New Technology

Virtual Reality in Education & the ADA: More Accessibility or Less Accessibility?

February 4, 2019
Education, New Technology

Yvie Yao, MJLST Staffer 

Imagine that students no longer need to go to a lab to have a lab experience or go to France to visit the Eiffel Tower. Though sounding impossible, edtech companies that integrate virtual reality (“VR”) technology into the classroom learning experience have enabled these activities.

Copenhagen-based company, Labster, plans to use VR to create virtual labs that will allow students to perform experiments and hone their skills in a risk-free environment. U.S.-based companies, like Nearpod and Alchemy Learning, can take students on virtual field trips to learn about everything from the Amazon rainforest to ancient Roman ruins.

While kids love VR technologies, edtech companies ought to be careful about creating content or products within legal boundaries. After edX’s settlement with the U.S. Department of Justice (“DOJ”), edtech companies may face increased scrutiny under the Americans with Disabilities Act (“ADA”). DOJ claimed that edX’s website, as well as the open online courses offered on its platform, were not fully accessible to individuals with disabilities, thus violating the ADA.

“Massive open online courses have the potential to increase access to high-quality education for people facing income, distance, and other barriers, but only if they are truly open to everyone” said Acting Assistant Attorney General Gupta.

The same can be said for VR applications in education. Courses with the aid of VR technology provide access to high-quality education for students facing different barriers. Yet, the technology itself is less accessible to individuals who are blind or have low vision, who are deaf or hard of hearing.

Title III of the ADA prohibits discrimination on the basis of disability by public accomodations, which include places of education and requires these places to take necessary steps to ensure individuals with disabilities are not treated differently. In the edX settlement, DOJ appeared to interpret edX itself as a place of education within the ADA’s definition of public accommodation. This has two implications. First, purely online educational entities without any physical location qualify as places of education. Second, other web-based education-related service providers might fit the definition of a place of education.

With the law in mind, edtech companies providing online learning content using VR that integrate the content into school curriculums, should be aware of the implications of the ADA and take necessary steps to provide auxiliary aids and services sufficient to enable disabled students to fully participate in the technology.

Who Gets to Speak for Earth? Thoughts on the Anniversary of the Arecibo Message

November 15, 2018
International Law, New Technology, Space Law

Will Dooling, MJLST Staffer

November 16th marks the 43rd anniversary of the Arecibo message, an attempt to broadcast a powerful radio signal from the Arecibo Radio Telescope in Puerto Rico to the heart of the Messier 13 galaxy, more than 25,000 light years away. The Arecibo message was largely ceremonial, or experimental, no one seriously expects to hear back. However, the experiment posed interesting questions about how, exactly, humans ought to go about broadcasting messages to extraterrestrials, and who gets to speak for humanity.

If these questions seem far-fetched, that is only because we, as a society, have grown less ambitious in our hopes for space exploration. In the heady days of the early space race, these questions were seriously considered by NASA and the UN. The Arecibo Message was not a lone experiment: both the Pioneer and Voyager space probes, launched at about the same time as the Arecibo message, carried plaques designed to be easily deciphered by whoever, or whatever, would happen upon them in the future. Four decades later, well into the 21st century, we have the first signs of a robust private space industry and serious proposals in place for mining asteroids and lunar tourism but we still have not resolved the questions posed by the Arecibo Message. Who gets to speak for humanity? Should we even be broadcasting right now?

Currently, several large-scale projects are in place with the primary purpose of locating extraterrestrial life in solar systems beyond our own. By far the most ambitious are the continuing efforts of the SETI (Search for Extraterrestrial Intelligence) Institute. SETI is a United States nonprofit organization funded almost entirely by private charitable donations. Some of its largest donors include tech giants William Hewlitt, David Packard, and Paul Allen. SETI largely devotes its time to hunting for radio signals using telescope arrays all over the world. SETI uses this approach because it is relatively easy to hunt for unusual radio signals. A few nations have tried more direct attempts: NASA’s space-based Kepler telescope, and a related French mission called COROT, both launched in part to analyze the chemical composition of planets in nearby solar systems, to see if they could detect chemical compounds that could only form on planets with complex biospheres. FAST (the Five-hundred-meter Aperture Spherical Telescope), completed in 2016, is the largest conventional radio receiver on earth, it was built by China in part to hunt for extraterrestrial radio sources in a manner similar to the US’s SETI.

