' Commentary | MTTLR

Caught in a Media and Legal Firestorm: The Inevitable Regulation of Facial Recognition Technology

Facial recognition technology continues to experience an onslaught of complications and backlash.   In February, Clearview AI, Inc., a facial recognition software company, experienced a data breach. The stolen data included its entire customer list, the number of searches made by each customer, and the number of accounts set up by each customer. Clearview’s customers mostly consist of law enforcement agencies. Critics, such as U.S. Senators Ed Markey and Ron Wyden, see this as yet another indication of the drawbacks of Clearview’s facial recognition technology greatly outweighing any potential benefits, and further reason to impose legislation regulating the use of such technology. Numerous critics have accused the company of violating consumer privacy policies of the web sites it scrapes. Clearview currently houses a database of over three billion photographs from various social media platforms, and although the Clearview breach did not access this data, major players in the tech industry have previously voiced concerns regarding its disregard for consumer privacy by issuing cease-and-desist letters to have Clearview remove their images.   In addition to the Commercial Facial Recognition Privacy Act of 2019, U.S. Senators Jeff Merkley and Cory Booker have introduced a Senate bill, the Ethical Use of Facial Recognition Act, to create a moratorium on the government’s use of facial recognition technology until a Congressional commission passes further regulations. Merkley worries this technology will create a dystopian “police state that tracks us everywhere we go.” Booker also challenged the technology’s tendency to misidentify and disproportionately target women and minorities. The bill still allows law enforcement to use facial recognition technology, but it places the ultimate authority over whether...

HOW TO USE MEDIA TO SUPPORT YOUR MEDIA (AKA HOW NOT TO GET REPORTED)

Social media influencers need to stay abreast of intellectual property laws so their content does not violate them. This post explores the relevant U.S. legal issues implicated by every video or post creation.     Trademarks A trademark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” Think Coca-Cola for drink products, Kate Spade for mid-luxury bags and jewelry, or Victoria Secret for declining lingerie and apparel. Apple even has trade dress protections in the layout of its stores. Service marks designate the source of a service, like Google, United Airlines and Amazon.   Does someone else have the legal trademark rights to your social media handle or channel name? A relatively quick and painless search on the USPTO website can tell you if a mark, design, trade dress or slogan has been registered and therefore unavailable to you. The USPTO’s Trademark Electronic Search System (TESS) allows you to search for registered live marks, pending marks, and dead marks. Access TESS here.   Using other brand’s marks Trademark protection finds its grounding in preventing consumer confusion. To preserve the strength of their mark, brands pay attention to the unauthorized uses of their marks. Luckily, First Amendment freedom of expression interests are strong enough to allow some use of owned marks.   Review without paid promotion from a company of a product Are you reviewing a particular product that you purchased yourself? Perhaps using it in a makeup tutorial, a book review, or a how-to video. Because of the first amendment’s strength and the desire for...

Privacy in the Golden State

A Look at the California Consumer Privacy Act   Are you a resident of California? Or are you a business owner whose business reaches consumers in California? If your answer to either of these questions is “yes,” then you should familiarize yourself with the California Consumer Privacy Act (“CCPA”). The CCPA is a new set of laws intended to enhance privacy rights and consumer protection for consumers in California. As more businesses rely on social media advertising, the CCPA and other privacy laws may affect you. Below is a breakdown of the most relevant parts of the CCPA.   Is the CCPA already law?   Yes, the CCPA took effect on January 1, 2020. The Act was passed by the California State Legislature and signed by the governor in 2018.   What is the CCPA and why does it matter?   The CCPA allows consumers to see all the personal information companies have collected on them, as well as a list of all the third parties that the companies have shared their data with. It also empowers consumers with the ability to either (1) force companies to delete their personal data, or (2) forbid the companies from sharing their data with third parties.   Additionally, the CCPA compels companies to take certain actions in order to facilitate consumer requests for information. For example, all covered companies are required to update their privacy policies with language that acknowledges the new rights afforded to consumers by the CCPA. Moreover, companies must provide at least two channels for receiving personal requests that include, at a minimum, a web page and a toll-free...

