Archive for the ‘Commentary’ Category

Killer Robots on the Horizon for Weapons Technology

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With advances in technology and artificial intelligence, the development of fully autonomous weapons has become closer to reality. Lethal Autonomous Weapons Systems (LAWS), more commonly known as “killer robots,” are different from the drones utilized by the military today in that they will be capable of selecting and engaging targets independently. The concern over the potential ramifications of LAWS has led to an international discussion which is riddled with moral undertones; the prospect of giving a robot the “choice” and power to kill seems wrong to humanitarian rights groups. The effect LAWS could have on military operations is astounding: with autonomous robots in play there is a reasonable possibility of completely removed and emotionless combat. The fear is that these killer robots will be able to make the ultimate decision regarding who lives and dies. The use of LAWS will undoubtedly affect international relations and pose a serious challenge for international law. There is a debate about whether killer robots will even be permitted in warfare, due to possible compliance issues with the international obligations set forth in the UN Charter and the Geneva Convention. As of now, LAWS are not being utilized in the field since they are not yet completely operational, but the United Nations is seeking to anticipate the potential issues and address the problem before the situation spirals and a race to the bottom ensues. The United Nations met in May to consider the potential social and legal implications of killer robots, and one major legal issue is liability. There is some ambiguity regarding who will be held liable if a robot “commits” a war crime or human rights violation. Should the manufacturer be held liable? The military commander? The programmer? The robot itself? Would an autonomous robot even qualify for personhood in a liability context? International humanitarian and human rights law demands that responsibility be determined should research continue and LAWS come to fruition. This is a complicated question given that while the seemingly obvious answer would be the military commander (absent some sort of product defect, in which case the manufacturer or programmer would be liable), the commander does not have complete control over the robot. LAWS will theoretically be able to identify and engage targets based on an algorithm that was created by a programmer. So if the robot screws up and kills a civilian, is it the programmer’s fault due to a glitch in the code or the commander’s fault for not carefully monitoring the robot’s activities and catching the mistake? 117 States are parties to the Convention on Certain Conventional Weapons, which was created to restrict the use of certain types of weapons that may affect civilians indiscriminately, an umbrella that killer robots certainly fit beneath. The addition of LAWS to the banned weapons covered by the Convention may prove to be critical in preventing a race to the bottom among countries with the technological capability of producing killer robots. The outcome of the UN’s Geneva discussions will be reviewed at the formal conference of the Convention on Certain Conventional Weapons later this month, where states will discuss possible next steps on autonomous weapons.

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December 18th, 2014 at 5:20 pm

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“We Don’t Care”? Maybe Kanye should…

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140 characters may not seem like enough room to really say something of value. But if Kanye West is saying something, it can be worth a lot more than one may expect. Etsy seller “supervelma” has hand-stitched popular tweets from the rapper Kanye West onto fabric, framed them, and is currently selling them for $45 each on the online craft retailer Etsy. Understandably, West may be upset that someone else is profiting off of his hard-earned Twitter notoriety, but does he have a remedy? Copyright is the traditional form of protection for works of art. Having a registered copyright can prevent others from reproducing the work, making a derivative piece of art based on your original work, or further diluting the value of your work by displaying it. West could argue a claim of copyright infringement, however he may encounter difficulty proving that a tweet can actually receive copyright protection. Many tweets simply state facts—which cannot be protected by copyrights—or link to news articles, whose headlines are generally found to be insufficiently creative to warrant copyright protection. It is also debatable whether a tweet like, “Fur pillows are hard to actually sleep on” meets the de minimis requirement of creativity that a copyrighted work must have. Most copyright experts agree that there is not a bright line rule about whether tweets can gain copyright protection; a copyrightable tweet would certainly be the exception rather than the norm because of the observational nature of Twitter. West—a professional wordsmith—might be able to make a stronger argument than most that his tweets go beyond mere observations, and are artistic expressions that might even make it into future albums. Viewing his tweets as strings of song lyrics may convince a judge that his entire Twitter history, or at least some of his more introspective and personal tweets, would warrant the protective shield of a copyright. Even without a copyright, West would likely prevail because of the use of his name and “likeness”—in the form of a hand-stitched avatar on the cloth. Most states have held that people are entitled to a “right of publicity,” which recognizes a property right in the commercial value of a person’s identity. The commercial value of the name Kanye West, and the public image he has developed, is clearly what is driving the market for these embroideries. While “supervelma” does offer customers the chance to custom order whatever tweets they would like, West’s tweets are what gained the recognition of popular website Buzzfeed and undoubtedly drove up business. West certainly has grounds to seek an injunction to stop “supervelma” from continuing to produce these items, and depending on the state statute regarding remedies he could also sue to recover for any damages and may even be able to get exemplary damages if a jury felt they were appropriate. Public figures should be aware that the same media making them more available to fans can also provide more material for appropriation, and it may be worthwhile to increase their monitoring of retail websites like Etsy, Amazon, and eBay for unauthorized products.

