Litigation

Reloaded: What’s Next for Guns After Cargill & Rahimi?

December 5, 2024
Constitutional Law, Litigation, Public Safety, Second Amendment, Weapon Law

Evan Bracewell, MJLST Staffer

In 2024, the Supreme Court released two major opinions related to gun safety laws, United States v. Rahimi and Garland v. Cargill.[1] Rahimi involved what types of people can possess guns.[2] Cargill involved what types of guns (or more accurately gun technology) people can possess.[3] In Cargill, the Supreme Court struck down an ATF rule that banned bump stocks.[4] A bump stock is an attachment added to a gun which uses the momentum of the gun’s kick to bump the gun between the shooter’s shoulder and trigger finger back and forth causing an increased fire rate.[5] To some, this signaled “another example of the [C]ourt’s hostility towards gun regulation in general.”[6] However, one week after Cargill was decided, the Court ruled in favor of a federal gun safety law in U.S. v. Rahimi. In Rahimi, the Court upheld a federal statute that “prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he ‘represents a credible threat to the physical safety of [an] intimate partner,’ or a child of the partner or individual.”[7]

These two cases were the first major rulings on gun safety from the Supreme Court since it established the Bruen framework for handling gun control laws.[8] In New York State Rifle & Pistol Ass’n v. Bruen, the Court held “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[9] This means that for cases where someone is alleging a law has violated a citizen’s Second Amendment rights, in order for the law to survive, judges must find a comparison for the modern law in American regulatory traditions. Following the Bruen framework, uncertainty and confusion spread across the lower courts tasked with applying the historical comparison to modern statutes.[10] Because Cargill concerned an ATF regulation over whether a bump stock fits into the definition of machine guns and was not a Second Amendment challenge, it did not employ the Bruen framework.[11] Rahimi, however, was the Court’s chance to clarify the Bruen test—a chance some say it failed to capitalize on.[12]

The Bruen analysis has received criticism from a wide range of judges.[13] A common issue brought up with Bruen is that it demands judges to be historical researchers and experts and make fact finding on the history of gun control laws.[14] This can result in unpredictable and inconsistent results.[15] Other judges have pointed out that the test may entrench gun laws in the past without any room for modern solutions.[16] The Bruen test has left some judges scratching their heads over history textbooks. When it is combined with the differing outcomes of Cargill and Rahimi, the future of gun laws appears cloudy. On the other hand, it also makes upcoming gun cases potentially incredibly impactful.

Looking ahead, the next significant Supreme Court case on the topic might already be in motion. A petition for certiorari in Bianchi v. Brown has been filed and if granted could be a pivotal decision for gun safety.[17] In Bianchi, the Fourth Circuit recently re-evaluated Maryland’s state law that generally prohibits the sale and possession of assault weapons through a Bruen analysis.[18] The majority decided the law was constitutional because the assault weapons specifically restricted by it are not protected by the Second Amendment and, even if they were, there is a “historical tradition of restricting the use and possession of weapons exceptionally dangerous to civilians.”[19] The Fourth Circuit ultimately upheld a strict gun technology law even in a post-Bruen world.

If the Supreme Court chooses to hear this case, the resulting decision could produce monumental shockwaves for gun laws. Eight other states have adopted assault weapon bans similar to Maryland’s,[20] and an opinion upholding the ban might spark more states to adopt a similar statute. Not to mention, it could demonstrate how the judicial branch may approach a federal ban on assault weapons.[21] The Supreme Court striking down the ban would be a major obstruction to the potential for future strict gun control laws. If the case is heard, hopefully the Supreme Court will use the opportunity to clarify the “labyrinth”[22] that is Bruen which could allow for more predictability in legislating gun technology and safety.

The difference in the rulings of Rahimi and Cargill could be viewed as the Court being more comfortable with laws regulating who can possess guns than rules regulating what gun technology people can possess. Viewing Bianchi through that lens, the Maryland statute may be deemed unconstitutional because it is a ban on guns, not a ban on who can possess guns. However, the Supreme Court could appreciate the Fourth Circuit’s examination of the law under the Bruen framework and comparison to 18th and 19th century regulations of “pistols, bowie knives, brass knuckles, and sand clubs, among other weapons” as excessively dangerous to the public.[23]

Bianchi is not the only case on the horizon for gun laws. “[E]ven if the Court declines to take up the pending [Bianchi v. Brown] petition, it will almost certainly see more petitions soon.”[24] The next major gun technology case will be decided by the Supreme Court this term in Garland v. VanDerStok. That case concerns a “federal rule regulating so-called ‘ghost guns’” which are “untraceable weapons without serial numbers, assembled from components or kits that can be bought online.”[25] Other future gun cases could concern a recently overturned Illinois state law banning certain assault weapons,[26] the minimum age to purchase guns,[27] Connecticut’s ban on assault rifles and large-capacity magazines,[28] or red flag laws that allow a law enforcement agency to temporarily prevent someone deemed an extreme risk from possessing guns.[29]

“Rahimi’s greatest takeaway is likely that the court faces a challenging landscape ahead, which it will have to wade through largely on a case-by-case basis.”[30] The Supreme Court could use a case like Bianchi to clarify the post-Bruen world, bring a sliver of stability to gun laws, and maybe even alleviate the concerns of judges nationwide entrenched in history books.

 

Notes

[1] United States v. Rahimi, 144 S. Ct. 1889 (2024); Garland v. Cargill, 602 U.S. 406 (2024).

[2] See Rahimi, 144 S. Ct. at 1894.

[3] See Cargill, 602 U.S. at 410.

[4] Id. at 415.

[5] Larry Buchanan et al., What Is a Bump Stock and How Does It Work?, N.Y. Times, https://nyti.ms/43NEi6b (last updated June 14, 2024).

[6] Joel Brown, Supreme Court Strikes Down Ban on Gun Bump Stocks, BU Today (June 14, 2024) https://www.bu.edu/articles/2024/supreme-court-strikes-down-ban-on-gun-bump-stocks/ (quoting Cody Jacobs, a Boston University School of Law lecturer).

