' MTTLR | Michigan Telecommunications and Technology Law Review

Recent Articles

The 'License as Tax' Fallacy

By  Jonathan M. Barnett
Article, Spring 2022
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Unreasonable: A Strict Liability Solution to the FTC's Data Security Problem

By  James C. Cooper & Bruce H. Kobayashi
Article, Spring 2022
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The Ping-Pong Olympics of Antisuit Injunction in FRAND Litigation

By King Fung Tsang & Jyh-An Lee
Article, Spring 2022
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Content Moderation Remedies

By  Eric Goldman
Article, Fall 2021
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An Empirical Study: Willful Infringement & Enhanced Damages in Patent Law After Halo

By  Karen E. Sandrik
Article, Fall 2021
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Recent Notes

The Best Data Plan Is to Have a Game Plan: Obstacles and Solutions to Reaching International Data Privacy Agreements

By  James Wang
Note, Spring 2022
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Mental Health Mobile Apps and the Need to Update Federal Regulations to Protect Users

By  Kewa Jiang
Note, Spring 2022
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Blog Posts

Sovereign Digital Currency – A New Economic Foundation for Native American Tribes?

Before European settlers explored America, it is approximated that 18 million indigenous people called North America their home. Decades of war, disease, discrimination, removal, and termination rapidly brought those numbers to only 5.2 million today. Today, there are about 574 federally recognized and 63 state recognized Native American tribes in the United States. After losing an abundance of land and forceful relocation to reservations, modern Native Americans fight for sovereignty and cultural and economic survival. Today, 1 in 3 Native Americans are living in poverty, with a median income of $23,000 a year.   In 2009, a new kind of economic technology emerged—crypto currency. A cryptocurrency is a digital or virtual currency that is secured by cryptography, which makes it nearly impossible to counterfeit or double-spend. Many cryptocurrencies are decentralized networks based on blockchain technology—a distributed ledger enforced by a disparate network of computers. A defining feature of cryptocurrencies is that they are generally not issued by any central authority, rendering them theoretically immune to government interference or manipulation. In 2009, Bitcoin software and mining was the first digital currency made available to the public. As of March 2022, there are over 18,000 crypto currencies in existence throughout the world. Native American tribal leaders caught wind of the successes of cryptocurrency and joined in on the business of creating, mining, and selling digital currency for two main reasons: (1) to empower Native Americans through a modern declaration of sovereign status and independence and (2) to boost economic activity and general income in Indian Country. In 2014, the Oglala Lakota Pine Ridge Indian Reservation in South Dakota adopted MazaCoin as... read more

Automating Healthcare: Current Challenges that Must be Addressed

Artificial Intelligence has the potential to improve health care systems worldwide. For example, AI can optimize workflow in hospitals, provide more accurate diagnoses, and bring better medical treatments to patients. However, medical AI also creates challenges that we, as a society, need to face. This article does not attempt a comprehensive listing but focuses on three important obstacles: safety, transparency, and privacy. Regulating Safety             It is of utmost importance that the use of AI is safe and effective. How do we ensure that AI trained in a particular setting is going to be reliable once deployed? As a real example, IBM Watson for Oncology uses AI algorithms to assess patients’ medical records and help physicians explore cancer treatment options. However, it has come under fire for not delivering on expectations and providing “unsafe and incorrect” recommendations. The problem appears to have been in the training, which is not based on an analysis of historical patient records, but rather only a few “synthetic cases.” This highlights the need for datasets that are reliable and valid. The software is only as good as the data its trained on, so the collection and curating of data can be the most critical part of deploying effective AI. Also, algorithms need further refinement and continuous updating. This separates AI from other medical devices, which do not have the ability to continuously learn.             In terms of legal regulation, some medical AI-based products must undergo review by the FDA. A medical device is defined under section 201(h) of the Federal Food, Drug, and Cosmetic Act. While some software functions does not qualify (see Section... read more

Do We Need to Reconceptualize the Threat to Free Speech?

In the era of constitutional ratification, the Founders of the United States faced the task of creating a system of government that would not allow for potential tyranny. At this time, the world had seen widespread persecution and abuses by governments toward its citizens. The US Constitution was designed under the belief that the biggest threat to liberty was the government. As Thomas Jefferson said, “a bill of rights is what the people are entitled to against every government on earth.” Albeit with some limitations, the First Amendment protects the liberty of individuals by guaranteeing their right to speak freely without fear of government censorship. This made sense during an era when the medium of speech consisted primarily of the public square and the press, and the threat of censorship stemmed largely from the government. There is little doubt that those living at the time of ratification – still in the early years of the Industrial Age – would have had no way of conceptualizing the monumental advances made in communications technology leading up to the 21st century. In those early years, the primary methods of communication involved verbal and written correspondence. The notion of instant communication and the ability to share information between groups of people around the world on an invisible medium would have simply been unimaginable at the time. It stands to reason then that the issues stemming from such advancements that we now face would not have been adequately foreseen. The advent of social media in the early 2000s revolutionized the way we communicate and absorb information. Instead of having information fed to the public... read more

