Holy Crap: The First Amendment, Septic Systems, and the Strict Scrutiny Standard in Land Use Law

December 22, 2021
Administrative Law, Constitutional Law, Discrimination, Environmental Law, First Amendment

Sarah Bauer, MJLST Staffer

In the Summer of 2021, the U.S. Supreme Court released a bevy of decisions favoring religious freedom. Among these was Mast v. City of Fillmore, a case about, well, septic systems and the First Amendment. But Mast is about so much more than that: it showcases the Court’s commitment to free exercise in a variety of contexts and Justice Gorsuch as a champion of Western sensibilities. It also demonstrates that moving forward, the government is going to need work harder to support that its compelling interest in land use regulation trumps an individual’s free exercise rights.

The Facts of Mast

To understand how septic systems and the First Amendment can even exist in the same sentence, it’s important to know the facts of Mast. In the state of Minnesota, the Pollution Control Agency (MPCA) is responsible for maintaining water quality. It promulgates regulations accordingly, then local governments adopt those regulations into ordinances. Among those are prescriptive regulations about wastewater treatment. At issue is one such ordinance adopted by Fillmore County, Minnesota, that requires most homes to have a modern septic system for the disposal of gray water.

The plaintiffs in the case are Swartzentruber Amish. They sought a religious exemption from the ordinance, saying that their religion forbade the use of that technology. The MPCA instead demanded the installation of the modern system under threat of criminal penalty, civil fines, and eviction from their farms. When the MPCA rejected a low-tech alternative offered by the plaintiffs, a mulch basin system not uncommon in other states, the Amish sought relief on grounds that the ordinance violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). After losing the battle in state courts, the Mast plaintiffs took it to the Supreme Court, where the case was decided in their favor last summer.

The First Amendment and Strict Scrutiny

Mast’s issue is a land use remix of Fulton v. City of Philadelphia, another free exercise case from the same docket. Fulton, the more controversial and well-known of the two, involved the City of Philadelphia’s decision to discontinue contracts with Catholic Social Services (CSS) for placement of children in foster homes. The City said that CSS’s refusal to place children with same-sex couples violated a non-discrimination provision in both the contract and the non-discrimination requirements of the citywide Fair Practices Ordinance. The Supreme Court didn’t buy it, holding instead that the City’s policy impermissibly burdened CSS’s free exercise of religion.

The Fulton decision was important for refining the legal analysis and standards when a law burdens free exercise of religion. First, if a law incidentally burdens religion but is both 1) neutral and 2) generally applicable, then courts will not ordinarily apply a strict scrutiny standard on review. If one of those elements is not met, courts will apply strict scrutiny, and the government will need to show that the law 1) advances a compelling interest and 2) is narrowly tailored to achieve those interests. The trick to strict scrutiny is this: the government’s compelling interest in denying an exception needs to apply specifically to those requesting the religious exception. A law examined under strict scrutiny will not survive if the State only asserts that it has a compelling interest in enforcing its laws generally.

Strict Scrutiny, RLUIPA, and Mast

The Mast Plaintiffs sought relief under RLUIPA. RLUIPA isn’t just a contender for Congress’s “Most Difficult to Pronounce Acronym” Award. It’s a choice legal weapon for those claiming that a land use regulation restricts free exercise of religion. The strict scrutiny standard is built into RLUIPA, meaning that courts skip straight to the question of whether 1) the government had a compelling government interest, and 2) whether the rule was the least restrictive means of furthering that compelling government interest. And now, post-Fulton, that first inquiry involves looking at whether the government had a compelling interest in denying an exception specifically as it applies to plaintiffs.

So that is how we end up with septic systems and the First Amendment in the same case. The Amish sued under RLUIPA, the Court applied strict scrutiny, and the government failed to show that it had a compelling interest in denying the Amish an exception to the rule that they needed to install a septic system for their gray water. Particularly convincing at least from Coloradan Justice Gorsuch’s perspective, were the facts that 1) Minnesota law allowed exemptions to campers and outdoorsman, 2) other jurisdictions allowed for gray water disposal in the same alternative manner suggested by the plaintiffs, and 3) the government couldn’t show that the alternative method wouldn’t effectively filter the water.

So what does this ultimately mean for land use regulation? It means that in the niche area of RLUIPA litigation, religious groups have a stronger strict scrutiny standard to lean on, forcing governments to present more evidence justifying a refusal to extend religious exemptions. And government can’t bypass the standard by making regulations more “generally applicable,” for example by removing exemptions for campers. Strict scrutiny still applies under RLUIPA, and governments are stuck with it, resulting in a possible windfall of exceptions for the religious.

How the Biden Administration Has Made Offshore Wind a Priority

December 22, 2021
Climate Change, Energy Law

Max Meyer, MJLST Staffer

Since coming into office in January of 2021, the Biden Administration has made fighting climate change and reducing domestic greenhouse gas (GHG) emissions a priority. In particular, the Biden Administration set a goal of doubling the nation’s offshore wind capacity in Executive Order 14008. Reaching this goal would result in 30 Gigawatts (GW) of offshore wind capacity. Developing offshore wind energy will help states reach their clean and renewable energy goals as many sates on the coast do not have large wind energy resources on land. Since the issuance of Executive Order 14008, the Department of the Interior (DOI) has taken several steps towards reaching that goal.

Statutory Authority

Under the Outer Continental Shelf Lands Act (OCSLA) (codified at 43 U.S.C. ch. 29), passed in 1953, the Secretary of the Interior is charged with the administration of mineral exploration and development of the Outer Continental Shelf (OCS). The OCS is defined as “all submerged lands lying seaward of state coastal waters (3 miles offshore) which are under U.S. jurisdiction.”

In the Energy Policy Act of 2005 (EPAct), Congress created the OCS Renewable Energy Program to be administered by the DOI. Under this authority, the DOI in 2009 promulgated regulations for leases, easements, and rights-of-way for renewable energy development in the OCS. The Bureau of Ocean Energy Management (BOEM), under the DOI, is the agency tasked with overseeing the renewable energy development program.

