2024

Modern Misinformation: Tort Law’s Limitations

November 6, 2024
First Amendment, Internet, Litigation, Torts Law

Anzario Serrant, MJLST Staffer

Since the ushering in of the new millennium, there has been over a thousand percent increase in the number of active internet users, defined as those who have had access to the internet in the last month.[1]  The internet–and technology as a whole–has planted its roots deeply into our everyday lives and morphed the world into what it is today. As the internet transformed, so did our society, shifting from a time when the internet was solely used by government entities and higher-learning institutions[2] to now, where over 60% of the world’s population has regular access to cyberspace.[3] The ever-evolving nature of the internet and technology has brought an ease and convenience like never imagined while also fostering global connectivity. Although this connection may bring the immediate gratification of instantaneously communicating with friends hundreds of miles away, it has also created an arena conducive to the spread of false or inaccurate information—both deliberate and otherwise.

The evolution of misinformation and disinformation has radically changed how societies interact with information, posing new challenges to individuals, governments, and legal systems. Misinformation, the sharing of a verifiably false statement without intent to deceive, and disinformation, a subset of misinformation distinguished by intent to mislead and actual knowledge that the information is false, are not new phenomena.[4] They have existed throughout history, from the spread of rumors during the Black Death[5] to misinformation about HIV/AIDS in the 1980s.[6] In both examples, misinformation promoted ineffective measures, increased ostracization, and inevitably allowed for the loss of countless lives. Today, the internet has exponentially increased the speed and scale at which misinformation spreads, making our society even more vulnerable to associated harms. But who should bear the liability for these harms—individuals, social media companies, both? Additionally, does existing tort law provide adequate remedies to offset these harms?

The Legal Challenge

Given the global reach of social media and the proliferation of both misinformation and disinformation, one critical question arises: Who should be held legally responsible when misinformation causes harm? This question is becoming more pressing, particularly in light of “recent” events like the COVID-19 pandemic, during which unproven treatments were promoted on social media, leading to widespread confusion and, in some cases, physical harm.[7]

Under tort law, legal remedies exist that could potentially address the spread and use of inaccurate information in situations involving a risk of physical harm. These include fraudulent or negligent misrepresentation, conscious misrepresentation involving risk of physical harm, and negligent misrepresentation involving risk of physical harm.[8] However, these legal concepts were developed prior to the internet and applying them to the realm of social media remains challenging.

Fraudulent Misrepresentation and Disinformation

Current tort law provides limited avenues for addressing disinformation, especially on social media. However, fraudulent misrepresentation can help tackle cases involving deliberate financial deception, such as social media investment scams. These scams arguably meet the fraudulent misrepresentation criteria—false promises meant to induce investment, resulting in financial losses for victims.[9] However, the broad, impersonal nature of social media complicates proving “justifiable reliance.” For instance, would a reasonable person rely on an Instagram post from a stranger to make an investment decision?

In limited instances, courts applying a more subjective analysis might be willing to find the victim’s reliance justifiable, but that still leaves various victims unprotected.[10]  Given these challenges and the limited prospect for success, it may be more effective to consider the role of social media platforms in spreading disinformation.

Conscious misrepresentation involving risk of physical harm (CMIRPH)

Another tort that applies in limited circumstances is CMIRPH. This tort applies when false or unverified information is knowingly spread to induce action, or with disregard for the likelihood of inducing action, that carries an unreasonable risk of physical harm.[11] The most prominent example of this occurred during the COVID-19 pandemic, when false information about hydroxychloroquine and chloroquine spread online, with some public figures promoting the drugs as cures.[12] In such cases, those spreading false information knew, or should have known, that they were not competent to make those statements and that they posed serious risks to public health.

While this tort could be instrumental in holding individuals accountable for spreading harmful medical misinformation, challenges arise in establishing intent and reliance and the broad scope of social media’s reach can make it difficult to apply traditional legal remedies. Moreover, because representations of opinions are covered by the tort,[13] First Amendment arguments would likely be raised if liability were to be placed on people who publicly posted their inaccurate opinions.

Negligent misrepresentation and Misinformation

While fraudulent misrepresentation applies to disinformation, negligent misrepresentation is more suitable to misinformation. A case for negligent misrepresentation must demonstrate (1) declarant pecuniary interest in the transaction, (2) false information supplied for the guidance of others, (3) justifiable reliance, and (4) breach of reasonable care.[14]

Applying negligent misrepresentation to online misinformation proves difficult. For one, the tort requires that the defendant have a pecuniary interest in the transaction. Much of the misinformation inadvertently spread on social media does not involve financial gain for the poster. Moreover, negligent misrepresentation is limited to cases where misinformation was directed at a specific individual or a defined group, making it hard to apply to content posted on public platforms meant to reach as many people as possible.[15]

Even if these obstacles are overcome, the problem of contributory negligence remains. Courts may find that individuals who act on information from social media without verifying its accuracy bear some responsibility for the harm they suffer.

Negligent misrepresentation involving risk of physical harm (NMIRPH)

In cases where there is risk of physical harm, but no financial loss, NMIRPH applies.[16] This tort is particularly relevant in the context of social media, where misinformation about health treatments can spread rapidly—often without monetary motives.

A notable example involves the spread of false claims about natural remedies in African and Caribbean cultures. In these communities, it is common to see misinformation about the health benefits of certain fruits—such as soursop—which is widely believed to have cancer-curing properties. Social media posts frequently promote such claims, leading individuals to rely on these remedies instead of seeking conventional medical treatment, sometimes with harmful results.

In these cases, the tort’s elements are met. False information is shared, individuals reasonably rely on it—within their cultural context—and physical harm follows. However, applying this tort to social media cases is challenging. Courts must assess whether reliance on such information is reasonable and whether the sharer breached a duty of care. Causation is also difficult to prove given the multiple sources of misinformation online. Moreover, the argument for subjective reliance is strongest within the context of smaller communities—leaving the vast majority of social media posts from strangers unprotected.

The Role of Social Media Platforms

One potential solution is to shift the focus of liability from individuals to the platforms themselves. Social media companies have largely been shielded from liability for user-generated content by Section 230 of the U.S. Communications Decency Act, which grants them immunity from being held responsible for third-party content. It can be argued that this immunity, which was granted to aid their development,[17] is no longer necessary, given the vast power and resources these companies now hold. Moreover, blanket immunity might be removing the incentive for these companies to innovate and find a solution, which only they can. There is also an ability to pay quandary as individuals might not be able to compensate for the widespread harm social media platforms allow them to carry out.

While this approach may offer a more practical means of addressing misinformation at scale, it raises concerns about free speech and the feasibility of monitoring all content posted on large platforms like Facebook, Instagram, or Twitter. Additionally, imposing liability on social media companies could incentivize them to over-censor, potentially stifling legitimate expression.[18]

Conclusion

The legal system must evolve to address the unique challenges posed by online platforms. While existing tort remedies like fraudulent misrepresentation and negligent misrepresentation offer potential avenues for redress, their application to social media is limited by questions of reliance, scope, and practicality. To better protect individuals from the harms caused by misinformation, lawmakers may need to consider updating existing laws or creating new legal frameworks tailored to the realities of the digital world. At the same time, social media companies must be encouraged to take a more active role in curbing the spread of false information, while balancing the need to protect free speech.

Solving the problem of misinformation requires a comprehensive approach, combining legal accountability, platform responsibility, and public education to ensure a more informed and resilient society.

 

Notes

[1] Hannah Ritchie et al., Internet, Our World in Data, (2023) ourworldindata.org/internet.

[2] See generally Barry Leiner et al., The Past and Future History of the Internet, 40 Commc’ns ACM 102 (1997) (discussing the origins of the internet).

[3] Lexie Pelchen, Internet Usage Statistics In 2024, Forbes Home, (Mar. 1, 2024) https://www.forbes.com/home-improvement/internet/internet-statistics/#:~:text=There%20are%205.35%20billion%20internet%20users%20worldwide.&text=Out%20of%20the%20nearly%208,the%20internet%2C%20according%20to%20Statista.

[4] Audrey Normandin, Redefining “Misinformation,” “Disinformation,” and “Fake News”: Using Social Science Research to Form an Interdisciplinary Model of Online Limited Forums on Social Media Platforms, 44 Campbell L. Rev., 289, 293 (2022).

[5] Melissa De Witte, For Renaissance Italians, Combating Black Plague Was as Much About Politics as It Was Science, According to Stanford Scholar, Stan. Rep., (Mar. 17, 2020) https://news.stanford.edu/stories/2020/05/combating-black-plague-just-much-politics-science (discussing that poor people and foreigners were believed to be the cause—at least partially—of the plague).

[6] 40 Years of HIV Discovery: The First Cases of a Mysterious Disease in the Early 1980s, Institut Pasteur, (May 5, 2023) https://www.pasteur.fr/en/research-journal/news/40-years-hiv-discovery-first-cases-mysterious-disease-early-1980s (“This syndrome is then called the ‘4H disease’ to designate Homosexuals, Heroin addicts, Hemophiliacs and Haitians, before we understand that it does not only concern ‘these populations.’”).

[7] See generally Kacper Niburski & Oskar Niburski, Impact of Trump’s Promotion of Unproven COVID-19 Treatments and Subsequent Internet Trends: Observational Study, J. Med. Internet Rsch., Nov. 22, 2020 (discussing the impact of former President Trump’s promotion of hydroxychloroquine); Matthew Cohen et al., When COVID-19 Prophylaxis Leads to Hydroxychloroquine Poisoning, 10 Sw. Respiratory & Critical Care Chrons., 52 (discussing increase in hydroxychloroquine overdoses following its brief emergency use authorization).

[8] Geelan Fahimy, Liable for Your Lies: Misrepresentation Law as a Mechanism for Regulating Behavior on Social Networking Sites, 39 Pepp. L. Rev., 367, 370–79 (2012).

[9] See Restatement (Second) of Torts § 525 (Am. L. Inst. 1977) (“One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.”).

[10] Justifiable reliance can be proven through either a subjective or objective standard. Restatement (Second) of Torts § 538 (Am. L. Inst. 1977).

[11] Restatement (Second) of Torts § 310 (Am. L. Inst. 1965) (“An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor (a) intends his statement to induce or should realize that is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and (b) knows (i) that the statement is false, or (ii) that he has not the knowledge which he professes.”).

[12] See Niburski, supra note 7, for a discussion of former President Trump’s statements.

[13] Restatement (Second) of Torts § 310 cmt. b (Am. L. Inst. 1965).

[14] Restatement (Second) of Torts § 552(1) (Am. L. Inst. 1977) (“One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”).

