Zoom Voir Dire: A Technological Gap is Not Going to Solve the Lack of Diversity in Jury Pools

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By: Talia Cabrera

Voir dire is the process of ensuring the “jury of your peers” is a representation of your community. Juries are made up of ordinary citizens and play an important role in the criminal justice system. Jurors, who are given the responsibility to decide a case’s verdict, enter the complexities of the courtroom with their own experiences and biases. Notably, jurors are often shouldered with the responsibility of making a decision that will impact how an individual’s life will play out. However, justice is often compromised due to the discrimination that occurs in selecting a jury. Juries that are not representative of the community at large will not only affect marginalized communities of color, but will also lead to higher rates of wrongful convictions and, ultimately, a system far from just.

Unrepresentative juries disproportionately affect communities of color. This discrepancy is apparent first in the unrepresentative jury pools from which jurors are selected and is then reinforced through current and historical use of peremptory strikes to remove people of color from juries. Apart from the institutionalized racism engraved in our history, there are a variety of factors that predominantly affect communities of color and prevent them from serving on juries. According to a report from the Equal Justice Initiative, these factors include: the inability to request time off for work; the financial burden of participation, which includes the courts not paying jurors enough money to participate and the difficulty of obtaining family care; and the lack of transportation for people to report to the courts. Ultimately, these barriers to jury service, which deeply affect the makeup of juries across the nation, need to be reformed to ensure the court system is fair. 

Discrimination in jury selection is a problem many courts have recognized and are striving to change. In 2018, the Washington Supreme Court adopted General Rule 37, which sought to eliminate the unfair exclusion of potential jurors based on race or ethnicity. According to the text of the rule, “the court shall then evaluate the reasons given to justify the peremptory challenge considering the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” Given the adoption of this rule, it is clear that Washington has taken initiative to reduce the discrimination we see in a courtroom in order to strive for justice. However, even courts like Washington, who have taken some steps in the right direction, need to take a step further. In order to have more inclusive juries, courts must create opportunities for more diverse communities to participate in jury selection. While it is clear that a state like Washington is trying to reduce unfair exclusion of potential jurors, peremptory challenges are just one part of a bigger issue that needs to be reformed. Courts need to take a step back and see how they can create a comprehensive solution that will bridge the gaps of accessibility that are currently present in jury selection. 

For example, the COVID-19 pandemic forced many sectors to transition to a “work-from-home” format in order to preserve workers’ health and the health of others around them. As of today, many companies continue to employ workers who work remotely, as many realized workers could continue to be efficient from the comfort of their home. While remote work was initially a temporary option for the pandemic, Washington state has seen more participation in remote jury selection and continues to use Zoom for that purpose. Whether Zoom or courthouse, not much has changed in the way jury selection occurs in King County, e.g., jurors still get notified in the mail if they have jury duty. But now, jurors no longer need to attend in person. In King County, jurors are still required to set time aside to attend court but now, so long as they have an electronic device, jury duty can be completed anywhere.

Through the incorporation of Zoom in court proceedings, jurors no longer need to spend time on tasks such as figuring out how to get to the King County Superior Courthouse downtown. Jury members are now able to eat lunch at home, avoid paying expensive parking, and still appear for 90 minutes in the comfort of their living rooms. Increased participation should help create a better reflection of the community in the jury of our peers. However, there are still many issues left unresolved. Even though Zoom voir dire may help with accessibility, such benefits are only available to those who have the privilege of possessing technology. Technology may not be available for everyone. It is possible that a juror may not have the appropriate resources to withstand hours of jury selection. For example, some jurors may not even have Wi-Fi. In addition to the technological divide that zoom voir dire creates, many of the same factors we have seen in the past, like the financial burden of taking a day off work, continues to be a prominent issue for people participating in jury selection. Although participation may have increased with zoom voir dire, it may have only done so for those who have the privilege of accessible technology.

Maybe there is a way for technology to help eliminate the risk of unrepresented juries in our court system. It is possible that new laws, policies, or even court rules like General Rule 37, will need to be created to help alleviate the factors that prevent jurors from participating. If possible, courts should provide individuals without access with loaned technology. For jury participants who do not have access to Wi-Fi, the courts should provide usable locations with Wi-Fi or temporary Wi-Fi vouchers. Currently, there is not a lot of faith in the criminal justice system in part because of the disparity in makeup of the broader community and that of jury pools. Efforts must be made to dismantle discrimination and create a fair and just court system. If not, we will continue to see the reinforcement of systemic racism throughout our criminal justice system.

