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).

 

3D-Printed Problem: Regulating 3D-Printed Firearms by Diane Sung

Diane Sung
J.D. Candidate 2018
University of Colorado

Introduction

The history of 3D printing begins as early as 1983 when Charles Hull first invented “stereolithography” (SLA), the process behind 3D printers.[1]  In 1986, Hull founded 3D Systems and developed the first commercial 3D printer, SLA-1.[2]  Since then, the technology has continued to develop and advance, with a wide range of uses and increasing popularity among consumers.  Among those uses is the ability to 3D print firearms, which has created a growing need for new regulations.  However, regulatory response may favor public safety and national security concerns over protecting constitutional rights.  Though those concerns have merit, diminishing constitutional rights would be an unfortunate response and a better approach would be for lawmakers to work within the bounds of the Constitution.

 

The Future of Manufacturing                                                                                                                        

In recent years, 3D printers have created some incredible products that demonstrate the incredible capabilities of this technology:

  • November 2010 – The “Urbee,” a prototype for the first car to have a 3D printed body, is completed.[3]
  • July 2011 – The Southhampton University Laser Sintered Aircraft (SULSA), the first aircraft to have an entirely 3D-printed body is announced and later flown.[4]
  • February 2012 – The world’s first 3D-printed lower jaw implant is created and later successfully implanted in an 83-year-old patient.[5]
  • May 2013 – The “Liberator,” the world’s first fully 3D-printed gun, is created.[6]
  • January 2014 – SpaceX successfully launches its Falcon 9 rocket with a 3D-printed valve.[7]
  • January 2015 – A five-story apartment building comprised primarily of 3D printed parts, is built in China by WinSun, a Chinese construction company.[8]

 

Online Blueprints & Government Response

By using digital files as “blueprints” for various objects, 3D printers have numerous capabilities such as those listed above.[9]  Online resources like Thingiverse provide platforms for open-source software where users can share their blueprint files for 3D printing.[10]  Although 3D printing has many positive uses, the introduction of the 3D-printed gun has been controversial.  In 2013, a company named Defense Distributed created the “Liberator,” the first 3D-printed gun.[11]  The group then released the blueprints for the 3D-printed gun online, making them available to the public.[12]  Despite the State Department’s demands to remove the blueprints, over 100,000 people have already downloaded them.[13]

Under the 1988 Undetectable Firearms Act, it is illegal for anyone to “manufacture, import, sell, ship, deliver possess, transfer, or receive any firearm” that is undetectable by metal detectors or x-ray machines.[14]  In December 2013, the Senate approved the ten-year extension of the 1988 Undetectable Firearms Act that was set to expire.[15]  Two New York Senators, Steve Israel and Chuck Schumer, sought to expand the Act’s scope to better account for 3D-printed firearms.[16]  Their proposals would require the detectable metal component of any firearm to be a crucial and functional part.[17]  However, Republicans strongly opposed any efforts to expand the Act, and 3D-printed guns remain legal in the United States today.[18]

 

Regulating Under the Constitution

Today, the country remains deeply divided on the issue of gun control, and the introduction of 3D-printed guns complicates the issue.  With few safeguards in place to sufficiently regulate 3D-printed firearms, it is easy to view 3D-printed guns as a threat to the general public’s safety.  As 3D-printing technology continues to advance, current firearm regulations will likely be insufficient and the need for regulation will grow.  However, this may at times conflict with individual rights.[19]

Finding a solution for managing this new technology is far from simple and raises several constitutional issues:

  • Do 3D-model files constitute free speech protected by the 1st Amendment?[20]
  • Under the 2nd Amendment, do citizens have the right to privately create potentially unregulated guns?[21]
  • What impact would the regulation of 3D-printed guns have on an individual’s privacy rights under the 4thAmendment?[22]

