The Trump Administration & Technology Transfer

By Daniel Insulza

Technology transfer is the process by which an organization transfers scientific findings to another with the purpose of further developing that technology and commercializing it. The Patent and Trademark Law Amendment Act of 1980 (also known as the Bayh-Dole Act), which has previously been described as “the most inspired piece of legislation to be enacted in America over the past half-century”, laid the foundation for the growth of technology transfer in the United States.

The topic of technology transfer has barely been mentioned by the Trump administration. Even during his presidential campaign, Trump did not state an official position with regards to technology transfer or even patent reform. Considering his goal of growing GDP by 3% every year, President Trump could look at technological development as one of the areas to exploit. Technology transfer represents a sector that has increased consistently since its establishment, and it is also one that could use some improvements.

Before the enactment of Bayh-Dole, any new technology generated from government-funded research became government property. Unfortunately, the federal government had neither the capabilities nor the manpower to manage these new technologies, and only licensed less than 5% of government patents to industries. In addition, there were minimal incentives for academic institutions to carry out government-funded research.

Once Bayh-Dole was enacted, both the responsibilities and incentives were passed on to research institutions that had the resources to take advantage of these opportunities. An increasing number universities and research centers have technology transfer offices, which are responsible for patenting and licensing technologies developed by researchers.

Universities have been particularly successful in commercializing their intellectual property. In 2014, universities earned $2.2billion in patent licensing revenue alone. In addition, royalties have produced revenues in excess of a billion for several universities. These numbers have steadily increased since Bayh-Dole was enacted because many universities have managed more and more technological and financial resources through their Technology Transfer Offices (TTOs), which also are responsible for contacting partners that range from startups to large companies, to commercialize new technological developments.

As effective as Bayh-Dole has been, there are still improvements to be made in the technology-transfer area. Universities currently have widely different approaches for the implementation of a technology transfer program. These approaches are mainly influenced by the resources available for the university to spend. Also the process is always more challenging for startups, since they are faced with a much more challenging stage moving from a raw technology to a marketable product.

The Department of Commerce, through its National Institute of Standards and Technology (NIST), is the agency responsible for improving technology transfer in the US. The Technology Partnerships Office (TPO), which is a subdivision of NIST has as its mission to “enables technology transfer to promote US competitiveness, both for NIST and as across the Federal government for the Department of Commerce.”

Even though the commercialization of new technologies generates significant amounts of revenue and value in terms of intellectual property, it is not a high priority for governments to establish goals for technology transfer (President Obama for example did not significantly address technology transfer until he signed a presidential memorandum towards the end of 2011). Innovation and technology development policies tend to be unpopular as presidential candidates’ proposals due to the lack of immediate benefits. Unlike other areas—such as infrastructure, housing, and employment—as valuable as technology transfer initiatives are, they will not produce tangible results until several years later.

Under the Obama administration, NIST created an initiative called Lab to Market. This program seeks to optimize the management of federally funded patents and discoveries. Their goal is to revise and update Bayh-Dole in order to increase the economic impact of federally funded research. In 2016, NIST issued an NPRM regarding various provisions of the some of the provisions of the Bayh Dole Act.

So far, President Trump has directly addressed intellectual property, broadly speaking, just once. This was a couple of months back when he issued an executive memorandum instructing US agencies to protect US intellectual-property theft by foreign countries. Trump did this right after he stopped the takeover of a US tech company specialized in making chips by a private-equity firm with ties to China.

With respect to technology transfer, an encouraging sign is Trump’s choice for director of NIST, Walter Copan, who has a background working in this area. Copan highlighted technology transfer as one of his priorities at the time of his nomination. Congress confirmed him on October 5th of this year.

Even though technology transfer is not particularly attractive as an area to support from a political standpoint, the positive impact that it has on the economy by increasing productivity is unquestioned. It will be interesting to see if this administration decides to remain focused on the same technology-transfer goals as the previous one; although, for the time being, it seems the Trump administration will remain relatively quiet on the subject.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

Copyright Infringement Analysis of the Videogame Destiny 2

By Zachary Nichols

Law school has a way of making you look at the world a little differently. You examine and analyze things that you wouldn’t have before. Everyday things that you once may have noticed, and then laughed off, now become nagging questions, and you can’t help but dig a little deeper. I believe the saying goes, “if all you have is a hammer, everything looks like a nail.” Each class in law school gives you a new hammer to use. In this article, I am going to use one of my newly acquired hammers, copyright infringement, to look at something that I would normally use as an escape from law school—a videogame, Destiny 2, to be precise. This type of exercise is something that any law student can do to practice. When I see something from the classroom in the real world, I use it as a practice issue spotter, similar to those found on law school exams.

