November 2021

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

Sarah Nelson, MJLST Staffer

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

Allegations in the Class Action

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

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

What State and Federal Laws Were Allegedly Violated?

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

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

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

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

Terms of the Settlement

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

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

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


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

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

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

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

Dan O’Dea, MJLST Staffer

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

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

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

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

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

Henry Killen, MJLST Staffer

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

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

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

Employee Vaccine Mandates: So, Are We Doing This?

Kristin Thompson, MJLST Staffer

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

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

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

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

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

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

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

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

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

Inventions Ex Machina, Patents Dantur Hominibus

Chase Webber, MJLST Staffer

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

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

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

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

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

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

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

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

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

Zanna Tennant, MJLST Staffer

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

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

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

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

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

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

Relieving a Pain Management Crisis: How Medical Cannabis May Help the Prescription Opioid Epidemic

David C. Edholm, MJLST Staffer

“The Food and Drug Administration is responsible for protecting the public health by ensuring the safety, efficacy, and security of human . . . drugs.” To no surprise, near the top of the FDA’s list of current priorities is ameliorating the prescription opioid epidemic. More than 14,000 deaths in 2019 are attributed to prescription opioid overdoses. (See fig. 4 of hyperlink). Celebrity opioid overdoses have raised public awareness of the crisis, however, hundreds of millions of opioid prescriptions are written each year to treat “moderate-to-severe” pain. The epidemic continues today, begging the question of whether any reasonable alternatives to prescription opioids exist, perhaps medical cannabis.

California became the first state to legalize medical cannabis through a ballot initiative in 1996; since then, 35 states and four territories followed. Although the Department of Health and Human Services and the FDA have expressed skepticism about safety and efficacy due to a lack of quality research, legalization in a recreational capacity is becoming more popularized. Recent systematic studies on high-potency cannabis products have shown a cause for concern, however, studies on substituting medical cannabis for prescription opioids remain inconclusive, leaving the door open to this future possibility.

In order for medical cannabis to legitimately contend with prescription opioids, quality safety and efficacy data are required. But the public stands by as FDA has yet to approve a medical use and “marihuana” remains a Schedule I controlled substance. 18 U.S.C. § 812(1) (2018). Recent federal efforts push for decriminalization, but historically the federal government has adopted a “hands off” approach, giving states choice on cannabis regulation. There is coast-to-coast differentiation on cannabis legalization with most states permitting medical use and a growing number permitting recreational use, but due to its current state of being under-researched, it is substantially less controversial to leave the political choice for legalization to the states as long as safety and efficacy are opaque.

The benefit of state choice is articulated through efforts from states like California and Minnesota that aid the national effort to clarify safety and efficacy in legitimate ways. California, for example, allows medical and recreational use, as a result providing a vast data cohort. The state senate bill reads, “[i]t is the intent of the legislature that the state commission objective scientific research by . . . the University of California, regarding the safety and efficacy of administering cannabis as part of medical treatment.” Additionally, Minnesota, which permits medical use and submitted a bill for recreational approval now pending in the senate, created a medical cannabis patient registry that accumulates data, generates reports, and submits the reports to legislature and prominent medical journals that are available to the public. These states are among others providing similar efforts.

Medical cannabis may be an alternative for prescription opioids, yet there remain several questions about safety and efficacy that must be answered in order for the FDA to move on any milestone cannabis regulation. It seems that severe risks posed by cannabis are extremely rare, and are not a public health threat requiring immediate attention. Prescription opioids remain standard treatment post-operation or post-physical trauma and are usually prescribed for short-term use, but 20% of post-op patients still use opioids three months after surgery, despite an increased risk of addiction after only a few days of use. It seems the opioid epidemic is here to stay as long as prescribing practices remain the same, at least until an effective alternative arises. Maybe cannabis will be a solution. It depends on the data.

Counter Logic Broadband

Justice C. Shannon, MJLST Staffer

In 2015 Zaqueri “Aphromoo” Black won his first North American League of Legends championship series “LCS” championship playing support for Counter Logic Gaming. Since 2013 at least forty players have made the starting lineups for eight to ten LCS teams. Aphromoo is the only African American to win an LCS MVP. Aphromoo is the only African American player to win multiple LCS finals. Aphromoo is the only African American player to win a single LCS Final. Aphromoo is the only African American player to make it to an LCS final. Aphromoo is the only African American player to participate in LCS playoffs. Indeed, Aphromoo is the only African American player to have a starting role on an LCS team. Why? At least in part, because due to the digital divide.