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December 1st, 2014 at 1:44 pm

Posted in Commentary,Technology

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SOPIPA: A first step towards national standards for student data protection

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In recent years, school districts have begun incorporating computers and tablets in the classroom to instantly deliver personalized content and interactive technologies to enhance student learning.  However, the increasing use of technology in classrooms coupled with the expanding market for targeted advertising has sparked major concerns over third-party collection and use of student data. Children are particularly vulnerable because, unlike adults who generally understand the implications of consumer privacy policies, children are unable to give any sort of meaningful consent to the type of collection scheme utilized by education technology companies.  While the federal law does offer some protection to the online privacy of children, these laws were written before the information era of smartphones and cloud storage. On Sept. 29, California became the first state to pass a sweeping law that protects the use of student educational data by third-party vendors.  The Student Online Personal Information Protection Act (SOPIPA) prohibits online education service companies from selling and/or using student data for purposes of targeted advertising.  Specifically, it prohibits the use of "information, including persistent unique identifiers, created or gathered by the operator's site, service, or application, to amass a profile about a K-12 student, except in furtherance of K-12 school purposes."  The law also requires online service providers to implement security procedures to protect student data and requires that these providers delete data at the request of a school. In response to SOPIPA, certain key industry players signed onto a pledge to adopt similar student data protections nationwide.  By signing the pledge, the participating companies publicly promise not to sell information or conduct targeted advertising using data obtained from K-12 students. This pledge is not legally binding, but does leave the participating companies open to enforcement actions by the Federal Trade Commission.  Notably, Google refused to sign the Pledge, despite that fact that SOPIPA was pushed through largely in response to breaking news that Google was scanning student emails for advertising purposes. According to social media attorney Bradley Shear, “Google's refusal to sign the industry backed pledge appears to be an acknowledgement that if it signs the Pledge it will be in violation of Article 5 of the FTC Act regarding unfair and deceptive trade practices.” A lack of federal standards allows companies like Google to continue questionable data collection practices.  The lack of federal standards also makes compliance with SOPIPA and other state-implemented privacy laws extremely difficult for online education companies that provide services in multiple states. While SOPIPA has the potential to serve as a template for federal reform, there are some ambiguities in the law that should be addressed.  First, it is unclear what is encapsulated by the phrase “K-12 school purposes.”  Should it be read narrowly to cover services used solely for instructional and educational purposes or more broadly to cover products used for administrative functions like storing student records?  Arguably, the provision could be interpreted to include social media sites that have some educational connection but are not exclusively used for K-12 purposes.  Furthermore, because SOPIPA does not include any user control provisions, a school might elect to retain student records for educational analytics purposes for an unlimited amount of time.  In addition to clarifying the definition of K-12 purposes, federal legislation should consider including such user control provisions in order to give students and parents some ability to decide how their data is collected, used, and stored. Regardless of these ambiguities, SOPIPA represents an admirable first step towards establishing national standards for student data protection.  

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November 24th, 2014 at 1:18 pm

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Is Genius.com the Next Napster?