Sony and Microsoft: An Arms race for Domination of the Video Game Industry and its Relevant Antitrust Concerns

It’s no secret that both Sony and Microsoft have been rivals in the video game industry for decades. This arms race between the two competitors has resulted in independent gaming studios releasing timed exclusive content on either Playstation or Xbox consoles. However, over the last decade, this competition has evolved. Instead of lobbying for platform-exclusive games, both Sony and Microsoft have made the leap to acquiring independent game studios they believe have promising new and legacy IPs. Microsoft’s latest acquisition of Activision for $68.7 billion brings global titles like “Warcraft,” “Diablo,” “Overwatch,” and “Call of Duty” to their side of the gaming isle. On the heels of this acquisition, Sony announced its own acquisition of Bungie Studios. However, these two deals are just the latest in a long list of acquisitions for both gaming giants. Sony has developed or acquired numerous studios over the past decade including Bluepoint, Insomniac Games, Naughty Dog, Santa Monica, and Sucker Punch studios just to name a few. Likewise, Microsoft now boasts big name studios like 343 Industries, Ninja Theory, Obsidian Entertainment, and Bethesda entertainment. These recent moves by both Sony and Microsoft are an indication that both companies see the future of their respective platforms to be determined by first-party games. Interestingly, the third gaming giant, Nintendo, has long been employing this strategy. As of the end of 2021, Nintendo’s top 10 games on the Nintendo Switch comprise of well-known series such as Mario Kart, Animal Crossing, Super Smash Bros., Zelda, and Pokemon. Without exception, every single game is either directly published by Nintendo or exclusive to the Nintendo Switch system. When comparing... read more

Familial DNA Searches and Criminal Investigations

From 1975-1986 the notorious Golden State Killer committed 12 murders, 45 rapes, and 120 burglaries across 6 California counties. These crimes remained unsolved until 2018 when police arrested Joseph DeAngelo, a 73 year old United States Navy Veteran and police officer, in his home in Citrus Heights, California. DeAngelo’s crimes were finally solved after all of these years through the use of a novel forensic technology: familial DNA search (FDS). In a traditional DNA search, law enforcement gather DNA material left at a crime scene. They then test that sample to see if it matches the DNA of anyone in a vast database of known offenders, like the FBI’s combined DNA Index System (CODIS), who have previously provided a DNA sample. This type of search couldn’t help solve DeAngelo’s murders though. The traditional search requires a perfect match between the sample DNA taken from the crime scene and someone’s DNA from the database. Since DeAngelo had never been convicted of a crime, he had never given a sample to be entered into CODIS so there was no perfect match for the DNA he left at the scene. In contrast, FDS allows law enforcement officers to analyze DNA samples from a crime scene for imperfect matches of family members from within a DNA database. Here is a simplified explanation of the process. Since DNA is inherited, family members will contain more shared genetic markers than non-related individuals do. As such, if law enforcement finds two sufficiently similar matches, they can, with a reasonable degree of probabilistic certainty, conclude that the two individuals are related. So, using FDS, if law enforcement... read more

Shedding Light on the Data Ecosystem

Introduction The worldwide market for personal data is large and growing, but not widely understood by the average consumer. Consumers are generally unaware of how valuable their data is and there is no comprehensive set of tools to give people an idea of how much of their personal information is being actively traded by various companies. Recent scandals like the Equifax data breach and settlement have brought more scrutiny to the security practices of publicly traded companies that handle consumer data. However, there is an entire industry that is little understood and less regulated that trades exclusively in consumer data.   Third-Party Data Aggregators The consumer data broker industry is a multibillion-dollar industry. Every year companies spend billions looking for insight into consumer behavior and marketing techniques by analyzing user data for spending and browsing habits. There are few laws governing the sale and collection of personal data. While most of the value to companies is in the aggregation of all of this data, there is potential for misuse on a personal level through release of information that can lead to doxxing or stalking. One of these third-party data aggregators came to national attention during the Russian election interference scandals after the 2016 US Presidential Election. A consulting company, Cambridge Analytica, was charged misusing consumer data purchased from Facebook to target likely voters for misinformation campaigns. People rightly questioned why a shady UK consulting company so easily had access to Facebook user data, but the story largely died down without much further discussion of the implications of such a marketplace. Cambridge Analytica shut its doors, but, unsurprisingly, reformulated a... read more

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