Regulatory Authority

The BOEM renewable energy development program is broken into four steps: (1) planning, (2) leasing, (3), site assessment, and (4) construction and operations. During the first step, BOEM identifies Wind Energy Areas (WEAs) which are “locations that appear most suitable for wind energy development.” After WEAs have been identified, BOEM issues a public notice to gauge the interest in leasing land in the WEA. Depending on the interest received from BOEM, leasing is done through either a competitive or noncompetitive leasing process.

After leasing is completed, the lessee must submit a Site Assessment Plan (SAP) to BOEM. The purpose of the SAP is for the lessee to provide documentation so that BOEM can evaluate whether the project will comply with applicable regulations. The agency can either approve, approve with modification, or disapprove the SAP. Finally, the lessee must produce a Construction and Operations Plan (COP). As the name suggests, this submission includes a “detailed plan for the construction and operation of a wind energy project on the lease.” BOEM reviews the COP, including environmental review, and can either approve, approve with modification, or disapprove the COP.

Recent Offshore Wind Developments

In May 2021, the DOI approved the COP for the Vineyard Wind project located near Martha’s Vineyard and Nantucket. This is the first large-scale, offshore wind project in the United States. The project will have 800 Megawatt (MW) of energy capacity which is enough to power 400,000 homes and businesses. Construction of the project began in November 2021. One of the first steps in the construction process will be placing two transmission cables to transmit electricity from the Vineyard Wind project to the mainland.

Also in November 2021, the DOI approved the COP for the South Fork Wind making it the second large-scale, offshore wind project in the United States. This project off the coasts of New York and Rhode Island will have a capacity of 130 MW which is enough to power approximately 70,000 homes.

In addition to granting final approval of several projects, BOEM has also taken action in the earlier steps of the OCS renewable energy process. For the Carolina Long Bay WEA, located off the coast of the Carolinas, the BOEM began taking public comments on a proposed lease. In October, BOEM received the COP for the Mayflower Wind project. This project would also be located near Martha’s Vineyard and Nantucket and would have an energy capacity of more than 2 GW. If approved, the Mayflower Wind project would be one of the largest offshore wind projects in the United States. BOEM also published a Call for Information and Nominations to gauge commercial interest in wind energy development in the Gulf of Mexico.

BOEM has also taken steps to advance offshore wind in the Pacific Ocean in 2021. In July, BOEM published a Call for Information and Nominations to determine commercial interest in the Morro Bay Call Area East and West Extensions, a portion of the Morro Bay WEA. This WEA is located off the coast of Central California. Finally, BOEM designated the Humboldt WEA off the northern coast of California moving closer to the leasing process in this area.

Despite heavy support from the Biden Administration, offshore wind does face opposition. The commercial fishing industry has emerged as a strong opponent of these projects. The industry is concerned that the turbines will impact fish and hinder access to fishing grounds. The Biden Administration could face legal challenges to offshore wind development, particularly under the National Environmental Policy Act (NEPA), from the fishing industry. One such challenge in Fisheries Survival Fund v. Haaland, 858 F. App’x 371 (D.C. Cir. 2021) has proven unsuccessful for the fishing industry.

While the DOI and BOEM have taken many actions to further develop offshore wind in the United States, much more will have to be done to reach the Biden Administration’s goal of 30 MW of offshore wind capacity by 2030. Nonetheless, offshore wind is an important resource for coastal states looking to decarbonize their energy generation and for reaching the Biden Administration’s decarbonization goals.

Reconsidering Roe: Has the Line of Fetal Viability Moved?

December 18, 2021
Constitutional Law, Family Law, Health, Privacy, Reproductive Health

Claire Colby, MJLST Staffer

After the Supreme Court heard arguments in Dobbs v. Jackson Women’s Health on December 1, legal commentatorsbegan to speculate the case could be a vehicle for overturning Roe v. Wade. The Mississippi statute at issue in Dobbs bans nearly all abortions after 15 weeks. In questioning Mississippi Solicitor General Scott Stewart, Justice Sonia Sotomayor asked about the “advancements in medicine” that have changed the lines of viability since the Court last considered a major challenge to Roe with Planned Parenthood v. Casey in 1992. “What has changed in science to show that the viability line is not a real line…?” she asked.

Roe v. Wade was a 1973 landmark decision in which the Supreme Court adopted a trimester framework for abortion. During the first trimester, the Court held that “the abortion decision and its effectuation must be left to the medical judgement of the pregnant woman’s attending physician.” The court held that states could adopt regulations “reasonably related to maternal health” for abortions after the first trimester, and held that in the third trimester, upon viability, states may “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgement for the preservation of the life or health of the mother.” In 1992, the Court rejected this “rigid trimester” framework in Planned Parenthood v. Casey. In Casey, the Court turned to a viability framework and found that pre-viability, states may not prohibit abortion or impose “a substantial obstacle to the woman’s effective right to elect the procedure.” The Court adopted an “undue burden” standard to determine whether state regulations of pre-viability abortion are unconstitutional.

In Casey, the court defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” So when do medical professionals consider a fetus viable? The threshold has moved to earlier in the gestation period since the 1970s, but experts disagree on where to draw the line. According to a journal articlepublished in 2018 in Women’s Health Issues, in 1971, fetal age of approximately 28 weeks was “widely used as the criterion of viability.” The article said that until recently, 24 weeks of gestation was the “widely accepted cutoff for viability in the highest acuity neonatal intensive care units.” According to the article, babies born as early as 22 weeks of gestation had an “overall survival rate of 23%” with “the most aggressive medical management available.” The article rebuked the idea of tying abortion restrictions to viability at all: “Tying abortion provisions to the word viability today is as misguided as it was to tie it to a specific trimester in 1973,” the article stated. “There was no true definition of viability then, and as long as medicine strives to treat every patient uniquely, there will never be one.”

A 2017 practice alert published in the official journal of the American College of Obstetricians and Gynecologists defined “periviable” births —births occurring “near the limit of viability” —as births occurring between 20 and 26 weeks gestation.

According to a 2020 New York Times article, determinations on the gestational age at which a baby is likely to survive outside of the womb are “in a complex moment of transition.” Though technology has improved, “even top academic institutions disagree about the right approach to treating 22- and 23-week babies.” The article reported that the University of California, San Francisco “a top-tier, high resource hospital,” is “transparent about its policy of offering only comfort care for babies that are born up to the first day of the 23rd week, down to the hour.”