All these are attempts to locate extraterrestrial life. What should we do if we find any, and should we be sending any more messages in the meantime? The past few years have seen a renewed interest in actively contacting extraterrestrials via Arecibo-like radio broadcasts. (See for example 2017’s Tromsø broadcast from a radio observatory in Norway to the nearby red dwarf star GJ 273). There have even been proposed commercial broadcasts where customers could pay for the novel experience of having personal messages broadcast into space. This increased interest in broadcasting has provoked some controversy: In 2016, a group of prominent “futurists” including astronomer Lucianne Walkowicz and Tesla CEO Elon Musk signed and circulated a letter objecting to any active attempts to contact extraterrestrial life. The letter expressed concern that the content of any deliberate communications should result from international consensus not “a decision based upon the wishes of a few individuals with access to powerful communications equipment.” The letter called for “vigorous international debate by a broadly representative body prior to engaging further in this activity.” It opened with an even more dire observation: “We know nothing of ETI’s [Extraterrestrial Intelligence’s] intentions and capabilities, and it is impossible to predict whether ETI will be benign or hostile.”

Ultimately, active communication with extraterrestrial life is an issue rather like the militarization of space and climate change. It is an international problem that requires international regulatory solutions. Individual actors have little incentive to self-regulate: the presence of any single unregulated actor makes the regulation ineffective. Neither the United Nations Committee on the Peaceful Uses of Outer Space nor the United Nations Office for Outer Space Affairs has taken a position on attempts to broadcast to extraterrestrial civilizations, though they could,and perhaps they should.

It is possible this is not an issue worth considering. It is possible that we are alone in the universe and there is nothing out there to hear us, through this would raise troubling questions of its own. It would mean humanity was a freak exception in an otherwise empty universe. It would mean that every other planet, around every other star, was completely devoid of life. It would be, in a word, weird. The alternative, only slightly less weird, is that something out there has the potential to hear us someday.  In the meantime, perhaps we should engage in “vigorous international debate” on this issue while it is still merely speculative.

Lime and Bird Have Tough Legal Challenges Ahead

September 26, 2018
Internet, New Technology, Public Safety

Nick Hankins, MJLST Staffer 

The hottest trend in on-demand transportation is the emergence of electric scooters. Two of the biggest suppliers of on demand scooters, Lime and Bird, have invaded cities across the country. Scooters are a quick, easy, and cheap way to travel short distances; riders can simply find a scooter, sign into the app, and go. They also have the added benefit of servicing gaps within a city’s public transportation system. Despite the benefits that these companies can bring to a community, Lime and Bird have significant legal hurdles to overcome.

Problematically for cities, pedestrians, and probably the scooter companies, is that unlike bike sharing platforms, once a rider is done with a scooter it is simply left discarded. Both Lime and Bird encourage their users to park their scooters close to the curb, away from walkways, driveways, ramps, and fire hydrants. However, in practice, scooters tend to be left strewn across the middle of sidewalks and other undesirable places. Aside from being a public nuisance, unaware pedestrians have been injured after tripping over misplaced scooters.

These features have caused a big headache for cities especially since companies like Bird and Lime generally install their scooters in cities without seeking prior approval. However, the do-first-and-ask-forgiveness-later approach has begun to haunt companies that attempt to cut cities entirely out of the process. For example after Milwaukee tried to ban Bird’s scooters (and Bird’s subsequent refusal to remove its scooters), Milwaukee moved to seek a temporary injunction to immediately have the scooters removed. Additionally, after failing to secure the proper business licensure and vendor permitting, Bird had to settle a dispute with the City of Santa Monica  for $300,000 and an agreement to run a weeklong public safety campaign on public buses. Other cities like Saint Paul, San Francisco, and Indianapolis required scooter companies to temporarily remove their scooters until regulations could be firmly decided upon.