These issues must be addressed in order to propose effective regulations and legislation.  Although regulation raises some constitutional concerns, leaving the expanded use of 3D printers and 3D-printed guns largely unregulated may also violate or infringe other rights, particularly in intellectual property.  For example, the copyright infringement issues around illegally downloaded music files could similarly affect the digital files needed for 3D printing.[23]  The increasing popularity and accessibility of 3D printers among general consumers will likely make unregulated 3D-printed guns a more prevalent and widespread issue.[24]  Strengthening existing laws, such as expanding the Undetectable Firearms Act, or implementing new regulations that better target the issues directly can help provide some controls over 3D-printed firearms without treading on constitutional rights.  The law needs to adapt to better address this advancing technology and the impact of its increasing private use, but should do so without weakening individual rights.

 

[1] The Journey of a Lifetime, 3D Systems, http://www.3dsystems.com/30-years-innovation (last visited Sep. 15, 2016).

[2] Id.

[3] Tim Stevens, The Urbee Hybrid is the first car to come out of a printer, Engadget (Nov. 3, 2010), https://www.engadget.com/2010/11/03/the-urbee-hybrid-is-the-first-car-to-come-out-of-a-printer-pres/.

[4] Ben Coxworth, World’s first ‘printed’ aircraft is flown, New Atlas (July 29, 2011), http://newatlas.com/3d-printed-aircraft-flown/19383/.

[5] Transplant jaw made by 3D printer claimed as first, BBC News (Mar. 8, 2012),  http://www.bbc.com/news/
technology-16907104.

[6] Andy Greenberg, Meet The ‘Liberator’: Test-Firing The World’s First Fully 3D-Printed Gun, Forbes (May 5, 2013, 5:30 PM),  http://www.forbes.com/sites/andygreenberg/2013/05/05/meet-the-liberator-test-firing-the-worlds-first-fully-3d-printed-gun/#7ca5c63e511e

[7] SpaceX Launches 3D-Printed Part to Space, Creates Printed Engine Chamber, SpaceX (July 31, 2014), http://www.spacex.com/news/2014/07/31/spacex-launches-3d-printed-part-space-creates-printed-engine-chamber-crewed.

[8] Michelle Starr, World’s first 3D-printed apartment building constructed in China, CNET (Jan. 19, 2015, 7:05 PM PST), https://www.cnet.com/news/worlds-first-3d-printed-apartment-building-constructed-in-china/.

[9] T. Rowe Price, 3D Printing Infographic, https://individual.troweprice.com/staticFiles/Retail/Shared/PDFs/3D_
Printing_Infographic_FINAL.pdf (last visited Jan. 28, 2017).

[10] Thingiverse, http://www.thingiverse.com/about/ (last visited Jan. 28, 2017).

[11] Andy Greenberg, Meet The ‘Liberator’: Test-Firing The World’s First Fully 3D-Printed Gun, Forbes (May 5, 2013, 5:30 PM),  http://www.forbes.com/sites/andygreenberg/2013/05/05/meet-the-liberator-test-firing-the-worlds-first-fully-3d-printed-gun/#67e63455511e.

[12] Andy Greenberg, 3-D Printed Gun Lawsuit Starts the War Between Arms Control and Free Speech, Wired (May 6, 2015, 5:08 PM), https://www.wired.com/2015/05/3-d-printed-gun-lawsuit-starts-war-arms-control-free-speech/.

[13] Senator seeks to extend ban on ‘undetectable’ 3D-printed guns, The Guardian (Nov. 17, 2013, 9:20 EST), https://www.theguardian.com/technology/2013/nov/17/3d-printing-guns-ban-senate

[14] Undetectable Firearms Act of 1988, 102 Stat. 3816.

[15] Susan Davis, Congress extends plastic gun ban, USA Today (Dec. 9, 2013, 8:53 PM EST), http://www.usatoday.com/story/news/politics/2013/12/09/congress-extends-plastic-gun-ban/3922175/.

