obtaining a marriage license is not as big of an obstacle.[19] However, many couples remain cautious about large gatherings, if such gatherings are permitted at all.[20] And, the original executive orders issued by states like New York, Colorado, and California have since expired[21] leaving Zoom weddings in a grey area. And, “while it is possible for some marriage bureaus to make exceptions in light of current affairs, it should not be assumed that [Zoom] weddings will be considered [legally binding] across the country, and officiants and couples should be cautious.”[22]

Like many things these days, weddings have changed. Get creative, read your local laws and regulations, and start planning!

[1] See, e.g., Alyson Krueger, Weddings as a Coronavirus Super-Spreader Worry, N.Y. Times, Aug. 4, 2020, https://www.nytimes.com/2020/08/04/fashion/weddings/weddings-as-covid-super-spreaders.html.

[2] See id.

[3] Mary Meisenzahl, This Is What Getting Married Over Zoom Is Like, According to 2 Couples Who Had to Change Their Wedding Plans Due to the Coronavirus, Business Insider (Apr. 23, 2020, 12:09 PM), https://www.businessinsider.com/zoom-weddings-during-coronavirus-photos-2020-4.

[6] See, e.g., Jeong Park, Coronavirus Means No Marriage License for Lovebirds, For Now, The Orange County Register (Mar. 17, 2020, 7:14 AM), https://www.ocregister.com/2020/03/17/coronavirus-means-no-marriage-license-for-orange-county-lovebirds-for-now/ (discussing the closure of a local clerk’s office due to COVID-19); Lila Seidman, How to Get Legally Married During the Coronavirus Crisis, Los Angeles Times (May 8, 2020, 4:00 AM), https://www.latimes.com/lifestyle/story/2020-05-08/legal-marriage-during-coronavirus (discussing difficulties of receiving a marriage license in California).

[7] See id.

[8] See id.

[9] See Maggie Kreinenberg, Zoom Weddings Are Now Legal!: Start Sending Your Zoom Invites, Brides (May 1, 2020), https://www.brides.com/virtual-weddings-legal-new-york-4842735.

[10] Id.

[11] Id.

[12] Cal. Exec. Order No. 58-20 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/04/4.30.20-EO-N-58-20.pdf.

[13] N.Y. Exec. Order No. 202.20 (Apr. 18, 2020), https://www.governor.ny.gov/news/no-20220-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[14] Colo. Exec. Order No. D 2020 014 (Mar. 26, 2020), https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20014%20Marriage%20Licenses_0.pdf.

[15] See Cal. Exec. Order No. 58-20 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/04/4.30.20-EO-N-58-20.pdf (expiring 60 days after issuance); N.Y. Exec. Order No. 202.20 (Apr. 18, 2020), https://www.governor.ny.gov/news/no-20220-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency (expiring on May 18, 2020); Colo. Exec. Order No. D 2020 014 (Mar. 26, 2020), https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20014%20Marriage%20Licenses_0.pdf (expiring 30 days after issuance); see also Lila Seidman, How to Get Legally Married During the Coronavirus Crisis, Los Angeles Times (May 8, 2020, 4:00 AM), https://www.latimes.com/lifestyle/story/2020-05-08/legal-marriage-during-coronavirus (acknowledging executive order does not instantly make Zoom weddings legally binding).

[16] See, e.g., Marriage Requirements, Virginia Department of Health, https://www.vdh.virginia.gov/vital-records/marriage-requirements/ (last visited Sept. 10, 2020) (no changes); About Wedding Laws in Virginia, American Marriage Ministries, https://theamm.org/marriage-laws/virginia (last visited Sept. 10, 2020) (highlighting Virginia never made exemptions, temporary or binding, for Zoom weddings during the pandemic).

[17] Id.

[18] See id.

[19] See Rachel Treisman, West: Corona-Related Restrictions by State, National Public Radio (Sept. 3, 2020, 3:30 PM), https://www.npr.org/2020/05/01/847416108/west-coronavirus-related-restrictions-by-state (listing clerks offices are reopened).

