Rutgers Computer & Technology Law Journal

By: Amanda Williams

Today, cybersecurity is a primary concern for every major and minor corporation in the world. The level of sophistication hackers have achieved implies that a data breach is inevitable. Since it cannot be stopped, all that can be done are attempts to mitigate the damage, whether it be to the compromised systems or to the affected consumers. In fact, courts have been reluctant to grant standing to the victims of data breaches where there has yet to be either fraudulent credit card activity or identity theft but personal information was exposed.[1] Article III standing requires that there be an injury in fact, a causal connection between the injury and the conduct, and that injury must be “fairly traceable” to the challenged action of the defendant, and not the result of a third party.[2] Specifically, the injury in fact must be concrete, particularized, and actual or imminent, not merely hypothetical.[3] By using new rationale and distinguishing cases on the facts, courts around the country are beginning to confer standing in instances where in the past, they would not.[4]

Previously, circuit and district courts have said that without actually being harmed by the unauthorized release of personal identifying information, generally via fraudulent credit card activity or identity theft, a consumer did not have standing.[5] Without more than an increased risk of misuse of personal data, the consumers had not suffered a harm the court was prepared to remedy.[6] When analyzing Article III standing, one of the main considerations when looking at standing for an injury that has yet to occur is the concept of how imminent that injury is. [7] “Imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III standing- that the injury is certainly impeding.”[8] Under that framework, courts have required that an injury not simply be threatened, and have found that a mere possible future injury is not sufficient to be considered an injury in fact.[9]

After the court denied standing to those who failed to show a certainly impending future injury, noting that one “cannot manufacture standing by incurring costs in anticipation of non-imminent harm,” courts across the nation began to distinguish data breach cases on the facts.[10] In the past, the Supreme Court has acknowledged it does not necessarily require that the plaintiffs show a harm that is literally certain to have standing; accepting a “substantial risk” that the harm will come to pass, which may incite a person to incur costs in an attempt to mitigate that harm.[11] Requiring the Plaintiffs to wait until they actually suffer fraudulent activity as a result of the breach would be counterintuitive to the concept that the harm not be “literally certain” for standing to be conferred.

Ultimately, while courts are differentiating these cases on the facts, and not appearing to issue new bodies of law, they are granting standing in cases where they would not in the past. They are looking at what type of information has been released and what risk is posed by the release of that specific type of personal information.[12] For example, if only credit card tails were released, and the possibility of fraudulent activity is low, the injury is less likely to be treated as certainly impending.[13] Conversely, if entire credit/debit card numbers, health information, passwords or social security numbers are compromised, the risk of fraudulent activity is significantly higher, and the court generally considers that as sufficient for the “certainly impending” standard.[14] Additionally, the courts have taken the stance that the time and cost incurred in resolving identity theft or illegal credit card activity is sufficient to confer standing, presuming the other two elements of standing, causation and redressability, are met.[15] Ultimately, the courts are beginning to move in a direction that grants standing to the victims of data breaches, regardless of whether they have experience fraudulent activity as a result.

 

[1] See Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).

[2] Lujan v. Defs. of Wildlife, 504 U.S. 555, 590 (1992) (Blackmun, J., dissenting).

[3] Id. at 560.

[4] See generally Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015); See also Galaria v. Nationwide Mut. Ins. Co., 663 F. App’x 384 (6th Cir. 2016); See also Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963 (7th Cir. 2016).

[5] Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 639 (7th Cir. 2007).

[6] Id.

[7] See Lujan, 504 U.S. at 565.

[8] Id.

[9] See id. at 560-61.

[10] See Clapper, 568 U.S. at 422.

[11] See Galaria, 663 F. App’x at 388.

[12] See Krottner v. Starbucks Corp., 406 F. App’x 129 (9th Cir. 2010); See also In re Adobe Sys. Privacy Litig., 66 F. Supp. 3d 1197 (N.D. Cal. 2014).

[13] See Krottner, 406 F. App’x at 129.

[14] See In re Adobe Sys. Privacy Litig., 66 F. Supp. at 1215.

[15] See Galaria, 663 F. App’x at 384; See also Lewert, 819 F.3d at 963.

 

By: Jean-Pierre Zreik

As the digital age progresses, technology continues to evolve and expand, making us more reliant upon it. As we rely more on our devices, we input a greater amount of personal and sensitive information onto them, opening up ways for our privacy to be invaded.[1] One way privacy may be invaded is through location tracking on smartphones via geolocation data.[2] Geolocation is defined as the process or technique of identifying the geographical location of a person or device by means of digital information processed via the internet.[3] Nearly all devices and apps use geolocation data in location tracking,[4] but the United States has yet to enact legislation addressing the privacy implications of collecting this data.[5]

Without any guidance from federal legislation, companies had been getting away with deceptive privacy policies.[6] The Federal Trade Commission (“FTC”), under Section 5 of the FTC act, has taken a larger role in protecting consumer privacy.[7] The FTC has been regulating companies collecting or using geolocation data, specifically those with inadequate disclosure of that usage.[8] This has been a good start in protecting consumers privacy, however issues continue to arise.

In 2014, Snapchat settled an FTC action based upon false and misleading information in their privacy policy.[9] While Snapchat claimed location information was not asked for, tracked, or accessed, the app was found to be transmitting geolocation data on android devices.[10] The FTC showed that geolocation data is personal enough that it is subject to fair practice principles of proper notice and consent.[11] While Snapchat quickly fixed their privacy policy following their settlement, it seems that they once again are challenging the notions of privacy with their new feature “Snap Maps.” They do have it as an optional feature, which adheres to the FTCs ruling in the 2014 settlement, but it still seems to invite privacy problems. Once enabled, it constantly tracks your location each time the app is opened,[12] allowing anyone you are friends with on the app, can see your location down to the exact address.[13] You may have to opt in to this feature, but as aforementioned, geolocation data is seen by the FTC as extremely personal information, and this seems to be asking for trouble.[14]

Snapchat isn’t the only app that poses privacy risks or problems using geolocation data, one among them is Pokemon Go.[15] When playing Pokemon Go, most users leave the app open at all times, allowing Niantic, the creator of the app, to track all your movements, at all times.[16] Further, the privacy policy Niantic makes users agree to before playing allows them to share aggregated and non personal information with third parties.[17] In essence, Niantic can share where you go, what you do, and more, to just about anyone. In the wrong hands, say via a hack of Niantic, this is a huge privacy risk users take while playing Pokemon Go.

