Man or Machine? EU Considering “Rights for Robots”

robotBy Grady Hepworth

Isaac Asimov’s 1942 short story “Runaround” is credited for creating the famous “Three Laws of Robotics.” Asimov’s Laws, although theoretically fictional (and most recently featured in the 2004 motion picture I, Robot), require robots to i) not hurt humans, to ii) obey humans, and to iii) only protect themselves when doing so wouldn’t conflict with the first two rules. However, the European Union (“EU”) made headlines this month when it took steps toward making Asimov’s Laws a reality.
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Are My Emails Beyond the Grasp of the U.S. Government?

gavelBy Mackenzie Olson

Companies like Microsoft and Google store a lot of customer data in storage centers overseas. As of July 2016, 2nd Circuit precedent indicated that, due to the foreign location of those centers, the U.S. government could not compel these companies to turn over data, even by issue of a search warrant. The case that rendered this decisions was In the Matter of Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corporation. (But also take note of the dissent in the denial of en banc review). As the Southern District of New York adjudicated the Warrant case, the Second Circuit Court of Appeals was its final arbiter. Accordingly, the Court of Appeals’ judgment only controlled as precedent in that jurisdiction. And though its opinion has been persuasive elsewhere, at least one judge, based in the Third Circuit, now disagrees with its outcome.

On February 3, 2017, Magistrate Judge Thomas J. Rueter of the Eastern District of Pennsylvania issued an opinion and subsequent orders compelling Google to turn over certain data stored in overseas facilities, per the request of two previously issued search warrants.

In his opinion, Judge Rueter explains that, “the present dispute centers on the nature and reach of the warrants issued pursuant to section 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 (“SCA”).

He frames the relevant issues as follows: “The court must determine whether the [g]overnment may compel Google to produce electronic records relating to user accounts pursuant to search warrants issued under section 2703 of the SCA, or in the alternative, whether Google has provided all records in its possession that the [g]overnment may lawfully compel Google to produce in accordance with the Second Circuit’s ruling.” Rueter ultimately holds that “compelling Google to disclose to the [g]overnment the data that is the subject of the warrants does not constitute an unlawful extraterritorial application of the [SCA].”

In its reporting of the decision, news outlet Reuters particularly emphasizes Judge Rueter’s reasoning that “transferring emails from a foreign server so FBI agents c[an] review them locally as part of a domestic fraud probe d[oes] not qualify as a seizure . . . because there [i]s “no meaningful interference” with the account holder’s “possessory interest” in the data sought . . . [the retrieval] has the potential for an invasion of privacy, [but] the actual infringement of privacy occurs at the time of disclosure in the United States.”

Orin Kerr, law professor at The George Washington University School of Law, notes numerous problems with Judge Rueter’s decision. “The issue in this case is statutory, not constitutional. Even if you accept the (wrong) framing of the issue as being whether the SCA applies outside the United States, the answer has to come from what Congress focused on, not where the constitutional privacy interest may or may not be. Where you place the Fourth Amendment search or seizure strikes me as irrelevant to the extraterritorial focus of the statute.”

Kerr further contends that, “Even accepting the court’s framing, I don’t think it’s right that no seizure occurred abroad. As I see it, copying Fourth Amendment-protected files seizes them under the Fourth Amendment ‘when copying occurs without human observation and interrupts the stream of possession or transmission’. . . . That test is satisfied here when the information was copied. The court suggests that bringing a file back to the United States is not a seizure because Google moves data around all the time and ‘this interference is de minimis and temporary.’ I don’t think that works. Google is a private company not regulated by the Fourth Amendment, so whether it moves around data is irrelevant.”

It will come as no surprise that Google plans to appeal the Third Circuit decision. Likely a slough of other tech and media companies that previously filed amicus curie briefs in the Microsoft case will file briefs again, such as Apple, Amazon, AT&T, eBay, and Verizon.

Key questions that remain, then, are what will the Third Circuit decide on review?

Will the court follow the precedent set by the Second Circuit in Warrant?

Will it adopt the reasoning of the dissenters in the denial of Warrant‘s en banc review?

Will it follow Judge Rueter’s reasoning in the case at bar?

Or will it render an entirely novel opinion?

And though we can be sure that the losing party will petition the Supreme Court, one also must consider whether a final player emerge, in the form of Congress directly intervening? After all, the SCA was enacted in 1986, and many consider it not only out of date, but also relatively unworkable for modern technological issues. The time certainly seems ripe for a statutory update.

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Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands

powerplantBy Gwen Wei

Five days after the inauguration of President Donald J. Trump, his administration officially instructed the Environmental Protection Agency (“EPA”) to delete all references to climate change from the agency’s website.

The demand generated an instant outcry: from the media, members of the scientific community, and believers in global warming at large. Continue reading “Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands”

Supreme Court Hears Oral Arguments for Lee v. Tam

lee-v-tam-picBy Kiran Jassal

The Supreme Court of the United States recently heard oral arguments for Lee v. Tam to decide whether the disparagement provision of the Lanham Act is facially invalid under the First Amendment. The disparagement provision resides in Section 2(a) of the Lanham Act and states that a trademark which “[c]onsists of…matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…” may not be registered.

