International Law

Permissionless Innovation or Precautionary Principle: the Policy Menu of the Future

October 31, 2016
3-D Printing, Administrative Law, EU Law, New Technology, Public Safety

Ethan Konschuh, MJLST Staffer

In their recent paper, Guns, Limbs, and Toys: What Future for 3D Printing?, published in the Minnesota Journal of Law, Science, and Technology Volume 17, Issue 2, Adam Thierer and Adam Marcus discussed the potential regulatory frameworks for technological innovations that could spur what they call “the next great industrial revolution.”  They believe that 3D printing, one such innovation, could offer such great benefits that it could significantly enhance global welfare.  However, they worry that preemptive regulations on the technology could undermine these benefits before giving them a chance to be realized.  The paper advocates for a method of regulation called “permissionless innovation,” as opposed to regulations following the “precautionary principle.”  While there are many pros to the former, it could leave unchecked the risks curtailed by the latter.

“Permissionless innovation refers to the notion that experimentation with new technologies and business models should generally be permitted by default.”  It follows from the idea that unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated, and problems, should they arise, can be addressed later.  The authors point to numerous benefits of this approach with respect to emerging technologies.  One of the most obvious benefits is that this type of regulatory framework does not prematurely inhibit potential benefits.  “Regulatory systems based on precautionary thinking focus on preemptive remedies that aim to predict the future and its hypothetical problems. But if public policy is rooted in fear of hypothetical worst-case scenarios, it means that best-case scenarios will never come about.”  It would also preserve the modern startup culture where “just about anyone can afford to launch a business.”  Implementing a framework based on the precautionary principle will create barriers to entry and raise the cost of innovation.  This would also reduce the ability to maximize competitive advantage through trial and error, which refines the technology and efficient allocation of resources for development.  As an example of the potential detriments to competitive advantage from preemptive regulation, the authors point to the different policies of the Europe and the U.S. in the mid-nineties internet explosion where the former preemptively regulated and the latter allowed for permissionless innovation, resulting in the U.S. being a global leader in information technologies and Europe lagging far behind.

An alternative regulatory approach discussed in the article is based on the precautionary principle, which generally refers to the belief that new innovations should be curtailed or disallowed until it can be proven that they will not cause harm.  This approach, while posing problems of its own discussed above, would solve some of the problems arising under permissionless innovation.  While there are many economic and social benefits to permissionless innovation as the bedrock on which policy rests, it inherently allows for the “error” half of “trial and error.”  The whole concept is rooted in the idea of ex post regulation, creating policy to correct for problems that have already occurred.  While traditionally, as shown through the internet regulation difference and outcome between Europe and the U.S., the risk of error has not outweighed the benefits that result, new technologies pose new risks.

For example, in the realm of 3D printing, one of the hot topics is 3D printed firearms.  Current laws would not make 3D printed guns illegal, as most regulations focus on the sale and distribution of firearms, not creation for personal use.  The reasons why it might be more prudent to adopt a precautionary principle approach to regulating this technology are obvious.  To adopt an ex post approach to something that could have such dire consequences could be disastrous, especially considering the amount of time required to adopt policy and implement regulations.  Permissionless innovation could thus become a sort of self-fulfilling prophecy in that major tragedies resulting from 3D printing could result in exactly what advocates of permissionless innovation seek to prevent in the first place: strict regulation that undermines the development of the technology.

The debate will likely heat up as technology continues to develop.  In the era of self-driving cars, private drones, big data, and other technologies that continue to change the way that humans interact with the world around them, 3D printing is not the only area in which this discussion will arise.  The policy decisions that will be made in the next few years will have far reaching consequences that are difficult to predict.  Do the economic and social benefits of being able to manufacture goods at home outweigh the risks of legal, discrete self-armament and its consequences?  The proverbial pill may be too large for some to swallow.

Westward (And Then Some) Expansion: One Theory of Property Rights on the Moon and Mars

September 28, 2016
International Law, Property Law, Space Law

Jordan Rude, MJLST Staffer

Recently a friend of mine received, for his birthday, a deed to one acre of land on Mars. That’s right—he is the proud owner of property located approximately 34 million miles from Earth. This is possible thanks to the efforts of various (and often interconnected) websites such as Buy Mars, Buy Planet Mars, Lunar Registry, and Lunar Land. While selling extraterrestrial property is not a recent development (see here and here), and there does not appear to be any recent lawsuits regarding this practice, these methods still deserve scrutiny. With the rapid advancement of technology in recent decades and increasing participation by private companies in space programs (SpaceX recently tested a Mars-capable rocket), human settlement on the Moon and Mars is becoming a possibility (albeit a distant one) within our lifetimes. At that point, property ownership will become an important and possibly contentious issue. For the millions of people who have bought land on the Moon and Mars, the question of whether their claims will be recognized in such a situation is a not insignificant one.