To help fix these privacy risks, the Geolocation Privacy and Surveillance Act (GPS Act) was introduced in Congress and the Senate in 2011 but gained no traction.[18] Since then it has been reintroduced 3 more times, most recently this past winter of 2017.[19] It not only requires law enforcement to obtain a warrant before accessing geolocation data but it requires service providers and companies to consent before sharing geolocation data with third parties.[20] The GPS act would finally put into writing regulations and establish a process to obtain geolocation data and a process to use it in monitoring or tracking individuals.[21] It would be an excellent step in protecting consumer privacy and has been referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigation,[22] with the hopes that this time it’s voted through.[23]


[1]Julie Myhre, Technology is Invading Our Privacy, DMN (Aug. 20, 2013), http://www.dmnews.com/marketing-automation/technology-is-invading-our-privacy/article/307471/.

[2] Daniel Ionescu, Geolocation 101: How it Works, the Apps, and Your Privacy, PCWorld (Mar. 29, 2010, 7:45 PM), http://www.pcworld.com/article/192803/geolo.html.

[3] English Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/geolocation.

[4] Myhre, supra note 1. 

[5] Devika Kornbacher, Scott Breedlove, Janice Ta, and Aislinn Affinito, In Light of Recent FTC Actions, Review Your Privacy Policy, L.J. Newsl., (Jan. 2017), http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/01/01/in-light-of-recent-ftc-actions-review-your-privacy-policy/?slreturn=20170914232441.

[6] Id.

[7] Id.

[8] Id.

[9] Snapchat Settles FTC Charges That Promises of Disappearing Messages Were False, Federal Trade Commission (May 8, 2014), https://www.ftc.gov/news-events/press-releases/2014/05/snapchat-settles-ftc-charges-promises-disappearing-messages-were.

[10] Id. 

[11] Id.

[12] J.J. Citron and Ellie Citron, Even Teenagers Are Creeped Out By Snapchat’s New Map Feature, Slate (July 17, 2017, 10:03 AM), http://www.slate.com/blogs/future_tense/2017/07/17/even_teenagers_are_creeped_out_by_snapchat_s_new_map_feature.html.

[13] Id.

[14] Id.

[15] Tiffany Li, Pokemon Go and The Law: Privacy, Intellectual Property, and Other Legal Concerns, Freedom to Tinker (July 19, 2016), https://freedom-to-tinker.com/2016/07/19/pokemon-go-and-the-law-privacy-intellectual-property-and-other-legal-concerns/.

[16] Id.

[17] Id.

[18] Rahul Kapoor and Christopher Archer, Geolocation Privacy and Surveillance Act Introduced in US Congress, Nat’l L. Rev. (Feb. 23, 2017), https://www.natlawreview.com/article/geolocation-privacy-and-surveillance-act-introduced-us-congress.

[19] GPS World Staff, Bill Seeks To Crack Down On Warrantless Government Tracking, GPS World (Mar. 16, 2017), http://gpsworld.com/bill-seeks-to-crack-down-on-warrantless-government-tracking/.

[20] Id.

[21] Id.

[22] GPS Act of 2017, H.R.1062, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/1062/text.

[23] Wyden, Chaffetz, Conyers Bill to Crack Down on Warrantless Tracking by the Government, Use of Cell-Site Technology, Wyden.senate.gov (Feb. 15, 2017), https://www.wyden.senate.gov/news/press-releases/wyden-chaffetz-conyers-bill-to-crack-down-on-warrantless-tracking-by-the-government-use-of-cell-site-technology.

By: Gokce Yurekli

In May 2016, a Tesla Model S operating on autopilot crashed into a tractor-trailer.[1] The car’s camera did not recognize the truck against the bright sky.[2] The driver was not paying attention and failed to override the autopilot system.[3] He died in the crash.[4] The National Highway Traffic Safety Administration, the agency in charge of investigating the crash, “did not identify any defects in the design or performance of Autopilot, or any incidents in which the systems did not perform as designed,” thereby relieving Tesla of liability.[5]

This case raises an important question that lawyers and policymakers need to address in the coming years, as more autonomous cars are slated to enter the marketplace: who is liable when a self-driving car crashes? The debate is whether the current laws are adequate to answer this question and if not, how do they need to be changed to provide an adequate solution.

For instance, a strict liability standard could apply to the owner.[6] But imposing such standard might make owners reluctant to buy autonomous cars.[7] “If owners will be expected to take over manual control of [a car] in the event of an emergency, then they will need to remain just as vigilant as the driver of a regular [car].”[8] This inevitably defeats the purpose of buying an autonomous car.[9]

If liability shifts to the manufacturer, car makers might lose their incentive to develop autonomous cars.[10] This shift will also require lawmakers to determine what type of insurance will be required for owners and manufacturers.[11] Currently, the insurance market expects a “decline in [car] insurance premiums and an increase in products liability insurance premiums.”[12] Volvo, for example, has said that the company will “accept full liability whenever one if its cars is in autonomous mode.”[13] Tesla, on the other hand, said it will not “consider itself legally liable if its driverless cars get in a crash.”[14]

It is likely that autonomous cars will enter broader commercial use in the upcoming decades. But the task of assigning liability for accidents is tricky. One thing is for certain: lawyers and lawmakers have their work cut out for them.