Into the Dungeon–A Comparative Look at the Original and 2023 Open Gaming Licenses

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By: Perry Maybrown

It all started with a leak, which led to a draft, before ending in a retraction.

Wizards of the Coast (WotC) rolled a critical failure when trying to modify their Open Gaming License (OGL)—a license that allows other creators to make use of some Dungeons & Dragons content as building blocks for their own games—after a draft of the updated license was leaked to news outlet Gizmodo. While WotC insisted that little would change, the new license seemed to say otherwise.

The community revolted, leading to promises of boycotts, mass cancelations of subscriptions to D&D Beyond, and a new license called Open RPG Creative License (ORC) from rival company Paizo. Faced with this onslaught, the gaming company chose to back down and keep the OGL intact.

The OG OGL

The original OGL (1.0a), published in 2000, offered prospective gamers a perpetual license to “copy, modify and distribute” the open game content making up the Systems Reference Document (SRD). While the SRD changes with each new edition of D&D (excluding the 4th edition, which is a completely separate can of worms), the OGL stays the same and is perpetual, meaning the license has no set expiration date. The mechanics and building blocks for a Table-Top Role Playing Game (or TTRPG) make up the bulk of the SRD, which creates a base from which creators can build their own games. You can’t use the OGL to publish works that use WotC’s trademarks, like the famous dragon ampersand.  

1.0a includes several caveats that creators must follow to not confuse anyone about what is and what isn’t open game content. For one, a complete copy of the OGL must be included with every copy of open game content distributed. To avoid confusion, creators must also label what is open game content. Content can be directly from the SRD, open game content from other game makers, or original works that the creator wishes to add to the proverbial open game content pile. 

The license is far from perfect, however. Most notable is the lack of the  terms “revocable” or “irrevocable” in its text. This omission makes it difficult to know if WotC can terminate the OGL. Only further muddying the waters is section IX of the license. Through this clause, WotC retains the authority to update the license and allows creators to apply any authorized version of the OGL to any open game content distributed under any license version.  

WotC may argue that they can update the OGL and include in the new version language that declares the old to be unauthorized and thus void. However, because the OGL is a long-standing open license, there are legal arguments and evidence that may contradict WotC’s statement and prevent them from deauthorizing 1.0a. Many online have weighed in on the issue, even some legal authorities, with varying conclusions. For now, it’s challenging to say what way a court may lean, but even in that uncertainty, WotC pushed forward with the plan. 

The Leaked Draft

On January 5th, 2023, a draft of the new OGL 1.1 was leaked, and it was a radical departure from 1.0a. The license now limited the OGL to the “creation of roleplaying games and supplements in printed media and static electronic file formats.” Meaning creators could no longer create other media such as video games, videos, plays, or otherwise use open gaming content. There was a misunderstanding because one of the sections seemingly implied WotC would own any creations made under the OGL; however, that reading was likely incorrect. While section III does state that WotC owns both the licensed and unlicensed content, as defined in the OGL section I(A), neither of those categories include content made by the licensee. Licensed content refers to content within the SRD, and unlicensed is content not within the SRD. However, under section X(B), creators would grant WotC “a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.” So while creators would still own their content, WotC would still be allowed to use it. 

Some provisions did remain the same between 1.0a, and 1.1. For example, publishers would still be required to include the license with distributed works and identify anything considered “licensed content.” Some sections were expanded in the new draft, like the termination clause, which now allowed termination for various causes. In addition to these expanded terms, further requirements were also tacked on to the license. Such as a clause detailing the repercussions of terminating the license and an indemnity clause that would shift the financial burden to the licensee in several instances if WotC faced legal action due to the license’s contract. While these modifications were likely made to shore up 1.1 legally, the words “revocable” or “irrevocable” were still not in the new license.

The most significant change in 1.1 was that it had been split into two parts, commercial and non-commercial. Commercial had additional monetary requirements regarding royalties and registration. If someone wished to create content to sell, they were required to register and provide WotC with extensive information about the product and creator, reporting any revenue of more than $50,000. Royalties to WotC were only required once a creator had made more than $750,000 in revenue per year across all products produced under the OGL. Creators would have to send 25% of any qualifying revenue exceeding $750,000. Separate terms and royalty rates were detailed for Kickstarter-backed projects. 

The Updated Draft

Incensed by this update, fans pushed back, leading WotC to respond with a new draft, 1.2. The license was no longer split in two and did not require creators to pay royalties to WotC. Core D&D mechanics were now licensed under the creative commons license 4.0 CC BY. Rather than requiring the full license, creators could now either include the license or display the newly designed OGL product badge on their work. 

