Archive for February 2009

Legal Issues Arising From New Requirements for Licensing of Computer Forensics in Michigan

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by: Rodney Tolentino, Associate Editor, MTTLR

<a href=There is a current trend among states, including Texas, Georgia and South Carolina, to require computer forensic technicians to be licensed by state agencies as private investigators.1 On May 28, 2008, Michigan joined these states in requiring persons performing computer forensic services to be licensed as private investigators.2 Under the Professional Investigator Licensure Act,3 those who provide services regarding the “collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers . . . .”4 are required to have professional investigator licenses issued by the Department of Labor and Economic Growth before performing these services.5 If a person performs computer forensic work without being licensed, then the violator is guilty of a felony and subject to imprisonment for up to four years, a civil fine up to $25,000 or a criminal fine of up to $5,000.6

Why does this matter? The Recording Industry Association of America has been using an investigative company to help identify computer users who download songs illegally in order to file suit against those users for copyright infringement, but parties in Michigan have fought these efforts by alleging that the investigative company is unlicensed and thus conducting its investigations illegally.7 Additionally, the trend of requiring computer forensics experts to be licensed as private investigators is not ending with Michigan. The Private Protective Services Board, the state agency in North Carolina that regulates private investigators, is proposing a separate license category for “Digital Forensic Examiners” and will require 3,000 hours of digital forensics experience in order to obtain such a license.8

The American Bar Association is recommending that states refrain from requiring computer forensics experts to be licensed as private investigators.9 Among the reasons for opposing state licensing is that the licensing requirements create thorny jurisdictional issues.10 I will discuss some of the legal issues the Professional Investigation Licensure Act of Michigan raises, including due process, jurisdiction, and dormant Commerce Clause doctrine, and in what circumstances would the legislation regarding state licensing of computer forensics technicians as private investigators be permissible.

Commentators have noted that the Professional Investigation Licensure Act is so broad in its definition of “computer forensics” that it requires someone printing a Web page for use in court to be licensed as a private investigator.11 In such an application of the statute, it could be argued that the definition of “computer forensics” is too broad and thus a violation of procedural due process. “[T]he guaranty of due process, as has often been held demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.”12 A plaintiff burdened by this new law could argue that sanctioning someone with jail time or fines for printing out a Web page is a violation of due process because such information is easily accessible and has no “real and substantial relation” to the objection of protecting the public from incompetent private investigators.

In its recommendation the ABA poses the following hypothetical example of the jurisdictional issues the private investigation licensing regulations create: “For example, data may need to be imaged from hard drives in New York, Texas, and Michigan. Does the person performing that work need to have licenses in all three states?”13 Professor Bruce Boyden of Marquette University Law School would answer this question in the negative; he claims that states would not have jurisdiction over technicians performing computer forensic services out-of-state.14 To support this proposition, he cites Boschetto v. Hansing.15 In Boschetto, a California plaintiff purchased a car from a Wisconsin dealership through eBay and arranged to have the car delivered to California, but the Ninth Circuit held that the one-time transaction was not enough to establish the minimum contacts needed to support personal jurisdiction.16 A computer forensics expert gathering the digital information needed to identify a particular individual in a one-time transaction would not be enough to establish a “substantial connection” with the forum.17 Therefore, states that have enacted licensing statutes, such as Michigan, would be able to enforce them only on defendants with strong connections to those states.

However, if Michigan chooses to assert jurisdiction based on where the information is located, Boyden argues that the Private Investigator Licensure Act would violate the dormant Commerce Clause power.18 Requiring computer forensic technicians to be licensed as private investigators would require technicians to be licensed in all states where information could be located.19 Considering the “slim” benefit of requiring licensing for the gathering of easily attainable information, such licensing would be unduly burdensome on interstate commerce.20

Professor Allan Stein has proposed a different approach to thinking about personal jurisdiction in the Internet era, which would solve the potential dormant Commerce Clause problem. He states that, with regard to “Internet-inflicted” injuries, because the entire conduct was electronic, it is difficult to determine jurisdiction because the defendant may not have known which states would experience the results of her actions, and the defendant may not have the ability to control the reach of the conduct.21 Stein proposes that in determining whether to assert jurisdictions, courts should ask themselves how hard it would be for defendants to tailor their conduct in response to the laws of different states.22 If defendants are able to avoid jurisdiction easily and if the state has an interest in regulating the prohibited conduct, then a state court’s assertion of personal jurisdiction can be justified.23 Applying this “regulatory precision”24 approach to Michigan’s Professional Investigation Licensure Act, if technology allows an unlicensed computer forensic expert to determine with minimal burden that it is gathering information on the resident of a state that requires computer forensic technicians to be licensed as private investigators, then a state court would be justified in asserting personal jurisdiction. Emerging technologies will make it easier to avoid such jurisdictions.25