Aside from legal complications stemming from municipal regulation, scooter companies may soon have to defend their products in court. As the electric scooter craze is gaining traction, riders are increasingly ending up in the emergency room in horrific scooter-related accidents. The types of injuries involved in these accidents are varied. Some accidents have to do with the laissez-faire storage practice as pedestrians trip over discarded scooters. Other injuries involve user error. In one case, for example, a rider crashed into a 2 year-old  who was walking out onto a sidewalk. Likely the most problematic injuries for scooter companies, involve technical malfunctions (especially those involving the breaks). Accordingly, it’s unsurprising that personal injury lawyers are beginning to chase scooters in hopes of getting their next big payday.

In short, Lime and Bird offer a unique solution for people who need to travel short distances. However, both companies will soon have to figure out ways to work with cities and how to avoid tort exposure.

As an aside, both companies will also have to deal with whatever fall-out comes from having teens charge their scooters.

Counterfeit Products: A Growing Issue for Online Retailers

September 26, 2018
Intellectual Property, Internet, New Technology

Caleb Holtz, MJLST Staffer

Two years ago, my girlfriend gave me an Amazon receipt showing she had ordered a really cool jersey from the German national soccer team. I was very excited. Not only had my girlfriend purchased for me a great jersey, but she had also found a reputable, accessible retailer for buying soccer jerseys in the United States. My excitement soon faded however. The jersey was delayed and delayed, and eventually Amazon cancelled the order and issued a refund. It turned out the jersey was sold by a popular counterfeiter hosting products on Amazon’s site through Amazon’s popular “Fulfilled by Amazon” program. Unaware that this existed prior to this experience, my girlfriend had been lured into a false sense of security that she was purchasing something from the world’s largest retailer, rather than from an obscure counterfeiter.

As it turns out, we were far from the only consumers to fall prey to counterfeit goods being sold on Amazon. Per a recent Engadget article discussing the issue, “the Counterfeit Report, an advocacy group that works with brands to detect fake goods, has found around 58,000 counterfeit products on Amazon since May 2016.” Amazon, recognizing that customers are more likely to trust counterfeits sold on its website, set a goal in 2017 to fight counterfeits.

Amazon is hardly the only retailer dealing with counterfeiting issues. The International Trademark Association said that trade in pirated and counterfeited intellectual property accounted for $461 billion in 2013. The Chinese retail giant Alibaba was at one point put on a U.S. anti-counterfeiting blacklist because of the large quantities of counterfeit goods sold on its website. Ebay, Walmart, Sears, and Newegg have also faced allegations of hosting counterfeited products. Importantly, however, for each of the retailers, there are few legal repercussions for merely hosting counterfeit goods. With the exception of a 2008 case against eBay, the aforementioned retailers have largely avoided being found liable for the counterfeit products they aided in selling.

Amazon provides the best blueprint for avoiding liability. Amazon has avoided liability by arguing that while it may host sellers, it is not a seller itself. Fortunately for Amazon, the Federal Circuit agrees that it is not a seller of the counterfeit goods, and therefore cannot be liable for copyright infringement, even if Amazon stored and shipped the products from its own warehouses. Milo & Gabby LLC v. Amazon.com, Inc., 693 Fed.Appx. 879 (Fed. Cir. 2017). As it is merely a marketplace, Amazon can continue avoiding liability so long as it appropriately responds to complaints of intellectual property infringement.