In June 2020, a baby born at the Children’s Hospital and Clinics of Minnesota set the world record for the world’s most premature baby to survive, the Washington Post reported. He was born at 21 weeks and two days gestation.

Several medical developments help to explain this earlier period of viability.

According to a 2020 Nature article, “the biggest difference to survival came in the early 1990s with surfactant treatment.” Surfactant is a “slippery substance” that prevents airways from collapsing upon exhalation. According to Kaiser, premature babies with underdeveloped lungs often lack the substance. “When premature lungs are treated with surfactant after birth, the infant’s blood oxygen levels usually improve within minutes.”

A 2018 study published by the Journal of the American Medical Association, administering prenatal steroids to mothers between 22 and 25 weeks gestation prior to delivery led to a “significantly higher” survival rate, but “survival without major morbidities remains low at 22 and 23 weeks.”

The Dobbs ruling is not expected until this summer, when the Court tends to release its major decisions. Even if the Court maintains the viability standard set forth in Casey, recent medical advances may warrant more consideration about where to draw this line.

Build Back Better Act: A Request for Transparency of a Clearly Visible Issue

December 10, 2021
Healthcare, Healthcare Reform, Pharmaceuticals

Sara Pistilli, MJLST Staffer

On November 19, 2021, the House of Representatives voted to pass the “Build Back Better Act” which includes several provisions aimed at ever-rising healthcare prices. In trying to combat this concern, Congress included mandatory reporting provisions for pharmacy benefit managers (PBM) who bill Medicare and Medicaid insurance programs. PBMs will be required to provide reports every six months that include data on copays, dispensed drugs, rebates, and total out of pocket spending for patients. Speaker Nancy Pelosi states these provisions are aimed at “providing transparency regarding drug costs in private health plans” but is transparency helpful or even necessary when the effects PBMs have on healthcare costs are well known?

What is a PBM?

PBMs are third-party administrators that manage prescription drug benefits on behalf of both private and public healthcare payers. They have significant power to manipulate the healthcare market by acting as middlemen between payers (insurance companies), drug manufacturers, and dispensers (pharmacies). Originally, PBMs were meant to lower healthcare costs by streamlining transactions and attempting to create fair payment systems for dispensing pharmacies.Instead, PBMs have secretly contributed to increasing healthcare costs by inflating drug costs while concurrently decreasing pharmacy reimbursement rates leading to huge windfall profits for PBMs at the patients’ expense.

How do PBMs make millions in profits each year?

While some patients pay cash for medications, most are covered by Medicare, Medicaid, or private insurers. PBMs are paid by these insurers to determine how much a healthcare plan pays for a medication and in turn, how much the pharmacy gets reimbursed for the dispensed medication. For example, Bob receives a new prescription from his doctor for drug A. The pharmacy buys a bottle of drug A for $7. When Bob comes to pick up his prescription for drug A, his health insurer’s PBM pays $8 to reimburse the pharmacy, allowing them to gain a profit of $1. Concurrently, the PBM bills the health insurer $18 for the price of drug A, allowing them to make $10 in profit on Bob’s prescription. This practice, called spread pricing, results in PBMs making millions of dollars in profits each year.

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Picture: “The Secret Drug Pricing System Middlemen Use to Rake in Millions

How does PBM spread pricing increase healthcare costs for patients?

PBM spread pricing affects healthcare costs in two distinct ways: increased insurance premiums and decreased access to care. As PBMs continue to inflate the cost of prescription drugs, insurers are billed more and more by their PBMs. These expenses directly fall on the shoulders of the government and the healthcare companies, who represent the public and private payer sector. In turn, to keep up with increased billing, public and private payers turn to their beneficiaries to help them pay the PBMs via increased healthcare plan premiums, decreased coverage, and larger copays. Concurrently, as the PBMs reimburse pharmacies less and less for medication dispensing, pharmacies, especially independent ones, try to operate on thinner profit margins. Over time, the low reimbursement rates culminate in decreased clinical services or, in the worst case, pharmacies closing permanently.

What does the Build Back Better Act do to help?

Egregious billing practices by PBMs have been in the spotlight for several years now. In 2018, Ohio’s Department of Medicaid released a report showing that PBMs charged the state of Ohio $224 million in hidden spread pricing. The audit results led to Ohio terminating all PBM contracts with the Department of Medicaid and converting to a single-PBM system where spread pricing could be monitored better. Another report, this time in Utah, showed that PBM’s received $1.5 million from spread pricing in 2018. Similarly in 2019, a Kentucky report found that PBMs retained $123 million in spread pricing in that state. Several states have enacted laws targeting PBM spread pricing as the federal government continues to skirt around the issue. For example, Louisiana prohibits all PBMs from using spread pricing unless a PBM provides written notice of the practice to the health insurer and the policy holder. Louisiana also enacted a law stating that PBMs could not reimburse pharmacies at a lower rate than they do their affiliated pharmacies. This directly targets suspicions that CVS Caremark reimburses CVS pharmacies more to eliminate competition and steer patients towards filling their medications at CVS pharmacies. Like Louisiana, Maine enacted a law stating that PBMs could not participate in spread pricing without proper notice to the state. On October 1st, 2021, North Carolina’s Senate Bill 257 will take effect. This bill requires PBMs to apply for business licenses with the Commissioner of the Department of Insurance, subjecting them to more spread pricing regulations and threats of restitution to pharmacies they reimburse unfairly. While the states’ efforts are not perfect solutions, they are necessary efforts to regulate PBMs more. The federal government’s efforts to increase transparency is unnecessary due to the public recognition of PBM spread pricing. Every state audit that shows gross spread pricing is transparent enough to alert the federal government that PBMs pose a widespread problem to our healthcare system without greater restrictions. PBMs need to be controlled directly through regulations targeted towards preventing and prohibiting spread pricing, rather than asked to report every six months just how much they profit off their deceptive billing practices.