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Back in 1999, two tech nerds named Shawn Fanning and Sean Parker upended the entire music industry with the launch of their peer-to-peer music sharing service Napster. All of a sudden, music consumers could get any song they desired for the price of “free.” In less than a year, Napster had over 20 million users. Napster obviously facilitated copyright infringement and the music industry responded strongly, fronted by the RIAA (Recording Industry Association of America) and high-profile artists such as Lars Ulrich from Metallica and Dr. Dre. By July of 2001, the RIAA’s lawsuit successfully shut down Napster. While the music industry may have won the Napster battle, it looks like it's still losing the digital war over free distribution of copyrighted property. According to the RIAA, record sales in the US have dropped 47%, from $14.6 billion in 1999 to $7.7 billion in 2009. Some studies have found that music piracy worldwide accounts for an economic loss of $12.5 billion year. Other studies claim that economic loss to the music industry is beside the point of copyright protection. As the argument goes, copyright protection exists to incentivize the creation of new works, and according to some analysts, high quality musical creations are still produced at high volumes even since the “Napster Revolution.” While online piracy of digital music is a fairly obvious and high-profile example of intellectual property theft, artists and record labels stand to be highly compensated through means other than record sales. Whenever a bar plays a copyrighted song on a jukebox or a network covering a football game broadcasts a famous tune played by a marching band, royalties are owed to those that own the song’s publishing rights. But more recently, some in the music industry are waging a new war on a seemingly more innocuous strand of copyright infringers: lyric websites. Leading this charge are Camper Van Beethoven, The Cracker frontman David Lowrey and the National Music Publishers Association (NMPA). The NMPA claims that websites that post song lyrics on their sites make revenue through ad sales, but none of these lyrics are licensed and no money goes to the copyright holders. Lowrey compiled a list of the 50 worst offenders. Number one on the list: Genius.com. Genius, which was rebranded from Rap Genius in July of 2014 and raised $40 million in investor funding this spring, claimed that it stood apart from the other websites posting lyrics. As one of the founders Ilan Zechory put it “The lyrics sites the N.M.P.A. refers to simply display song lyrics, while Rap Genius has crowdsourced annotations that give context to all the lyrics line by line, and tens of thousands of verified annotations directly from writers and performers. These layers of context and meaning transform a static, flat lyric page into an interactive, vibrant art experience created by a community of volunteer scholars.” Now Genius is expanding their content beyond just music lyrics, hoping to be a forum for interactive annotation and discussion in the realms of literature, news, and scholarship. When first confronted by the NMPA and Lowrey’s “take down” notice, Genius implied through the press that their use of the lyrics constituted “fair use” since it was being used for the purposes of commentary and criticism. The NMPA and Genius, however, have yet to make their arguments in court. Currently, Genius has begun entering into licensing deals with a number of publishing companies, thereby staving off a potential collapse to their business model. But the bigger issue may be whether artists and publishers are well served by being “copyright maximalists,” going after every threat posed to their intellectual property. The music industry may be better served by allowing consumers to freely interact with some intellectual property in a meaningful way, and potentially reap the benefits of that heightened interest through other avenues of revenue. Perhaps sites like Genius can help resuscitate the music industry in a way Napster never could.

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November 6th, 2014 at 11:02 pm

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Yielding to FCC Pressure, Verizon Scraps Plan to Extend Data Throttling to 4G Customers

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Last week, Verizon appeared to cave to FCC pressure when it shelved a new network management policy which would have extended the controversial practice of “data throttling” to 4G customers with unlimited data plans.  Verizon’s decision put an end to its two-month spat with the FCC over whether the new policy would have violated the FCC’s Open Internet Order. To provide some background: Verizon has “throttled” (i.e. slowed) data speeds for some customers on its 3G network since February 2011.  This practice only affects customers on “unlimited” data plans whose data usage ranked in the top 5%, and only lasts for the duration that they are connected to a “congested” cell site.  On July 25 of this year, Verizon announced that, starting in October, it would extend this network management policy to its 4G network. Luckily for 4G customers on unlimited data plans, the FCC was paying attention.  In a letter sent less than a week after Verizon's announcement, FCC Chairman Tom Wheeler expressed doubts as to whether the new policy fit within the Open Internet Order’s definition of “reasonable network management.”  In particular, Mr. Wheeler found it “disturbing” that Verizon would “base its network management on distinctions among its customers’ data plans, rather than on network architecture or technology.”   Verizon responded swiftly to Mr. Wheeler’s criticism.  In a letter sent just two days later, Verizon explained that the policy targeted customers on unlimited data plans because they do not have an incentive to limit their data usage, which made them disproportionately responsible for network congestion.  On its face, this argument seems reasonable—after all, the FCC gives “mobile” broadband providers more leeway to manage their network than it does “fixed” broadband providers.  So why wasn’t the FCC satisfied? From the FCC’s point of view, the fatal flaw in the new policy was not that Verizon throttled data speeds for some customers, but that Verizon chose which customers it throttled based on their data plans.  If the new policy's purpose was to discourage or punish heavy data users, then it should not matter whether the customer being slowed had unlimited data.  Put another way, a customer with a 4G device who uses 5 gigabytes worth of data per month puts the same strain on Verizon’s network regardless of whether the customer is on a usage-based plan or an unlimited plan. Had the policy gone into effect, it would have effectively forced 4G customers on unlimited data plans to choose to either (a) put up with potential throttling, or (b) switch to usage-based data plans (which are more profitable for Verizon).  As both of these options would have resulted in customers receiving something less than “unlimited” data, the FCC was understandably skeptical of Verizon’s motive behind the new policy.[1] Regardless of whether the FCC’s concern was justified, Verizon’s decision to throw in the towel was likely influenced by other concerns.  For one, this dispute came at an awkward time between Verizon and its chief regulator.  Earlier this year, Verizon successfully challenged many of the FCC’s “net neutrality” regulations, which the FCC is currently in the process of rewriting.  Consequently, Verizon may have decided that it risked stricter regulations if it continued to fight.  (The fact that the FCC held a roundtable in September in which it discussed rescinding some regulatory exceptions for mobile broadband networks seems to reinforce this idea.)  It's also possible that Verizon decided it was unlikely to persuade the FCC in light of the FCC’s recent requests for information from other major wireless carriers’ regarding their own data throttling policies.  This move could signal that the FCC intends to more carefully scrutinize network management policies going forward, or even that the FCC will be less permissive of data throttling policies going forward. Whatever Verizon’s true reason was for ditching its policy, the significant number of customers who remain on unlimited data plans suggests this may not be the last we hear about “reasonable network management" practices.

