Carpenter Might Unite a Divided Court

Ellen Levis, MJLST Staffer


In late 2010, there was a robbery at a Radio Shack in Detroit. A few days later: a stick up at a T-Mobile store. A few more months, a few more robberies – until law enforcement noticed a pattern and eventually, in April 2011, the FBI arrested four men under suspicion of violating the Hobbs Act (that is, committing robberies that affect interstate commerce.)

One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to obtain “transactional records” for each of the phone numbers, which magistrate judges granted under the Stored Communications Act. Based on this “cell-site evidence,” the government charged Timothy Carpenter with a slew of offenses. At trial, Carpenter moved to suppress the government’s cell-site evidence, which included 127 days of GPS tracking and placed his phone at 12,898 locations. The district court denied the motion to suppress; Carpenter was convicted and sentenced to 116 years in prison. The Sixth Circuit affirmed the district court’s decision when Carpenter appealed.

In November 2017, the Supreme Court heard what might be the most important privacy case of this generation. Carpenter v. United States asks the Supreme Court to consider whether the government, without a warrant, can track a person’s movement via geo-locational data beamed out by cell phone.   

Whatever they ultimately decide, the Justices seemed to present a uniquely united front in their questioning at oral arguments, with both Sonia Sotomayor and Neil Gorsuch hinting that warrantless cell-site evidence searches are incompatible with the protections promised by the Fourth Amendment.  

In United States v Jones, 132 S.Ct. 945 (2012), Sotomayor wrote a prescient concurring analysis of the challenge facing the Court as it attempts to translate the Fourth Amendment into the digital age. Sotomayor expressed doubt that “people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.” And further, she “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

In the Carpenter oral argument, Sotomayor elaborated on the claims she made in United States v Jones 132 S.Ct. 945 (2012). Similarly, throughout the Carpenter argument, Sotomayor gave concrete examples of how extensively Americans use their cellphones and how invasive cell phone tracking could become. “I know that most young people have the phones in the bed with them. . . I know people who take phones into public restrooms. They take them with them everywhere. It’s an appendage now for some people . . .Why is it okay to use the signals that phone is using from that person’s bedroom, made accessible to law enforcement without probable cause?”

Gorsuch, on the other hand, drilled down on a property-rights theory of the Fourth Amendment, questioning whether a person had a property interest in the data they created. He stated,  “it seems like [the] whole argument boils down to — if we get it from a third party we’re okay, regardless of property interest, regardless of anything else.” And he continued, “John Adams said one of the reasons for the war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops. Why isn’t this argument exactly what the framers were concerned about?”

Copyright Suit Against Rita Ora and Estate of The Notorious B.I.G. Dismissed

Kaylee Kruschke, MJLST Staffer


A copyright law suit brought by Abiodun Oyewole, a member of The Last Poets, against Notorious B.I.G., born Christopher Wallace (Biggie), alleging that Biggie’s 1993 song “Party and Bullshit” took parts of Oyewole’s song “When The Revolution Comes,” was dismissed March 8 by Judge Alison J. Nathan, according to Billboard.

The suit was originally filed in 2016 and was also filed against Rita Ora for her use of parts of Biggie’s “Party and Bullshit” in her song “How We Do.” The suit also listed 12 other defendants who were songwriters, producers, and music publishing companies involved with the allegedly infringing songs, according to Billboard.

Oyewole claimed that the portion of his song that was taken was the following: “But until then you know and I know n*****s will party and bullshit and party and bullshit and party and bullshit and party and bullshit and party …,” according to Judge Nathan’s opinion. The lyrics to Biggie’s song at issue are the following: “Dumbing out, just me and my crew I Cause all we want to do is … I Party … and bullshit, and …” The chorus repeats the phrase “party … and bullshit, and … ” nine times, according to the opinion. The relevant lyrics in Ora’s song are: “And party and bullshit I And party and bullshit I And party and bullshit I And party, and party.” The opinion states that in addition to Oyewole claiming these lyrics were copied, Oyewole also alleges that the songs copy his sound hook.

Canoe states that Oyewole had originally planned to pursue a claim against Biggie before Biggie was murdered in 1997, and subsequently did not feel comfortable going after Biggie’s wife or mother.  But, according to Canoe, Oyewole decided to take action once Ora’s song came out in 2012.

