Month: November 2017

University of Washington School of Law

Carpenter v. United States – What future for digital privacy?

Picture1By Jabu Diagana

On November 29th, 2017, the Supreme Court will hear Carpenter v. United States and decide whether the government violates the Fourth Amendment when it accesses a third party’s record of an individual’s cell phone location without a warrant.

Carpenter was a 2011 case where the defendant was convicted of a series of interstate robberies based on his phone location data, also known as cell-site-location information (CSLI). CSLI is maintained by wireless carriers and is a record of the cell towers our phones connect to every time we transmit calls, texts, emails, or any other digital information. It usually includes the precise geolocation of each tower as well as the day and time the phone tried to connect to it. The government obtained CSLI under the Stored Communications Act (SCA), a 1986 federal statute which provides that a “governmental entity may require a provider of electronic communication service or remote computing service to disclose” records using either a warrant, or, as in Carpenter, using a court order issued “if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

Stated differently, the real question is to what extent does the SCA allow the government to obtain CSLI without a warrant? Or to put it more bluntly, is the SCA unconstitutional?

The Sixth Circuit holding in Carpenter turned on the “third-party doctrine.”

The third-party doctrine originated in Smith v. Maryland, a 1979 case in which the Supreme Court found that installing and using a pen register to record a phone user’s dialed numbers was not an illegal search and didn’t merit Fourth Amendment protections. According to the Smith court, although the contents of our phone conversations are protected, information about the sender or receiver is not, since they willingly disclose that information to the phone company every time they place a call. Following this logic, the Sixth Circuit first found that the third-party doctrine also authorizes the government to access CSLI as “business records” directly from a cell phone company without a warrant. Additionally, it found that when a person uses their cell phone, they should be aware that their location data is shared with the service provider and should not have any “reasonable expectation of privacy” with respect to that data.

Although Carpenter is about users’ cell locations information, the principle at issue spans over other aspects of our digital privacy, given all the data we now share with third parties through the use of smartphones, wifi hotspots, apps, and cloud-based services. As Justice Sotomayor highlighted in her United States v. Jones concurrence, whatever our current societal expectations of privacy are, our citizenry can “attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”

Whether Carpenter is affirmed or overruled, the court discourse will likely revolve around the impracticability of the “third-party doctrine” in the digital age. Does sharing with one mean sharing with many? It is tempting to recommend that the court abandons the “third party” doctrine, but that may be over simplistic. If the court choose to modify it, then where should the line be drawn? should there be a difference between information voluntarily conveyed to a third party or stored on the cloud? There is also a time component to this issue.  How long is continuous tracking too long? All these questions, a priori theoretical will be fundamental to the future of our privacy.

University of Washington School of Law

Cheerleaders and Bananas: Star Athletica’s Implications for a Popular Halloween Costume

RI banana costume from complaintBy Anna McCurley

Every Halloween, some of the most popular costumes come with more than funny hats, swords, or fake blood – they come with copyright implications. Halloween costumes often correspond to the summer’s biggest blockbuster movie, popular cartoon princesses, or what’s going on in politics. This year, the winner of the coveted “most popular costume” prize is Wonder Woman and the two previous years it went to Harley Quinn. Halloween costumes are an opportunity to show humor, political views, fandom, admiration, and creativity. Such expression often entails the use (or misappropriation) of copyright.

However, this post isn’t about the elaborate costumes that exude fandom. This post is about cheerleading uniforms and bananas.

Rasta Imposta makes banana costumes. If you’ve shopped for Halloween costumes anytime in the past five years, you’ve likely seen one. Rasta has been producing banana costumes since 2001. In that time, they have sued four other companies for copyright infringement of their banana costume design. Three of those cases ended in closed settlements, most recently with Kmart Stores. One is still pending.

U.S. copyright law protects art, but not useful articles, and costumes occupy the murky space between the two. Things are even murkier in light of the Supreme Court’s newly-minted test for separating pictorial, graphic, or sculptural (“PGS”) works from associated useful articles under § 101 of the Copyright Act.