[15] Liability under negligent misrepresentation is limited to the person or group that the declarant intended to guide by supplying the information. Restatement (Second) of Torts § 552(2)(a)(1) (Am. L. Inst. 1977).

[16] Restatement (Second) of Torts § 311 (Am. L. Inst. 1965) (“One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should expect to be put in peril by the action taken. Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.”).

[17] See George Fishback, How the Wolf of Wall Street Shaped the Internet: A Review of Section 230 of the Communications Decency Act, 28 Tex. Intell. Prop. L.J. 275, 276 (2020) (“Section 230 promoted websites to grow without [the] fear . . . of liability for content beyond their control.”).

[18] See Section 230, Elec. Frontier Found. https://www.eff.org/issues/cda230#:~:text=Section%20230%20allows%20for%20web,what%20content%20they%20will%20distribute (last visited Oct. 23, 2024) (“In Canada and Australia, courts have allowed operators of online discussion groups to be punished for things their users have said. That has reduced the amount of user speech online, particularly on controversial subjects.”).

 

What Happens to Your Genetic Data in a Sale or Acquisition?

November 4, 2024
Data, Data Privacy, New Technology, Privacy, Regulatory

Colin Loyd, MJLST Staffer

Remember 23andMe—the genetic testing company that once skyrocketed in publicity in the 2010s due to its relatively inexpensive access to genetic testing? It’s now heading toward disaster. This September, its board of directors saw all but one member tender their resignation.[1] At the close of that day’s trading, 23andMe’s share price was $0.35, representing a 99.9% decline in valuation from its peak in 2021.[2] This decline in valuation suggests the company may declare bankruptcy, which often leads to a sale of a company’s assets. Bankruptcy or the sale of assets present a host of complex privacy and regulatory issues, particularly concerning the sale of 23andMe’s most valuable asset—its vast collection of consumer DNA data.[3] This uncertain situation underscores serious concerns surrounding the state of comprehensive privacy protections for genetic information that leave consumers’ sensitive genetic data vulnerable to misuse and exploitation.

23andMe collects and stores massive amounts of user genetic information. However, unlike healthcare providers, 23andMe does not have to comply with the stringent privacy regulations set out in the Health Insurance Portability and Accountability Act (HIPAA).[4] While HIPAA is designed to protect sensitive health data, its protections apply only to a small subset of healthcare related entities.[5] HIPAA only regulates the use of genetic information by “group health plan[s], health insurance issuer[s] that issue[] health insurance coverage, or issuer[s] of a medicare supplemental policy.”[6] 23andMe does not fit into any of these categories and therefore operates outside the scope of HIPAA protections with respect to genetic information, leaving any genetic information it holds largely unregulated.

The Genetic Information Nondiscrimination Act (GINA), enacted in 2008, offers consumer protections by prohibiting discrimination based on an individual’s genetic information with respect to health insurance premium amounts or eligibility requirements for health insurance.[7] GINA also prohibits any deprivation of employment opportunities based on genetic information.[8] However, GINA’s protections do not extend to life insurance, disability insurance, or long-term care insurance.[9] This leaves a gap where genetic information may be used against individuals by entities not subject to GINA.

This regulatory gap is a major concern for consumers, especially with a potential bankruptcy sale looming. If 23andMe sells its assets, including its database of genetic information, the new owner would not have to adhere to the same privacy commitments made by 23andMe. For example, 23andMe promises not to use genetic information it receives for personalized or targeted marketing/advertising without a user’s express consent.[10] This policy likely reflects 23andMe’s efforts to comply with the California Privacy Rights Act (CPRA), which grants consumers the right to direct a business to not share or sell their personal information.[11] However, this right under the CPRA is an opt-out right—not an opt-in right—meaning consumers can stop a future sale of their information but by default there is no initial, regulatory limit on the sale of their personal information.[12] As a result, there’s nothing stopping 23andMe from altering its policies and changing how it uses genetic information. In fact, 23andMe’s Privacy Statement states it “may make changes to this Privacy Statement from time to time.”[13] Any such change would likely be binding if it is clearly communicated to users.[14] 23andMe currently lists email or an in-app notification as methods it may notify its users of any change to the Privacy Statement.[15] If it does so, it’s highly possible a court would view this as “clear communication” and there would be little legal recourse for users to prevent their genetic information from being used in ways they did not anticipate, such as for research or commercial purposes.

For example, say a life insurance company acquires an individual’s genetic data through the purchase of 23andMe’s assets. It could potentially use that data to make decisions about coverage or premiums, even though GINA prohibits health insurers to do the same.[16] This loophole highlights the dangers of having genetic information in the hands of entities not bound by strict privacy protections.

In the event of an acquisition or bankruptcy, 23andMe’s Privacy Statement outlines that personal information, including genetic data, may be among the assets sold or transferred to the new entity.[17] In such a case, the new owner could inherit both the data and the rights to use it under the existing terms, including the ability to modify how the data is used. This could result in uses not originally intended by the user so long as the change is communicated to the user.[18] This transfer clause highlights a key concern for users because it allows their deeply personal genetic data to be passed to another company without additional consent, potentially subjecting them to exploitation by organizations with different data usage policies or commercial interests. While 23andMe must notify users about any changes to the privacy statement or its use of genetic information, it does not specify whether the notice will be given in advance.[19] Any new entity could plan a change to the privacy statement terms–altering how it uses the genetic information while leaving users in the dark until the change is communicated to them, at which point the user’s information may have already been shared with third parties.

The potential 23andMe bankruptcy and sale of assets reveals deep flaws in the current regulatory system governing genetic data privacy. Without HIPAA protections, consumers risk their sensitive genetic information being sold or misused in ways they cannot control. GINA–while offering some protections–still leaves significant gaps, especially in life and disability insurance. As the demand for genetic testing continues to grow, the vulnerabilities exposed by 23andMe’s potential financial troubles highlight the urgent need for better privacy protections. Consumers must be made aware of the risks involved in sharing their genetic data, and regulatory measures must be strengthened to ensure this sensitive information is not misused or sold without their explicit consent.

 

Notes

[1] Independent Directors of 23andMe Resign from Board, 23andMe (Sept. 17, 2024) https://investors.23andme.com/news-releases/news-release-details/independent-directors-23andme-resign-board.

[2] Rolfe Winkler, 23andMe Board Resigns in New Blow to DNA-Testing Company, WALL ST. J. (Sept. 18, 2024) https://www.wsj.com/tech/biotech/23andme-board-resigns-in-new-blow-to-dna-testing-company-12f1a355.

[3] Anne Wojcicki (the last remaining board member) has consistently publicized her plan to take the company private, which is looming larger given the current state of the business financials. Id.

[4] See 42 U.S.C. § 1320d-9(a)(2).

[5] See generally 42 U.S.C. §1320d et seq.

[6] 42 U.S.C. § 1320d-9(a)(2).

[7] Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881.

[8] Id.

[9] Jessica D Tenenbaum & Kenneth W Goodman, Beyond the Genetic Information Nondiscrimination Act: Ethical and Economic Implications of the Exclusion of Disability, Long-term Care and Life Insurance, 14 Personalized Med. 153, 154 (2017).

[10] How We Use Your Information, 23andMe, https://www.23andme.com/legal/how-we-use-info/ (last visited Oct. 14, 2024).

[11] Cal. Civ. Code § 1798.120(a) (Deering 2024).

[12] Id.

[13] Privacy Statement, 23andMe (Sept. 24, 2024) https://www.23andme.com/legal/privacy/full-version/.

[14] See Lee v. Ticketmaster LLC, 817 Fed. App’x 393 (9th Cir. 2019)(upholding terms of use where notice was clearly given to the user, even if the user didn’t check a box to assent to the terms).

[15] Privacy Statement, supra note 13.

[16] See K.S.A. § 40-2259(c)-(d) (carving out the ability for life insurance policies to take into account genetic information when underwriting the policy).

[17] Privacy Statement, supra note 13.

[18] See Ticketmaster, 817 Fed. App’x 393 (2019).

[19] Privacy Statement, supra note 13.

Transforming Access: The FCC’s New Telecommunication Requirements May Enhance Accessibility in Criminal Detention Centers

October 29, 2024
Disability Law, FCC, Human Rights Law, Telecommunication

 

Peyton Soethout, MJLST Staffer

Continued technological advancements have made it easier for people to communicate with their loved ones worldwide. Criminal detention centers have utilized the rise of this digital age to make the inmate communication process easier for their staff.[1] Although these practices may simplify security and administrative protocols, they also negatively impact inmates’ abilities to effectively communicate with loved ones through traditional mail as oftentimes inmates “receive letters with missing pages and blurry images.”[2] These issues—combined with the COVID-19 pandemic increasing security measures, and the prevalence and popularity of telephones—have caused decreases in written communications between incarcerated and free people and subsequent increases in telecommunication.[3]

 

While traditional mail has become less reliable, criminal detention centers’ use of video and audio telecommunications is not without issue. Challenges with telecommunication technology are especially difficult for inmates who have communication disabilities, which include deafness, hard of hearing, blindness, low vision, deafblindness, speech disabilities, or other disabilities that affect communication.[4] Despite technology advancing outside detention facilities, many jails and prisons primarily rely on out-of-date devices for their telecommunication needs.[5] The reliance on out-of-date technology greatly impacts inmates with communication disabilities because they heavily rely on technology to communicate with others.[6]

Congress has attempted to mitigate these challenges through various legislation. Together, the Rehabilitation Act of 1973 and the American Disabilities Act (“ADA”) require prison and jail officers to “avoid discrimination; individually accommodate disability; and maximize integration of prisoners with disabilities with respect to programs, service, and activities.”[7] These statutes provided the first step in equal communication opportunities for all inmates, but they left two questions: (1) who decides which inmates receive communication accommodations; and (2) what specific technologies are required for this communication access.[8]

The Federal Communications Commission (“FCC”) made efforts to address prison telecommunication issues but their attempts were ultimately quashed in 2017 as courts found the FCC only had authority to address interstate calls, not intrastate calls.[9] In 2022, Congress passed the Martha Wright-Reed Just and Reasonable Communications Act (“Martha Wright-Reed Act”) which amended the Communications Act of 1934. It established “any Federal, State, or local law to require telephone service or advanced communications services at a State or local prison, jail, or detention facility.”[10] Because the FCC determined that the Martha Wright-Reed Act “significantly expanded the [FCC’s] jurisdiction over incarcerated people’s communications services,” it promulgated new accessibility requirements for inmate telecommunications.[11]