TikTok Settles in Class Action Data Privacy Lawsuit – Will Pay $92 Million Settlement

November 30, 2021
Artificial Intelligence, Class Action, Data Privacy, Internet, Privacy

Sarah Nelson, MJLST Staffer

On November 15, 2021, TikTok users received the following notification within the app: “Class Action Settlement Notice: U.S. residents who used Tik Tok before 01 OCT 2021 may be eligible for a class settlement payment – visit https://www.TikTokDataPrivacySettlement.com for details.” The notification was immediately met with skepticism, with users taking to Twitter and TikTok itself to joke about how the notification was likely a scam. However, for those familiar with TikTok’s litigation track record on data privacy, this settlement does not come as a surprise. Specifically, in 2019, TikTok – then known as Musical.ly – settled with the Federal Trade Commission over alleged violations of the Children’s Online Privacy Protection Act for $5.7 million. This new settlement is notable for the size of the payout and for what it tells us about the current state of data privacy and biometric data law in the United States.

Allegations in the Class Action

21 federal lawsuits against TikTok were consolidated into one class action to be overseen by the United States District Court for the Northern District of Illinois. All of the named plaintiffs in the class action are from either Illinois or California and many are minors. The class action comprises two classes – one class covers TikTok users nationwide and the other only includes Tik Tok users who are residents of Illinois.

In the suit, plaintiffs allege TikTok improperly used their personal data. This improper use includes accusations that TikTok, without consent, shared consumer data with third parties. These third parties allegedly include companies based in China, as well as well-known companies in the United States like Google and Facebook. The class action also accuses TikTok of unlawfully using facial recognition technology and of harvesting data from draft videos – videos that users made but never officially posted. Finally, plaintiffs allege TikTok actively took steps to conceal these practices.

What State and Federal Laws Were Allegedly Violated?

On the federal law level, plaintiffs allege TikTok violated the Computer Fraud and Abuse Act (CFAA) and the Video Privacy Protection Act (VPPA). As the name suggests, the CFAA was enacted to combat computer fraud and prohibits accessing “protected computers” in the absence of authorization or beyond the scope of authorization. Here, the plaintiff-users allege TikTok went beyond the scope of authorization by secretly transmitting personal data, “including User/Device Identifiers, biometric identifiers and information, and Private Videos and Private Video Images never intended for public consumption.” As for the VPPA, the count alleges the Act was violated when TikTok gave “personally identifiable information” to Facebook and Google. TikTok allegedly provided Facebook and Google with information about what videos a TikTok user had watched and liked, and what TikTok content creators a user had followed.

On the state level, the entire class alleged violations of the California Comprehensive Data Access and Fraud Act and a Violation of the Right to Privacy under the California Constitution. Interestingly, the plaintiffs within the Illinois subclasswere able to allege violations under the Biometric Information Privacy Act (BIPA). Under the BIPA, before collecting user biometric information, companies must inform the consumer in writing that the information is being collected and why. The company must also say how long the information will be stored and get the consumer to sign off on the collection. The complaint alleges TikTok did not provide the required notice or receive the required written consent.

Additionally, plaintiffs allege intrusion upon seclusion, unjust enrichment, and violation of both a California unfair competition law and a California false advertising law.

In settling the class action, TikTok denies any wrongdoing and maintains that this settlement is only to avoid the cost of further litigation. TikTok gave the following statement to the outlet Insider: “While we disagree with the assertions, we are pleased to have reached a settlement agreement that allows us to move forward and continue building a safe and joyful experience for the TikTok community.”

Terms of the Settlement

To be eligible for a settlement payment, a TikTok user must be a United States resident and must have used the app prior to October of 2021. If an individual meets these criteria, they must submit a claim before March 1, 2022. 89 million usersare estimated to be eligible to receive payment. However, members of the Illinois subclass are eligible to receive six shares of the settlement, as compared to the one share the nationwide class is eligible for. This difference is due to the added protection the Illinois subclass has from BIPA.

In addition to the payout, the settlement will require TikTok to revise its practices. Under the agreed upon settlement reforms, TikTok will no longer mine data from draft videos, collect user biometric data unless specified in the user agreement, or use GPS data to track user location unless specified in the user agreement. TikTok also said they would no longer send or store user data outside of the United States.

All of the above settlement terms are subject to final approval by the U.S. District Judge.

Conclusion

The lawyers representing TikTok users remarked that this settlement was “among the largest privacy-related payouts in history.” And, as noted by NPR, this settlement is similar to the one agreed to by Facebook in 2020 for $650 million. It is possible the size of these settlements will contribute to technology companies preemptively searching out and ceasing practices that may be privacy violative

It is also worth noting the added protection extended to residents of Illinois because of BIPA and its private right of actionthat can be utilized even where there has not been a data breach.

Users of the TikTok app often muse about how amazingly curated their “For You Page” – the videos that appear when you open the app and scroll without doing any particular search – seem to be. For this reason, even with potential privacy concerns, the app is hard to give up. Hopefully, users can rest a bit easier now knowing TikTok has agreed to the settlement reforms.

The StingRay You’ve Never Heard of: How One of the Most Effective Tools in Law Enforcement Operates Behind a Veil of Secrecy

November 30, 2021
Artificial Intelligence, Constitutional Law, Criminal Law, Data Privacy, Law Enforecement, Privacy

Dan O’Dea, MJLST Staffer

One of the most effective investigatory tools in law enforcement has operated behind a veil of secrecy for over 15 years. “StingRay” cell phone tower simulators are used by law enforcement agencies to locate and apprehend violent offenders, track persons of interest, monitor crowds when intelligence suggests threats, and intercept signals that could activate devices. When passively operating, StingRays mimic cell phone towers, forcing all nearby cell phones to connect to them, while extracting data in the form of metadata calls, text messages, internet traffic, and location information, even when a connected phone is powered off. They can also inject spying software into phones and prevent phones from accessing cellular data. StingRays were initially used overseas by federal law enforcement agencies to combat terrorism, before spreading into the hands of the Department of Justice and Department of Homeland Security, and now are actively used by local law enforcement agencies in 27 states to solve everything from missing persons cases to thefts of chicken wings.