[20] Considerations for Events & Gatherings, Centers for Disease Control and Prevention (July 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-gatherings.html; see also Dena Bunis, List of Coronavirus-Related Restrictions in Every State, American Association of Retired Persons (Sept. 10, 2020), https://www.aarp.org/politics-society/government-elections/info-2020/coronavirus-state-restrictions.html (highlighting restrictions on public gatherings).

[21] Cal. Exec. Order No. 58-20 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/04/4.30.20-EO-N-58-20.pdf (expiring 60 days after issuance); N.Y. Exec. Order No. 202.20 (Apr. 18, 2020), https://www.governor.ny.gov/news/no-20220-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency (expiring on May 18, 2020); Colo. Exec. Order No. D 2020 014 (Mar. 26, 2020), https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20014%20Marriage%20Licenses_0.pdf (expiring 30 days after issuance).

[22] Can I Officiate a Skype Wedding?, American Marriage Ministries (Mar. 20, 2020), https://theamm.org/articles/268-can-i-officiate-a-skype-wedding.

Image Source: https://www.flickr.com/photos/23408922@N07/5592082610

How the Return of Sports Could Help Pull Off a Major Comeback Against COVID-19

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On September 17, 2020

In Blog Posts

By: Noah Holman

We, as a country, have yearned for many relics of normalcy throughout the uncertain times that the COVID-19 pandemic has created. Sports are one of those relics. After months of cries for their return, they are here at last. And they have not disappointed, providing value far beyond mere entertainment. While sports’ potential as a catalyst for positive change is perhaps more well-known, or at least more accepted, now than ever before, it may nevertheless remain understated.

Colin Kaepernick kneeling for the national anthem in 2016 cemented his legacy as the martyr for athletes speaking out about racial inequality.[1] If Kaepernick is the martyr, Lebron James is the torchbearer. Never quiet to speak out about social and political issues, Lebron has spearheaded the NBA’s ongoing “More Than a Vote” campaign with the lofty goal of eradicating voter suppression.[2] While all of these racial inequality and social reform initiatives have garnered much publicity in recent weeks, and deservedly so, there has been noticeably less attention on the potential sports have to advance medical research and improve the effectiveness of COVID-19 protocols.[3]

When I speak of sports in such optimistic light, I am largely referring to the National Basketball Association (NBA) and the National Hockey League (NHL) to a lesser extent. While both the NBA, going on five weeks of no new cases of COVID,[4] and the NHL have been incredibly successful, Major League Baseball (MLB) has quite a conflicting track record.[5] Ultimately, though, the NBA has shown us the potential of sports at their height.

Professional sports aid in our collective response to the COVID-19 pandemic by funding research.[6] Specifically, the NBA funded new saliva test research at Yale.[7] It should come as no surprise that professional sports leagues are committing their resources, as much as half a million dollars in the aforementioned case,[8] to fund such research given not only their vast capital resources but also their economic interest in insuring their players and personnel take the most effective precautions. In addition, live sporting events are a significant source of revenue for the leagues, so they want to return to having full stadiums as quickly as possible. However cynical you may be of their motives, that major sports leagues are helping to fund research relating to COVID-19 is good for all.

In addition to funding research, much new technology is being tested in the NBA’s famous “bubble.”[9] Perhaps most well-known is the Oura rings, which monitor users’ temperature, heartrate, and other biometric data.[10] Players are also using logging their daily vitals on an app, using Bluetooth thermometers, and smart pulse oximeter devices.[11] The NBA, along with the host of its bubble, Disney, has repurposed the “Disney Magic” bands that guests at its amusement parks would typically wear to track the whereabouts of the players and personnel in the bubble.[12] Although it is difficult to say any one of these particular measures is cause for the NBA’s success in returning to play without an outbreak of the virus, all of them together seem to be effective.