The new FCC rule requires detention centers to provide text telephones (“TTY”) and telecommunication relay services (“TRS”) to inmates with communication disabilities.[12] TTYs—defined as “machine[s] that [employ] graphic communication in the transmission of coded signals through a wire or radio communication system”—have long been used in jails as a device to assist incarcerated people with communication disabilities, but they have never been explicitly required on a federal level.[13]

Unlike TTYs, the use of TRSs is much more rare. The FCC defines TRSs as “[t]elephone transmission services that provide the ability […] to engage in communication by wire or radio […], in a manner that is functionally equivalent to the ability of a hearing individual who does not have a speech disability.”[14] The new FCC rule also gives examples of certain TRSs such as speech-to-speech relay services (“STS”), and video relay services (“VRS”).[15] Overall, these technologies can significantly decrease challenges presented by general telecommunication devices.[16]

While this rule does an adequate job of addressing what technologies are required for inmate telecommunication access, it does little to address the remaining question: who decides which inmates require telecommunication accommodations. The rule specifies that TTYs and TRSs are for incarcerated people who individually register for communication accommodations, and the rule places registration responsibility primarily on the inmates.[17] Given the historic trend of jail and prison administration, detention facilities’ staff will likely need to organize the registration process and inform inmates of its existence.[18] In the rule proposal, the FCC quotes formerly incarcerated person Kim Thomas who notes, “[i]ncarcerated people with disabilities that impact their ability to communicate continually experience barriers to access because prison administrators fail to understand their communication needs.”[19]

The FCC acknowledges that detention center administrators may lack the knowledge necessary to identify communication needs, and this will likely continue negatively impacting inmates with communication disabilities. Specifically, inmates with communication disabilities may be unaware of the technologies available to them. But even with potential challenges, the FCC’s promulgation of these new requirements is a significant step in the right direction for the future of telecommunication access for inmates with communication disabilities.

 

 

Notes

[1] Nazish Dholakia, The FCC Is Capping Outrageous Prison Phone Rates, but Companies Are Still Price Gouging, Vera (Sept. 4, 2024), https://www.vera.org/news/the-fcc-is-capping-outrageous-prison-phone-rates-but-companies-are-still-price-gouging#:~:text=The (“Corrections departments say they have adopted mail scanning to obtain greater control over materials entering their facilities and ensure safety.”).

[2] Id.

[3] Id.

[4] Tessa Bialek & Margo Schlanger, Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People, 26 J. Gender Race & Just. 133, 138 (2023).

[5] Id. (referencing Heyer v. U.S. Bureau of Prisons, 849 F.3d 202 (4th Cir. 2017)).

[6] Id.

[7] Margo Schlanger, Prisoners with Disabilities, in Reforming Criminal Justice: Punishment, Incarceration, and Release 301 (E. Luna ed., 2017).

[8] See Farina Mendelson, A Silent Struggle: Constitutional Violations Against the Hearing Impaired in New York State Prisons, 20 CUNY L. Rev. 559, 564–571 (2017) (noting that the New York Department of Corrections had default responsibility to determine which inmates have disabilities as the ADA did not provide such information); Wanda Bertram, FCC Votes to Slash Prison and Jail Calling Rates and Ban Corporate Kickbacks, Prison Policy Initiative (July 18, 2024), https://www.prisonpolicy.org/blog/2024/07/18/fcc-vote/ (claiming that the July 2024 FCC regulations addressed required accessibility technologies for the first time).

[9] Jon Brodkin, Prison Phone Call Fees Are Out of Control. The FCC Can Finally Rein Them In, Wired (July 19, 2024, 8:30 AM), https://www.wired.com/story/prison-phone-call-fees-fcc-caps/.

[10] Martha Wright-Reed Just and Reasonable Communications Act of 2022, Pub. L. No. 117–338, 136 Stat 6156.

[11] Implementation of the Martha Wright-Reed Act; Rates for Interstate Inmate Calling Services, 89 FR 77244, 77244 [hereinafter FCC Notice and Comment]; Press Release, Fed. Commc’n Comm’n, FCC Caps Exorbitant Phone & Video Call Rates for Incarcerated Persons & Their Families: The Martha Wright-Reed Act Empowered the FCC to Close Gaps in the Long-Fought- For Protections Against Predatory Rates (July 18, 2024).

[12] 47 C.F.R. § 64.6040 (2024).

[13] 47 C.F.R. § 64.601(a)(44) (2024); Bialek & Schlanger, supra note 4 at 142. Note that Bialek & Schlanger use “TTY” to refer to teletypewriters which is one example of a TTY under the FCC’s rule. Oftentimes, teletypewriters and text telephones are used interchangeably. For the purposes of this blog post, TTY will be used as defined in 47 C.F.R. § 64.601.

[14] 47 C.F.R. § 64.601(a)(43) (2024).

[15] See 47 C.F.R. § 64.601(a)(41) (2024), which defines STS as a TRS “that allows individuals with speech disabilities to communicate with voice telephone users through the use of specially trained Communication Assistants who understand the speech patterns of persons with speech disabilities and can repeat the words spoken by that person;” and 47 C.F.R. § 64.601(a)(51) (2024), which defines VRS as “a TRS “that allows people with hearing or speech disabilities who use sign language to communicate with voice telephone users through video equipment.”

[16] See Fed. Commc’n Comm’n, Frequently Asked Questions on Telecommunications Relay Services (TRS), Fed. Commc’n Comm’n, (Mar. 1998), https://transition.fcc.gov/Bureaus/Common_Carrier/FAQ/faq_trs.html (explaining the benefits of TTY and TRS access).

[17] See e.g., 47 C.F.R. § 64.6040(c)(4) (2024) (requiring individual registration); 47 C.F.R. § 64.611 (2024) (explaining the registration process).

[18] See Mendelson, supra note 8, at 564 (“[T]he Department is responsible for identifying an inmate’s hearing impairment.”).

[19] FCC Notice and Comment, supra note 11, at 77248–77249 (emphasis added).

Persistent Yet Questionable: FTC’s Journey Regulating Negative Option Marketing in Online Subscription Services

October 17, 2024
Digital Marketing, Legal Ethics, Marketing, Regulatory

Su Young Lee, MJLST Staffer

Online subscription services are increasingly prevalent in society – prevalent enough to catch the attention of the Federal Trade Commission (FTC). On June 17, 2024, the FTC filed a lawsuit against Adobe Inc for the violation of the FTC Act Section 5 and Section 4 of the Restore Online Shoppers’ Confidence Act (ROSCA).[i] These two laws introduce a general legal framework governing online commerce and negative option marketing.[ii] The ROSCA Section 4 prohibits online sellers from conducting a transaction through “negative option feature” unless the seller “clearly and conspicuously discloses all material terms of the transaction” to the consumer.[iii] While the ROSCA is a distinctive law to the FTC Act, the violation of the ROSCA Section 4 is treated as an “unfair or deceptive acts or practices” so constitutes the violation of the FTC Act Section 5.[iv] Furthermore, as it is treated as an “unfair or deceptive acts or practices,”[v] the violation of the ROSCA Section 4 also triggers the FTC Act Section 19, which allows the FTC to “commence a civil action” against the one who violated subjected law.[vi]

In this case, the FTC argues that Adobe did not “clearly and conspicuously” disclose the early cancellation fee during the subscription process, which, therefore, “constitutes an unfair or deceptive act or practice in or affecting commerce.”[vii] Last year, the FTC filed a similar complaint against Amazon concerning the cancellation of Prime memberships; the case is still ongoing.[viii]

The FTC’s action against online subscription policies, specifically their marketing strategy called ‘negative option marketing,’ or ‘dark pattern,’[ix] are not new. Negative option marketing is “a term or condition under which the seller may interpret a consumer’s silence or failure to take affirmative action to reject a good or service or to cancel the agreement as acceptance or continuing acceptance of the offer.”[x] Examples include automatic renewals, continuity plans, free-to-pay or fee-to-pay conversions, and prenotification plans.[xi] The FTC reports negative option marketing to be a “persistent source of consumer harm” by “saddling shoppers with recurring payments for products and services they did not intend to purchase or did not want to continue to purchase.”[xii]

The FTC has pursued action against negative option marketing, especially its use in online subscription services, in recent years. As with Amazon and Adobe, using ROSCA and/or the FTC Act as a legal basis, the FTC has sued numerous online commercial companies with subscription services such as Wealthpress and MoviePass.[xiii] They also published a staff report and policy statement warning of the danger of negative option marketing.[xiv] On April 24, 2023, the FTC even exercised their rulemaking authority and proposed a rule amending 16 C.F.R. part 425 to specifically target the regulation of negative option marketing.[xv] While the proposed rule does not limit the type of applicable media,[xvi] the FTC added the definition of the terms that particularly apply to online subscription services, such as “simple cancellation” and “annual reminders.”[xvii]

Despite their persistence, the effectiveness of the FTC’s efforts is still in question. First, not everyone welcomes the proposed rule. Former Commissioner Christine S. Wilson states that the proposed rule’s scope of negative option marketing is overly broad because it applies to any misrepresentations, even to those irrelevant to negative option terms or policies.[xviii] She also points out that the proposed rule gives the FTC the authority to seek civil penalties under the FTC Act Section 5, which the Supreme Court limited in AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n.[xix] Commissioner Wilson expresses concern that such overreach would put marketers at risk of being liable for monetary penalties even when they fully disclose negative option terms.[xx]

Luckily for those not fond of the proposed rule, the FTC has not yet prevailed in putting the regulation into effect. Even if it becomes effective one day, this new rule will have to survive the unclarified yet heightened standard the recent overruling of Chevron created. The Section 6(a) of the FTC Act, governing the agency’s rulemaking authority, grants the FTC to make a rule that addresses “unfair or deceptive acts or practices.”[xxi] The proposed rule manifests its relation to such authority, as many of its provisions trigger the violation of the FTC Act Section 5, which states that “unfair or deceptive acts or practices” are unlawful.[xxii] On the other hand, no one is sure at this moment whether such manifestations are the sufficient address of ‘unfair or deceptive acts or practices’ under the new rulemaking standard.

No matter where the proposed rule currently lies, as the ongoing lawsuits against Adobe and Amazon reflect, it seems like the FTC has not given up on regulating negative option marketing within online subscription services. If the current proposed rule does not end up being effective and fails to become the FTC’s resolution, could lawsuits be their alternate pathway? Based on their past lawsuits against Wealthpress and MoviePass, which ended with the agreement in the proposed court order (“Agreement”) and settlement, it may be reasonable to anticipate that the ongoing cases will reach a similar outcome.[xxiii] The settlement and Agreement, which involved specific restriction and monetary agreement,[xxiv] from Wealthpress and MoviePass cases focused on refraining from the alleged type of conduct of an alleged company. These could discourage alleged tech companies like Wealthpress and MoviePass from using the alleged type of negative option marketing in their future subscription policies. However, since neither settlement nor Agreement has precedential authority, it is questionable whether the history of lawsuits filled with settlements and Agreement could prevent other tech companies from applying similar negative option marketing to their subscription policies.

