Who is behind your screen(s)?

One of the most important privacy cases this decade is currently in front of the Supreme Court: Carpenter v. United States. This decision will define how law enforcement interprets the Fourth Amendment regarding an individual’s cellphone. The decision hinges on whether law enforcement can use “third-party” doctrine dating from the 70s, which states that disclosing information to a third party does away with any expectation of privacy. We’ve already seen this doctrine in action. It allows law enforcement to compel cell-service providers to give historical cell-site records, without a warrant, to track down a serial cell phone thief. If SCOTUS upholds the current doctrine, then police would have free reign to monitor individuals’ cell phone location with little to no oversight. Individuals have more than just law enforcement to worry them when thinking about phone privacy. Another large group of actors are advertising firms. One challenge marketers face is how to match individuals across multiple devices to tailor user-specific marketing strategies. And this problem has potentially lucrative rewards for whoever can solve it. One study found that companies saw a $.04 revenue increase for each additional ad that a consumer was exposed to, which reinforces the importance of making multiple impressions on a consumer across multiple media platforms. Privacy concerns, among others, have caused Apple and Google to change their practices to make it much more difficult for advertising agencies to pinpoint each individual’s (their customers’) online usage over the past five or so years.  Both the IDFA (Apple) and AAID (Android) systems allow the user to opt out of its advertisement tracking system, which use these data points...

The Controversial Genome-Editing Technique CRISPR-Cas9

On February 15, 2017, the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) issued a ruling on a patent dispute about a genome-editing technique called CRISPR-Cas9.  The Regents of the University of California, University of Vienna, and a scientist named Emmanuelle Charpentier (collectively “UC”) initiated this legal proceeding, called an interference, against the Broad Institute, Inc., Massachusetts Institute of Technology, and President and Fellows of Harvard College (collectively “Broad”). The three-judge panel unanimously sided with Broad concluding, although temporarily, a legal battle closely watched by scientists, legal professionals and the biotechnology industry. On April 12, 2017, UC filed an appeal to the United States Court of Appeals for the Federal Circuit. An acronym for “clustered, regularly interspaced short palindromic repeats,” CRISPR is short sequences of ribonucleic acid (RNA) that can recognize and bind to complementary deoxyribonucleic acid (DNA) sequences in the genome of an organism. Cas9, a protein functioning like a pair of molecular scissors, can cut through the genomic DNA at the binding site.  The CRISPR-Cas9 system, functioning like a cut and paste tool in a word processor, can be employed to permanently modify the genome of an organism by removing deleterious genes or inserting beneficial ones.  UC’s patent application, which was filed earlier than Broad’s, described the functions of CRISPR-Cas9 in prokaryotes−single-cell organisms without cellular nucleus such as bacterium−in a non-cellular environment, while Broad’s patents demonstrated the applications of CRISPR-Cas9 in the more complex cellular environment of eukaryotes−humans, animals and plants.  During the PTAB hearings, UC argued that its patent claims anticipated or rendered Broad’s obvious, therefore making Board’s invention...

Amazon Key Is Not As Invasive As You Think…Probably

Last month when Amazon announced its newest offering, Amazon Key, people were skeptical.  Responses ranged from confused, to excited, to, naturally, cautious.  But now that it has officially arrived people are…still skeptical.  And not without good reason. Here’s how it works: Amazon Prime customers are eligible to purchase the Amazon Key In-Home Kit for $299.99.  The package includes a camera (the “Amazon Cloud Cam”) that connects to your wifi and acts as the system hub, a smart lock, and the Amazon Key App.  An Amazon technician comes to your house, mounts the camera so that it has a view of the door, and installs the lock.  If you live in one of 37 cities, the option for in-home delivery will be available during the Amazon.com checkout process.  Customers will get a notification when the delivery person is on the way.  When the courier arrives, he or she will scan the package to ensure it’s in the correct location, use the app to open your door, slide the package inside, then close and lock it behind them. Going beyond just eliminating front porch package theft, Amazon is quick to promote the benefits of the new system, including: A Personal Assistant: The Cloud Cam is equipped with a microphone and speaker, and can function like other Amazon devices that support Alexa. It can do things like adjust the lights, play music, etc. A Home Security System: Prime members may also purchase a home security subscription that allows users to record 24+ hours of video and comes with zone and person detection. Access for Service Providers and Friends: In a promotional video,...

