Articles by mjlst

Lawyers in Flame Wars: The ABA Says Be Nice Online

February 13, 2021
Ethics, Internet, Legal Ethics, Social Media

Parker von Sternberg, MJLST Staffer

The advent of Web 2.0 around the turn of the millennium brought with it an absolute tidal wave of new social interactions. To this day we are in the throes of figuring out how to best engage with one another online, particularly when things get heated or otherwise out of hand. In this new wild west, lawyers sit at a perhaps unfortunate junction. Lawyers are indelibly linked to problems and moments of breakdown—precisely the events that lead to lashing out online. At the same time a lawyer, more so than many professions, relies upon their personal reputation to drive their business. When these factors collide, it creates pressure on the lawyer to defend themselves, but doing so properly can be a tricky thing.

When it comes to questions of ethics for lawyers, the first step is generally to crack open the Model Rules of Professional Conduct (MRPC), given that they have been adopted in 49 states and are kept up to date by the American Bar Association (ABA). While these model rules are customized to some extent from state to state, by and large the language used in the MRPC is an effective starting point for professional ethics issues across the country. Recently, the ABA has stepped into the fray with Formal Opinion 496, which lays out the official interpretation of MRPC 1.6 and how it comes into play in these situations.

MRPC 1.6 protects confidentiality of client information. For our purposes, the pertinent sections are

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) and . . .

(b)(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

So, when someone goes on Google Maps and excoriates your practice, a review that will pop up to everyone who even looks for directions to the office, what can be done? The first question is whether or not they are in fact a former client. If not, feel free to engage! Just wade in there and start publicly fighting with a stranger (really though, don’t do this. Even the ABA knows what the Streisand Effect is). However, if they are a former client, MRPC 1.6 or the local equivalent applies.

In Minnesota we have the MNRPC, with 1.6(b)(8) mirroring MRPC 1.6(b)(5). At its core, the ABA’s interpretation turns on the fact that an online review, on its own, does not qualify as a “controversy” or “proceeding.” That is not to say that it cannot give rise to one though! In 2016 an attorney in Florida took home $350,000 after former clients repeatedly defamed her because their divorce didn’t go how they wanted. But short of the outright lies in that case, lawyers suffering from online hit pieces are more limited in their options. The ABA lays out four possible responses to poor online reviews:

1) do not respond to the negative post or review at all, because as was brought up above, you tempt the Streisand Effect at your peril;

2) request that the website or search engine remove the review;

3) post an invitation to contact the lawyer privately to resolve the matter; and

4) indicate that professional considerations preclude a response.

While none of these options exactly inspire images of righteous fury, defending your besmirched professional honor or righting the wrongs done to your name, it appears unlikely that they will get you in trouble with the ethics board either. The ABA’s formal opinion lays out an impressive list of authorities from nearly a dozen states establishing that lawyers can and will face consequences for public review-related dust ups. The only option for an attorney really looking to have it out online it seems is to move to Washington D.C., where the local rules allow for disclosure “to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client.”

America Is Ready to Fight Climate Change. Is the Grid?

February 13, 2021
Climate Change, Energy Law, Environment

Valerie Eliasen, MJLST Staffer

Climate change is perhaps the most serious threat to our planet’s future. From a rise in average temperatures to more frequent floods, fires, hurricanes, and other natural disasters, the evidence of a warming planet is clear. Scientists warn that climate change and its dangerous effects will continue to worsen unless a strong response to counteract the threats is undertaken immediately. In response to these worries and widespread support of the issue by consumers, numerous large corporations have begun setting goals to combat climate change.

The Biden administration has also prioritized the issue. Among his first acts in office, President Biden signed an executive order, which acted to “place the climate crisis at the forefront of [the] Nation’s foreign policy and national security planning.” Among many other things, Biden’s executive order created a new position to “elevate the issue of climate change” and directed the United States to rejoin the Paris Agreement. The executive order includes a goal to “achieve net-zero emissions, economy-wide, by no later than 2050” and “a carbon pollution-free electricity sector no later than 2035.”

To achieve such a lofty goal, businesses and corporations across the country will need to rapidly change how they do business. It’s easy to see that single use plastics will begin to disappear and that electric vehicles will become more commonplace, but what will the shift to cleaner energy look like?

California provides us with an interesting case study. California is well known for its aggressive and progressive approach to climate change. The State established a detailed climate plan in 2006, which outlines the ways in which the State will reduce emissions and emphasize clean energy in the long run. While a deeper look at California’s experience with aggressive climate policy over the past few years can help us envision what the United States’ increasingly electric future will look like, it provides us with some warnings as well.

The first problem is capacity. Because California’s renewable energy sources primarily come from solar and wind generation, a huge problem is presented when the sun doesn’t shine, the wind slows down, and backup resources aren’t available. In August 2020, when extreme heat hit the southwest, California didn’t have enough of its own energy to power its residents’ air conditioners. Further, the states California often borrows energy from in cases of shortage were experiencing the same heat wave and did not have resources to spare. The result: the first rolling blackouts in close to 20 years. Much of California’s problem lies in its ability to provide energy after the sun sets. The technology to efficiently store energy for later use is not developed enough to provide the kind of storage needed. Further, several of California’s fossil fuel plants have been retired in recent years and haven’t been replaced with enough non-solar energy sources. With increasingly hotter summers and insufficient sources of consistent energy, blackouts are likely to reoccur.

The second problem is the grid. With the United States’ new emissions goals and continued societal shift towards combatting climate change, we are likely to see a large shift to electric appliances and vehicles. Additionally, the use of air-conditioning could increase nearly 60 percent by 2050 due to the planet’s warming temperatures. As such, the power grids are going to need to be able to handle more variable sources of energy and increased demand of electricity in the coming years. The power grids in place in many regions of the United States are not cut out for these changes. California, for example, has the “least reliable electrical power system in the US . . . with more than double the outages of any other state over the last decade” and will likely only become more unreliable as clean energy sources are phased in and others are phased out. The power industry is going to need to invest countless dollars into making power grids more flexible and robust than what we have now. One article likens this process to rebuilding a plane mid-flight.

The nation’s new environmental goals are a vital and important step in combating climate change. Inaction is not an option. Failure is not an option. And thankfully, President Biden’s executive order has the force of law, so the government will be better able to make sure these goals are met. But unless policymakers understand that many of the recent issues in California were caused by poor planning and poor coordination between policymakers and energy producers, California’s reality will become a nationwide problem. The government and the States need to work closely with the power industry, to invest a large amount of money into improving and strengthening the grid, and to expand the amount of renewable energy available day and night. This may be the only way to keep the lights on while helping the planet stay cool.

Ways to Lose Our Virtual Platforms: From TikTok to Parler

January 31, 2021
Cyber Security, Data Privacy, Regulatory

Mengmeng Du, MJLST Staffer

Many Americans bid farewell to the somewhat rough 2020 but found the beginning of 2021 rather shocking. After President Trump’s followers stormed the Capitol Building on January 6, 2021, major U.S. social media, including Twitter, Facebook, Instagram, and Snapchat, moved fast to block the nation’s president on their platforms. While everybody was still in shock, a second wave hit. Apple’s iOS App stores, Google’s Android Play stores, Amazon Web Services, and other service providers decided to remove Parler, an app used by Trump supporters in the riot and mostly favored by conservatives. Finding himself virtually homeless, President Trump relocated to TikTok, a Chinese owned short-video sharing app   relentlessly sought to ban ever since July 2020. Ironically but not unexpected, TikTok banned President Trump before he could even ban TikTok.