[1] Neal E. Boudette, Tesla’s Self-Driving System Cleared in Deadly Crash, N.Y. TIMES (Jan. 19, 2017), https://www.nytimes.com/2017/01/19/business/tesla-model-s-autopilot-fatal-crash.html.

[2] Id.

[3] Id. 

[4] Id.

[5] Id. (internal quotations omitted).

[6] John O'Rourke and Patrick Soon, Driverless Technology and the Issue of Liability: Who's Responsible?, Inside Counsel (Mar. 14, 2014), http://www.insidecounsel.com/2014/03/14/driverless-technology-and-the-issue-of-liability-w.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Robert Hermes, U.S. Insurance Market Braces for a Seismic Shift Due to Driverless Cars, Inside Counsel (Jan. 23, 2017), http://www.insidecounsel.com/2017/01/23/us-insurance-market-braces-for-a-seismic-shift-due.

[12] Id.

[13] Jim Gorzelany, Volvo Will Accept Liability For Its Self-Driving Cars, Forbes (Oct. 9, 2015, 11:48 AM), https://www.forbes.com/sites/jimgorzelany/2015/10/09/volvo-will-accept-liability-for-its-self-driving-cars/#4966028372c5. (internal quotations omitted).

[14] Danielle Muoio, Elon Musk: Tesla Not Liable for Driverless Car Crashes Unless It's Design Related, Business Insider (Oct. 19, 2016, 10:38 PM), http://www.businessinsider.com/elon-musk-tesla-liable-driverless-car-crashes-2016-10.

By: Nicholas Scoullos

Keeping up with the pace of technology, which patent law is designed to protect, the number of patent cases have consistently increased over time.[1] In 2015, 5,830 patent cases were filed, a 15% increase from the year prior.[2] Of those cases, 2,540 (43.6%) were filed in the Eastern District of Texas, more than the combined total of the next three less voluminous districts.[3] The District itself sees most of its cases from high volume plaintiffs, plaintiffs who have filed more than ten cases in a year, commonly considered as “patent trolls.”[4] Patent trolls frequently take the form of shell corporations or individuals that “generate revenue by suing over patents instead of making products.”[5]

The District is considered friendly to plaintiffs in patent litigation cases in part due to the “relatively rapid litigation timetable” which can pressure defendants to settle.[6] Furthermore, judges in the Eastern District of Texas require permission to be given before a defendant can file for summary judgment, effectively sending a case to trial despite the low likelihood of the plaintiff prevailing or the strength of the defendant’s motion.[7] Although uncommon, this is not contrary to Federal Rules of Civil Procedure Rule 56(b), which allows for a party to file a motion for summary judgment anytime within 30 days after discovery, “unless a different time is set by local rule or the court orders otherwise.”[8] Given this dynamic, cases which would otherwise be dismissed end up in costly litigation, thus prompting a settlement.[9]

On May 22nd, 2017, the Supreme Court of the United States issued its decision in TC Heartland LLC v. Kraft Food Group Brands LLC, which is anticipated to halt the forum shopping that has led to the accumulation of patent litigation cases in a handful of district courts.[10] The holding limits the definition of “residence” under the patent-specific venue statute 28 U.S.C. §1400(b) to the State in which a corporate defendant is incorporated.[11] Before TC Heartland, a plaintiff could choose “any jurisdiction where the defendant did significant business,” allowing for plaintiffs to sue large corporations, or businesses that conducted transactions over the Internet in virtually any district court.[12] Naturally, under the old regime, plaintiffs would frequently prevail on a motion to change venue, driving up litigation costs.

The effect TC Heartland has on patent litigation remains to be seen. As an indication of the complexity of the issue at hand, a diverse set of private and public entities had all entered the fray. While the ruling appears to hurt patent trolls, it also hurts research universities and individual inventors who now go against corporations in less-favorable districts. Another dichotomy arises in the pharmaceutical industry, in which generic pharmaceutical companies now find themselves in a disadvantage against suits brought by big pharma.


[1] Brian Howard, Lex Machina 2015 End-of-Year Trends, Lex Machina: Legal Trends (Jan. 7, 2016), https://lexmachina.com/lex-machina-2015-end-of-year-trends/.

[2] Id.

[3] Id.

[4] Id.; See also Daniel Nazer & Vera Ranieri, Why Do Patent Trolls Go to Texas? It’s Not for the BBQ, Elec. Frontier Found. (July 9, 2014), https://www.eff.org/deeplinks/2014/07/why-do-patent-trolls-go-texas-its-not-bbq.

[5] Andrew Chung, U.S. Top Court Tightens Patent Suit Rules in Blow to 'Patent Trolls', Reuters: U.S. Legal News (May 22, 2017, 3:59 PM), http://www.reuters.com/article/usa-court-kraft-heinz/u-s-top-court-tightens-patent-suit-rules-in-blow-to-patent-trolls-idUSL1N1IO1H4.

[6] See Nazer & Ranieri, supra note 4.

[7] Id. 

[8] Fed. R. Civ. P. 56(b).

[9] Jan Wolfe, Patent Plaintiffs See Way Around U.S. Supreme Court Ruling, Reuters: Tech. News (May 23, 2017, 4:01 PM), http://www.reuters.com/article/us-usa-court-kraft-heinz-analysis/patent-plaintiffs-see-way-around-u-s-supreme-court-ruling-idUSKBN18J2UB.

[10] Id.

[11] TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1520 (2017).

[12] Brian Howard, SCOTUS Decides TC Heartland Case, Lex Machina: Acad. Articles (May 24, 2017), https://lexmachina.com/scotus-decides-tc-heartland/.