[7] Rahimi, 144 S. Ct. at 1894 (referencing 18 U.S.C. § 922(g)(8)).

[8] See Michael McCarthy, Justices’ 1st Post-Bruen Gun Ruling Provides Little Guidance, Law360 (June 28, 2024, 4:41 PM), https://www.law360.com/articles/1852462/justices-1st-post-bruen-gun-ruling-provides-little-guidance.

[9] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2024).

[10] Dave S. Sidhu, Cong. Rsch. Serv., LSB11219, Divided En Banc Federal Appeals Court Rejects Second Amendment Challenge to Maryland’s Ban on “Assault Weapons” 3 (2024) (“Six judges joined the majority opinion in full but wrote separately to highlight the ‘confusion’ that lower courts are experiencing in applying Bruen.”).

[11] Garland v. Cargill, 602 U.S. 406 (2024).

[12] Adam Liptak, Supreme Courtʼs Gun Rulings Leave Baffled Judges Asking for Help, N.Y. Times (Sept. 23, 2024), https://www.nytimes.com/2024/09/23/us/supreme-court-guns-second-amendment.html (“Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, ‘offered little instruction or clarity.’”).

[13] Clara Fong et al., Judges Find Supreme Court’s Bruen Test Unworkable, Brennan Ctr. for Just. (June 26, 2023), https://www.brennancenter.org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable (“In the short time since Bruen was issued, federal judges appointed by Presidents Reagan, Clinton, George W. Bush, Obama, Trump, and Biden have all questioned the opinion.”).

[14] Id.; Liptak, supra note 12 (Quoting Judge Pamela Harris speaking at a conference and describing the issue of receiving two competing briefs where one says something happened in history and the other claims it did not happen).

[15] United States v. Bartucci, 658 F. Supp. 3d 794, 800 (2023) (“In the short time post-Bruen, this has caused disarray among the lower courts when applying the new framework.”).

[16] See Worth v. Harrington, 666 F. Supp. 3d 902, 926 (2023) (“Second Amendment jurisprudence now focuses a lens entirely on the choices made in a very different time, by a very different American people.”); Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3 (“More broadly, the six judges cautioned that overemphasizing the importance of historical analogues may ‘fossilize’ modern legislative attempts and ‘paralyze’ democratic efforts.”).

[17] Andrew Willinger, An Update on Challenges to State Assault Weapon and Magazine Bans, Duke Ctr. for Firearms L. (Nov. 6, 2024), https://firearmslaw.duke.edu/2024/11/an-update-on-challenges-to-state-assault-weapon-and-magazine-bans. It should be noted that the case will be re-named Snope v. Brown if the Supreme Court decides to hear it but Bianchi is used throughout this blog post to avoid confusion.

[18] Bianchi v. Brown, 111 F.4th 438, 442 (4th Cir. 2024) (en banc) (referencing Md. Code Ann., Crim. Law § 4-303 (West 2018)) (“The statute defines ‘assault weapon’ as ‘(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon.’”).

[19] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.

[20]Which States Prohibit Assault Weapons?, Everytown Rsch. & Pol’y, https://everytownresearch.org/rankings/law/assault-weapons-prohibited/ (last updated Jan. 4, 2024).

[21] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 4. (“Judicial evaluations of similar state bans, like Maryland’s, under the Second Amendment may provide an indication of how a federal ban could fare in the courts.”).

[22] Bianchi, 111 F.4th at 473–74 (Diaz, C.J., concurring) (“Bruen has proven to be a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”).

[23] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.

[24] Willinger, supra note 17. The Court remanded several cases after Rahimi that could eventually make their way back to the Supreme Court. These cases involve prohibitions on gun possession by certain nonviolent offenders of crimes, certain drug users, and certain people with felony convictions. Dave S. Sidhu, Cong. Rsch. Serv., LSB1108, The Second Amendment at the Supreme Court: Challenges to Federal Gun Laws 2–4 (2024).

[25] Amy Howe, Court Likely to Let Biden’s “Ghost Gun” Regulation Stand, SCOTUSblog (Oct. 8, 2024, 5:07 PM), https://www.scotusblog.com/2024/10/court-likely-to-let-bidens-ghost-gun-regulation-stand/.

[26] Lauren Berg, Ill. Assault Rifle Ban Struck As Unconstitutional, AG To Appeal, Law360 (Nov. 8, 2024, 11:44 PM), https://www.law360.com/articles/2259026/ill-assault-rifle-ban-struck-as-unconstitutional-ag-to-appeal.

[27] Daniel Ducassi, 10th Circ. Backs Colorado Age Limits For Gun Buyers, Law360 (Nov. 6, 2024, 10:43 PM), https://www.law360.com/articles/2257228/10th-circ-backs-colorado-age-limits-for-gun-buyers.

[28] Aaron Keller & Brian Steele, 2nd Circ. Scrutinizes Conn. Restrictions On AR-15s, Law360 (Oct. 16, 2024, 8:39 PM), https://www.law360.co.uk/articles/1890635/2nd-circ-scrutinizes-conn-restrictions-on-ar-15s.

[29] George Woolston, Attorney Says NJ Red Flag Law Violates 2nd Amendment, Law360 (Oct. 28, 2024, 4:57 PM), https://www.law360.com/pulse/articles/2252661/attorney-says-nj-red-flag-law-violates-2nd-amendment.

[30] McCarthy, supra note 8.

Modern Misinformation: Tort Law’s Limitations

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

Anzario Serrant, MJLST Staffer

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

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

The Legal Challenge

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

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

Fraudulent Misrepresentation and Disinformation

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

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

Conscious misrepresentation involving risk of physical harm (CMIRPH)

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

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

Negligent misrepresentation and Misinformation

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

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

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

Negligent misrepresentation involving risk of physical harm (NMIRPH)

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

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

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

The Role of Social Media Platforms

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

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

Conclusion

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

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

 

Notes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Enriching and Undermining Justice: The Risks of Zoom Court

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

Matthew Prager, MJLST Staffer

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

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

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

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

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

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

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

Notes

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

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

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

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

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

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

[7] Id.

