Deepfakes – A Disastrous Merger of AI and Porn

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By David O’Hair

First appearing on reddit, a new trend called “deepfakes” has captured the public’s attention with one of the internet’s oldest promises – nude celebrity photos. Intimate celebrity images appearing online is nothing new in and of itself. A 2014 hack exposed hundreds of nude-celebrity images, while Gawker notoriously posted Hulk Hogan’s sex tape.

However, deepfakes present a novel issue in that the images, and often videos, of the celebrities are fake – but the underlying porn is real. Deepfakes use artificial intelligence mixed with facial-mapping software to essentially copy and paste someone’s face into preexisting porn content. The AI-software’s sophistication is such that content created by it, i.e., deepfakes, can be virtually indistinguishable from an authentic porn video featuring a specific celebrity. Celebrities are often the victims of deepfakes, because deepfakes require massive amounts of “raw footage” to import into the pornographic video. Chances are a celebrity has more time collected on video than the average person, but non-public figures can be the victims of deepfakes too. Continue reading “Deepfakes – A Disastrous Merger of AI and Porn”

Kill Quill: Volume 2

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By Michael Rebagliati

2017 ended with a legislative bang as Congressional Republicans (rapidly) passed the most sweeping overhaul of the tax code in a generation. For many tax lawyers, 2018 has begun with a whimper as they scramble to understand what this means for their clients.

And yet, another major change to U.S. tax law still looms on the policy horizon. But this time, the change is coming not from Congress, but from the Supreme Court. On January 12th, the Supreme Court granted certiorari in the case of South Dakota v. Wayfair, Inc. Continue reading “Kill Quill: Volume 2”

Hollywood’s Darkest Secret: How Hollywood Employs Non-Disclosure Agreements and Confidentiality Clauses to Silence Sexual Assault Victims

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By Alex Palumbo

Few disagree that 2017 became a defining “watershed” moment in the national conversation and spurred awareness of the stories and experiences of sexual assault victims. Few industries were left unaffected by this conversation by the year’s end, including the realms of politics, arts, cable news, morning news, and corporate America. Victims came forward in numbers neither seen nor heard before. As with any situation where previously hidden stories come to light, questions arise. How have we never heard these stories before? How long have the victims lived in silence? How were the perpetrators able to keep living their lives and abusing more victims? This article examines that final question specifically. How did these perpetrators continue their patterns of abuse—silencing their victims while continuing to live freely?

When The New York Times and The Washington Post first unveiled the pattern of abuse perpetrated by Harvey Weinstein, it shocked our collective societal conscious. However, within Hollywood—as more and more actresses and actors came forward—the narrative became clearer. A web of systematic support for Weinstein had allowed him to carry on these heinous acts for decades in Hollywood. But Weinstein’s calculated efforts of cover-up included provisions outside a pervasive and protective group of insiders. The legal system may have also aided Weinstein, as  non-disclosure agreements contained in employment contracts have precluded many victims from sharing their stories.

Federal labor law (National Labor Relations Act, Title VII of the Civil Rights Act) prohibits employers from disciplining workers who talk about sexual harassment, and invalidates settlement agreements which prohibit settling employees from filing charges with the Equal Employment Opportunity Commission. However, this area of labor law remains under-enforced (especially in light of victim silencing)—and an information asymmetry exists often with young actors and actresses (as in Weinstein’s case) who may not be fully aware of their right to raise claims against harassers and employers. Sexual assault is often about asserting authority over powerless victims, and repeated examples from the stories of Weinstein’s abuse in Hollywood expound this trend. Further, a distinguishing principle arises when a consistent pattern of sexual harassment may leave victims confused and without direction as to whether their voice will be heard if they report their claims internally to (often complicit) HR departments, but do not press criminal sexual assault charges.

Non-disclosure agreements exist at one side of the spectrum, where as part of an employment contract, an employee accedes to not disclose certain types of information as a condition of their employment. Confidentiality agreements also occur as a condition of settlement, outside of the courtroom and outside many of those federal labor law protections. Though victims who receive settlements arising from sexual assault claims may achieve financial vindication, they are then silenced from speaking about their experiences or face extreme “liquidated damage” provisions forcing them to pay back inordinate sums of money if any facts surrounding the dispute leak.

Hollywood is a unique industry where artists, actors, actresses—come from across the country and world to achieve their dreams in their corresponding field. Although there is no industry where it is easy for a sexual assault victim to simply relocate or change jobs/careers, Hollywood in particular breeds a “silencing culture.” Weinstein offers just one example of the notoriety surrounding Hollywood’s power-players, and that “sit down, shut up, then move along” deal-with-the-devil culture. Few, if any, professions are as public and outwardly facing as a career in Hollywood. When you are not making movies or landing roles—your absence is abundantly clear. This vulnerability is exactly what is preyed upon by Weinstein and other perpetrators like him.