According to Judge Nathan’s opinion, Oyewole failed to adequately serve a number of the defendants, and the ones he did adequately serve, their use fell under the fair use doctrine of copyright law.

There are four main factors the court considered when determining fair use:


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and ( 4) the effect of the use upon the potential market for or value of the copyrighted work.


As for the first factor, the opinion stated that the use of Oyewole’s song by Biggie and Ora was transformative in that the purpose for the phrase “party and bullshit” in Oyewole’s song was condemnation and the purpose in the allegedly infringing songs was glorification, and this factor weighed in favor of fair use.

With the second factor, the opinion stated that Oyewole’s song was a creative work, which means that this would weigh against fair use, but the song was published, which is a fact that weighs in favor of fair use. This factor ultimately weighed in favor of fair use.

For the third factor, the opinion states that the phrase “Party and bullshit” was not essential to the message Oyewole was conveying in his song, so this favor also weighed in favor of fair use.

With the last factor, the opinion states that the songs by Ora and Biggie are not likely to “usurp” the market for Oyewole’s song because the works are so different in purpose and character and have different audiences. This factor also weighed in favor of fair use, making all four factors favoring Biggie and Ora and leading to Judge Nathan dismissing the case.

According to Billboard, the attorneys for the Estate of The Notorious B.I.G. released the following statements the day after the opinion was filed, also the 21st anniversary of Biggie’s death: “This is a well-earned victory for the Estate, and it seems like a message from Christopher to receive it on the anniversary of his passing,” said Nixon Peabody attorney Julian Petty, who represented the B.I.G. estate. “We’re honored to represent a client who is willing to fight and defend such an important legacy.”

New Data Protection Regulation in European Union Could have Global Ramifications

Kevin Cunningham, MJLST Staffer


For as long as the commercial web has existed, companies have monetized personal information by mining data. On May 25, however, individuals in the 28 member countries of the European Union will have the ability to opt into the data collection used by so many data companies. The General Data Protection Regulation (GDPR), agreed upon by the European Parliament and Council in April 2016, will replace Data Protection Directive 95/46/ec as the primary law regulating how companies protect personal data of individuals in the European Union. The requirements of the new GDPR aim to create more consistent protection of consumer and personal data across the European Union.


Publishers, banks, universities, data and technology companies, ad-tech companies, devices, and applications operating in the European Union will have to comply with the privacy and data protection requirements of the GDPR or be subject to heavy fines (up to four (4) percent of annual global revenue) and penalties. Some of the requirements include: requiring consent of subjects for data processing; anonymizing collected data to protect privacy; providing data breach notifications within 72 hours of the occurrence; safely handling the transfer of data across borders; requiring certain companies to appoint a data protection officer to oversee compliance of the Regulation. Likewise, the European Commission posted on its website that a social network platform will have to adhere to user requests to delete photos and inform search engines and other websites that used the photos that the images should be removed. This baseline set of standards for companies handling data in the EU will better protect the processing and movement of personal data.


Companies will have to be clear and concise about the collection and use of personally identifiable information such as name, home address, data location, or IP address. Consumers will have the right to access data that companies store about the individuals, as well as the right to correct false or inaccurate information. Moreover, the GDPR imposes stricter conditions applying to the collection of ‘sensitive data’ such as race, political affiliation, sexual orientation, and religion. The GDPR will still allow businesses to process personally identifiable information without consumer consent for legitimate business interests which include direct marketing through mail, email, or online ads. Still, companies will have to account


The change to European law could have global ramifications. Any company that markets goods or service to EU residents will be subject to the GDPR. Many of the giant tech companies that collect data, such as Google and Facebook, look to keep uniform systems and have either revamped or announced a change to privacy settings to be more user-friendly.

Say it to My Face: Why You Don’t Get to Use My Old LinkedIn Headshot to Promote Your Business, Even If You Took My New One

Tim Joyce, Former MJLST Editor-in-Chief


[This article unintentionally picks back up on a more theoretical LawSci Forum post from spring 2017 by Travis Waller.]