It will be interesting to see how the parties involved handle this counterfeiting issue going forward, especially as the government anticipates counterfeiting business to continue to grow. Online retailers are taking proactive steps to limit the sale of counterfeits on their websites, although those have been far from effective. Some have suggested artificial intelligence holds the key to solving this problem. Wronged intellectual property owners have not given up on forcing a remedy through the judicial system, as can be seen by the lawsuit filed by Daimler against Amazon recently. Finally, some, such as the judge in the Milo & Gabby case, see a legislative approach such as closing the marketplace loophole that allows online retailers to skate by relatively untouched. Unfortunately for consumers, it does not appear like there is an imminent solution to this problem, so it is best to be aware of how to avoid accidentally purchasing a counterfeit.

And Then AI Came For The Lawyers…?

April 3, 2018
Artificial Intelligence, Economy, New Technology

Matt McCord, MJLST Staffer

 

Artificial intelligence’s possibility to make many roles redundant has generated no small amount of policy and legal discussion and analysis. Any number of commentators have speculated on AI’s capacity to transform the economy far more substantially than the automation boom of the last half-century; one discussion on ABC’s Q&A described the difference in today’s technology development trends as being “alinear” as opposed to predictable, like the car, a carriage with an engine, supplanting a carriage drawn by a horse.

Technological development has largely helped to streamline law practice and drive new sources of business and avenues for marketing. Yet, AI may be coming for lawyers’ jobs next. A New Zealand firm is working to develop AI augmentation for legal services. The firm, MinterEllisonRuddWatts, looks to be in the early stages of developing this system, having entered into a joint venture agreement to work on development pathways.

The firm claims that the AI would work to reduce the more mundane analytic tasks from lawyers’ workloads, such as contract analysis and document review, but would only result in the labor force having to “reduce,” not be “eliminated.” Yet, the development of law-competent AI may result in massive levels of workforce reduction and transformation: Mills & Reeve’s Paul Knight believes that the adoption will shutter many firms and vastly shrink the need for, in particular, junior lawyers.

Knight couches this prediction in sweetening language, stating that the tasks remaining for lawyers would be “more interesting,” leading to a more efficient, more fulfilled profession engaging in new specialties and roles. Adopting AI on the firm level has clear benefits for firms looking to maximize profit per employee: current-form AI, according to one study, AI is more accurate than many human attorneys in spotting contract issues, and vastly more efficient, completing a 90-minute task in 30 seconds.

Knight, like many AI promoters, claims that the profession, and society at large, should embrace AI’s role in transforming professions by transfiguring labor force requirements, believing AI’s benefits of increasing efficiency and work fulfillment by reducing human interaction with more mundane tasks. These words will likely do little to assuage the nerves of younger, prospective market entrants and attorney specializing in these “more mundane” areas, who may be wondering if AI’s development may eliminate their role from the labor force.

While AI’s mass deployment in the law is currently limited, due in part to high costs, experimental technology, and limited current applications, machine learning, especially recursive learning and adaptation, may bring this development firmly into the forefront of the field unpredictably, quickly, and possibly in the very near future.

The Unfair Advantage of Web Television

March 26, 2018
Data, Internet, Net Neutrality, New Technology

Richard Yo, MJLST Staffer

 

Up to a certain point, ISPs like Comcast, Verizon, and AT&T enjoy healthy, mutually beneficial relationships with web content companies such as Netflix, YouTube, and Amazon. That relationship remains so even when regular internet usage moves beyond emails and webpage browsing to VoIP and video streaming. To consume data-heavy content, users seek the wider bandwidth of broadband service and ISPs are more than happy to provide it at a premium. However, once one side enters the foray of the other, the relationship becomes less tenable unless it is restructured or improved upon. This problem is worse when both sides attempt to mimic the other.