[16] Schumer Announces Support For Measure To Make 3D Printed Guns Illegal, CBS N.Y. (May 5, 2013, 12:17 PM), http://newyork.cbslocal.com/2013/05/05/schumer-announces-support-for-measure-to-make-3d-printed-guns-illegal/.

[17] Andy Greenberg, Bill to Ban Undetectable 3D Printed Guns is Coming Back, Wired (April 6, 2015, 7:00 AM) https://www.wired.com/2015/04/bill-ban-undetectable-3-d-printed-guns-coming-back/.

[18] Susan Davis, Congress extends plastic gun ban, USA Today (Dec. 9, 2013, 8:53 PM EST), http://www.usatoday.com/story/news/politics/2013/12/09/congress-extends-plastic-gun-ban/3922175/.

[19] Defense Distributed v. U.S. Dep’t of State, 838 F.3d 451 (5th Cir. Tex. 2016).

[20] See Barton Lee, Where Gutenberg Meets Guns: The Liberator, 3D-Printed Weapons, and the First Amendment, 92 N.C. L. Rev. 1393, 1393-1394 (2014). http://heinonline.org/HOL/Page?handle=hein.journals/nclr92&div=36&g_sent=1&collection=journals

[21] Josh Blackman, The 1st Amendment, 2nd Amendment, and 3D Printed Guns, 81 Tenn. L. Rev. 479, 490-492 (2014).

[22] See Julian J. Johnson, Print, Lock, and Load, 2 J. of Law, Tech., & Policy 337, 353 (2013).

[23] Anne Lewis, The Legality of 3D Printing: How Technology Is Moving Faster than the Law, 17 Tul. J. Tech. & Intell. Prop. 303, 315-317 (2014).

[24] Gartner Says Worldwide Shipments of 3D Printers to Reach More Than 490,000 in 2016, Gartner (Sep. 29, 2015), http://www.gartner.com/newsroom/id/3139118.

Prisoners’ Reintegration in the Digital Age: A Cross-Cultural Analysis of Technology’s Presence, Function, and Utility in Both Retributive and Rehabilitative Justice Systems by Marissa Weber

 

Marissa Weber
J.D. Candidate 2019
University of Colorado

Dissimilar Criminal Justice Systems in Use Internationally

Criminal justice systems are not internationally uniform. Terrorism is one issue that demonstrates this principle. When terrorists attack and endanger a state, governments display distinct approaches and beliefs on how best to respond. Governments must develop answers for how and where to invest their punishment efforts, and whether retribution or rehabilitation is the correct path, or an enterprise in between. Perhaps there is an intuitive overlap between these two approaches. How a society answers these questions alludes to the public values it holds dear. The United States’ more retributive justice system and Norway’s more restorative and rehabilitative justice system, distant from each other on a punishment spectrum, manifest a strong comparative analysis to dissect criminal reintegration efforts. While the two countries’ self-identifications, as liberal democracies, for example, are similar, their relationships with and approaches to terrorism and other extreme crimes are deeply divergent. [1]

It is possible, and ordinary, for regions to function as allies while maintaining drastically contrasting political and adjudicative approaches. Both the United States and Norway self-identify as liberal democracies, strive to maintain social order, and regard their systems as just. Their stances reflect their public values in a more emic way than do their political self-identifications, digging deeper than broad, etic, interpretive concepts with which these regions identify, such as liberalism. These regions differ in their interpretations of what it means to be liberal, what it means to be a democracy, what social order entails, and of the application and permanency or immutability of human rights. Their dissimilar laws function as active processes through which people generate social meaning in order to give expression to their culturally distinct values.

While their differences are visible through political distinctions and recidivism rates, criminals re-entering society in both nations face a similar legal and technological struggle: a society more digitized than when they left it.[2]  Not only does a digital society pose an issue for criminals in both nations re-entering society because of culture shock and feeling disadvantaged, but also because it decreases the likelihood of securing a job, which increases the likelihood of reoffending and heightened recidivism rates.[3] The United States and Norway have distinct legal approaches to rectify this disparity that prevents smooth reintegration of criminals into society.