The Situation

A few weeks ago I got all “fired up” about copyright. [To figure out why that’s a terrible #dadjoke, you’ll have to read that post here.] I honestly thought I’d have time to cool down again (fire pun #2!), and let the smoke clear (TRIFECTA?!!) before getting so incensed again (ok, I’ll stop now).

Then, I opened my LinkedIn feed early last week.

Staring back was a side by side comparison of my current profile pic–a quirky, raised-eyebrow homage to the Uncle-Sam-finger-pointing “I Want You” posters of yesteryear–and the new website head-shot we had just chosen for my law firm’s website refresh–a still-relaxed but decidedly more traditional affair. [Click my name above to see my current LinkedIn pic.]

In and of itself, the juxtaposition was not terribly unpleasant. After all, these were both pictures that I had personally selected from dozens in each photo-shoot, and I was the one who chose to make the older photo my profile pic. It was the text accompanying the pictures that really got me lit up. Taking the high road here, I won’t identify the author (the photographer) or reprint the text verbatim. But the went something like,

“This* guy [*me, here] made a terrible mistake ever using the older pic. It might be appropriate for actors and comedians, but not serious lawyers. If you need help figuring out how to look like a competent professional on LinkedIn call me [the photographer] for an appointment.”

Needless to say, insulting. After all, I did enjoy a career as a professional actor pre-law school, and the picture was entirely appropriate for my purposes there.

But even more than insulting, the photographer’s LinkedIn post almost certainly illegal, for 2 reasons.


#1 – Copyright law says you don’t get to use other people’s pictures without their permission.

Copyright scholars of any sophistication know that the law gives the creator of an original work of authorship, among others, the right to, well, make copies. Simple, but powerful nonetheless.

An author like, say, a budding amateur photographer capturing a snarky Uncle Sam poster-inspired head-shot has as much right to control the duplication of his own images as an arguably-overpriced full time corporate head-shot “artist.” Without the original author’s permission, a copy like the one in the side-by-side comparison post violates the exclusive right to “reproduce” the work.

Now, because apparently it’s Fair Use week this week, I’ll address that elephant in the room. Our friends at the US Copyright Office note that the analysis of whether a use counts as “fair” is not generally a straightforward process. Whether a secondary user of copyrighted content falls into the fair use exception turns on a combination of four factors. But, they did describe a case where “the use of [copyrighted] celebrity images by a gossip website was not fair.”

While I’m not a celebrity by many definitions, the reasoning should hold even more for less-famous folks. You need permission to use an image that you don’t own, especially for business purposes. Which brings me to my next legal gripe…


#2 – Misappropriation is Not a Joke, Jim!

(Admittedly, that header link is mainly to sneak in a YouTube clip from one of my favorite shows. But still relevant!)

The second reason why this corporate photographer’s post is almost certainly illegal is that she was using my likeness for her financial gain, again without my permission.

Here in Minnesota, our common law recognizes a right to publicity. Way back in ‘95, shortly before we called him Governor The Body, pro-wrestler Jesse Ventura went to federal court because, he alleged, WWF president Vince McMahon owed him money. Turns out Ventura was giving color commentary on some wrestling matches that McMahon then sold on videotape (remember those?); Ventura argued that hadn’t been part of the negotiated arrangement, so he wanted backpay of a sort. [This is all super true, and a super surreal case to read. Ventura v. Titan Sports, Inc., 65 F.3d 725, 730 (8th Cir. 1995).]

The estate representative for another Minnesota celebrity, the late Purple One themself (i.e., Prince), played a role in getting this “right to publicity” extended posthumously. So, now you can’t misappropriate someone’s likeness for financial gain after their death, either. [This is really fun research tonight. Paisley Park Enterprises, Inc. v. Boxill, No. 17-CV-1212 (WMW/TNL), 2017 WL 4857945, at *6 (D. Minn. Oct. 26, 2017).]

The upshot is that I have a common law right to tell the new headshot photographer to knock it off, right away. And that’s just what we did, in a strongly-worded email. Not quite as imaginative as some recent cease & desist messages we’ve heard about, but it did the trick.



Pro-tip #1: If you’re going to defame a new lawyer by stealing his old headshot and misappropriating his identity to promote your photography business, probably best not to have connected with him recently so he sees the post in his LinkedIn feed.