Dating back to June 2020, the fight between TikTok and President Trump germinated when the app’s Chinese parent company ByteDance was accused of discreetly accessing the clipboard content on their users’ iOS devices. Although the company argued that the accused technical feature was set up as an “anti-spam” measure and would be immediately stopped, the Trump administration signed Executive Order 13942 on August 6, 2020, citing national security concerns to ban the app in five stages. TikTok responded swiftly , the District Court for the District of Columbia issued a preliminary injunction on September 27, 2020. At the same while, knowing that the root of problem lies in its “Chinese nationality,” ByteDance desperately sought acquisition by U.S. corporations to make TikTok US-owned to dodge the ruthless banishment, even willing to give up billions of dollars and, worse, its future in the U.S. market. The sale soon drew qualified bidders including Microsoft, Oracle, and Walmart, but has not advanced far since September due to the pressure coming from both Washington and Beijing.

TikTok, in the same Executive Order was another Chinese app called WeChat. If banning TikTok means that American teens will lose their favorite virtual platform for life-sharing amid the pandemic, blocking WeChat means much more. It heavily burdens one particular minority group––hundreds and thousands of Chinese Americans and Chinese citizens in America who use WeChat. This group fear losing connection with families and becoming disengaged from the social networks they have built once the vital social platform disappears. For more insight, this is a blog post that talks about the impact of the WeChat ban on Chinese Students studying in the United States.

In response to the WeChat ban, several Chinese American lawyers led the creation of U.S. WeChat Users Alliance. Supported by thousands of U.S. WeChat users, the Alliance is a non-profit organization independent of Tencent, the owner of WeChat, and was formed on August 8, 2020 to advocate for all that are affected by the ban. Subsequently, the Alliance brought suit in the United States District Court for the Northern District of California against the Trump administration and received its first victory in court on September 20, 2020 as Judge Laurel Beeler issued a preliminary injunction against Trump’s executive order.

Law is powerful. Article Two of the United States Constitution vested the broad executive power in the president of this country to discretionally determine how to enforce the law via issuance of executive orders. Therefore, President Trump was able to hunt a cause that seemed satisfying to him and banned TikTok and WeChat for their Chinese “nationality.” Likewise, the First Amendment of the Constitution and section 230 of the Communication Decency Act empowers private Internet forum providers to screen and block offensive material. Thus, TikTok, following its peers, finds its legal justification to ban President Trump and Apple can keep Parler out of reach from Trump supporters. But power can corrupt. It is true that TikTok and WeChat are owned by Chinese companies, but an app, a technology, does not take on nationality from its ownership. What happened on January 6, 2021 in the Capitol Building was a shame but does not justify removal of Parler. Admittedly, regulations and even censorship on private virtual platforms are necessary for national security and other public interest purposes. But the solution shouldn’t be simply making platforms unavailable.

As a Chinese student studying in the United States, I personally felt the of the WeChat ban. I feel fortunate that the judicial check the U.S. legal system puts on the executive power saved WeChat this time, but I do fear for the of internet forum regulation.

 

How the U.S. Government Broke Its Treaty Obligations Before the Pandemic Struck: COVID-19 Illuminates How the U.S. Government Have Failed Native Communities

January 24, 2021
COVID-19, Health, Healthcare, Public Health

Ingrid Hofeldt, MJLST Staffer

As COVID-19 first began to ravage Native American tribal lands, the U.S. government’s treaty-solidified responsibility to protect tribes against external disasters was triggered. However, Native American communities’ reluctance to receive vaccinations showcases how the U.S. government’s treaty obligations require it to take proactive steps to ensure the advancement of healthcare on tribal lands and to attempt to mend the longstanding medical trauma of Native communities and resulting friction with the U.S. government.

Healthcare Disparities Before COVID-19

Since the invasion of Europeans, Native American communities have faced health crises. The European invaders both inadvertently spread smallpox, measles, and the flu, and launched biological warfare against Native communities. Around 90% of Native peoples were murdered or died through the spread of disease. Even after the most egregious periods of the genocide against Native Americans, indigenous communities continued to experience disparities in health outcomes. During the 1918 pandemic, the influenza struck Native populations with four times the severity of the general population, which resulted in 2% of Native peoples dying, and the near extinction of entire villages. 

Today, Native American communities continue to face disparities in health outcomes. Native Americans  have above average rates of immunocompromising diseases including diabetes, asthma, heart disease, cancer, respiratory diseases, hypertension, PTSD, and other mental health disorders. Native Americans are 600 times more likely than non-Native people to die of tuberculosis and 200 times more likely to die of diabetes. These rates exist in part because of the lack of resources available on reservations, which are home to 50% of the U.S. Native American population. Limited healthcare services, overcrowded housing, and lack of access to running water, proper sewage, and broadband internet[1] on reservations all contribute to reduced healthcare outcomes. A burgeoning elderly population, a quarter of whom lack health insurance, also adds to the difficulties facing Native healthcare services and tribal governments. 

The Crisis of COVID-19 for Native American communities and Reservations

Unsurprisingly, COVID-19 has spread across reservations like wildfire. Navajo Nation has had more deaths per capita than any state in the country. While Native Americans comprise 3% of Wyoming’s population and 6% of Arizona’s, they represent 33% and 16% of COVID-19 cases respectively. These disparities have emerged for a variety of reasons, from the higher rates of pre-existing conditions discussed above, which each exacerbate the severity and lethality of COVID-19, to lack of healthcare resources. Reservations experience the same shortages of doctors, hospitals, and medical resources common among rural areas. Additionally, limited grocery stores and multigenerational housing increase the risk of COVID-19 spread.

Beyond these existing disparities and lack of resources, the federal government’s mismanagement of resources designated for Native American communities has worsened the crisis of COVID-19 on reservations. While Congress distributed $80 million in COVID-19 relief funds to the Indian Health Services, 98% of tribal clinics have still not received their funds because of the federal government’s failure to properly disperse the funds. Testing has been largely absent from reservations, which causes cases to go unreported. Additionally, the federal government used census data, rather than tribal enrollment data,  to calculate distribution of resources in reservations. Because Native people are hugely undercounted in the census, reservations have received inadequate supplies of PPE, cleaning supplies, and tests. For example, the Sault Ste. Marie Tribe of Chippewa Indians only received 2 test kits for a population of 44,000. Meanwhile, the Seattle Indian Health Board was sent body bags in lieu of medical supplies. 

The U.S. Government’s Responsibility to Tribes

The U.S. government’s actions and inactions run afoul of multiple treaties, established case law, and the central tenants of Indian law. Numerous treaties between the U.S. government and tribal nations established tribes as sovereign political nations that the U.S. government must protect from external threats, ranging from foreign invasion to natural disasters. The Supreme Court has affirmed the dual sovereignty of tribal nations and the U.S. government’s obligations to tribes. 

Treaties between tribes and the U.S. government have both established this broad principle of the government’s responsibility to ensure the health and wellbeing of Native peoples and provided specific responsibilities requiring the U.S. government to provide vaccines, medicine, and physicians to Native peoples on reservations. In theory, the land tribes ceded to the U.S. government was a form of pre-payment for adequate healthcare. In 1955, the U.S. government established the Indian Health Services (IHS), to ensure that the U.S. government met its implied responsibility to ensure the adequate healthcare of Native peoples. Congress has also conceded that the U.S. government has a responsibility to “improve the services and facilities of Federal Indian health programs and encourage maximum participation of Indians” in those programs, which “the Federal Government’s historical and unique legal relationship with, and resulting responsibility to the American Indian people” requires. Congress has recognized that the current unmet health needs of tribes are “severe” and implicate “all other Federal services and programs in fulfillment of the Federal responsibility to Indians” which are “jeopardized by the low health status of the American Indian people.” 