The CRISPR War Drags On: How the Fight to Patent CRISPR-Cas9 Creates Uncertainty in the Biotechnology Sphere

On September 10, 2018, the Federal Circuit Court of Appeals (“Federal Circuit”) affirmed the ruling of the United States Patent Trial and Appeals Board (“the Board”) in Regents of the University of California v. Broad Institute, finding that there was no interference-in-fact between competing patents that claimed methods of using CRISPR-Cas9 to modify cellular DNA. Rather than settling the patentability issue, however, exhaustive litigation has continued, as both parties seek to protect the results obtained from costly research. Such protracted litigation has created significant uncertainty among members of the scientific, legal, and biotechnology communities as to the exact demarcation of patent ownership and may ultimately reduce the amount of innovation in CRISPR-based technologies and stifle developing industries. Clustered Regularly Interspaced Short Palindromic Repeats (“CRISPR”) are a family of DNA sequences found naturally in bacteria that, when paired with guiding RNA sequences and CRISPR-associated proteins (Cas), can selectively modify an organism’s genetic material (genome) more effectively and cheaply than comparable gene-editing systems. Since the discovery of CRISPR’s gene-editing capacity by researchers at the University of California, the University of Vienna, and Emmanuelle Charpentier, innovators have applied CRISPR technology in diverse industries, including the medical, industrial, and agricultural sectors. Several thousand CRISPR-related patent applications have already been filed worldwide, with the majority being filed in the United States, China, and Europe. Researchers at the University of California were the first to (“UC”) demonstrate that isolated CRISPR-Cas9 components could effectively function in an in vitro environment. UC subsequently filed a patent application in May 2012 broadly claiming a method to using CRISPR-Cas9 without referencing specific cellular environments. In December 2012, a research...

The Watchers Still Aren’t Being Watched: Body Cameras and the Continued Problems of Police Accountability

The number of people shot and killed by police officers in the past several years is disturbingly consistent: 987 in 2017, 992 in 2018, 1004 in 2019. People of color and those with mental illnesses are disproportionately the victims. Body cameras worn by law enforcement have been suggested as a way to impose accountability on otherwise unchecked police power. But while body cameras do have the potential to curb law enforcement’s use of excessive force, the lack of consistent policies across agencies could undermine police accountability and at the same time impede citizens’ right to privacy.   There is no nationwide standard governing when body cameras should be turned on and off. Even within individual states, body camera policies can be highly variable. In Denver, a policy clearly outlines when an officer must be recording, while in Colorado Springs, an officer has complete discretion over when his or her body camera is recording.   Even when there are policies in place that dictate body camera filming policies, accountability can still be subverted. In a recent deposition, Little Rock, Arkansas Police Captain Heath Helton was questioned about multiple use-of-force allegations involving Little Rock officers. During these incidents, the officers turned off their body cameras before the excessive force could be caught on-camera, in violation of department policy. The involved officers were found to have violated the policy requiring them to have captured the incident, but were ultimately cleared of wrongdoing in regards to the excessive force allegations because in the absence of body camera footage there was corroborating evidence. If there are no real consequences for violating body camera policies,...

Justice is Blind(ed): The Issue with Proprietary Algorithms in Criminal Investigations

After serving seven years in prison, Lydell Grant was released on bond in November 2019 as a result of exonerating DNA evidence. Grant was convicted of murder in 2012 primarily based on eyewitness testimony, despite the fact that Houston police could not conclude the mixture of DNA found on the victim belonged to Grant. It was not until 2018 when law students at the Texas A&M University School of Law, in partnership with the Innocence Project of Texas, took up Grant’s case and shared the DNA with Cybergenetics, a Pennsylvania-based company that analyzes DNA evidence from crime scenes. Rather than having a human compare the crime scene DNA mixture with Grant’s DNA, Cybergenetics used its proprietary software TrueAllele to conclude Grant’s DNA did not match. Cybergenetics then went further and ran a search using the FBI’s Combined DNA Index System (CODIS), which allowed authorities to find the suspect who had confessed to the murder for which Grant was convicted. While the use of TrueAllele has led to exonerations of innocent defendants like Grant, the use of “Black Box Algorithms” whose protected algorithms and source code remain intellectual property of the company that creates them has raised issues of accuracy and fairness. Even though technology seems to have the power to analyze DNA mixtures using a sharper process than lab technicians, the lack of transparency on how the software actually conducts this analysis makes reaching this conclusion definitively almost impossible. The Electronic Frontier Foundation, a California firm that works to protect online privacy and speech against corporate and state abuse, appealed the criminal convictions of Billy Ray Johnson, Jr. on...