 

Notes

[i] Complaint for Permanent Injunction, Monetary Judgment, Civil Penalty Judgment, and Other Relief at 25, United States v. Adobe Inc., No. 5:24-cv-03630-BLF (N.D. Cal. June 17, 2024).

[ii] Id. at ¶ 10.

[iii] 15 U.S.C. § 8403.

[iv] 15 U.S.C. 45(a)(1) (“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”) (emphasis added). See also Complaint for Permanent Injunction, supra note i, at ¶ 22.

[v] 15 U.S.C. § 8404(a).

[vi]  15 U.S.C. § 57(b)(1) (“If any person, partnership, or corporation violates any rule under this subchapter respecting unfair or deceptive acts or practices…then the Commission may commence a civil action against such person.”) (emphasis added).

[vii] Complaint for Permanent Injunction, supra note i, at ¶ 121-25.

[viii] See Fed. Trade Comm’n v. Amazon.com, Inc., No. 2:23-CV-00932-JHC, 2024 WL 2723812 at 1 (W.D. Wash. May 28, 2024) (showing that the FTC is using the same legal basis).

[ix] FTC uses two terms (negative option marketing and dark pattern) interchangebly. See FED. TRADE COMM’N, Bringing Dark Patterns to Light : Staff Report (2022).

[x] FED. TRADE COMM’N, ENFORCEMENT POLICY STATEMENT REGARDING NEGATIVE OPTION MARKETING 60822 (2021).

[xi] Id.

[xii] Id. at 60823.

[xiii] See FTC Suit Requires Investment Advice Company WealthPress to Pay $1.7 Million for Deceiving Consumers, Fed. Trade Comm’n (Jan. 13, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-suit-requires-investment-advice-company-wealthpress-pay-17-million-deceiving-consumers and Operators of MoviePass Subscription Service Agree to Settle FTC Allegations that They Limited Usage, Failed to Secure User Data Fed. Trade Comm’n (June. 7, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/06/operators-moviepass-subscription-service-agree-settle-ftc-allegations-they-limited-usage-failed.

[xiv] See FED. TRADE COMM’N, Bringing Dark Patterns to Light, supra note ix and FED. TRADE COMM’N, ENFORCEMENT POLICY STATEMENT, supra note x.

[xv] Negative Option Rule, 88 FR 24716 (proposed April 24, 2023) (to be codified at 16 C.F.R. pt. 425)

[xvi] Id. at 24734 (“This Rule contains requirements related to any form of negative option plan in any media, including, but not limited to, the internet, telephone, inprint, and in-person transactions.”).

[xvii] Id.

[xviii] Christine S. Wilson, Dissenting Statement of Commissioner Christine S. Wilson, Notice of Proposed Rulemaking, Negative Option Rule 2 (Sept. 2021), https://www.ftc.gov/system/files/ftc_gov/pdf/p064202_commissioner_wilson_dissent_negative_option_rule_finalrevd_0.pdf.

[xix] Id. See also AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 593 U.S. 67, 141 S. Ct. 1341, 209 L. Ed. 2d 361 (2021) (finding that the FTC cannot seek monetary relief based on the FTC § 13(b), which triggers permanent injunction when the § 5 is found to be violated)

[xx] Christine S. Wilson, Dissenting Statement, supra note xviii, at 2.

[xxi] 15 U.S.C. § 46(g). See also A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement, and Rulemaking Authority, Fed. Trade Comm’n (May, 2021), https://www.ftc.gov/about-ftc/mission/enforcement-authority.

[xxii] 15 U.S.C. 45(a)(1). E.g. Negative Option Rule, 88 FR at 24735 (“In connection with promoting or offering for sale any good or service with a negative option feature, it is a violation of this Rule and an unfair or deceptive act or practice in violation of Section 5 of the FTC Act.”).

[xxiii] supra note xiii.

[xxiv] Id.

Enriching and Undermining Justice: The Risks of Zoom Court

October 15, 2024
Discrimination, Internet, Legal Ethics, Litigation, New Technology

Matthew Prager, MJLST Staffer

In the spring of 2022, the United States shut down public spaces in response to the COVID-19 pandemic. The court system did not escape this process, seeing all jury trials paused in March 2022.[1] In this rapidly changing environment, courts scrambled to adjust using a slew of modern telecommunication and video conferencing systems to resume the various aspects of the courtroom system in the virtual world. Despite this radical upheaval to traditional courtroom structure, this new form of court appears here to stay.[2]

Much has been written about the benefits of telecommunication services like Zoom and similar software to the courtroom system.[3]  However, while Zoom court has been a boon to many, Zoom-style virtual court appearances also present legal challenges.[4] Some of these problems affect all courtroom participants, while others disproportionally affect highly vulnerable individuals’ ability to participate in the legal system.

Telecommunications, like all forms of technology, is vulnerable to malfunctions and ‘glitches’, and these glitches can have significant disadvantage on a party’s engagement with the legal system. In the most direct sense, glitches– be they video malfunction, audio or microphone failure, or unstable internet connections–can limit a party’s ability to hear and be heard by their attorneys, opposing parties or judge, ultimately compromising their legitimate participation in the legal process.[5]

But these glitches can have effects beyond affecting direct communications. One study found participants evaluated individuals suffering from connection issues as less likable.[6] Another study using mock jurors, found those shown a video on a broken VCR recommend higher prison terms than a group of mock jurors provided with a functional VCR.[7] In effect, technology can act as a third party in a courtroom, and when that third party misbehaves, frustrations can unjustly prejudice a party with deleterious consequences.

Even absent glitches, observing a person through a screen can have a negative impact on how that person is perceived.[8] Researchers have noted this issue even before the pandemic. Online bail hearings conducted by closed-circuit camera led to significantly higher bond amounts than those conducted in person.[9] Simply adjusting the camera angle can alter the perception of a witness in the eyes of the observer.[10]

These issues represent a universal problem for any party in the legal system, but they are especially impactful on the elderly population.[11] Senior citizens often lacks digital literacy with modern and emerging technologies, and may even find their first experience with these telecommunications systems is in a courtroom hearing– that is if they even have access to the necessary technology.[12] These issues can have extreme consequences, with one case of an elderly defendant violating their probation because they failed to navigate a faulty Zoom link.[13]  The elderly are especially vulnerable, as issues with technical literacy can be compounded by sensory difficulties. One party with bad eyesight found requiring communication through a screen functionally deprived him of any communication at all.[14]

While there has been some effort to return to the in-person court experience, the benefits of virtual trials are too significant to ignore.[15] Virtual court minimizes transportation costs, allows vulnerable parties to engage in the legal system from the safety and familiarity of their own home and simplifies the logistical tail of the courtroom process. These benefits are indisputable for many participants in the legal system. But these benefits are accompanied by drawbacks, and practicalities aside, the adverse and disproportionate impact on senior citizens in virtual courtrooms should be seen as a problem to solve and not simply endure.

Notes

[1] Debra Cassens Weiss, A slew of federal and state courts suspend trials or close for coronavirus threat, ABA JOURNAL (March 18, 2020) (https://www.abajournal.com/news/article/a-slew-of-federal-and-state-courts-jump-on-the-bandwagon-suspending-trials-for-coronavirus-threat)

[2] How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, PEW, December 1, 2021 (https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courts-embraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations).

[3] See Amy Petkovsek, A Virtual Path to Justice: Paving Smoother Roads to Courtroom Access, ABA (June 3, 2024) (https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/technology-and-the-law/a-virtual-path-to-justice) (finding that Zoom court: minimizes transportation costs for low-income, disabled or remote parties; allows parties to participate in court from a safe or trusted environment; minimizes disruptions for children who would otherwise miss entire days of school; protects undocumented individuals from the risk of deportation; diminishes courtroom reschedulings from parties lacking access to childcare or transportation and allows immune-compromised and other high health-risk parties to engage in the legal process without exposure to transmittable illnesses).

[4] Daniel Gielchinsky, Returning to Court in a Post-COVID Era: The Pros and Cons of a Virtual Court System, LAW.com (https://www.law.com/dailybusinessreview/2024/03/15/returning-to-court-in-a-post-covid-era-the-pros-and-cons-of-a-virtual-court-system/)

[5] Benefits & Disadvantages of Zoom Court Hearings, APPEL & MORSE, (https://www.appelmorse.com/blog/2020/july/benefits-disadvantages-of-zoom-court-hearings/) (last visited Oct. 7, 2024).

[6] Angela Chang, Zoom Trials as the New Normal: A Cautionary Tale, U. CHI. L. REV. (https://lawreview.uchicago.edu/online-archive/zoom-trials-new-normal-cautionary-tale) (“Participants in that study perceived their conversation partners as less friendly, less active and less cheerful when there were transmission delays. . . .compared to conversations without delays.”).

[7] Id.

[8]  Id. “Screen” interactions are remembered less vividly and obscure important nonverbal social cues.

[9] Id.

[10] Shannon Havener, Effects of Videoconferencing on Perception in the Courtroom (2014) (Ph.D. dissertation, Arizona State University).

[11] Virtual Justice? A National Study Analyzing the Transition to Remote Criminal Court, STANFORD CRIMINAL JUSTICE CENTER, Aug. 2021, at 78.

[12] Id. at 79 (describing how some parties lack access to phones, Wi-Fi or any methods of electronic communication).

[13] Ivan Villegas, Elderly Accused Violates Probation, VANGUARD NEWS GROUP (October 21, 2022) (https://davisvanguard.org/2022/10/elderly-accused-violates-probation-zoom-problems-defense-claims/)

[14] John Seasly, Challenges arise as the courtroom goes virtual, Injustice Watch (April 22, 2020) (https://www.injusticewatch.org/judges/court-administration/2020/challenges-arise-as-the-courtroom-goes-virtual/)

[15] Kara Berg, Leading Michigan judges call for return to in-person court proceedings (Oct. 2, 2024, 9:36:00 PM), (https://detroitnews.com/story/news/local/michigan/2024/10/02/leading-michigan-judges-call-for-return-to-in-person-court-proceedings/75484358007/#:~:text=Courts%20began%20heavily%20using%20Zoom,is%20determined%20by%20individual%20judges).