How the U.S. Government Has Violated Its Treaty Obligations During the COVID-19 Crisis

As the U.S. government charges forward with the COVID-19 vaccination program, the COVID-19 healthcare disparities and the long history of medical trauma in Indian country compound one another. Many Native Americans living on reservations express skepticism over the vaccine program given the genocide committed against Native peoples through medicine and the government’s current mishandling of the COVID-19 crisis. Currently, an estimated 50% of people on the Spirit Lake Reservation do not plan to receive vaccinations. While the government spent centuries committing biological warfare against Native peoples, the medical community has enacted great harm against Native people relatively recently. Within the past 100 years, the U.S. government has conducted testing of radioactive iodine on Alaska Natives and widely distributed vaccines that proved less effective or ineffective for Native people. In the 1970’s, the U.S. government mass sterilized Native Americans without their consent. Further, in 2009, the U.S. government mishandled the H1N1 crisis on reservations, exacerbating this existing lack of trust. 

The tenuous relationship between tribes and the government has only worsened during the COVID-19 crisis as a result of the mismanagement of tribal healthcare. Many Native people worry that the federal government is withholding the risks of the COVID-19 vaccine. Native healthcare providers stress that the U.S. government must work to cultivate community support for its healthcare initiatives and ensure informed consent from each Native person for any medical procedure. The longstanding, positive relationship between Johns Hopkins University medical researchers and the Navajo people is a testament to the benefits of long standing relationships between tribes and researchers built on trust.

In light of the long history of healthcare issues and violations on reservations, the current mishandling of the COVID-19 crisis on reservations, and the fear of vaccination in many tribal communities, it becomes clear that the U.S. government’s treaty obligations related to healthcare must be rethought, recalibrated, and redefined. The U.S. government should not merely intervene when a pandemic strikes, but should take proactive, constructive steps before crisis strikes to ensure that Native peoples will receive adequate healthcare during both normal times and widespread calamities. It was no secret to the government that a pandemic would prove disastrous for tribes: public health experts have long foreshadowed the severity of a pandemic for tribal populations. Merely throwing money at tribes once disaster strikes will not solve the longstanding health and healthcare issues on reservations that complicate the virus. 

 Funds alone cannot solve the complex, socio-political healthcare issues complicated by historical trauma. Beyond dispersing funds through IHS, the U.S. government should consider organizing focus groups on reservations between elders, traditional healers, tribal government leaders, and immunologists from the CDC and public health officials to discuss steps moving forward. Additionally, to ensure treaty obligations, the U.S. government must tackle the more difficult long standing issues such as the lack of agency tribes hold over medical research and the distrust between the federal government and Native communities. To achieve equitable healthcare for tribes, Native people cannot merely be pushed to the sidelines as participants or involved minimally as nurses and doctors but not as researchers. The federal government should use funds to ensure that young Native Americans have available programming on science, STEM careers, and pathways into medicine. While not a conclusive end to the medical trauma Native communities have experienced, providing partnerships in medical research to researchers from Native communities will hopefully both shed a spotlight on healthcare disparities within Native communities and rebuild the frayed and broken trust between Native communities and medical researchers. 

Regardless of what steps are taken, the strength and organizing of Native communities during the COVID-19 pandemic deserves recognition. In the words of Jonathan Nez, Navajo Nation president, “We are resilient . . . our ancestors got us to this point . . .  now it is our turn to fight hard against this virus.”

 

[1] 13% of American Indian/Alaska Native homes lack running water or sewage compared to 1% of homes nationwide. In the Navajo Nation, ⅓ of homes lack running water.

COVID-19 Vaccination: Pervasive Skepticism and Employer Mandates in the United States

December 6, 2020
COVID-19, Employment, Food and Drug Law, Public Health

Drew Miller, MJLST Staffer

On December 31, 2019, the COVID-19 pandemic began when the World Health Organization’s (WHO) Chinese office picked up a media statement by the Wuhan Municipal Health Commission regarding cases of “viral pneumonia.” Nearly a year later, despite the protective measures instituted on a global scale to slow the spread, COVID-19 has claimed the lives of nearly 1,500,000 people worldwide) and shows no sign of slowing down. All hope is not lost; scientists and biopharmaceutical companies have worked diligently throughout the crisis, and a large-scale vaccination release seems imminent. However, given the prevalence of anti-vaccination sentiment in the United States, it may be difficult to distribute the vaccine to enough people; employer-mandated vaccines likely offer the best chance for widespread vaccination, but the standards governing such mandates remain unclear.

Anti-Vaccination Sentiment in the US

Whether the vaccine will provide outright immunity or simply partial protection, it will regardless be a critical step toward ending the pandemic. However, vaccines are obviously only effective if people agree to get the shot, and that may prove to be a significant barrier in the United States. Vaccine doubt and anti-vaccination movements continue to grow in popularity for a variety of reasons. Social media’s unique ability to bring together like-minded individuals across the globe inevitably results in the creation of insular groups; anti-vaccine support from celebrities such as Jenny McCarthy and Jim Carrey provide a degree of validation to “regular” people who feel the same way; and general government distrust, which has sharpened considerably under the tumultuous and polarizing Trump presidency, heightens suspicions surrounding FDA testing and approval processes. Finally, as noted by Dr. Paul A. Offit, an infectious disease expert and co-inventor of a vaccine for rotavirus, “Vaccines are a victim of their own success. We have largely eliminated the memory of many diseases.”

Moreover, skepticism regarding the safety and efficacy coronavirus vaccine is not entirely unfounded. The vaccine development process typically takes a decade, whereas this one began under a year ago. A group of researchers at the Johns Hopkins Center for Health Security and the Texas State University anthropology department writes, “If poorly designed and executed, a COVID-19 vaccination campaign in the U.S. could undermine the increasingly tenuous belief in vaccines and the public health authorities that recommend them – especially among people most at risk of COVID-19 impacts.” The results of a poll conducted by Pew Research Center in September indicates the consequences of all these factors: just over half (51%) of U.S. adults definitely or probably would get a COVID-19 vaccine if it were available today—a 21% drop from 72% in May.

Employer-Mandated Vaccines

With skepticism at an all-time high, the responsibility for raising vaccination rates in the U.S. may fall to employers. The U.S. Occupational Safety and Health Administration (OSHA) allows employers to legally impose an influenza vaccine requirement on their workers, but there are several requirements and exceptions that make such a mandate more difficult to impose.

First, employees are entitled under the Americans with Disabilities Act (ADA) to request medical and disability exemptions. This exemption requires proof of an underlying disability or medical condition that renders an employee essentially unable to safely get the vaccine. Second, employees may also claim religious exemptions to avoid an employer-mandated vaccine. However, Title VII of the Civil Rights Act of 1964 states that an employee must have a “sincerely held religious belief” against vaccination. In 2020, the Third Circuit Court of Appeals held that an employee’s “holistic health lifestyle” and personal belief that vaccines are harmful were insufficient to trigger protection under the Civil Rights Act. See Brown v. Children’s Hosp. of Philadelphia, 794 Fed. Appx. 226 (3rd Cir. 2020). The court wrote, “[I]t is not sufficient merely to hold a ‘sincere opposition to vaccination’; rather, the individual must show that the ‘opposition to vaccination is a religious belief.’” Id. (citing Fallon v. Mercy Catholic Med. Ctr. of Southeast Pa., 877 F.3d 487, 490 (3rd Cir. 2017)).

There are two primary standards governing the situations in which employers may legally require vaccinations regardless of religious or medical exemptions. Title VII does not require employers to make “reasonable accommodations” for medical or religious reasons if it would pose an undue hardship, which it defines as “more than de minimis cost” to the operation of the business. The ADA standard is stricter, requiring reasonable accommodation barring undue hardship, which it defines as an “action requiring significant difficulty or expense.”