[1] By contrast, when Verizon first began throttling speeds for 3G customers in 2011, customers on unlimited data plans still had the option to keep their plans without speed limits by upgrading to the higher-capacity 4G network. In fact, some industry experts speculated that Verizon began throttling 3G precisely to encourage customers to make the switch to 4G.

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October 27th, 2014 at 6:56 pm

What will happen to biotech’s patent thickets after Myriad and Prometheus?

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Changing patentable subject matter standards have been on the mind of biotech patent holders for the last few years. A wide range of biotech patents that were widely considered valid have been called into question by the decisions in Mayo v. Prometheus and AMP v. Myriad. Even if the number of patents that are actually ruled invalid proves to be low, the uncertainty could still dampen investment in new technologies. This uncertainty has been particularly acute in the area of personalized medicine, where the Myriad ruling left a large number of diagnostic patents in question. Since the ability to diagnose individuals based on genetic and other biological information are key to the idea of personalized medicine, the ability to patent tests for specific indicators is important for its long-term growth. Patent holders aren't giving up without a fight, but the weakening of their patents gives them less leverage in their negotiations. While diagnostics may be struggling to maintain adequate patent protection, some areas of personalized medicine research have more protection than they need. A recent article in Nature Biotechnology explored the patent landscape that is forming around induced pluripotent stem cells (iPSCs). iPSCs were the basis of a Nobel prize in 2012, and are an exciting area with the potential to completely change the way that some areas of medicine are practiced. iPSCs could theoretically give scientists and doctors the ability to take a person's existing cells and grow them into any cell type in the body, like new pancreatic cells for people with diabetes or new heart tissue for heart attack patients. Most of the patents on iPSCs focus on either culturing the iPSCs from other cells or on differentiating the iPSCs into other cell types, raising the question of whether key iPSC technologies may be forming a "patent thicket." This situation is common in computers and electronics, where different entities have patents on overlapping fundamental aspects of a technology. It is much less common in pharmaceuticals and biotechnology where a product is often protected by one or two patents. With Myriad and Prometheus upending the existing body of law about patent-eligible subject matter, the entire landscape around iPSCs is uncertain. Distinctions can be drawn between the underlying iPSC technology and those cases, but challenges to the fundamental patents have at least gotten new traction based on the decisions. iPSCs provide a unique problem for the patent system like many new inventions in biotechnology, but they also provide a challenge to typical conceptions of biological patents. Challenges to the validity of these patents could put some stakeholders in awkward legal positions defending both stronger and weaker patent rights. They could also clear some of the patent thicket around iPSCs. The uncertainty could slow down efforts to bring iPSC technology to market. Or it could prompt patent holders to merge or to work together in pooling their patents for ease of licensing. The conventional wisdom is that weakened patent rights hurt the biotech industry but, in the iPSC area, the effects may be far more complex.