 

Revamping the Criminal Justice System: Technological Training

The immersion of inmates’ everyday lives in technology has the potential to be so pervasive, profitable, and motivating, specifically by providing inmates with a sense of purpose and hope. While the differences between retributive and rehabilitative justice systems are so vast that they have generated centuries-long, unresolved moral and ethical debates, advanced educational technology may be a resource that both justice systems proudly adopt.

Experiential and experimental technological programs have already manifested in prisons, beyond a rudimentary level. For example, California’s San Quentin State Prison supports one notable technological program: The Last Mile.[4] The Last Mile is an entrepreneurial initiative to connect inmates with the world of technology start-ups. The initiative created a program, Code 7370, that teaches inmates about computer programming and website building.

While these programs produce marketable tools, there are downsides as well. San Quentin prohibits internet access during Code 7370 classes, which limits inmates’ capacity to put their skills into effect.

However, the program is an experimental start to a potentially technology-fueled future, a future largely dependent on how such programs affect recidivism rates. A Corrections Corporation of America survey suggests only 12.5% of employers would review the application of someone with a criminal history.[5] This statistic stresses the importance of educational technology programs that may provide inmates one less thing to worry about as they reintegrate into society: interacting with an ever-evolving technological world. A former inmate of the California Department of Corrections and Rehabilitation, who did not have a technological education while incarcerated, shared the hardships of his reintegration into society, unaware of how phone booths had largely become décor.[6]

On the other side of the justice system spectrum, Norway’s Halden Prison, globally known to be the prison of “humaneness,” also experiments with technology implementations in their rehabilitation facilities for dangerous criminals, who require immersive and intense rehabilitation. One unique facility, Halden Prison, carries out rehabilitation through its mixing studio program. There, inmates can mix their own music and broadcast monthly on a local radio channel.[7] Norway’s recidivism rate for dangerous criminals is substantially lower than that of the United States’, and it is unclear what impact technology has on this rate in Norway.[8]

 

Drawbacks and Challenges

While it may be too soon to assess the cross-cultural impact of the implementation of technological programs in prisons, such programs’ potential challenges are quite clear. Laws often function as a reflection only of what a society is presently ready or prepared for. For example, neither the United States’ nor Norway’s societies are prepared for a justice system that permits inmates’ use of personal cell phones or access to the internet, since such unlimited use could lead to illegal activity and other freedoms.[9] When certain technologies are permitted, challenges arise in how to limit their use. There are many public policy considerations behind these policies that protect the public interest and safety.

This similar positioning can be seen through laws of both regions. For example, the United States’ Cell Phone Contraband Act of 2010 imposes penalties for the possession of such contraband. The Act alludes to “a phone or other device used by a user of commercial mobile service” (18 U.S.C. §1791). Similarly, Norway’s Regulations to the Execution of Sentences Act prohibit one from bringing a telephone or similar device into a prison, unless for training situations, for which “extraordinary need” is documented. Additionally, the Act prohibits prisoners from connecting to the internet. The bases of these penalties and regulations are security concerns, inappropriate usage of technology unrelated to self-betterment and/or education, and risk of isolation, all of which may nullify and reverse any positive efforts technology could produce for inmates. The world of technology is infinite and cavernous in its evolution, requiring a certain level of limitation of technology usage in corrections facilities.

 

Future Considerations

The United States and Norway have seemingly good reason to not provide inmates with extensive technological freedoms. However, it is also seemingly logical that inmates treated more humanely and given responsibility while incarcerated will be more prepared to re-enter society than inmates who are deprived of any connection to the evolving world. It will be revealing to see how far nations around the world, such as the United States and Norway, take the implementation of technology in their justice systems. The statistics on employment and recidivism rates for inmates reintegrating into society will inform us on whether technology has distinct effects within such distinct justice systems. Maybe technology will close the gap; like most things, a balance is needed.