Some of these websites claim to have legal standing for their ownership of property on Mars. Consider Buy Mars (owned by Lunar Land). Under the heading “Lunar Land’s Legal Right To Offer Planet Mars Land,” the site makes reference to the U.N. Outer Space Treaty of 1967 as well as the tradition “dating back to early U.S. settlers” of staking a claim on surveyed land through the U.S. Office of Claim Registries. The Outer Space Treaty has been previously discussed by this blog (in a different context). Suffice it to say that this treaty prohibits countries from claiming ownership of land on Mars and other extraterrestrial property, but says nothing about individuals or corporations. Thus, the argument would be that Buy Mars, because it is not a sovereign nation, is not subject to the treaty specifically prohibiting claims of ownership on Mars.

Beyond the lack of a direct prohibition, Buy Mars also claims historical precedent as an affirmative justification. This reference to historical precedent is problematic for two reasons: first, the U.S. Office of Claim Registries does not exist, and likely never existed; and second, this is not an accurate statement of the process by which the West was settled. In fact, the federal government sold the land—first as townships and other large plots, and later in smaller, more affordable plots, before finally offering land for free under the Homestead Act of 1862 (see Michael C. Blumm & Kara Tebeau, Antimonopoly in American Public Land Law, 28 Geo. Envtl. L. Rev. 155, 165–71 (Winter 2016)). That is, the federal government owned the land it sold to speculators and other settlers (though this ownership came more or less from the government declaring it to be so, not dissimilar to what Buy Mars has done). So, because the U.S. government does not own land on Mars that it could sell to Buy Mars (to then sell to us), on its face the claimed historical precedent is not in fact proof of the legality of the process.

However, setting aside the flaws in Buy Mars’ formulation of the argument, let’s assume that the principles of westward expansion can be applied to property on Mars—would this type of claim survive a legal challenge?

Most likely it would not. Construing the westward expansion analogy narrowly, the U.S. government would have to first own land on Mars and then distribute it to corporations like Lunar Land or individuals. This is clearly prohibited by the Outer Space Treaty. That being said, if a company like SpaceX lands on Mars, the Outer Space Treaty would potentially not restrict its ability to claim land. At that point, it is unclear what the legal policies governing ownership would be. In that situation, a process loosely similar to westward expansion could be utilized, wherein a larger entity (in this case a large company) distributes land to newcomers. The key difference between the Buy Mars argument and SpaceX landing on Mars would be the latter company’s physical presence on the planet—an important aspect of making such property claims and the most likely way to get around the Outer Space Treaty. This could be extremely lucrative for SpaceX but problematic for those who have already purchased land on Mars. Ultimately, the websites currently offering land on the Moon or Mars do not have legal standing to do so, and any person who bought such land is unlikely to find legal protections should the need arise. The law in this field is very uncertain, if it exists at all, and the day may come where a true answer is needed.

Of course, the legal implications of this process should not deter you from investing in extraterrestrial property for the fun of it. My friend’s deed comes from Buy Planet Mars, whose website makes quite clear, in the FAQ section, that the deed is “a novel gift and for entertainment purposes only.”

“What’S in a Name?” Billions of Dollars, That’s What

March 22, 2016
International Law, Trademark Law

Travis Waller, MJLST Staffer

Cease-and-desist letters have long been one of the most commonly used, and perhaps more potent, of the tools relied upon by organizations and legal counsel to cut short unauthorized 3rd party use of material relating to that company’s trademarks. In 2013, Marcella David published a fascinating article in vol. 14 of the Minnesota Journal of Law, Science & Technology entitled “Trademark Unraveled: The U.S. Olympic Committee Versus Knitters of the World”. This article discussed the “scandal” surrounding the U.S Olympic Committee’s (USOC) harshly worded cease-and-desist letter sent to the operators of a website for knitters, called ravelry.com. What did ravelry.com do to receive this response? Ravelry.com hosted a kind of knitting competition, which it called the “ravelmpics”, in which the site would promote various events (such as the afghan marathon) and award “blog badges” to the winner of these events. Ravelry.com even had commemorative pins made up to memorialize the event.