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October 21st, 2014 at 12:55 am

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Weighing Patent Versus Trade Secret Protection in the Prior User Rights Era

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As part of the Leahy-Smith America Invents Act (AIA) signed into law on September 16, 2011, Congress expanded the Prior User Rights defense to patent infringement.  Initially only available for business method patents, the AIA expanded Prior User Rights to all classes of inventions, with the goal of harmonizing the US patent system with IP rights in the rest of the world.  Prior User Rights are defined in the Patent Act under 35 USC 273 and provide an affirmative defense to patent infringement.  In order to prevail on the defense, the accused party must prove that they were practicing commercial use of the invention at least one year before the patentee’s effective filing date.  Thus, Prior User Rights are not something that a company can apply for like a patent, but rather they are a defense available to parties who present evidence of prior use in a patent infringement suit.  The defense is generally unnecessary for parties that non-secretively practice an invention, since they may present their prior use as a form of prior art under 35 USC 102 to invalidate the patent.  However, parties that use an invention in secret (e.g., a “trade secreted” process) may not present their use as prior art, but rather under Prior User Rights may present evidence of prior use as an affirmative defense to infringement, thereby making Prior User Rights part of a combined IP strategy with trade secret protection. Many companies in industries and technologies where trade secret protection is a viable strategy must weigh the pros and cons of trade secret versus patent protection.  Patent protection offers the right to exclude others from making, using, and selling a patented invention for twenty years.  The potential to secure a legal monopoly for a valuable technology is naturally very attractive for many companies.  However, securing patent protection is costly and may result in narrow or no protection in crowded technological fields where there is a lot of prior art.  Just as importantly, patents require a detailed disclosure that teaches others how to make and use the invention.  For technologies where detecting patent infringement by competitors is difficult, enforcing a patent will also be difficult.  This lowers the value of the patent and makes the disclosure requirement highly undesirable.  Similarly, trade secrets come with their own set of pros and cons.  They have the advantage of being low-cost.  And their exclusivity will last as long as the technology is kept secret and is not reverse-engineered or independently developed, thereby giving potential exclusivity for longer than the twenty year patent term.   Also, trade secrets do not require disclosure (in fact they require the opposite: secrecy).  But trade secrets also come with the risk that the exclusivity will be lost if the proper protections are not followed or if the technology is reverse-engineered or independently developed.  And worse yet, the technology could be patented by another company resulting in a company being boxed out of its own technology.  This is where Prior User Rights change the equation.  With Prior User Rights, instead of being boxed out, the trade secret holder can continue to practice the invention based on a Prior User Rights theory. Before a company decides to rely on Prior User Rights, it should fully understand the limitations of Prior User Rights and the risks associated with relying on them.  First of all, Prior User Rights are a defense to patent infringement.  As such, companies will need to provide evidence of the prior use that meets legal evidentiary standards.  This requires companies to keep detailed records of the prior use, a process that presents difficult administrative challenges for any company.  Also, because the law is so new, there is a lack of clarity on limitations such as the ability of the prior user to expand the capacity of the use, the ability to implement improvements, the requirements of continuousness of the use, and what constitutes a “commercial use” as required by the statute.  These are questions that will not be answered until a body of case law is built around this new area of law. So how much do Prior User Rights really affect the considerations for a company’s forward-looking approach to pursuing patent versus trade secret protection?  In reality, in most technical fields Prior User Rights do not change the equation enough to make a difference.  But for companies and technologies where the strategic advantages of trade secret protection and patent protection were previously balanced, Prior User Rights may be enough to tip the scales in favor of trade secret protection.  Companies concerned about the cost of patent protection may choose trade secret protection and be satisfied to compete with a later patent-filer as long as they can continue to practice their invention.  Other companies concerned with the difficulty of detecting infringement, such as for a trade secreted manufacturing process, may also be swayed towards trade secret protection.