In an industry of the arts like Hollywood, the reality persists that women are consistently and systematically treated unfairly and worse, inappropriately. The effort to silence women making sexual assault claims is just one of many sordid deeds in this industry—women are paid less and consistently face disparities, with those disparities widening amongst women of color. The reality stands that Hollywood, as an immediately recognizable force that informs our society and culture, now possesses an immediate responsibility to look inward and move forward to dismantle practices that have been in play for generations.

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Cryptocurrencies, Tulips, and Regulation?

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By Evan Fowler

Almost 400 years ago the Dutch were really excited about tulips. In a period of three years, a tulip bulb went from a reasonable value to as much as six times the average person’s annual salary. Today we look at Dutch people selling their homes to buy tulips as crazy (we literally call that bubble “Tulip Mania”). Yet, right now we are watching South Koreans sell their homes to buy a digital “currency” – Bitcoin. Continue reading “Cryptocurrencies, Tulips, and Regulation?”

Washington Officials Seek to Keep Net Neutral Despite FCC Repeal

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By Wiley Cason

In response to the repeal of Federal Net Neutrality rules, Washington State’s governor and attorney general have both argued that state-level regulations may still prevent Internet service providers (ISPs) from discriminating amongst data offered on their networks.

In 2015, the Federal Communications Commission (FCC) passed The Open Internet Order; a ‘Net Neutrality’ rule which reclassified broadband Internet from an “information service” (subject to Title I of the Communications Act) to a “telecommunications service,” subject to Title II of the Communications Act. By placing broadband Internet under the more restrictive Title II framework, the FCC was attempting to prevent “blocking, throttling, and paid prioritization” of Internet content, so that there would be no interference from ISPs in consumers and content providers “reach[ing] one another on the Internet.”

This past December the FCC voted 3-2 in favor of The Restoring Internet Freedom Order which repeals these rules and seeks to encourage investment and development in Internet infrastructure by returning to the so-called “light-touch” regulatory framework that existed prior to the 2015 rule.

Despite this repeal, Governor Inslee and Attorney General Ferguson hope that state laws and regulations will be able to preserve Net Neutrality for Washingtonians.

In response to the Net Neutrality repeal, multiple Washington-based ISPs have made loud promises to the public that they are committed to the principles of an “open Internet”, and will not be throttling or slowing down certain types of content for their users.

It’s promises like these that Inslee and Ferguson believe offer one possible path to state-level net neutrality protection; holding Internet providers to warranties made to subscribers. The Governor and Attorney general have other ideas too, including favoring ISPs that uphold Net Neutrality when awarding state contracts, and encouraging local governments to enter the market as Internet providers themselves.

Numerous Washington legislators are prepared to support these ideas, including Rep. Norma Smith (R-Clinton). This December, Rep. Smith announced that she was introducing legislation to prohibit blocking, throttling, or paid prioritization under the Washington Consumer Protection Act. Smith told the Spokesman-Review that if, “if the phone and cable companies truly support an open internet they should not object to the legislation.”

Regardless of whether any of the phone or cable companies object to these ideas, serious efforts to enforce state-level net neutrality laws are likely to run into push-back from the FCC. Senior FCC officials reportedly have said that state and local governments do not have authority to undermine the FCCs Internet rules, due to the Internet’s status as an interstate information service. Whether state-level laws on net neutrality would in fact be pre-empted by the FCC’s recent order is the subject of much speculation; some legal experts believe that courts would decline to bar states from regulating on their own. Even still, Washington’s Attorney General is challenging the Internet Freedom Order more directly in a separate lawsuit, filed at the end of last year.

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.

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.

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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.

(Don’t) Say My Name

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By Vanessa James

“We’re a company that’s so successful and everywhere you go, you see a scratchy, hairy fastener and you say…

Hey, that’s Velcro.”

So begins the recent Youtube video Velcro released on September 25, 2017. In an effort to protect itself against genericide—an intellectual property term that means the retraction of a trademark because the brand name has become synonymous with the type of product—Velcro released a video pleading with the public to stop saying “Velcro” and start instead saying “hook and loop.”

It may seem innocuous to use brand names to describe products associated with the brand, but this is actually often a red flag that the brand could potentially lose its trademark. For instance, when was the last time you drank from a “vacuum flask,” walked on a “moving staircase,” or went to a “coin laundry shop?”

Velcro, which was first registered as a trademark in 1956, is trying to avoid losing its trademark, as did thermos, escalator, laundromat, yo-yo, aspirin, and pilates. The purpose of a trademark is to uniquely distinguish the goods or services of a company and to help consumers identify the source of a product. When a trademark becomes synonymous with a class of goods, it no longer helps consumers to understand which company made the product. If this happens, the trademark may be cancelled by the U.S. Patent and Trademark Office. Once a trademark is cancelled, the mark can no longer be used to prevent others from using the same mark to describe their products.