More than a quarter of African Americans do not have broadband. Further, nearly 40% of the African Americans in the rural south do not have broadband. One quarter of the Latinx population does not have broadband. These discrepancies allow fewer African Americans and Latinx to play online video games like League of Legends. Okay, but if the digital divide only affects esports, why should the nation care? The digital divide, as seen in esports, is also seen in the American educational system. More than 15% of American households lacked broadband at the start of the pandemic. This gap was more pronounced in African American and Latinx households. These statistics demonstrate a national need to address the digital divide for entertainment purposes and, more importantly, educational purposes. So, what are some legal solutions to the digital divide? Municipal internet, subsidies, and low-income broadband laws.

Municipal Internet

Municipal broadband is not a new concept, but recently it has been seen as a solution to help address the digital divide. While the up-front cost to a city may be substantial, the long-term advantages can be significant. Highland, IL, and other communities across the United States provide high-speed internet for as low as $35 a month. Cities providing low-cost broadband through municipalities frequently have competitive prices for gigabit speeds as well. The most significant downside to this solution is that these cities are frequently in rural locations that do not provide for large populations. In addition, when municipalities attempt to provide broadband outside of their borders, state laws preempt them to protect ISPs. ISPs lobby for laws to deter or prevent municipal internet on the basis that they are necessary to prevent unfair competition; this fear of unfair competition, however, restricts communities from getting connected.

To avoid the preemption issue during the pandemic, some cities have established narrow versions of municipal broadband. In addition, these cities are providing free connectivity in heavily populated communities. For example, during the pandemic, Chattanooga, Tennessee, offered free broadband to low-income students. If these solutions stay in place, they will set an industry precedent for providing broadband to low-income communities.


The emergency Broadband Benefit provides up to $50 per month towards broadband services for eligible households and $75 a month for households on tribal lands. To qualify for the program, a household must meet one of five standards. Congress created the program to help low-income households stay connected during the pandemic. Congress allocated $3.2 billion to the FCC to enable the agency to provide the discount. This discount also comes with a one-time device discount of up to $100 so that users not only have broadband but have the tools to utilize broadband. The advantage of this subsidy is it directly addresses the issue of low-income recipients not being able to afford broadband, which can immediately affect the 15% of Americans who do not have broadband.

The downside of this solution is to qualify, a recipient must share their income on a webpage they have not visited before, which can be invasive. Further, this plan does not permanently address the cost of broadband, and once it ends, it is possible that the same groups of Americans who could not afford broadband before lose access to the internet. Additionally, when the average cost of a laptop in America is $700, a discount of $100 does not do very much to ensure that users are correctly benefitting from their new broadband connection. If the goal is to ensure that users can attend classes, complete homework assignments, and maybe play esports on the side, then a lower-cost tablet ($350 on average) would not address the problem of needing hardware to access broadband.

However, a program like this could be valued as a reasonable start if things continue to go in the right direction. A fair price for broadband is $60 a month. Reducing the cost of broadband to $10 per recipient for competitive speeds and reliability after subsidization could be a great tool to eliminate the digital divide so long as it persists after the pandemic.

Low-Income Broadband Laws

Low-cost broadband laws would require internet service providers to provide broadband plans for low-income recipients at a low-cost price. This approach would directly address Americans with physical access to broadband but who cannot pay for broadband solutions due to cost, thus, helping to bridge the digital divide. Low-cost broadband plans such as New York’s proposed Affordable Broadband Act would require all internet service providers serving more than 20,000 households to provide two low-cost plans to qualifying (low income) customers. However, New York’s law was stymied by ISPs arguing that it is an illegal way to close the digital divide as states are preempted from rate regulation of broadband by the Federal Communications Commission.