Even despite the NBA bubble’s success, it is not a perfect case study. Although the NBA allegedly ordered 2,000 of them, apparently only around 25% of players and personnel are wearing the Oura rings, which is optional under the NBA’s policy.[13] Similar to wearing masks and the COVIDWISE contact tracing app that Virginia rolled out not long ago,[14] the technology that these rings provide is only effective if the overwhelming majority of the population under study is wearing them.[15] Thus, their actual effectiveness is far from proven.[16]

All that being said, the return of sports should be celebrated for many reasons beyond giving us something to watch other than the “gay, gun-toting cowboy with a mullet” that captured America by storm in the beginning of quarantine.[17] Sports are directly funding the medical research needed to save hundreds of thousands of lives, and indirectly stimulating the economy that needs to be revitalized to save the livelihoods of just as many others.[18] We can only hope that we have reached the fourth quarter of this physically and mentally tolling quarantine, but no matter what: sports will not give up until they hear the final whistle. And they will win, along with all of us.

[1] See Tadd Haislop, Colin Kaepernick Kneeling Timeline: How Protests During the National Anthem Started a Movement in the NFL, Sporting News (June 9, 2020), https://www.sportingnews.com/us/nfl/news/colin-kaepernick-kneeling-protests-timeline/xktu6ka4diva1s5jxaylrcsse.

[2] Cf. Emmanuel Morgan, More Than a Vote is More Than a Statement for Lebron James and Other Athletes, L.A. Times (July 30, 2020), https://www.latimes.com/sports/story/2020-07-30/more-than-a-vote-lebron-james.

[3] E.g., Kevin Stankiewicz, NFL’s Goodell: “We’re Going to Stand Behind Our Players” Against Any Backlash Over Protests, CNBC (Sep. 2, 2020, 1:29 PM), https://www.cnbc.com/2020/09/02/nfls-roger-goodell-on-backlash-to-player-protests-over-racial-justice.html.

[4] Lisa Eadicicco, The NBA Bubble Has Rolled Out Some Wild Technology to Help Keep Players, Coaches, and Staff COVID-free — Including a $300 Smart Ring that Can Monitor Biometric Data, Business Insider (Aug. 26, 2020, 2:04 PM), https://www.businessinsider.com/nba-bubble-oura-smart-ring-used-by-quarter-of-campus-2020-8.

[5] Nick Lichtenberg, The NBA and MLB Show Opposite Reopening Strategies — and One of Them is Already Striking Out. Here’s What Businesses and Schools Can Learn from the Great Pro Sports Reboot, Business Insider: Newstex Blog (July 29, 2020), https://www.businessinsider.com/nba-mlb-reopening-lessons-for-businesses-schools-coronavirus-2020-7; Markham Heid, NBA Bubble – How Does It Work? Science Behind the NBA Bubble, Popular Mechanics (Aug. 25, 2020), https://www.popularmechanics.com/science/health/a33796756/nba-bubble/.

[6] See infra note 7.

[7] Chris Hine, COVID Saliva Test Gets Big Boost from Wolves, NBA, StarTribune (Aug. 25, 2020), https://www.startribune.com/timberwolves-doctor-playing-key-role-in-covid-fighting-saliva-test/572208252/?refresh=true.

[8] Id.

[9] Eadicicco, supra note 4.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Geoffrey A. Fowler, I Downloaded America’s First Coronavirus Exposure App. You Should Too., Wash. Post. (Aug. 18, 2020), https://www.washingtonpost.com/technology/2020/08/17/coronavirus-exposure-notification-app/.

[15] Cf. Eadicicco, supra note 4.

[16] Id.

[17] See generally Taylor Borden, One Murder-for-Hire Plot, 5 Husbands, and 176 Tigers: Meet Joe Exotic, the Man Nicholas Cage Will Play in an Upcoming TV Series, Business Insider (May 4, 2020), https://www.businessinsider.com/who-is-joe-exotic-maldonado-passage-tiger-king-netflix.

[18] See generally Hine supra note 7.

Image Source: https://www.vanityfair.com/news/2020/07/inside-the-nbas-covid-free-bubble

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

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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.

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