Absent such technologies, however, Boyden would argue that requiring private investigator licenses for computer forensic technicians would be a violation of dormant Commerce Clause doctrine.26 Stein also cites a case where a state statute was invalidated because the benefit from the statute could not be justified against the “extreme burden on interstate commerce.”27 Stein recognizes the conflict between states’ authority to “protect its inhabitants without excessively constraining extraterritorial conduct beyond its regulatory authority.”28

Stein’s “regulatory precision” approach, assuming the existence of technology allowing companies to avoid jurisdictions where their conduct would be illegal, would allow the states to protect its residents from abusive and unethical private investigation as it relates to computer forensics without violating the Commerce Clause.



1 ABA Section of Science & Technology Law, Recommendation 301, at 2-3 (2008), available at http://www.abanet.org/scitech/301.doc [hereinafter ABA Recommendation].
2 John Tredennick, Collecting Computer Data in the U.S.: Pick the Wrong State and You Could Wind Up in Jail, Law Technology Today, July 2008.
3 Mich. Comp. Laws § 338.821 (2008), available at http://www.legislature.mi.gov (enter 338.821 in MCL Section text box).
4 § 338.822(b), available at http://www.legislature.mi.gov (enter 338.822 in MCL Section text box).
5 § 338.823(1), available at http://www.legislature.mi.gov (enter 338.823 in MCL Section text box).
6 § 338.823(2-3), available at http://www.legislature.mi.gov (enter 338.823 in MCL Section text box).
7 See Letter of Doe #5, LaFace Records LLC v. Does 1-5 (W.D. Mich. 2008) (No. 2:07-cv-177). See also complaint to Michigan Department of Labor & Economic Group, (filed by general counsel of university alleging violation of Professional Investigator Licensure Act).
8 North Carolina Business Litigation Report, (Sept. 24, 2008).
9 ABA Recommendation, supra note 1, at 2.
10 Id. at 14.
11 See posting of Bruce E. Boyden to Marquette University Law School Faculty Blog, (Sept. 5, 2008) [hereinafter Boyden Post].
12 McAvoy v. H.B. Sherman Co., 258 N.W.2d 414, 436 (1977) (citing Nebbia v. New York, 291 U.S. 502, 525 (1934)).
13 ABA Recommendation, supra note 1, at 14.
14 See Boyden Post, supra note 11.
15 539 F.3d 1011 (9th Cir. 2008).
16 Id. at 1019.
17 See id. at 1018 n.4.
18 Boyden Post, supra note 11.
19 Id.
20 Id.
21 Allan R. Stein, Personal Jurisdiction and the Internet: Seeing Due Process Through the Lens of Regulatory Precision, 98 Nw. U. L. Rev. 411, 443 (2004).
22 Id. at 450.
23 See id. at 451-52. Stein cites the U.S. Supreme Court case Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), as consistent with this approach.
24 Stein, supra note 20, at 447.
25 Id. at 452.
26 See Boyden Post, supra note 11.
27 Stein, supra note 20, at 428.
28 Stein, supra note 20, at 412.

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February 20th, 2009 at 3:26 pm

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The Implication of Quanta for Patentees

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by: Ali-Reza Boloori, Associate Editor, MTTLR

"Pen to paper" CC by-nc by <a href=The Supreme Court in Quanta Computer, Inc. v. LG Elecs., Inc.1 made a broad, contemporary affirmation of the principle of patent exhaustion. By answering in the affirmative the question of “whether patent exhaustion applies to the sale of components of a patented system that must be combined with additional components in order to practice the patented methods,”2 the Court held that exhaustion prevents infringement liability even when a purchaser violates an express restriction which the patentee has placed at the time of sale.
This piece reviews the case, and provides a summary of some of its implications for patentees who seek to maintain some control over downstream activities through their licensing activities.