Destiny 2 came out fairly recently, and in my play through of the campaign, I noticed a few peculiarities. Two of these I discuss in this post. The first has to do with the game’s main villain, Dominus Ghaul. He is referred to in the game simply as “Ghaul” and has a familiar likeness—that of Bane from the movie “The Dark Knight Rises.” Like Bane, Ghaul has a respirator mask that covers his nose and mouth with a strap that goes around the back of his bald head. And the mask makes him speak in a deep and distorted voice.

The second peculiarity that I would like to examine has to do with one of the game’s three main playable classes, the Titan. One of the Titan’s subclasses, the Sentinel subclass, and its special ability is eerily reminiscent of the Marvel character, Captain America. Triggering the Sentinel special ability will cause your character to summon a circular shield. Your character can throw that shield, and it will ricochet around the room and off of enemies for a while. And you can charge toward enemies and bash them with the shield, much like Captain America does.

So, the question that I couldn’t help but ask while playing was, do these similarities constitute copyright infringement? For practice, I decided to argue against copyright infringement, and this post will explore that point of view. There are other doctrines that you would want to address on an exam, but this post will only explore an infringement analysis.

If this were to constitute copyright infringement, it would be the copyright holder’s right to the reproduction of original material that Destiny 2 would be infringing. The test for infringement of a reproduction right consists of two parts. The first prong of the test is “Probative Similarity.” We look at the alleged infringers access to the copyrighted work as well as the two works’ similarity. Remember that only expressions, not ideas, can be copyrighted. The second is “Improper Appropriation.” Here we use the Levels of Extraction test and break down the similarities into two categories, the elements that are copyrightable and the elements that are not. We then see if the copied elements were elements that were originally eligible for copyright protection.

Under Probative Similarity we ask, has the work actually been copied? To make that determination, we first look at access and similarity.

The creators of Destiny 2 likely had plenty of access to the character Bane. The Dark Knight Rises was a very popular movie, and Bane has been a villain in the Batman comics for quite some time. The next piece is assessing the similarity of Ghaul and Bane. This is first a question for an expert, before it is presented to the lay observer, but because I am not an expert, I will only examine it as a lay observer. To me, the two seem similar, given their appearance and voice.

Likewise, when applying the access and similarity analyses to the Sentinel subclass and Captain America, it is likely that the creators of Destiny 2 had plenty of access to Captain America. Captain America has appeared in multiple movies and comics. When looking at the similarities between the two characters, the round shield coupled the various ways it is used to attack enemies, does lend itself to the belief that a lay observer could find that the two characters were similar enough.

After assessing probative similarity, we turn to the Improper Appropriation test. There, we are asking if too much of the original work has been copied and used. So, we really have to see if the creators of Destiny 2 copied the heart and expression of Bane and Captain America. We break down the similarities into elements that are copyrightable and elements that are not. Here, we have a similarity in appearance and voice—the ideas behind Bane, but the expression of Bane is not infringed. The mask and distorted voice are not copyrightable elements. They are aspects of Bane, but not Bane himself. Ghaul is an alien from another world with an entirely different backstory. The Sentinel is just a hero with a shield that ricochets around when thrown. A shield that can be used as a weapon is again just an idea included in Captain America, but is not the expression of him. So, it looks like the elements that are similar are not the copyrightable elements of the original work. The similarities are in the ideas, not the expressions of the characters, and that is why they do not infringe.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

As Cell Phone Security Increases, Constitutional Protection Decreases

By Conrad Glover

As technology used in cell phones advances, the cell phones become increasingly more safe and secure against those trying to access that information—that is, as long as those whom you seek to keep your information from is not the United States Government.

These days, many methods can be used to unlock a smart phone. For example, the new Samsung Galaxy 8 offers five different methods that users can choose to access their device. Cell phones are now commonly unlocked with four or six-digit PIN code or alphanumeric passwords, pattern unlock methods (where one traces set pattern through a grid of nine dots), fingerprint scanners, iris scanning methods, and finally facial recognition.

These methods are meant to keep the common person from accessing your phone. If you were to lose you phone or if it were to get stolen, these security methods would make it much more difficult for the average person to get access to you phone. There are roughly 10,000 possible combinations for a four-digit pin code and over 1,000,000 possible combinations for a six-digit pin code. The likelihood that someone would quickly crack this code is very unlikely with modern cell phone technology. The same goes for biometric identification methods like fingerprints, facial recognition, and iris scans. And while one can debate which method of biometric authentication is the most secure, the fact is the technologies are constantly improving and becoming more secure with each new iteration. For example, previous facial recognition software could be easily spoofed with a high-resolution photograph of the user. Newer software is more interactive and takes a much more detailed scan of the user face, making this method of security more fool-proof than the previous versions.

However, it is arguable whether or not these enhanced methods of protecting your cell phone data increase protection against the government. If the government were to produce a warrant, it is very likely that you would be obligated to unlock your cell phone for the government.

