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The Cellphone: Our Best Helper or an Illegal Recorder? 

/ Washington Journal of Law, Technology & Arts / 1 Comment
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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?

/ Washington Journal of Law, Technology & Arts / Leave a comment
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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. 

Spicy Lawsuit May Lead to Sweet Payout: Fireball Class-Action

/ Washington Journal of Law, Technology & Arts / 1 Comment
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By: Nicholas Neathamer

Known for its slogan, “Tastes Like Heaven, Burns Like Hell,” Fireball Cinnamon Whisky is a popular liquor with a sweet taste and a spicy, cinnamon aftertaste. The mixture of Canadian whisky, cinnamon flavoring, and sweeteners is produced by the Sazerac Company, and shots of the alcohol are sold in distinctive 50 milliliter bottles around the world. But to the dismay of at least one customer, that distinctive packaging has recently been used with only minor changes to sell shots of Fireball Cinnamon, a beverage that does not contain any whisky but rather is a flavored malt beverage (FMB) containing only half of the alcohol by volume as its whisky counterpart. Anna Marquez, that spurned purchaser of the FMB variant, has filed a class-action lawsuit in the United States District Court for the Northern District of Illinois against Sazerac Company, Inc.

Marquez seeks to certify two classes of Fireball Cinnamon purchasers for the lawsuit. The first consists of purchasers in Illinois, her home state, while the second consists of those from eleven other states: North Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, Arkansas, Kansas, Arizona, South Carolina and Utah. Marquez’s complaint lists a variety of claims, including violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, various state consumer fraud acts, breaches of express and implied warranties, negligent misrepresentation, fraud, and unjust enrichment. While these claims contain different elements, they collectively boil down to one main premise: by using near-identical packaging, Sazerac has deceived whisky-seeking consumers into purchasing a flavored malt beverage at whisky-level prices.

Aside from the one-word change in its name, Fireball Cinnamon (the FMB) has nearly identical packaging as Fireball Cinnamon Whisky. Both come in 50 mL, identically-colored bottles with a red cap and yellow label, and both drinks have an amber color. Both feature the brand’s red devil on their labels, sandwiched by the words “RED” and “HOT.” Combined, the similarities allegedly caused Marquez to mistake Fireball Cinnamon for Fireball Cinnamon Whisky, as well as pay more than she would have had she realized that it did not contain distilled spirits of any kind. To this point, Marquez claims that the similarities have allowed Sazerac to take advantage of “consumers’ cognitive shortcuts made at the point-of-sale.” The only other differentiation in Fireball Cinnamon’s packaging is a statement of the beverage’s composition in the smallest allowable font, stating that it is a “Malt Beverage with Natural Whisky & Other Flavors and Caramel Color.” Even this description is misleading, as it can easily be misinterpreted as meaning that Fireball Cinnamon contains whisky, when in fact it only contains whisky flavoring. 

Many may wonder why this matters. After all, haven’t consumers been happily enjoying Fireball Cinnamon’s familiar taste and getting buzzed regardless? Aside from the general principle that consumers should be able to have reasonable confidence in distinguishing between products they purchase, one point that Marquez’s complaint fails to elaborate on thoroughly is its argument that the false and misleading representations have allowed Fireball Cinnamon to be “sold at a premium price” of $0.99 per 50 mL bottle. While it may not sound like a steep price, this is far above the average price of malt-based beverages. In fact, as of December 2022, the average price per 50 mL of all malt-based beverages in the United States is only $0.1834. This means that consumers are paying over five times more for Fireball Cinnamon than beverages of similar composition. And while one could argue that shoppers are willing to spend this higher price, such an argument fails when considering the fact that many purchasers may be mistaking the FMB for Fireball Cinnamon Whisky. 

Another reason to care is that Sazerac’s tactics allow them to sell beverages where they previously could not. Many states heavily restrict where distilled spirits and liquors above a certain ABV can be sold, typically only allowing products such as Fireball Cinnamon Whisky shot bottles to be purchased in liquor stores. Meanwhile, by introducing the malt-based Fireball Cinnamon that contains a lower ABV, Sazerac is able to sell its products in a variety of locations that are able to sell beers, wine, and malt-based beverages. This includes being able to sell Fireball Cinnamon shot bottles in many grocery stores and gas stations, and Sazerac itself touts that the company is now able to sell the FMB in approximately 170,000 additional stores in the United States. If whisky-seeking consumers continue to be deceived into purchasing Fireball Cinnamon at these locations where hard liquors are not allowed, it may provide Sazerac an unfair advantage in both sales and brand recognition. 