Factual background and procedural history

LG Electronics (LGE) had procured a portfolio of systems and methods relating to computer technology, including three of the patents at issue in this case (LGE Patents). In its dealings with Intel, LGE entered into two agreements. First, through a cross license (License), LGE permitted Intel to “make, use, sell (directly or indirectly), offer to sell, import or otherwise dispose of” Intel’s own products that practiced LGE Patents. It is important to note that none of Intel’s products were capable of practicing the LGE Patents on their own, and needed to be combined with other computer components before they actually practiced the invention. Notably, the License expressly disclaimed any license from being granted to third parties for combining Intel articles made under the License with parts made by other manufactures. The License additionally provided that “[n]ot withstanding anything to the contrary, the parties agree that nothing herein shall … limit or alter the effect of patent exhaustion that would otherwise apply when a party hereto sells any of its Licensed Products.”

Another component of the LGE-Intel agreement consisted of the Master Agreement, which inter alia required Intel to notify its customers that the LGE-Intel License did not extend to any product made by combining the licensed Intel product with products made by third parties. Importantly, the Master Agreement contained a provision that its breach would have no effect on the LGE-Intel License, and would not be grounds for its termination. The reason for the additional requirement in the Master Agreement seems to be that LGE wanted to charge additional royalties from Intel’s customers for combining Intel licensed products with non-Intel products.

As a customer, Quanta purchased licensed Intel products and proceeded to build computers using Intel’s specifications and therefore practiced the patented methods and systems licensed by LGE to Intel. In contravention of the Master Agreement, however, Quanta combined the licensed products with non-Intel components. LGE then sued Quanta for patent infringement.

The district court3 granted Quanta partial summary judgment on LGE’s infringement claim. While the licensed products did not practice any of LGE Patents on their own, since they had no reasonable use other than in practicing the invention, their authorized sale triggered patent exhaustion under United States v. Univis Lens Co.4 The court, on reconsideration, held that as a matter of law, patent exhaustion only applies to LGE’s system claims, and not LGE’s method claims. Furthermore, it held that while LGE could have imposed conditions on the sale of essential components of its inventions, it had not done so here: the evidence did not establish that Quanta had agreed to the notice conditions that Intel was supposed to give to its customers in pursuant of the Master Agreement. Therefore, Quanta’s purchase from Intel was unconditional sale, and patent exhaustion applied.

The Federal Circuit affirmed-in-part—as to the district court’s ruling that exhaustion does not apply to method claims5–but reversed-in-part on the ground that exhaustion did not apply to LGE’s system claims. The Federal Circuit based the reversal on the argument that LGE did not license Intel to sell licensed products to Quanta for use in conjunction with non-Intel products.

At the Supreme Court

In a unanimous decision, the Supreme Court reversed the Federal Circuit on all issues. First, it held that exhaustion applies to method claims. Relying on its own precedents, the Court explained that in both Ethyl Gasoline Corp.6 and Univis7, it had already held that “sale of an item that embodied the method”8 exhausted method claims. Holding otherwise would undermine the patent exhaustion doctrine, since it would be very easy for patentees seeking to avoid patent exhaustion to form method claims in place of system claims. Moreover, the court noted that there was no significant difference between method and system claims that in turned required an exception to the patent exhaustion doctrine for the former claim types. In short, the court rejected a categorical exclusion of method claims from the application of patent exhaustion in the context of a sale of a device covered by corresponding system claims.

The Court next ruled on the sufficient degree to which a product must embody a patent for exhaustion to be triggered. Since the only reasonable and intended use of the Intel products was to practice the LGE Patents, and since the only remaining steps required by Quanta to fully practice the LGE Patents was “application of common processes or the addition of standard parts,”9 Intel’s licensed products sufficiently embodied the essential features of the patented invention.

Finally, the Court held that the Intel-Quanta sale was “authorized” by the patentee, and therefore under Univis, LGE’s patent rights were exhausted. Although the Master Agreement required Intel to notify purchasers that they were not authorized to combine the licensed products with non-Intel parts, LGE did not argue that Intel breached this agreement. Rather, the License itself gave Intel an unconditional right to sell the patented invention, the only factor required for patent exhaustion to apply.

Where does Quanta leave patent exhaustion?