The defining issue is whether or not the method you choose to protect your phone is covered by the Fifth Amendment. The Fifth Amendment protection against self-incrimination is what is in play here. The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself. The determinative factor is whether the proscribed actions fall under the protection of the Fifth Amendment, is if the conduct in question is considered testimony. Recently, there has been quite a bit of debate as to what is actually protected. In essence, real or physical evidence is not protected by the fifth amendment. Testimony or some sort of communication is required to receive constitutional protection. That is why individuals can be compelled to produce their fingerprints, DNA samples, participate in a line-up or one-on-one identification, wear face paint, or put on a blouse. All of these actions involve physical evidence or physical characteristics.

Without a communicative component, or without thought being produced, there is no protected testimony. Thumbprints have already been found to not be protected by the Fifth Amendment by the courts. Similarly, since one can already be forced to appear in a line-up and wear face paint, it is unlikely that Fifth Amendment protection will extend to facial recognition or iris scans. You are protected from providing your password, because providing that would require you to produce thought.

Therefore, if security from government intrusion is your concern, consider whether the newest piece of technology is really the right choice.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

The Uterine Transplant: A Controversial Means Of Entering Motherhood

By Ethan Tackett

Women with uterine factor infertility (UFI) suffer infertility due either to irreversible uterine damage or to uterine complications that arise during embryonic development. These women are incapable or, at most, have an extremely low chance of getting pregnant because of limited treatment options.

However, last year, the Cleveland Clinic gave hope to women suffering from UFI. On February 24, 2016, Cleveland Clinic performed a historic uterine transplant on Lindsay McFarland, a then-26-year-old woman born without a uterus. After ten hours in the operating room, McFarland became the first woman in the United States to receive a uterine transplant. While this is a great medical feat, the uterine-transplant procedure brings with it many questions including whether the Affordable Care Act (ACA) will require insurance providers to cover the procedure.

McFarland was the first in a Cleveland Clinic study of ten women with UFI selected to receive a uterine transplant. The procedure begins with stimulating the woman’s ovaries to produce multiple eggs. The eggs are removed, fertilized with sperm via in vitro fertilization, and frozen for future use. The woman then starts anti-rejection medication and undergoes the transplant. Twelve months later, after the uterus fully heals, the embryos are thawed and implanted one at a time. During pregnancy, the mother continues taking anti-rejection medication and is closely monitored through delivery. After delivering one or two babies by C-section, the woman undergoes a hysterectomy to remove the transplanted uterus and stops taking anti-rejection medication.

Though McFarland’s uterine transplant was a success, her transplanted uterus was removed approximately two weeks later on March 8, 2016, due to a severe yeast infection. The Clinic voluntarily put a hold on the study to allow for consultation with infectious-disease specialists and amend the procedure to prevent this problem from happening again. Dr. Andreas Tzakis, program director of the transplant center and primary investigator of the uterus transplant clinical study, says that the Clinic’s work was not a failure, as it has shown that these transplants are possible.

Although this procedure offers a ray of hope to women incapable of carrying a child, it also raises medical, social, and legal issues that need to be assessed.

First, this procedure includes medical risks to women receiving a uterine transplant and children being born from a transplanted uterus. As with any major operation, this procedure poses serious risks of surgical and anesthetic complications. These women also face an increased risk of infection not only from the surgery, but from the anti-rejection medication. The procedure requires the woman to take large quantities of anti-rejection medications for an extended period which results in a suppressed immune system. Additionally, babies born from a transplanted uterus face risks from the prolonged exposure to the anti-rejection medication taken by the mother. By undergoing the uterine-transplant procedure, these women and their children face a great level a risk.

Second, the uterine-transplant procedure reinforces traditional social stereotypes of what it means to be a woman and a mother. The procedure underscores the idea that a uterus is required to be a “real” woman. This affects women born without a uterus, including both ciswomen who suffer from syndromes like Mayer-Rokitansky-Küster-Hauser syndrome and transwomen. The procedure also emphasizes the notion that genetic relation to and gestation of a child are required to be a “real” mother. This affects mothers who adopted or enlisted the help of a surrogate to start a family. Cleveland Clinic’s uterine-transplant procedure challenges modern social interpretations of womanhood and motherhood.

Last, this procedure raises legal questions in the area of insurance law. As this procedure either introduces a uterus into or replaces a non-functioning uterus in a woman’s body, the uterine-transplant procedure is neither a life-saving operation nor an urgent procedure. Thus, the potential availability of the procedure begs the question of whether insurance providers should be required to cover a uterine transplant. Currently, the ACA requires every health plan to cover pregnancy and childbirth. As this procedure is further developed and becomes more available to women, Congress and/or the Department of Health and Human Services, the agency responsible for implementing the ACA, will need to decide whether this procedure qualifies under the ACA requirement for pregnancy and childbirth.