Decided in March of this year, Star Athletica v. Varsity Brands does away with the idea that the PGS elements of a costume must be physically removable from its useful aspects (serving as clothes) which the Second Circuit previously employed. The Supreme Court established a two part test: that a useful article (here, a cheerleading uniform) is eligible for copyright protection “only if the feature (1) can be perceived as a two- or three- dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.” The court held that only the “two-dimensional work of art fixed in the tangible medium of the uniform fabric” was copyrightable. “[R]espondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.”

The Court focused its separability analysis on the admissibility of the PGS work after it is removed from the useful article. It did not require that, in so removing, a useful article remain behind. This allowance, however, does not allow for nothing to be left behind after separation. “[B]ecause the removed feature may not be a useful article … there necessarily would be some aspects of the original useful article ‘left behind’ if the feature were conceptually removed.” Importantly, the Court disposed of the notion that there was any difference between physically and conceptually separating the PGS work from the useful article.

Applying the Star Athletica test to the banana costumes currently at issue, one must first identify what exactly comprises the PGS element to be removed. Here, the banana costume itself is useful as clothing, but it is also the entire PGS work. For example, the lines down the sides of Rasta Imposta’s costume serve dual functions: as structural seams and as design elements. Removing the banana elements from the costume wouldn’t leave behind much, if anything at all. It doesn’t have to, though. Post Star Athletica, the focus is now on what the PGS work would be independent of the useful article, not on whether the leftovers are still useful.

Here, removing the PGS from the useful article might entail closing the openings which allow the costume to be worn: the arm holes, the face hole, and the gap at the bottom that rests around the wearer’s hips. Closing those gaps would remove the utility from the costume and turn it into a sculpture of sorts. The Court did say that some aspects of the original useful article would need to be “left behind,” but that requirement might not be literal. Here, eliminating a person’s ability to wear the costume serves the same function as “leaving behind” the utilitarian aspects that classified it as clothing in the first place. The question now is “how little can you leave behind?”

That the Supreme Court favors conceptual separation means that more artistic-utilitarian merged works may be protectable under copyright law. If physical separation was the standard, the banana costume would not be protectible because there would be no clothing left without the banana elements. This new standard will likely have meaningful implications for industries like fashion, expanding protection for works that at one point did not qualify.

However, Rasta’s copyright could still fall under the weight of a court challenge on other grounds. After all, bananas come from nature and there are only so many ways a person can wear a banana. If it fails, however, it likely won’t be under the Star Athletica test.

University of Washington School of Law

New Damages Trial for Apple and Samsung, Questions Still Left Unanswered

Picture1By Alex Hagel

Apple and Samsung are back! A new chapter in the Apple v. Samsung saga is set to begin in May.

A federal judge in California has scheduled a third trial since Apple’s initial suit in 2011. The suit alleges Samsung illegally copied several Apple design patents when designing its own phone. The new trial for the two tech giants follows the Supreme Court’s decision last year, which resulted in a (narrow) victory for Samsung.

This round of Apple v. Samsung involves three Apple design patents related to the front cover of its iPhones. Patent D618,577 covers “a black rectangular front face with rounded corners;” patent D593,087 covers “a rectangular front face with rounded corners and a raised rim;” and patent D604,305 covers “a grid of 16 colorful icons on a black screen.” WJLTA previously wrote about the peculiarities of design patents, and its distinction from the far more common utility patents.

Apple received a $1 billion verdict in 2012 after a jury found Samsung illegally used Apple’s design patents, and awarded Apple the entirety of Samsung’s profits from the sale of the infringing phones. Subsequent appeals affirmed the district court’s decision to award the full value of the phones, but that value was later recalculated to about $399 million.

On appeal to the Supreme Court, Samsung argued Apple was only entitled to the value of the relevant “article of manufacture,” rather than the value of the entire phone. During oral arguments, the parties struggled to articulate how and when an “article of manufacture” should be distinct from the entire product. The United States, as amicus, argued four factors should be considered:

  • the scope of the design claimed in the plaintiff’s patent, including the drawing and written description;
  • the relative prominence of the design within the product as a whole;
  • whether the design is conceptually distinct from the product as a whole; and
  • the physical relationship between the patented design and the rest of the product.

