University of Washington School of Law

COVID-19 Vaccine Passports: A One-Way Ticket to a Normal Life or a Threat to Individual Privacy and Equality?

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By: Kelsey Cloud

As the percentage of fully vaccinated individuals continues to increase globally, countries have begun to consider whether or not to require vaccine passports—digital passes confirming that the owner has been fully vaccinated against COVID-19—in order to attend sporting events, concerts, and other pre-pandemic activities. A simple scan of a QR code on a smartphone or printed paper would allow the flow of international travel to resume, as well as allow consumers access to certain businesses, events, or locations within their home countries. China, New Zealand, Israel, and the United Kingdom have already launched various versions of vaccine passports, with widely varying policies and methods of implementation. For example, the European Union’s Digital Green Certificate collects an individual’s name, birthdate, date of issuance, and vaccine information. Moreover, a multitude of international organizations, including the World Health Organization and International Air Travel Association, have begun launching efforts to coordinate vaccine passport implementation as well.

In the United States, President Biden issued an Executive Order instructing the State Department to collaborate with global health organizations to establish international travel guidelines. However, the administration explicitly stated that the federal government will not issue vaccine passports, nor collect or store personal vaccine data. As such, without a federal mandate, vaccine passport initiatives in the U.S. remain in the private sector, driven by companies such as Microsoft, Salesforce, IBM, and MasterCard. All applications are still in the development stage, and several governors have already issued executive orders banning the use of vaccine passports in their states. The absence of a federally issued vaccine passport, coupled with the lack of uniform digital standards at an international level, create significant implementation issues that stir complicated political and ethical debates surrounding privacy, inequality, discrimination, and fraud.

Private Sector Digital Vaccine Passports Full of Privacy Concerns

The lack of a federal privacy law regulating the collection and use of personal information fosters concern surrounding oversight and control of that information. While companies developing passport applications seek to preserve as much individual privacy as possible, a federal application would likely need to include enough personal and medical information to confirm that someone has been vaccinated, such as name, contact information, and medical records from health care providers. The protections of the Health Insurance Portability and Accountability Act (HIPAA) would not be implicated in most situations, since passport applications could be developed without transmitting information to HIPAA-covered entities such as hospitals.

While some companies claim that their applications have robust privacy protections by encrypting confidential user data, the lack of legal remedies for privacy violations still leaves digital vaccine passports ripe for abuse and vulnerable to privacy breaches. Allowing private companies direct access to medical records raises questions concerning if and how third-party companies will store and use that data. Without oversight from the federal government, those private companies could capture personal health information in ways that create a significant target for hackers.

Current Vaccine Distribution Policies Reinforce Systems of Inequality    

Additionally, restrictive vaccine distribution policies favor  high-   income countries and worsen inequalities domestically and internationally. Globally, most low and middle-income countries still lack access to COVID-19 vaccines, and within high income countries, African Americans and Hispanic individuals continue to be vaccinated at lower rates than White individuals. As of April 15th, only 0.1% of the 841 million administered vaccine doses went to individuals in low-income countries. Joia Mukherjee, Chief Medical Officer of Partners in Health, warns that the world is “creating another superstructure or colonial hierarchy of people from wealthier countries having access and poorer countries not having access.” In the U.S., high poverty and uninsured populations, as well as non-citizen immigrants, share a direct correlation with lower vaccination rates. Moreover, vaccine passports have the potential to discriminate against those who cannot receive vaccinations due to medical or religious reasons. While many vaccine passports, such as the State of New York’s Excelsior Pass, allow for the use of a negative COVID-19 test in place of proof of vaccination, other countries like China exclusively admit vaccinated individuals, increasing the possibility for discrimination.

In addition, those without smartphones, mobile devices, or a reliable mobile data plan would suffer technological discrimination. Vaccine passport applications would disregard those in marginalized communities, such as formerly incarcerated people or undocumented people, who typically hold higher fears of government surveillance of their private health information. Requiring digital passports for travel, both domestically and internationally, could only exacerbate these inequalities.

