' MTTLR | Michigan Telecommunications and Technology Law Review

Recent Articles

How Can I Tell if My Algorithm Was Reasonable?

By  Karni A. Chagal-Feferkorn Article, Spring 2021
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Taking It With You: Platform Barriers to Entry and the Limits of Data Portability

By  Gabriel Nicholas Article, Spring 2021
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Pushing Back on Stricter Copyright ISP Liability Rules

By  Pamela Samuelson Article, Spring 2021
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Association for Molecular Pathology v. Myriad Genetics: A Critical Reassessment

By  Jorge L. Contreras Article, Fall 2020
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From Automation to Autonomy: Legal and Ethical Responsibility Gaps in Artificial Intelligence Innovation

By  David Nersessian & Ruben Mancha Article, Fall 2020
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Recent Notes

Mitochondrial Replacement Therapy: Let the Science Decide

By  Sabrina K. Glavota Note, Spring 2021
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The Contribution of EU Law to the Regulation of Online Speech

By  Luc von Danwitz Note, Fall 2020
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Blog Posts

Privacy Considerations in the Implementation of Dodd Frank’s Section 1033

The Dodd Frank Act was enacted in 2010 in response to the 2008 financial crisis. Among the protections that it sought to create was Section 1033, which provides consumers increased access to – and control of – the personal data held by financial institutions.[1] Specifically, 1033 requires that financial institutions provide consumers with copies of their data upon request. The Consumer Financial Protection Bureau (CFPB) started gathering stakeholder opinions on Section 1033 several years after its passage and, in November of 2020, issued an Advanced Notice of Proposed Rulemaking (ANPR). FinTech companies and industry groups wrote comments in response to the ANPR in support of promulgating rules for Section 1033. They are eager for consumers to have the opportunity to pipe personal financial data from banks to their platforms. There are benefits to this system: with enhanced data portability, smaller companies have a greater chance of accessing the data they need to build innovative products that improve competition and are useful to the public. New toolscould aid in overdraft fee protection, credit score improvement, financial inclusivity, small business loans, fraud mitigation, and much more. However, there are potentially negative privacy implications if the CFPB implements Section 1033 without thoughtful consumer protection. CapitalOne’s comment on the Section 1033 ANPR voices concerns about “lightly regulated non-bank companies, particularly Data Aggregators and Data Users” gaining access to data that would otherwise be subject to the banking industry’s heightened data-handling rules. CapitalOne recommends that, for example, third parties who gain access to consumer data under Section 1033 become subject to the Gramm-Leach Bliley Act, which governs the management of individuals’ data by financial... read more

Legal Uncertainties Surrounding the Realm of NFTs

Introduction to NFTs Throughout 2021, non-fungible token (NFT) artwork has sold for record breaking prices and is rapidly increasing in popularity. In the second quarter of 2021, NFT sales surged to $2.5 billion, which is a tremendous increase from the $13.7 million in sales during the first half of 2020. In March 2021, the artist Beeple sold his NFT through Christie’s for $69.3 million. In June 2021, one of 10,000 CryptoPunks NFTs created by the artist duo Larva Labs resold for $11.8 million through Sotheby’s. An NFT is a digital asset or unit of data that stores information on blockchains. Blockchains are digital ledgers that record information chronologically in “blocks”, which are then chained together to form an irreversible timeline of data. Whereas databases store data in tables, blockchains store data in chains of blocks. Blockchains function similarly to a bank ledger in that they reveal the entire transaction history of digital assets, allowing for easy verification of asset ownership and authenticity. Most NFTs are part of the Ethereum blockchain, which is a decentralized, open-source blockchain where no single group or person has control over the blockchain. Rather, all users retain control over this blockchain. As a result, the data entered into the blockchain is irreversible and permanent—it cannot be modified, deleted, or pirated as all transactions are permanently recorded and viewable by the public.  Digital assets created on blockchains can be transferred between parties. These transferable assets are called tokens. An NFT is a non-fungible token, which means it is a one-of-a-kind asset. This is unlike Bitcoin, which is fungible and replicable. One Bitcoin can be traded for... read more

What President Biden’s EO on Section 230 signals on policy reform

On May 14, President Biden issued an executive order (EO 14029) on Section 230, the once obscure provision of the Communications Decency Act that is now at the heart of political fights over regulating speech on online platforms, and more broadly, the power of big technology companies.   If you missed the roll-out of EO 14029, you can certainly be forgiven. There was no public signing ceremony, no accompanying presidential remarks — not even a press briefing. With a yawn inducing title — “Executive Order on the Revocation of Certain Presidential Actions and Amendments” — it almost seems that the order was supposed to fly under the radar. EO 14029 was not even the biggest executive order on technology policy signed that week: just two days prior, the President rolled out a much-anticipated “Executive Order on Improving the Nation’s Cybersecurity.”   So, what does the order do? As a policy matter, the most straightforward answer is: not a whole lot. It simply revokes a slew of Trump-era orders, including EO 13925 or “Preventing Online Censorship,” which was probably of minimal legal effect anyway. In another sense, however, President Biden’s action moves Section 230 policy debate away from the executive branch, signaling that the responsibility for reform lies squarely with Congress.   To fully appreciate the implications of President Biden’s action, it’s useful to take a few steps back.   What is Section 230, anyway?   Section 230 of the Communications Decency Act, codified at 47 U.S.C §230, was passed in 1996 in order to protect innovation on the internet, then a fledgling industry. The gist of the statute is... read more