The use of StingRay devices is highly controversial due to their intrusive nature. Not only does the use of StingRays raise privacy concerns, but tricking phones into connecting to StingRays mimicking cell phone towers prevent accessing legitimate cell phone service towers, which can obstruct access to 911 and other emergency hotlines. Perplexingly, the use of StingRay technology by law enforcement is almost entirely unregulated. Local law enforcement agencies frequently cite secrecy agreements with the FBI and the need to protect an investigatory tool as a means of denying the public information about how StingRays operate, and criminal defense attorneys have almost no means of challenging their use without this information. While the Department of Justice now requires federal agents obtain a warrant to use StingRay technology in criminal cases, an exception is made for matters relating to national security, and the technology may have been used to spy on racial-justice protestors during the Summer of 2020 under this exception. Local law enforcement agencies are almost completely unrestricted in their use of StingRays, and may even conceal their use in criminal prosecutions by tagging their findings as those of a “confidential source,” rather than admitting the use of a controversial investigatory tool. Doing so allows prosecutors to avoid  battling 4th amendment arguments characterizing data obtained by StingRays as unlawful search and seizure.

After existing in a “legal no-man’s land” since the technology’s inception, Senator Ron Wyden (D-OR) and Representative Ted Lieu (D-HI) sought to put an end to the secrecy of StingRays through introducing the Cell-Site Simulator Warrant Act of 2021 in June of 2021. The bill would have mandated that law enforcement agencies obtain a warrant to investigate criminal activity before deploying StingRay technology while also requiring law enforcement agencies to delete data of phones other than those of investigative targets. Further, the legislation would have required agencies to demonstrate a need to use StingRay technology that outweighs any potential harm to the community impacted by the technology. Finally, the bill would have limited authorized use of StingRay technology to the minimum amount of time necessary to conduct an investigation. However, the Cell-Site Simulator Warrant Act of 2021 appears to have died in committee after failing to garner significant legislative support.

Ultimately, no device with the intrusive capabilities of StingRays should be allowed to operate free from the constraints of regulation. While StingRays are among the most effective tools utilized by law enforcement, they are also among the most intrusive into the privacy of the general public. It logically follows that agencies seeking to operate StingRays should be required to make a showing of a need to utilize such an intrusive investigatory tool. In certain situations, it may be easy to establish the need to deploy a StingRay, such as doing so to further the investigation of a missing persons case. In others, law enforcement agencies would correctly find their hands tied should they wish to utilize a StingRay to catch a chicken wing thief.

Billionaire Space Race: How Blue Origin’s Attempt To Stall SpaceX’s Lunar Program May Lead to China Beating the USA to the Moon

November 25, 2021
Uncategorized

Henry Killen, MJLST Staffer

The days of mega billionaires like Jeff Bezos, Elon Musk, and Richard Branson being content with their private islands and mega yachts are over. The latest mega rich trend is owning a space company. Blue Origin, SpaceX, and Virgin Galactic are all leaders in space exploration and are all owned by billionaires. The space race is on! The privatization of space travel has led to innovative developments in the industry. Both Blue Origin and SpaceX now have reusable rockets that cut the cost of a launch by at least 50 percent compared to a nonreusable rocket. Virgin Galactic has developed its own unique technology, which uses an aircraft to fly their space vehicle to an altitude of 50,000 feet before releasing it.

In 2017, then President Trump signed an order directing NASA to partner with the private sector with the goal of putting astronauts on the moon by 2024. The project, known as Artemis, will return astronauts to the moon for the first time in over 50 years. Perhaps the most important part of going to the moon, is the lunar landing vehicle. Both Blue Origin and SpaceX have demonstrated that their rockets can safely and effectively travel into space, but neither has ever successfully landed a vehicle on the moon. Developing lunar landing technology is certainly expensive, so NASA solicited proposals from private companies who want to lead the lunar landing project.  In 2020, NASA awarded almost a billion dollars combined to SpaceX, Blue Origin, and Dynetics (long considered a dark horse) to begin researching and developing a lunar landing vehicle. After the initial funding, NASA was expected to select two of the three companies, so they would have a backup if one company failed, and then fully fund the completion of each company’s lunar landing program. In April 2021, NASA selected only SpaceX to build the lunar landing system because of a lack of funding. Blue Origin immediately filed a protest with the US Government Accountability Office, but its protest was promptly denied. Then, Blue Origin sued NASA in federal court in an attempt to remedy the flaws in the acquisition process found in NASA’s Human Landing System. Blue Origin’s main issue is that NASA was expected all along to select two companies, and that they would have revised their proposal had they known only one would be selected. Released court filings show that SpaceX’s final proposal was $2.9 billion, while Blue Origin’s was $5.9 billion. On November 4th, a federal judge rejected Blue Origin’s argument because the company was not able to show how the process was unfair. Though the judge’s opinion is yet to be publicly released, we do know that the case was dismissed under rules 12(b)(1) lack of subject matter jurisdiction and 12(b)(6) failure to state a claim upon which relief can be granted. It appears Blue Origin has accepted defeat because Jeff Bezos took to twitter writing in part, “we respect the court’s judgment, and wish full success for NASA and SpaceX on the contract.”

Perhaps the biggest loss stemming from this lawsuit is time. SpaceX and NASA’s work was put on hold during this litigation. Ultimately, they were unable to communicate about the Artemis program for nearly seven months, and have now delayed humans returning to moon until at least 2025. As America’s billionaires litigated and delayed this monumental project, America’s biggest rival on the global stage has made its own strides for putting humans back on the moon. China is now rapidly developing its own lunar program. China publicized timeline for landing its astronauts on the moon is slated for 2028, but China has a history of world-class innovation. Most recently, China has successfully tested the most advanced missiles in history. In 2020, China used a drone to raise a flag on the moon, becoming the only nation besides America to have a flag standing on the moon. General Mark Milley, who is the Chairman of the Joint Chiefs, said China’s new weapons are close to a ‘sputnik moment.’ The sputnik moment Milley is referring to is when the Soviet’s put the first satellite in orbit during the Cold War, shocking the USA and giving the Soviet’s an early lead in the space race. America ended up beating Russia to the moon after the sputnik moment, but the 21st century’s moon race is still up for grabs. It remains to be seen if America’s billionaire-run space companies can compete with a country like China. One thing is certain, SpaceX and Blue Origin’s resources are better off innovating than litigating.