Finally, because vaccinations are “medical examinations” under the ADA, the COVID-19 vaccine would need to be deemed “job-related, consistent with business necessity or justified by a direct threat, and no broader or more intrusive than necessary.” Although the Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing federal anti-discrimination laws in employment, has labeled COVID-19 as a “direct threat” to the workplace and stated that employers are allowed under the ADA to “bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19,” it has not yet stated whether employers will have the right to make a vaccine mandatory.

Conclusion

As such, the rights of employers to legally impose COVID-19 vaccination requirements on employees are uncertain and, absent clear direction or regulation, will likely require case-by-case analysis to determine the validity of each exemption and the corresponding hardship to business. Consequently, even if employers do have the legal right, protracted legal battles are the only remedy, and given the pervasive fear of vaccinations in today’s social climate, there are likely to be a great many of them. Meanwhile, the COVID-19 pandemic will continue to ravage the nation.

Becoming “[COVID]aware” of the Debate Around Contact Tracing Apps

December 6, 2020
COVID-19, Data Privacy, Public Health, Regulatory

Ellie Soskin, MJLST Staffer

As COVID-19 cases continue to surge, states have ramped up containment efforts in the form of mask mandates, business closures, and other public health interventions. Contact tracing is a vital part of those efforts: health officials identify those who have been in close contact with individuals diagnosed with COVID-19 and alert them of their potential exposure to the virus, while withholding identifying information. But traditional contact tracing for a true global pandemic requires a lot of resources. Accordingly, a number of regions have looked to smartphone-based exposure notification technology as an innovative way to both supplement and automate containment efforts.

Minnesota is one of the latest states to adopt this approach: on November 23rd, the state released “COVIDaware” a phone application designed to notify individuals if they’ve been exposed to someone diagnosed with COVID-19. Minnesota’s application utilizes a notification technology developed jointly by Apple and Google, joining sixteen other states and the District of Columbia, with more expected to roll out in the coming weeks. The nature of the technology raises a number of complex concerns over data protection and privacy. Additionally, these apps are more effective the more people use them and lingering questions remain as to compliance and the feasibility of mandating use.

The joint Apple/Google notification software used in Minnesota is designed with an emphasis on privacy. The software uses anonymous identifying numbers (“keys”) that change rapidly, does not solicit identifying information, does not provide access to GPS data, and only stores data locally on each user’s phone, rather than in a server. The keys are exchanged via localized Bluetooth connection operating in the background. It can also be turned off and relies wholly on self-reports. For Minnesota, accurate reports come in the form of state-issued verification codes provided with positive test results. The COVIDaware app checks daily to see if any keys contacted within the last 14 days have recorded positive test results. Minnesota policymakers, likely aware of the intense privacy concerns triggered by contact tracing apps, have emphasized the minimal data collection required by COVIDaware.

The data privacy regulatory scheme in the United States is incredibly complex, as there is no single unified federal data protection policy. Instead, the sphere is dominated by individual states. Federal law enters into the picture primarily via the Health Insurance Portability and Accountability Act (“HIPAA”), which does not apply to patients voluntarily giving health information to third parties. In response to concerns over contact tracing app data, multiple data privacy bills were introduced to Congress, but even the bipartisan “Exposure Notification Privacy Act” remains unpassed.

Given the decentralized nature of the internet, applications tend to be designed to comply with all 50 states’ policies. However, in this case, state-created contact tracing applications are designed for local use, so from a practical perspective states may only have to worry about compliance with neighboring states’ data privacy acts. The Minnesota Government Data Practices Act passed in 1974 is the only substantive Minnesota state statute affecting data collection and neighboring states’ (Wisconsin, Iowa, North Dakota, and South Dakota) laws have similarly limited or dated schemes. In this specific case, the privacy-focused Apple/Google API that forms the backbone of COVIDaware and the design of the app itself, described briefly above, likely keep it complaint. In fact, some states have expressed frustration at the degree of individual privacy afforded by the Apple/Google API, saying it can stymie coordinated public health efforts.

Of course, one solution to even minimal data privacy concerns is simply not to use the application. But the efficacy of contact tracing apps depends entirely on whether people actually download and use them. Some countries have opted for degrees of mandatory use: China has mandated adoption of its contact tracing app for every citizen, utilizing unprecedented government surveillance to flag individuals potentially exposed, and India has made employers responsible for ensuring every employee download its government-developed contact tracing app. While a similar employer-based approach is not legally impossible in the United States, any such mandate would be legally complex, and anyone following the controversy over mask mandates should instinctively recognize that a mandated government tracking app is a hard sell (to put it lightly).

But mandates may not even be necessary. Experts have emphasized that universal compliance isn’t necessary for an app to be effective: every user helps. Germany and Ireland have not mandated use, but have download rates of 20% and 37% respectively. Some have proposed small, community-focused launches of tracking apps, similar to successful start-ups. With proper marketing and transparency, states need not even enter the sticky legal mess that is mandating compliance.

Virtually every policy response to COVID in the United States has been met with heated controversy and tracking apps are no different. As these apps are in their infancy, legal challenges have yet to emerge, but the area in general is something of a minefield. The limited and voluntary nature of Minnesota’s COVIDaware app likely places it out of the realm of significant legal challenges and significant data privacy concerns, at least for the moment. The general conversation around contact tracing apps is a much larger one, however, and has helped put data privacy and end user control into the global conversation.

 

 

 

 

 

Law School Simulator 2020

December 6, 2020
Legal Education, New Technology

Ian Colby, MJLST Staffer

You walk into the classroom. You read the cases and statutes last night. You wrote out a few notes. You think you’re ready. In this classroom, though, you don’t wait for the professor to get the PowerPoint ready. Instead, you slip on your virtual reality headset and start the simulation.

Now you’re sitting in the boardroom of a major corporation with the board of directors. Your headset lets you hear the simulated directors’ nervous talk. You get a few minutes to take in the glass paneling, the city skyline, and the furrowed brows of the worried directors. You can pick up and read reports on the table. You can select dialogue choices to chat with the directors. While the people and place aren’t photorealistic, it’s good enough to immerse you. When class starts, so does the meeting.

“Welcome, everyone,” the simulated President begins, “err…I’ve called this meeting to apprise you of a developing situation and to get some input from our counsel [you].” The president then lays out a series of facts that go from bad to worse:  the EPA has identified a toxic leak in a river adjacent to one of the company’s facilities. While the corporation has urged inspections for months, your dialogue with the directors indicates employees skip them. Rumors float that the on-site manager knew about a leak and covered it up. Now the toxic discharge has polluted the nearby river, residents are getting sick, and the EPA may file suit. The president turns to you. She asks, “Okay, Counsel, what is our first move?” 

Law School is a finite period of time in which the expectations start at “don’t even think about saying something possibly constituting legal advice” and ends at “you are qualified to evaluate, counsel, negotiate, and advocate for real clients without supervision.”  Other than those students who go onto BigLaw jobs (where the firm grudgingly expects to train the new lawyers instead), these three years are it. For the majority of that time, though, becoming a lawyer involves passive learning: reading and sitting in lectures. At the University of Minnesota, students must attend in-person, passive learning courses for 2/3rds of the credits to graduate. The Law School caps other learning methods. Students hope to absorb enough legal knowledge from these passive methods to do well on the course’s lone exam.