Make Way for Robocalls: Understanding the Implications of Facebook v. Duguid

  In 1991, Congress took action against the onslaught of undesired robocalls faced by households and individuals. The Telephone Consumer Protection Act (TCPA) established a variety of safeguards aimed at reducing the amount of uninvited calls consumers receive. One of the most important provisions of the TCPA prohibits the use of “any automatic telephone dialing system” (autodialer) to place unsolicited calls. The statute defines an autodialer as “equipment which has the capacity– (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Precisely what falls within the scope of an autodialer has already been subject to much debate. In 2003, the Federal Communications Commission, the agency with authority to administer the TCPA, determined that the use of an autodialer encompassed sending text messages. Much more recently in 2018, the U.S. Court of Appeals for the District of Columbia rejected the FCC’s interpretation of “capacity” which included potential functionalities or future possibilities, as opposed to merely present capacity, as impermissibly broad. The Facebook v. Duguid Decision On April 1, 2021, the Supreme Court issued a decision that renders another important interpretive judgment as to what falls under the scope of an autodialer. The recent case, Facebook v. Duguid, determined whether automated text messages sent by Facebook violate the TCPA. The Ninth Circuit had held that the autodialer prohibition applies to notification systems like Facebook’s that automatically dial stored numbers. Upon Facebook’s appeal, however, the Supreme Court unanimously disagreed. The Supreme Court’s ruling hinged on the statute’s specification that an autodialer must use a “random or sequential number generator.”... read more

Privacy Concerns for Digital COVID-19 Contact Tracing and Implications for Incorporation of Artificial Intelligence

Contact tracing has been a key measure in an attempt to slow the spread of COVID-19. Many countries, including the United States, have used contact tracing to track and control the spread of the disease. The measure has been touted as a success in the states and countries that managed to implement a well-functioning system with adequate preparation, testing and tracking, welfare support, and effective leadership. However not all contact tracing efforts were successful. The United Kingdom’s contact tracing efforts have been noted to be a failure,  with the country’s government scientific advisory group reporting that the program had a “marginal impact on transmission.” The United States has similarly experienced failures in several states. Some of the reasons that programs fail include lack of local support, sheer number of cases, and delays in testing and identification. Even strong advocates for robust contact tracing programs have conceded that “it is impossible to do meaningful or substantial contact tracing with huge numbers of cases.” Shortage in personnel performing contact tracing also likely contributes to the difficulty. One key tool that could have mitigated some of the problems with contact tracing is the use of digital contact tracing. In fact, several countries, notably South Korea and Singapore, have successfully implemented digital contact tracing programs. Apple and Google partnered to create a COVID-19 contact tracing technology which utilizes Bluetooth technology. Claims have been made that implementing AI mechanisms in such technology would further increase the effectiveness of Bluetooth contact tracing by boosting the ability of the phones to detect nearby phones, which remains shaky with just the use of Bluetooth technology. Pairing Bluetooth... read more

Intellectual Property Law in the Era of COVID-19

Basic research conducted by scientists at federally funded academic laboratories has been essential to the rapid development of COVID-19 vaccines, and the federal government has poured billions of dollars into vaccine companies since the pandemic began to accelerate the delivery of their products. However, coronavirus vaccines are likely to be worth billions to the drug industry, and even though vaccine supplies are steadily improving, groups like Doctors Without Borders are urging governments to seize the patents on any coronavirus therapies from taxpayer-funded research to prevent price gouging. Patentholders object to government intervention because their implementation would set a dangerous precedent and interfere with people’s incentives to invest in research and development for future treatments and vaccines. However, given the state of the current public health crisis, the U.S. may opt to take such drastic measures to ensure a COVID-19 vaccine is widely accessible, and their legal implications should be studied carefully. March-In Rights Under the Bayh-Dole Act If key patents for an approved vaccine are publicly funded, the federal government may be able to exercise its march-in rights under the Bayh-Dole Act of 1980. The Moderna vaccine, for example, emerged directly out of a partnership between Moderna and a federally funded academic laboratory. March-in rights were included to prevent big businesses from licensing federally funded technologies from universities, only to shelve the technologies and not commercialize them. In specific circumstances, the U.S. government has the right to “march-in” and either grant licenses or require the patent holder/licensee to grant licenses to third parties if several conditions are satisfied. If the U.S. government decides to exercise its march-in rights, the... read more

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