Towards a Unified Global Approach Vaccine certifications for international travel are not new—many countries currently require proof of yellow fever vaccinations, for example. Mass vaccination initiatives have sprouted throughout history, both in the U.S. and around the world. Prior vaccine initiatives in place before COVID-19 already carry vaccination requirements for attending work, educational institutions, and traveling internationally, which the vast majority of the world complies with. In order to ensure the effectiveness and reliability of COVID-19 vaccination passports, private companies, international organizations, and other entities developing vaccine passports must safeguard the privacy of medical information, prevent fraudulent vaccination data, and implement anti-discriminatory policies that lessen global inequalities.

A New York City Councilmember has proposed the first bill that would prohibit weaponizing police robots

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By: Zoe Wood

In February of this year, I wrote about how lethal autonomous weapons systems—or Killer Robots, depending upon who you ask—are under-regulated both nationally and internationally. In March, New York City councilmember Ben Kallos proposed what is likely the nation’s first law regulating law enforcement use of robots armed with weapons.

Proposed Int. No. 2240-A is just fifteen lines long and it bans two types of conduct. First, the New York Police Department (NYPD) “shall not authorize the use, attempted use or threatened use of a robot armed with any weapon.” Second, the NYPD “shall not authorize the use, attempted use or threatened use of a robot in any manner that is substantially likely to cause death or serious physical injury, regardless of whether or not the robot is armed with a weapon.” A weapon is “a device designed to inflict death or serious physical injury,” and a robot is “an artificial object or system that senses, processes and acts, to at least some degree, and is operated either autonomously by computers or by an individual remotely.” 

Councilmember Kallos proposed Int. 2240 in response to a late-February 2021 incident during which the NYPD brought an (unarmed) robot to an active crime scene in the Bronx. Kallos reportedly watched footage of this event “in horror.” “Robots can save police lives, and that’s a good thing,” says Kallos, “[b]ut we also need to be careful it doesn’t make a police force more violent.”

The robot in question strongly resembles a dog despite a complete lack of fur, ears, or anything resembling a face, and is generically called “Spot” by its manufacturer, Boston Dynamics. Spot is approximately two-and-three-quarters feet tall and three-and-a-half feet long. It weighs 11.5 pounds and can last up to 90 minutes on one battery charge. Spot can also travel at about three miles per hour. Why exactly would the Spot robot be useful at an active crime scene? The robot’s primary utility is for surveillance. According to Boston Dynamics, “Spot is an agile mobile robot that navigates terrain with unprecedented mobility, allowing you to automate routine inspection tasks and data capture safely, accurately, and frequently.” At an active home inspection like the one in late February in the Bronx, Spot was likely brought in by the NYPD to surveil the residence with cameras before police officers entered the premises. Although Spot has the ability to operate autonomously, the NYPD has reportedly only used its Spot robot with a remote control.

A prominent robotics company owned by Hyundai Motor Group, Boston Dynamics  is perhaps most popularly famous for its dancing robots. However, the advertising on its website focuses on solutions for construction, industrial inspection, and work in warehouses. Notably, policing is not actively advertised as an implementation for Spot. In fact, policing is mentioned just twice, embedded within two FAQs. The same goes for military use of Spot, which is not advertised and appears just once in an FAQ.

In fact, Boston Dynamics is opposed to weaponizing its robots. CEO Robert Playter has explained that “[a]ll of our buyers, without exception, must agree that Spot will not be used as a weapon or configured to hold a weapon.” This language is included in the Software License section of the Spot robot’s Terms and Conditions of Sale, which reads in relevant part: “The License will automatically and immediately terminate, and we may disable some or all Equipment functionality, upon (a) intentional use of the Equipment to harm or intimidate any person or animal, as a weapon or to enable any weapon,” or “(b) use or attempted use of the Equipment for any illegal or ultra-hazardous purpose.” Playter explains “[a]s an industry, we think that robots will achieve long-term commercial viability only if people see robots as helpful, beneficial tools without worrying if they’re going to cause harm.”