In summary, Quanta stands for the proposition that unrestricted, authorized sales of articles that at minimum substantially embody patentedg inventions—based on either method or system claims—trigger patent exhaustion. The first point to be taken away from this case is that patentees may still place express restrictions on their licensees to avoid triggering patent exhaustion. What the Court insisted on in Quanta, however, was that such restrictions be clearly stated within the patent license.10

In addition, the Court suggests that even if patent exhaustion bars patentees under similar circumstances from seeking damages under patent law, breach of contract claims may still be viable options for seeking redress11. Contract law, however, is a less desirable source of redress than patent law for several reasons: first, breach-of-contract claims require both privity and agreement between the patentee and purchasers. These factors are typically absent between the original patentee and purchasers even one level downstream from the original purchaser. Moreover, patent laws typically provide stronger relief for patentees, especially since the Patent Act allows for treble damages.12


1 Quanta Computer, Inc. v. LG Elecs., Inc., 128 S. Ct. 2109 (2008).
2 Quanta, 128 S. Ct. at 2113.
3 LG Elecs., Inc. v. Asustek Computer, Inc., 65 U.S.P.Q. 2d 1589, 1593, 1600 (N.D. Cal. 2002).
4 United States v. Univis Lens Co., 316 U.S. 241, 62 S. Ct. 1088 (1942).
5 LG Elecs. Inc. v. Bizcom Elecs. Inc., 453 F.3d 1364 (Fed. Cir. 2006).
6 Ethyl Gasoline Corp. v. United States, 309 U.S. 436 (1940)
7 Univis, 316 U.S. 241.
8 Quanta, 128 S. Ct. at 2122.
9 Quanta, 128 S. Ct. at 2120.
10 Quanta, 128 S. Ct. at 2122 (stating that “[n]othing in the License Agreement limited Intel’s ability to sell its products practicing the [LGE Patents]”).
11 Quanta, 128 S. Ct. at 2122 n.7 (noting that “the authorized nature of the sale to Quanta does not necessarily limit LGE’s other contract rights. LGE’s complaint does not include a breach-of-contract claim, and we [the Court] express no opinion on whether contract damages might be available even though exhaustion operates to eliminate patent damages.”).
12 See 35 U.S.C. § 284 (2000).

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February 18th, 2009 at 2:52 pm

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Tiffany v. eBay – Transnational Trademark Problems?

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by Jeff Liu , MTTLR Associate Editor

Last summer, a federal district court ruled, in Tiffany v. Ebay, that online marketplace eBay was not liable under trademark and unfair competition law for facilitating the sale of counterfeit items on its website. The court noted that it is a “Trademark owner’s burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring.” Some U.S.-based commentators praised the decision; others were somewhat more critical. Few, however, commented on the way this decision has the potential to the put the U.S. directly at odds with several key European Union countries on contributory liability for trademark violations.

While this decision represents a victory for eBay and other online marketplaces in the United States, courts in other countries have shown less sympathy for eBay. Especially in European jurisdictions decisions have tilted in support of trademark holders rather than the operator(s) of online marketplaces. Several judicial decisions handed down by countries in the European are opposite to the decision handed down in Tiffany Inc. Two important decisions highlight the conflict at hand. On June 30, 2008, a French court ordered eBay to pay 61 million dollars in compensation to LVHM for allowing the sale of fake merchandise on its website. Just a month earlier, another French court had ordered eBay to pay Hermes a compensation of 20,000 Euros for the sale of counterfeit merchandise on its website. And both of these decisions come in light of decision by a German appeals court in April, 2008 against eBay on the same issue. The German appeals court ruled eBay had to take preventive measures against the sale of fake Rolexes on its website. Both the French and German courts seem to have taken the position that eBay has a responsibility to prevent the sale of counterfeit goods on its website, but the U.S. court has taken the opposite position, that the burden falls onto the holder of the trademark. In an increasingly global marketplace, this conflict will have to be resolved.

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February 12th, 2009 at 9:13 pm

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Testing the Scope of Fuel Economy Standard Preemption: The New York Taxicab Cases

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by: Joshua E. Ney, Associate Editor, MTTLR

Image Feeding Frenzy by 54east. Used under a Creative Commons BY-NC 2.0 license.

Under the Energy Policy and Conservation Act (EPCA), the National Highway Traffic Safety Administration (NHTSA) prescribes corporate average fuel economy (CAFE) standards for passenger automobiles and light-duty trucks.1 The CAFE standards specify a minimum fleet-wide average fuel economy applicable to manufacturers in a given model year.2

Since the enactment of the EPCA, the NHTSA has exercised this authority with relatively unchallenged exclusivity. The EPCA’s express preemption clause forbids States to “adopt or enforce a law or regulation related to fuel economy standards.”3 Until recently, few states had sought to regulate automobile fuel economy, and no court had determined that a state or local law violated this preemption clause. That changed on October 31, 2008, when a federal judge blocked the implementation of a new rule promulgated by the New York City Taxi & Limousine Commission (TLC).4 The ongoing legal battle is giving courts their first opportunity to define the scope of EPCA preemption.