By: Amanda Schwartz

In early 2016 Facebook introduced a new feature to its platform: Facebook Live.[1] It piggybacks on a feature Twitter integrated into its platform in 2015: livestream videos powered by the app Periscope.[2] Livestream technology allows users to collect and distribute video media simultaneously—similar to a live television broadcast.[3] Facebook and Twitter users have shown creativity utilizing livestream technology. Senators engage with constituents from the steps of Capitol Hill, teens share their front row experiences at concerts, and protesters and marchers show an insider perspective not captured by CNN.[4] Social media users also share more exclusive content like subscription based television shows. This kind of generosity is also piracy.

The basic problem stemming from use of livestream technology is users freely share content without compensating the rightful owner for the use. Livestream technology poses new challenges for industries that rely on copyright law and anti-pirating law to maintain control over distribution of their content. The sports broadcasting, music performance, and subscription entertainment industries face audiences that multiply tenfold with audience members’ smartphones that are equipped with Facebook, Twitter, Snapchat, and Instagram. Livestreams pop-up on the internet simultaneous to the live experience and divert traffic from the sanctioned broadcast or simply result in pirated streams of content. To maintain control of their proprietary content and make a profit companies must be able to find the illicit livestreams and shut them down.

The linchpin of live broadcasting is time sensitivity. Having companies scouring social media sites to report illicit streams requires support staff and speed; with billions of social media users worldwide, curtailing content distribution in less time than the content’s airing block is a nearly impossible task.

Facebook has created a tool to help content creators monitor their videos online.[5] With the Rights Management Tool, once users upload the protected content Facebook is able to find problematic copies floating on its platform and block them from further use.[6] The tool is even able to maintain live videos as reference streams.[7]

In May 2015, the highly-anticipated Floyd Mayweather/Manny Pacquiao fight was featured only on a special subscriber based network.[8] With a high subscription cost and unexpected network outages, many users were driven to find free livestream videos of the broadcast.[9] These users thanked Periscope and Twitter with tweets later.[10] HBO and Showtime, two producers of the fight, sued certain websites which had advertised in advance that they would be streaming the fight.[11] The court issued temporary restraining orders against those sites from streaming the fight.[12] Pre-emptive suing allowed HBO and Showtime to block some sites from livestreaming the fight. This August, international audiences were highly anticipating another Mayweather fight on pay-per-view: Floyd Mayweather/Conor McGregor.[13] The networks again successfully secured preliminary injunctions to block sites from livestreaming the content for free.[14] But because “flash infringement” via impromptu livestreaming on social media can happen on many platforms and is not always advertised ahead of time, it is tough to police and especially hard to terminate simultaneous to the broadcast.[15] Livestreaming poses opportunities for creative audience engagement but also weakens the enforceability of copyright laws and content distribution protections.


[1] Jemima Kiss, Facebook to Rival Periscope with New Live Video Feature, The Guardian (Jan. 28, 2016, 6:45 PM), https://www.theguardian.com/technology/2016/jan/28/facebook-live-video-rival-periscope.

[2] Kevin Weil, Introducing Periscope, Twitter: Blog (Mar. 26, 2015), https://blog.twitter.com/official/en_us/a/2015/introducing-periscope.html; Periscope, Up Periscope, Medium: Blog (Mar. 26, 2015), https://medium.com/periscope/up-periscope-f0b0a4d2e486.

[3] Mark Zuckerberg, Facebook (Apr. 6, 2016, 9:54 AM),

https://www.facebook.com/photo.php?fbid=10102764094429401&set=a.612287952871.2204760.4&type=3&theater (“Live is like having a TV camera in your pocket.”).

[4] See, e.g., Livestream video by U.S. Senate Democrats, Facebook (July 27, 2017), https://www.facebook.com/USSenateDemocrats/videos/1408918289177361/?hc_ref=ARTR2VkO6s6COCL8dc0ZQ335bNGKKK2gSfUcVD9V5nx5fYeokJckScKT8wBKZ9QHhYw.

[5] Analisa Tamayo Keef and Lior Ben-Kereth, Introducing Rights Manager, Facebook (Apr. 12, 2016), https://media.fb.com/2016/04/12/introducing-rights-manager/#more-4219.

[6] Jacob Brogan, Facebook Live’s Big Problem Isn’t Porn. It’s Copyright., Slate (Apr. 12, 2016, 4:43 PM), http://www.slate.com/blogs/future_tense/2016/04/12/facebook_live_video_has_a_problem_with_copyright_not_porn_despite_rights.html.

[7] Kerry Flynn, Mayweather-McGregor Isn’t the Only Fight –Facebook Will be Battling Illegal Streams, Mashable (Aug. 25, 2017), http://mashable.com/2017/08/25/livestream-mayweather-mcgregor-facebook-twitter-youtube-piracy/#oSRNxHTegiqX.

[8] See Sam Thielman, Periscope Delivers Blow to Pay-Per-View in Mayweather v. Pacquiao Fight, The Guardian (May 4, 2015, 12:00 PM), https://www.theguardian.com/technology/2015/may/04/twitter-periscope-winner-mayweather-pacquiao.

[9] Id.

[10] Karen Chan, Elaine Lee, Kimberly Buffington, and Carolyn S. Toto, Periscope, Meerkat, HBO and the Live-Stream Dilemma, Lexology: Pillsbury’s Soc. Media & Games L. Blog (Oct. 14, 2015), https://www.lexology.com/library/detail.aspx?g=02801d40-9605-45cc-889c-0ed9cc74dbdb.

[11] Ernesto Van der Sar, Showtime and HBO Sue Over ‘Pre-Piracy’, TorrentFreak (Apr. 29, 2015), https://torrentfreak.com/showtime-and-hbo-sue-over-pre-piracy-150429/.

[12] See id.