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

[9] Id.

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

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

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

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

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

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

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

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

Claire Carlson, MJLST Staffer

 

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

 

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

 

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

 

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

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

 

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

 

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

 

Notes

 

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

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

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

[4] Miller, supra note 3.

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

[6] 47 U.S.C. § 230 (2018).

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

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

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

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

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

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

[13] Miller, supra note 3.

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

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

[16] Miller, supra note 3.

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

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

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

[20] Miller, supra note 3.

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

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

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

You Can Protect Your Data . . . Once.

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

Jessica Schmitz, MJLST Staffer

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

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

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

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

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

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

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

BIPA Reforms Mark a Trend Towards Laxing Corporate Responsibility

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

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

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

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

 

Notes

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

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

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

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

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

[6] Id. at sec. 15b.

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

[8] Id. at sec. 15e.

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

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

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

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

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

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

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

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

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

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

[19] Gross, supra note 2.

[20] Id.

Generate a JLST Blog Post: In the Absence of Regulation, Generative AI May Be Reigned in Through the Courts

April 13, 2023
Artificial Intelligence, Copyrights, Inventions, Litigation

Ted Mathiowetz, MJLST Staffer

In the space of a year, artificial intelligence (AI) has seemed to have grabbed hold of the contemporary conversation of technology and calls for increased regulation. With ChatGPT’s release in late-November of 2022 as well as the release of various other art generation softwares earlier in the year, the conversation surrounding tech regulation was quickly centered onto AI. In the wake of growing Congressional focus over AI, the White House quickly proposed a blueprint for a preliminary AI Bill of Rights as fears over unregulated advances in technology have grown.[1] The debate has raged on over the potential efficacy of this Bill of Rights and if it could be enacted in time to reign in AI development.[2] But, while Washington weighs whether the current regulatory framework will effectively set some ground rules, the matter of AI has already begun to be litigated.[3]

The growing fear over the power of AI has been mounting in numerous sectors as ChatGPT has proven its capabilities to pass exams such as the Multistate Bar Exam,[4] the US Medical Exam, and more.[5] Fears over AI’s capabilities and potential advancements are not just reaching academia either. The legal industry is already circling the wagons to prevent AI lawyers from representing would-be clients in court.[6] Edelson, a law firm based in Chicago, filed a class action complaint in California state court alleging that DoNotPay, an AI service that markets itself as “the world’s first robot lawyer” unlawfully provides a range of legal services.[7] The complaint alleges that DoNotPay is engaging in unlawful business practice by “holding itself out to be an attorney”[8] and “engaging in the unlawful practice of law by selling legal services… when it was not licensed to practice law.”[9]

Additional litigation has been filed against the makers of AI art generators, alleging copyright violations.[10]  The plaintiffs argue that a swath of AI firms have violated the Digital Millennium Copyright Act in constructing their AI models by using software that copied millions of images as a reference for the AI in building out user-requested images without compensation for those whose images were copied.[11] Notably, both of these suits are class-action lawsuits[12] and may serve as a strong blueprint for how weary parties can reign in AI through the court system.

Faridian v. DONOTPAY, Inc. — The Licensing Case

AI is here to stay for the legal industry, for better or worse.[13] However, where some have been sounding the alarm for years that AI will replace lawyers altogether,[14] the truth is likely to be quite different, with AI becoming a tool that helps lawyers become more efficient.[15] There are nonetheless existential threats to the industry as is seen in the Faridian case whereby DoNotPay is allowing people to write wills, contracts, and more without the help of a trained legal professional. This has led to shoddy AI-generated work, which creates concern that AI legal technology will likely lead to more troublesome legal action down-the-line for its users.[16]

It seems as though the AI Lawyer revolution may not be around to stay much longer as, in addition to the Faridian case, which sees DoNotPay being sued for their robot lawyer mainly engaging in transactional work, they have also run into problems trying to litigate. DoNotPay tried to get their AI Attorney into court to dispute traffic tickets and were later “forced” to withdraw the technology’s help in court after “multiple state bar associations [threatened]” to sue and they were cautioned that the move could see potential prison time for the CEO, Joshua Browder.[17]

Given that most states require applicants to the bar to 1) complete a Juris Doctor program from an accredited institution, 2) pass the bar exam, and 3) pass moral character evaluations in order to practice law, it’s rather likely that robot lawyers will not see a courtroom for some time, if ever. Instead, there may be a pro se revolution of sorts wherein litigants aid themselves with the help of AI legal services outside of the courtroom.[18] But, for the most part the legal field will likely incorporate AI into its repository of technology rather than be replaced by it. Nevertheless, the Faridian case, depending on its outcome, will likely provide a clear path forward for occupations with extensive licensing requirements that are endangered by AI advancement to litigate.