Pro-tip #2: SO many potential copyright and individual rights issues can be cleared up with a simple phone call or email asking permission. I would gladly have discussed ahead of time the use of the old picture. I would even have suggested appropriate wording for the post that didn’t disparage my previous photographer or conspicuously omit that the old photo was for a different career. Now, though, I’m not inclined to help out at all, and will be diligently checking back to police her use of my new photos.

Pro-tip #3: If you encounter a situation like this, and can’t make lemons out of lemonade by blogging, call a knowledgeable attorney (like me!) to draft a killer C&D.



I got really heated when some lady violated copyright and right to publicity laws by taking my picture and writing less-than-flattering things about it on LinkedIn. You can’t reproduce other people’s copyrighted works without permission or fair use exception. And you can’t use other people’s likeness for your own financial gain without permission. Don’t defame a lawyer with lots of time on his hands – it’ll end badly for you.


Contact Me

I wrote this to blow off steam and make some terrible puns along the way, but I also really enjoy talking copyright with people. Do you have a question or comment? Contact me here.

Judicial Interpretation of Emojis and Emoticons

Kirk Johnson, MJLST Staffer


In 2016, the original 176 emojis created by Shigetaka Kurita were enshrined in New York’s Museum of Modern Art as just that: art. Today, a smartphone contains approximately 2,000 icons that many use as a communication tool. New communicative tools present new problems for users and the courts alike; when the recipient of a message including an icon interprets the icon differently than the sender, how should a court view that icon? How does it affect the actus reus or mens rea of a crime? While a court has a myriad of tools that they use to decipher the meaning of new communicative tools, the lack of a universal understanding of these icons has created interesting social and legal consequences.

The first of many problems with the use of an emoji is that there is general disagreement on what the actual icon means. Take this emoji for example: 🙏. In a recent interview by the Wall Street Journal, people aged 10-87 were asked what this symbol meant. Responses varied from hands clapping to praying. The actual title of the emoji is “Person with Folded Hands.”

Secondly, the icons can change over time. Consider the update of the Apple iOS from 9 to 10; many complained that this emoji, 💁, lost its “sass.” It is unclear whether the emoji was intended to have “sass” to begin with, especially since the title of the icon is “Information Desk Person.”

Finally, actual icons vary from device to device. In some instances, when an Apple iPhone user sends a message to an Android phone user, the icon that appears on the recipient’s screen is completely different than what the sender intended. When Apple moved from iOS 9 to iOS 10, they significantly altered their pistol emoji. While an Android user would see something akin to this 🔫, an iPhone user sees a water pistol. Sometimes, an equivalent icon is not present on the recipient’s device and the only thing that appears on their screen is a black box.

Text messages and emails are extremely common pieces of evidence in a wide variety of cases, from sexual harassment litigation to contract disputes. Recently, the Ohio Court of Appeals was called upon to determine whether the text message “come over” with a “winky-face emoji” was adequate evidence to prove infidelity. State v. Shepherd, 81 N.E.3d 1011, 1020 (Ohio Ct. App. 2017). A Michigan sexual harassment attorney’s client was convinced that an emoji that looked like a horse followed by an icon resembling a muffin meant “stud muffin,” which the client interpreted as an unwelcome advance from a coworker. Luckily, messages consisting entirely of icons rarely determine the outcome of a case on their own; in the sexual harassment arena, a single advance from an emoji message would not be sufficient to make a case.

However, the implications are much more dangerous in the world of contracts. According to the Restatement (Second) of Contracts § 20 (1981),

(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and

(a) neither party knows or has reason to know the meaning attached by the other; or

(b) each party knows or each party has reason to know the meaning attached by the other.

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or

(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.


Adhering to this standard with emojis would produce varied and unexpected results. For example, if Adam sent Bob a message “I’ll give you $5 to mow my lawn 😉,” would Bob be free to accept the offer? Would the answer be different if Adam used the 😘 emoji instead of the 😉 emoji? What if Bob received a black box instead of any emoji at all? Conversely, if Adam sent Bob the message without an emoji and Bob replied to Adam “Sure 😉,” should Adam be able to rely upon Bob’s message as acceptance? In 2014, the Michigan Court of Appeals ruled that the emoticon “:P” denoted sarcasm and that the text prior to the message should be interpreted with sarcasm. Does this extend to the emoji 😜😝, and 😛, titled “Face with Stuck-Out Tongue And Winking Eye,” “Face With Stuck-Out Tongue And Tightly-Closed Eyes,” and “Face With Stuck-Out Tongue” respectively?