There are several glaring reasons why this paragraph in Spot’s Terms and Conditions of Sale is insufficient to ensure that Spot not be weaponized. First, and foremost, while Terms and Conditions of Sale are binding, they lack the staying power of a law or regulation and can be changed from contract to contract. Second, there are many different kinds of robots currently in use by law enforcement, and they should all be regulated uniformly. Regulation lacking in uniformity could lead to a complex legal landscape that is difficult to enforce, riddled with loopholes, and which favors certain technologies over others. Third, and most specifically, the Boston Dynamics Terms and Conditions of Sale do not define key terms such as “intimidate” and “ultrahazardous.” Finally, the commercial viability of robots, as cited by Boston Dynamics, should not be the primary motivation behind regulations that ban killer robots. What makes a product commercially viable is wont to change, and besides, human-centric policy which values people over property should form the basis for regulation that bans killer robots.

This is where Councilmember Kallos’s bill excels: it would have staying power, would apply to all police robots uniformly, and appears to be motivated by human-centric policy considerations. And although the bill may seem premature, there have been several instances of law enforcement robots using force against people, at least once resulting in death. Most famously, in 2016, the Dallas Police Department used a military robot—a Remotec Andros—to curtail a standoff with a sniper who had killed two police officers and gravely injured three more. Faced with an hours-long standoff, Dallas police officers placed a pound of C-4 explosive on the robot’s extension arm and maneuvered it by remote-control into the building where the sniper hid. When the C-4 exploded, it killed the sniper and ended the standoff. Less famously, police in Dixmont, Maine used the same type of robot with the same type of explosive when they were called to the home of a man having a mental health crisis. When officers could not get the man to come out of the house, and after the man began shooting out of his window at the armored police vehicle, police maneuvered a robot armed with an explosive device towards the man’s home. When the device detonated, it caused the man’s house to collapse, but miraculously killed neither the man, nor the dog or kitten living with him.

Still, Councilmember Kallos’s bill is vulnerable to some criticism. First, Int. No. 2240 does not appear to take into account the years of organizing work done by the Campaign to Stop Killer Robots. The Campaign advocates for maintaining meaningful human control over the use of force, and Int. No. 2240 stops just short of this. While it prohibits “use of a robot in any manner that is substantially likely to cause death or serious physical injury,” it does not ban outright the use of force by remote controlled or autonomous robots. The Campaign has written policy that explains why such a ban is necessary, and Int. No. 2240 would benefit from being informed by such policy.

Finally, Int. No. 2240 does not contemplate that weaponization, lethal or otherwise, is not the only aspect of police robots that is concerning. Although this need not necessarily be reflected in a bill that bans weaponization, discussion about regulating police robots should keep in mind their myriad uses, including their capacity for surveillance. 

The Doctor Will See You Now… In Your Living Room: Amending the Ryan Haight Act

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By: Anonymous

During the COVID-19 pandemic, the need for mental health services has exploded. The week COVID-19 was declared a pandemic the prescriptions filled for anti-anxiety, anti-insomnia, and antidepressants went up 21%. During the course of the pandemic itself, we are seeing an increase in the use of non-prescribed fentanyl by 32%, methamphetamine by 20%, and alcohol sales going up by over 25%. Additionally, suspected drug overdoses increased by 18%. The need for effective mental health services has never been more acute.

COVID-19 has forced us to conduct as much of our lives as possible remotely, this includes our medical appointments. As of March 17, 2020, the Ryan Haight Act has been suspended by the Drug Enforcement Administration (DEA). The Ryan Haight Act requires a provider to conduct an initial in-person examination of a patient before any controlled substance can be prescribed to the patient. The act itself was passed in 2008 to regulate online prescribing as there has been a rise at the time of adolescents in particular accessing prescription-controlled substances through the internet for non-medical purposes. Technology has become vastly more sophisticated since the act’s passing. With most medical records online, electronic prescribing, and the ability for providers to connect with patients through high quality two-way interactive video, forcing in-person visits for a practitioner to prescribe a mental health drug does not make logistical sense. Importantly, oftentimes the medications for mental health conditions, such as anxiety and depression, are controlled substances. The DEA classifies controlled substances in regard to medications to have a certain or higher potential to be abused or cause addiction.