Though the Cleveland Clinic’s study is a huge leap forward in reproductive and surgical medicine, the uterine-transplant procedure isn’t without its negative implications. While the procedure provides women like McFarland the otherwise impossible option of experiencing pregnancy, the successful completion of the Cleveland Clinic’s study may have greater social and legal effects than previously anticipated. Like with all great advances in medicine, the researchers, physicians, and bioethicists involved should develop the uterine-transplant procedure and assess its effects at a responsible pace.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

Tribal Sovereign Immunity & the Patent System

By Trey Reed

In September, the drug company Allergan transferred its patents for Restasis to the Saint Regis Mohawk Tribe for $13.5 million with up to $15 million/year in royalties. Allergan did this to take advantage of the tribe’s sovereign immunity, which would prevent patent trolls, and anyone else, from challenging the validity of the patent. Tribal Sovereign Immunity prevents tribes from being sued without their consent unless Congress passes a waiver.  In general, Congress has plenary power over the tribe’s sovereign immunity. This means that Congress may alter the scope of the tribe’s sovereign immunity at will, just as it may alter or breach the terms of a treaty with a tribe at will.

Currently, Congress is considering passing a bill that would prevent tribes from being able to use this immunity to circumvent the patent system. However, there are conflicting views on whether using sovereign immunity to bypass a key feature of the patent system should be allowed. On one side are people who wish to see tribal sovereign immunity left whole and not chipped away by creating pockets of invalidity. On the other side are people who are afraid of drug companies abusing their monopolies and gouging prices unconscionably. Recent history supports both sides of this argument. For instance, the history of the United States is riddled with stories of Indian tribes being taken advantage of. From treaty abrogation to the taking of Standing Rock to build a pipeline, tribes have not been treated well by the federal government. As such, they have good reason to distrust any federal encroachment of their rights. On the other hand, the news has been full of companies hiking up prices on vital, life-saving medicine in order to increase profits. For example, the price of an Epipen was increased from about $110 to almost $610 due to the monopoly the patent owners have. Given the ease of abusing the monopoly stemming from patent rights, this issue should be examined to ensure that the balance between tribal immunity and sound law is maintained.

To fix this problem, it seems likely that Congress will create another caveat to restrict the use of sovereign immunity to prevent patent validity from being challenged. All in all, this will probably not be a large blow to the tribes. This is a new legal strategy that, if allowed, could become a great way for tribes to see an increase in income; however, it also bypasses some of the new checks that the America Invents Act (AIA) has introduced to the patent system to prevent bad patents from being issued and abused.

With the passage of the AIA, the patent system saw the introduction of inter partes review (IPR). IPR is an important post grant review method that aimed to fix some of the issues that plagued the old post grant review system. In practice,  IPR allows third parties, normally competitors, to challenge a patent’s validity without having to go through an egregiously expensive legal battle that typically accompanies patent litigation. Traditional patent battles cost upwards of $2 million, so the barrier of entry for challengers is quite large.  Instituting an IPR proceeding requires the United States Patent and Trademark Office (USPTO) to reexamine the patent with the materials (usually prior art claims) the challenger provides that may invalidate the patent. The average cost of IPR is estimated to be around $450k. Although this amount is hefty, it is relatively cheap when compared to the millions of dollars required for traditional patent litigation. This relative cheapness allows less-wealthy parties to access the patent system and prevent large companies with deeper pockets from monopolizing technology. Allowing entities to legally avoid this challenge needs to be carefully considered and balanced.

In addressing these issues, Congress must weigh keeping tribal sovereign immunity whole against the ability to use the immunity to avoid checks that the patent system uses to prevent bad patents. Congress’ response must be measured because, in the end, either tribal sovereign immunity could be diminished or the patent system could be left compromised.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

Google and Facebook Stopping “Fake News” on Las Vegas Shooting Suspect

By June Torres

In an era where the internet is the main place where people access information, Google, Facebook, and other social networks are continuously managing fake news that are publicized on their trafficked sites.

Fake news stories are not a novelty; however, with multiple online avenues, the authenticity of each story becomes more difficult to address. The creation of social networks allows people to exchange information on a much greater scale, allowing prior economic barriers of fake news to be removed. Although there are no current laws or precedents that explicitly define “fake news,” the concept of fake news is generally understood as any news story that intentionally presents and spreads incorrect information.

Last week, distressing false news emerged from the mass shooting in Las Vegas. On October 2, 2017, people worldwide rushed to obtain information regarding the deadliest massacre in the United States. The Las Vegas massacre, which killed at least 59 people and injured more than 500, left the world in fear, sadness, and with many questions. Seeking answers, many searched Google for information about the victims and the suspected shooter.

Many of these searches yielded inaccurate information. According to Google, its computer algorithms displayed misinformation about the shooter’s identity. Before the problem was corrected, Google’s search results displayed in its top stories a discussion thread from an online forum, 4chan, a “notorious spawning ground for Internet hoaxes.” 4chan provided false information about the motivation of the shooter and falsely identified the shooter as Geary Danley, “calling him a leftist and Democratic supporter.” 4chan’s fake news gained traction, and consequently appeared in the top stories of Google, due to “Internet sleuths scour[ing] social media to identify the gunman faster than police.” However, the police later identified the shooter responsible for the Las Vegas massacre. Although the identity of the shooter is now known, his motives for the mass shooting are still unclear.

