December 2016

Did the Warriors Commit a Flagrant Privacy Foul?

December 21, 2016
Constitutional Law, First Amendment, Litigation, Privacy

Paul Gaus, MJLST Staffer

Fans of the National Basketball Association (NBA) know the Golden State Warriors for the team’s offensive exploits on the hardwood. The Warriors boast the NBA’s top offense at nearly 120 points per game. However, earlier this year, events in a different type of court prompted the Warriors to play some defense. On August 29, 2016, a class action suit filed in the Northern District of California alleged the Warriors, along with co-defendants Sonic Notify Inc. and Yinzcam, Inc., violated the Electronic Communications Privacy Act (18 U.S.C. §§ 2510, et. seq.).

Satchell v. Sonic Notify, Inc. et al, focuses on the team’s mobile app. The Warriors partnered with the two other co-defendants to create an app based on beacon technology. The problem, as put forth in the complaint, is that the beacon technology the co-defendants employed mined the plaintiff’s microphone embedded in the smartphone to listen for nearby beacons. The complaint alleges this enabled the Warriors to access the plaintiff’s conversation without her consent.

The use of beacon technology is heralded in the business world as a revolutionary mechanism to connect consumers to the products they seek. Retailers, major sports organizations, and airlines regularly use beacons to connect with consumers. However, traditional beacon technology is based on Bluetooth. According to the InfoSec Institute, mobile apps send out signals and gather data on the basis of Bluetooth signals received. This enables targeted advertising on smartphones.

However, the complaint in Satchell maintains the defendants relied on a different kind of beacon technology: audio beacon technology. In contrast to Bluetooth beacon technology, audio beacon technology relies on sounds. For functionality, audio beacons must continuously listen for audio signals through the smartphone user’s microphone. Therefore, the Warriors app permitted the co-defendants to listen to the plaintiff’s private conversations on her smartphone – violating the plaintiff’s reasonable expectation of privacy.

While the Warriors continue to rack up wins on the court, Satchell has yet to tip off. As of December 5, 2016, the matter remains in the summary judgment phase.

The GIF That Keeps on Giving: The Problem of Dealing with Incidental Findings in Genetic Research.

December 10, 2016
Biotechnology, Ethics, Healthcare, Privacy

Angela Fralish, MJLST Invited Blogger

The ability to sequence a whole genome invites a tremendous opportunity to improve medical care in modern society. We are now able to prepare for, and may soon circumvent, genes carrying traits such as Alzheimer’s, breast cancer and embryonic abnormalities. These advancements hold great promise as well as suggest many new ways of looking at relationships in human subject research.

A 2008 National Institute of Health article, The Law of Incidental Findings in Human Subjects Research, discussed how modern technology has outpaced the capacity of human subject researchers to receive and interpret data responsibly. Disclosure of incidental findings, “data [results] gleaned from medical procedures or laboratory tests that were beyond the aims or goals of the particular laboratory test or medical procedure” is particularly challenging with new genetic testing. Non-paternity for example, which has been found in up to 30% of participants in some studies, result in researchers deciding how to tell participants that they are not biologically related to their parent or child. This finding could not only impact inheritance, custody and adoptions rights, but can also cause lifelong emotional harm. Modern researchers must be equipped to handle many new psychosocial and emotional variables. So where should a researcher look to determine the proper way to manage these “incidentalomas”?

Perspectives, expectations, and interests dictating policies governing incidental finding management are diverse and inconsistent. Some researchers advocate for an absolute ban on all findings of non-paternity because of the potential harm. Others argue that not revealing misattributed paternity result in a lifetime of living with inaccurate family health history. These scenarios can be difficult for all involved parties.

Legal responsibility of disclosure was indirectly addressed in Ande v.Rock in 2001 when the court held that parents did not have property rights to research results which identified spina bifida in their child. In 2016, an incidental finding of genetic mutation led a family to Mayo Clinic for a second opinion on a genetic incidental finding. The family was initially told that a gene mutation related to sudden cardiac death caused their 13-year-old son to die in his sleep, and the gene mutation was also identified in 20 family members. Mayo Clinic revealed the gene was misdiagnosed, but the decedent’s brother already had a defibrillator implanted and received two inappropriate shocks to his otherwise normal and healthy heart. Establishing guidance for the scope and limits of disclosure of incidental findings is a complex process.

Under 45 C.F.R. §§ 46.111 and 46.116, also known as the Common Rule, researchers in all human subject research must discuss any risks or benefits to participants during informed consent. However, there is debate over classification of incidental findings as a risk or benefit because liability can attach. Certainly the parents in Ande v. Rock would have viewed the researchers’ decision not to disclose positive test results for spina bifida as a risk or benefit that should have been discussed at the onset of their four-year involvement. On the other hand, as in the Mayo Clinic example above, is a misdiagnosed cardiac gene mutation a benefit or risk? The answers to these question is very subjective.

The Presidential Commission for the Study of Bioethical Issues has suggested 17 ethical guidelines which include discussing risks and benefits of incidental finding disclosures with research participants. The Commission’s principles are the only guidelines currently addressing incidental findings. There is a desperate need for solid legal guidance when disclosing incidental findings. It is not an easy task, but the law needs to quickly firm-up a foundation for appropriate disclosure in incidental findings.