Creators were also no longer required to grant WotC a license to use works created under the OGL. Even a new provision under section 3 allowed creators to WotC for copying works (though it does have quite a few restrictions). There was no longer an indemnity clause, though the license bar users from participating in class actions against WotC for activities regarding the OGL. To avoid further conflict, 1.2 finally incorporated the magic words. “This license is perpetual (meaning that it has no set end date), non-exclusive (meaning that we may offer others a license to Our Licensed Content or Our Unlicensed Content under any conditions we choose), and irrevocable (meaning that content licensed under this license can never be withdrawn from the license). It also cannot be modified except for the attribution provisions of Section 5 and Section 9(a) regarding notices.” 

In The End

While 1.2 was created to appease the masses, the die had already been cast, and fans were not ready to accept what seemed to be just a modern rewording of 1.0a. WotC eventually backed down, deciding it was not worth the hassle to update the OGL. It is unclear in the future if any new content will be included from the next generation of D&D or if the OGL will stay as it is, only covering the three SRDs, and other open gaming content created for it. The future of these available licenses is unclear, but at least 1.0a is safe from change for now.

Disclaimer: I worked at Wizards of the Coast from 2019-2020. None of the information discussed in the above article is confidential, or provided directly to me by Wizards of the Coast or any of its agents during or after my year of employment. All documents and sources referenced are in the public domain. 

The Cellphone: Our Best Helper or an Illegal Recorder? 

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By: Lauren Liu

We have all experienced that shocking moment when we realized that the advertisement or post appearing on our screen happens to be the exact topic that we talked about in a very private conversation. Although we did not Google or browse that topic on the internet, somehow, that idea of upgrading our laptop or buying that new pair of shoes slipped into our browser and started waving at us from across the screen. We are in awe, and can even feel violated.

Such an experience has become so common that we forget how much our browser or the apps that we use are tracking us, and how much our cellphones are listening in on our every conversation. Especially after the revelations from Thomas le Bonniec, a former contract consultant for Apple, such an issue has raised more concerns for customers. According to Bonniec, Apple created a quagmire for itself involving many ethical and legal issues, including Siri’s eavesdropping. In many instances, iPhones record users’ private conversations without their awareness of it, and without any activation of Siri, which listens to users’ vocal commands and assists with their needs. The problem stems from the fact that every smartphone, including iPhone and Android devices, is a sophisticated tracking device with very sensitive microphones that can capture audio by the users, or even anyone within the vicinity. Furthermore, with 4G LTE and its bandwidth, these recordings can be stored and uploaded into the seller’s database without the knowledge or consent of the owner. Bonniec mentioned Apple’s explanation that these recordings were gathered into Apple’s database for analytics and transcription improvements. However, Bonniec’s revelation of Apple’s internal operation still caused many privacy concerns from customers and raised potential legal issues. 

In response to such concerns, companies created long consent forms for customers to sign before purchasing the product. The legal definition of consent is that a person with sufficient mental capacity and understanding of the situation voluntarily and willfully agrees to a proposition. Based on such a definition, a majority of customers could not have validly consented, because when most of them sign these consent forms, they do not read or fully understand the content in these forms. More specifically, regarding the problem of Siri, customers often do not clearly understand what Siri listens to or how their iPhones record their conversations. Most ordinary iPhone users often assume that Apple only evaluates voice commands and questions after they activate Siri for specific commands. 

Federal law (18 U.S.C. § 2511) requires one-party consent, which means that a person can record a phone call or conversation, so long as that person is a party to the conversation. If a person is not a party to the conversation, he or she can only record if at least one party consents and has full knowledge that the communication is being recorded. Most state laws follow such federal laws. It remains a question whether or not Apple or Siri should be legally considered a party to a conversation, but based on common sense, most consumers would likely think that it is not. Furthermore, it remains unclear whether or not the signing of a consent form without a comprehensive understanding of the form’s content is considered valid consent. Thus, even if a customer signs such a consent form, it remains possible that he or she still does not consent to be recorded.

In addition to learning about the law, consumers should also ask questions regarding potentially illegal recordings by electronic devices. How much private information is obtained? What confidentiality agreements were in place, and what oversight was implemented? Are actual audio recordings retained, and if so, for how long? With so much ambiguity still remaining, these questions can at least begin the process of addressing consumers’ concerns and reducing potential legal disputes for sellers.

Should the Police Be Able To Arrest You For Your Face?

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By: Kyle Kennedy

As technology has continued to evolve, law enforcement has begun to employ technological advances like facial recognition in their everyday pursuits. This has included issuing arrest warrants exclusively based on facial recognition matches.