[13] See John Eligon, Mayweather, a Defensive Mastermind, Beats McGregor With His Fists, N.Y. Times (Aug. 27, 2017), https://www.nytimes.com/2017/08/27/sports/floyd-mayweather-beats-conor-mcgregor.html?mcubz=3&_r=0.

[14] Aaron Brown, Mayweather vs McGregor Live Stream: Warning-Millions at Risk After Piracy Arrests, Express (Aug. 27, 2017, 1:29 AM), http://www.express.co.uk/life-style/science-technology/846138/Mayweather-vs-McGregor-live-stream-Kodi-watch-Las-Vegas-fight-Sky.

[15] Michael M. Epstein, Social Media and “Flash Infringement”: Live Music Culture and Dying IP Protection, 3 Belmont L. Rev. 1, 2, 7-8 (2016).

By: Pratik Parikh

Approximately seventy-seven percent of Americans own a smart phone.[1] Smart phones contain a lot of personal information including text messages, call records, photographs, and web search history. [2] The United States Supreme Court in Riley v. California recently addressed “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” [3] The Court found that with modern technology allowing users to “carry such information in [their] hand[s] does not make the information any less worthy of the protection for which the Founders fought.” [4] Therefore, the Court held that it “is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” [5]

Now that cell phones may not be searched unless a search warrant is granted or the search satisfies a specific exception; the question remains whether law enforcement can ask the user to provide their cell phone password.[6] Courts have considered whether asking for a cell phone password violated the Fifth Amendment, specifically the self-incriminating clause.[7]

The United States Air Force Court of Criminal Appeals in United States v. Robinson was asked to determine whether requesting a cell phone password for a sexual assault case violated the Fifth Amendment.[8] The court held that the defendant’s “knowledge of the passcode did not incriminate him, [because] investigators had no reason to believe that the passcode itself would be incriminating or communicate any information about the crime.”[9] Therefore, the court concluded that “the request for the passcode did not constitute interrogation in violation of the Fifth Amendment” unless, “the request for the passcode constituted a reinitiation of communication . . . to open a more ‘generalized discussion’.” [10]

Similarly, the Court of Appeals of Florida in State v. Stahl was asked to determine whether requesting a cell phone password in a video voyeurism case violated the Fifth Amendment.[11] The court found that cell phone passwords do not “implicitly ‘relate a factual assertion or disclose information,’ [thus] ‘compelling a suspect to make a nonfactual statement that facilitates the production of evidence’ for which the State has otherwise obtained a warrant . . . does not offend the [Fifth Amendment].”[12]

Even though smart phones now store a large amount of personal information, the question of whether law enforcement can request or demand the password for smart phones is yet to reach the United States Supreme Court. However, lower courts have found that law enforcement requesting or asking for cell phone passwords does not violate the Fifth Amendment.[13] Therefore, even with a cryptic password, a smart phone user’s information is not protected from law enforcement. With technological advancements, including facial recognition passwords, in the works, the courts may have to address whether law enforcement can compel an individual to unlock one’s phone with their passcode, face or retina.[14]


[1]Mobile Fact Sheet, Pew Res. Ctr. (Jan. 12, 2017), http://www.pewinternet.org/fact-sheet/mobile/.

[2] Riley v. California, 134 S. Ct. 2473, 2489 (2014).

[3] Id. at 2480.

[4] Id. at 2495.

[5] Id. at 2493.

[6] See Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest?, 96 Iowa L. Rev. 1125 (May 2011) (discussing the implications of cell phone searches and the Fifth Amendment).

[7] See United States v. Robinson, 76 M.J. 663, 666 (A.F. Ct. Crim. App. 2017); See also State v. Stahl, 206 So. 3d 124, 134 (Fla. Dist. Ct. App. 2016).

[8] See Robinson, 76 M.J. at 665-66.

[9] Id. at 671.

[10] Id.

[11] See Stahl, 206 So. 3d at 127.

[12] Id. at 134.

[13] See Robinson, 76 M.J. at 671; See also Stahl, 206 So. 3d at 135-36.

[14] See Brett Molina, New IPhones Might Be Able to Recognize Your Face, USA Today (Aug. 28, 2017), https://www.usatoday.com/story/tech/talkingtech/2017/08/28/new-iphones-might-able-recognize-your-face/607272001 (discussing IPhone 8’s new facial recognition passcode).

By: Jason McMullen

In 2011 a company named ReDigi launched an online market place to sell used digital music.[1] The aim was to create a cloud-based market place in which individuals could re-sell their used iTunes music.[2] As support for their business model the company claimed they were protected under the Copyright Act’s “first-sale” doctrine.[3] This concept quickly caught the attention of the record industry that felt their copyrights were being violated and subsequently led to a 2013 lawsuit.[4]

Capitol Records, LLC v. ReDigi, Inc. centered on the issue of whether the “first-sale” doctrine could be applied to digital music.[5] The “first-sale” doctrine gives consumers the right to sell, display, or otherwise dispose of legally purchased copies of copyright work.[6] For example, if a user purchases a CD containing music, they may sell the CD to a thrift store without consulting the copyright holder. However, the doctrine does not allow the consumer to reproduce, create derivatives, or publicly perform the copyright work.[7] ReDigi claimed they met these standards by creating a cloud-based software where an individual could upload legally purchased music, then have their computer scanned for copies, and once cleared the original file could be purchased and transferred to another user.[8] This ensured no duplicates were made and the “re-sell” was of the original file, meeting the redistribution requirement and avoiding reproduction.[9]

The court did not agree with ReDigi, instead finding they violated Capitol Records copyrights and thus ending use of the “first-sale” doctrine in a digital marketplace.[10] The court reasoned the “first-sale” doctrine only applied to material objects finding support in both the plain meaning and legislative history of the “first-sale” doctrine.[11] Since the “first-sale” doctrine only applies to material objects the court concluded it could not protect Redigi because digital files are not material objects.[12] Further since digital files are not material, by sending a file from one computer to another a copy must be made thus violating copyright owners right to reproduction.[13] Lastly, the court refuted Redigi’s claim that its reading of the “first-sale” doctrine would exclude digital works, by stating an owner still maintains the right to sell a complete iPod or hard drive full of digital files.[14]