The New Reefer Madness? New Laws Look to Regulate Hemp Products

October 11, 2024
Drug Policy, Food and Drug Law, Regulatory

Violet Butler, MJLST Staffer

In 2018, the federal government took a major step in shifting its policy towards the criminalization of marijuana. Included in the 2018 Farm Bill was a provision that legalized some hemp-derivative products, in particular CBD products with a low-level of THC.[1] While this was touted by the industry and activists as a major step forward, the move to increase regulations on these hemp products have recently gained steam.

But what exactly was legalized by the federal government? The 2018 Farm Bill legalized hemp and hemp derived products (including CBD) that contain no more than 0.3% THC.[2] It should be noted that most cannabis products are consumed for some form of intoxication[3] and, suffice it to say, intoxication does not arise from 0.3% THC. The 2018 Farm Bill legalized a very small subsection of cannabis products serving a limited range of uses. Under the law, if a product contains more than 0.3% THC it is legally classified as marijuana and is still illegal under the Controlled Substances Act. So, if these new products cannot be used as intoxicants, why is there a push for more regulations?

A reason for the push for further regulations gaining traction is the concern over synthetically produced cannabinoids. A report from the National Academy of Sciences, Engineering, and Medicine recently published a report urging the federal government to redefine what “hemp” means. This is in an effort to ban semi-synthetic cannabinoids derived from legal hemp products as these cannabinoids can mirror the intoxicating effects of marijuana.[4] By clamping down on these semi-synthetic products, the legal line between hemp, CBD, and marijuana can be more properly maintained.

Different states are taking different approaches to the new regulations on hemp products. One camp of lawmakers want to go back to the old regime where any miniscule trace of THC was illegal. This “total ban” approach is presently seen in new legislation passed in Arkansas. Arkansas’ Act 629 bans the “production and sale of products containing Delta 8, Delta 9 and Delta 10 and other THC isomers inside the state of Arkansas” in any capacity.[5] Currently on appeal in the Eighth Circuit, the act has been subject to a lawsuit from hemp companies claiming the state law is preempted by the 2018 Farm Bill.[6] Arkansas is not the only state to take a total ban approach. Missouri’s governor Mike Parsons recently signed an executive order banning all consumables containing “psychoactive cannabis products”—or hemp products containing even trace amounts of THC—outside of the state’s already regulated cannabis market.[7] While this is not as broad in scope as Arkansas’ ban, the wide-reaching ban restricts the sale of most non-marijuana cannabis products in the state.

However, some states have taken a different approach to regulating hemp products, particularly in its distribution. New Jersey recently banned any amount of THC from being sold to a person under the age of 21.[8] California governor Gavin Newsom took a similar approach, signing an emergency ban on all hemp products containing THC and restricting the sale of all other hemp products to the 21+ market.[9] Even the federal government might be looking to increase the regulations on hemp products. Senator Ron Wyden recently introduced a bill that would raise the age at which someone could buy hemp products to 21 and set more federal safety standards on the industry.[10]

So, why is there a push to change the laws around hemp now? It could come down to perceived health risks and a rise in hospitalizations. A study from the Nationwide Children’s Hospital found that there were over 3,000 calls to poison controls related to THC, including the those found in small doses of legal hemp products.[11] Although only about 16% of these calls resulted in hospitalizations, roughly half of admissions were for children under 6-years-old.[12] California Governor Newsom directly cited hospitalizations as one the principal reasons he signed his emergency order.[13]

People seem to be worried about the hemp products currently on the market, including CBD, but should they be? The jury is still out on the health effects of CBD. A report from the World Health Organization in 2018 said that CBD had a “good safety profile” and reported no evidence of detrimental effects from recreational consumption of pure CBD.[14] However, the AAMC notes that CBD is understudied and there could be adverse interactions if CBD is taken with other medications.[15]

Legislators and policy-makers need to be able to ensure the safety and well-being of their citizens without creating unnecessary barriers for a new and growing industry. One of the barriers that states are facing is— maybe ironically—the 2018 Farm Bill. The bill opened the door for hemp products that met the THC standards, and these state laws are running into friction with the federal law. While states are allowed (and expected) to regulate the hemp industry under the 2018 Farm Bill, the move by many states to put heavier restrictions on the amount of THC allowed in hemp products seems to be in conflict with federal law. The lawsuits from hemp producers so far have all revolved around the idea that these state regulations, which are more restrictive than the 2018 Farm Bill, are preempted by the federal legislation.[16] Under Article VI of the Constitution, federal laws are the “supreme law of the land” so the Farm Bill must preempt state law in some way, but the exact way it does so is unclear.[17] There are two different ideas on how the Farm Bill preempts state law. The first idea is that the hemp regulations laid out in the federal law are the most stringent that states can regulate. This is the interpretation that hemp producers prefer, and the theory that they are suing under. The second idea, the option preferred by states that are looking to increase regulations, is that the Farm Bill set the outer limit for regulations. In other words, states are free to increase the regulations on the industry, but the federal law provides a national baseline if states do not come up with their own regulation.

Court rulings on this issue may settle the debate, but there is always a risk of a circuit split forming as different Courts of Appeal hear and decide on different lawsuits. To clear confusion once and for all, the federal government could clarify the scope of regulatory power with new legislation, or the Supreme Court could decide the issue in its upcoming term. But, until then, the legal challenges are likely to keep mounting and leave the nascent hemp industry in lingo.

 

Notes

[1] Dennis Romero, Hemp Industry Expected to Blossom Under New Farm Bill, NBC News (Dec. 17, 2018, 4:02 PM), https://www.nbcnews.com/news/us-news/hemp-industry-expected-blossom-under-new-farm-bill-n947791. For clarification, CBD stands for cannabidiol, a product derived from hemp, often sold in gummy or oil form. THC stands for tetrahydrocannabinol, the psychoactive part of the marijuana plant that can get you high. THC often refers to what is known as delta-9 THC, a type of THC found in the marijuana plant.

[2] John Hudak, The Farm Bill, Hemp Legalization and the Status of CBD: An Explainer, Brookings Institution (Dec. 14, 2018), https://www.brookings.edu/articles/the-farm-bill-hemp-and-cbd-explainer/

[3] As the Brookings Institution points out, the extremely low levels of THC in now-legal hemp products means that these products cannot be used to get high.

[4] Sam Reisman, New Report Urges Feds to Take Larger Role in Pot Policy, Law360 (Sept. 26, 2024, 8:53 PM), https://plus.lexis.com/newsstand/law360/article/1883058/?crid=c6fd0d9a-971e-489f-a5c6-8c1725ffee87

[5] Dale Ellis, Federal Judge Blocks State’s New Law Banning Delta-8 THC Products, Arkansas Democrat Gazette (Sept. 7, 2023, 6:00 PM), https://www.arkansasonline.com/news/2023/sep/07/federal-judge-blocks-states-new-law-banning-delta-8-thc-products/

[6] Sam Reisman, Court Defers Ruling On Challenge To Arkansas Hemp Law, Law360 (Sept. 25, 2024, 6:50 PM), https://plus.lexis.com/newsstand/law360/article/1882683/?crid=48cd5145-0817-47a7-bf22-1fb3bf01cb5f

[7] Jonathan Capriel, Missouri Ban on Some Psychoactive Foods to Hit Sept. 1 (August 30, 2024, 8:47 PM), https://plus.lexis.com/newsstand/law360/article/1882683/?crid=48cd5145-0817-47a7-bf22-1fb3bf01cb5f;  Rebecca Rivas, Missouri Hemp Leaders File Suit to Halt Governor’s Ban on Hemp THC Products, Missouri Independent (August 30, 2024 5:55 AM), https://missouriindependent.com/2024/08/30/missouri-hemp-leaders-set-to-file-suit-to-halt-governors-ban-on-hemp-thc-products/

[8] Sophie Nieto-Munoz, Gov. Murphy Signs Controversial Bill Restricting Sales of Hemp Products, New Jersey Monitor (Sept. 13, 2024, 7:11 AM), https://newjerseymonitor.com/2024/09/13/gov-murphy-signs-controversial-bill-restricting-sales-of-hemp-products/

[9] Rae Ann Varona, Calif. Gov.’s Emergency Hemp Intoxicant Ban Wins Approval, Law360 (Sept. 24, 2024, 9:49 PM),  https://plus.lexis.com/newsstand/law360/article/1882121/?crid=642ddd2e-a29d-46d6-8ff4-b7f209fd6c7f&cbc=0,0

[10] Same Reisman, Wyden Pitches New Bill To Regulate Intoxicating Hemp, Law360 (Sept. 25, 2024, 7:06 PM), https://plus.lexis.com/newsstand/law360/article/1882226/?crid=ed53b57f-dd97-4a6a-8a89-f6028f95e523

[11] Nationwide Children’s, New Study Finds Increase in Exposures to Synthetic Tetrahydrocannabinols Among Young Children, Teens, and Adults, Nationwide Children’s Hospital (May 7, 2024), https://www.nationwidechildrens.org/newsroom/news-releases/2024/05/deltathc_clinicaltoxicology

[12] Id.

[13] Varona, supra note 9.

[14] World Health Organization, Cannabidiol (CBD) Critical Review Report 5 (2018).

[15] Stacy Weiner, CBD: Does It Work? Is It Safe? Is It Legal?, AAMC News (July 20, 2023), https://www.aamc.org/news/cbd-does-it-work-it-safe-it-legal

[16] Reisman, supra note 6; Varona, supra note 9.

[17] U.S. Const. art. VI, cl. 2

NEPA and Climate Change: Are Environmental Protections Hindering Renewable Energy Development?

October 9, 2024
Climate Change, Energy Law, Environmental Law, Regulatory

Samuel Taylor, MJLST Staffer

The National Environmental Protection Act, or “NEPA”, has been essential in protecting America’s air and water, managing health hazards, and preserving environmental integrity. For decades, environmental activist groups, the government, and regular citizens relied on and benefitted from enforcing these NEPA against those looking to pollute, poison, or endanger Americans and their environment. NEPA, however, is proving to be less suitable for addressing the country’s  imminent environmental challenge: climate change. As proponents of green energy scramble to ditch fossil fuels, NEPA and its procedural requirements are accused of delaying or halting renewable energy projects. Environmental protection laws remain essential to stopping the dangers they were passed to stop, and many new green energy projects pose additional risks to the environment, but we also need to transition away from fossil fuels as fast as possible to avoid the worst consequences of climate change. The conflict between the need to address climate change and the need to maintain environmental protections has created a regulatory challenge that may not have a perfect solution.