Like Google, Facebook is an epicenter where many people today gather information on current events. Consequently, Facebook is also dealing with backlash from misinformation posted about the identity of the gunman. On Facebook’s “Safety Check” page, it promoted “stories from right-wing news sites…which falsely identified the suspected shooter and included misleading speculation on his motivation.” Facebook soon removed the fake news that was circulated, and it informed users that it would work on fixing the issue. In the past few months, Facebook has made similar assurances to its users due to the inaccurate posts on their pages, but Facebook and Google have yet to adequately protect their systems from enabling viral speed of misinformation.

The growing volume of digital news reveals the necessity for more sophisticated technology that can recognize false and potentially harmful information. But in the meantime, legal recourse may be an avenue, under defamation law, for an individual who suffered a harm to their reputation due to a defamatory statement. However, an issue with defamatory statements that are made on social media is that simply “retweeting a defamatory statement is probably not going to be enough to qualify for republication.” In addition, suits against online media, such as Google and Facebook, are protected by Section 230 of the Communication Decency Act of 1996. “This federal statute declares that providers of interactive services are not liable for content posted by their users.” Nonetheless, Facebook and Google are careful when removing information from their sites so to avoid the possibility of claims of censorship, and to continue the opportunity for its users to speak freely on these platforms.

It is important to share our ideas, concerns, and desires while using these platforms. However, as users of Facebook, Google, and other social media, it is important to question the information posted on these sites, and to think critically about the impacts of sharing posts and links that contain unsupported statements.

My thoughts and prayers are with those affected by the tragedy in Las Vegas.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

Trump Administration Prioritizes STEM Education

By Joseph Gaffney

Last week, President Trump signed a memo directing the Secretary of Education to prioritize Science, Technology, Engineering, and Mathematics (STEM) education for K-12 students, including the allocation of $200,000,000 a year toward STEM education. Along with allocating funds, the Secretary of Education is also directed to produce guidance documents and technical assistance to support the goals of this initiative. A focus on STEM subjects is not new, as former President Obama made several pledges to encourage STEM education through grant funds and by securing private investments.

The President’s memo argues that the skills acquired through STEM education are becoming increasingly necessary for individuals to qualify for high-paying jobs in the US and that while the system as a whole has room for growth, certain groups of children in particular are not being adequately served. The memo cites statistics showing that minorities, students in rural areas, and girls are particularly underserved.

The memo does not give precise detail about how decisions about the funds will be made. Instead, the memo gives discretion to the Secretary of Education to allocate grant funds with the goal of promoting STEM subjects, especially Computer Science. However, there are indications that underserved populations will be favored in the decision-making process. In the Secretary’s annual report to the Office of Management and Budget, she will need to include the results from the previous year, including data specific to underserved populations. Additionally, Ivanka Trump, whose meetings with Silicon Valley executives over the past few months helped to precipitate this initiative, has stated that the White House will advise the agency to make decisions with gender and racial diversity in mind. The memo identified the scarcity of teachers for STEM subjects as a barrier to success, so it can be fairly assumed that steps toward alleviating this problem will be part of the process.

But one question circulating around the media is where will these funds come from and what other programs will be affected. White House officials have stated that the funds will be taken from the existing budget for the Department of Education—a budget that consisted of $209.1 billion in 2017. The President insists that $200 million dollars is “peanuts,” and next to $209.1 billion it may seem that way. However, if it is enough money to make a tangible difference in STEM education, it is likely enough money to diminish other programs.

Critics have suggested that shifting more resources toward STEM education and away from humanities, arts, and sports may help prepare students to work as inventors, but leave them unable to be innovators. For example, some have argued that the people skills learned from non-STEM subjects are needed to implement the skills acquired through a STEM education in any meaningful way.

However, psychology research may show that this view of people-skills acquisition is too narrow. People skills are the abilities that are necessary to maintain positive relationships and generally get along with others. They are acquired in many different social situations, such as arguing with a friend, reciprocating social cues, or handling a bully. Most would agree that social skills are vital to many aspects of life, including employment in a STEM field, and perhaps non-STEM classrooms may be a good places to learn social skills. But given that people skills are learned through a broad range of social interactions, it is also possible that children are learning these skills in STEM classes, or outside of school altogether.

