Archive for the ‘Quick Links’ Category

Who Am I? Property and Privacy Concerns of the Future

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Computers and the internet continue to revolutionize the ways we collect and distribute information.  Many privacy concerns have accompanied these technological advancements.  Earlier this year, in a New York Times article, some of these privacy concerns were made readily apparent.  Using supposedly anonymous DNA sequences from a publicly available database, a scientist was able to identify the names behind five of those samples.  The participants in this database had voluntarily participated, and had in fact signed a form saying that the researchers could not guarantee their privacy.  Even so, there are several potential legal concerns that this experiment illuminated.

First, third party family members’ privacy could be violated, even if they had not voluntarily participated in in a genetic database.  In the above demonstration, the scientist was not only able to identify the name behind the DNA sequence, he was also able to identify the family members of the participant using online genealogical databases.  Given that science has identified genetic risk factors that can potentially lead to health problems, these family members might not want to be identified.  If a child of the participant was identified as having a 50% or 100% chance of inheriting some genetic risk factor they might fear being denied insurance coverage or being subjected to discriminatory hiring practices.  Consider, for example, someone sharing their home phone number without the permission of other household occupants.  If the house starts getting lots of calls from telemarketers, it could be an unpleasant experience for everyone, not just the person who gave out the phone number.  This is a relatively benign example, but it demonstrates how volunteering information that is common to both parties could lead to unwanted consequences for the group that has unwittingly been conscripted. Is someone allowed to voluntarily donate their DNA to science, when it could potentially cause problems for their family members?

This leads to a second question, how much of our DNA do we actually own, and what bundle of property rights does this ownership grant?  There was a recent debate about whether a company could patent individual genes associated with breast cancer. See Ass’n for Molecular Pathology v. Myriad Genetics, Inc.,  133 S.Ct. 2107 (holding that isolated naturally occurring DNA is not patentable, but synthetically occurring complimentary DNA can be patented).  The Supreme Court seems to be correct that a company cannot “invent” a gene, but even if they can’t, that doesn’t necessarily say whether or not individuals own their DNA.  Humans share about 99% of their DNA with chimpanzees as well as bonobos. They share an even higher percentage with each other, and identical twins share nearly identical DNA.  Further, DNA has never been truly under an individual’s exclusive control.  We leave our genetic material everywhere we go as we shed hundreds of thousands of skin cells every day.  If we share so much of our DNA with others (indeed sometimes almost all of it), and it is so readily available for sample collection, how much of it are we capable of protecting for privacy reasons?  Finally, if we don’t own our genes or DNA, what are the implications?  Do we own larger parts of our bodies which are merely expressions of these genes?  Right now, I think I am in control of my body, and I would like to keep it that way.  However, as technology continues to progress, these are questions that our society and government will have to resolve.


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September 18th, 2013 at 11:06 am

Scroogled?: Microsoft’s Attack Campaign on Gmail

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Microsoft has created a new ad campaign attacking Gmail. And for good reason: Gmail has 425 million active users as of June 2012. As of November 2012, the new Outlook has only 25 million users.  Microsoft’s campaign is striking on the fact that Gmail “scans emails” in order to create personalized advertisements for users.  Microsoft claims that Outlook does not similarly scan through emails in order to create advertisements (it does, however, scan through emails to separate the mail into spam, viruses, and other dangers).

The truth? Gmail does scan through emails in order to create personalized ads, but no humans or Google employees ever read through your emails according to Google. It stresses the fact that these advertisements are necessary in order to keep the email service free.

In an effort to capture some Gmail users, Microsoft has tried (and failed) to get the FTC to sue Google for violations of antitrust. Microsoft is now following up trying to get Gmail users to switch to Outlook by accusing Google of violating privacy rights that it seems consumers care about.

Are Google’s actions legal? When you have a Gmail account, you agree to Google’s privacy policy. It states: “Google also uses this scanning technology to deliver targeted text ads and other related information. This is completely automated and involves no humans.” However, Google has been sued multiple times by non-Gmail users (who have obviously not agreed to the privacy policy) because their emails are also scanned when they send emails to Gmail accounts.  No cases have gone to trial yet, but because no one receives the content of any emails sent through Gmail except the intended recipient, Gmail is likely not breaking any laws by conducting an automated scanning of emails for advertisement purposes. Regardless, it is smart of Microsoft to recognize that people are upset with these alleged violations of privacy, and its new advertisements and commercials use this to Outlook’s advantage.

There’s what I call the creepy line, and the Google policy about a lot of these things is to get right up to the creepy line, but not cross it.” -Eric Schmidt, Google Executive Chairman.