 

Such a tension had clearly arisen by the time Verizon v. FCC 740 F.3d 623 (D.C. Cir. 2014) was decided. The D.C. Circuit vacated, or rather clarified, the applicability of two of the three rules that constituted the FCC’s 2010 Open Internet Order. The D.C. Circuit clarified that the rule of transparency was applicable to all, but the restrictions on blocking and discrimination were applicable only to common carriers. The FCC had previously classified ISPs under Title I of the Communications Act; common carriers are classified under Title II. The 2014 decision confirmed that broadband companies, not being common carriers, could choose the internet speed of websites and web-services at their discretion so long as they were transparent. So, to say that the internet’s astounding growth and development is due to light touch regulation is disingenuous. That statement in and of itself is true. Such discriminatory and blocking behavior was not in the purview of broadband providers during the early days of the internet due to the aforementioned relationship.

 

Once web content began taking on the familiar forms of broadcast television, signs of throttling were evident. Netflix began original programming in 2013 and saw its streaming speeds drop dramatically that year on both Verizon and Comcast networks. In 2014, Netflix made separate peering-interconnection agreements with both companies to secure reliably fast speeds for itself. Soon, public outcry led to the FCC’s 2015 Open Internet Order reclassifying broadband internet service as a “telecommunications service” subject to Title II. ISPs were now common carriers and net neutrality was in play, at least briefly (2015-2018).

 

Due to the FCC’s 2018 Restoring Internet Freedom Order, much of the features of the 2015 order have been reversed. Some now fear that ISPs will again attempt to control the traffic on their networks in all sorts of insidious ways. This is a legitimate concern but not one that necessarily spans the entire spectrum of the internet.

 

The internet has largely gone unregulated thanks to legislation and policies meant to encourage innovation and discourse. Under this incubatory setting, numerous such advancements and developments have indeed been made. One quasi-advancement is the streaming of voice and video. The internet has gone from cat videos to award-winning dramas. What began as a supplement to mainstream entertainment has now become the dominant force. Instead of Holly Hunter rushing across a busy TV station, we have Philip DeFranco booting up his iMac. Our tastes have changed, and with it, the production involved.

 

There is an imbalance here. Broadcast television has always suffered the misgivings of the FCC, even more than its cable brethren. The pragmatic reason for this has always been broadcast television’s availability, or rather its unavoidability. Censors saw to it that obscenities would never come across a child’s view, even inadvertently. But it cannot be denied that the internet is vastly more ubiquitous. Laptop, tablet, and smartphone sales outnumber those of televisions. Even TVs are now ‘smart,’ serving not only their first master but a second web master as well (no pun intended). Shows like Community and Arrested Development were network television shows (on NBC and FOX, respectively) one minute, and web content (on Yahoo! and Netflix, respectively) the next. The form and function of these programs had not substantially changed but they were suddenly free of the FCC’s reign. Virtually identical productions on different platforms are regulated differently, all due to arguments anchored by fears of stagnation.

Judicial Interpretation of Emojis and Emoticons

March 2, 2018
Business Law, New Technology, Social Media

Kirk Johnson, MJLST Staffer

 

In 2016, the original 176 emojis created by Shigetaka Kurita were enshrined in New York’s Museum of Modern Art as just that: art. Today, a smartphone contains approximately 2,000 icons that many use as a communication tool. New communicative tools present new problems for users and the courts alike; when the recipient of a message including an icon interprets the icon differently than the sender, how should a court view that icon? How does it affect the actus reus or mens rea of a crime? While a court has a myriad of tools that they use to decipher the meaning of new communicative tools, the lack of a universal understanding of these icons has created interesting social and legal consequences.

The first of many problems with the use of an emoji is that there is general disagreement on what the actual icon means. Take this emoji for example: 🙏. In a recent interview by the Wall Street Journal, people aged 10-87 were asked what this symbol meant. Responses varied from hands clapping to praying. The actual title of the emoji is “Person with Folded Hands.”

Secondly, the icons can change over time. Consider the update of the Apple iOS from 9 to 10; many complained that this emoji, 💁, lost its “sass.” It is unclear whether the emoji was intended to have “sass” to begin with, especially since the title of the icon is “Information Desk Person.”