Moreover, even if non-STEM classrooms were the exclusive domain of social-skills learning, the President’s memo does not advocate for less time spent teaching non-STEM subjects in public schools. Rather, the memo asserts that more and better course offerings in STEM subjects should be encouraged in order to keep the US economically competitive. The effect that additional STEM course offerings will have on non-STEM courses is at this point speculative.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

Personal Data Stored on Smartphones Implicated in Case about Searches by Customs and Border Enforcement

By Andrew Neiman

On January 4, 2017, Isma’il Kushkush arrived at Dulles International Airport in Washington D.C. after working with the Associated Press in Israel. He carried a locked laptop computer and a locked smartphone, which he used personally and professionally as a journalist. After arriving at DIA, Kushkush was directed to “secondary inspection,” where he was ordered to furnish and unlock his devices—and provide social media and email identifiers. While one Customs and Border Protection (“CBP”) officer manually searched the smartphone, another searched the laptop using forensic methods, which often involve copying data on the device. CBP officers never obtained a warrant authorizing these searches.

In recent years, searching digital devices has become a prolific practice by CBP and Immigration and Customs Enforcement (“ICE”).  A recent CBP press release reported that 8,503 international travelers had their devices searched in 2015. In 2016, this number increased to 19,033 people. These numbers are projected to increase substantially in 2017. In the first half this fiscal year, 14,993 digital device searches were performed, meaning that CBP and ICE are on track to conduct 30,000 searches in 2017.

As a result of Kushkush’s experiences—and others like his, the ACLU filed a complaint in federal court against the U.S Department of Homeland Security challenging these practices as violating the Fourth Amendment rights of individuals to keep the private details of their lives free from unwarranted search and seizure (Alasaad v. Duke). Kushkush is among the eleven plaintiffs in the lawsuit. In particular, the ACLU has argued that these searches have occurred in a coercive environment where people have been afraid to resist. The plaintiffs reported that officers threatened to confiscate the device unless passwords were disclosed, and they expressed concern about missing connecting flights while being detained for hours.

Moreover, CBP officers may search digital devices belonging to certain racial, ethnic, and religious groups in greater numbers than those belonging to other groups. Specifically, Muslim travelers have reported anxiety and inconvenience after being more frequently subjected to secondary screenings. Some of the plaintiffs in Alasaad had personal and professional ties to the Middle East. So far, the government has withheld information regarding the numbers of Middle Eastern people undergoing device searches; First Amendment lawyers at Columbia University recently filed a lawsuit against the government after it failed to adequately respond to a FOIA request seeking, among other things a breakdown of digital device seizures by race, ethnicity, nationality and citizenship status. If these policies disparately impact Middle Eastern people, they may be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

The lawsuit occurs amidst a national discussion about whether the government has the authority to conduct unwarranted digital device searches. For instance, last month twelve companies, including Apple, Facebook, Twitter, Snapchat, Google, and Verizon submitted an amicus brief to the Supreme Court urging the Court to impose obstacles before the government may access information stored on digital devices.

While the Department of Homeland Security has declined to comment on the litigation, the agency’s general counsel, Joseph Maher, defended the practice in a USA Today opinion as “critical to our mission” and as “hav[ing] produced information used to combat terrorism, violations of export controls, and convictions for child pornography, intellectual property rights violations and visa fraud.” He added that “[n]o court has concluded that such searches require a warrant”—and that the Supreme Court has held the “government’s interest… is at its zenith at the international border.” However, he cites United States v. Flores-Montano, which involved the unwarranted search of a car. Because Flores-Montano was decided in 2004, when smartphone use was at its inception (Apple released the first iPhone in 2007) it is unclear whether it will control here.

Although the Supreme Court has not yet decided whether the government may conduct unwarranted digital device searches in the border-enforcement context, the Court has addressed this issue in the context of state law enforcement. In Riley v. California, the Court held that under the fourth amendment, “police must [get a warrant] before searching a cell phone seized incident to an arrest.” Noting the immense storage capacity of cell phones, which enables people to “carry a cache of sensitive personal information,” the Court reasoned that “allowing the police to scrutinize [smartphone] records on a routine basis is quite different from allowing them to search a personal item… in the occasional case.”

In predicting how District Court will hold on these issues, Riley should control, because the Court took into account the new technologies implicated in the Alasaad complaint, but an appeal is easily conceivable. Thus, at least for now, travelers’ rights to protect intimate data may be in danger.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

Privacy Concerns & FaceID

by Emily Caditz

Last week, Apple proclaimed “the future is here.” The future is, apparently, the latest generation of iPhone, the iPhone X. Although the iPhone X has several noteworthy features, FaceID has garnered the most attention. FaceID is Apple’s new security system based on facial-recognition software.

In the sense that facial-recognition software will become more ubiquitous after FaceID’s launch, Apple’s proclamation is correct: FaceID is the future. Facial-recognition software is becoming more accurate, cheaper to offer, and is being applied in more markets. However, as some reactions to FaceID’s rollout have highlighted, the facial-recognition technology raises consumer security and privacy concerns. Although not an exhaustive list, these concerns include spoofing, easier access to sensitive data, surveillance, and technological normalization.

Most obviously, facial-recognition technologies are vulnerable because faces can be spoofed. FaceID tries to curb this threat by ensuring that FaceID cannot be tricked by blinking, a mask, or two dimensional photos. Thus, people don’t have a face similar enough to any particular iPhone X’s owner to trick FaceID.