In a recent case in Israel, a judge ruled that the message “✌👯💃🍾🐿☄constituted acceptance of a rental contract. While the United States does have differing standards for the laws of contracts, it seems that a judge could find that to be acceptance under the Restatement of Contracts (Second) § 20(2). Eric Goldman at the Santa Clara University School of Law hypothesizes that an emoji dictionary might help alleviate this issue. While a new Black’s Emoji Law Dictionary may seem unnecessary to many, without some sort of action it will be the courts deciding what the meaning of an emoji truly is. In a day where courts rule that a jury is entitled to actually see the emoji rather than have a description read to them, we can’t ignore the reality that action is necessary.

An Automated Armageddon

Jacob Barnard, MJLST Staffer


In the 1970’s, hundreds of millions of people starved to death – 65 million of them Americans. In the 1980’s, world oil production peaked and it was soon followed by the depletion of all available sources of lead, zinc, tin gold, and silver in 1990. To make matters worse, all computers stopped working on January 1, 2000. Fortunately, we were all put out of our misery when the world ended on December 21, 2012.

But now, after all of that, we must face a new threat. This one comes in the form of (killer)robots. That is correct; now, in addition to immigrants and other countries, robots are stealing our jobs.

Of course, this is not an entirely new threat. The industrial revolution threatened farmers through advancements in agricultural productivity, as well as increasing worker productivity in general. Yet, as economist Walter Williams explains, this was never actually a problem. In the United States, farmers were 90% of the labor force in 1790, but this decreased to 41% in 1900 (and is down to under 3% currently). All this means, however, is that increases in productivity allowed individuals who would have otherwise been farmers to seek employment in other fields (no pun intended).

Say’s law, commonly misunderstood as “supply creates its own demand,” can be more correctly understood through the insight of W.H. Hutt: “All power to demand is derived from production and supply. . . . The process of supplying—i.e., the production and appropriate pricing of services or assets for replacement or growth—keeps the flow of demands flowing steadily or expanding.” As each person becomes more productive, therefore, they are able to demand more in return for their increased production, which allows others to maintain their employment as well.

Empirical studies on the current effects of automation support this view of the situation as well. A 2017 study by Greggory, Salomons, and Zierahn with the Mannheim Centre for European Economic Research found that routine-replacing technological change accounted for a net increase in labor demand of about 11.6 million jobs across 27 EU countries from 1999-2010 (in comparison to a total growth of 23 million jobs over the same period). In 2015, Graetz and Michaels, working with the Centre for Economic Performance, found “the increased use of robots raised countries’ average growth rates by about 0.37 percentage points. We also find that robots increased both wages and total factor productivity. While robots had no significant effect on total hours worked, there is some evidence that they reduced the hours of both low-skilled and middle-skilled workers.”

This last point is what may create an actual problem. Automation is unlikely to eliminate employment as we know it, but it will likely require a shift away from low-skilled labor. Like the farmers of the 18th and 19th centuries, many low-skilled workers may find their specific jobs being eliminated in favor of more technical employment. If people are given incentive to avoid this shift, it may result in unnecessary hardship for low-skilled workers.

Predictably, this has led some to advocate exactly that. A universal basic income, as suggested by Elon Musk and others fearing a robot takeover, would only give low-skilled workers greater incentive to avoid investing in their educations, slowing the increase in human capital that would maintain high levels of employment as automation becomes more prevalent.

A more reasonable policy recommendation would be to amend the tax code to reduce the disincentive to enter new fields of employment. Currently, education expenses for entering a new trade or business are not deductible. In addition, expenses incurred seeking employment in fields other than an employee’s current trade or business are not deductible because they are not “carrying on” the trade or business when they incur the expense. Simply allowing these two deductions would make it easier for workers to adapt to the changing demands of an evolving economy.