Finally, actual icons vary from device to device. In some instances, when an Apple iPhone user sends a message to an Android phone user, the icon that appears on the recipient’s screen is completely different than what the sender intended. When Apple moved from iOS 9 to iOS 10, they significantly altered their pistol emoji. While an Android user would see something akin to this 🔫, an iPhone user sees a water pistol. Sometimes, an equivalent icon is not present on the recipient’s device and the only thing that appears on their screen is a black box.

Text messages and emails are extremely common pieces of evidence in a wide variety of cases, from sexual harassment litigation to contract disputes. Recently, the Ohio Court of Appeals was called upon to determine whether the text message “come over” with a “winky-face emoji” was adequate evidence to prove infidelity. State v. Shepherd, 81 N.E.3d 1011, 1020 (Ohio Ct. App. 2017). A Michigan sexual harassment attorney’s client was convinced that an emoji that looked like a horse followed by an icon resembling a muffin meant “stud muffin,” which the client interpreted as an unwelcome advance from a coworker. Luckily, messages consisting entirely of icons rarely determine the outcome of a case on their own; in the sexual harassment arena, a single advance from an emoji message would not be sufficient to make a case.

However, the implications are much more dangerous in the world of contracts. According to the Restatement (Second) of Contracts § 20 (1981),

(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and

(a) neither party knows or has reason to know the meaning attached by the other; or

(b) each party knows or each party has reason to know the meaning attached by the other.

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or

(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.

 

Adhering to this standard with emojis would produce varied and unexpected results. For example, if Adam sent Bob a message “I’ll give you $5 to mow my lawn 😉,” would Bob be free to accept the offer? Would the answer be different if Adam used the 😘 emoji instead of the 😉 emoji? What if Bob received a black box instead of any emoji at all? Conversely, if Adam sent Bob the message without an emoji and Bob replied to Adam “Sure 😉,” should Adam be able to rely upon Bob’s message as acceptance? In 2014, the Michigan Court of Appeals ruled that the emoticon “:P” denoted sarcasm and that the text prior to the message should be interpreted with sarcasm. Does this extend to the emoji 😜😝, and 😛, titled “Face with Stuck-Out Tongue And Winking Eye,” “Face With Stuck-Out Tongue And Tightly-Closed Eyes,” and “Face With Stuck-Out Tongue” respectively?

In a recent case in Israel, a judge ruled that the message “✌👯💃🍾🐿☄” constituted acceptance of a rental contract. While the United States does have differing standards for the laws of contracts, it seems that a judge could find that to be acceptance under the Restatement of Contracts (Second) § 20(2). Eric Goldman at the Santa Clara University School of Law hypothesizes that an emoji dictionary might help alleviate this issue. While a new Black’s Emoji Law Dictionary may seem unnecessary to many, without some sort of action it will be the courts deciding what the meaning of an emoji truly is. In a day where courts rule that a jury is entitled to actually see the emoji rather than have a description read to them, we can’t ignore the reality that action is necessary.

PyeongChang: The Opening Ceremony

February 16, 2018
Drones, New Technology, Regulatory

MJLST Staffer, Amber Peterson

 

The opening ceremony of the Olympics is always a big show and the 2018 Winter Olympics’ opening ceremony in PyeongChang, South Korea was no exception. Intel created a display that featured a world-record setting 1,218 drones. The display featured drone murmurations that depicted images of a snowboarder that morphed into the Olympic rings using four billion color combinations enabled by onboard LEDs. This display surpassed Intel’s previous Shooting Star drone world record which flew 500 drones simultaneously in Germany in 2016.

Intel’s Shooting Star drones are each about a foot-long, weigh eight ounces, and can fly in formation for up to 20 minutes given the limitations of current lithium-ion battery technology.

