The MTTLR Blog

Google has revolutionized the way we access information by providing world wide knowledge and information at our fingerprints- all for free.  However, there is a hidden cost of accessing this information: your privacy.  Unbeknownst to many Google users, Google maintains a log of every search with IP addresses and other information that can be used to uniquely identify the user.  Furthermore, Google keeps this data from 9 to 18 months before ‘anonomyzing it‘, or getting rid of data that can be used to trace searches back to individuals.

The contents of Google searches are often intensely private – people often search for information they otherwise are too ashamed of talking about with others.  A search done out of curiosity could easily be misconstrued by another person.  Additionally, Google’s products have the potential of capturing much more than our search queries – including email, health records, phone calls, text messages, and even your physical location.  The potential for other party’s to get this information is concerning.  For example,  U.S. Department of Justice has subpoenaed this data in the past.

But what’s really concerning is not the potential for abuse, but rather Google’s attitude about data privacy.  In a recent interview with CNBC, Google CEO Eric Schmidt said, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place…the reality is that search engines including Google do retain this information for some time...”  This attitude is sickening, and is a serious threat to data privacy.  Afterall, it is Google who we entrust to protect our personal data against hackers, overzealous government prosecutors, or disgruntled company employees.  Furthermore, what happens to this data if Google is acquired by another company or goes out of business?

Last year, Professor Catherine Sharkey wrote that preemption is the “is the fiercest battle in products liability litigation today.” Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach,76 Geo. Wash. L. Rev. 449, 450 (2008) . Earlier this year, the Supreme Court stepped in and changed, or possibly ended entirely, that debate. In Wyeth, the Supreme Court rejected the drug maker’s claim that it would impossible for its drug Phergan to comply with the FDA’s warning label requirements and the implicit requirements of state failure to warn laws. See Wyeth v. Levine, 129 S. Ct. 1187, 1198 (2009) (“But absent clear evidence that the FDA would not have approved a change to Phergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements. Wyeth has offered no such evidence.”).

With future preemption claims likely to fail, drug makers and their allies may turn once again to state law to protect themselves against liability and allegedly frivolous lawsuits. Michigan is the model example because it is the only state that provides that compliance with FDA regulations is a complete defense to state tort suits. In Michigan, “a product that is a drug is not defective or unreasonably dangerous, and the manufacturer or seller is not liable, if the drug was approved for safety and efficacy by the United States food and drug administration . . . .” Mich. Comp. Laws § 600.2946(5) (2008). This statute, though, is under attack. An attempt to repeal the provision has passed the Democratic-controlled state house but stalled in the Republican-controlled state senate, and gridlock appears likely to continue. Rather than accepting either side’s all or nothing approach, my note, When and How to Defer to the FDA: Learning from Michigan’s Regulatory Compliance Defense, advocates a middle of the road approach. Drugs that comply with the FDA’s regulations should still have a defense against liability, but a back-up in the form of state attorney general-lead litigation should be there to provide deterrence in situations where the FDA has failed to act and to provide compensation to legitimate victims. Hopefully legislators in Michigan, and other states considering a regulatory compliance defense, will read this paper.

You may think of robocalls as those annoying automated calls about warrantees that the FCC is cracking down on. But if you have a land line and regularly vote in elections, you probably receive political robocalls as well. These robocalls are subject to fewer regulations than commercial calls, although unsolicited calls may still annoy voters. As a result, states have passed a confusing array of laws that make it difficult for national campaigns and vendors to comply with. Legislators in a variety of states are considering further complicating the patch-work of state laws (see here here and here).

I have editorialized against legislation that has passed the Michigan House and is pending in the state senate in the Lansing State Journal because I believe that the regulation of political robocalls is best done at the federal level. The reasons why, the history of robocalls, the existing state and federal laws, and my specific proposal are set out in a forthcoming Note, Regulating Robocalls: Are Automated Calls the Sound of, or a Threat to, Democracy?.

MTTLR, like many journals, publishes content written by both students and scholars. Though articles written by scholars (professors, practitioners, judges, etc.) are generally considered more significant, student-written content has had a noticeable impact and has even been cited by courts. For example, the Federal Circuit recently rejected a claim that a method of hedging risk in the field of commodities trading was not patentable and that the machine-or-transformation test was applicable. The Court cited a MTTLR student note by Nicholas A. Smith, Business Method Patents and Their Limits: Justifications, History, and the Emergence of A Claim Construction Jurisprudence. In re Bilski, 545 F.3d 943, 1004 n.8 (Fed. Cir. 2008). A California Court deciding a case about jurisdiction for an internet-based interstate case cited a student-written comment by Matthew Fagin, Regulating Speech Across Borders: Technology vs. Values. Hageseth v. Superior Court, 150 Cal. App. 4th 1399, 1423 (Cal. App. 1st Dist. 2007). Of course, non-student work certainly has an impact too. For example, A federal district court granting summary judgment for Microsoft on a patent claim cited an article by Martin Campbell-Kelly, Not All Bad: An Historical Perspective on Software Patents. Uniloc USA, Inc. v. Microsoft Corp., 2007 U.S. Dist. LEXIS 97491, *3 (D.R.I. Oct. 19, 2007). The use of student-written work by courts demonstrates the continued importance of publishing such works.

MTTLR is pleased to announce the availability of its new issue, Volume 15, Issue 1. Here are the highlights:

• J. Jonas Anderson writes on the temporary presence exception and patent infringement avoidance [PDF].
• Leah Chan Grinvald writes on Chinese Trademark Law [PDF].
• Nancy J. King writes on consumer privacy and mobile commerce issues relating to RFID-equipped mobile phones [PDF].
• Lee Petherbridge writes on the “Claim Construction Effect,” [PDF] conducting a statistical inquiry on the effect of the Federal Circuit’s claim construction jurisprudence.
• Plus notes from Amy Duvall on Webcasting Royalties [PDF], Matthew Gordon on Post-Approval Risk Surveilance for Drugs [PDF], and Tatiana Melnik on contract formation on the web [PDF].

The MTTLR Blog is also looking forward to hosting an entry or two from Lee Petherbridge, who will write about his research in the upcoming weeks.