The unanimous opinion refused to adopt a specific test for determining what constitutes an article of manufacture, instead ruling “the term ‘article of manufacture’ is broad enough to encompass both a product sold to a consumer [i.e. an iPhone] as well as a component of that product [i.e. the front casing of an iPhone].”

Which brings us back to the new trial. In her order granting a new trial, the district court judge directed the parties to argue using the above factors articulated by the United States. Samsung will likely argue the front casing is an article of manufacture and thus distinct from the iPhone as a product, because (1) the design claimed in the plaintiff’s patent is limited to the front casing, rather than the entire phone, (2) the prominence of the front design is overshadowed by the capabilities of the iPhone as a “smartphone” (3) the product [a smartphone] is conceptually distinct from the patented “black rectangular front face with rounded corners” and (4) the front cover is separable from the rest of the phone.

This new trial will not likely be the end of the story. If the court accepts Samsung’s argument that the front casing is a distinct “article of manufacture,” any damages the court awards will likely only produce more litigation because there is no clear standard on how to value that “article of manufacture.”

Although valuing an article of manufacture was discussed during oral arguments at the Supreme Court, the justices did not decide the issue, and the district court judge has not offered guidance. The likely candidate, embraced by the government and Samsung at oral arguments, requires companies to use consumer surveys and data to deduce “to what extent people who bought the product did so because of the particular article of manufacture.” In the alternative, the court might adopt a test looking at the relative cost of developing a part and awarding damages in proportion. The court was hesitant to embrace this approach because of the potential for a “eureka!” moment, where an important component of the product is produced in a flash of genius, rather than through extensive research and development. This approach would necessarily value that important component much lower because of the low cost of production.

With this open question hanging over the court, this well-known saga is unlikely to end anytime soon.

University of Washington School of Law

Taming the Gerry-Mander: How Technology Can Keep Gerrymandering in Check

181213-004-84DEAB79By Joshua Oh

A politician’s dream is to be re-elected over and over with minimal effort, so where might one look to ensure this? The answer, perhaps, is gerrymandering. Gerrymandering was coined after Massachusetts Governor Elbridge Gerry enacted a law in 1812 to redraw legislative districts to benefit his party, which resulted in one of the redrawn districts resembling a salamander—thus the term “gerrymandering.” In fact, it has been gaining a notorious reputation for its widespread use based on its potentially unfair effects on election results. However, the Supreme Court will soon rule on a case, Gill v. Whitford, that will heavily influence future American elections.

Gerrymandering is without a doubt toxic to American democracy. It allows politicians to choose their voters by “packing”—concentrating one party’s supporters in one district to win overwhelmingly. On the other hand, “cracking” splits up supporters of the opposing party into multiple districts in order to dilute their impact, preventing opponents from securing a majority vote. This essentially means that elections are predetermined and one person’s vote is not necessarily equal to someone else’s vote, which could contravene the Equal Protection Clause of the Constitution.

The Supreme Court has always been reluctant to intervene in partisan areas meant for the political branches of government to debate. Thus, a standard or definition of political fairness in the gerrymandering context had never been set. Gill v. Whitford, an extreme example of partisan gerrymandering in Wisconsin, may soon change that. In 2012, Republican elected officials in Wisconsin were able to draw up a districting plan that permitted their party to win 61% of the Wisconsin Assembly, even though they only received 48.6% of the vote. In 2014, they won 64% of the Wisconsin Assembly, despite receiving only 52% of the vote.

The issue in the Whitford case was whether partisan redistricting could be so extreme as to be unconstitutional. The argument goes that Republican efforts to redistrict caused the dilution of Democratic votes, leading to a non-representative government. By packing and cracking districts, the votes of individual Democrats meant less than those of individual Republicans. The nation’s highest court will soon decide whether these arguments are persuasive.