Soon after the announcement of the “ravelmpics”, the USOC sent a cease-and-desist letter to ravelry.com. The outrage surrounding the USOC’s cease-and-desist letter (which complained that the “ravelympics” made light of Olympic athlete’s lifetime of training and dedication, among other things) was immediate and intense, so much so that the USOC actually apologized to ravelry.com for the letter twice, as well as blamed the contents of the letter on an over-zealous summer associate within the organization’s legal department.

While this event may mark the upper limits of the strange when it comes to brand protection, the Olympic committees appear to have not lost their appetite for using their trademark rights in the word “Olympic” as a sword, as the International Olympic Committee recently carved up the name of a Portland charcuterie shop, now known as Olympia Provisions.

Bologna, right? Not necessarily. (Olympia Provisions prides itself on it’s salami). While organizations like the USOC’s actions against these companies may seem harsh – even ridiculous – at first blush, there can be very real harms to an organization’s branding efforts and trademark protection if prevention of unauthorized use is not vigorously enforced. Remember Aspirin? Linoleum? Trampoline? These names, which have now fallen into common use as terms for items, used to be trademarks. That is, aspirin used to denote a brand of acetylsalicylic acid, made by the company Bayer, and branded as “aspirin”.

This loss of rights is due to an aspect of trademark law that allows the expiration of trademark protection for certain marks that lose their status as “source identifiers”. While it may be difficult now to imagine the word “Olympic” as ever losing its connection to the Olympic Games, words have a funny way of changing meaning simply through their usage over time. To this point, consider “literally”, which today is synonymous with both “actually” and “figuratively” (“literally” antonyms of each other).

Aside from the USOC, the NFL is another large entity that actively enforces it’s use of the “SUPER BOWL” mark through cease-and-desist letters, and does so out of many of the same fears that the USOC uses in justifying it’s strict enforcement of it’s marks.

To bring this discussion to a head, cease-and-desist letters are probably more a tool of necessity than an expression of corporate malice. While there may be the rare occasion of an “over-zealous summer associate” or two, the astronomical economic value associated with the trademarks of many of the worlds most famous brands provides ample incentive to stymie even the most negligible 3rd party uses, strong likelihood of confusion or not. This is because, like it or not, language is slippery, and far is the fall to “generic”.

Marooned on Mars: A Legal Look at Space Piracy

December 16, 2015
International Law, Maritime Law, Space Law

Tim Joyce, MJLST Staffer

Trending on the LawSciBlog’s recent foray into the intersection of law & pop culture, this week our intrepid Staffer corps fact-checks the legal accuracy of certain claims made in Andy Weir’s The Martian. With apologies to the many quality primetime law-connected dramas out there – such as How to Get Away with Murder, Scandal, and The Good Wife (note all the strong female protagonists: go Hollywood!) – this is a science & technology blawg. I will thus attempt to constrain my meanderings to science-related law topics in this book/film.

You may already be familiar with the premise of Hollywood’s most recent riff on the tried and true “We must rescue Matt Damon” formula: an American astronaut with one of the first manned missions to Mars is accidentally left behind during an emergency evacuation. With only his superior botany skills and a can-do attitude, he is forced to “science the s@*t” out of his resources, MacGuyver-style, to avoid starving to death before the rescue mission arrives. Along the way he has all kinds of time alone with his thoughts, and the audience is treated to some hilarious, if occasionally profane, musings.

Author Andy Weir wrote the book as a compilation of various thought experiments he had been entertaining for years. He wanted to know what an actual manned mission to Mars might look like, and what kind of problems might pop up. Although smarter people than I have probed the book’s relative scientific accuracy (hyperlink warning: spoilers inside!), there is one short chapter that explores some legal complications of being the only colonist on an unclaimed planet. Here’s how Matt Damon’s character concludes that he is a “space pirate” (mild spoilers ahead):

  1. An international treaty says: no one can lay claim to anything not on the Earth’s surface.
  2. Another treaty says: if you’re not in any country’s territory then maritime law applies.
  3. The NASA living enclosure and rover are NASA property, and inside American non-military property American law applies.
  4. THEREFORE: Martian land is governed by maritime law; any step outside of his living enclosure or rover vehicle is a journey into “international waters.”
  5. He intends to travel across Martian soil to take control of another NASA vessel.
  6. He has not been able to communicate with NASA to get explicit permission to commandeer this other vessel. (Plot point: communication capability is a major reason he must travel to said ship.)
  7. THEREFORE: By travelling across “international waters” with the intent to commandeer an American non-military vehicle, but without explicit permission, he intends to engage in piracy.