The ISPs argued that the Affordable Broadband Act operated within the field of interstate commerce and was thus likely preempted by the Federal Communications Act of 1934. However, as broadband is almost always interstate commerce, other state laws similar to New York’s Affordable Broadband Act would probably run into the same issue. Thus, a low-income broadband law would likely need to come from the federal level to avoid the same road bumps.

The Future of Broadband and the Digital Divide

An overlapping theme between many of these solutions is that they were implemented during the pandemic; this begs the question, are these short-term solutions to an unexpected life-changing event or rational long-term solutions for various long-term problems, including the pandemic? If cities, states, and the nation stay the course and implement more low-cost broadband solutions such as municipal internet, subsidies, and low-income broadband laws, it will be possible to address the digital divide. However, if jurisdictions treat these solutions like short-term stopgaps, communities that cannot afford traditional broadband solutions will again lose broadband access. Students will again go to McDonald’s to do homework assignments, and Aphromoo may continue to be the only active African American LCS player.

Quantum Computing: Ready to Be Patented!

Shuang Liu, MJLST Staffer

In June 2021, IBM presented its newest and most powerful quantum computer—Q System One. This news highlighted people’s continuing confidence and resolution in the research and development of quantum computing. As a matter of fact, several countries and leading high-tech corporations are investing from millions to billions in various aspects of quantum computing technology, and filing patent applications to protect their research achievement.

(Q System One at Fraunhofer-Gesellschaft, Germany)

This article attempts to provide a brief introduction of quantum computing technology (Part I), a potentiometric analysis of the high-tech corporations in quantum computing industry (Part II), and a discussion of potential legal challenges in obtaining patents related to quantum software (Part III).

I. The Quantum Computing Technology and Its Potential Applications

The world’s most famous cat, Schrödinger’s cat, is both alive and dead until it is observed. A quantum bit (“qubit”) behaves similarly—it is both 0 and 1 until it is measured. A classical computer transmits and processes n-bit information with n bits. In contrast, since a qubit represents 0 and 1 at the same time (that is, a superposition of 0 and 1), a quantum computer transmits and processes 2n-bit information with n qubits. Therefore, if a good algorithm is found and the superposition property is utilized properly, a quantum computer can compute exponentially faster than a classical computer.

However, algorithms for quantum computers (hereinafter “quantum algorithms”) are not easy to find and algorithms for classical computers (hereinafter “classical algorithms”) cannot be readily applied on quantum computers. After all, classical algorithms solve problems in a deterministic way (where bits are either 0 or 1), while a quantum computer by its nature processes probabilistic information (where bits are superpositions of 0 and 1). It took people decades to develop the first quantum algorithm that showed capability of solving real-life problems. To date, although quantum algorithms are still far from enough, the available ones do show a great potential of applications.

The first, surest application is cryptanalysis. Integer factorization plays a key role in cryptanalysis. The Shor’s algorithm, one of the most famous quantum algorithms, is able to factor all integers in polynomial time, which has not been made possible by classical algorithms so far.

Another promising application is predicting new chemicals and materials having certain properties. Properties of chemicals and materials usually depend on a variety of factors and can be too complicated for a classical computer to make simulations. A quantum computer, with a stronger computation power, is expected to be able to make such simulations. To be noted, researchers are hopeful to use a quantum computer to find a way to build materials that can be superconducting at room temperature.

Complex processes, such as biological processes, economic development modelling, energy allocation optimization, and big data processing, are also good candidates for which a quantum computer can use its exceptional computation power.

II. Patent Landscape of Leading Corporations

People’s confidence in the potential of quantum computing leads to a race in patents. In the last five years, nearly a thousand patent applications related to quantum computing have been filed in the US, and a little bit fewer before the WIPO.

The figures below show the number of applications filed by leading corporations related to quantum computing and the number of applications related to specific areas. Among them, IBM is the first active patent applicant, leading other corporations by big margins and showing interest in almost every aspect of quantum computing. Other leading applicants are interested in different aspects of quantum computing. For example, Microsoft is mainly working on the software side (machine learning and optimization), while Intel devotes its most energy on the hardware side (quantum circuits). It is also worth noting that Bank of America has filed many applications in the cryptology aspect of quantum computing—it is endeavoring to be the first to use quantum security keys to protect its data.