Employee Vaccine Mandates: So, Are We Doing This?

November 23, 2021
Administrative Law, Employment, Employment Law

Kristin Thompson, MJLST Staffer

Rewind to the beginning of September. President Biden had just announced a generalized plan for addressing the alarmingly slow rise in vaccination rates in the United States. His disposition was serious as he pleaded with the American public to go out and get vaccinated. During this address he laid out several different measures that, conceivably, would lead to a higher national vaccination rate. Included in this plan was a vaccine requirement for all federal employees and government contractors. This sanction did not come as much of a surprise, as federal employees had previously been asked to provide proof of vaccination to avoid stringent safety protocols in the workplace. What was surprising, however, was President Biden’s plea to the Department of Labor to develop a federal vaccine mandate or required weekly COVID testing for private companies employing more than one hundred employees.

In the wake of this announcement came many different responses. On the one hand there were some private U.S. companies already enforcing vaccine policies who seemed unrattled by a potential new federal mandate, and there were some companies who viewed it as a welcome opportunity to implement a vaccine policy by means of a third-party enforcer. On the other hand there were companies who loathe any type of government interference in their business activity and policy implementation, and those who have been specifically opposed to a vaccine requirement and may have even made promises to their employees saying as much. Those companies who opposed a vaccine mandate, in light of this plea from President Biden, had to start making strategic decisions on how they would move forward if the Department of Labor heeded the president’s request.

The questions that came following President Biden’s address were the same regardless of the company’s personal view. Would a federal mandate be legal, would it be constitutional, and would it ever come? This uncertainty hung in the air while private companies, those with 101 employees and 5,000 employees alike, began to prepare. Draft mandatory vaccine policies were made, legal counsel was requested, and employees were advised. Now all that was left to do was wait for the Department of Labor’s cue.

Fast-forward to November. The Department of Labor’s Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) in line with President Biden’s plan. The goal of this standard being “to minimize the risk of COVID-19 transmission in the workplace,” and to “protect unvaccinated employees of large workplaces.” This standard mandates that all employers with more than 100 employees, including private companies, must require their employees get vaccinated or undergo weekly COVID tests and wear face masks while at work. The standard does not apply to remote workers, workers who predominantly work outside, or employees who work without other co-workers present.

The questions that arose after the ETS was announced were similar to those asked by companies directly after President Biden’s address. Is this ETS legal, is it constitutional, and when will we have to be in compliance? The last question seems to be easily answered; all requirements except weekly testing for unvaccinated employees must be met by December 6th, 2021. The weekly testing policy for unvaccinated employees must begin by January 6th, 2022. However, the immediate onslaught of lawsuits attempting to prevent the ETS have made these straightforward dates seem somewhat arbitrary. Companies now face a unique set of issues prompting even more, new, questions. Do we actually have to be in compliance by December 5th? What effect will these lawsuits have on the ETS? Are we just supposed to wait and see?

Legally, the situation private companies face is complex. As of November 12th, the Fifth Circuit had issued and subsequently reaffirmed a stay on the standard, meaning companies did not have to comply with the mandate. At that time, the Fifth Circuit was the only court that had issued a stay, although there were lawsuits pending in eleven of the twelve circuit courts. What complicated this Fifth Circuit determination was the question of whether or not it covered all U.S. companies; if your company is based in another Circuits’ jurisdiction was this Fifth Circuit stay relevant? The current ruling enjoins OSHA from enforcing the ETS, so while the Fifth Circuit did not write on whether their holding extended outside of their jurisdiction, its practical effect was, and is, felt everywhere. So then, what comes next? How long will this stay last, and who should private companies be looking to in planning their next move?

The Fifth Circuits’ stay will last until one of two things occur. The first is multidistrict litigation, where all outstanding lawsuits brought against the ETS will be combined, and one decision will be rendered by the Circuit Court on whether or not the stay shall be enforced. The first step of this process has already begun; on Tuesday November 16th the Sixth Circuit Court was chosen via a lottery process to preside over the multidistrict litigation. The Sixth Court is based in Cincinnati, Ohio and typically leans conservative. While this proclivity does not necessarily mean that the ETS is doomed, it does suggest that President Biden may ask the Supreme Court to take over the case, preferring the Supreme Court Justices over the Sixth Circuit’s judges. This introduces the second way the stay may be addressed, by a Supreme Court ruling. This alternative can be triggered by either a plea from the federal government directly asking the Court to end the Fifth Circuits’ stay, or via an independent decision by the Supreme Court to pluck this consolidated lawsuit out the Sixth Circuits’ hands.

However, if the Supreme Court is not called upon and chooses not to pull the case up on their own, the Sixth Circuit will have the authority to either end, modify, or extend the Fifth Circuits’ current stay on the ETS. This leaves companies with a choice; will they wait and see how the Sixth Circuit, or maybe even the Supreme Court, rules on the stay? Will they wait to see if the stay is extended and the deadline for compliance is pushed back, or will they start implanting the mandate now in the event that the stay is extinguished and December 5th compliance is reinstated?

There is a chance that an extended stay will allow these companies to push off vaccine mandates. There is also a chance that the stay will be terminated before December 5th and all original compliance deadlines will be the same. Both of these alternatives are further complicated when paired with the uncertainty surrounding timing. If a company decides to run the risk and hope for an extended stay, and the Sixth Circuit court issues a retraction of the stay on December 3rd, companies may still be forced to observe the December 5th compliance date. However, if they decide to comply right now and the stay is extended, they may regret acting so quickly. In the end the mass amount of uncertainty surrounding the ETS and resulting litigation is creating many tough decisions for private employers. While the choice to comply with OSHA’s currently suspended ETS may not be mandatory right now, it’s obvious that a failure to act may put them far behind schedule for creating and implanting an effective vaccine mandate policy. That failure to act has the potential to end in high OSHA fines as well as general pushback from the public. In the end the decision on how to treat this paused ETS is up to each individual company, as will be any consequences stemming from that choice.

