2012

While 86% of Americans Oppose Behavioral Targeting of Voters, Campaigns Embrace it

by Bobbi Leal, UMN Law Student, MJLST Articles Editor

Thumbnail-Bobbi-Leal-ii.jpgWith the dramatic 2012 Presidential election behind us, new information about the campaign funds are being released. A recent Huffington Post article outlining the campaign funds allotted toward the mining and analysis of internet data about potential voters. President Obama and Mitt Romney’s campaigns spent a combined total of $13 million dollars on this controversial practice.

The Minnesota Journal of Law Science and Technology’s recent publication, “It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age,” points out that campaigns utilize data mining as a way to more effectively target voters. The mined data includes information gleaned or purchased from both public and private sources. To make use of the internet’s information on the individual, the campaigns use algorithms that match the attitudes of voters on specific issues with individual behaviors and tendencies. The individual behaviors they might look at include where you shop, which team you root for, which petitions you sign, who your friends are, and even what mobile device you use.

With a continued decrease in the number of undecided voters, the practice of using digital data to target particular individuals is an effective one. Further, online targeting can reach voters who would normally have no access to traditional campaigning, such as those in remote counties.

A study by the University of Pennsylvania Annenberg School of Communications revealed that a large majority of Americans (86%) are against behavioral targeting and tailored advertising for political or other purposes. However, privacy practices in the political context are not regulated like in the commercial sector due to protections afforded by political speech.


Six Strikes and You’re Out: Can a New RIAA Policy Solve Old Online File Sharing Problems?

by Ian Birrell

Thumbnail-Ian-Birrell.jpgSince at least 1999 when Napster was originally launched, internet piracy, or downloading copyrighted materials (especially songs, videos, and games,) has been a contentious activity. The Recording Industry Association of America (RIAA) has historically taken a very public and aggressive stance by finding individuals associated with IP addresses matching those where this “file sharing” is coming from. After finding such a target, the RIAA would send a letter demanding a settlement for thousands of dollars or threatening litigation, risky and expensive to the target, despite a potentially very small monetary value of downloaded material. The RIAA suits, which have continued for a number of years, include a number of well publicized absurd claims.

This journal has written on the RIAA policies before. In 2008, we published a student note by Daniel Reynolds named The RIAA Litigation War on File Sharing and Alternatives more Compatible with Public Morality. Reynolds argued then that the policies were ineffective and unconscionable and urged change.

Change is coming. Later this year, after a number of years in development, a number of major carriers are planning to institute a “six-strikes” plan. This is a voluntary agreement between ISPs and certain content providers (the government is not involved,) and is made to target peer-to-peer downloading. The plan has a notice phase, an acknowledgement phase, and a mitigation phase. Under the plan, a private carrier – say, Time Warner – will first notify a user that there has been an allegation of illegal copyright activity, then force a user who may be infringing (and who may or may not own the account) to acknowledge having received such notices, before the user finally suffers consequences. These consequences can include throttling of internet speed or having popular websites blocked.

Proponents point to a few positives under this proposal, including the user’s right to appeal to an independent arbitrator (for a $35 fee.) Additionally, though lawsuits are still permitted by copyright holders, the hope is that the system will educate the public about copyright infringement and that, on notice that their behavior is illegal, infringement will at least slow down. Ron Wheeler, a Senior VP at Fox, said that, “This system is not designed to produce lawsuits–it’s designed to produce education.

Unfortunately, a lack of education may not be the underlying problem. Reynolds noted that, even in 2004, awareness of the (il)legality of file sharing was widespread. And increasing awareness may not sharply decrease infringement. Critics further note that, despite the safeguards, penalties are ultimately based on accusations rather than definite findings of infringement. If the system ultimately works, though, it may be worth the headaches for both sides. Consumers will not be able to infringe (as much) but the public will also not suffer suits against twelve-year-olds for sharing music.


Apple & Samsung Litigation Shows Need for Patent Reform

by Thomas Manewitz, UMN Law Student, MJLST Managing Editor

Thumbnail-Thomas-Manewitz.jpgIn the past two years, two of the world’s mobile technology leviathans, Apple and Samsung, have engaged in multibillion dollar patent infringement litigation. Specifically, Apple has been seeking damages and fighting for injunctions on several of Samsung’s mobile products in markets across the globe. On August 24, 2012 in the United States, Apple won a 1.049 billion dollar damages award for Samsung’s “willful patent infringement.” In the same lawsuit, Samsung counter sued and won zero damages. In the wake of this trial, Apple is seeking an injunction for 20 Samsung products.

Samsung provides the market with a popular Apple alternative that does not come close to dominating the market share. In the context of the litigation, both Samsung and Apple were forced to release their U.S. sales numbers. Samsung, who is at risk of having its products blocked from the U.S. markets, sold 21 million smart phones and 1.4 million tablets, while Apple sold 86 million smart phones and 34 million tablets. New and different products are now at risk from being removed from consumer markets because of our patent litigation structure. I will not argue that this case alone will temper innovation; however, it does beg the question as to whether or not high profile patent litigation, and the patent system as it currently stands, optimizes the production societal good and innovation. Perhaps the United States patent system should be reorganized based on different principle. For a discussion of the reorganization of the patent system see the United States patent system see Liza Vertinsky’s article in the Minnesota Journal of Law, Science & Tehcnology, “An Organizational Approach to the Design of Patent Law.”