Figure 1


Figure 2


Figure 3

Turning our eyes to the world, we can see that Huawei, a Chinese telecommunication company, has filed a large number of quantum computing related applications before the World Intellectual Property Office (WIPO). Its major interests reside in quantum communication and securing such communication with cryptographs. NEC, a Japanese electronics corporation is also an active global patent applicant. It mainly focuses on building a quantum computer itself.


Figure 4


Figure 5

III. Potential Legal Issues

In the process of obtaining a patent, the most common substantive rejections are novelty and obviousness rejections. For a quantum software application, a patent-eligibility rejection is also likely. The subsections below discuss patent-eligibility and obviousness challenges especially for quantum software applications.

A. Patent Eligibility

The case law on patent eligibility of software has been unclear and inconsistent. This subsection does not attempt to, nor can it, predict the patent eligibility of quantum software. But at least there are more arguments available for patent eligibility of quantum software than those of classical software.

Courts tend to find a software claim ineligible if it is “not tied to any particular novel machine or apparatus, only a general-purpose computer.” From a policy perspective, such claims are disfavored by courts because “[they] would risk disproportionately tying up the use of the underlying ideas and . . . pose . . . risk of pre-emption.”

To facilitate discussion and avoid confusion, the remainder of this and next subsection will discuss with claim 1 ofU.S. Pat. No. US10990677B2 (hereinafter “‘677 claim 1”):

“A method, comprising:

programming a quantum computing device to implement quantum circuits that perform a machine learning technique using one or more qubits of the quantum computing device, wherein the machine learning technique employs principal component analysis based on at least one median estimate stored as a quantum bit string . . . .”

In a nutshell, ‘677 claim 1 recites a machine learning technique implemented by a quantum computing device. It was drafted in a way that it is closely tied to the quantum computing device, in contrast to “a general-purpose computer.” Therefore, if challenged, the patentee can always argue that this method is closely tied to “a particular novel machine,” and can’t possibly preempt all use of the underlying concept in the claim.

It is worth noting that, instead of simply claiming a machine learning method implemented by a quantum computer, the claim ties the implementation with “quantum circuits” and “one or more qubits.” When drafted this way, the patentee has a strong argument that this claim is not an abstract idea under the commonly used pen and paper test,because a human cannot implement quantum circuits and/or use qubits either mentally or by a pen and a piece of paper.

Other quantum software or algorithm patents might have other arguments available. For example, the patent eligibility of an error correction algorithm patent can be supported by the fact that it greatly improved the performance of a quantum computer, which is a common theme of the current case law of patent eligibility.

B. Obviousness

As can be expected, ‘677 claim 1 has been challenged under 35 U.S.C. §103. In the Non-Final Office Action, the Examiner asserted Mork et al. in view of Kappor et al. in further view of Kerner et al. renders the claim obvious, wherein Mork discloses a classical computer implementing a similar machine learning technique, Kerner discloses a quantum computing device, and Kappor recites that “[t]he machine learning acceleration hardware . . . may comprise . . . a quantum computing device” without providing any details. Such a combination of references can be a recipe for obviousness rejections against quantum software claims.

The key for this rejection to stand is the “connecting” reference (in this example, Kappor), that is, how the classical algorithm can be connected to a quantum computing device. As discussed in Section I of this article, it’s not just that the computation powers of a classical computer and a quantum computer are different; the ways they compute are not at all the same.

Accordingly, for this specific example, the rejection is erroneous because Kappor does not provide any details of how to apply its machine learning process to a quantum computing device, let alone providing teachings of how to apply the machine learning technique disclosed by Mork to a quantum computer. In general, a reference that motivates and teaches to apply a classical algorithm on a quantum computer can be extremely difficult to find. That is because, there is few, if any, classical algorithm can be readily applied on a quantum computer!

Therefore, it is fair to say that a reference in the classical software domain is almost never effective to defeat the patentability of a quantum software.


Although quantum computing technology is still in its infancy, people are very confident in its potential. Corporations in the industries of communication, computing, electronics, and even finance have joined the patent race of quantum computing related technologies. The patent space of quantum computing technology is still quite sparce, and a patent on quantum computing can be obtained much more easily now than later.