Sarah Andersen et al., v. Stability AI Ltd. — The Copyright Case

For occupations which do not have barriers to entry in the same way the legal field does, there is another way forward in the courts to try and stem the tide of AI in the absence of regulation. In the Andersen case, a class of artists have brought suit against various AI Art generation companies for infringing upon their copyrighted artwork by using their work to create the reference framework for their generated images.[19] The function of the generative AI is relatively straightforward. For example, if I were to log-on to an AI art generator and type in “Generate Lionel Messi in the style of Vincent Van Gogh” it would produce an image of Lionel Messi in the style of Van Gogh’s “Self-Portrait with a Bandaged Ear.” There is no copyright on Van Gogh’s artwork, but the AI accesses all kinds of copyrighted artwork in the style of Van Gogh for reference points as well as copyrighted images of Lionel Messi to create the generated image. The AI Image services have thus created a multitude of legal issues that their parent companies face including claims of direct copyright Infringement by storing copies of the works in building out the system, vicarious copyright Infringement when consumers generate artwork in the style of a given artist, and DMCA violations by not properly attributing existing work, among other claims.[20]

This case is being watched and is already being hotly debated as a ruling against AI could lead to claims against other generative AI such as ChatGPT for not properly attributing or paying for material that it’s used in building out its AI.[21] Defendants have claimed that the use of copyrighted material constitutes fair use, but these claims have not yet been fully litigated, so we will have to wait for a decision to come down on that front.[22] It is clear that as fast as generative AI seemed to take hold of the world, litigation has ramped up calling its future into question. Other world governments are also becoming increasingly weary of the technology, with Italy already banning ChatGPT and Germany heavily considering it, citing “data security concerns.”[23] It remains to be seen how the United States will deal with this new technology in terms of regulation or an outright ban, but it’s clear that the current battleground is in the courts.

Notes

[1] See Blueprint for an AI Bill of Rights, The White House (Oct. 5, 2022), https://www.whitehouse.gov/ostp/ai-bill-of-rights/; Pranshu Verma, The AI ‘Gold Rush’ is Here. What will it Bring? Wash. Post (Jan. 20, 2023), https://www.washingtonpost.com/technology/2023/01/07/ai-2023-predictions/.

[2] See Luke Hughest, Is an AI Bill of Rights Enough?, TechRadar (Dec. 10, 2022), https://www.techradar.com/features/is-an-ai-bill-of-rights-enough; see also Ashley Gold, AI Rockets ahead in Vacuum of U.S. Regulation, Axios (Jan. 30, 2023), https://www.axios.com/2023/01/30/ai-chatgpt-regulation-laws.

[3] Ashley Gold supra note 2.

[4] Debra Cassens Weiss, Latest Version of ChatGPT Aces Bar Exam with Score nearing 90th Percentile, ABA J. (Mar. 16, 2023), https://www.abajournal.com/web/article/latest-version-of-chatgpt-aces-the-bar-exam-with-score-in-90th-percentile.

[5] See e.g., Lakshmi Varanasi, OpenAI just announced GPT-4, an Updated Chatbot that can pass everything from a Bar Exam to AP Biology. Here’s a list of Difficult Exams both AI Versions have passed., Bus. Insider (Mar. 21, 2023), https://www.businessinsider.com/list-here-are-the-exams-chatgpt-has-passed-so-far-2023-1.

[6] Stephanie Stacey, ‘Robot Lawyer’ DoNotPay is being Sued by a Law Firm because it ‘does not have a Law Degree’, Bus. Insider(Mar. 12, 2023), https://www.businessinsider.com/robot-lawyer-ai-donotpay-sued-practicing-law-without-a-license-2023-3

[7] Sara Merken, Lawsuit Pits Class Action Firm against ‘Robot Lawyer’ DoNotPay, Reuters (Mar. 9, 2023), https://www.reuters.com/legal/lawsuit-pits-class-action-firm-against-robot-lawyer-donotpay-2023-03-09/.

[8] Complaint at 2, Jonathan Faridian v. DONOTPAY, Inc., Docket No. CGC-23-604987 (Cal. Super. Ct. 2023).

[9] Id. at 10.

[10] Riddhi Setty, First AI Art Generator Lawsuits Threaten Future of Emerging Tech, Bloomberg L. (Jan. 20, 2023), https://news.bloomberglaw.com/ip-law/first-ai-art-generator-lawsuits-threaten-future-of-emerging-tech.

[11] Complaint at 1, 13, Sarah Andersen et al., v. Stability AI Ltd., et al., Docket No. 3:23-cv-00201 (N.D. Cal. 2023).

[12] Id. at 12; Complaint at 1, Jonathan Faridian v. DONOTPAY, Inc., Docket No. CGC-23-604987 (Cal. Super. Ct. 2023).

[13] See e.g., Chris Stokel-Walker, Generative AI is Coming for the Lawyers, Wired (Feb. 21, 2023), https://www.wired.com/story/chatgpt-generative-ai-is-coming-for-the-lawyers/.

[14] Dan Mangan, Lawyers could be the Next Profession to be Replaced by Computers, CNBC (Feb.17, 2017), https://www.cnbc.com/2017/02/17/lawyers-could-be-replaced-by-artificial-intelligence.html.

[15] Stokel-Walker, supra note 13.

[16] Complaint at 7, Jonathan Faridian v. DONOTPAY, Inc., Docket No. CGC-23-604987 (Cal. Super. Ct. 2023).

[17] Debra Cassens Weiss, Traffic Court Defendants lose their ‘Robot Lawyer’, ABA J. (Jan. 26, 2023), https://www.abajournal.com/news/article/traffic-court-defendants-lose-their-robot-lawyer#:~:text=Joshua%20Browder%2C%20a%202017%20ABA,motorists%20contest%20their%20traffic%20tickets..

[18] See Justin Snyder, RoboCourt: How Artificial Intelligence can help Pro Se Litigants and Create a “Fairer” Judiciary, 10 Ind. J.L. & Soc. Equality 200 (2022).

[19] See Complaint, Sarah Andersen et al., v. Stability AI Ltd., et al., Docket No. 3:23-cv-00201 (N.D. Cal. 2023).

[20] Id. at 10–12.

[21] See e.g., Dr. Lance B. Eliot, Legal Doomsday for Generative AI ChatGPT if Caught Plagiarizing or Infringing, warns AI Ethics and AI Law, Forbes (Feb. 26, 2023), https://www.forbes.com/sites/lanceeliot/2023/02/26/legal-doomsday-for-generative-ai-chatgpt-if-caught-plagiarizing-or-infringing-warns-ai-ethics-and-ai-law/?sh=790aecab122b.

[22] Ron. N. Dreben, Generative Artificial Intelligence and Copyright Current Issues, Morgan Lewis (Mar. 23, 2023), https://www.morganlewis.com/pubs/2023/03/generative-artificial-intelligence-and-copyright-current-issues.