The 2007 Rule: Preemption of State-Mandated Fuel Economy Standards

On December 11, 2007,5 the TLC approved a rule (the “2007 Rule”) requiring all taxicabs coming into service on or after October, 1, 2008, to have “a minimum city rating of twenty-five (25) miles per gallon.”6 Beginning October 1, 2009, the 2007 Rule would require all taxicabs coming into service to have a minimum rating of thirty (30) miles per gallon.7 In contrast, most of the current taxicabs in the City achieve only 12–14 miles per gallon.8

In September 2008, a coalition of affected parties filed a complaint in the United States District Court for the Southern District of New York, asserting that the EPCA preempted the 2007 Rule.9 The plaintiffs included the Metropolitan Taxicab Board of Trade (MTBOT), a trade association made up of taxicab fleets in the City.10 The court granted the plaintiffs’ motion for a preliminary injunction, finding that the plaintiffs had “demonstrated a likelihood of success on the issue of preemption.”11 In the court’s view, “Congress’s undoubted intent was to make the setting of fuel economy standards exclusively a federal concern.”12 Thus, the 2007 Rule fell squarely within the “ordinary meaning” of the EPCA’s preemption clause.13 The court rejected the City’s argument that the preemption clause only applies to fuel economy standards as they relate to manufacturers or sellers (as opposed to consumers, such as taxi owners).14

The 2008 Rule: Preemption of Voluntary Fuel Economy Incentives?

Following the district court decision, New York City Mayor Michael Bloomberg announced that the City would replace the enjoined 2007 Rule with “a series of initiatives to increase the use of fuel efficient and environmentally friendly taxicabs, through new financial incentives.”15 The incentives proposed by the Mayor (the “2008 Rule”) involve the City’s taxicab “lease cap” system. Under the “lease cap” system, a taxicab owner leasing his or her licensed taxicab to a driver may not charge a lease rate greater than the Standard Lease Cap.16 The Standard Lease Cap currently ranges from $105 to $129 per shift, depending on the time of the shift.17 Under the proposed 2008 Rule, fleet owners leasing fuel efficient vehicles will be allowed to charge drivers an additional $3 per shift, while the lease cap applicable to owners of non-fuel efficient vehicles will decrease by $12.18 These incentives are intended to compensate for the higher cost of purchasing fuel efficient vehicles.19

The precise contours of the 2008 Rule will not be clear until the TLC completes a formal rulemaking process.20 However, the president of the MTBOT has already voiced his intention to challenge the Rule.21 This legal challenge will tee up a novel question regarding the scope of EPCA preemption: May a State or political subdivision adopt voluntary incentive programs to encourage the purchase of fuel efficient vehicles where it could not have mandated the purchase of such vehicles?22

To resolve this question, the court will need to determine whether the 2008 Rule is “related to fuel economy standards” within the meaning of the EPCA’s preemption clause. In general, where a federal statute contains an express preemption clause, the preemption determination rests on the “plain wording” of the clause.23 In this case, however, the preemption clause’s use of “related to” language renders a simple “plain wording” analysis problematic.24 The Supreme Court has pointed out that “[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes preemption would never run its course, [and the effect would be] to read the presumption against preemption out of the law.”25 Rather, the court must “go beyond the unhelpful text and the frustrating difficulty of defining [‘related to’] and look instead to the objectives of the [EPCA] as a guide to the scope of the state law that Congress understood would survive.”26

In light of this guidance, the court must answer the following question to determine whether the EPCA preempts the 2008 Rule: In enacting the EPCA, did Congress intend to withdraw from the States the authority to provide economic incentives influencing consumer choices with respect to vehicle fuel economy? If the answer is yes, then the 2008 Rule “relates to” fuel economy standards, and the EPCA preempts the Rule. If the answer is no, then the 2008 Rule does not “relate to” fuel economy standards and survives EPCA preemption.27 This case will present a matter of first impression for the court. Furthermore, the Committee reports accompanying the bill that became the EPCA did not discuss the intended scope of the statute’s preemption clause.28 Thus, it is difficult to predict how the court will rule. Stay tuned.


