' Commentary | MTTLR

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.”...

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...

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...

Arthrex, PTAB, and the Unitary Executive

Patent law is often thought of as a statutory area of law, governed primarily by Title 35 of the U.S. Code and the long history of judicial opinions interpreting it. But with the passage of the AIA came the Patent Trial and Appeal Board (PTAB) and the rapid expansion of the role of the USPTO in not only granting patents, but in adjudicating disputes over them. Suddenly, administrative law was a fundamental piece of the puzzle of patent litigation. And while the PTAB has faced challenges to its validity and authority since, the Supreme Court seems to have ruled that, for now, it’s here to stay. This doesn’t mean that PTAB’s path forward is free of any administrative hurdles, however. As is evident in United States v. Arthrex, Inc. (which heard oral arguments at the Supreme Court this March), the new frontier of administrative patent trials comes with the typical issues of constitutionality other administrative courts have encountered. In Arthrex, the familiar issue of the principal/inferior status of administrative officers is center-stage, with Smith & Nephew and the United States arguing for Administrative Patent Judges (APJs) as inferior officers (and thus preserving the current system where APJs are appointed solely by the Secretary of Commerce) while Arthrex touts them as principal officers (whose appointments require the advice and consent of the Senate). The ultimate decision of the Supreme Court likely won’t cause a major shift in what technologies are granted patents, or even in the administrative process around patent disputes. After all, even if the Court determines the APJs to be unconstitutionally appointed, the system can stay so long...

Will NFTs Solve Existing Legal Problems or Will They Create New Ones?

The recently released Netflix documentary Made You Look, highlights one of the biggest fraud scandals in the high-end art world. The Knoedler Gallery in New York City was found to have sold over 80 million dollars’ worth of forged artwork over a roughly 10-year period. This spectacle underscored the issue of provenance in the high-end art world. Provenance is paperwork or documentation that verifies the authenticity of the artwork. Unfortunately, it is common for expensive artwork to lack provenance. The documentation might not have ever been created because the artist was obscure at the time the work was created, or it might have simply gone missing as a result of time or theft. American case law is littered with disputes arising from art purchasers being defrauded and purchasing fake works, as well as disputes over ownership of artwork that was stolen at some point. As society and art moves toward an increasingly digital world, a potential solution to this issue can be found in non-fungible tokens (NFTs). Recently, NFTs have begun to make headlines as the technology rises in popularity, not only in the art market, but also in other areas such as sports trading cards. This recent rise in popularity has seen NFTs sell at exorbitant prices. The latest examples include, the artist Beeple selling his digital artwork at Christie’s for over $69 million dollars and the New York Times selling a digital column for over $700 thousand dollars. NFTs function in a similar manner to cryptocurrency tokens in that they are built on a blockchain, the most popular one being Ethereum. Unlike cryptocurrencies such as Bitcoin, the...

From Third-Party Data to First-Party Data: Is FLoC right for the future?

Third-party cookies are often used by advertisers to track users’ activities across websites to show them relevant ads. While these cookies are beneficial for websites due to the advertising revenue they generate, these cookies are often criticized for the lack of privacy they provide users and the amount of data they collect. The data these cookies provide can be used to build a significant profile of an individual without their consent or knowledge. In addition, this data is often sold without the user’s explicit knowledge and consent to various companies for marketing or other purposes. Issues with third-party cookies afflict even reputable news organizations, who create privacy risks through their advertising on controversial articles while simultaneously reporting on privacy violations by government agencies such as the NSA. Fortunately, the European Union has required since 2019 that users must give their informed consent to non-essential cookies and users are assumed to have opted out unless they opt in. Websites must provide this consent option through banners displayed at the top or the bottom of a page which over time have grown to include additional disclosure information. A European court has determined that an already checked box is insufficient consent and the user must check the box themselves. Privacy laws similar to those passed in the EU have also been passed in Canada and Brazil. Unfortunately, these banner alerts are often not effective because users simply click past the alerts without reading the website’s cookie policy, which can be many pages long. In some cases, users view these alerts more as pop-ups and a nuisance rather than as informative or important,...