Allowing a patient to access mental health care from their home offers patients more options and is more amenable to those who have conditions that might make it difficult for them to leave their homes. Beyond this, moving appointments online during the pandemic has shown that many of the appointments we conduct in person can be done just as, if not more, effectively through telemedicine. Telemedicine is more cost effective and more convenient for doctors and patients alike for certain medical issues. In fact, 87% of patients found telemedicine visits more convenient and 84% of patients found it improved their relationship with their physician.

The actual difference between an in-person visit and a telemedicine synchronous two-way visit is minimal and in fact psychiatrists reported improved outcomes for telemedicine patients. With telemedicine care, patient attendance increased and 85% of people who visited psychiatrists for the first time online were satisfied with their visit. In addition, studies have shown that when patients keep their first appointment they are more likely to keep subsequent appointments, continue treatment, and are overall more satisfied with their treatment. Further, research shows that the above results create better medication compliance, few visits to emergency rooms, and fewer readmissions to inpatient units.

Armed with these statistics, the American Psychiatry Association has recommended that once the Ryan Haight Act is no longer suspended, the act should be amended to allow physicians to prescribe these prescription-controlled substances through first time psychiatry telemedicine visits. Legislation needs to keep up with and respond to improvements in patient care and patient needs. Oftentimes there is a disconnect between the law and medicine as in terms of what is best for patient safety and the abilities of technology, and COVID-19 has made these discrepancies even more apparent. It has prompted an examination of previous telemedicine laws. The suspension and alteration of the Ryan Haight Act during COVID-19, especially, makes us ask if this sweeping law truly helps patients. In response the outcry from the APA and others in the medical community, the DEA did update the law in September of 2020, but did not remove the in-person requirement. Instead, it introduced a registration system for physicians to register for telemedicine privileges; however, they have not further elucidated how or when this system will be implemented.The introduction of special telemedicine designation is a start to remedying this issue, but the DEA needs to prioritize and inform physicians how they can register for this designation. This lack of clarity could result in uncertainty for physicians who could then not prescribe needed medication to a patient due to licensing and regulatory concerns. The mental health crisis in this country cannot be addressed properly if patients cannot access the medication they need safely in the pandemic, nor can it be addressed otherwise by making these medications highly inaccessible in settings that do not warrant it. Telemedicine psychiatry for most patients should be the accepted practice and the law needs to recognize this in order to help physicians to put their patients first.

The Legacy of Nazi Germany and the State of Restitution in 2021

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By: Camille Walther

In the first part of 2021, the state of restitution of art works removed from their owners during Nazi Germany’s occupation of Europe remains unresolved, as evidenced by two recent decisions within the United States and throughout the world. In March 2021, France made news by passing a bill to authorize the release of Gustav Klimt’s Rose Bushes Under the Trees to the descendants of its prewar Jewish owner. Meanwhile, in February of this same year, the United States Supreme Court rejected claims of Jewish heirs who sought to sue Germany for taking property from its own citizens.

French Restitution: The Art World Seeks to Make Amends

Rose Bushes Under the Trees had, until recently, represented the only painting by the prolific Austrian artist Gustav Klimt owned by France. Its prewar owner was Nora Stiasny, a member of a well-known Austrian Jewish family who inherited the painting from her uncle, Viktor Zuckerkandl. Stiasny was forced to sell the painting in August of 1938 for much less than its value to survive months after the Nazis annexed Austria; in 1942 she was deported to a concentration camp in Nazi occupied Poland and died that same year. The French state bought the painting in 1980 without knowing its provenance, and it has been displayed in the Musee d’Orsay, one of France’s most prolific art museums. In 2019, the descendants of Stiasny’s sister filed for restitution; significantly, this occurred the same year that France’s Ministry of Culture launched an initiative to identify stolen works in its collections. Restructuring the path of this work until its acquisition by the Musee d’Orsay was described as “particularly arduous due to the destruction of most of the evidence and the erosion of family memory;” however, the case was able to proceed when the French government passed a bill to authorize the painting’s release. Klimt’s Rose Bushes Under the Trees will be the first time a work from France’s national collection is being restituted.