While this case was decided in 2013, the issue has resurfaced on review in the 2nd Circuit Court of Appeals.[15] Even though ReDigi is now bankrupt, the case is still of importance because it centers on whether the “first-sale” doctrine has a role in the digital market. The “first-sale” doctrine is vital to the creation of secondary markets that help to spread works of knowledge and entertainment.[16] Places like bookstores, libraries, garage sales, and flea markets are protected by the “first-sale” doctrine and as the digital world continues to increase secondary markets may not have a role to play.[17] As the 2nd Circuit Judge Pierre Leval noted during the proceedings, this is an issue of great importance that has a “high-likelihood” of continual litigation at the Supreme Court level.[18]


[1] David Kravets, Online Market for Pre-Owned Digital Music Hangs in the Balance, Wired (Feb. 2, 2012, 6:22 PM), https://www.wired.com/2012/02/pre-owned-music-lawsuit/.

[2] Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640, 645 (S.D.N.Y. 2013).

[3] Ben Sisario, Site to Resell Music Files Has Critics, N.Y. Times (Nov. 14, 2011), http://www.nytimes.com/2011/11/15/business/media/reselling-of-music-files-is-contested.html?mcubz=0.  

[4] Eriq Gardner, The Legality of Selling “Used” Digital Songs and Movies Headed to Appeals Court, Hollywood Rep. (Apr. 6, 2016, 10:49 AM), http://www.hollywoodreporter.com/thr-esq/legality-selling-used-digital-songs-881362.

[5] See Capitol Records, 934 F. Supp. at 648.

[6] 17 U.S.C.S. § 106 (2017).

[7] Id. at § 109.

[8] See Capitol Records, 934 F. Supp. at 645.

[9] Id.

[10] Kristen Iglesias, Capitol Records, LLC v. Redigi Inc. and the Future of Digital Resale, N.Y.U. J. of Intell. Prop. & Ent. L.: JIPEL Blog 2016-2017 (Mar. 15, 2017), http://blog.jipel.law.nyu.edu/2017/03/capitol-records-llc-v-redigi-inc-and-the-future-of-digital-resale/.

[11] See Capitol Records, 934 F. Supp. at 648-49.

[12] Id. at 649-50.

[13] Id.

[14] Id. at 656.

[15] Eriq Gardner, Appeals Court Grapples With Digital Files, and the Business of Selling “Used” Songs, Hollywood Rep. (Aug. 22, 2017, 12:58 PM), http://www.hollywoodreporter.com/thr-esq/appeals-court-grapples-digital-files-business-selling-used-songs-1031629.

[16] Brief of Copyright Law Scholars as Amici Curiae in Support of Defendants-Appellants and Reversal, Capitol Records, LLC. v. ReDigi, Inc., No. 16-2321 (2d. Cir. Jul. 1, 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2921890.

[17] Id.

[18] Gardner, supra note 15.

By: Mark Lamartina

Many viewers were left miffed leading up to the Floyd Mayweather v. Conor McGregor fight on Saturday August 26, 2017, as they experienced streaming issues. One Showtime customer, Zack Bartel, was particularly troubled by the whole experience as he tried to stream the fight in high-definition through the Showtime app, but claims the only thing displayed was “grainy video, error screens, buffer events, and stalls.”[1]

Attorney Michael Fuller filed an action against Showtime Networks, Inc. in Oregon Federal Court late Saturday.[2] The class action sets forth several counts as to why customers were perturbed by the whole experience and demand just compensation. The action is for unlawful trade practices and unjust enrichment, claiming the network did not secure enough bandwidth to withstand all the incoming online traffic.[3] The complaint further stated the "defendant intentionally misrepresented the quality and grade of video consumers would see using its app, and knowingly failed to disclose that its system was defective with respect to the amount of bandwidth available, and that defendant’s service would materially fail to conform to the quality of HD video defendant promised."[4]

Plaintiffs support their stance by alleging the Defendant’s desire to maximize profit was a key factor for the network’s failure to uphold their promise in the contract.[5] As a result of this event being the first major fight available on pay-per-view without the need for a cable subscription, Showtime focused more on attracting customers rather than ensuring the service provided was the same quality as contractual obligated.

This class action lawsuit involves Oregon consumers who viewed the event through the Showtime app and paid the $99.99, but did not receive the fight in HD at 1080p resolution at 60 frames per second, as advertised.[6] The effect of this misrepresentation is worsened because not only were customers forced to view the event in less than optimal quality, but some customers were completely blocked from viewing the event at all.

Although the customers are understandably outraged by the quality deficiency of the program as delivered by the provider, some anger is misplaced towards Showtime. Showtime Senior VP Sports Communications Chris DeBlasio stated that Showtime is receiving a massive number of complaints from a large amount of customers who were not using Showtime, but rather a different provider.[7] Therefore, they are not able to assist those customers but are willing to help their own customers.[8] In an effort to rectify the situation, Showtime is offering a total refund directly to those customers who were unable to fully receive the telecast.[9] One issue with this refund is whether it will be enough to fully compensate the customers. Considering that this event was live and the results are already known, the customers missed the opportunity to experience the fight at that moment. For those customers who were unable to view the fight, it will be up to the Oregon Federal Courts to decide whether the missed opportunity to experience the event live retains any additional value.