Ergo: space pirate. (If you’re curious, this all happens in the short “Sol 381” chapter.) The character seems to think this is a pretty sweet outcome, but, is he right about the law?

By and large, the answer is yes.

Article II of the Outer Space Treaty guarantees that, “[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” So, Mars’ surface cannot be claimed by any sovereign party to the treaty. For an exploration of the Treaty’s rationale, see “the common heritage of mankind.”

Further, Article VIII of the Treaty guarantees American jurisdiction over American objects launched into space. So, the living enclosure and rover are definitely under active American jurisdiction on Mars. By extension, anything outside those Earth-originated environments would be “international waters.”

Here’s where it gets tricky.

The other American vessel should still be under American jurisdiction. A trusting reader might assume that NASA would allow its own astronaut to commandeer its other vessel, but we all know what happens when you assume. It is at least plausible that the astronaut had not been given explicit permission to use other NASA spacecraft’s communication devices. Under Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), which arguably should apply to dispute in outer space, a private person seeking to plunder a ship on the high seas commits an act of piracy. What is unclear is whether an American can be a pirate with regard to NASA property. Weir hurdles this deftly by claiming the astronaut’s botanical cultivation of Martian soil makes him a planetary colonist and the very first human Martian (hence, the book’s title).

That is basically the situation Matt Damon’s character finds himself in, more or less. Certainly, any other astronaut seeking to prevent him from taking control of the other spaceship would view him as a pirate! On the other hand, the assumption that NASA wouldn’t give advance permission for their astronauts to use other Mars-stationed property stretches the limits of believability a bit. And, even if he technically qualifies as a space pirate while travelling to the other vessel, once he gets there and asks NASA politely, he would probably lose technical pirate status.

Is any of this important?

Maybe. Though the current space race isn’t furiously driven like the furious Cold War days, space is becoming ever more crowded as more nations and even private companies enter the game. Even Andy Weir himself admits in a website Q&A that advances in technology since the 60’s make it less justifiable to risk human life to gain scientific data that robots can gather just as easily. It seems like the focus of space law, for the time being, will be a little closer to home. For an in-depth examination of some legal issues surrounding allocation of geostationary orbits, see MJLST Editor Ian Blodger’s article in the upcoming Winter 2016 issue of MJLST.
tl;dr: The legal issue of space piracy may all be just a nerdy thought experiment for the moment. If nothing else, this article should provide you with an interesting conversation starter at the holidays, and a perfect way to change the subject when your non-lawyer relatives start pontificating about the real meaning of the Second Amendment. For now: live long and prosper.

The TPP – Commercial or Foreign Policy Victory?

October 28, 2015
Competition, Economics, International Law

Jing Han, MJLST Staffer

The Trans-Pacific Partnership (TPP) is a proposed trade among twelve Pacific Rim countries, which are Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, United States, Singapore and Vietnam, concerning a variety of matters of economic policy, about which agreement was reached on October 5, 2015 after 5 years of negotiations. The 12 countries including the United States of America have agreed to build a new cooperation structure through this agreement. TPP’s 30 chapters have set binding rules on everything from service-sector regulation, investment, patents and copyrights, government procurement, financial regulation, and labor and environmental standards, as well as trade in industrial goods and agriculture. The combined Gross Domestic Product-GDP of the world’s largest pact of these 12 countries is nearly 28 trillion dollars. Those dozen states account for roughly forty percent of global gross domestic product, thirty percent of global exports and twenty-five percent of global imports.

Some people believe that one of the reasons for the recent push for new trade initiatives is a feeling that the WTO system is not working. This view is probably not an uncommon one. But is it correct? It is worth looking at just what the WTO does, and how it compares to the TPP as a possible alternative trade agreement and organization.

First, all 159 WTO members have made promises not to charge tariffs above rates that are set out in legally binding schedules. The TPP does have the potential to go further than the WTO in terms of tariff reductions and services liberalization. Of course, such commitments would be preferential, only given to a handful of trading partners, and thus would not be truly free trade. There are significant economic benefits to having free trade cover as many countries as possible, including the avoidance of complex and trade-restricting rules of origin.

Second, WTO rules also discipline special tariffs imposed against dumping and subsidies. Through the WTO, these tariffs are subject to detailed rules to prevent them from being abused, which they frequently have been over the years. The TPP will not address anti-dumping/countervailing duties or subsidies at all. And the WTO’s rules on regulatory protectionism are already working quite well, so it is difficult to imagine what the TPP would do in this regard.