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October 15th, 2014 at 6:55 pm

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New iOS and Android Encryption Protections Spark Privacy Debate

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On September 17, Apple updated its privacy policy to reflect privacy enhancements added to its most recent iteration of its iPhone mobile operating system, iOS 8. Notably, the update highlighted iOS 8’s new protection for user phone data: out-of-the-box passcode encryption that the company itself cannot bypass. Similarly, Google recently related to the Washington Post that Google’s latest mobile operating system offering, Android L, would also include default user-end passcode encryption that cannot not be circumvented by Google. ALCU technologist Christopher Soghoian and Center for Democracy & Technology technologist Joseph Lorenzo Hall applauded the moves to enhance consumer protections in the wake of increased government surveillance stoked by Edward Snowden’s leaks last summer. But not all are pleased with the announcements. Notably, Ronald H. Hosko, President of the Law Enforcement Legal Defense Fund and former Assistant Director of the FBI Criminal Investigative Division, criticized the moves in a recent op-ed as protecting “those who desperately need to be stopped from lawful, authorized, and entirely necessary safety and security efforts.” Hosko’s point indicates a possible shift in the legal landscape of digital privacy rights. In its recent Riley v. California opinion, the Supreme Court weighed in on the digital privacy debate, holding that authorities generally may not search digital information on a cell phone seized from an individual without a warrant. However, even upon obtaining a warrant for user data, police now face an additional difficulty, as they can no longer can lean on Google or Apple to procure this data. As Apple itself pointed out in its revamped privacy policy, with the addition of these new encryption protections, “…it's not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.” The fact that Apple and Google together control about 95% of the U.S. smartphone operating system market only underscores the impact of these new policies. As Google and Apple customers update their devices to the latest versions of the companies’ operating systems, chances will be increasingly high that authorities will only encounter criminals with these new encryption tools enabled on their devices. One Forbes blogger has rightly pointed out that this only recasts the legal issue onto Fifth Amendment self-incrimination grounds. If the contents of a phone cannot be unencrypted by Apple and Google themselves, law enforcement must instead seek to compel defendants themselves to decrypt and hand over their user data. The Electronic Frontier Foundation (EFF), however, maintains that a court order to decrypt personal data for law enforcement violates the Fifth Amendment right protecting against self-incrimination. Specifically, the EFF argues that the act of producing encrypted personal data qualifies as privileged testimony under the Fifth Amendment. Many federal courts agree, with both a Colorado Federal District Court and the Eleventh Circuit having held recently that the act of decryption and production of contents of computers sufficiently implicates Fifth Amendment privilege. The question then turns on the application of the “foregone conclusion” doctrine to this type of user data. The doctrine essentially considers acts of production of decrypted phone contents not subject to Fifth Amendment protection if it can be shown with reasonable particularity that, at the time authorities seek to compel the production, they already know of the incriminating contents of the phone, thereby making any testimonial aspect a foregone conclusion. The trick for authorities, of course, will now be building a case to show with reasonable particularity that they already know of the incriminating contents of an encrypted phone. This may be no easy feat, if the Eleventh Circuit’s application of the doctrine is any indicator — absent an admission by a defendant that a phone contains incriminating data, “[i]t is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating.” As such, only time will tell how Google and Apple’s new encryption policies limit the capacity of law enforcement to conduct investigations.

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October 6th, 2014 at 6:29 pm

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Who owns copyright in a selfie when it’s captured with one person’s phone but by another person’s finger? And what if that other person is actually a monkey? Or a Bradley Cooper?