[1] Ashley Cullins, Showtime Hit With Class-Action Lawsuit Over Failed Mayweather-McGregor Streams, Hollywood Rep. (Aug. 28, 2017, 11:02 AM), http://www.hollywoodreporter.com/thr-esq/showtime-hit-class-action-lawsuit-failed-mayweather-mcgregor-streams-1033373.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

By: Abraham Kornbluth

A few years ago, a visit to your physician’s office often resulted in the doctor handing you an entirely illegible handwritten prescription for drugs which your pharmacist magically deciphered with ease before dispensing your medication. Not so much anymore.

With the ever-evolving concept of Telemedicine under the umbrella of Telehealth came the idea of e-prescriptions.[1] E-prescribing, as defined by Centers for Medicaid and Medicare Services, is simply “a prescriber's ability to electronically send an accurate, error-free and understandable prescription directly to a pharmacy from the point-of-care.”[2]

In June of 2010, the DEA released a rule which allowed providers to issue prescriptions for controlled substances such as opiates and pharmacies to receive, dispense and archive these scripts electronically nationwide.[3] Nevertheless, many pharmacies and practitioners (especially outside of the urban areas) are yet to implement e-prescribing.[4] The leading reason being the cost of implementing the systems and software to run it.[5]

A few months into his presidency, in August 2017, President Trump declared the nationwide opioid crisis a national emergency and vowed to combat it.[6] One important development in this field is the Every Prescription Conveyed Securely Act (EPCS) introduced on July 28, 2017 in the U.S. House of Representatives.[7] Once the bill receives the go ahead, it will become mandatory for every controlled substance to have an e-prescription under Medicare Part D.[8]

As the country battles with rising cases of opioid overdoses and deaths, federal agencies are looking for new ways to halt the epidemic. One such vital tool to outsmart the opioid mayhem is health information technology. The EPCS Act, introduced by Rep. Katherine Clark, D-Massachusetts, and Rep. Markwayne Mullin, R-Oklahoma, aims to put an end to duplicative or fraudulent handwritten prescriptions that people use to procure opioids.[9] The new bill filed at Capitol Hill would make e-prescription mandatory for all controlled substances, nationwide. This would immediately help to rein in elements that fuel the opioid epidemic across the United States. When this law comes into effect, it will establish more stringent oversight of how opioids and other addictive drugs are dispensed.[10] The doctor shopping and fraudulent transactions in pharmacies, rampant in some parts of the country, will hopefully come to an end when the e-prescription bill becomes the law.

Announcing the legislation, Clark said, “Congress should come together to pass this common-sense solution to prevent overdoses and save lives.”[11] “When all the doctors and pharmacists begin to use an online database while prescribing any highly addictive drugs, the e-prescriptions will have the capacity to control, track, and monitor these substances in a more efficient way,” Mullin said.[12]

The EPCS Act cannot come sooner, as communities and families across the nation continue to suffer rising losses of human life to opioid abuse the buck must stop here. The impact of e-prescribing technology, when properly utilized could have a significant influence on the national prescription pill abuse and save thousands of lives every year. President Trump is correct, it is indeed a national emergency, which thankfully the federal government is acknowledging and choosing to tackle.


[1] Online Prescribing, Ctr. for connected health pol’y, http://www.cchpca.org/online-prescribing-0 (last visited Aug. 31, 2017).

[2] Adopted Standard and Transactions, Ctr. for Medicare and Medicare Serv. https://www.cms.gov/Medicare/E-Health/Eprescribing/Adopted-Standard-and-Transactions.html (last modified Apr. 2, 2013).

[3] Electronic Prescribing for Controlled Substances (EPCS), Diversion Control Division, http://www.deadiversion.usdoj.gov/ecomm/e_rx/ (last visited Aug. 31, 2017).

[4] Jeffrey Bendrix, E-prescribing is benefitting healthcare system, but barriers to adoption remain, ModernMedicine Network (Apr. 15, 2014), http://medicaleconomics.modernmedicine.com/medical-economics/content/tags/e-prescribing/e-prescribing-benefitting-healthcare-system-barriers-ad.

[5]Id.

[6] Ali Vitali & Corky Siemaszko, Trump Declares Opioid Crisis National Emergency, NBC News (Aug. 10, 2017, 5:38 PM), https://www.nbcnews.com/storyline/americas-heroin-epidemic/trump-declares-opioid-crisis-national-emergency-n791576.

[7] Mike Miliard, National e-prescribing bill gains support as Trump declares opioid state of emergency, Health IT news (Aug. 11, 2017, 1:42 PM), http://www.healthcareitnews.com/news/national-e-prescribing-bill-gains-support-trump-declares-opioid-state-emergency.

[8] Id.

[9] Clark, Mullin Urge E-prescriptions to Combat Opioid Overdoses, U.S. Congresswoman Katherine Clark (Aug. 09, 2017), http://katherineclark.house.gov/index.cfm/2017/8/clark-mullin-urge-e-prescriptions-to-combat-opioid-overdoses.

[10] Id.

[11] Id.

[12] Id.

By: Michael Kim

In recent years, the esports industry has seen impressive growth in terms of viewership and revenue.[1] What was traditionally viewed as child’s play has evolved to attract significant investment[2] and the attention of traditional sports organizations.[3]   An esport is generally defined as any video game that is played competitively.[4] Due to the large variety of video games available on the market, the esports scene is fragmented and decentralized, with no overarching regulatory body, akin to The Fédération Internationale de Football Association for football, presiding over the numerous tournaments and professional video game organizations.[5]

Esport pro gamers (“players”) typically earn money through tournament winnings, product sponsorship, and streaming ad-revenue.[6] Additionally, some pro gamers may earn a regular salary by signing on with professional competitive teams.[7] These player-team agreements have on occasion resulted in miscommunication where players and team owners had widely publicized disputes over unpaid salaries.[8] Players face difficulties in maintaining a steady income in this unstable industry which leads many players to retire young in hopes of transitioning towards a more stable or traditional career.[9]