While the show is certainly impressive, from a software perspective, it is very much similar to flying a smaller, 300-drone show. The additional drones simply increase the resolution and quality of the images to create more depth. Every drone is operated from a central computer system, which tweaks things such as individual battery life and GPS signal. The drones communicate with this central computer instead of with each other. After animators draw up the show using 3D design software, each individual drone acts as an aerial pixel to fill the night sky.

The only minor tweak that Intel had to make to the design of the drone was to the rotor cages to account for the cold and windy conditions in Pyeongchang. Intel ran test flights in Finland, which has a similar climate to Pyeongchang, to make sure the drones could handle the climate.

This record for the “most unmanned aerial vehicles airborne simultaneously” may have an asterisk however, since the display was pre-recorded after a last minute logistical issue which prevented the record setting drones from flying live at the ceremony. The show that was pre-recorded last December was instead broadcast during the event.

The South Korean laws and regulations that Intel had to comply with are as follows: 1) the maximum height that a drone can fly is 492 feet and if the flights are higher than this distance, government approval is required; 2) drones can only be flown during the day unless government approval has been given; 3) drones must be operated in a range that is viewable from the naked eye; 4) certain zones are banned for drone flights; and 5) drones must always yield to manned aircraft.

Drone law has developed from the explosion of online shopping in Korea. Korean privacy laws however, are some of the strictest in the world so a vexing issue remains as to how to deal with the invasion of privacy from drones. Maintaining a balance between supporting technological advances and being cognizant of protecting safety and individual rights remains an issue that requires further debate.

Apple Inc. Under Continued Scrutiny After iPhone Throttling Admission

February 12, 2018
New Technology, Securities Law

MJLST Staffer, Alex Eschenroeder

While innovative tech companies typically receive widespread attention for increasing the speed and performance of a given device, Apple Inc. has received attention in the past few weeks for exactly the opposite reason. Apple’s actions have caught the attention of consumers and consumer advocates around the world, and recently, they have caught the attention of the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) as well.

 

The action at issue is Apple’s intentional throttling, or slowing down, of iPhone performance. Apple apologized for its intentional throttling on December 28, 2017, in reaction to building pressure from “users and tech analysts” who noticed iPhone slowdowns. In its apology message, Apple focused on the risk of unexpected phone shutdowns resulting from the fact that “[a] chemically aged battery also becomes less capable of delivering peak energy loads, especially in a low state of charge.” Apple asserted that it addressed this risk by delivering an iOS (iPhone operating system) update that “dynamically manages the maximum performance of some system components when needed to prevent a shutdown.” In addition to providing its explanation behind the throttling in its message, Apple announced a fifty dollar discount for iPhone battery replacements. However, replacement availability has been limited, and the discount has not stopped investigations and inquiries from multiple parties.

 

Shortly after Apple’s admission, consumer and watchdog groups in France, Italy, and China, submitted questions to Apple. The French consumer group, “Stop Programmed Obsolescence,” filed a complaint in December alleging “that Apple pressures customers to buy new phones by timing the release of new models with operating system upgrades that cause older ones to perform less well.” This complaint sparked an investigation by the Paris prosecutor’s office. Another source of questioning has been from within the US Senate, as South Dakota Senator John Thune wrote a letter to Apple CEO Tim Cook that “pressed Apple for answers to a series of questions about how the company decided to throttle back iPhone processing performance in phones with older batteries.”

 

In addition to these sources of pressure, the latest major development is that the SEC and DOJ have initiated their own probes. Both the SEC and the DOJ declined to comment about their investigations. Further, “Apple acknowledged in a statement that it is responding to questions from some government agencies, though it declined to disclose which agencies or any details regarding the questions.” Thus, very little is known at this point about the substance of the investigations. Current speculation includes that, in this type of case, “the SEC could try to fault a public company for failing to make timely disclosures about material information that would affect the stock price.”