On both sides of the current gap is an issue that extends to both regions’ cultures: money. In places like Texas’s Travis County Correctional Complex, technology is not being used as an educational, employable tool, but instead as a cost-efficient, impersonal instrument that seemingly benefits correctional facilities and burdens their inmates.[10] Digitized visitation allows inmates to “meet” with visitors through video-communication in their prison cells. While this visitation method expands visiting hours, cuts staffing costs, and reduces contraband, it also puts inmates at increased risk of isolation and mental health issues, which is counterproductive for motivating dangerous criminals to rehabilitate and reintegrate.[11]

This particular system has yet to reach Norway, and it is unknown whether it ever will. Regardless, it is evident that the use of technology in prisons, like anywhere else, is incomparably efficient for education, productive for interacting in this ever-evolving digital world, cost-efficient, but also detrimental for issues like mental health.

In trying to comprehend the role of technology in justice systems around the world, it is useful to return to the issue of dangerous criminals, as they present complexities that are enlightening to dissect. For example, “terrorism aims at the very destruction of human rights, democracy and the rule of law”; yet humans of many democracies, such as the United States and Norway, who are equally targets of terrorism, struggle to agree on the human rights that extreme criminals deserve.[12] As law is an active process through which different societies generate different social meanings to express different values, being human is an active process through which individuals do the same. Therefore, it is vital that societies consider the need for increased compassion toward its members, in order for them to evolve as active, high-functioning societal participants. This compassion may require a larger technological presence to allow inmates the opportunity to reflect their society’s progress, or may take the form of less technology, to preserve mental health and human interaction.

Because the United States and Norway agree on the importance of rehabilitative technological training but disagree on the shape rehabilitation should take, maybe there can be an integration of methodology, illuminating the most positive attributes of both perspectives. Regardless, the evolution of these regions’ justice systems will be a reflection of their capacity in this digital age, will inform us of their societal values, and will affect the relationship between the regions that currently diverge in their legal perceptions of justice.

 

[1] Extreme – in reference to “extremely grave” situations, such as “war, public danger, or other emergency that threatens the independence or security of the State party.”

Office of the United Nations High Comm’r for Human Rights, States’ obligations under human rights law, OHCHR.COM (last visited Jan. 3, 2017), http://www.ohchr.org/Documents/Publicati ons/DigestJurisprudence .pdf.

[2] Christina Sterbenz, Why Norway’s prison system is so successful, Business Insider: Law & Order (Dec. 11, 2014, 1:31 PM), http://www.businessinsider.com/why-norways-prison-system-is-so-successful-2014-12.

[3] Id.

[4] Prison Programs Change Lives, thelastmile.org (last visited Jan. 3, 2017), http://thelastmile.org

[5] Kevin Roose, After years behind bars, can prisoners re-enter a digital society?, Fusion: TECH BEHIND BARS – Part 2 (Feb. 4, 2015, 11:30 AM), http://fusion.net/story/42775/after-years-behind-bars-can-prisoners-re-enter-a-digital-world/.

[6] Id.

[7] Amelia Gentleman, Inside Halden, the most humane prison in the world, theguardian.com (May 18, 2012, 4:48 PM), https://www.theguardian.com/society/2012/may/18/halden-most-humane-prison-in-world.

[8] Supra, note 2.

[9] Supra, note 5.

[10] Bernadette Rabuy and Peter Wagner, Screening Out Family Time: The for-profit video visitation industry in prison and jails, Prison Policy Initiative: Publications (Jan. 2015), https://www.prisonpolicy.org/visitation/report.html.

[11] Id.

[12] Office of the United Nations High Comm’r for Human Rights, States’ obligations under human rights law, OHCHR.COM (last visited Jan. 3, 2017), http://www.ohchr.org/Documents/Publicati ons/DigestJurisprudence.pdf.