Partially in response to this chaotic environment, Blizzard Entertainment (“Blizzard”), a video game publisher, plans to launch a new heavily regulated esports league for one of their games.[10] Blizzard’s entry into the e-sport scene represents a shift in the industry, where Blizzard hopes to redefine the norms of this nascent industry.[11] The upcoming “Overwatch League” establishes a franchise buy in model where a limited number professional gaming teams are permitted to participate in the league.[12] In addition, Blizzard has imposed numerous requirements on the franchises on what they must provide to their players.[13] These include, among other things, a $50,000 minimum yearly salary, health and retirement benefits, and at least half of team winnings to be disbursed directly to the players.[14]

Riot Games, another video game publisher, also plans to establish a similar “permanent team” franchise esport scheme for their video game League of Legends.[15] Additionally, Riot Games announced they would establish a players’ association to provide players a collective voice in the league.[16] The players do not fund the players’ association themselves and Riot Games makes it explicitly clear that the players’ association is not a union.[17]

The increasing control of tournament organizers and game publishers over the competitive esport system draws similarities to the dominance that professional sport leagues and team owners once exerted over professional athletes during the mid-twentieth century.[18] Before the rise of effective player unions, professional athletes were subjected to unfair employment terms which benefited team owners and tournament organizers at the expense of the professional athletes’ job security and benefits.[19] For example, Major League Baseball was once “an oligopoly” where the players had no say in negotiating the terms of their employment.[20] Additionally, team owners were adverse to the idea of player representation.[21] Baseball players could be traded at will, salaries were low, and benefits were nonexistent.[22]   These indignities eventually gave rise to powerful professional players union which fought to establish the rights of these professional athletes.[23]

Blizzard’s and Riot Games’ push for a more stable competitive scene signals a change in the wind for the esports industry. The benefits mandate and pseudo-representation established by these large publishers are a promising sight. The players have an inherently positive view of game publishers for making a video game they enjoy and earn a living with. However, players should be conscious of the potential conflict of interests held by these large corporate game publishers. As this industry begins to hit its stride, players should consider forming their own union, independent from the influence of game publishers, team owners, and tournament organizers. These players should look at the development of the professional athlete player unions for guidance. Team owners and tournament organizers have even suggested that players unionize in order to promote a more stable environment.[24] When child’s play becomes a profitable industry, it is important for these mostly young players to not be caught off guard. Blizzard and Riot Games may seem like benevolent giants, but proper representation will ensure that players receive their fair share of this growing market.


[1] Peter Warman, Esport Revenues Will Reach $696 Million this Year and Grow to $1.5 Billion by 2020 as Brand Investment Doubles, Newzoo (Feb. 14, 2017), https://newzoo.com/insights/articles/esports-revenues-will-reach-696-million-in-2017/.

[2] Id.

[3] We Are Tumult, Why Sports Teams are Investing In Esports and Why You Should Too., Medium: Laces Out (June 4, 2017), https://thelacesout.com/why-sports-teams-are-investing-in-esports-and-why-you-should-too-7d1143464a33.

[4] Ben Casselman, Resistance is Futile: eSports is Massive . . . and Growing, ESPN (May 22, 2015), http://www.espn.com/espn/story/_/id/13059210/esports-massive-industry-growing.

[5] Fabio Schlösser Vila, Do eSports Lack Structure?, Deutsche Welle (Dec. 29, 2016), http://www.dw.com/en/do-esports-lack-structure/a-36930847.

[6] H.B. Duran, Playing the Game: How Much ESports Players Really Make, [a]list (Aug. 18, 2016), http://www.alistdaily.com/media/playing-the-game-how-much-esports-players-really-make/.

[7] Id.

[8] See Jacob Wolf, Confirmed: Smash Melee Pro Duck Left Denial Esports over Missing Pay, espn (Jan. 7, 2017), http://www.espn.com/esports/story/_/id/18419792/ssbm-duck-leaves-denial-esports-missing-pay.

[9] Harrison Jacobs, Here’s What Professional Video Gamers Plan on Doing When They Retire – in Their 20s, Business Insider (May 7, 2015, 3:40 PM), http://www.businessinsider.com/pro-gamers-explain-what-they-will-do-when-they-retire-in-a-couple-years-2015-5.

[10] Philip Kollar, Overwatch League is Blizzard’s Ambitious New Esports Org, Includes City-based Teams, Polygon (Nov. 4, 2016, 2:34 PM), https://www.polygon.com/2016/11/4/13511762/overwatch-league-is-blizzards-ambitious-new-esports-org-includes-city.

[11] Id.

[12] Id.

[13] Id.

[14] Player Signings, Salaries, and More in the Overwatch League, Overwatch League (July 26, 2017) https://overwatchleague.com/en-us/news/20937016.

[15] Kieran Darcy, Riot’s Players’ Association Lays Groundwork for Unionization, ESPN (June 15, 2017), http://www.espn.com/esports/story/_/id/19617991/riot-players-association-lays-groundwork-unionization.

[16] Id.

[17] Id.

[18] See Michael Macklon, The Rise of Labor Unions in Pro Sports, Investopedia (July 5, 2011, 2:00 AM), http://www.investopedia.com/financial-edge/0711/the-rise-of-labor-unions-in-pro-sports.aspx.

[19] Id.

[20] Peter Dreier, The Fascinating Story of Major League Baseball’s Players Union Stimulated by the Death of Jim Bunning, Salon (June 3, 2017, 9:00 PM), https://www.salon.com/2017/06/03/the-fascinating-story-of-major-league-baseballs-players-union-stimulated-by-the-death-of-jim-bunning_partner/.

[21] Id.

[22] Id.

[23] See id.

[24] Paresh Dave, In E-sports, It’s the Bosses Who are Rallying for a Union, Los Angeles Times (May 26, 2017, 12:55 PM), http://www.latimes.com/business/technology/la-fi-tn-esports-unions-20170526-htmlstory.html.