However, while FaceID’s added security is a welcomed innovation, it must be weighed against the fact that FaceID may be error prone, resulting in serious consequences. These consequences may be even more severe because (unlike previous facial recognition technology offerings), rather than “opting in,” iPhone X users must opt out to avoid using FaceID. Hence, FaceID will likely be more widely used than past facial-recognition software. And, given that Apple is expected to ship 40,000,000 iPhone Xs before the end of 2017, a vulnerability would likely affect a large number of people.

Also, who is accessing facial recognition technology—as well as that person’s motive for doing so—likely will become increasingly relevant. Facial-recognition technology relies on sensitive personal information to work. For example, FaceID is compatible with apps that have payment and password information. As such, accessing an iPhone X owner’s bank account could be as simple as pointing the phone at the owner’s face. Soon, making a purchase will be as easy as  smiling at a camera. Whether it’s someone attempting to steal one’s identity, one’s money, or law enforcement performing a search and seizure, facial-recognition technology has a real threat of being abused.

For others, facial-recognition security technology is threatening because it could be used for mass surveillance. For FaceID to work, the camera must be on anytime an iPhone X is awake, locked, or a FaceID-related app is open. On average, we unlock our phones 110 times a day, so systems like FaceID collect and analyze a lot of data. Unlike government facial recognition networks, FaceID is connected to consumer platforms. While other companies have powerful facial-recognition technologies, Apple is the first to have “a facial recognition system with millions of profiles, and the hardware to scan and identify faces throughout the world.” Thus, FaceID is an attractive target for bad actors and government-surveillance orders.

In response to these concerns, some consumers have found “creative” solutions. However, these cannot reasonably be sustained. Yes, an iPhone X user can always turn FaceID off, but this will not comfort those who are worried about being observed by others’ FaceID-enabled phones.

Nevertheless, it is important to keep in mind that FaceID stores its information on the physical device, not on a cloud server. To access FaceID’s data, one would have to hack into the iPhone X itself. Historically, iOS devices have been notoriously hard to hack into. However, as cybersecurity experts have warned, iOS devices like FaceID are hackable, just like any other piece of technology.

Finally, FaceID may present a subtler problem: normalization. Apple has implemented strong measures to protect its customers’ privacy. But there is no promise that other companies will be as protective as Apple. If consumers’ security and privacy were not breached while using FaceID, they may be slow to recognize a new bio-scanning product’s danger. True, Samsung’s iris scanning technology is at least as secure as FaceID. But other technologies may not be. So, in a FaceID world, consumers face added complexity to an old task: remaining vigilant against security and privacy threats.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts and do not necessarily reflect the official position of CTLJ.

Your Memory Does Not Work Like TiVo! by Benjamin Hand-Bender

Benjamin Hand-Bender J.D. Candidate 2018 University of Colorado

Justice Frankfurter wrote in 1927 that

What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy.[1]

During the early 19th century, mistaken identification by eyewitness was widely recognized as the leading cause of wrongful convictions in the U.S.[2] Unfortunately, this trend does not seem to have changed in the last century.

The Innocence Project estimates that of the 349[3] wrongful convictions of defendants it has worked to exonerate, “[e]yewitness misidentification is greatest contributing factor to wrongful convictions proven by DNA testing . . . .”[4] The Supreme Court has recognized the seriousness of the issue, stating that eyewitness misidentification “probably accounts for more miscarriages of justice than any other single factor.”[5]

Yet federal courts’ analyses of eyewitness identification of due process have not been sufficient to protect innocent defendants from wrongful conviction. In Neil v. Bigger, the Court recognized that the primary evil to be avoided is “very substantial likelihood of irreparable misidentification.”[6] Despite this dictum, the Court found that “show-up” identifications can still meet requirements for due process and it rejected a strict exclusion of suggestive identifications. The Court detailed what it factors it viewed as relative to determining if eyewitness identification procedures were adequate to ensure that due process of the criminal defendant was afforded.[7] Unfortunately, these “factors” are not founded in science, and in fact represent many of the lay assumptions about the brain and memory formation, retention and recall.[8]

Courts and laypeople alike tend to perceive of human memory as a straightforward, linear process:[9]

The expectation is that memories are stored like TiVo recordings. and that witnesses can retrieve them at will. That the quality of witness identification and testimony are dependent only on the credibility of the individual offering it. Conversely, neuroscience has shown that eyewitnesses are generally unreliable—due to the complexity and frailty of the brain, racial differences between witnesses and those they identify, stress during memory formation, and other factors.[10] Furthermore, human memory is highly susceptible to external factors, and thus our memories change over time.[11] Despite this unreliability, many jurisdictions do not allow expert testimony on the neuroscience of memory and the unreliability of eyewitness testimony.[12]