1 The EPCA directs the United States Secretary of Transportation to prescribe the CAFE standards. 49 U.S.C. § 32902(a) (2006). The Secretary has delegated this authority to the NHTSA. 49 C.F.R. § 1.50(f) (2006).
2 49 U.S.C. § 32901(a)(6).
3 49 U.S.C. § 32919(a) (“When an average fuel economy standard prescribed under [the EPCA] is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under [the EPCA].”)
4 Metro. Taxicab Board of Trade v. City of New York, No. 08 Civ. 7837 (PAC), 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008).
5 Press Release, New York City Taxi & Limo. Comm’n, TLC Unanimously Approves Regulations Leading to a Cleaner, Greener NY Taxi Fleet (Dec. 11. 2007).
6 New York, N.Y., TLC Rule § 3-03(c)(10) (2008).
7 TLC Rule § 3-03(c)(11).
8 William Neuman, As First Plan Stalls, Mayor Tries New Push for Green Taxis, N.Y. Times, Nov. 14, 2008.
9 Metro. Taxicab, 2008 WL 4866021, at *1.
10 Id.
11 Id.
12 Id. at *8 (quoting Green Mountain, 508 F. Supp. 2d at 307).
13 Id. at *9.
14 Id. (citing Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004), (holding that a state law that restricted emissions in new vehicles was preempted by the Clean Air Act regardless of whether it targeted purchasers or manufacturers.))
15 Press Release, Office of the Mayor, New York City, Mayor Bloomberg Announces New Incentive/Disincentive Program to Reach Goal of Green Taxi Fleet (Nov. 14, 2008).
16 New York, N.Y., TLC Rule § 1-78(a) (2008).
17 TLC Rule § 1-78(a)(1).
18 Press release, Office of the Mayor, New York City, supra note 15.
19 Id.
20 Id.
21 Neuman, supra note 8.
22 Cf. Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246, 255 (2004), (declining to resolve the application of Clean Air Act preemption to voluntary incentive programs).
23 Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 351 (D. Vt. 2007).
24 See Id. at 353.
25 See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (cited in Green Mountain, 508 F. Supp. 2d at 353).
26 See Green Mountain, 508 F. Supp. 2d at 353 (quoting Travelers 514 U.S. at 656).
27 In context of the federal ERISA statute, whose express preemption clause also includes broad “relate to” language, the Supreme Court has found that a state program did not “relate to” the federal requirements where the state program “merely provide[d] some measure of economic incentive to comport with the State’s requirements.” Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 332 (1997).
28 Green Mountain, 508 F. Supp. 2d at 354.

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February 10th, 2009 at 9:12 pm

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Criminal charges for cell-phone self-portraits – more harm than good.

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by Melanie Persinger, MTTLR Associate Editor

Image Lincoln by Katy/teapics. Used under a Creative Commons BY-NC-SA 2.0 license.

As new technologies become part of our lives, teenagers figure out a way to use these technologies to do what it is they do best: get themselves into trouble. Cell phones and picture messaging are no exception. This fall, a fifteen-year-old girl in Ohio was arrested for taking nude photographs of herself and sending them to other minors. The teenager was charged with illegal use of a minor in nudity oriented materials and possession of criminal tools under Ohio law 2907.323(A)(3). The charges could also qualify the girl to be classified as a sex offender, requiring her to register annually. An Ohio prosecutor, Ken Oswalt, said that the other minors who received the photographs might also be charged for possession of child pornography.

The Ohio case was recently settled out of court, and the young woman in that case will not have to register as a sex offender. But the law at issue was Ohio’s version of Megan’s law, which has been enacted, with slight variations, in all fifty states and the District of Columbia. This means that a similar case could potentially come up anywhere in the United States. In fact, the case in Ohio is by no means the first instance of a minor being faced with criminal charges for taking and sending, or posting online, nude photographs of themselves. According to Fox News, “Similar cases have been reported in New Jersey, New York, Alabama, Utah, Pennsylvania, Texas and Connecticut.” Michigan and Florida have also seen similar cases. Because this is a growing trend, it is important to ask ourselves if criminal charges are the appropriate way to deal with these teenagers’ misconduct.

The aim of laws of this type (preventing sexual offenses against minors) is to prevent harm to the child. Proponents of the law in issue argue that this means protecting children from harm they could cause to themselves in addition to protecting them against harm caused by others. While the current law does this to a certain extent, it is also overly broad in that it imposes a different, and arguably worse, harm on the minor. It is true that once the photographs become public, they will likely haunt the teenager forever or could possibly end up in the hands of adults who are looking for child pornography, both of which are harms that we should be concerned about. However, imposing criminal charges will not undo the fact that the photograph(s) are now out in public. Additionally, imposing criminal charges, especially requiring the minor to register as a sex offender, is also likely to haunt them forever. It is hard to see how preventing harm to minors justifies imposing other harms on them: the stigma of a criminal record and being labeled as a sex offender.

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February 10th, 2009 at 9:07 pm

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