In 2011, Simon Shiao Tam filed a trademark application for his band name, “The Slants.”

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Public Records in the Age of Trump

twitterBy Jeff Bess

It is  more than cliché to observe that the advent and evolution of the internet has deeply transformed modern society in many ways, both micro and macro. Indeed, not a clearer example exists than the role social media played in the 2016 presidential election. With over twenty million followers on Twitter and nearly 35,000 tweets, Donald Trump leaned into this direct line to the masses to set a new high water mark for social media ubiquity in pursuit of the White House.

Though derided by many as misguided or un-presidential, it is undeniable that Trump’s avid use of Twitter has been and continues to be effective. Indeed his prolific social media presence was a key source of the estimated $2 billion in earned media that greatly contributed to his success. And now that he is president, do his characteristic early morning, sometimes scattershot flurries of 140-character missives count as official government records? In other words, are they subject to federal document retention laws?

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There is Also an App For That

 

judge-aiken
The Honorable Judge Ann Aiken

By Jessy Nations

At the risk of sounding older than my years, it seems we are now demanding an app for everything these days. Even when we don’t need or want an app for something, one inevitably appears. That is, except, for legal apps, which are notably absent from the app store. Sure, I can download a copy of Black’s Law Dictionary, and Google is more than happy to direct me to lawyers in my area, but last I checked the smartphone revolution hadn’t done much for the criminal justice system … for now.

However, in an effort to modernize the reentry process for former inmates, a group of developers, lawyers, and judges are working on a reentry app . The idea is to turn the justice system from Big Brother into little brother. Continue reading “There is Also an App For That”

Mitsubishi Regional Jet Runs into Regulatory Turbulence in the American Skies

ja21mj_2016-09-27_img_4836By Mariko Kageyama

Say you are a maker of a brand new aircraft. You show off its blueprint and miniature model and take orders before you have even constructed it. What legal risks are you willing to assume at this stage? Though this may seem a quintessential contract question, a real case involving Mitsubishi provides us an interesting twist.

On September 28 and November 18, 2016, the first two Mitsubishi Regional Jet MRJ90 test aircraft made successful ferry flights from Nagoya, Japan to Moses Lake, Washington. Built by Mitsubishi Aircraft Corporation, the MRJ90 is the first all-new commercial airplane manufactured in Japan in the last half a century. A fleet of MRJ90 test aircraft will be undergoing test flights in partnership with a local engineering firm, AeroTEC, which is based at the Grant County International Airport in Moses Lake. A team of over 200 aerospace engineers in Moses Lake, Seattle, and Nagoya is aiming to make the MRJ90’s formal certification process as smooth as possible to allow entry its into service in 2018.

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DMCA Takedown Notices: Never Enough, Always Too Much

picture1By Ari Robbins

Digital Millennium Copyright Act (“DMCA”) takedown notices are headed to the Supreme Court where they could themselves be facing a takedown. These notices are issued outside of a court process and are supposed to warn online hosts that content on their websites might constitute copyright infringement. Per the Ninth Circuit decision that is headed to the Court, Lenz v. Universal Music Corp., the sender of a takedown notice must have a subjective belief that material related to a notice is not fair use. Imposing such a standard has far reaching implications for all senders  and recipients of DMCA takedown notices.

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China, Cisco, and What Happens When the Technology We Love is Used for Hate Overseas

By Seth Parentfact-picture

In Doe v. Cisco Systems, Inc., Cisco Systems is under fire for a recent development in its ongoing business relationship with the Chinese government. The plaintiffs in Doe allege that Cisco knowingly aided and abetted the Chinese government by developing a system custom-tailored to identify, track, and persecute members of a minority group known as the Falun Gong.

The complaint was initially dismissed for lack of protection under the Alien Tort Statute (ATS), though it is now on appeal. The ATS grants federal district courts jurisdiction over violations of certain international laws regardless of where the harm occurred or who inflicted that harm.

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A Tale of Two Cameras

By Daniel Healow

cmera
Depending on your views about privacy and police accountability, it may be the best of times or the worst of times. Either way, it is clear that sensors, specifically cameras, have taken center stage as communities seek to objectively reconstruct confrontations between law enforcement and the public.

In what many call the “fastest technology upgrade in policing history”, body-worn cameras (BWCs) are quickly being deployed by police forces throughout the nation, inspiring widespread public support. Although a recent New York Times profile on the rollout of BWCs in Seattle highlighted the growing pains of rapidly deploying new technology, a summer survey found that  70% of Americans support BWCs becoming standard issue throughout all law enforcement. As an added bonus, the cameras appear to be increasing public accountability as well. Studies show public complaints of police misconduct down a whopping 93% in municipalities that have deployed the cameras. So the more cameras the better, right?

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