 

While a more superficial investigation is possible, it would likely leave critical questions unaddressed. Some questions I would like to vent to Apple are as follows: If Apple’s battery issues cause peak energy load delivery problems primarily in a low state of charge, why does the dynamic management system coded into iOS slow down app launch times even at or near full charge? If the iOS update manages max performance of system components when needed to prevent a shutdown, does that mean a phone that takes longer to launch any given app on any given launch is constantly at risk for shutting down? What would it mean when Apple releases code to deactivate throttling and an iPhone with previously slow app launch times doesn’t turn off immediately? How many other devices does Apple throttling apply to, and when might Apple admit to them? Looking at you, Apple Watch.

 

These questions are not expertly devised, but they represent a reality that Apple will have to grapple with in the coming months: when so many people use your product frequently, there are mountains of user experiences that could be referenced to throw any “explanation” into question. These experiences may help to debunk any likely stories that vary significantly from the truth.

The Electric Vehicle: A Microcosm for America’s Problem with Innovation

November 11, 2017
Economy, New Technology, Regulatory

Zach Sibley, MJLST Staffer

 

Last year, former U.S. Patent and Trademark Office Director, David Kappos, criticized a series of changes in patent legislation and case law for weakening innovation protections and driving technology investments towards China. Since then it has become apparent that America’s problem with innovation runs deeper than just the strength of U.S. patent rights. State and federal policies toward new industries also appear to be trending against domestic innovation. One illustrative example is the electric vehicle (EV).

 

EVs offer better technological upsides than their internal combustion engine vehicle (ICEV) counterparts. Most notably, as our US grid system moves toward “smart” infrastructure that leverages the Internet of Things, EVs can interact with the grid and assist in maximizing the efficiency of its infrastructure in ways not possible with ICEVs. Additionally, with clean air and emission targets imminent—like those in the Clean Air Act or in more stringent state legislation—EVs offer the most immediate impact in reducing mobile source air pollutants, especially in a sector that recently became the highest carbon dioxide emitter. And finally, EVs present electrical utilities that are facing a “death spiral” an opportunity to recover profits by increasing electricity demand.   

 

Recent state and federal policy changes, however, may hinder efforts of EV innovators. Eighteen state legislators have enacted EV fees—including Wisconsin’s recent adoption, and the overturned fee in Oklahoma—ranging from $50 to $300 in some states. Proponents claim the fee creates parity between traditional ICEV drivers and the new EV drivers not paying fuel taxes that fund maintenance of transportation infrastructure. Recent findings, though, suggest EV drivers in some states with the fee were previously paying more upfront in taxes than their ICEV road-mates. The fee also only creates parity when solely focused on the wear and tear all vehicles cause on shared road infrastructure. The calculus for these fees often neglects that EV and ICEV drivers also share the same air resources and yet no tax accompanies EV fees that would also charge ICEVs for their share of wear and tear on air quality.

 

At the federal level, changes in administrative policy are poised to exacerbate the problem further. The freshly proposed GOP tax bill includes a provision to repeal a $7,500 rebate that has made lower cost EVs a more affordable option for middle class drivers. This change should be contrasted with foreign efforts, such as those in the European Union to increase CO2 reduction targets and offer credits for EV purchases. The contrast can be summed up with one commentator’s observation regarding The New York Times who reported, within the span of a few days, about the U.S. EPA’s rollback of the Clean Power Plan and then about General Motors moving toward a full electric line in response to the Chinese government. The latter story harkens back to Kappos’ comments at the beginning of this post, where again a changing U.S. legal and regulatory landscaping is driving innovation elsewhere.

 

It is a basic tenant of economics that incentives matter. Even in a state with a robust EV presence like California, critics question the wisdom of assessing fees and repealing incentives this early in a nascent industry offering a promising technological future. The U.S. used to be great because it was the world’s gold standard for innovation: the first light bulb, the first car, the first airplane, the first to the moon, and the first personal computers (to name a few). Our laws need to continue to reflect our innovative identity. Hopefully, with legislation like the STRONG Patents Act of 2017 and a series of state EV incentives on the horizon, we can return to our great innovative roots.

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