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February 24th, 2013 at 10:56 am

This Round of Map Innovation Goes to Google

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Apple and Google both received press for their new map applications this month. Map technology has certainly come a long way from paper maps. Among other benefits, web maps are an important tool for attorneys. Criminal prosecutors use interactive maps to analyze key locations in a case, and in conjunction with cell phone GPS positioning technology.

Google Maps is one of the best tools for scouting potential apartments. It’s easy to see street views of the apartment, virtually walk around the block to scope out the neighborhood, and spy from above using Google Earth. Now CNN reports that Google Street View will give you the ability to see underwater panoramas. You can enjoy beautiful views of coral, fish, turtles, and divers in locations like the Great Barrier Reef and the Hawaiian islands. Perhaps there is potential to use this capability in environmental and maritime legal cases.

Google partnered with the Catlin Seaview Survey to capture coral reef panoramas with scientific and environmental objectives. In addition to expanding Google Street View, the project intends the images to further research on the impact of climate change on reefs, and raise public awareness of these ecosystems. It will be a great way for people who cannot travel to a reef or scuba dive to experience coral reefs. Currently Google has released 25 panoramas. The project has at least 35,000 more photographs to take to reach its goal of 50,000 to 100,000 panoramas.

Apple revealed its own map innovation on September 21st when it released the iPhone 5. The iPhone 5 comes with the Apple Maps app, instead of the Google Maps app that came with the iPhone since 2007. So far the application has received disappointing reviews with complaints of location inaccuracy. According to NBC, Ireland’s Justice Minister, Alan Shatter, had to warn pilots not to land in the Airfield Gardens, a nursery that was mistakenly categorized as an airfield. Apple CEO Tim Cook addressed complaints in a letter to customers and urgently promised to improve the app. Despite Maps frustrations, demand for the iPhone 5 exceeds inventory. Customers bought over 5 million iPhones in the first weekend.

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October 1st, 2012 at 9:11 am

Biotechnology, Bioterrorism & the First Amendment

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Last year, two teams of researchers funded by the National Institutes of Health (NIH) succeeded in genetically modifying the H5N1 avian flu virus.  The modified virus is capable of respiratory transmission between ferrets, suggesting that it would also be transmittable between humans and potentially capable of causing a “pandemic of disastrous proportions” with mortality rates exceeding 50%.

The central controversy arose around attempts to prevent publication of the research findings, which some considered a “blueprint for bioterrorism.  The U.S. National Science Advisory Board for Biosecurity (NSABB) met to discuss the issue and adopt a solution that would both protect national security and be consistent with scientific freedom and the First Amendment.  While the NSABB recommended redacting details from the paper, the international community came to a different conclusion.  At a meeting convened at the World Health Organization in Geneva, international experts felt that the papers should be published in full.

On the domestic plane, preventing publication of scientific research raises issues of free speech and the First Amendment.  The Supreme Court has consistently read the First Amendment broadly, as evidenced by the landmark Pentagon Papers case.  In New York Times v. United States, the government sought to prevent the New York Times from publishing a top secret study on the U.S.’s policy in Vietnam.  This marked the first time that the federal government sued the press to prevent it from disclosing information for reasons of national security. The Supreme Court recognized that there was a “heavy presumption against” restraints on the press, and found that the government did not meet this burden.

Even in instances – as with the H5N1 research – where the U.S. government has funded research, this does not give it the power to censor publication.  In Board of Trustees of Leland Stanford Jr. University v. Sullivan, the Court ruled that federally funded scientific research should not be subject to prior restraint.  That is, the government may choose whether or not to fund research, but if it chooses to fund a certain study, it may not restrain the dissemination of findings from that research without a compelling state interest.

Although First Amendment jurisprudence is strong, freedom of speech does not extend to every situation.  The Court ruled in Chaplinisky v. New Hampshire that certain utterances may be of such low value “that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Since New York Times v. United States, courts have found themselves judging cases in which it is necessary to balance the value of free speech against other interests, such as security.  In 1979, the Court in United States v. Progressive, Inc. recognized that “First Amendment rights are not absolute,” and enjoined the press from publishing an article with technical details on constructing a hydrogen bomb.  The Court ruled that the threat to national security met the standard established in New York Times v. United States.

In the case of the H5N1 research, a redacted publication may survive a First Amendment challenge under the reasoning of the court in Progressive.  In both instances, free speech must be balanced against the potential threat to life and security.  The government could evoke the war on terror to argue that heightened restraints on speech are necessary when it comes to issues of biosecurity during wartime.

Another possible solution to the H5N1 controversy is for Congress to legislate in this domain.  One of the Supreme Court’s main reservations in New York Times v. United States was that the judges did not want to legislate from the bench; they saw this as an issue of separation of powers.  In recent years, Congress has considered expanding legislation to protect national security over freedom of the press.  After the upheaval caused by Wikileaks, the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act was introduced in Congress.  This proposed legislation would amend the Espionage Act, providing greater protection for classified government information.