Digital tracking: Same concept, Different Era

December 9, 2016
Internet, Privacy

Meibo Chen, MJLST Staffer

The term “paper trail” continues to become more anachronistic in today’s world as time goes on. While there are some people who still prefer the traditional old-fashioned pen and paper, our modern world has endowed us with technologies like computers and smartphones. Whether we like it or not, this digital explosion is slowly consuming and taking over the lives of the average American (73% of US adults own a desktop or laptop computer, and 68% own a smartphone).

These new technologies have forced us to re-consider many novel legal issues that arose from their integration into our daily lives. Recent Supreme Court decisions such as Riley v. California in 2014 pointed out the immense data storage capacity of a modern cell phone, and requires a warrant for its search in the context of a criminal prosecution. In the civil context, many consumers are concerned with internet tracking. Indeed, the MJLST published an article in 2012 addressing this issue.

We have grown so accustomed to seeing “suggestions” that eerily match our respective interests. In fact, internet tracking technology has become far more sophisticated than the traditional cookies, and can now utilizes “fingerprinting” technology to look at battery status or window size to identify a user’s presence or interest. This leads many to fear for their data privacy in similar digital settings. However, isn’t this digital tracking just the modern adaptation to “physical” tracking that we have grown so accustomed to?

When we physically go to a grocery store, don’t we subject ourselves to the prying eyes of those around us? Why should it be any different in a cyberspace context? While seemingly scary accurate at times, “suggestions” or “recommended pages” based on one’s browsing history can actually be beneficial to both the tracked and the tracker. The tracked gets more personalized search results while the tracker uses that information for better business results between him and the consumer. Many browsers already sport the “incognito” function to disable the tracks, bring a balance to when consumers want their privacy. Of course, this tracking technology can be misused, but malicious use of a beneficial technology has always been there in our world.

Recent Ninth Circuit Ruling an Important One for State and Local Governments Seeking to Regulate Genetically Modified Plants

December 4, 2016
Biotechnology, Food and Agriculture, New Technology, Public Health

Jody Ferris, Note & Comment Editor

Genetically modified plants (GMOs) are and have always been a hot topic in agriculture and food policy. Since they were first developed, groups have been lobbying at various levels of government to impose regulations on how they are grown or to have them banned outright. A noteworthy decision has come down for those following legal challenges to GMO regulation. In Alika Atay et al. v. County of Maui et al., the Ninth Circuit court in Hawaii has ruled that state and local governments may regulate the production of GMOs in their jurisdictions.

The original suit was filed by GMO proponents after the County of Maui enacted a ban on genetically modified crops. The court held that federal regulation of GMOs does not preempt state and local regulation after the variety is commercialized. This means that the United States Department of Agriculture holds jurisdiction over all GMO varieties prior to commercialization, which is the period during development and testing before the variety is sold on the market. According to the Ninth Circuit, after the variety is commercialized, however, state and local governments are free to enact regulations, including outright bans of GMO production, without the need to worry about federal preemption.

Interestingly, the county regulations in Hawaii that were at issue in the suit were nonetheless stricken down by the court because the State of Hawaii already has a comprehensive regulatory scheme which the court held to preempt county GMO regulations. This outcome disappointed local environmental and anti-GMO groups due to their support of the new county level GMO restrictions. However, the decision will help clarify the respective regulatory responsibilities between individual counties and the State of Hawaii. Despite the disappointment of these groups, the decision that there is no federal preemption on regulation of commercialized GMO varieties is an important one for many of the states in the Ninth Circuit, as there are counties in Washington and California, for example, which have also enacted bans on GMO production.

This decision will likely be an encouraging one for states wishing to enact their own regulations for how GMO varieties are grown and handled. It is also encouraging for individual counties who wish to enact GMO bans or county level regulations, should state level regulations not be preemptive. It will certainly be interesting to follow how state and local governments structure any future regulatory activities in light of this ruling.

Faux News vs. Freedom of Speech?

December 2, 2016
Constitutional Law, Internet, Social Media

Tyler Hartney, MJLST Staffer

This election season has produced a lot of jokes on social media. Some of the jokes are funny and other jokes lack an obvious punch line. Multiple outlets are now reporting that this fake news may’ve influenced voters in the 2016 presidential election. Both Facebook and Google have made conscious efforts to reduce the appearance of these fake news stories on their sites in attempt to reduce the click bait, and thus the revenue streams, of these faux news outlets. With the expansion of the use of technology and social media, these types of stories become of a relevant circulation to possibly warrant misinformation being spread on a massive level. Is this like screaming “fire” in a crowded theatre? How biased would filtering this speech become? Facebook was blown to shreds by the media when it was found to have suppressed conservative news outlets, but as a private business it had every right to do so. Experts are now saying that the Russian government made efforts to help spread this fake news to help Donald Trump win the presidency.