Even if these changes are not enough and the Luddites are correct about robots stealing all of our jobs, there still would not be a problem because there will be plenty of lucrative work available as robot-smashers.

Privatizing the ISS, Deregulating Space Travel, and Making Money

Jon Watkins, MJLST Staffer


To many, space feels more exciting than it has been in years. SpaceX launched the Falcon Heavy recently to great fanfare and YouTube’s second-biggest live stream ever; the stream peaked at over 2.3 million concurrent viewers. In a move which is perhaps intended to ride the coattails of this popularity, the Trump administration recently announced a new policy intended to bolster the domestic space industry through deregulation and commercialization. While information discussing what the administration specifically wants to do is somewhat limited, some clues do exist. One of these clues is a NASA internal document which allegedly contains a proposal to turn the International Space Station over to private ownership by 2024.

Coverage of the ISS proposal tends to fall along predictably partisan lines- National Review is head-over-heels for the proposal, while Vox is strongly against it. However, both accounts fail to discuss whether the proposal would actually be legal. National Review suggests that private companies that pay the U.S.’s share of operations on the space station would automatically be permitted to conduct research on board. However, this is anything but clear. The ISS is governed by an inter-governmental agreement (IGA) that each of the fifteen governments involved in the ISS are signatories; Memoranda of Understanding (MOUs) between NASA and each other Space Agency in addition to several contractual and non-contractual agreements between space agencies. The UN Outer Space Treaty and other documents are incorporated into the IGA.

Articles 5 and 9 of the IGA vindicate National Review to some extent- utilization rights and jurisdiction are indeed derived from the provision of goods to the ISS. Article 9(3)(a) of the IGA in particular also seems to imply that private entities selected by partners (like NASA) may use “user elements” of the ISS, even though other private entities would not be able to do so. This probably makes it possible for NASA to transfer their use rights to a private entity, at least insofar as NASA has use rights over a portion of the ISS. However, NASA hasn’t actually provided that much of the ISS– while Russia owns the Zvezda, Pirs, Polsk, and Rassvet modules, NASA only owns the Zarya module outright, and shares ownership of the Destiny, Kibo, and Columbus modules with other agencies. This means that NASA has exclusive rights over a tiny portion of the ISS, and any private entity which purchased NASA’s rights would be forced to share all systems on the station in the same way NASA does currently.

Limiting the user rights to the portions owned by NASA isn’t the only limitation which would be faced by a private entity which were to purchase NASA’s rights in the ISS- the IGA and MOUs are filled with fairly detailed restrictions on behavior and research on the ISS, of which one of the most important is Article 9(5): “Each Partner shall assure access to and use of its Space Station elements to the other Partners in accordance with their respective allocations.” This is essentially an anti-monopolization provision, which is reasonable in the context of an international cooperative project, but may be a highly unappealing provision for a private entity. As another example, Article 11.6 of the MOU between NASA and the Russian Space Agency states that “the entire crew will operate under a single timeline for performance of all operations and utilization activities.” This is a similarly unappealing provision for a private entity which is interested in operating on its own schedule and performing its own research. It is unclear what private entity would want to operate under these restrictions, and no private entity has yet stated that they intend to do so.

Additionally, in what is likely a minor technicality, Article 16.3 of the MOU between NASA and the Russian Space Agency states that “the Parties undertake to grant high priority to their Space Station programs in developing their budgetary plans.” The Trump Administration’s allegedly expressed intent to eliminate government funding for the ISS may violate this provision of the MOU, since it means ISS funding is clearly not a “high priority.”

To be completely fair to the Trump Administration, the path they’ve chosen here is at least predictable. Much of the discussion of permits for switching launchpads in the announcement was referenced earlier in Gwynne Shotwell’s speech in October at the National Space Council, and the general trajectory of the space industry since the second Bush administration has been towards deregulation and commercialization. The Bush administration stated in the NASA Authorization Act of 2005 that NASA should “develop a sustained human presence on the Moon . . . as a stepping stone,” which has more than a facial similarity to the Trump administration’s refocus on developing a lunar base. The Obama administration was likely forced to defund some of these more expensive projects with the NASA Authorization Act of 2010 right after a major recession, but the Obama administration’s 2010 space policy purported to “[lean] farther forward in support of U.S. business interests than any previous space policy,” and recommended that the Federal Government “Minimize, as much as possible, the regulatory burden for commercial space activities.”