Unfortunately, as the H5N1 controversy has shown, problems relating to security and free speech do not end with domestic law.  The two researchers who led the H5N1 study were from universities in the U.S. and the Netherlands, and the international community and the World Health Organization have already become heavily involved.  Even if redacting the articles would survive a First Amendment challenge in the U.S., these efforts would be fruitless if other countries chose to publish the data in science journals abroad.  With increasing international collaboration in scientific research and greater security risks posed by research findings, it may soon become necessary to create a set of international standards for biosecurity.

One major problem with international standards to suppress speech in the interests of security is determining who decides when these standards have been met.  In the case of the H5N1 research, would the U.S. and the Netherlands be the sole decision makers?  This seems certain to displease other nations who have an interest in the sensitive information or in voicing their opinions.  On the other hand, if all nations had a say in weighing the benefits of publication against security interests, then the risk of sensitive information getting out could grow even greater.

Threats to biosecurity like the H5N1 research will continue to present themselves in the years to come, and political leaders should seek to address these issues both domestically and internationally.  While First Amendment jurisprudence may pose an obstacle to preventing the dissemination of dangerous information, a coordinated effort on the international level is also necessary.  With clear standards for undertaking research and withholding sensitive findings from the press, threats to biosecurity may be contained without prejudice to scientific freedom.

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March 21st, 2012 at 1:40 pm

The Policy of Gene Patenting – Are the Courts the Appropriate Venue for this Debate?

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Last week, following the denial of its petition for a panel rehearing, the ACLU announced that it will seek to bring the much-debated Myriad Genetics case before the Supreme Court.  Among other things, the case involves the patentability of isolated DNA – pieces of natural human DNA that have been chemically cleaved from the chromosome.  Myriad Genetics holds patents over two isolated DNA genes, BRCA1 and BRCA2, which are linked to susceptibility to breast cancer and may be used for clinical screening.  According to Myriad, women with mutations in these genes have an 82% risk of developing breast cancer, compared to about a 10% chance in the general population.

The history of the Myriad Genetics case has been tumultuous.  The U.S. District Court for the Southern District of New York unsettled the biotech industry when it ruled that isolated DNA was not patent eligible under 35 U.S.C. § 101.  This decision went against the long-standing tradition of the U.S. Patent and Trademark Office, as well as the Supreme Court’s history of interpreting § 101 broadly.  However, although the statute is broad, it does have certain established limitations.  The one at issue here is the restriction on patenting “products of nature” unless they are “markedly different” from naturally occurring ones. See Diamond v. Chakrabarty, 447 U.S. 303 (1980).  In a 2-1 decision in July, the U.S. Court of Appeals for the Federal Circuit reversed the district court’s ruling, restoring the status quo by finding isolated DNA patent eligible under § 101.  The court based its decision on the finding that isolated DNA is “markedly different” from DNA occurring in nature because the act of cleaving it from the chromosome gives it a new chemical composition.  The court also stressed the importance of deferring to Congress regarding potential changes in the scope of patentable material.

While the waters may currently seem calm, there is a good chance that this case will move forward, and a Supreme Court decision could have an historical impact on the future of biotechnology.  First, the decision itself is not beyond critique.  The dissent makes a strong case against patenting isolated DNA.  It compares the extraction of natural DNA to plucking a leaf from a tree or isolating the element lithium, since lithium only occurs in nature as part of chemical compounds.  Judge Bryson argues that isolated DNA is no different from naturally-occurring DNA except for the chemical changes that necessarily result from its extraction.  Consequently, he finds unconvincing the majority’s argument that isolated DNA is “markedly different” from natural DNA based solely on this minor chemical difference.

Secondly, the Myriad case exposed a tension within the government.  Although the ACLU brought the case against Myriad Genetics and the U.S. Patent Office, the Department of Justice actually submitted an amicus brief in support of the plaintiffs.  This uncertainly on the federal level suggests that the Supreme Court may hear the case and perhaps even restore the lower court’s ruling.  If the case goes forward, it will be interesting to see whether the Court rules narrowly or decides to expound more broadly on the patentability of other biotech products.

The Myriad case has received a lot of attention because of its policy implications.  On the one hand, the plaintiffs argue that the patents stifle patient access to clinical tests and suppress related DNA research.  They also raise ethical issues regarding the “ownership of what some view as our common heritage.” Ass’n for Molecular Pathology v. U.S. Patent and Trademark Office, 702 F. Supp. 2d 181 (2010).   Strong policy arguments exist on the biotech side as well, since companies rely on their patents when developing new products.