Law schools generally wish to develop lawyers that not only know the law, but who have the necessary skills to serve future clients. For example, of the 23 bulleted learning outcomes sought in a University of Minnesota Law School graduate, only 2 directly state that “knowing the law” is the expectation (Under “Client Service”, there is “Demonstrate broad knowledge of the law and the legal system of the United States” and under Ethics & Professionalism, there is “Know and comply with rules of professional conduct.”) The other 21 constitute crucial skills that budding lawyers cannot absorb from reading cases, passively listening to lectures, or trying to keep their heart still as a 1L, hoping they dodge the cold call. For both learning the law and developing crucial lawyering skills, passive learning means inefficient learning. Jennifer M. Cooper & Regan A.R. Gurung, Smarter Law Study Habits: An Empirical Analysis of Law Learning Strategies and Relationship with Law GPA, 62 St. Louis U. L.J. 361 (2017). While you may be expected to master those crucial lawyering skills, most of your credits do not work to help you develop them.

Now you actively respond to the President. Your choices drive the next interaction with the board. The simulation tests your ability to work with the myriad director personalities, gather the necessary information, demonstrate the application of the law, and maintain a poised tone. The simulation does not limit you to the boardroom. You can instantly immerse yourself in the sights and sounds of the waterfront, watch the on-site manager’s facial expressions as you interview him, or review a 3D model of the toxic substance.

Active, simulated learning, on the other hand, is a dramatically more efficient way to learn knowledge and skills. Active learning means learning by doing. Simulations, a type of active learning, allow students to learn by working through a problem in complex, real-time interactions in which they will need to apply that learning. Simulations provide instant feedback on students’ application of knowledge within these real-time scenarios. Finally, simulations provide experiences that a student may have never witnessed before. Many other professions—particularly those that “require mastery of complex knowledge and skills where the stakes for getting it right are high”—utilize simulations to teach the necessary skills and knowledge. Medical professionals, military personnel, firefighters, astronauts, and pilots all perform simulations as a necessary part of their training.

Law schools, recognizing the benefit of active learning and simulation training, have taken steps toward incorporating simulations into the curriculum. At Minnesota, for example, first year students must take Law in Practice. Law in Practice is a simulation course which provides real-time scenarios in which students must elicit and evaluate information, advocate for a client, and negotiate deals. The simulation puts the student on the hot seat: Minnesota’s program is mandatory, provides real-life actors in real-time scenarios, and students demonstrate their skills with local attorneys, judges, and mediators.

However, these real-life simulations are costly, logistically complex, and usually limited to what’s available. Law schools tend to provide simulations separately from doctrinal classes. For those law schools that cannot or do not arrange for real actors and legal professionals, the simulation may lose immersion.

To offer similar benefits as these simulations with fewer costs, and to integrate those benefits into the greater curriculum, law schools should invest in digital simulations. A digital simulation means any interactive, immersive experience that uses technology to provide that experience. While digital simulations can include the latest tech has to offer, such as virtual reality headsets, it does not have to. Interactive CALI lessons can be digital simulations. Video games can be digital simulations. The level of technology does not matter as long as the simulation is immersive, interactive, and provides feedback.

A digital simulation, if done well, would be relatively cheap, repeatable, and provide active, simulated learning opportunities for students. The technology for digital simulations has progressed enough to be readily available—indeed, a student’s smartphone may be used for virtual reality simulations. Law schools could implement digital simulations with less friction than other active learning techniques. The other professions mentioned above have increasingly looked to utilizing digital simulations as a way to provide the benefits of active learning, without the added costs.

There are no defined limits to the variety of clients in a digital simulation. Real-life simulations and other experiential courses depend on availability. Whatever is available becomes the focus of the experience. By contrast, only the imagination of a creator limits the variety of digital simulations. Even if the local market cannot provide a niche area of law, a simulation could. Providing the ideal voice actor becomes easier.

You made a mistake and blurt out that the board should shred all company documents. But you’re not worried. If you make a drastic mistake, the simulation can give you a prompt to try again. Instant feedback. You asked the professor after class about it. You can attempt a different choice that night. Instead of shredding all documents, you advise the board to preserve emails, reports, and other documents. 

Digital simulations have the added benefit of providing equity of experience. Unlike the real world, a digital simulation costs little to provide students with exposure to life, the world, or the legal industry. Further, students may repeat simulations with no additional cost until they become comfortable with the topic. By way of example, imagine that you are a law student who has never attended a boardroom meeting (shock!), never seen an easement on a plat, or never attended a courtroom hearing. A digital simulation would allow you to gain the experience of that context while also coming to understand the law. All other items being equal, would a student who has filed hundreds of complaints for a previous employer and a student who has no previous legal industry experience start out on the same footing in a Civil Procedure class? A digital simulation provides a chance for the latter student to catch up.

You remember the reading about environmental clean-up regulations, but this is your first time applying it. You “pause” the interactions with the board as you work your way through the problem. You don’t worry about wasting a professor’s time. You decide to keep the board paused, so you can check out the site itself. By the time you reach the final test in this class, you’ve lived the law as much as you’ve read about it. 

Law school provides a crucial time period to develop students’ skills in communication, client services, collaboration, professionalism, legal analysis, and legal knowledge without real world consequences. So why not introduce the cheap, efficient method of digital simulation to adequately develop these skills in the time we have?

 

Google It: Justice Department Files Antitrust Case Against Google

November 21, 2020
Antitrust, Internet, Litigation

Amanda Erickson, MJLST Staffer

Technology giants, such as Google, have the ability to influence the data and information that flows through our day to day lives by tailoring what each user sees on its platform. Big Tech companies have been under scrutiny for years, but they continue to become more powerful and have access to more user data even as the global economy tanks. As Google’s influence broadens, the concern over monopolization of the market grows. This concern peaked on October 20, 2020 when the Justice Department filed an antitrust lawsuit against Google for abusing its dominance in general search services, search advertising, and general search text advertising markets through anticompetitive and exclusionary practices.

The Department of Justice, along with eleven state attorney generals, raised three claims in their lawsuit, all of which are under Section 2 of the Sherman Antitrust Act. The Department of Justice claims that, because of Google’s contracts with companies like Apple and Samsung, and its multiple products and services, such as search, video, photo, map, and email, competitors in search will not stand a chance. The complaint is rather broad, but it details the cause of action well, even including several graphs and figures for additional support. For instance, the complaint states Google has a market value of $1 trillion and annual revenue that exceeds $160 billion. This allows Google to pay “billions of dollars each year to distributors . . . to secure default status for its general search engine.” Actions like these have the potential to curb competitive action and harm consumers according to the government.

The complaint states that “between its exclusionary contracts and owned-and-operated properties, Google effectively owns or controls search distribution channels accounting for roughly 80 percent of the general search queries in the United States.” It further mentions that “Google” is not only a noun meaning the company, but a verb that is now used when talking about general searches on the internet. It has become a common practice for people to say, “Google it,” even if they complete an internet search with a different search engine. If Google is considered to be a monopoly, who is harmed by Google’s market power? The complaint addresses the harm to both advertisers and consumers. Advertisers have very little choice but to pay the fee to Google’s search advertising and general search text monopolies and consumers are forced to accept all of Google’s policies, including privacy, security and use of personal data policies. This is also a barrier to entry for new companies emerging into the market that are struggling to gain market share.

Google claims that it is not dominant in the industry, but rather just the preferred platform by users. Google argues that its competitors are simply a click away and Google users are free to switch to other search engines if they prefer. Google points out that its deals with companies such as Apple and Microsoft are completely legal deals and these deals only violate antitrust law if they exclude competition. Since switching to another search engine is only a few clicks away, Google claims it is not excluding competition. As for Google’s next steps, it is “confident that a court will conclude that this suit doesn’t square with either the facts or the law” and it will “remain focused on delivering the free services that help Americans every day.”