Kids’ Choice? COVID-19 Shots

Carly Michaud, MJLST Staffer

At the end of October, the CDC broadened the eligibility for COVID-19 vaccines by adding booster shots for people with specific risk factors who have already been vaccinated, and the long-awaited authorization of shots for children ages 5-11. But with eligibility expanding, the fights over public-school vaccine mandates are sure to increase in intensity. The ultimate question is who has the final say on the health and safety of children in public school: the educators, the parents, or perhaps the students themselves. In addition to the rights of public schools and parents to make decisions around childhood vaccinations, states and public health experts have started to endorse legal processes for teens to consent to vaccination without parental consent.

School Authority

School districts can issue and enforce vaccine mandates through a delegation of state police powers. Through the doctrine of parens patriae, the state holds the power to intervene to protect citizens, including children when the parent is not adequately assuring their health and safety. However, in comparison to the broadness of parens patriae, schools have traditionally had a duty to protect children via the doctrine of in loco parentis, which gives the school the authority of the parents while the child is attending. Schools districts retain authority because of the need to protect the health of children and staff at their facility.

All states have some required vaccinations for children attending public schools, including MMR, Tdap, and varicella (aka. Chickenpox). MMR and Tdap are both combination vaccines protecting against measles, mumps, rubella, (MMR) and diphtheria, tetanus, and pertussis (Tdap). Vaccination mandates are a common public health measure taken particularly for those who are considered medically vulnerable populations and those who work with those populations. Children are considered medically vulnerable due to a variety of factors, including  psychological development, behavioral development, and significantly more daily person-to-person social contacts, making them unique from adults.

Mandatory vaccination has been a common public health practice since the turn of the 20th century and the widespread development and availability of vaccines. In 1905 the Supreme Court upheld a smallpox vaccine mandate enforced by a municipal Board of Health in Massachusetts as a reasonable exercise of state police power. As vaccine availability grew the Supreme Court also affirmed the applicability of vaccine mandates for school children in Zucht v. King. This doctrine has remained well-settled even to the present day, as mere days ago the Supreme Court denied injunctive relief to stop a state level vaccine mandate for health care workers.

Parent/Guardian Authority

The parent or guardian is automatically assumed to care for their child and have a right to do so in the way the parent or guardian sees fit, which is protected under the Fourteenth Amendment’s fundamental rights of parents. The state has been deferential to parental rights under the Fourteenth Amendment, however that deference has not extended to unvaccinated children attending schools without a legally approved exception. Despite the legal control parents have over their children, school districts are able to use their authority to compel students attending their facility to be vaccinated against certain diseases.


Due to the COVID-19 pandemic, more jurisdictions in the United States have given children ages 11 or 12 and older the ability to consent to vaccinations without parental consent. Ethicists have affirmed this policy noting that as children develop autonomy, it is reasonable to rely on their ability to consent to high benefit and low risk health decisions. This policy has been in place in a variety of states and municipalities for numerous years for other vaccines and medical decisions. Now it is being utilized by teens for COVID-19 vaccines.

The American Medical Association is in favor of autonomous teen vaccination as it “maximize[s] immunization opportunities for children” and is already the standard for teens who are effectively independent due to homelessness, unaccompanied status, or military service. This policy also offers protection for teens who do not want to inform a parent of their desire to receive specific preventable or immediate medical care. Many of these laws exist to allow teenagers to choose to receive contraception and the HPV vaccine.

While teens are able to make some health decisions for themselves, the majority of children in the United States are between the ages of 0 and 11. The most recent authorization applies to children in the age 5-11 group, who are still reliant on school vaccine mandates to protect their health and stop the spread of COVID-19 in schools.

Vaccine mandates in schools protect the health of students, faculty and the larger community from the spread of disease. In the case of COVID-19, the Pfizer-BioNTech vaccine has been approved for children ages 5-11 and is over 90% effective, and for children ages 12-15 and has the same efficacy as the original vaccine for adults. (Children ages 16-18 were included in the original Emergency Use Authorization for Pfizer’s vaccine, which is over 95% effective). It is vital schools maintain the power to require student vaccinations to prevent the unnecessary death of students and teachers from a lack of vaccine access and acceptance.