This represents the breadth of scars left by Nazi Germany’s occupation of Europe and the Holocaust on the Jewish community and the impact this has had on the art world as a whole. French Culture Minister Bachelot calls Rose Bushes Under the Trees a “testament to the lives that a criminal will had stubbornly sought to eliminate.” That the painting was sold under duress represented by German occupation rather than stolen outright hold significant to the requirements for restitution. Likewise, that France passed a new bill to release a painting from its national collection may demonstrate the willingness of nations and the art world to make amends for the violence done on the Jewish community during the reign of Nazi Germany. Still, legal barriers to restitution remain, as demonstrated in February’s United States Supreme Court ruling.

The International Shortcomings of Restitution: The United States Draws a Line

In February of 2021, the Supreme Court of the United States rejected the claims of Jewish heirs who sought to sue Germany for taking property from its own citizens. The Court cited the 1976 Foreign Sovereign Immunities Act (FSIA) as the basis for its unanimous ruling. The FSIA allows lawsuits to be brought for property taken in violation of international law but does not cover expropriations of property belonging to a country’s own nationals. In this opinion, the court held that the FSIA does not make exception for property taken under duress as part of a human rights violation like the Nazi genocide. Notably, the court did not consider the alternative argument suggesting that the owners were no longer German nationals in 1935, as many Jewish people lost their rights as citizens during the time of the Holocaust and were not considered citizens in Germany. Concern remains that this decision could hinder similar restitution cases in the future. This holding represents the barriers to restitution presented by international law and the hindrances presented by the laws of sovereign nations, wherein restitution’s feasibility will vary depending on the variant and independent laws from nation to nation and state to state. 

The Future of Restitution

Restitution exists as an incomplete remedy to irreparable harm caused by the kind of global harm that the Holocaust represented. That restitution efforts are creating as variable results as shown here demonstrates the longevity of any attempts to repair harm caused nearly a century past. The situations in which restitution is given cause are likely to give rise to the problems of international law faced here as those situations, like the destruction of the Second World War and the Holocaust will likely lead to changes in nations and law. Restitution, like repatriation, presents an international legal issue; in order to be effective, different legal systems must be able and willing to give faith and credence to repatriation efforts. The French restitution of Rose Bushes Under the Trees demonstrates the possibility for such action following future calamity.

NFT or Bust? – Impact on The Video Game World

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By: Joanna Mirsch

The idea of spending real, hard-earned cash in the video game world is not a new concept. Gamers have been making in-game purchases for quite some time now: unlocking new weapons, characters, levels/maps, and more. These purchases have usually been seen as fun perks to gameplay that allow gamers to tailor their gameplay experience through the content they purchase. However, the growing presence of non-fungible tokens (NFTs) within the video game realm is potentially an entirely different occurrence.

What are NFTs?

There are many ways to understand what an NFT is. It is helpful to first look at what the two words mean separately. At its core, a nonfungible item is something that cannot be exchanged for another thing of equal value; it’s one of a kind. The token references a unit of currency on the blockchain, which is how cryptocurrencies are bought and sold. An NFT—much like bitcoin, ethereum, and dogecoin—is a digital currency that is a type of money. One of the best perks of cryptocurrencies is that they are nearly impossible to counterfeit. Digital currencies operate on what is called the “blockchain”. A blockchain is a decentralized ledger of all transactions across a peer-to-peer network. Since every transaction is recorded across this large network, it makes it difficult for attackers to hack it because they would need to control large portions of the ledger to do any damage.

What distinguishes NFTs from other currencies is that their “underlying technology certifies and guarantees the authenticity of a tether item, raising its value.” Moreover, they can be thought of as “unique, digital version[s] of a certificate of authenticity, publicly rubber-stamped by the blockchain.” As of February 2021, only mere months after coming into the public eye, NFTs have become a booming market whose sales have reached $500 million. NFTs are essentially unique proof of ownership over items people cannot tangibly hold in their hands, such as digital works of art, coupons, video clips, etc. NFTs are one-of-a-kind pieces of code that are stored and protected on a shared public exchange. Fordham Law School professor Donna Redel, who teaches about crypto-digital assets, has explained NFTs as the purchase of a code that manifests as images. Notable NFT purchases include artwork, clips of LeBron James dunking, free pies for life from a Los Angeles pizza shop, digital homes, and much more.