Antitrust laws are in place to protect the free market economy and to allow competitive practices. Attorney General William Barr stated “[t]oday, millions of Americans rely on the Internet and online platforms for their daily lives.  Competition in this industry is vitally important, which is why today’s challenge against Google—the gatekeeper of the Internet—for violating antitrust laws is a monumental case.” This is just the beginning of a potentially historic case as it aims to protect competition and innovation in the technology markets. Consumers should consider the impacts of their daily searches and the implications a monopoly could have on the future structure of internet searching.

 

The Future of Software Industry Is at Stake—An Interview With Professor Thomas F. Cotter of University of Minnesota Law on the Supreme Court Case Google v. Oracle

November 21, 2020
Copyrights, Intellectual Property

Mengmeng Du, MJLST Staffer

Background

In the United States, intellectual property rights in computer software receive protection from copyright law. In 1980, Congress amended 17 U.S.C. § 101 to add software to the subject matters of copyright. Section 101 defines “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”  At the same time, Congress added in § 117 exemption of infringement liability under certain circumstances such as when a user installs and runs the software or makes backup copies of the software.

With these seemingly clear definitions, the debate over the extent of the copyrightability of computer software, however, has not abated in the following decades. In Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), the Third Circuit was asked to determine whether literal copying of computer program object codes constitutes copyright infringement. The Third Circuit ruled that object codes are copyrightable and thus literal copying of such infringes the copyright. In Whelan Ass’n, Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986) and Computer Ass’n Int’l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), the Third and Second Circuit faced the problem of where to draw the line for finding infringement when the copying of software at issue is non-literal. While the Third Circuit would find almost anything below the “purpose of the program” copyrightable, the Second Circuit later developed its more rigorous but more popular “abstraction-filtration-comparison” test, which would yield less copyright protection for non-literal components of computer software.

In 1996, the Supreme Court had a chance to further define the boundary for finding copyright protection in software but missed it. In Lotus Dev. Corp. v. Borland Int’l, Inc., 516 U.S. 233 (1996), the copyrightability of the Lotus menu command hierarchy was questioned. The First Circuit ruled found it an uncopyrightable method of operation by comparing the Lotus menu command hierarchy to the arrangement of buttons on a VCR [see Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807 (1st Cir. 1995)]. Lotus petitioned to the U.S. Supreme Court. Due to an even split court with Justice Stevens recusing, the Supreme Court affirmed the First Circuit’s judgment in a per curiam opinion without discussion on the reasoning.

Google v. Oracle

Finally, there is, again, hope to resolve the extent of computer software copyrightability. The Supreme Court granted certiorari to review the decision in Oracle America, Inc., v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018) on November 15, 2019. In this case, Oracle sued Google for copyright infringement for copying its Java Application Programing Interfaces (APIs) when developing Google’s Android platform. The two parties vehemently debated the copyrightability of the Java APIs and whether the fair use doctrine applies to exempt Google’s use of the declaring code and “structure, sequence, and organization” (SSO) of 37 Java APIs. The Federal Circuit eventually sided with Oracle, finding first in 2014 that the declaring code and SSO of Java APIs are copyrightable (Oracle America, Inc., v. Google LLC, 750 F.3d 1179 (Fed. Cir. 2014)) and then in 2018 that Google’s use is not a fair use (Oracle America, Inc., v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018)). Google successfully petitioned to the U.S. Supreme Court on its second try. The Supreme Court heard oral arguments from Google, Oracle, and Deputy Solicitor General Malcom Stewart on October 7, 2020.

Professor Thomas F. Cotter

Professor Cotter joined the University of Minnesota Law School faculty in 2006 and is Taft Stettinius & Hollister Professor of Law. With a background in economics and law, Professor Cotter’s principal research interests are in the field of intellectual property law, antitrust, and law and economics. He teaches a variety of intellectual property law courses, including patents, copyright, antitrust, international intellectual property, and patent remedies. For further information, please see his law school profile.

This semester, I attended Professor Cotter’s copyright course, where we studied the Federal Circuit’s decisions in Oracle v. Google. Professor Cotter encouraged the class to listen to the Supreme Court hearing for the now Google v. Oracle case on October 7.

To better understand the law and logic behind Google v. Oracle, I invited Professor Cotter to conduct this blog interview.

The Interview

Q: It is notable that after Federal Circuit’s decision in 2014, Google petitioned to the Supreme Court for the first time but was denied. What do you think is the main reason that the Supreme Court decided to grant cert at this time? Does it have something to do with the “ripeness” in this case, i.e., receiving a final judgement?

A: Like you have suggested, the Supreme Court might have wanted to see what would happen on the fair use issue. Other than that, it is hard to know why the Supreme Court denied cert. It seems like there are a lot of important issues, but often the Supreme Court wants to let them continue to percolate through the lower courts before chiming in, so it can be hard to guess sometimes.

Q: The Supreme Court justices raised a lot of questions during the oral argument. Which one is your favorite question, and why?

A: I’m not sure if I have a favorite question as such, but there were some questions I thought were more getting into the heart of the issue than others.

For example, at pages 80-81 of the transcript, Justice Kavanaugh’s questions to the Deputy Solicitor General Malcom Stewart. These were the two of the more perceptive questions in the entire oral argument. Question number one is on the merger doctrine. Justice Kavanaugh said: “First, Google says in its reply brief that the dispositive undisputed fact in this case is that the declarations could not be written in any other way and still properly respond to the calls used by Java programmers. Are they wrong in saying that?” I think that is a very important question. Justice Kavanaugh then followed that up with a second question on page 81: “And the method of operation, Google says that the declarations are a method of operation because they are for the developers to use, while the implementing code instructs the computer. Your response to that?” I think those are the fundamental questions of the case.

Generally speaking, I would say that I think the better questions were those searching for some kind of analogy, whether it is the QWERTY keyboard or whatever else. But analogies only go so far. Computer software is a thing unto itself. Maybe there is no precise analogy. But you do the best to try to draw inferences from something that is more familiar.

Q: Justice Sotomayor and Oracle disagreed as to whether the precedents have held that there is a distinction between declaring and implementing codes for copyright purpose, whether the precedents have held APIs are not copyrightable, and accordingly, what assumptions the software industry has built on for years. How would you read the precedents?

A: Yes. Particularly precedents from the Ninth Circuit on the question of whether APIs are copyrightable.

I tend to agree with Justice Sotomayor that in these two Ninth Circuit cases in particular— Sega v. Accolade [see Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)] and Sony v. Connectix [see Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000)]—those were both cases in which the defendants copied software for the purpose of extracting interface specifications that would enable the defendants to create a compatible program, and Ninth Circuit in both cases held that was a fair use.

The response by Oracle’s counsel was to say among other things that those are fair-use cases and are not going to the fundamental issue of whether the interfaces themselves are copyrightable. But I would say many people have read those cases as premised on the belief that interfaces themselves are not copyrightable and that’s why you can copy the software in its entirety for the purpose of extracting interfaces so as to use them to make compatible programs. So many people would read those cases as standing for the proposition that interfaces are not copyrightable to the extent that they are necessary to enable others to make compatible systems and programs.

So, I’m inclined to think that Justice Sotomayor had the better argument that in construing those cases. But again, they are Ninth Circuit cases and not binding on the decision of the Supreme Court.

Q: So . . .  interfaces are not copyrightable is what the industry has understood for years?

A: I think that’s largely true. But I am not an industry insider. There are different opinions depending on who you talk to about whether there is an expectation that someone would pay a license fee to use interfaces, APIs, and the declaring code in particular. There are some instances where companies have paid for that. But my understanding, based on what I have read from the amicus briefs filed in this case, commentaries on it and so on, is that more people are of the view that declaring code was not copyrightable, or at least it was industry custom that you can go ahead and copy it to make a compatible program. Again, not everybody will agree on that, and I am not an insider in the industry. So please take whatever I said with a grain of salt. But based on what I saw, I think that is the dominant view.