[23] Nick Vivarelli, Italy’s Ban on ChatGPT Sparks Controversy as Local Industry Spars with Silicon Valley on other Matters, Yahoo! (Apr. 3, 2023), https://www.yahoo.com/entertainment/italy-ban-chatgpt-sparks-controversy-111415503.html; Adam Rowe, Germany might Block ChatGPT over Data Security Concerns, Tech.Co (Apr. 3, 2023), https://tech.co/news/germany-chatgpt-data-security.

Reckless, Wanton or Willful: Is Firing a “Cold Gun” Criminally Negligent?

March 31, 2023
Criminal Law, Litigation

Ben Lauter, MJLST Staffer

On October 21st, 2021, Alec Baldwin shot Halyna Hutchinson, ending her life. This tragedy was the result of Baldwin’s belief that in his hand at the time was a “cold gun.” In movie making, a cold gun is known to be a gun that does not have any live ammunition in it, or ammunition capable of endangering livelihood. Baldwin believed that he held a “cold gun” because that was what he was told when he was handed the weapon on set. He was given this disclaimer by the first director of the film, not the film’s armorer. After being handed the gun, Baldwin did not take any additional steps to confirm that the gun was indeed “cold.” Moments later, Baldwin triggered the gun to release a round striking Hutchinson and injuring another.

After this tragic event the State of New Mexico decided to bring the criminal charge of involuntary manslaughter against Baldwin and the film’s armorer, Hannah Gutierrez-Reed (the assistant director took a plea bargain and accepted probation). Both defendants are being charged with two different forms of involuntary manslaughter, one with a firearm enhancement and the other without the enhancement. This blog post will specifically examine the likely outcome for Alec Baldwin under New Mexico’s involuntary manslaughter statutes. As for Gutierrez-Reed, the suspicion is that she could be convicted on the charges brought against her given the nature of her career and alleged expertise.

The first thing to look at is the manslaughter statute and interpreting it. The passage dealing with involuntary manslaughter is Chapter 30, Article 2, Section 30-2-3. The passage codifies what is criminal when there is an unintentional homicide. The statute has different criteria for conviction depending on the conditions going on when the homicide took place. The different criteria is assigned based on if the death took place during lawful or unlawful acts.

The difference between the two is whether the defendant was doing something legal or illegal at the time they unintentionally killed someone. For example, if someone was robbing a bank and unintentionally killed someone during that time, the robber would be, at a minimum, charged with unlawful manslaughter. However, if the homicide happens in an environment where the individual is not doing anything illegal, such as driving the speed limit down the road, the charge would be lawful manslaughter. Determining whether it is lawful or unlawful manslaughter is a critical step because it determines the standard by which the defendant will be held.

In unlawful manslaughter cases, the standard the prosecution must meet is simply proving that the defendant intended to carry out the unlawful act – it would not matter if the homicide was intentional whatsoever. In a lawful manslaughter case, the standard switches to criminal negligence. Criminal negligence requires a demonstration of acting without due caution and circumspection, and/or conduct that is reckless, wanton, or willful. This standard is harder for the prosecution to prove. Essentially, a criminal negligence standard requires a conscious disregard of safety, not just a failure of reasonable care. The prosecution would have to find that Baldwin and/or Guitierrez-Reed didn’t only act with unreasonable care, which is easier, but that they consciously disregarded the safety of others when they handed, and when they used, the “cold gun.”

Applied to the case of Alec Baldwin v. New Mexico, it is likely that Baldwin will walk away without a guilty conviction. This is because Baldwin’s actions do not meet the standards to be found guilty of any form of manslaughter. First, Baldwin’s actions do not reach the strict liability threshold attached with an unlawful manslaughter charge because Baldwin was not engaged in any illegal acts at the time the homicide took place. He was on set of the film he was acting in, and taking actions necessary to make that film. Thus the State will attempt to convict Baldwin by arguing he committed involuntary manslaughter during a lawful act, which carries a criminal negligence standard. Criminal negligence, the term of art used in the statute, is frankly a misguided and confusing standard to use seeing as the common law interpretation of the statute is not a negligence standard at all. Criminal negligence is a reckless, wanton, or willful act. All three necessitate some kind of conscious action. Applied to the facts of the matter, there do not appear to be any details that indicate that Baldwin reflected upon what was going on and fired the gun anyhow. The record seemingly concludes that Baldwin was under the impression that the gun was cold and that he was going to be shooting takes for the scenes of the day. It seems unlikely that a decision-maker could conclude that Baldwin’s action ever amounted to a conscious decision over safety; an unconscious thought perhaps, but a negligent standard is not enough to lead to a conviction in a lawful act manslaughter case. Some additional rationale for the unlikely elevation to conscious disregard or reckless action revolve around the fact that Baldwin is an actor and has precedent for having no reason to believe he would be handed a live gun when he was told it is cold. An actor is considered to rely on the professionals on set.

One fact that may add an additional wrinkle is that on the day in question, instead of being handed the gun from the armorer, Gutierrez-Reed, Baldwin was handed the gun by the assistant director. This difference in protocol might trigger additional requirements for an actor to take additional steps to ensure that the gun was indeed cold, but there is a lack of case law that would suggest that is demanded. In an overall reading of the facts, Baldwin will still likely be acquitted of the charge as he did not act with criminal negligence when he fired the gun that killed Halyna Hutchinson.

Reining in Big Tech

March 31, 2023
Antitrust, Litigation

Shawn Zhang, MJLST Staffer

Introduction

On Tuesday January 24, 2023, the United States Department of Justice, along with the Attorneys General of eight states, have jointly filed a civil antitrust lawsuit against Google for monopolizing multiple digital advertising technology products in violation of Sections 1 and 2 of the Sherman Act.