First, the only entity that cannot place limits on speech is the state. If Facebook or Google chose to filter the news broadcasted on each site, users still do not have a claim against the entity; this would be a considered a private business choice. These faux news outlets circulate stories that have appeared to be, at times, intentionally and willfully misleading. Is this similar to a man shouting “fire” in a crowded theatre? In essence, the man in the aforementioned commonly used hypothetical knows that his statement is false and that it has a high probability of inciting panic, but the general public will not be aware of the validity of his statement and will have no time to check. The second part of that statement is key. The general public would not hypothetically have time to check the validity of the statement. If government were to begin passing regulations and cracking down on the circulation and creation of these hoax news stories, it would have to prove that these stories create a “clear and present danger” that will bring significant troubles that Congress has the right to protect the public from. This standard was created in the Supreme Court’s decision in Schenck v. United States. The government will not likely be capable of banning these types of faux news stories because, while some may consider these stories dangerous, the audience has the capability of validating the content from these untrusted sources.

Even contemplating government action under this circumstance would require the state to walk a fine line with freedom of political expression. What is humorous and what is dangerously misleading? For example, The Onion posted an article entitled “Biden Forges Presidents Signature Executive Order 54723,” clearly this is a joke; however, it holds the potential ability to insight fury from those who might believe it and create a misinformed public that might use this as material information when casting a ballot. This Onion article is not notably different from another post entitled “FBI AGENT SUSPECTED IN HILLARY EMAIL LEAKS FOUND DEAD IN APPARENT MURDER-SUICIDE” published by the Denver Guardian. With the same potential to mislead the public, there wouldn’t really be any identifiable differences between the two stories. This area of gray would make it extremely difficult to methodically stop the production of fake news while ensuring the protection of the comedic parody news. The only way to protect the public from the dangers of these stories that are apparently being pushed on to the American voting public by the Russian government in an attempt to influence election outcomes is to educate the public on how to verify online accounts.

The Best Process for the Best Evidence

December 2, 2016
Internet, Social Media, Uncategorized

Mary Riverso, MJLST Staffer

Social networking sites are now an integral part of American society. Almost everyone and everything has a profile, typically on multiple platforms. And people like to use them. Companies like having direct contact with their customers, media outlets like having access to viewer opinions, and people like to document their personal lives.

However, as the use of social-networking continues to increase in scope, the information placed in the public sphere is playing an increasingly centralized role in investigations and litigation. Many police departments conduct regular surveillance of public social media posts in their communities because these sites have become conduits for crimes and other wrongful behavior. As a result, litigants increasingly seek to offer records of statements made on social media sites as evidence. So how exactly can content from social media be used as evidence? Ira Robbins explores this issue in her article Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence. The main hurdle is one of reliability. In order to be admitted as evidence, the source of information must be authentic so that a fact-finder may rely on the source and ultimately its content as trustworthy and accurate. However, social media sites are particularly susceptible to forgery, hacking, and alterations. Without a confession, it is often difficult to determine who is the actual author responsible for posting the content.

Courts grapple with this issue – some allow social media evidence only when the record establishes distinctive characteristics of the particular website under Federal Rule of Evidence 901(b)(4), other courts believe authentication is a relatively low bar and as long as the witness testifies to the process by which the record was obtained, then it is ultimately for the jury to determine the credibility of the content. But is that fair? If evidence is supposed to assist the fact-finder in “ascertaining the truth and securing a just determination,” should it not be of utmost importance to determine the author of the content? Is not a main purpose of authentication to attribute the content to the proper author? Social media records may well be the best evidence against a defendant, but without an authorship-centric approach, the current path to their admissibility may not yet be the best process.

A Slow Government’s Response to High-Frequency Trading

December 1, 2016
Regulatory

Nolan Hudalla, MJLST Staffer

High-frequency trading (HFT) is the use of enhanced technological speed to gain an edge in trading financial instruments. This edge over other investors is often only 1/100^th of the blink of an eye, but can provide a company with years of unwavering success. Although HFT became significant within the past decade because of its positive economic advantages, the recent discussion of HFT is becoming increasingly negative. A major reason for this shift in opinion about HFT is due to the increased awareness of unethical trading practices after the 2008 financial crisis.

MJLST published an article last year on the ethics of HFT. In that article, The Law and Ethics of High-Frequency Trading, Steven McNamara advanced various reasons why certain HFT practices violate both business ethics and federal agency regulations. But where do Congress and the SEC stand, and what have they done to correct such unethical practices in HFT?

It appears that the federal government is taking a middling approach to fighting unethical HFT practices. In particular, the SEC has not taken a hard stance on many HFT issues, and Congress has followed suit by not passing any bills in 2016 to fight HFT. However, it is also evident that the SEC and Congress are troubled by ongoing bad practices and are aware of the risk of future violations. Specifically, Congress has introduced several bills “imposing a tax on a broad array of financial transactions that could impact HFT . . . [and] also held hearings in the 114th Congress touching on HFT issues as part of its oversight of the SEC and CFTC.” In addition, the SEC has increased enforcement on serious HFT ethics violations. The agency also approved a new public stock exchange in June with a “speed bump” capable of deterring some HFT activity.

December 2016

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