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Earlier this year, Ellen DeGeneres briefly “broke” Twitter after tweeting a selfie full of celebrities, captured while she was hosting the Oscars. In an attempt to beat the record for most re-tweets ever, she enlisted megastars like Meryl Streep, Julia Roberts, Lupita Nyong’o, Kevin Spacey, Brad Pitt, and Jennifer Lawrence. Shortly after, Ellen gave the Associated Press permission to reproduce her selfie in a news article. But some have argued that the reproduction right – a right reserved to the copyright owner of a work – wasn’t necessarily Ellen’s to give. Technically, Bradley Cooper was the one who pressed the shutter button, evidently because he had the longest arms. Copyright ownership vests in the author of a work, and in the case of photography the author is normally the person who literally creates the photograph by pressing the shutter. In some instances, however, the author is defined as the person directing the creative vision of the work, such as choosing the lighting, composition, costumes, and settings, without actually pressing the button. So why does it matter? For the most part, it doesn’t. The selfies that you or I take are probably not going to be published in magazines or newspapers, unless newspapers are suddenly interested in my new haircut or in what you look like in the bathroom mirror. But Ellen’s selfie was the most retweeted picture of all time, and it was certainly newsworthy, at least in the days following the Academy Awards ceremony. Another selfie has recently been the subject of some news as a wildlife photographer is claiming copyright ownership of a photograph technically taken by a monkey. In 2011, David Slater was photographing wildlife in Indonesia when a group of macaque monkeys started monkeying around with his camera and one of them snapped a selfie. After being posted online, the selfie ultimately made it to Wikipedia. When Slater demanded that it be removed from the site, Wikipedia claimed that he didn’t own copyright in the photo because he hadn’t captured it himself and because he hadn’t made any of the artistic choices in its creation. Though copyright lawyers battled over this question, the U.S. Copyright Office confirmed that the selfie would remain in the public domain because only humans can be authors of works, not monkeys. But what if authorship of the selfies can’t be determined as easily? A few weeks ago, nude photographs of celebrities like Jennifer Lawrence, Kate Upton, and Ariana Grande were leaked onto the internet and quickly spread like wildfire. I have not seen the photos – nor do I encourage any sort of invasion of privacy – but apparently some of them were not selfies at all. When Lawrence's lawyers demanded that 4chan – the online bulletin board that the photos were initially posted to – take down the photos, 4chan reportedly fired back that Lawrence herself might not have copyright ownership of the pictures that were physically captured by someone else. Though some of the hacked celebrities have insisted that the photos are fake, if Lawrence were to potentially reveal the name of her photographer, she would effectively be admitting that the photos are authentic. On the other hand, by not divulging, Lawrence loses her copyright ownership claim and would have to pursue other avenues for getting the pics taken down. Most of us are guilty of taking selfies and quick snapshots of sunsets, puppies, and our food (#food #fooddiary #nom) without a moment’s pause. But you should think twice before handing your phone off to the person with the longest arms. If it’s a quick pic of your best duckface, you’re probably fine. But if it happens to be the next Pulitzer-prize winning photo or the most retweeted twitpic of all time, you may have just lost your copyright claim.

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September 28th, 2014 at 12:07 pm

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Bullies & Hackers: Cyberbullying lessons for revenge porn statutes

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Another year, another batch of nude celebrity photos flooding headlines and the internet. This month, actress Jennifer Lawrence, model Kate Upton, and a handful of other female celebrities became the latest celebrity hack victims when an anonymous user on the online message board 4chan posted dozens of photos of the women nude. As with past leaks, the reaction has followed a similar pattern: the FBI looks for the poster and the media asks what can be done. Between the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, the answer is a lot. In 2012, federal prosecutors used both to convict Christopher Chaney after he hacked and posted personal photos of the actress Scarlett Johansson online. Chaney is serving a 10 year prison sentence, but the legislative landscape has changed since his trial, including the criminalization of revenge porn. This blog has covered these laws before, but to recap, revenge porn refers to distribution of sexually explicit media online without the consent of the pictured individual, for the purpose of humiliation. In the wake of this latest leak, there have been calls in the media to crack down on revenge porn posters and websites. To that effect, thirteen states have passed laws that make posting revenge porn a misdemeanor, while 27 more state legislatures have introduced similar bills in 2014. However, those calling for prosecutors to use revenge porn statutes against the celebrity hackers should pause to consider the challenge faced by another recent cyber speech proposal. That proposal involves cyber bullying and a statute criminalizing it in Albany County, New York. This past July the state’s highest court struck down the county’s 2010 statute for defining cyber bullying too broadly and implicating the First Amendment. At issue in People v. Marquan M.[1] was whether the defendant, a 15-year-old boy who had posted sexual information and insults about classmates online, could be prosecuted under the statute. Writing for the majority, Judge Victoria Graffeo acknowledged the county had a compelling interest in punishing those who upload offensive content, especially in an educational or bullying context. However, she continued, the statute went too far by criminalizing mere annoying or embarrassing speech. Returning to the revenge porn context, lawmakers face similar challenges distinguishing posts and photos meant to humiliate from those meant to publicize, especially in cases like the most recent hack where multiple parties re-post and share the photos after the initial hacker’s post. It also suggests revenge porn laws may not help prosecutors looking for the celebrity hackers, as the original posters could have operated out of any jurisdiction, whereas the typical revenge porn poster likely lived with or near the victim. Although it’s clear revenge porn and the culture behind it needs to be addressed, it’s less clear that the recent criminal statutes will be of much help. For now, the impacted celebrities and their attorneys seem to have settled on copyright legal strategies, bringing claims against anyone who posts the photos. But for the not so famous victims of revenge porn, there doesn’t seem to be a good way to regain the privacy taken from them.

[1] People v. Marquan M., No. 139, WL 2014 WL 2931482, at *1 (N.Y. July 1, 2014).

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September 25th, 2014 at 3:43 am

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