Deregulation and commercialization of the American space industry are therefore clearly nothing new. However, what is new are fairly aggressive proposals to use private rockets to get human payloads into space. Private rockets, an external safety report states, are insufficiently safe and an optimistic proposal to privatize NASA’s share of the ISS, a proposal which is likely legal under the international agreements governing the ISS.

University of Minnesota Partners with Michigan State University to Launch SCOTUS Notes

Brandy Hough, MJLST Staffer


If you thought your elementary school’s grueling cursive curriculum was all for naught, you’re sadly mistaken. The University of Minnesota, in partnership with Michigan State University, launched a crowdsourcing project this month to transcribe Supreme Court justices’ handwritten conference notes. The project, dubbed SCOTUS Notes, engages “citizen archivists” to decipher and transcribe the justices’ notes, with the goal of making them broadly accessible in an electronic and legible format. If you can spot a cursive Z from a mile away, you might just help transcribe history.


Researchers at the two universities received a three-year federal grant from the National Science Foundation to fund the project, which is hosted on Zooniverse, a large-scale platform for “people-powered research.” The researchers hope that crowdsourcing the work will lead to more efficient and accurate results than could be achieved by staff researchers alone. Project co-director Tim Johnson explains that ten people independently transcribe each page, which allows researchers “to obtain high level agreement scores for every word transcribed—even when the words are really difficult to determine.” At the time of writing, 876 volunteers have registered since the project’s February 13 launch date. You can monitor the project’s progress in real time on the SCOTUS Notes Zooniverse page.


In its current phase, SCOTUS Notes aims to harness its volunteer power to transcribe 12,600 pages of conference notes taken by Justices Harry A. Blackmun and William J. Brennan related to cases decided between 1959 and 1994. These notes provide valuable insights into judicial decision-making at our nation’s highest level. As explained on the SCOTUS Notes blog:


“U.S. Supreme Court justices cast votes in complete secrecy during weekly meetings, which only justices are allowed to attend. During these meetings, the justices discuss, deliberate, and make initial decisions on cases they have heard–many of which address the most important legal and policy issues in the U.S.. The written notes the justices themselves take during these meetings provide the only record of what was said and by whom.”


Project co-director Tim Johnson adds “I think law students will find that ‘understanding how the sausage is made’ is integral to understanding how and why SCOTUS makes the decisions it does. Without knowing what happens behind the scenes it is hard to really hard to have a fully accurate picture.”


In the future, the researchers plan to engage volunteers to transcribe notes of Justices Powell, Douglas, Marshall, Rehnquist and Warren. Upon completion of the project, will provide public access to images of the original pages as well as the transcriptions. 


For more information or to get involved with the project, visit the SCOTUS Notes page at

PyeongChang: The Opening Ceremony

MJLST Staffer, Amber Peterson


The opening ceremony of the Olympics is always a big show and the 2018 Winter Olympics’ opening ceremony in PyeongChang, South Korea was no exception. Intel created a display that featured a world-record setting 1,218 drones. The display featured drone murmurations that depicted images of a snowboarder that morphed into the Olympic rings using four billion color combinations enabled by onboard LEDs. This display surpassed Intel’s previous Shooting Star drone world record which flew 500 drones simultaneously in Germany in 2016.

Intel’s Shooting Star drones are each about a foot-long, weigh eight ounces, and can fly in formation for up to 20 minutes given the limitations of current lithium-ion battery technology.

While the show is certainly impressive, from a software perspective, it is very much similar to flying a smaller, 300-drone show. The additional drones simply increase the resolution and quality of the images to create more depth. Every drone is operated from a central computer system, which tweaks things such as individual battery life and GPS signal. The drones communicate with this central computer instead of with each other. After animators draw up the show using 3D design software, each individual drone acts as an aerial pixel to fill the night sky.

The only minor tweak that Intel had to make to the design of the drone was to the rotor cages to account for the cold and windy conditions in Pyeongchang. Intel ran test flights in Finland, which has a similar climate to Pyeongchang, to make sure the drones could handle the climate.