Q: I talked to friends in the industry. According to some of them, Google could have developed its own declaring codes or APIs, or paid a “moderate” license fee to Oracle to use the Java SE. But Google chose not to.

A: That’s Oracle’s view, and the view of some commentators and people in the industry.

Here is how I would think of it: there are two viewpoints, and ultimately it comes down to which of the viewpoints the Supreme Court finds more persuasive.

On one hand, Oracle is saying: “You can’t copy our declaring code to make a rival platform. If you want to do that, you would have to ask us and pay us if we can reach an agreement. But you can’t just copy our declaring code to make a rival platform.” This sounds intuitively correct.

But on the other hand, Google comes back and says: “You Oracle cannot use your copyright to inhibit us from creating a rival platform. That would be analogous to Baker v. Selden [see Baker v. Selden, 101 U.S. 99 (1879)], where the attempt was made to leverage copyright to control over an uncopyrightable thing.” So basically, Google is saying that you can’t use your copyright to inhibit others from creating a competing product, as that would be undermining the purpose of copyright and extending copyright to some other endeavors or fields.

In response to that, Oracle says: “But if we can’t assert copyright in our declaring code, the incentive to innovate diminishes. The whole purpose of copyright is to provide that incentive.”  I also have long been of the view that many people at least intuitively, rightly or wrongly, feel that if they invest their labor and personality in something, they have some moral entitlement to it, even though you could debate the philosophical issues and how persuasive this really is.

In response to the argument that copyright in declaring code is necessary to validate the incentive to create, Google argues that if the declaring code is copyrightable, then the incentive for people like us to innovate is diminished, because negotiating and paying for the declaring code would give Oracle some control over our creation of the rival platform. This is analogous to the case in Sony v. Universal City Studios [see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)], where if Sony had lost on the contributory infringement theory, the movie industry would have gained some control over how VCRs and other copying technologies would evolve. Google is also making a point here that were they to develop different declaring codes, it would put their rival platform at a disadvantage since people who are already familiar with the Java declarations would be less likely to use it if they need to learn all these new ones.

That’s where the analogy was made with the QWERTY keyboard. It’s also related to what economists call “network effects”—the value of certain things increases in proportion to the number of other people who are using them. My use of a telephone is negligible if I am the only person in the world who has one. But once more people come onto the network, the value to me of the telephone increases. Similar with the QWERTY keyboard, the network effect provides that if there is one single design in the world, the value of it is much greater and it becomes very difficult for any rival keyboard to ever maintain a position in the marketplace—no one wants to adopt it, even if in theory it is better.

Google would make similar arguments here as well—once people are familiar with the Java declarations, they will be less motivated to learn a new set of declarations to implement the new platform. Therefore, either Google pays for the existing declaration code or makes their own, it diminishes the incentive on Google to develop the rival platform, which enables interoperability for a wide variety of phones and apps.

Thinking beyond this case, if the copyright owners generally have the ability to exert control on declaring codes, maybe that will have the long-term effect of inhibiting innovation and interoperability from which the consumers benefit.

In summary, ultimately, it comes down to which side the Court thinks has the most persuasive arguments.

Q: There is one interesting fact that some people noticed—if you look at how Java originated, Sun actually created Java to break the monopoly of Microsoft. Had Google developed its own declaring codes, it could have ended up with achieving some technology breakthroughs just like Java. Could that be a potential argument to rebut Google’s position regarding inhibition of incentives?

A: Maybe. Network effects are not always insurmountable. Sometimes you might come up with a better product that ultimately does replace the earlier one. Then again, maybe not. People who support Google’s position are concerned that copyright owners having the ability to control the use of declaring code or APIs more generally would ultimately lead to what is called “walled gardens,” which refers to proprietary systems as opposed to open-source systems that enable greater interoperability.

Q: I recall that it was mentioned several times in our copyright law and patents class that it is hard to prove the effects on incentive by evidence. Is it correct to say that is also the case here?

A: Yes, it is. There are a few empirical studies on patent law, and even fewer on copyright law, on this issue.

For example, there may be some empirical evidence showing that the motion pictures industry benefits from having copyright protection. Motion pictures generally take huge amount of money to create. If there is no copyright in motion pictures, it would greatly reduce the incentive to produce, given the high fixed cost and the low marginal cost.

For other works, there is not much empirical evidence one way or the other, either to substantiate that the copyright incentive is necessary or to refute that. Some people would argue that the Oracles of the world would still have very substantial incentive to invest in coming up with new software products. Even if their ability to control the use of some aspects of their software is diminished, there are still substantial benefits to be gained from being the first in the marketplace, e.g., from having good products or from network effects. Maybe the copyright incentive is not altogether necessary. Maybe copyright has more of an inhibiting effect on innovation if it is used too aggressively.

The odd thing about software is that it covers something very functional and the justices were talking about it during the oral argument. It was Congress’s decision, and whether it is a good decision or a bad one, software is copyrightable. Back in the 1970s, there was a debate about whether copyright is a good fit, or maybe it would make sense to have some new and different system in intellectual property law that provides an intellectual property right that lasts for shorter period of time. But the decision was made. Code is copyrightable.

It appears to be some of the justices’ view that the declaring code cannot be viewed as a method of operation because § 101 says code is copyrightable and doesn’t distinguish between declaring code and implementing code. But then you get into a legal doctrine and not the policy. I am not sure whether that argument is necessarily persuasive because it seems you could have a literary work that prima facie looks copyrightable but counts as a method of operation. We will see how the Court resolves this issue.

Q: Justice Gorsuch said it was wise for Google not to linger on the main argument in their brief, i.e., not to make too much Baker v. Selden / § 102(b) arguments. Google did concede that their main argument is the merger doctrine and not the § 102(b) arguments.  Do you think it is wise?

A: I am not sure. Some of the justices seem to be skeptical about the Baker v. Selden argument. Though at the end of the day, it seems to me that the idea-expression dichotomy, the merger doctrine, and the Baker v. Selden argument all kind of go to the same issue—all of them refer to § 102(b) which says that you can’t copyright ideas, facts, concepts, systems and methods of operation. From a policy perspective, the idea is that there are certain things are off limits to copyright, and you shouldn’t be able to use your copyright to exert control over those things. So if the majority of justices see this case as implicating that principle, then whether they invoke the merger doctrine, the method of operation principle, or the Baker v. Selden principle, it comes down to the same outcome. But if the majority of justices don’t see this case as so (since Google could have either paid or made its own declaring code), then that analogy is not going to hold.

Q: Several justices have mentioned that other rivals such as Apple and Microsoft didn’t copy to create their competing platform and that Google could have spent the million dollars to develop its own. What do you think about that?

A: That is certainly one way to look at it. The ultimate question is should Google be required to develop its own system that does not require copying the Java declaring code. Maybe that would not be very productive. Allowing programmers to use Java SE may be better for innovation since it is a tool that so many programmers have already known how to use. If Google is to pay for the declaring code or to create its own new ones, there will be a lot of startup costs, which may be socially wasteful. Again, that’s the debate.

Q: Last question. There are many amicus briefs filed in support of Google, but not so many in support of Oracle. Do you think it reflects where the experts stand, and should it substantially impact the Court’s decision (as the Court frequently said that it does not possess the technical expertise to resolve many complex issues)?