In ruling on the constitutionality of a given redistricting effort, the Supreme Court could receive valuable assistance from recent technological advances that are equipped to detect gerrymandering. Indeed, algorithms are the latest threat to gerrymandering, as computers can now determine whether districts were drawn with political motivations in mind. Down the road, these algorithms could be used in a court of law in order to challenge unconstitutional gerrymandering. Since courts are demanding that districts be drawn more fairly, these algorithms could be the solution in providing the citizenry a fair and representative democracy that it deserves.

Professor Wendy Cho with the National Center for Supercomputing Applications at the University of Illinois is attempting to create such an algorithm to measure whether political parties manipulated a map to gain an unfair advantage, a term described as a “gerrymandering ruler.” This algorithm would identify the criteria—some even required by law—of redistricting: population equity, contiguity, compactness, and traditional districting principles. Based on these criteria, the algorithm would generate billions of maps that are, by definition, nonpartisan maps, since no political information was considered. These artificial, nonpartisan re-districted maps could then be compared to the districts that had been created by politicians. If the real map does not look like any of the billion possibilities generated by the algorithm, that would provide strong evidence of partisanship motivating the alleged gerrymandering. On the other hand, if the algorithm generated a set of one billion maps with partisan information considered, and the map in question looked similar to any of those billion possibilities, a court could then also infer partisan motivation.

This algorithm is but one possible solution to the toxicity that gerrymandering brings into the election system. It may be beneficial for the courts to be more receptive to technological advances like this one that can better detect and prove partisan bias in gerrymandering. Such extraordinary technology could encourage lawyers to introduce algorithmic evidence into a court of law, allowing the court to better assess cases before them in an objective manner as partisan gerrymandering continues to be a problem in American politics. It can also be a useful way to objectively give a voice to those who have felt that their votes did not matter when their district was always won by a particular party. It would no doubt advance the “one person, one vote” principle that the Constitution demands.

Picture Source

University of Washington School of Law

What To Do About Russian Facebook Trolls?

Picture1By Hugo Fraga

Once again, Facebook is being prodded by state officials—this time from across the pond. Just one month after revealing to Congress that Russian-linked accounts purchased $150,000 worth of political ads during the US election, Facebook is being asked to provide British lawmakers with information on ads purchased by Russian-linked Facebook accounts during last year’s Brexit referendum and during this year’s general election.

Law makers in both the United States and Britain worry that the social media giant is providing a platform for foreign governments to interfere with the democratic process. Up until now, Facebook has not provided enough information to Congress to assuage this worry. For that reason, Congress—and from the looks of it, Parliament as well —is considering a bill that would require political advertisements on social media platforms to disclose who is paying for the advertisement.

This kind of regulation—at least in the U.S.—isn’t new. The Federal Election Commission is charged with ensuring that political advertisements on television and radio reveal the source of their funds and has a similar regulation for radio and television ads. But as it stands now, political advertisers on social media platforms, like Facebook, escape the FEC’s requirement to disclose the source of their funds because such advertisements are considered merely “small items,” and thus are in the same group as, say, buttons and bumper stickers.

However, Congress has introduced a bill entitled “The Honest Ads Act” that could change that. The Honest Ads Act would require social media companies with more than 50 million monthly users to make public detailed information about any political advertiser who spends over $500 on their platforms. Furthermore, it would require social media platforms to take “reasonable efforts” to ensure that any political advertisements or content they display were not purchased by a foreign national.

But some argue that this isn’t enough. Brendan Fischer, director of the Federal Election Commission reform at the Campaign Legal Center, told Wired Magazine that the kinds of advertisements purchased by Russian-linked accounts wouldn’t fall under campaign finance law because none of them included “expressed advocacy”—i.e., a prompt to vote for this or that candidate. And even if Congress expanded the meaning of a bill to include the kind of ads purchased by Russian-linked accounts, there would still be ways around it, like forming a “fake news” website and then posting the ad as an article instead.

Nonetheless, Congress likely realizes that a single bill won’t fix this problem and that there will be ways around any proposed solutions. However, many members of Congress see this bill more as an attempt to regulate what has seemed impossible to regulate: Facebook. And the advantage of that is that people won’t have to rely on Facebook’s internal efforts to solve the problem. After all, when has a company’s self-legislated efforts ever been in favor of the people.