Randall Reid was on his way to Thanksgiving dinner at his mother’s house in Georgia when he was arrested and jailed for stealing $10,000 of Chanel and Louis Vuitton handbags from a New Orleans suburb. The only problem was, Reid had never even been to Louisiana. This didn’t stop Reid from spending nearly a week in prison because a facial recognition tool had matched him to surveillance footage of the suspect in the case. Reid was arrested and held despite being about 40 pounds lighter than the suspect on the tape. 

This is not the first case of facial recognition technology leading to a wrongful arrest. Nijeer Parks spent 10 days in prison after an incorrect facial match and began to feel pressure to accept a plea deal because of his prior criminal record. Faced with the pressure of battling the court system and often the weight of prior charges, “[d]efense attorneys and legal experts say some people wrongly accused by facial recognition agree to plea deals”. Robert Williams has had multiple strokes since he was released from a 30 hour stint in jail after he was incorrectly matched to video of a suspect robbing a watch store. These are far from the only instances of inaccurate facial recognition leading to wrongful arrest. These arrests raise two important questions: can a facial recognition match be the basis of probable cause to substantiate a warrant? And if so, should it be? 

Facial recognition is broadly used to accomplish two tasks: verification and identification. Verification, also called one-to-one matching, is used to confirm a person’s identity like when logging into their smartphone or a banking app. Identification, or one-to-many matching, is when software compares an unknown face to a large database of known faces. Identification can be used on cooperative subjects who consent to having their faces scanned or uncooperative subjects whose faces are not scanned. The accuracy of these identification measures is much lower for uncooperative subjects whose facial images were captured in the real world. One algorithm had a 0.1% error rate when matching to high-quality mugshots, but this rate climbed to 9.3% when matching to images captured ‘in the wild’. The accuracy rates of facial recognition technology also vary by vendor; one top algorithm achieved an identification accuracy of 87% at a sporting venue while the accuracy rate of another vendor’s software was a dismal 40%. In addition to variation by vendor, even the most accurate algorithms tended to have “higher false positive rates in women, African-Americans, and particularly African-American women.” 

Probable cause differs for arrest warrants and search warrants. For an arrest warrant, probable cause is interpreted according to a flexible reasonableness standard based on a totality of the circumstances. For search warrants, there is probable cause when there is a fair probability there is evidence of a crime in the place to be searched. Based on the issues with accuracy and the frequency of inaccurate facial matches leading to wrongful arrests, a one-to-many match acquired through use of a facial-recognition algorithm cannot substantiate probable cause for a warrant without further evidence. This is especially true where the algorithm is used on images or video captured from uncooperative individuals ‘in the wild’, which would be the case when officers are trying to find unknown suspects with surveillance footage. A facial match with corroborating evidence linking a location to the individual matched might be able to substantiate a search warrant. On its face this might be less concerning due to the lower risk of wrongful arrests, but wrongfully or erroneously substantiated search warrants lead to many issues of their own.

The greatest danger posed by facial recognition inaccuracies are false positives because they lead to false accusations against otherwise innocent individuals. In response, some scholars have attempted to impose confidence thresholds on facial recognition algorithms to reduce the rate of false positives. One study found that a set of algorithms failed to return a match 4.7% of the time when no threshold was imposed, but that the rate jumped to 35% when a 99% threshold was imposed.  This means that 30% of the time the algorithm identified an individual, it was at a confidence level of below 99%. Many law enforcement departments that use facial recognition technology do not impose confidence thresholds on potential matches. While these confidence thresholds reduce the risk of false accusations, they still leave the door open for problematic uses of technology by law enforcement. Confidence thresholds are a band-aid solution which are difficult to enforce externally and allow the continued use of invasive surveillance technology.

Overall, one-to-many matches of uncooperative faces acquired through facial recognition algorithms are neither accurate nor reliable enough to be the sole basis of probable cause substantiating a warrant. These algorithms are susceptible to high error rates which vary unpredictably based on many factors, including the race and gender of the target individual. Additionally, the use of facial matching as the sole basis for arrest warrants has led to many wrongful arrests with long-term consequences for arrestees, like those mentioned above. The surrounding evidence of inaccuracy and history of wrongful arrests stemming from inaccurate facial matches make it clear that facial recognition matching shouldn’t be the legal basis for probable cause absent corroborating evidence. The remaining questions are to what degree a facial recognition match must be corroborated to substantiate a search warrant, whether police should be liable for harms stemming from inaccurate facial matches, and if so, what duty of care the police have in determining whether a given facial recognition match is accurate. Beyond further inquiry, the need for regulation surrounding the use of facial recognition and other surveillance technologies by law enforcement has never been more apparent.