Third, WTO rules govern customs procedures, including valuation and classification issues, to prevent these procedures from being used as a disguised means of protection. Furthermore, WTO rules include general prohibitions on using domestic regulations and taxes for protectionist purposes. The WTO’s jurisprudence on these issues is widely respected, and WTO rulings have addressed a range of regulatory protectionism. The TPP would also go beyond the WTO in areas such as intellectual property protection, foreign investment protection, and environmental and labor regulation. But further is not necessarily better. These items have been added to the trade agenda to drum up new support. However, they have also stirred up a good deal of new opposition, and made trade negotiations more complex and difficult.

Fourth, Congress recognized “the growing significance of the Internet as a trading platform in international commerce” and instructed President Obama to achieve objectives concerning digital trade in goods and services and cross-border data flows. The Obama administration wants “digital trade rules-of-the-road” in the TPP agreement. These rules could mark a turning point in the global governance of digital commerce. The importance of digital technologies to trade has grown without multilateral rules keeping pace. The WTO is the main source of multilateral trade agreements, but it was established before the Internet transformed how companies produce, sell, and deliver products and services. In a declaration of 1998, WTO members agreed not to impose customs duties on electronic transactions and recognized the need to address e-commerce directly. However, the WTO’s e-commerce work program has not progressed much because WTO members disagree on various issues.

Fifth, beyond the commercial implications, many experts regard the TPP as a key part of American foreign policy. Amid the rise of China and its increasing exercise of political and military power in East Asia, the Obama administration has said it would turn its attention more to the East, the so-called pivot to Asia, in an effort to strengthen U.S influence in that region. The challenge for China, should it wish to join the TPP, is undertaking the reforms that the agreement would require. For instance, joining TPP will require opening markets in areas such as services and investment and agreeing to new rules in sensitive areas such as the role of state-owned enterprises and access to the Internet. That said, many of the reforms that becoming a TPP party would require are consistent with the internal reforms that China has already identified as being necessary, including reform of its financial sector, strengthening the role of services in the Chinese economy, and encouraging innovation.

In sum, The WTO is an excellent system. Its great strength is its multilateral framework, incorporating most of the world’s nations. However, with the advent of the 21st century, the limits of the WTO’s functions have become increasingly apparent. The Doha Round, marked by conflict between the opinions of developed and emerging nations and the subsequent stalling of negotiations, stands as a symbol of these limits. With more nations participating and more comprehensive liberalization being pursued, it is unavoidable that negotiations will face difficulties. In relation to the TPP, a former senior U.S. official is said to have commented that the U.S. sought to demonstrate its level of commitment to the Asia-Pacific region through its active involvement in the agreement negotiations. The Asia-Pacific region is becoming increasingly important to the U.S., and this fact is manifested in the nation’s initiatives in relation to the TPP. In this respect, the TPP has more political implications compared with its commercial considerations.

UN Countries Strive to Develop Legal Framework for Climate Deal

October 28, 2015
Energy Law, Environmental Law, International Law

Vinita Banthia, MJLST Articles Editor

In December 2009, over a 100 world leaders gathered in Copenhagen, Denmark for the United Nations Climate Change Conference, which included the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC), and the 5th Conference of the Parties for the Meeting of the Parties to the Kyoto Protocol (COP/MOP 5). The international gathering culminated in the “Copenhagen Accord,” which member countries of the UNFCCC agreed generally to “take note of,” but failed to promise more substantial action.

While the Accord endorsed the Kyoto Protocol and included specific omission reduction targets for some countries, it did not set out any legal framework or structure for the enforcement of these guidelines. Developed countries agreed to provide $100 billion per year by 2020 to developing countries for climate improvement. Again, however, no strategy was developed for the implementation of this funding, and countries continue to disagree on the amount and sourcing of the funds.

Fast forward six years later to the meeting in Bonn, Germany last week, where delegations convened once again to negotiate an international climate agreement. In December, the delegations will reconvene in Paris for the 21st Conference of the Parties to the UNFCCC to further discuss the terms of an international climate deal, and ideally, all 195 attending countries will adopt it. However, many of the issues that prevented a deal from being developed in Copenhagen continue to haunt current discussions.