Background

The Sherman Act (the Act) is the first antitrust statute of the U.S., passed in 1890 as a “comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade.” The alleged violations are for Sections 1 and 2 of the Act.

Section 1 is broad and sweeping in scope. Section 1 declares restraint of trade involving “contract, combination, or conspiracy” to be illegal. A key feature of Section 1 is that the words “contract, combination, or conspiracy” are all concerted actions that require more than one party to engage. Therefore, Section 1 cannot apply to unilateral actions. An example of such concerted action would be horizontal price fixing; multiple competitors in the same market agree with each other to set the same price for a given product. The statute then describes the penalty for violating the Act of being a maximum fine of $100 million for corporations, and/or maximum imprisonment of 10 years.

Section 2, unlike Section 1, prohibits monopolization and the language “every person” indicates that it does not require concerted action. A single entity even attempting to monopolize will be penalized. Concerted actions for monopolization or attempts to monopolize are covered as well by the language “or combine or conspire with any other person or persons.” The penalties for violations of either section can be severe, resulting in massive fines and/or imprisonment. Most enforcement actions are civil, but individuals and businesses may be prosecuted by the Department of Justice. However, criminal prosecutions are typically limited in practice.

Analysis

Google’s business model is driven primarily from their search engine services. The purpose is to deliver users the answers they are seeking. Through this search engine function, Google gains the opportunity to sell advertisements, in which Google earns huge amounts of its revenue from. With its dominance in the search engine industry, Google has obtained dominance in selling advertisements as well.

The complaint alleges that Google monopolizes key digital advertising technologies, collectively referred to as the “ad tech stack,” that website publishers depend on to sell ads. Advertisers rely on this ad tech stack to buy ads and reach potential customers. The complaint also alleges that Google has engaged in a course of anticompetitive and exclusionary conduct over the past 15 years that consists of neutralizing or eliminating ad tech competitors through acquisitions. By doing this, Google has maintained dominance in tools relied on by website publishers and online advertisers. “The Department’s landmark action against Google underscores our commitment to fighting the abuse of market power,” said Associate Attorney General Vanita Gupta. The lawsuit seeks to hold Google accountable for its “longstanding monopolies” in digital advertising technologies that content creators use to sell ads and advertisers use to buy ads on the open internet.

The key contentions to be fought over in this lawsuit includes acquiring competitors, forcing adoption of Google’s tools, distorting auction competition, and auction manipulation. The Act seeks to maintain competition in the markets and eliminate monopolies; the Department of Justice attempts to enforce the spirit of the Act by eliminating the alleged monopolistic behaviors by Google and restoring competition. The agency ultimately seeks both equitable relief on behalf of the American public as well as treble damages for losses sustained by federal government agencies that overpaid for web display advertising.

In light of the developments in antitrust laws, a company must only be found to have violated the statute when it has “engaged in practices that extend beyond competition on the merits.” The plaintiffs must prove that Google’s conduct harms competition, restrains trade, or amounts to monopolization or attempts of monopolization. It is difficult to determine whether Google has engaged in those aforementioned practices, as they could be seen as efficient business conduct. But if the Department of Justice wins the case, it could have huge implications for Google and the rest of the tech industry.

Implications for the Tech Industry

If the Department of Justice succeeds in their lawsuit, Google may face several consequences including divestiture. Microsoft was found to have violated antitrust laws in the late 1990s, and was forced to break up its company into separate companies. Another possible relief would be to force Google to allow other search engines to be the default program for devices including phones and tablets  – which the DOJ has attempted to do in the past. “Alphabet Inc.’s Google pays billions of dollars each year to Apple Inc., Samsung Electronics Co. and other telecom giants to illegally maintain its spot as the No. 1 search engine … Google’s contracts form the basis of the DOJ’s landmark antitrust lawsuit, which alleges the company has sought to maintain its online search monopoly in violation of antitrust laws.”

This case could renew the scrutiny against other tech giants such as Meta and Amazon. If the Department of Justice succeeds, it’s highly likely that they will go after other tech giants as well. The victory of the government may begin an era of tech reform, making it easier for competitors to enter the market and thus offering more options for consumers. Tech giants may be forced to reduce their prices if there are more competitors in the market, which may lead to better consumer welfare.

On the other hand, the government’s victory may harm the tech industry. Google and other tech giants are highly efficient businesses that can provide services for lower costs through economies of scale. By forcing them to split up their companies and preventing them from reaching their efficiencies, their services may become more expensive. However, efficiency is not a justification for monopolies, as monopolies largely bring more harm than benefits to consumers  by being able to impose unreasonably high prices. An example of price gouging due to monopolistic practice was when Martin Shkreli thwarted competition for the drug Daraprim (used to treat HIV patients) and increased prices from $13.50 per pill to $750.00 per pill.

Conclusion

This lawsuit will be watched closely by regulators and tech giants as it could embolden regulators to go after other companies if this attempt is successful.  Regulators are actively looking to rein in big tech companies, as evident by all the antitrust investigations in the past decades, as well as the bill targeting big tech companies currently moving through Congress. The fight between regulators and the tech industry continues, and we look forward to seeing the courts determine a fair ruling that may pave the road for a better economy with greater consumer welfare.

 

Hazardous Train Derailment: How a Poor Track Record for Private Railway Company May Impact Negligence Lawsuit Surrounding Major Incident

March 4, 2023
EPA, Litigation, Public Health, Public Safety, Torts Law, Transportation

Annelise Couderc, MJLST Staffer

The Incident

On Friday, February 3rd a train with about 150 cars, many carting hazardous chemicals, derailed in East Palestine, Ohio. The derailment resulted in the leakage and combustion of an estimated 50 train cars containing chemicals hazardous to both humans and the environment. The mayor of East Palestine, Ohio initially evacuated the city, and neighboring towns were told to stay indoors with residents being told they could return five days following the explosion. According to a member of the National Transportation Safety Board, 14 cars containing multiple hazardous chemicals including vinyl chloride, a chemical in plastic products which is associated with increased risk of liver cancer and cancer generally, were “exposed to fire,” combusted into the air which could then be inhaled by residents or leach into the environment. There have been reports by residents of foul smells and headaches since the incident, and locals have reported seeing dead fish in waterways.