Legal issues surrounding NFTs

It’s potentially dangerous to allow the sale of these unique items without both the creators and users of NFTs truly understanding the rights granted to token holders. While the purchase of NFTs allows buyers to have unique, one-of-a-kind pieces of digital artwork or other products, buyers do not usually get the copyright or trademark to the item. Furthermore, just because you purchase a specific NFT, does not mean others cannot purchase endless other versions of it elsewhere online. Therefore, NFTs—from a copyright perspective—are digital receipts showing that the owner owns a version of the work but does not own any of the exclusive rights in reproducing or preparing derivative works as awarded to copyright owners in §106 of the U.S. Copyright Act. This lack of transparency or awareness behind these NFT purchases could pose serious infringement issues. Many individuals purchasing NFTs are not familiar with the legal restrictions relating to copyrighted works. NFTs do not authenticate IP rights. At most, purchasing an NFT only allows the purchaser to receive the token itself and the right to use the copyrighted work for personal use.

Due to the immature market and lack of flushed out NFT regulation, it is possible the NFTs will allow infringers to steal intellectual property from their rightful owners. The potential for copyright owners to lose ownership over their works is a legitimate fear. Numerous artists have already reported that they discovered their work is being stolen and sold as NFTs without their permission. However, the pertinent legal question that remains is whether the first sale doctrine applies to purchases made by NFT owners. This doctrine allows for individuals who purchase copyrighted works to have the right to sell, display, or otherwise dispose of that particular copy. If this doctrine applies, the owners of NFTs would be able to sell the digital NFTs after they purchase them without the artist’s permission. But it is likely the doctrine is not applicable since NFTs are not tangible works as required by copyright law. The lack of clear rules surrounding NFTs are likely to allow for problems to arise as they grow in popularity.

What do NFTs mean for the gaming world?

One videogame company, SEGA, recently announced its plans to sell NFTs based on its intellectual property—including their classic and current IPs and upcoming projects—in the summer of 2021. SEGA could sell a digital piece of one of its classic games—such as Sonic the Hedgehog art—to a buyer for an extremely high price point. This is one of the reasons that NFTs could become a problem for gamers. Because the sale of NFTs has such a high potential for profit, collectible pieces of classic or limited-edition games—such as the original production sketches of Sonic or a game’s original soundtrack—which might otherwise be bundled with games or sold as physical objects will likely be held back to be sold as more profitable NFTs instead. However, an even greater problem involves possible, and likely, IP infringement through the sale of unlicensed uses of NFTs. DC Comics recently warned creative teams and freelancers employed by DC against unlicensed uses of NFTs after an artist made $1.85 million by selling NFTs of characters he used to draw for DC. This same issue could occur in the video game world too. While there are steps that could be taken to push back against unlicensed uses and sales of NFTs – the real question is whether the video game industry truly benefits from involving NFTs in their games.

While the video game industry has persuaded gamers to buy intangible, digital goods for a long time, what is the benefit of merging NFTs with games? Do gamers need this kind of authenticity to play games? Currently, there are a handful of popular NFT games that allow gamers to tokenize their game assets and use in them in-game or trade them as crypto-collectibles. Some of these games—such as CryptoKitties—record up to $30,000 dollars’ worth of daily transactions and more than 8000 new users weekly. These types of games are supposed to be a mix of thrill and potential profitability. It’s possible that NFT-enabled games can provide a potential boon for the multibillion-dollar video game industry. Currently, games allowing players to buy digital deeds for real estate—in the form of an NFT—have already generated millions of dollars. However, with the growing trend of microtransactions in games, the question of whether NFTs could simply create another pay-to-win structure that incentivizes users to pay large amounts of money to acquire these “authentic” and “unique” digital items is a valid concern. Moreover, what happens if gamers begin selling, distributing, etc. the NFTs they purchase in games? Where do the boundaries exist when it comes to the purchase of NFT content? Perhaps the video game industry is better off not engaging in this new, but potentially problematic, realm of digital currency.