Inventions Ex Machina, Patents Dantur Hominibus

November 22, 2021
Uncategorized

Chase Webber, MJLST Staffer

In the last year, a United States Patent and Trademark Office (USPTO) and a US federal district court opinion answered many questions on the issue of who (or what) should get the patent when AI is responsible for an invention?   The take-away from these new sources is that AI cannot be named as the “inventor” for a patent, but the human developers of the AI will qualify as joint inventors.  Future courts (including the appeal of Thaler v. Hirshfeld, the recent AI “inventor” case) may consider whether an invention created by an AI may be practically unpatentable because no “natural person” could qualify as the inventor.  However, according to the USPTO report, humans’ significant contributions to the AI in all existing instances of AI invention qualify them as the “joint inventors” to obtain a patent.  There is no need to change the patent laws today for AI.  It is essential to consider, however, which humans will qualify as inventors.

Stephen Thaler applied for a patent on behalf of his AI, DABUS, for two inventions generated by DABUS.  The inventions are inconceivable by human minds; for example, a beverage container designed using fractal geometry.  Thaler named DABUS the “sole inventor” when filing for a patent.  On DABUS’s behalf, Thaler assigned all DABUS’s patent rights and benefits to himself.  The USPTO refused to issue the patent to DABUS because an “inventor” must be a “natural person.”  Facing an insurmountable obstacle of basic statutory interpretation, Thaler argues policy:  The USPTO’s interpretation disincentivizes innovation and devalues human inventorship – both of which threaten the purpose of the Patent Act.  Thaler’s arguments do not persuade the court or this author.

Who really cares?  The outcome seems to be the same for Thaler – whether he is assigned DABUS’s patent rights or awarded the patent for DABUS’s invention.  The public commentary in the USPTO report, published before the case and referenced by the court in Thaler, seems to agree.  There is no apparent injustice in a human taking credit for the AI’s invention.  However, the outcome of Thaler is important when considering who is responsible for (and therefore profits from) AI inventions.

Thaler claims that the AI is the rightful “inventor,” although, practically, someone besides the AI will profit no matter the outcome of Thaler.  But who?  Is it the owner of the AI machine?  Or the developers who created the AI (assuming these are separate people)?  Both the AI owners and developers?  According to the USPTO report, it’s more likely to be the developer, but it may be both.  Joint inventorship is determined by considering whether a person’s contribution to the invention was significantin the scope of the entire invention.  AI developers easily qualify for joint inventorship.  However, AI owners may only claim joint invention if they can show that their contribution to the AI (e.g., the introduction of crucial data which the AI used in its invention process) was significant to the AI’s invention.  These issues are determined on a case-by-case basis.  Thaler, for example, is the owner and developer of DABUS, therefore, Thaler would be the “sole inventor” on the patent application for DABUS’s inventions.

Future plaintiffs in AI “inventor” cases should frame their case around joint ownership, instead of sole ownership.  In this way, the court would consider which humans could profit from AI inventions instead of AI personhood, a theory doomed by philosophical reasoning if not only textualism.  Using the “significant contribution” standard, the AI owner can never legally be named “sole inventor” in exclusion of the AI developers as joint inventors.  In contrast, naming the AI itself as “sole inventor” (as Thaler proposes) allows the AI owner to assign patent rights to himself and exclude the AI developers from benefitting.

A court could be more generous if it compares the implication of Thaler’s proposal to the Patent Act goals in the context of joint inventorship.  Using the USPTO’s interpretation, if AI machines are marketed to numerous owners, the developers profit from patents earned by each individual machine, whether or not any individual owner will profit.  Under Thaler’s interpretation, the one who owns the AI and applies for a patent will benefit from the AI’s invention.  In that case, the developers will only profit from the initial sale of the machine, not from the patent of any AI inventions.  The implication of the USPTO’s interpretation may threaten innovation, as a plaintiff of Thaler’s position might argue, because the individual owners have little incentive to produce valuable and innovative AI-generated inventions if they likely cannot profit from the patents of those inventions.

What happens if no humans can show that they made significant contributions to the AI?  According to public comments summarized by the USPTO, there is no such legal circumstance now.  To some, there never will be.  When the Patent Act says, “Whoever invents . . . may obtain a patent . . .” (emphasis added), it refers to he who contributes significantly to an AI invention (explained above).  AI is legally only a tool used by a natural person, who is himself the inventor.  The non-AI computer is a familiar example of a tool that can be used for invention, where it is obvious that the computer itself is not the “inventor.”  Thaler seems to imply that since no human could conceive DABUS’s inventions (e.g., the fractal geometry), DABUS is no longer a tool but the inventor himself.  Philosophically – and, as the court determines by statutory interpretation, legally – it seems clear that DABUS is only a tool used by Thaler, especially when considering that Thaler (and not DABUS, as he concedes) stands to profit.

AI (including DABUS) is limited to “narrow, application-specific objectives” in contrast to artificial general intelligence (AGI) which resembles human intelligence.  To picture AGI, imagine the AI portrayed in sci-fi movies, e.g., Ex Machina, AI that can pass The Turing Test.  Could AGI hypothetically graduate from “tool” to “inventor”?  The public opinion gathered by the USPTO is split on this question:  One side argues “no.”  Even AGI, they claim, has the same practical human origins as AI; there is no legal difference in patent law.  The other position is “who cares?”  To argue whether AGI is an “inventor” is to claim AGI’s moral personhood, a question best left for the field of philosophy that far exceeds the scope of this discussion.  One day, we may confront this issue in legal or technological reality.  For now, AGI is still a matter of imagination and cinema.

You Can Design Your Clothes, But Can You “Design” a Baby? Ethical Objections to Genetic Modification of Embryos and the Prevention of Diseases in the Unborn

November 22, 2021
Uncategorized

Zanna Tennant, MJLST Staffer

The term “designer babies” has been thrown around quite a bit by those who find the genetic modification of babies to be morally repugnant. However, these fears are often blown out of proportion considering the benefits that such genetic testing and modification can give to babies in utero. The age-old debate of science versus religion is evident here, as scientists argue that genetic alteration can save lives while many with religious or spiritual backgrounds fear the ethical implications. How the world and the law should react to this newer science is still very much a controversial topic. Many countries have banned genetic modification of embryos altogether, while some are still unsure how to proceed. Despite these fears, genetic alteration should not be completely abandoned. It has the potential to prevent genes for diseases from passing from parent to child and save lives. It should not, however, be completely unregulated. While it is difficult to say precisely how to regulate and who should be in charge of such regulations, this is something that governments and the world as a whole must decide. This is exactly the challenge genetic testing faces today, especially from those who oppose it on religious or ethical grounds.