One factor courts consider when determining whether a trademark has become generic is whether the owner attempted to educate the public on the proper use of the mark and the generic name for the goods. Enter Velcro’s video. Ad campaigns like Velcro’s have a record of successfully stopping brands from losing their registered trademarks. Campaigns for Xerox (a 2003 advertisement from photocopier firm Xerox read: “When you use ‘Xerox’ the way you use ‘aspirin,’ we get a headache), Jeep, and Band-Aid saved those trademarks from becoming generic.  Johnson & Johnson changed its marketing jingle from “I am stuck on Band-Aids, ’cause Band-Aid’s stuck on me” to “I am stuck on Band-Aids brand ’cause Band-Aid’s stuck on me.”  Chrysler turned to the term “SUV” instead of “Jeep.” The Dow Chemical Company, which makes a well-known “line of extruded polystyrene foam products,” has worked to remind consumers coffee cups are not made of Styrofoam.

Another recent example of a company fighting to save its trademark comes from well-known jewelry chain Tiffany & Co. Tiffany initiated a legal battle with U.S. wholesaler Costco when Tiffany claimed that Costco infringed its trademark by selling “Tiffany” engagement rings. In retaliation, Costco argued that the jewelry firm’s trademark was no longer valid because “Tiffany” had become a generic term for solitaire-style rings. Judge Swain of the United States District Court for the Southern District of New York determined that Costco did in fact infringe on Tiffany’s trademark and awarded Tiffany $11.1 million plus interest in addition to $8.25 million punitive damages. For now, producing a simple, fun Youtube video is far less costly way for Velcro to protect its trademark.

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Antitrust Implications of Amazon’s Purported New Delivery Service

Amazon-Shopping-in-KenyaBy Gardner Reed

Amazon’s recent acquisition of Whole Foods has renewed the debate surrounding the proper role of antitrust regulation. The traditional approach to antitrust law aims to protect consumers by keeping prices down and quality up. The Whole Foods acquisition, along with the growing dominance of large tech firms such as Google, has helped popularize a new approach to antitrust: “hipster antitrust.” Hipster antitrust widens the objectives of traditional antitrust regulation, not only protecting consumers through fostering competition, but also using antitrust enforcement to attack problems such as economic inequality and environmental degradation. While the Federal Trade Commission promptly approved the Whole Foods acquisition, recent reports that Amazon is developing a delivery service to rival FedEX and UPS may raise a new round of competitive questions and continue the debate surrounding the proper role of antitrust regulation.

To begin, it is important to understand why Amazon’s acquisition of Whole Foods was not an antitrust violation. First, Amazon itself only sells a small amount of groceries and Whole Foods only accounts for two percent of the American grocery market. Second, the grocery market contains far larger and more entrenched competitors, such as Walmart with a twenty percent market share and Kroger with a seven percent share. Third, antitrust regulators, applying the traditional approach to antitrust, believe that fostering competition is the best way to promote low prices and high quality. Because this merger accounted for only a small share of the grocery market, consumers were left with plenty of competitive alternatives whether or not it led to lower prices or higher quality services.

However, recent reports indicate that Amazon is planning to launch a new delivery service similar to FedEX and UPS. According to Bloomberg, project “Seller Flex” began a trial run on the West Coast in 2017 with an expansion planned for 2018. The purpose of the system is to decrease the crowding in Amazon’s warehouses and increase the number of products available through two-day delivery. Under this new system, Amazon will directly oversee the pickup and delivery of packages from the warehouses of third-party merchants who market their items on Amazon.com. Traditionally, when delivering to end consumers, merchants had the choice to ship their products directly through Amazon or to use third-party carriers such as FedEX and UPS. Amazon may still elect to use FedEX and UPS to make deliveries, but merchants will no longer be able to make the decision on their own. Amazon expects that its increased control of the shipping process will allow it to save money through volume discounts, avoiding congestion, and increasing its flexibility.

By drawing comparisons with Amazon’s acquisition of Whole Foods it is possible to identify potential competitive concerns implicated by the new delivery system. The key difference is the amount of competitive power Amazon wields in each market. In the grocery market, Amazon is not an antitrust risk because it is a small player with only a two percent market share, which gives it essentially no ability to affect its competitors’ businesses or the market as a whole. In the e-commerce market, however, Amazon provides an essential platform and acts as a gateway for businesses to reach consumers across the United States. In the past, merchants could participate on Amazon’s platform, but retained the option to select their preference of delivery service. By requiring the use of its own delivery service, however, Amazon will be depriving its merchants of choice. Given Amazon’s power in the e-commerce market, merchants have limited alternatives to Amazon’s platform and thus may have no other realistic option outside of using Amazon’s in-house delivery service. This lack of competition in delivery methods could potentially raise end prices for consumers.

Ultimately, it is too early to predict the competitive effects of Amazon’s delivery service, but different schools of antitrust may reach different conclusions. Consistent with its track record, it is likely that Amazon will do everything in its power to lower prices and offer a better service by integrating delivery into its e-commerce platform. Under these circumstances, a traditional antitrust review would not likely find a problem. A review under “hipster antitrust”, however, may find a problem regardless of the cost or quality outcome. As part of a larger policy matter, such as protecting small businesses, Amazon’s acquisition of more power and the reduction of choice for its merchants may simply be unacceptable. Regardless of the outcome, Amazon’s continued expansion of its operations has all but guaranteed that it will remain a focus of antitrust discussions for the foreseeable future.