Enacted in 1970, NEPA was the first major environmental protection measure taken in the US.[i] The “magna carta” of environmental laws applies to all “major federal actions significantly affecting the environment”.[ii] Major federal actions can include everything from infrastructure projects like proposed dams, bridges, highways, and pipelines, to housing developments, research projects, and wildlife management plans.[iii] Before a federal agency can act, there are a series of procedures they must follow which force them to consider the environmental impacts of the potential action. These procedures involve community outreach, the effects of past and future actions in the region, and providing the public with a detailed explanation of the agency’s findings, and often take years to fully complete.[iv] By requiring the government to follow these procedures “to the fullest extent possible,” NEPA aims to ensure that environmental concerns are given sufficient consideration before any harmful actions are taken.[v] Notably, NEPA is not a results-oriented statute, but a process-oriented one.[vi] No agency decision can be made until after its procedures are followed, but once they are, NEPA does not mandate a particular decision.[vii] NEPA does not even require that environmental concerns be given more weight than any other factors.[viii] Nevertheless, if an agency fails to properly follow NEPA procedures, all resulting decisions can be invalidated if challenged in the courts.[ix]

Though passing NEPA was the first step Congress took towards addressing environmental concerns, and decades of NEPA success stories have followed, there is growing concern about its  ability to adapt to the pressing challenges presented by global climate change.[x] NEPA, critics say, drastically slows the government’s ability to invest in green energy because each step of the procedure can be challenged in court.[xi] Corporate competitors in the renewable energy sector, environmental interest groups, concerned citizen groups, and Native American tribes have all challenged various projects’ compliance with NEPA requirements.[xii] Many of these groups have legitimate concerns about the projects, and NEPA allows them to stall or halt development while the government is forced to further consider their potential environmental impacts. This causes direct conflict between these valid concerns and efforts to reverse the country’s reliance on fossil fuels.[xiii] Collectively, the long procedures and potential legal challenges that accompany NEPA’s requirements present serious hurdles to the production of green energy.

Legal experts disagree, perhaps not surprisingly, over the extent to which NEPA hinders the production of green energy sources. Some groups believe the rhetoric surrounding NEPA’s deficiencies is an exaggeration, citing data that shows only a very small percentage of green energy projects actually require the production of EISs.[xiv] Others present NEPA and other environmental protection laws as serious hurdles preventing the production of renewable energy at the pace we need to avoid the worst effects of climate change.[xv] They argue that this data is not properly representative of all clean energy projects, ignores the delays caused by litigation, and does not properly account for the likelihood that delays will get worse in the future.[xvi] Because there is little consensus regarding the extent of the problem, there is likewise almost no agreement on a potential solution.

 Lawmakers and legal scholars have proposed a range of approaches to the NEPA problem. Most drastically, a bill introduced to the U.S. House Committee on Natural Resources by Representative Bruce Westerman would largely eradicate most NEPA provisions by limiting consideration of new scientific evidence, allowing some projects to go exempt from NEPA’s requirements, and drastically limiting community instigated judicial review.[xvii] Other proposals are more modest, including permitting reform to favor green energy projects, placing some limits on judicial review, and collecting more comprehensive data on NEPA issues.[xviii] Still others are staunchly against most reforms, arguing that weakening any NEPA provisions would open the door for greater environmental abuses.[xix] The differing opinions on the scope of the problem and the wide range of proposed solutions amount to a problem that will not be easy to solve.

The legal community is divided on the efficacy of existing NEPA regulations that have, for decades, promoted environmental protection. In the face of climate change and the accompanying need for renewable energy, it must be determined whether NEPA is truly hindering the switch to green energy. The United States must build more renewable energy infrastructure if we are to avoid the worst consequences of global climate change, but with concern growing that our own environmental protection laws are hindering progress, it will be challenging to move forward in a manner that balances the need for green energy production against the necessity of strong environmental protection laws.

 

Notes

[i] Sam Kalen, NEPA’s Trajectory: Our Waning Environmental Charter From Nixon to Trump, 50 Environmental Law Reporter 10398, 10398 (2020).

[ii] Id.; Mark A. Chertok, Overview of the National Environmental Policy Act: Environmental Impact Assessments and Alternatives (2021); 42 U.S.C. §§ 4321–70.

[iii] Elly Pepper, Never Eliminate Public Advice: NEPA Success Stories, Natural Resources Defense Council (Feb. 1, 2015), https://www.nrdc.org/resources/never-eliminate-public-advice-nepa-success-stories#:~:text=The%20NEPA%20process%20has%20saved,participated%20in%20important%20federal%20decisions.

[iv] Chertok, supra note ii; 42 U.S.C. §§ 4321–70.

[v] Chertok, supra note ii; Catron County v. U.S.F.W.S., 75 F.3d 1429, 1437 (10th Cir. 1996).

[vi] Chertok, supra note ii; Catron County at 1434.

[vii] Chertok, supra note ii.

[viii] Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).

[ix] Chertok, supra note ii (citing Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005)).

[x] Pepper, supra note iii; Aidan Mackenzie & Santi Ruiz, No, NEPA Really Is a Problem for Clean Energy, Institute For Progress (Aug. 17, 2023), https://ifp.org/no-nepa-really-is-a-problem-for-clean-energy/#nepa-will-harm-clean-energy-projects-even-more-in-the-future; Darian Woods & Adrian Ma, Environmental Laws Can Be an Obstancel in Building Green Energy Infrastructure, NPR (Apr. 13, 2022), https://www.npr.org/2022/04/13/1092686675/environmental-laws-can-be-an-obstacle-in-building-green-energy-infrastructure.

[xi] Mackenzie & Ruiz, supra note x; See, e.g. Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) (where the agency finding of no significant impact was challenged by an environmental protection group); Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) (where the agency’s EIS analysis was challenged by the Sierra Club).

[xii] Niina H. Farah, Tribes Sue Over NEPA Review for Oregon Offshore Wind Auction, Politico (Sep. 18, 2024), https://www.eenews.net/articles/tribes-sue-over-nepa-review-for-oregon-offshore-wind-auction/; Christine Billy, Update: Congestion Pricing: A Case Study on Interstate Air Pollution Disputes, New York State Bar Association (Sep. 23, 2024), https://nysba.org/update-congestion-pricing-a-case-study-on-interstate-air-pollution-disputes/; Jonathan D. Brightbill & Madalyn Brown Feiger, Environmental Challenges Seek to Block Renewable Projects, Winston & Strawn LLP (Sep. 1, 2021), https://www.winston.com/en/blogs-and-podcasts/winston-and-the-legal-environment/environmental-challenges-seek-to-block-renewable-projects.

[xiii] Farah, supra note xii; Brightbill & Feiger, supra note xiv.

[xiv] Ann Alexander, Renewable Energy and Environmental Protection Is Not an Either/Or, Natural Resources Defense Council (Jan. 18, 2024), https://www.nrdc.org/bio/ann-alexander/renewable-energy-and-environmental-protection-not-eitheror.

[xv] Mackenzie & Ruiz, supra note x.

[xvi] Alexander, supra note xiv; Mackenzie & Ruiz, supra note x.

[xvii] Defenders of Wildlife, Defenders Slams Bill Aiming to Rollback NEPA and Gut Environmental Protections, (Sep. 10, 2024), https://defenders.org/newsroom/defenders-slams-bill-aiming-rollback-nepa-and-gut-environmental-protections.

[xviii] Brian Potter, Arnab Datta & Alec Stapp, How to Stop Environmental Review from harming the Environment, Institute For Progress (Sep. 13, 2022), https://ifp.org/environmental-review/.

[xix] Alexander, supra note xiv; Sierra Club

 

 

 

 

Are AI Overviews Creating New Risk of Libel for Search Engines?

October 7, 2024
Artificial Intelligence, Intellectual Property, Internet, Product Liability

Eleanor Nagel-Bennett, MJLST Staffer

47 USC § 230 of the Communications Decency Act (“CDA”) protects online service providers from civil liability for content published on their servers by third parties. Essentially, it clarifies that if a Google search for one’s name produced a link to a blog post containing false and libelous content about that person, the falsely accused searcher could pursue a claim of defamation against the publisher of the blog, but not against Google. Under § 230, Google is not considered the speaker or the publisher of the libelous statements on the blog, despite returning the libelous results on the search engine results page. Specifically, § 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” for purposes of civil penalties.[i]

However, in May 2024 Google rolled out an “AI Overview” feature on their search engine. The AI Overview is powered by Gemini, Google’s generative artificial intelligence chatbot.[ii] Gemini generates a response to each google search by combining information from internet sources and writing a complete overview answer to the search query using “multi-step reasoning, planning and multimodality” functions.[iii] After submitting a query, the AI Overview is displayed at the top of the search results. In the first few weeks, Google’s AI Overview suffered from hallucinations producing “odd and erroneous” outputs.[iv] Some of the odd results were obviously false, such as suggesting a user try adhering cheese to their pizza with a glue stick.[v]

Besides going viral online, the silly results were largely inconsequential. However, there were also several more serious reports of Google’s AI Overview feature generating misinformation that presented responses more difficult to identify as false. One such result claimed that President Barack Obama was the first Muslim President, a popular but demonstrably false conspiracy theory that has circulated the internet for years, while another told users that certain poisonous mushrooms were safe for human consumption.[vi] Google has since changed the data pool used to produce AI Overviews, and now rarely produces blatantly false results — but is rarely enough when 8.5 billion searches are run per day on Google?[vii]

This raises the question: can search engines be held liable for libelous content published by their generative AI? A plaintiff will have to prove to the court that § 230 of the Communications Decency Act is not a statutory bar to claims against generative AI. A recent consensus of legal scholars anticipate courts will likely find that the CDA would not bar claims against a company producing libelous content through generative AI because content produced by generative AI is original work, “authored” by the AI itself.[viii]

For an illustrative comparison, consider how defamation claims against journalists work as compared to defamation claims against traditional search engine results. While a journalist may write stories based on interviews, research, and experience, the language she publishes are her own words, her own creation, and she can be held liable for them despite sourcing some pieces from other speakers. Traditional search engines on the other hand historically post the sourced material directly to the reader, so they are not the “speaker” and therefore are insulated from defamation claims.  Enter generative AI, the output of which is likely to be considered original work by courts, and that insulation may erode.[ix] Effectively, introducing an AI Overview feature waives the statutory bar to claims under § 230 of the CDA relied upon by search engines to avoid liability for defamation claims.