It’s Going Down for Real: The Highs and Lows of Celebrity Endorsements

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By: Enny Olaleye

On January 18, 2023, prominent rapper Flo Rida, known for hits like, “Right Round,” “GDFR (Going Down for Real),” and “Low,” emerged victorious in his $82.6 million breach of contract lawsuit against the popular energy drink company Celsius Holdings Inc. Flo Rida, whose real name is Tramar Dillard, and his production company, Strong Arm Productions brought suit against Celsius Holdings Inc. In the suit, he claims the company had violated the terms of their 2014 endorsement deal and fraudulently hid information from Dillard during the time of partnership, which ended in 2018, and the court ultimately agreed. 

In the complaint, Dillard’s legal team stated that, “as a music industry superstar and international icon with millions of digital followers, Flo Rida played an instrumental role as the worldwide brand ambassador and launched a new era for Celsius brand development, growth, and expansion.” This statement raises questions about celebrity endorsements and the level of involvement celebrities actually undertake in these deals with multi-billion-dollar companies. 

Thus, the question arises: “What actually is an endorsement deal?” 

An endorsement deal is a contract between a company and a (typically well-known) celebrity who grants the company permission to use his or her name and reputation to advertise a product or service. After the contract is signed, the company compensates the endorser (celebrity) to promote the company’s product or services.  The contract lists the explicit terms and conditions of the endorsement for the celebrity, such as how or where the celebrity should advertise the product, or restrictions on how the celebrity uses the product or service in public. For the period of time defined in the contract, the company commits to providing the endorser with the product at their request free of charge as part of the compensation. 

From the company-standpoint, the primary goal of an endorsement agreement is to increase brand awareness and product revenue. Companies are able to increase brand awareness and product sales without associating their product with a particular celebrity, but by taking advantage of the popularity of their own spokesperson. On the other hand, companies are sometimes able to solidify their brand awareness with unknown individuals who later become popular from the brand awareness. For example, popular brand figures such as “Jake from State Farm,” and “Flo from Progressive,” have led to successful brand campaigns for their respective companies by becoming nationally recognized over time and gaining their own fame—even leading to celebrities dressing up as them for Halloween. 

However, from a celebrity standpoint, considering whether to endorse a product is a bit more complicated.   How involved a celebrity wants to be in the endorsement depends on a variety of factors like their level of desire to increase personal brand exposure, their desire to increase net worth, or their genuine personal  interest in cultivating and investing in the product itself. Today,  the prevalence of influencers and celebrities featured in television commercials and posting products on their social media pages is ubiquitous, whether it’s to increase their brand exposure or simply cut a check is less obvious. Further, it’s becoming more common to see celebrity-company combinations, such as Ryan Reynolds and Mint Mobile  or Flo Rida and Celsius, who enter into endorsement deals as co-owners or stakeholders, permitting them to retain a portion of the product revenue, while simultaneously using their celebrity to endorse the product. 

Although celebrity endorsements have been proven to increase product revenue and awareness, as well as build product credibility, there are still drawbacks companies must consider. First and foremost, celebrities do not work for free. Securing a celebrity endorsement is expensive for companies. Additionally, as product revenue increases celebrities often expect to be paid more, reasoning that the increase in profit directly correlates with their endorsement. In fact, most celebrities ensure companies expressly include this provision in the endorsement agreement before proceeding with the partnership. 

With respect to Dillard’s suit against Celsius, his team claimed such a provision was “specifically contemplated in terms of the agreement, that ‘as Celsius profited in the future, additional compensation would be paid to Dillard by Celsius in the form of shares of company stock and ongoing royalties.’” Further, his legal team claimed that “from ‘a financial perspective,’ Celsius ‘exponentially increased product revenues and sales, attracted key investors, and upgraded its financial status upon partnering with Dillard starting in 2014—all of which ultimately led to the important transition into the Nasdaq market in mid-2017.’” In response, Celsius’ legal team claimed that they did not owe Dillard any additional financial compensation, provided that “the amount of royalties he [Dillard] was entitled to on the products did not exceed the stock revenue he had already been paid. In addition, any increase in Celsius’ stock value occurred after Dillard’s contract expired and therefore Celsius does not owe him any additional compensation.”  

Ultimately, when cultivating celebrity endorsement agreements or simply contracts of any kind, it’s important to complete due diligence, where both parties must undertake all precautions while drafting and reviewing the contract, in hopes of avoiding litigation, drawing bad publicity to the client and ensure the nature and use of the product is not breaching any legal provisions.