Do patents on isolated DNA restrict patient access to care any more than patents on new medications? Although clinical screening based on genetic code is an emerging field of medicine, access to affordable health care is far from a new debate.  There are also some who say that patents are preferable to their alternatives.  If a company is unable to rely on a patent for exclusive rights to a newly discovered gene or product, it will be forced to rely on trade secrets to keep its discovery private.  Thus, it is argued that patents actually encourage the free exchange of information and thereby incite other parties to conduct related research.

Many also fear the repercussions from a decision finding isolated DNA patent ineligible.  Would this restrain a growing biotech industry during a time when the last thing we want to do is stifle the job market?  What would happen to those who already hold DNA patents and rely on these patents for their work?  Would a Supreme Court decision reverberate beyond isolated DNA and prevent patents relating to stem cells and proteins?

With all of these worries and uncertainties at stake, it seems that maybe the U.S. Court of Appeals for the Federal Circuit was right in deferring to Congress. For even if the majority’s “markedly different” holding is weak, isn’t the concurrence correct in finding that “the judiciary is ill-suited to determine whether the claims at issue pro­mote or inhibit science”?

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October 23rd, 2011 at 10:22 pm

Amazon Patents Unwanted Gift Converter

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Graciously accepting ill-suited gifts and slyly exchanging or re-gifting these unwanted articles may become antiquated formalities of the past.  In November, Amazon received a patent for a System and Method For Converting Gifts, US Patent No. 7,831,439 (issued Nov. 9, 2010). Amazon explains in their patent application that “as in other gift-giving situations, it sometimes occurs that gifts purchased on-line do not meet the needs or tastes of the gift recipient who may already have the item and may not need another of the same item [and] wish to convert the gift into something else, for example, by exchanging the gift for another item or by obtaining a redemption coupon, gift card, or other gift certificate to be redeemed later.”

The recipients can choose to exercise their own discretion in determining whether to invoke a preemptive gift swap or, alternatively, rely on an automated process by delegating the decision to an algorithm which determines when a substitution is necessary.  Figure 7 of the patent illustrates how a user may use the product recommendation capabilities of Amazon’s website to facilitate gift conversion decisions.  Additionally, this system enables the recipient to automatically replace gifts sent from specified individuals.

While gift-giving purists may object to recipients seemingly hijacking a gift-giving process, Amazon spins the purpose of its system away from the selfish inclinations of recipients and frames the system’s utility in terms of the gift sender who can enjoy more creative latitude with gift-exchanges serving as a safety net for good intentions gone awry:

“[C]oncern that the recipient may not like a particular gift may cause the person sending the gift to be more cautious in gift selection.  The person sending the gift may be less likely to take a chance on a gift that is unexpected but that the recipient might truly enjoy, opting instead of a gift that is somewhat more predictable but less likely to be converted into something else.  If the sender does decide to send the more unexpected gift, the sender may offer words of encouragement to the recipient (e.g. instructing the recipient to “feel free to exchange it if you don’t like it”).”

Additionally, others have identified potential economic benefit of gift optimization through reducing the volume of shipped goods, as unwanted gifts would be preemptively rejected rather than leaving the warehouse only to be shipped back and exchanged. While this scheme may mark the beginning of a shift in the sender-recipient dynamic in online shopping, Amazon has not indicated how much progress has been made in implementing this system, nor has a final date been established for its availability to Amazon users.

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January 18th, 2011 at 1:39 pm

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Are Subpoena Standards Substantive, Procedural, or Constitutional Law?

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As courts [PDF] have established standards for subpoenas to ISPs in online defamation lawsuits, they have raised new questions.

Professor Wasserman has raised the question whether these standards are a part of state substantive defamation law that federal courts would apply in diversity actions under Erie or are instead mere procedural rules. My article from JTLP, Who’s Exposing John Doe? Distinguishing Between Public and Private Figure Plaintiffs in Subpoenas, argues that the constitutional distinction between public and private figures in defamation law should apply to certain procedural issues also. My proposal would appear to be a substantive distinction that federal courts would apply under Erie. The court opinions [PDF] fashioning standards also discuss substantive and constitutional issues in developing the procedural rules.

What do you think?

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March 22nd, 2009 at 9:37 am

Should Traditional Radio Stations Pay Music Royalties?

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Congressional hearings this week focused on whether or not traditional radio stations should have to pay royalties for the music they play. Billy Corgan of The Smashing Pumpkins, was among those who testified in support of H.R. 848, The Performance Royalties Act. Radio stations argue that the value of promotion they give artists outweighs the costs of any royalties due. That’s an argument that sounds familiar, and may explain some of the impetus for copyright holders to come forward now to reject such a rationale.

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March 12th, 2009 at 5:21 pm

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