The train and railroad in question are owned and operated by Norfolk Southern, a private railway company. Norfolk Southern transports a variety of materials, but is known for its transportation of coal through the East and Midwest regions of the country. In order to prevent a large explosion with the chemicals remaining in the train cars, Norfolk Southern conducted a “controlled release” of the chemicals discharging “potentially deadly fumes into the air” on Monday, February 6th. While the controlled release was likely immediately necessary for safety purposes, exposure to vinyl chloride as a gas can be very dangerous, leading to headaches, nausea, liver cancer, and birth defects.

Government and Norfolk Southern Responds

Following the derailment and fires, a variety of governmental authorities have converged to tackle the issue, in addition to Norfolk Southern. The Environmental Protection Agency (EPA) and Norfolk Southern are monitoring air-quality, and giving guidance to determine when investigators and fire fighters may enter the scene safely. In a joint statement on February 8th, the Governors of Ohio and Pennsylvania, as well as East Palestine’s Fire Chief, announced that evacuated residents could return to their homes. As an act of good faith Norfolk Southern enlisted an independent contractor to work with local and federal officials to test air and water quality, and pledged $25,000 to the American Red Cross and its shelters to help residents. The Ohio National Guard has also been brought onto the scene.

As more information is released, things are heating up in the press as reporters try to learn more about what happened. In a press conference on February 8th with Ohio’s governor, Mike DeWine, the commander of the Ohio National Guard pushed a cable news reporter who refused to stop his live broadcast after asked by authorities and was subsequently arrested and held in jail for five hours. DeWine denies authorizing the arrest, and a Pentagon official has come out condemning the behavior as unacceptable. The Ohio attorney general will lead an investigation into the arrest.

Lawsuit Filed Alleges Negligence

Norfolk Southern’s history regarding brake safety as well as general operational changes in the railroad sector will perhaps play a factor in the lawsuit recently filed in response to the incident. In East Palestine, Ohio, residents and a local business owner are alleging negligence in a lawsuit against Norfolk Southern in federal court. Union organizers have expressed concerns that operating changes and cost-cutting measures like the elimination of 1/3 of workers in the last six years have resulted in less thorough inspection and less preventative maintenance. Although railroads are considered the safest form of transporting hazardous chemicals, Federal Railroad Administration (FRA) data shows that hazardous chemicals were released in 11 accidents in 2022, and 20 in both 2020 and 2018. Recently, there has been an uptick in derailments, and although most occur in remote locations, train car derailments have in fact killed people in the past.

The class-action lawsuit alleges negligence against Norfolk Southern for “failing to maintain and inspect its tracks; failing to maintain and inspect its rail cars; failing to provide appropriate instruction and training to its employees; failing to provide sufficient employees to safely and reasonably operate its trains; and failing to reasonably warn the general public.” The plaintiffs allege the company should have known of the dangers posed, and therefore breached their duty to the public.

Specifically relevant to this accident may be Norfolk Southern’s lobbying efforts against the mandatory use of Electronically Controlled Pneumatic (ECP) brakes. In 2014, likely in response to increased incidents, the Obama administration “proposed improving safety regulations for trains carrying petroleum and other hazardous materials,” which included brake improvement. The 2015 Fixing America’s Surface Transportation (FAST) Act required the Department of Transportation (DOT) to test ECP braking, and the Government Accountability Office to calculate the costs and benefits of ECP braking.[1] The U.S. Government Accountability Office (GAO) conducted a cost benefit test on the ECP braking, and found the costs outweighed the benefits.[2] The FRA, the Pipeline and Hazardous Materials Safety Administration (PHMSA), and DOT subsequently abandoned the ECP brake provision of the regulation in 2017. The move followed a change in administration and over $6 million in lobbying money towards GOP politicians and the Trump administration by the American Association of Railroads, a lobbying group of which Norfolk Southern is a dues-paying member.

Despite bragging about their use of ECP brakes in 2007 in their quarterly report, Norfolk Southern’s lobbying group opposed mandatory ECP brakes, stating “In particular, the proposals for significantly more stringent speed limits than in place today and electronically controlled pneumatic (ECP) brakes could dramatically affect the fluidity of the railroad network and impose tremendous costs without providing offsetting safety benefits.” Although the type of brakes on the train in East Palestine is unknown as of now, a former FRA senior official told a news organization that ECP brakes would have reduced the severity of the accident. Whether or not using ECP braking while hauling hazardous materials constitutes negligence, despite the federal government finding they are not beneficial enough to make it mandatory, the fact that Norfolk Southern opposed its implementation may still influence the litigation.

Although the current lawsuit filed alleges negligence against Norfolk Southern, the private company, it is perhaps possible to approach the legal debate from an agency perspective. Did the PMHSA and FRA permissibly interpret FAST in failing to include ECP braking requirements when they were explicitly mentioned in the FAST text? Did the agencies come to an acceptable conclusion about ECP braking based on the data? If a court were to find the agencies’ decisions were outside of the scope of the authority granted to them by FAST, or that the decision was arbitrary and capricious, the agencies could be forced to reevaluate the regulation regarding ECP braking. Congress could also pass more specific legislation in response, to increase safety measures to prevent something like this from happening again.

The events are still unfolding from the train derailment in Ohio, and there are still many unknown variables. It will be interesting to see how the facts unfold, and how/if residents are about to recoup their losses and recover from the emotional distress this event undoubtedly caused.

Notes

[1] Regulations.gov, regulations.gov (search in search bar for “phmsa-2017-0102”; then choose “Electronically Controlled Pneumatic Braking- Updated Regulatory Impact Analysis”; then click “download.”)