But even without an outright statutory bar to defamation claims against a search engine’s libelous AI output, there is disagreement over whether generative AI output in general is relied upon seriously enough by humans to give rise to a defamation claim. Some believe that AI generated text should not be interpreted as a reasonably perceived factual claim, and therefore argue that AI generated content cannot give rise to a claim for defamation.[x] This is where the legitimacy of a result displayed on a popular search engine comes into play. Even if AI generated text is not ordinarily reasonably perceived as a factual claim, when displayed at the top of a search engine’s results page, more weight and authority is given to the result, though users might otherwise be wary of AI outputs.[xi]

While no landmark case law on the liability of an AI machine for libelous output has been developed to date, several lawsuits have already been filed on the question of liability assignment for libelous content produced by generative AI, including at least one case against a search engine for AI generated output displayed on a search engine results page.[xii]

Despite the looming potential for consequences, most AI companies have neglected to give attention to the risk of libel created by the operation of generative AI.[xiii] While all AI companies should pay attention to the risks, search engines previously insulated from civil liability by § 230 of the CDA should be especially wary of just how much liability they may be opening themselves up to by including an AI Overview on their results pages.

 

Notes

[i] 47 U.S.C. §230(c)(1).

[ii] Reid, Liz, Generative AI in Search: Let Google do the searching for you, Google (May 14, 2024) https://blog.google/products/search/generative-ai-google-search-may-2024/.

[iii] Id.

[iv] Reid, Liz, AI Overviews: About last week, Google (May 30, 2024) https://blog.google/products/search/ai-overviews-update-may-2024/.

[v] O’Brien, Matt, Google makes fixes to AI-generated search summaries after outlandish answers went viral, The Associated Press (May 30, 2024) https://apnews.com/article/google-ai-overviews-hallucination-33060569d6cc01abe6c63d21665330d8.

[vi] Id.

[vii] Brannon, Jordan, Game-Changing Google Search Statistics for 2024, Coalition, (Apr. 5, 2024) https://coalitiontechnologies.com/blog/game-changing-google-search-statistics-for-2024.

[viii] Joel Simon, Can AI be sued for defamation?, Col. Journalism Rev. (March 18, 2024).

[ix] Id.

[x]  See Eugene Volokh, Large Libel Models? Liability For AI Output, 3 J. Free Speech L. 489, 498 (2023).

[xi] Id.

[xii] In July of 2023, Jeffery Battle of Maryland filed suit against Microsoft for an AI generated search result on BING accusing him of crimes he did not commit. The Plaintiff Jeffery Battle is a veteran, business owner, and aerospace professor. When his name is searched online, however, Bing’s AI overview accuses Battle of crimes committed by a different Jeffrey Battle, Jeffery Leon Battle. The other Jeffery Battle pled guilty to seditious conspiracy and levying war against the United States after he tried to join the Taliban in the wake of 9/11. Bing’s search engine results page overview powered by Chat GPT combines information about the two Jeffery’s into one. See Id. at 492.

[xiii] Id. at 493.

Social Media Platforms Won’t “Like” This: How Aggrieved Users Are Circumventing the Section 230 Shield

October 4, 2024
Litigation, Product Liability, Public Safety, Social Media, Torts Law

Claire Carlson, MJLST Staffer

 

Today, almost thirty years after modern social media platforms were introduced, 93% of teens use social media on a daily basis.[1] On average, teens spend nearly five hours a day on social media platforms, with a third reporting that they are “almost constantly” active on one of the top five leading platforms.[2] As social media usage has surged, concerns have grown among users, parents, and lawmakers about its impacts on teens, with primary concerns including cyberbullying, extremism, eating disorders, mental health problems, and sex trafficking.[3] In response, parents have brought a number of lawsuits against social media companies alleging the platforms market to children, connect children with harmful content and individuals, and fail to take the steps necessary to keep children safe.[4]

 

When facing litigation, social media companies often invoke the immunity granted to them under Section 230 of the Communications Decency Act.[5] 47 U.S.C § 230 states, in relevant part, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[6] Federal courts are generally in consensus and interpret the statutory language as providing broad immunity for social media providers.[7] Application of this interpretive framework establishes that social media companies can only be held liable for content they author, whereas Section 230 shields them from liability for harm arising from information or content posted by third-party users of their platforms.[8]

 

In V.V. v. Meta Platforms, Inc., plaintiffs alleged that popular social media platform Snapchat intentionally encourages use by minors and consequently facilitated connections between their twelve-year-old daughter and sex offenders, leading to her assault.[9] The court held that the facts of this case fell squarely within the intended scope of Section 230, as the harm alleged was the result of the content and conduct of third-party platform users, not Snapchat.[10] The court expressed that Section 230 precedent required it to deny relief to the plaintiffs, whose specific circumstances evoked outrage, asserting it lacked judicial authority to do otherwise without legislative action.[11] Consequently, the court held that Section 230 shielded Snapchat from liability for the harm caused by the third-party platform users and that plaintiffs’ only option for redress was to bring suit against the third-party users directly.[12]

 

After decades of cases like V.V., where Section 230 has shielded social media companies from liability, plaintiffs are taking a new approach rooted in tort law. While Section 230 provides social media companies immunity from harm caused by their users, it does not shield them from liability for harm caused by their own platforms and algorithms.[13] Accordingly, plaintiffs are trying to bypass the Section 230 shield with product liability claims alleging that social media companies knowingly, and often intentionally, design defective products aimed at fostering teen addiction.[14] Many of these cases analogize social media companies to tobacco companies – maintaining that they are aware of the risks associated with their products and deliberately conceal them.[15] These claims coincide with the U.S. Surgeon General and 40+ attorney generals imploring Congress to pass legislation mandating warning labels on social media platforms emphasizing the risk of teen addiction and other negative health impacts.[16]

Courts stayed tort addiction cases and postponed rulings last year in anticipation of the Supreme Court ruling on the first Section 230 immunity cases to come before it.[17] In companion cases, Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh, the Supreme Court was expected to shed light on the scope of Section 230 immunity by deciding whether social media companies are immune from liability when the platform’s algorithm recommends content that causes harm.[18] In both, the court declined to answer the Section 230 question and decided the cases on other grounds.[19]

 

Since then, while claims arising from third-party content are continuously dismissed, social media addiction cases have received positive treatment in both state and federal courts.[20] In a federal multidistrict litigation (MDL) proceeding, the presiding judge permitted hundreds of addiction cases alleging defective product (platform and algorithm) design to move forward. In September, the MDL judge issued a case management order, which suggests an early 2026 trial date.[21] Similarly, a California state judge found that Section 230 does not shield social media companies from liability in hundreds of addiction cases, as the alleged harms are based on the company’s design and operation of their platforms, not the content on them.[22] Thus, social media addiction cases are successfully using tort law to bypass Section 230 where their predecessor cases failed.

 

With hundreds of pending social media cases and the Supreme Court’s silence on the scope of Section 230 immunity, the future of litigating and understanding social media platform liability is uncertain.[23] However, the preliminary results seen in state and federal courts evinces that Section 230 is not the infallible immunity shield that social media companies have grown to rely on.

 

Notes

 

[1] Leon Chaddock, What Percentage of Teens Use Social Media? (2024), Sentiment (Jan. 11, 2024), https://www.sentiment.io/how-many-teens-use-social-media/#:~:text=Surveys%20suggest%20that%20over%2093,widely%20used%20in%20our%20survey. In the context of this work, the term “teens” refers to people aged 13-17.

[2] Jonathan Rothwell, Teens Spend Average of 4.8 Hours on Social Media Per Day, Gallup (Oct. 13, 2023), https://news.gallup.com/poll/512576/teens-spend-average-hours-social-media-per-day.aspx; Monica Anderson, Michelle Faverio & Jeffrey Gottfried, Teens, Social Media and Technology 2023, Pew Rsch. Ctr. (Dec. 11, 2023), https://www.pewresearch.org/internet/2023/12/11/teens-social-media-and-technology-2023/.

[3] Chaddock, supra note 1; Ronald V. Miller, Social Media Addiction Lawsuit, Lawsuit Info. Ctr. (Sept. 20, 2024), https://www.lawsuit-information-center.com/social-media-addiction-lawsuits.html#:~:text=Social%20Media%20Companies%20May%20Claim,alleged%20in%20the%20addiction%20lawsuits.

[4] Miller, supra note 3.

[5] Tyler Wampler, Social Media on Trial: How the Supreme Court Could Permanently Alter the Future of the Internet by Limiting Section 230’s Broad Immunity Shield, 90 Tenn. L. Rev. 299, 311–13 (2023).

[6] 47 U.S.C. § 230 (2018).

[7] V.V. v. Meta Platforms, Inc., No. X06UWYCV235032685S, 2024 WL 678248, at *8 (Conn. Super. Ct. Feb. 16, 2024) (citing Brodie v. Green Spot Foods, LLC, 503 F. Supp. 3d 1, 11 (S.D.N.Y. 2020)).

[8] V.V., 2024 WL 678248, at *8; Poole v. Tumblr, Inc., 404 F. Supp. 3d 637, 641 (D. Conn. 2019).

[9] V.V., 2024 WL 678248, at *2.

[10] V.V., 2024 WL 678248, at *11.

[11] V.V., 2024 WL 678248, at *11.

[12] V.V., 2024 WL 678248, at *7, 11.

[13] Miller, supra note 3.

[14] Miller, supra note 3; Isaiah Poritz, Social Media Addiction Suits Take Aim at Big Tech’s Legal Shield, BL (Oct. 25, 2023), https://www.bloomberglaw.com/bloomberglawnews/tech-and-telecom-law/X2KNICTG000000?bna_news_filter=tech-and-telecom-law#jcite.

[15] Kirby Ferguson, Is Social Media Big Tobacco 2.0? Suits Over the Impact on Teens, Bloomberg (May 14, 2024), https://www.bloomberg.com/news/videos/2024-05-14/is-social-media-big-tobacco-2-0-video.

[16] Miller, supra note 3.

[17] Miller, supra note 3; Wampler, supra note 5, at 300, 321; In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 702 F. Supp. 3d 809, 818 (N.D. Cal. 2023) (“[T]he Court was awaiting the possible impact of the Supreme Court’s decision in Gonzalez v. Google. Though that case raised questions regarding the scope of Section 230, the Supreme Court ultimately did not reach them.”).

[18] Wampler, supra note 5, at 300, 339-46; Leading Case, Twitter, Inc. v. Taamneh, 137 Harv. L. Rev. 400, 409 (2023).

[19] Twitter, Inc. v. Taamneh, 598 U.S. 471, 505 (2023) (holding that the plaintiff failed to plausibly allege that defendants aided and abetted terrorists); Gonzalez v. Google LLC, 598 U.S. 617, 622 (2023) (declining to address Section 230 because the plaintiffs failed to state a plausible claim for relief).

[20] Miller, supra note 3.

[21] Miller, supra note 3; 702 F. Supp. at 809, 862.

[22] Miller, supra note 3; Poritz supra note 14.