Frist, developing countries are concerned about the amount of funding developed countries are willing to provide for their transition to clean and sustainable energy sources. In addition, most countries are hesitant to agree to a predetermined emissions reduction target and prefer a self-guided, non-legally-binding requirement that is informally tracked. The members in attendance at the climate conference in Bonn took this strategy and allowed countries to determine their own emissions goals. These compromises allowed the nations to conclude the Bonn meeting with a draft agreement that is predicted to be more successful than the Copenhagen Accord, during the final round of negotiations in Paris. However, it will be important for nations to avoid the temptations of diluting the provisions too much to gain approval of a large number of nations. Instead, nations should take a more heavy-handed approach to ensure important actions are taken, while implementing a legal structure to enforce the provisions of any final agreement.

E.C.J Leaves U.S. Organizations to Search for Alternative Data Transfer Channels

October 20, 2015
Cyber Security, Data, EU Law

J. Adam Sorenson, MJLST Staffer

The Court of Justice of the European Union (E.C.J.), the European’s top court, immediately invalidated a 15-year-old U.S. EU Safe Harbor Program Oct. 6th (Schrems v. Data Prot. Comm’r, E.C.J., No. C-362/14, 10/6/15). This left the thousands of businesses which use this program without a reliable and lawful way to transfer personal data from the European Economic Area to the United States.

The Safe Harbor Program was developed by the U.S. Department of Commerce in consultation with the European Commission. It was designed to provide a streamlined and cost-effective means for U.S. organizations to comply with the European Commission’s Directive on Data Protection (Data Protection Directive) which went into effect October of 1998. The program allowed U.S. organizations to voluntarily join and freely transfer personal data out of all 28 member states if they self-certify and comply with the programs 7 Safe Harbor Privacy Principles. The program was enforced by the U.S. Federal Trade Commission. Schrems v. Data Prot. Comm’r, however, brought a swift halt to the program.

This case revolves around Mr. Schrems, an Australian Facbook user since 2008 living in Austria. Some or all of the data collected by the social networking site Facebook is transferred to servers in the United States where it undergoes processing. Mr. Schrems brought suit against the Data Protection Commissioner after he did not exercise his statutory authority to prohibit this transfer. The case applied to a 2000 decision by the European Commission which found the program provided adequate privacy protection and was in line with the Data Protection Directive. The directive prohibits “transfers of personal data to a third country not ensuring an adequate level of protection.”(Schrems) The directive goes on to say that adequate levels may be inferred if a third country ensures an adequate level of protection.

The E.C.J. found that the current Safe Harbor Program did not ensure an adequate level of protection, and therefore found the 2000 decision and the program itself as invalid. This means all U.S. organizations currently transferring personal data out of the EEA are doing so in violation of the Data Protection Directive. This case requires U.S. organizations to find alternative methods of approved data transfer, which generally means seeking the approval of data protection authorities in the EU, which can be a long process.

Although the EU national data protection authorities may allow for some time before cracking down on these U.S. organization, this decision signals a massive shift in the way personal data is transferred between the U.S. and Europe, and will most likely have ripple effects throughout the data privacy and data transfer worlds.

Supreme Court Denies Request to Review FISC Court Order.

December 7, 2013
Forensics, International Law, Litigation, Privacy

by Erin Fleury, UMN Law Student, MJLST Staff

Last week, the Supreme Court denied a petition requesting a writ of mandamus to review a decision that ordered Verizon to turn over domestic phone records to the National Security Administration (“NSA”) (denial available here). The petition alleged that the Foreign Intelligence Surveillance Court (“FISC”) exceeded its authority because the production of these types of records was not “relevant to an authorized investigation . . . to obtain foreign intelligence information not concerning a United States person.” 50 U.S.C. § 1861(b)(2)(A).

The Justice Department filed a brief with the Court that challenged the standing of a third party to request a writ of mandamus from the Supreme Court for a FISC decision. The concern, however, is that telecommunication companies do not adequately fight to protect their users’ privacy concerns. This apprehension certainly seems justified considering the fact that no telecom provider has yet challenged the legality of an order to produce user data. Any motivation to fight these orders for data is further reduced by the fact that telecommunication companies can obtain statutory immunity to lawsuits by their customers based on turning over data to the NSA. 50 USC § 1885a. If third parties cannot ask a higher court to review a decision made by the FISC, then the users whose information is being given to the NSA may have their rights limited without any recourse short of legislative overhaul.

Unfortunately, like most denials for hearing, the Supreme Court did not provide its reasoning for denying the request. The question remains though; if the end users cannot object to these orders (and may not even be aware that their data was turned over in the first place), and the telecommunication companies have no reason to, is the system adequately protecting the privacy interests of individual citizens? Or can the FISC operate with impunity as long as the telecom carriers do not object?

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