#Mark – Is a Hashtag a Use in Commerce?

What are Trademarks and Why Do We Have Them? Trademarks designate the source of goods in commerce and servicemarks designate the source of services in commerce.  An example of a trademark is the polo player on polo shirts. An example of a service mark is the McDonald’s M. However, just about anything can serve as a source designator and be a trademark. The Supreme Court held that even a color can be a trademark. In America, trademark law has evolved to prevent consumer confusion. The Lanham Act governs trademark law in the United States. Trademark suits can be brought in either federal or state court. Importantly, for a Lanham Act suit to be successful, the purported infringer must use the mark “in commerce.” What Are Hashtags and Can They Be Trademarks? Hashtags are additions to social media posts that contain meta-data. For example, a couple may create a hashtag for their wedding. This allows people using social network websites, like Twitter, to easily upload and find posts and photos about the wedding. One interesting question is whether hashtags can be trademarks. The official position of the USPTO, the agency that keeps the registry of trademarks, is that hashtags can be trademarks. Given the wide variety of things that can become hashtags, there is good reason to believe that hashtags can serve as trademarks. Many companies are turning to hashtags to advertise. In 2013, over half of the Super Bowl advertisements featured hashtags. Hashtags are dynamic ways to interact with customers. There are many current ad campaigns that ask consumers to upload positive stories about a good or service and...

Blame it on the Robot?

Google-owned artificial intelligence company DeepMind recently succeeded at designing a program capable of defeating some of the world’s best players of Chinese strategy game Go.  While this may not appear groundbreaking, the real triumph comes from the fact that while the programmers laid the ground rules, it was the program itself, AlphaGo, that taught itself to play. In traditional programming, a human supplies step-by-step instructions for a computer to follow.  In contrast, in a machine learning approach, the computer learns from provided information and makes predictions or takes steps based on what it has learned rather than on explicit instructions provided by the programmer.  DeepMind programmers relied on reinforcement learning, a subset of machine learning that allows AI models to learn from past experiences.  This training method allowed AlphaGo to learn the success of various moves by playing against a second version of itself.  After three days of playing against itself, AlphaGo was able to beat DeepMind’s original, human-trained program by 100 games to zero. DeepMind created an AI that could learn and make independent decisions in order to maximize its success.  In this application, AlphaGo was working within the confines of a board game with a clearly defined goal and clearly defined rules.  But what happens when such a system is implemented in situations not quite so lighthearted and far more complicated, say autonomous vehicles.  Companies and scholars are already experimenting with reinforcement learning to train virtual autonomous vehicle systems.  As AI develops new abilities to learn, make decisions, act independently, and go beyond its initial programmed structure, its unpredictability, and in turn the potential for damages, also...

Fake News in the News Yet Again

On January 11, 2017, the term “fake news” entered the mainstream discourse when Donald Trump, during his first press conference as President-elect, refused to take a question from CNN reporter Jim Acosta and told him, “You are fake news.”  The source of that outburst can apparently be traced to a 35-page unverified document based primarily on memos complied by a former British intelligence operative that CNN had publicized.  President-elect Trump immediately blasted the report through his favorite medium of communication, tweeting, “FAKE NEWS – A TOTAL POLITICAL WITCH HUNT!” On October 21, 2017, more than nine months after President Donald Trump’s inauguration, the President referenced fake news in two separate tweets on two separate issues, proving the remarkable durability of a phrase that has consumed lawmakers, the social media industry, and the general public.  And with the recent revelations that Russia sought to influence the 2016 Presidential election on behalf of Trump, U.S.  lawmakers introduced legislation on October 19, 2017, to extend rules governing political advertising on television, print, and radio to cover social media such as Facebook. The “Honest Ads Act,” introduced by Senators Amy Klobuchar (D-MN), Mark Warner (D-VA), and John McCain (R-AZ), would expand existing election law covering television and radio outlets to apply to paid internet and digital advertisements on platforms such as Facebook, Twitter, and Google.  The law would require digital platforms with at least 50 million monthly views to maintain a public file of all electioneering communications purchased by anyone spending more than $500.  It would also require online platforms to make “all reasonable efforts” to ensure that foreign individuals and entities are...