[2] Regulations.gov, regulations.gov (search in search bar for “phmsa-2017-0102”; then choose “Technical Corrections to the Electronically Controlled Pneumatic Braking Final Updated RIA December 2017”; then click “download.”)

DNA Testing and Death: How Decades-Long Procedural Battles Determine Who Has to Die

December 5, 2022
Criminal Law, DNA Evidence, Evidence, Forensic Evidence, Litigation

Alexa Johnson-Gomez, MJLST Staffer

When individuals convicted of murder claim actual innocence, crime-scene DNA testing has, many times over, been dispositive in proving such innocence. Intuitively, we assume that if someone has been wrongfully convicted, DNA will be the bringer of truth. But what happens when a defendant cannot get their requested DNA testing because the State argues their claim is procedurally defaulted or barred by the statute of limitations?

Reed v. Goertz is a case in the current U.S. Supreme Court term. Petitioner Rodney Reed argues that his due process rights were violated by a refusal to complete DNA testing after he filed post conviction petitions for relief. While the facts are fairly case-specific and relate to Texas criminal procedure, the Court’s holding in this case could have important implications for when the clock starts to run on petitions for crime-scene DNA testing, as well as for death-row claims of actual innocence more generally.

Back in 1998, a Texas court convicted Rodney Reed of the murder of Stacey Stites; the evidentiary basis for this conviction was solely the presence of his sperm.[1] Reed has maintained his innocence since trial, explaining that his sperm was present because he was having a secret, long-standing affair with Stites.[2] At trial, Reed theorized that the murderer might have been the man Stites was engaged to, who was perhaps retaliating against Stites, a white woman, for having an affair with Reed, a Black man.

In 2014, Reed sought post conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. This provision allows a convicted person to obtain post conviction DNA testing of biological material if the court finds that certain conditions are met.[3] The state trial court denied this motion in November 2014, on the grounds that Reed failed to prove by a preponderance of the evidence that he would not have been convicted but for exculpatory results. Reed appealed the denial, and the appellate court remanded for additional fact finding. Then in September 2016, after additional fact finding was done, the state trial court denied the post conviction DNA testing yet again. The appellate court affirmed the denial in April 2017 and denied rehearing in October 2017.

At this stage, Reed filed a 42 U.S.C. § 1983 complaint against the prosecuting attorney, challenging the constitutionality of Chapter 64 both on its face and as applied to his case.[4] The district court dismissed all of Reed’s claims for failure to state a claim; the Fifth Circuit affirmed in April 2021, stating that Reed’s claim was untimely and that Reed knew or should have known of his injury in November 2014. Generally, time bars in post conviction follow a common principle: if a defendant did know or should have known of a claim, that is the point at which the clock starts running. Defense counsel argues that the clock began to run in October 2017, after Reed exhausted his post conviction appeals fully.

At oral argument on October 11, 2022, the state argued that the clock started prior to the rehearing date in October 2017. Justice Kagan reasoned that it would be simpler to acknowledge we do not know what the authoritative construction of a court of appeals is until appeals are concluded. Justice Jackson agreed, noting that if the federal clock starts while the state appeals process is still ongoing, then the federal courts would have to pause consideration to allow state courts to weigh in first. This would be untenable and overly chaotic. Defense counsel reminded the court of the mounting evidence that points at Reed’s innocence, evidence which is still under review.

While not the hottest topic of this Supreme Court term, this case could still have important implications. While the use of DNA testing to prove actual innocence has been a practice in the world of litigation for the past few decades, cases that have yet to get their post conviction DNA testing done, like Reed’s, often stand in such perilous status because of procedural bars.

A haunting example—the recent execution of Murray Hooper in Arizona. 76 years old at the time of his death, Hooper maintained his innocence until his day of execution.[5] There was never any forensic testing in Hooper’s case that proved he conclusively committed the murders. Hooper’s lawyers filed appeals to get newly discovered evidence considered and forensic testing completed,[6] yet these petitions were all denied.

In theory, post conviction and habeas relief are meant to be reserved for the most deserving of defendants. The courts do not want to allow convicted murderers chance after chance at getting a conviction or sentence overturned, and there is, of course, the presumption that any conviction was right the first time. Yet the high procedural barrier to bringing such claims is not in line with the reality of wrongful convictions. Since 1973, 190 death-row inmates have been exonerated.[7]Post conviction DNA testing is not merely allowing defendants to draw out their appeals process and stave off execution, but is an important scientific tool that can check if the trial court got it right. Preventing petitioners from accessing DNA testing just because of procedural barriers is an injustice, and hopefully the Supreme Court rules as such in Reed v. Goertz.

Notes

[1] Innocence Staff, 10 Facts About Rodney Reed’s Case You Need to Know, Innocence Project (Oct. 11, 2019), https://innocenceproject.org/10-facts-you-need-to-know-about-rodney-reed-who-is-scheduled-for-execution-on-november-20/.

[2] Amy Howe, Justices Wrestle with Statute of Limitations in Rodney Reed’s Effort to Revive DNA Lawsuit, SCOTUSblog (Oct. 11, 2022), https://www.scotusblog.com/2022/10/justices-wrestle-with-statute-of-limitations-in-rodney-reeds-effort-to-revive-dna-lawsuit/.

[3] See Tex. Code Crim. Proc. Ann. § 64.03.

[4] Reed v. Goertz, 995 F.3d 425, 428 (5th Cir. 2021).

[5] Liliana Segura, Out of Time, The Intercept (Nov. 15, 2022), https://theintercept.com/2022/11/15/murray-hooper-arizona-execution/.

[6] Associated Press, Lawyers for Murray Hooper File New Appeal as Execution Date Nears, Fox 10 (Nov. 1, 2022),https://www.fox10phoenix.com/news/lawyers-for-murray-hooper-file-new-appeal-as-execution-date-nears.

[7] Innocence, Death Penalty Information Center, https://deathpenaltyinfo.org/policy-issues/innocence (last visited Nov. 27, 2022).

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