Women or others who may be having trouble conceiving or are concerned about possible hereditary diseases are among those likely to pursue in-vitro fertilization, a process by which a sperm and an egg are combined in a lab. This process results in an embryo. “Designer babies” are babies that come from embryos created by in-vitro fertilization (IVF) and are specifically selected because of the presence of “good” genes like intelligence, or the absence of “bad” genes, such as BRCA 1.  The genes of the embryos are then altered through the process of heritable genome altering, whereby scientists alter the DNA of the egg, sperm or any other cells involved in the process in order to achieve a desired result.For example, suppose an embryo has the gene for sickle cell anemia. Diseases often show up in DNA in the form of a genetic alteration, such as the presence of an extra chromosome or the absence of one. The embryo in this example would be taken to a lab where a scientist could alter it to get rid of the gene for sickle cell anemia. Heritable genome altering could prevent life-altering disabilities and diseases in children who otherwise may not survive.

Despite the enormous lifesaving potential, there is a large movement against genetic alteration of embryos. One of the biggest challenges genetic alteration faces is whether it is ethical to alter the genes of an unborn child. Many fear that this genetic alteration would be used to change what they consider to be superficial genes, such as hair or eye color. They think this is man’s way of “playing God” and is unnatural. Factors such as religion and spirituality heavily influence what people think about gene altering of babies. Some see the altering of embryos as going against God’s wishes.  Along with this issue, people who believe that life begins at conception are concerned with the rights of the embryos. Similar to the controversial topics of reproductive rights and abortion, there are those who think that altering the genes of an embryo violates the human rights of what they perceive to be a living child. They see the embryo as already being alive and having the same rights as any post-birth child. On the other side, there are those, including many scientists, who do not conflate the embryo with a human child and find their beliefs in line with those who support the right to choose. People are also concerned about the unknown effects of gene alteration since it is a more recent development and scientists believe that the genetic alerting of DNA might affect future generations in unknown ways. There is also concern about increasing socio-economic inequality due to the high price tag that comes with genetic alteration. In vitro fertilization on its own is expensive, but genetic alteration is upwards of $500,000. Should this technology become available to the public, only the very wealthy would be able to afford it, thereby increasing the divide between the rich and the poor.  Because of the controversy surrounding heritable genome altering, legal systems in different countries are often unsure what to do.

Some forty countries, such as China and Japan , have completely banned heritable genetic altering. In 2019, a biophysicist in China was criminally charged with illegal medical practice and sentenced to three years in prison after he edited genes of two embryos which later became baby girls. He used a new tool, CRISPR, which allows scientists to more easily edit genes and DNA. He was universally condemned, save for the scientific community. There are other countries, however, that have not banned heritable genome altering. Rather, they have placed strict regulations on how it is to be used. In the United Kingdom, they have banned all forms of genetic alteration except for the modifications of nuclear mitochondrial DNA, which are heavily regulated. Mitochondrial DNA testing focuses on diseases in the mitochondria of a cell that can be passed down from mother to child. This testing allows potential families to determine if the mitochondria in the embryo has a disease and allows them to replace the defective part of the mitochondria with a healthy part. Clinical trials for mitochondrial replacement therapy are allowed in the UK, but they are only allowed for medical purposes. Similarly, mitochondrial replacement therapy is offered on a case by case basis only to those who meet the necessary medical criteria. Even in the few countries which have not outright banned genetic alteration, there is still strict regulation and strong public criticism.

As in the rest of the world, genome editing is controversial in the United States. Although it is not technically illegal, it is regulated under the FDA and the National Health Institute. Any genetic testing must be approved by the FDA, which is no easy task. Generally, the editing of somatic cells is allowed, while the editing of germline cells is still very much up for debate. Somatic cells are those cells which have already been differentiated as blood cells or liver cells, while germline cells are those in the egg, sperm, or embryo. Alerting somatic cells is akin to altering the function of cells. Germline editing, on the other hand, is the controversial case of actually altering the genes that determine who a person is. There are clinical trials that have been approved for the use of CRISPR in somatic cell editing.  Recently, the FDA stated that the use of federal money cannot be used to research germline editing, but it can go towards funding for somatic cell editing. While the US has yet to actually ban germline editing, there is essentially a moratorium on its use as it is disfavored by many government officials. However, the US does permit the use of preimplantation genetic screening (or diagnosis), which is either heavily regulated or banned in other countries. Preimplantation genetic screening is a process used to test embryos for genetic abnormalities that could indicate a disease and help parents to find a healthy embryo to use. It is used in the course of IVF and can help parents to increase the likelihood that their child will make it to term and be healthy. PGS raises similar ethical concerns to genetic alteration due to its focus on finding the best embryo and using science to change DNA, which is why it is banned in some countries.

Despite the numerous, and admittedly (mostly) valid concerns, it would be contrary to human progress to completely rule out heritable genome testing. This process can save the lives of thousands of children yet to be born and could even erase a disease from a family’s hereditary line. Although there are certain inherent risks, the only way for the world to move forward with this achievement is to allow, within reason, clinical trials to take place so that scientists can better understand how best to alter genes. The federal government should, with regulations enacted, encourage the use of gene altering. Although states have admittedly said very little about gene editing, they, too, should support its use. Only through controlled, regulated tests can the best practices and the unknown consequences of gene editing be discovered. The focus of gene editing should be on how it can progress the medical field. People’s fear that gene editing will be used for superficial purposes is unfounded, scientists claim, as there is not a one for one ratio between a gene and, say, the trait for blue eyes. Scientists can better predict hair or eye color, but they cannot determine these traits with one hundred percent certainty, nor can they easily find and gene and determine that it is the gene for intelligence.The government could also easily limit gene editing for health reasons and medical research, thereby making this fear irrelevant. The US government, unlike other countries, has yet to really take a stand one way or the other when it comes to gene editing. It is time that the federal government get behind this scientific wave that could potentially erase diseases altogether from the human population.

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