This record for the “most unmanned aerial vehicles airborne simultaneously” may have an asterisk however, since the display was pre-recorded after a last minute logistical issue which prevented the record setting drones from flying live at the ceremony. The show that was pre-recorded last December was instead broadcast during the event.

The South Korean laws and regulations that Intel had to comply with are as follows: 1) the maximum height that a drone can fly is 492 feet and if the flights are higher than this distance, government approval is required; 2) drones can only be flown during the day unless government approval has been given; 3) drones must be operated in a range that is viewable from the naked eye; 4) certain zones are banned for drone flights; and 5) drones must always yield to manned aircraft.

Drone law has developed from the explosion of online shopping in Korea. Korean privacy laws however, are some of the strictest in the world so a vexing issue remains as to how to deal with the invasion of privacy from drones. Maintaining a balance between supporting technological advances and being cognizant of protecting safety and individual rights remains an issue that requires further debate.

Changing Families: Time for a Change in Family Law?

MJLST Staffer, Hannah Mosby


Reproductive technology allows individuals to start families where it may not otherwise have been possible. These technologies range from relatively advanced procedures—those using assisted reproductive technology (or “ART,” for short)—to less invasive fertility treatments. ART encompasses procedures like in vitro fertilization—in fact, the CDC defines ART as including “all fertility treatments in which both eggs and embryos are handled” (Link to:—while other kinds of reproductive assistance range from artificial insemination to self-administered fertility drugs. In a study published by the CDC, the number of ART procedures completed in 2014 in the U.S. alone was almost 170,000. As scientific knowledge grows and new procedures develop, that number will undoubtedly increase.

Individuals choosing to utilize these reproductive technologies, however, can find themselves in legal limbo when it comes to determining parentage. In instances where an individual uses a donor gamete (a sperm or an egg) to conceive, that donor could be a legal parent of the offspring produced—even if that result wasn’t intended by the any of the parties involved. For example, the 2002 version of the Uniform Parentage Act—variations of which have been adopted by many states—provides for the severance of the parental rights of a sperm donor in the event of consent by the “woman,” as well as consent or post-birth action by the “man” assuming paternal rights. If statutory conditions aren’t met, the donor could retain his parental rights over any offspring produced by the procedure. To further complicate things, the use of gendered terms makes it unclear how these statutes apply to same-sex couples. A new version of the Act was proposed in 2017 to comply with the Supreme Court’s recognition of marriage equality in Obergefell v. Hodges, but it has yet to be adopted by any state . Even murkier than the laws governing donor gametes are those governing surrogacy contracts, which some states still refuse to legally recognize. Overall, these laws create an environment where even the most intentional pregnancies can have unintended consequences when it comes to establishing legal parentage.

For further illustration, let’s revisit artificial insemination. Jane and John, a Minnesotan couple, decide to undergo an artificial insemination procedure so that Jane can become pregnant. However, they aren’t married. Pursuant to Minn. Stat. 257.56, the couple’s marriage is a necessary condition for the automatic severance of the sperm donor’s parental status—therefore, since Jane and John aren’t married, the sperm donor retains his parental rights. The statute also requires that the procedure be performed “under the supervision of a licensed physician” in order for severance to occur. If there was no doctor present, then the sperm donor—and not John—would have legal parental status over the offspring produced. The example becomes more complicated if the couple is same-sex rather than heterosexual, because the statute requires the consent of the “husband” to the procedure. Further still, if Jane lived in a different state, the sperm donor might be able to establish parental rights after the fact—even if they were initially severed—by maintaining a relationship with the child. As one can imagine, this makes the use of known donors (rather than anonymous donors) particularly complicated.

Ultimately, ART and related procedures provide opportunities for individuals to create the families they want, but could not otherwise have—an enormously impactful medical development. However, utilization of these procedures can produce legal consequences that are unforeseen—and, often, unwanted—by the parents of children born using these procedures. The state law that exists to govern these procedures is varied and lagging. In the age of marriage equality and donor gametes, such laws are highly inadequate. . . In order for society to reap the biggest benefit from these life-creating technologies, the legal world will have to play a serious game of catch-up.