A: Amicus briefs may or may not be representative of opinions as a whole. But I think the fact that many more amicus briefs in the case were filed on behalf of Google should at least give some pause. Maybe the amici have a point that code that enables you to make these calls is somehow different from the implementing code. They are all functional in some sense, but declaring code is probably more functional in a general sense and more analogous to a method of operation. This is the way the industry has grown for years. It is the underlying assumption of many people in the industry that it is perfectly lawful to do this. Maybe the Supreme Court should at least give serious consideration whether it should run up against the custom, since many people in the field of computer science and as well law are of the view that Google’s argument is more sensible. But again, there are people who disagree with that, and the Supreme Court has to evaluate all of the opinions.

(the end of the interview)

Closing

As Professor Cotter has pointed out, the debate behind Google v. Oracle comes down to the core issue of why we should provide copyright protection for computer software. Each side has important interests at stake—Oracle’s interest in guarding its investment of labor and personality in Java and Google’s interest in being free from inhibition of innovation. Society at large also has an interest in having a balanced intellectual property system that provides most incentive for people to create.

The 83 computer scientists mentioned in the amicus briefs are of the point that the sky will fall if the Supreme Court rule against Google in this case. Whether it is true or not, this time, the future of the software industry is really at stake. All we can do is wait and see what the Supreme Court will say about these important issues in months.

 

 

 

Inconceivable! How the Fourth Amendment Failed the Dread Pirate Roberts in United States v. Ulbricht

November 21, 2020
Constitutional Law, Cyber Security, Fourth Amendment, Law Enforecement

Emily Moss, MJLST Staffer

It is not an overstatement to claim that electronic devices, such as laptop and smart phones, have “altered the way we live.” As Chief Justice Roberts stated, “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. California, 573 U.S. 373, 385 (2014). These devices create new digital records of our everyday lives. United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017) is one of many cases that grapple with when the government should gain access to these records.

In February 2015, a jury found Ross William Ulbricht (aka “Dread Pirate Roberts” or “DPR”) guilty on seven counts related to his creation and operation of Silk Road. United States v. Ulbricht, 858 F.3d 71, 82 (2d Cir. 2017). Silk Road was an online criminal marketplace where, using the anonymous currency Bitcoin, “users principally bought and sold drugs, false identification documents, and computer hacking software.” Id. Government trial evidence showed that, hoping to protect Silk Road anonymity, DPR commissioned the murders of five people. Id. at 88. However, there is no evidence that the murders actually transpired. Id.

On appeal, the Second Circuit upheld both the conviction and Ulbricht’s two-life sentence. Ulbricht, 858 F.3d at 82. Ulbricht argued, inter alia, that “the warrant[] authorizing the government to search his laptop . . . violated the Fourth Amendment’s particularity requirement.” Id. at 95. The warrant authorized “opening or ‘cursorily reading the first few’ pages of files to ‘determine their precise contents,’ searching for deliberately hidden files, using ‘key word searches through all electronic storage areas,’ and reviewing file ‘directories’ to determine what was relevant.” Id. at 101–02. Ulbricht claimed that the warrant violated the Fourth Amendment’s particularity requirement because it “failed to specify the search terms and protocols” that the government was required to employ while searching Ulbricht’s laptop. Id. at 102.

The court acknowledged that particularity is especially important when the warrant authorizes the search of electronic data, as the search of a computer can expose “a vast trove of personal information” including “sensitive records.” Id. at 99. It noted that “a general search of electronic data is an especially potent threat to privacy because hard drives and e-mail accounts may be ‘akin to a residence in terms of the scope and quantity of private information [they] may contain’ . . . Because of the nature of digital storage, it is not always feasible to ‘extract and segregate responsive data from non-responsive data,’. . . creating a ‘serious risk that every warrant for electronic information will become, in effect, a general warrant.’” Id. (internal citations omitted).

Nonetheless, the court rejected Ulbricht’s claim that the laptop warrant failed to meet the Fourth Amendment’s particularity requirement. It reasoned that it would be impossible to identify how relevant files would be named before the laptop search began, which the government reasonably anticipated when requesting the laptop warrant. Id. at 102 (emphasizing examples where relevant files and folders had misleading names such as “aliaces” or “mbsobzvkhwx4hmjt”). Further, the court held that broad search protocols were appropriate given that the alleged crime involved sophisticated technology and masking identity. Id. Ultimately, the court emphasized that the “fundamental flaw” in Ulbricht’s argument was that it equated a broad warrant with a violation of the particularity requirement. Id. Using the analogy of searching an entire home where there is probable cause to believe that there is relevant evidence somewhere in the home, the court illustrated that a warrant can be both broad and still satisfy the particularity requirement. Id. (citing U.S. Postal Serv. v. C.E.C. Servs., 869 F.2d 184, 187 (2d Cir. 1989)). The court therefore upheld the constitutionality of the warrant. The Supreme Court denied Ulbrich’s writ of certiorari.

Orin Kerr’s equilibrium adjudgment theory of the Fourth Amendment argues that as new tools create imbalanced power on either the side of privacy or the side of law enforcement, the Fourth Amendment must adjust to restore its original balance. The introduction of computers and the internet created an immense change in the tools that both criminals and law enforcement use. Without minimizing the significance of Ulbricht’s crimes, United States v. Ulbricht illustrates this dramatic change. While computers and the internet did create new avenues for crime, computer and internet searches—such as the ones employed by the government—do far more to disrupt the Fourth Amendment’s balance.

Contrary to the court’s argument in Ulbricht, searching a computer is entirely unlike searching a home. First, it is easy to remove items from your home, but the same is not true of computers. Even deleted files often linger on computers where the government can access them. Similarly, when law enforcement finds a file in someone’s home, it still does not know how that file was used, how often it has been viewed, or who has viewed it. But computers do store such information. These, and many other differences demonstrate why particularity, in the context of computer searches, is even more important than the court in UIlbricht acknowledged. Given the immense amount of information available on an individual’s electronic devices, Ulbricht glosses over the implications for personal privacy posed by broad search warrants directed at computers. And with the rapidly changing nature of computer technology, the Fourth Amendment balance will likely continue to stray further from equilibrium at a speed with which the courts will struggle to keep up.

Thus, adjusting the Fourth Amendment power balance related to electronic data will continue to be an important and complicated issue. See, e.g., Proposal 2 Mich. 2020) (amending the state’s constitution “to require a search warrant to access a person’s electronic data or electronic communications,” passing with unanimous Michigan Senate and House of Representative approval, then with 88.8% of voters voting yes on the proposal); People v. Coke, 461 P.3d 508, 516 (Colo. 2020) (“‘Given modern cell phones’ immense storage capacities and ability to collect and store many distinct types of data in one place, this court has recognized that cell phones ‘hold for many Americans the privacies of life’ and are, therefore, entitled to special protections from searches.”) (internal citations omitted). The Supreme Court has ruled on a number of Fourth Amendment and electronic data cases. See, e.g., Carpenter v. United States, 138 S.Ct. 2206 (2018) (warrantless attainment of cell-site records violates the Fourth Amendment); Riley v. California, 134 S.Ct. 2473 (2014) (warrantless search and seizure of digital contents of a cell phone during an arrest violates the Fourth Amendment). However, new issues seem to appear faster than they can be resolved. See, e.g., Nathan Freed Wessler, Jennifer Stisa Granick, & Daniela del Rosario Wertheimer, Our Cars Are Now Roving Computers. Is the Fourth Amendment Ready?, ACLU (May 21, 2019, 3:00 PM), https://www.aclu.org/blog/privacy-technology/surveillance-technologies/our-cars-are-now-roving-computers-fourth-amendment. The Fourth Amendment therefore finds itself in eel infested waters. Is rescue inconceivable?

Special thanks to Professor Rozenshtein for introducing me to Ulbricht and inspiring this blog post in his course Cybersecurity Law and Policy!

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