Yet the courts have yet to incorporate a nuanced understanding of the human brain—and how the mind is in fact a complex network of independent and overlapping neural processes. Contrary to lay-perceptions, fMRI scans demonstrate that different parts of the brain are responsible for the different “phases” of memory creation:[13]

The fact that various processes and parts of the brain is simply one demonstration that the acts of creating (encoding), keeping (maintenance), and retrieval (remembering) a memory are not identical, and various genetic, physical, and environmental factors can have different effects on these distinct neural processes.[14] Moreover, the type of memory one is attempting to recall employs different parts of the brain and neural processes:[15]

This neuroscience finding directly challenges a common lay perception on memory: that all memories are created equal. In fact, whether you are recalling something you were not paying attention to, compared to something you are familiar with or found novel, it is actually different parts of the brain that activate.[16] Additionally, it has been well-established that memory retention is different for formaiton of short-term memory (STM), immediate-term memory (ITM), anesthesia-resistant memory (ARM), and long-term memory (LTM).[17]  The last of which, LTM, is most commonly relied upon in eyewitness identification and requires repetitive mental training and only develops after several hours:[18]

Thus, while the field of neuroscience is expanding its tools and findings, the criminal courtroom has yet to catch up. Potential jurors still typically believe that your mind can play back what you previously experience like a video recording, that your memory is stable over time, that confidence in your memory is correlated to accuracy, that subsequent events do not alter your prior memories, and that people’s faces stand out and can easily be recognized.[19] Yet, the majority of qualified memory experts reject every single one of these statements:[20]

Currently, the “reason most frequently cited by courts for excluding expert testimony is that expert testimony regarding the accuracy of identifications usurps the role of the jury as the sole judge of the credibility of witnesses.”[21] Given the terrifying frequency and centrality of eyewitness identification in wrongful convictions over the last one hundred years, it is time for all jurisdictions to allow scientists to give testimony on the credibility of witnesses’ identification and memory. Only permitting memory expertise in the courtroom will enable jurors to be fully informed when assessing witness credibility.

 

 

 

[1] United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149 (1967) (quoting The Case of Sacco and Vanzetti 30 (1927)).

[2] See e.g., Hugo Münsterberg 49–56 (1908); Edwin M. Borchard, Convicting the Innocent at xiii-xv (1932) (early case study finding that forty-four of the studied sixty-five wrongful convictions were based upon mistaken eyewitness identification); see also Joyce W. Lacy and Craig E. L. Stark, The Neuroscience of Memory: Implications for the Courtroom, 14 Nat. R. Neuroscience 649, 649-50 (discussing that empirical research studies have shown how imperfect human memory since 1885, and yet these conclusions have remained largely unrecognized in contemporary society).

[3] Innocence Project, http://www.innocenceproject.org/#causes (last visited Feb. 21, 2017).

[4] Innocence Project, http://www.innocenceproject.org/causes/eyewitness-misidentification (last visited Feb. 21, 2017).

[5] United States v. Wade, 388 U.S. 218, 229 (1967).

[6] Neil v. Biggers, 409 U.S. 188, 198-99 (1972).

[7] Id. at 199-00 (“the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”)

[8] Ralph N. Haber & Lyn Haber, Experiencing, Remembering and Reporting Events, 6 Psychol. Pub. Pol’y  & L. 1057, 1057-58 (2000).

[9] Saul Mcleod, Stages of Memory Encoding Storage and Retrieval, Simple Psychology (2013) (last visited Aug. 6, 2016), http://www.simplypsychology.org/memory.html.

[10] Alex Kozinski. Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc., at iii-iv (2015) (author is a former judge on the United States Court of Appeals for the Ninth Circuit).

[11] Id. at vi-vii.

[12] Id. at iv.

[13] Timothy M. Ellmore, Fiona Rohlls & Faraz Khursheed, fMRI of working memory impairment after recovery from subarachnoid hemorrhage, 4 Frontiers in Neurology (article 179), Nov. 6, 2013, at 1, 6 fig.2.

[14] Brain Facts: A Primer on the Brain and Nervous System, Society of Neuroscience (Mar. 27, 20012), http://www.brainfacts.org/about-neuroscience/brain-facts-book.

[15] S.M Daselaar, M.S. Fleck, & R. Cabeza, Triple Dissociation in the Medial Temporal Lobes: Recollection, Familiarity, and Novelty, 96 J. Neurophysiology 1902, 1906 fig.1 (2006).

[16] Elizabeth Loftus, Our Changeable Memories: legal and practical implications, 4(5) Nature R. Neuroscience 231, 231-34 (2003).

[17] Tim Tully, et al., Targeting the Creb Pathway for Memory Enhancers, 2 Nature Reviews 267, 269 fig.1 (2003).

[18] Id. at 269.

[19] Haber & Haber, supra note 8, at 1057–58.

[20] Id. at 1058.

[21] Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Cts. L. Rev. 1, 21 (2007).