While we will have to wait to see whether Marquez is able to certify the two classes of purchasers and prevail on any of her claims in federal court, the issue of deception in marketing and packaging is made clear by Sazerac’s two beverages in question. The clever similarities in the packaging of Fireball Cinnamon Whisky and Fireball Cinnamon and the success of the FMB in grocery stores demonstrate that despite how sophisticated we may like to consider ourselves as consumers, companies are still able to take advantage of our lack of time and our desire for convenience. No matter the outcome, this case may cause shoppers to take a second look at what they toss into their shopping carts. 

The Space Regulation Race: Modernizing Space Law for Modern Industry

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By: Cooper Cuene

“We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard . . .”

  • President John F. Kennedy, Address at Rice University on the Nation’s Space Effort (1962)

“Gotta go to space. Yeah. Gotta go to space.”

  • Space Core, Portal 2 (2011)

50 years after the success of Apollo 11, the United States is returning to the Moon. Following the success of the first mission of NASA’s Artemis program, the stage has been set for American astronauts to venture beyond low earth orbit for the first time in decades. The landscape of space flight, however, is much different and the industry far more crowded than the days of the Apollo program. As NASA prepares its missions to the Moon and eventually beyond to Mars, an environment crowded with other stakeholders both public and private awaits it. Inevitably, zero-gravity disputes will arise between these stakeholders, but when they do, what forums and rules are used to resolve them?

To put it gently, the law governing space is far from concrete. The majority of international space law is laid out in a small handful of treaties with the most important being the United Nations Outer Space Treaty. Counting 109 nations among its signatories, the treaty’s provisions are an international consensus. That being said, reading the Outer Space Treaty makes it clear that the agreement is a product of the Cold War and may not be suitable for the increasing number of public and private stakeholders that participate in today’s space industry. Notably, the treaty’s terms read more closely to principles than well-defined regulations. Examples of the treaty’s terms are “outer space shall be free for exploration and use for all states” and “astronauts shall be regarded as the envoys of mankind.” A nice sentiment, to be sure, but not the clear regulations needed to manage the growing space industry.

One area where this lack of regulation could prove especially damaging is the growing problem of space debris. While international regulations lag behind the lightning quick pace of private spaceflight, the debris left behind by those flights has accumulated in low earth orbit, defined as the range between 160 and 1000 kilometers above earth’s surface. SpaceX, for example, recently lost 40 Starlink satellites as a result of a solar flare. While those satellites reentered Earth’s atmosphere and burned up, plenty of other junk has taken up a concerning amount of space in lower earth orbit where active satellites normally reside. Much of the debris is harmless, but the FAA has so far failed to implement a meaningful regulatory regime to govern the creation and disposal of this kind of space junk.

Space agencies and Non-governmental organizations (NGOs) have begun to step up and propose regulations where Congress and other international bodies have failed to take action. The Inter-Agency Space Debris Coordination Committee (IADC), for example, is a coalition of space administrations that seeks to publish guidance on how to avoid the creation of space debris. While various government space agencies typically follow the rules suggested by the IADC, the same can’t be said about private spaceflight companies. Moreover, efforts to give IADC guidance the force of law is met (unsurprisingly) by pushback by both private spaceflight companies and nations that are opposed to new regulations on their own space agencies. A failure to curtail the creation of space junk could jeopardize future space missions as well as traditional flight and even people on the ground. While the IADC guidelines are a start, without true government action to create regulatory boundaries for private spaceflight companies, we risk an unregulated and dangerous environment in low-earth orbit.

So, what happens when a space-related commercial dispute occurs? As of now, there’s no good answer to that question. Like the other areas of space law discussed above, the UN’s Convention on International Liability for Damage Caused by Space Objects, or simply the Liability Convention, governs dispute resolution at a high level. However, the Liability Convention has only been invoked once, after a Russian spacecraft scattered a load of radioactive material over Canada. Hopefully, this won’t be the type of dispute that becomes common going forward. 

Existing commercial litigation doesn’t give us many answers either. Cases so far have involved government contract and intellectual property disputes within the space industry rather than cases that are unique to space. Both law firms and the government alike have generally embedded any space law attorneys within larger aerospace practice groups, again with the most common disputes centering around patents on satellites and rockets. In contrast to the sluggish pace of legal innovation in the US, the UAE has made efforts to establish a dedicated space court in Dubai for handling disputes ranging from collisions between spacecraft to litigation over satellite purchases. Only time will tell which approach wins out, but regardless of where space law begins to take shape, it will be an area of law ripe for innovation in the decades to come.