[23] Leading Case, supra note 18, at 400, 409.

You Can Protect Your Data . . . Once.

September 26, 2024
Corporate Ethics, Data Privacy, Internet, Litigation, Social Media

Jessica Schmitz, MJLST Staffer

We scan our face to access our phones. We scan our hands to save five minutes in the TSA line. Teslas track our eyes to ensure we’re watching the road.[1] Our biometric data is constantly being collected by private entities. Though states like California and Texas are attempting to implement new safeguards for its constituents, Illinois recently rolled back protections under its renowned Biometric Information Privacy Act (BIPA).[2] BIPA  protected consumers from private entities that deceptively or illegally collected biometric data.[3] The new rules overturned the Illinois Supreme Court ruling in Cothron v. White Castle System Inc. that allowed claims to accrue for each violation under BIPA’s provisions.[4] While tech companies and liability insurers are no doubt breathing a sigh of relief at the new reforms, litigants going forward may be left without a remedy if their biometric data is mishandled more than once. Below is a history of BIPA’s passing and impact, followed by the likely ramifications of the new reforms.

BIPA’s Passing Was an Early Victory for Data Privacy Protections

BIPA’s passing in 2008 was one of the earliest consumer protection laws for biometric data collection. At that time, major corporations were piloting finger scanning and facial recognition technology in major cities, including Chicago. The law was designed to not only provide recourse for consumers, but also prescribed preventative measures for companies to follow. BIPA’s protections are broad; companies must publish its data collection and retention policies to the public and cannot retain the information it collects for more than three years.[5] Companies must inform users that they are collecting the data, disclose what is being collected, disclose why it’s being collected, and for how long it intends to store the data.[6] Companies cannot disclose someone’s biometric data without express consent, nor can they profit from the data in any way.[7] Lastly, the data must be stored at least as well as a company stores other confidential data.[8]

Unlike laws in other states, BIPA provided a private right of action to enforce data privacy protections. Following its passage, swaths of lawsuits were filed against major corporations, including Amazon, Southwest Airlines, Google, and Facebook.[9] Under BIPA, companies could be liable for purchasing, improperly collecting, improperly storing, or disseminating biometric data, even if the data was not mishandled.[10] Plaintiffs could recover for every violation under BIPA, and could do so without stating an injury or alleging damages.[11] It is no surprise that BIPA class actions tended to favor plaintiffs, often resulting in large settlements or jury verdicts.[12] Since litigants could collect damages on every violation of BIPA’s provisions, it was difficult for companies to assess their potential liability. Every member of a class action could allege multiple violations, and if found liable, companies would owe, at minimum, $1,000 per violation. The lack of predictability often pushed corporate liability insurance policies into settling rather than risk such large payouts.

The 2023 ruling in Cothron implored the legislature to address concerns of disproportionate corporate liability, stating, “We respectfully suggest that the legislature . . . make clear its intent regarding the assessment of damages under the Act.”[13] The legislature rose to the challenge, fearing the court’s interpretation could bankrupt smaller or mid-size companies.[14] The new provisions to BIPA target the Court’s ruling, providing:

“For purposes of subsection (b) of Section 15, a private entity that, in more than one instance, collects, captures, purchases, receives through trade, or otherwise obtains the same biometric identifier or biometric information from the same person using the same method of collection in violation of subsection (b) of Section 15 has committed a single violation of subsection (b) of Section 15 for which the aggrieved person is entitled to, at most, one recovery under this Section.
(c) For purposes of subsection (d) of Section 15, a private entity that, in more than one instance, discloses, rediscloses, or otherwise disseminates the same biometric identifier or biometric information from the same person to the same recipient using the same method of collection in violation of subsection (d) of Section 15 has committed a single violation of subsection (d) of Section 15 for which the aggrieved person is entitled to, at most, one recovery under this Section regardless of the number of times the private entity disclosed, redisclosed, or otherwise disseminated the same biometric identifier or biometric information of the same person to the same recipient. (eff. 8-2-24.)”

Though not left completely without redress, Illinois constituents may now recover only once if their biometric data is recklessly or deceptively collected or disseminated in the same manner.

BIPA Reforms Mark a Trend Towards Laxing Corporate Responsibility

The rollback of BIPA’s provisions come at a time when consumers need it most. The stakes for mishandling biometric data are much higher than that of other collected data. While social security numbers and credit card numbers can be canceled and changed – with varying degrees of ease – most constituents would be unwilling to change their faces and fingerprints for the sake of _____.[15] Ongoing and future technology developments, such as the rise of AI, heightens potential fallout from BIPA violations.  AI-generated deepfakes are becoming more prevalent, targeting both major celebrities like Taylor Swift and Pokimane, and our family members through phishing schemes.[16] These crimes rely on biometric data, utilizing our voices and faces to create realistic depictions of people, and can even recreate our speech cadence and body movements.[17] For victims, recovering on a per-person basis instead of a per-violation basis means they could be further harmed after recovering against a company with no redress.

Corporations, however, have been calling for reforms for year, and believe that these changes will reduce insurance premiums and docket burdens.[18] Prior to the changes, insurers began removing BIPA coverage from litigation insurance plans and adding strict requirements for defense coverage.[19] Insurers also would encourage companies to settle to avoid judgements on a per-violation basis.[20]

Advocates for BIPA reform believe the new changes will reduce insurance costs while still providing litigants with fair outcomes. Though individual litigants may only recover once, they can still recover for actual damages if a company’s actions resulted in more harm than simply violating BIPA’s provisions.  Awards on a per-person basis can still result in hefty settlements or awards that will hold companies accountable for wrongdoing. Instead of stifling corporate accountability, proponents believe the reforms will result in fairer settlements and reduce litigation costs overall.

Without further guidance from the legislature, how the new provisions are applied will be left for state and federal courts to interpret. Specifically, the legislature left one looming question unanswered; do the restrictions apply retroactively? If litigants can only recover from an entity once, are past litigants barred from participating in future actions regarding similar violations? Or do they get one last shot at holding companies accountable? If they lost in a prior suit, can they join a new one? In trying to relieve the court system, the legislature has ironically given courts the loathsome task of interpreting BIPA’s vague new provisions. Litigants and defendants will likely fight tooth and nail to create favorable case law, which is unlikely to be uniform across jurisdictions.

 

Notes

[1] Model Y Owner’s Manual: Cabin Camera, Tesla, https://www.tesla.com/ownersmanual/modely/en_us/GUID-EDAD116F-3C73-40FA-A861-68112FF7961F.html (last visited Sept. 16, 2024).

[2] See generally, California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 (West 2018); Capture or Use of Biometric Identifier, Tex. Code Ann. § 503.001 (2017); Abraham Gross, Illinois Biometric Privacy Reform Eases Coverage Woes, LexisNexis Law360 (Aug. 8, 2024, 7:13 PM), https://plus.lexis.com/newsstand/law360-insurance-authority/article/1868014/?crid=debb3ba9-22a1-41d6-920e-c1ce2b7a108d&cbc=0,0,0.

[3] Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/5 (2024) [hereinafter BIPA].

[4] Cothron v. White Castle System, Inc., 216 N.E.3d 918, 924 (Ill. 2023).

[5] BIPA, supra note 3, at sec. 15a.

[6] Id. at sec. 15b.

[7] Id. at sec. 15c-d.

[8] Id. at sec. 15e.

[9] See generally, In re Facebook Biometric Info. Priv. Litig., No. 3:15-CV-03747-JD, 2018 WL 2197546 (N.D. Cal. May 14, 2018); Rivera v. Google Inc., 238 F.Supp.3d 1088 (N.D.Ill., 2017); Miller v. S.W. Airlines Co., No. 18 C 86, 2018 WL 4030590 (N.D. Ill. Aug. 23, 2018), aff’d, 926 F.3d 898 (7th Cir. 2019).

[10] BIPA, supra note 3, at sec. 15.

[11] Rosenbach v. Six Flags Ent. Corp., 129 N.E.3d 1197, 1206 (Ill. 2019).

[12] See, Lauraann Wood, $9M White Castle Fingerprint BIPA Deal Clears Final Approval, LexisNexis Law360 (Aug. 1, 2024, 2:18 PM) https://www.law360.com/articles/1864687?from_lnh=true; Lauraann Wood, BNSF’s $75M BIPA Deal With Truckers Nears Final OK, LexisNexis Law360 (June 17, 2024, 8:54 AM) https://www.law360.com/articles/1848754?from_lnh=true.

[13] Cothron, 216 N.E.3d at 929 (Ill. 2023).

[14] Updates to Illinois’ Biometric Privacy Signed Into Law Thanks to Cunningham, Office of Bill Cunningham: State Senator, https://www.senatorbillcunningham.com/news/508-updates-to-illinois-biometric-privacy-signed-into-law-thanks-to-cunningham (Aug. 2, 2024, 3:13PM).

[15] See, BIPA, supra note 3, at sec. 5c.

[16] Dan Merica & Ali Swenson, Trump’s Post of Fake Taylor Swift Endorsement Is His Latest Embrace Of AI-Generated Images, AP News (Aug. 20, 2024, 3:48 PM), https://apnews.com/article/trump-taylor-swift-fake-endorsement-ai-fec99c412d960932839e3eab8d49fd5f; Bianca Britton, They Appeared in Deepfake Porn Videos Without Their Consent. Few Laws Protect Them, NBC News (Feb. 14, 2023, 2:48 PM), https://www.nbcnews.com/tech/internet/deepfake-twitch-porn-atrioc-qtcinderella-maya-higa-pokimane-rcna69372; Charles Bethea, The Terrifying A.I. Scam That Uses Your Loved One’s Voice, The New Yorker (Mar. 7, 2024), https://www.newyorker.com/science/annals-of-artificial-intelligence/the-terrifying-ai-scam-that-uses-your-loved-ones-voice.

[17] Catherine Bernaciak & Dominic A. Ross, How Easy is it to Make and Detect a Deepfake?, Carnegie Mellon Univ.: SEI Blog (Mar. 14, 2022), https://insights.sei.cmu.edu/blog/how-easy-is-it-to-make-and-detect-a-deepfake/.

[18] Michael C. Andolina et. al., Emerging Issues and Ambiguities Under Illinois’ Biometric Information Privacy Act, Practitioner Insights Commentaries (May 21, 2020), https://1.next.westlaw.com/Document/Ib04759309b7b11eabea3f0dc9fb69570/View/FullText.html?listSource=Foldering&originationContext=clientid&transitionType=MyResearchHistoryItem&contextData=%28oc.Default%29&VR=3.0&RS=cblt1.0.

[19] Gross, supra note 2.

[20] Id.

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