Pharmacists Refusing to Dispense OTC Birth Control

by Katelyn DeRuyter, UMN Law Student, MJLST Staff

Thumbnail-Katelyn-DeRuyter.jpgCan your access to a legal method of birth control be blocked by your pharmacist? It seems likely. Although emergency contraception (EC) is legal in America and a recent poll found that 77% of Americans object to pharmacies refusing to fill birth control prescriptions, a woman that goes to pick up EC may face a denial of the drug by her pharmacist. According to the Appellate Court of Illinois Fourth District, in recent case Morr-Fitz, Inc. v. Quinn, the state’s “Conscience Act” (protecting health care personnel from liability when they refuse to act due to their conscience) protects pharmacists who refuse to dispense EC. Illinois is not alone in providing pharmacists the ability to deny EC. Six states have laws that explicitly permit pharmacists to refuse to administer EC. Five more states (including IL) have “conscience clause” laws that are worded broadly enough that pharmacists may be included.

Under the Patient Protection and Affordable Care Act, as of August 1, 2012 medical insurance plans must completely cover the costs for birth control–including emergency contraception–STD screenings and many other preventive health measures for women. Depending on which articles you read, this expansion in required insurance coverage either marks a hallmark step in women’s rights or an egregious affront to one of this country’s ideological pillars–the freedom of religion. Regardless of your stance on the new legislation, the fact remains that increased financial access to such services is meaningless if physical access is blocked. This is especially true in regard to emergency contraception which must be taken as soon as possible after intercourse in order to be effective. Thus when a pharmacist refuses to provide access to EC, they are putting their objections to EC above a woman’s right to exercise control over her body.

In Pharmacists and the “Morning-After Pill”: Creating Room for Conscience Behind the Counter, published in Volume 7 issue 1 of the Minnesota Journal of Law, Science & Technology, Tony J. Kriesel faces this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer EC. Kriesel starts with the proposition that EC can be viewed as an abortive drug. It is this possibility of EC acting as an abortive that motivates pharmacists’ denials. Whether or not EC is considered an abortive drug depends on at what point in reproduction one considers pregnancy to have begun. If pregnancy begins when the egg is fertilized, then EC can act as an abortive if taken during ovulation. If taken during ovulation, EC prevents the egg from implanting in the lining of the uterus, thus causing the fertilized egg to be aborted. However if pregnancy begins when a fertilized egg successfully implants in the lining of the uterus, then EC is not abortive but acts like all other forms of birth control and simply keeps a potentially viable pregnancy from beginning.

After acknowledging there is controversy in the medical community over whether fertilization or implantation begins pregnancy, Kriesel asserts that EC is in fact an abortive and that pharmacists can constitutionally refuse to administer the drug. Kriesel’s legal analysis of this issue focuses on the protections provided to the pharmacist by the free exercise clause of the First Amendment and the fact that a woman’s right to EC (regardless of its classification as an abortive) does not entail a right to have access to EC wherever is most convenient.

The U.S. Supreme Court has not addressed this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer emergency contraception (EC). What are your thoughts on the issue? Can (and should) states pass laws that allow pharmacists to deny access to a legal form of birth control? Does the right to freedom of religious expression trump a woman’s right to exercise control over her body?


Free Consortium Event, Nov. 15: Should the Science of Adolescent Brain Development Inform Legal Policy?

by MJLST

mjlst-logo-button.pngStudies of adolescent brain development have influenced debates on issues such as the constitutionality of the juvenile death penalty, if sentencing juveniles to life without the possibility of parole is moral, to whether states should raise the legal driving age, to permitting minors to obtain an abortion without parental consent. In this lecture, Prof. Steinberg will examine whether burgeoning research on adolescent brain development should influence legal policy.

Prof. Laurence Steinberg, PhD, Distinguished University Professor and Laura H. Carnell Professor of Psychology at Temple University will offer an overview of the major changes in brain structure and function that take place during adolescence, and discuss what we do, and do not, gain with respect to our understanding of adolescence from neuroscience beyond what we already know from behavioral science. After applying this analysis to the specific case of adolescent criminal culpability, he will consider how developmental neuroscience might influence questions concerning the drawing of legal age boundaries more generally.

Commentators include Susanna Blumenthal, JD, Ph.D., Associate Professor of Law and History University of Minnesota and A. David Redish, PhD, Professor, Department of Neuroscience University of Minnesota. Moderators include Michael Georgieff, MD, Professor of Pediatrics and Child Psychology; Steve Kelley, JD, Senior Fellow, Humphrey School of Public Affairs; and Akshay Rao, PhD, Professor, Carlson School of Management

Thursday, November 15, 2012
11:30am-1pm
Coffman Memorial Union Theater


Are DNA databases the future of our criminal justice system?

by Jennifer Nomura, UMN Law Student, MJLST Staff

Thumbnail-Jennifer-Nomura.jpgDNA is a key piece of evidence in criminal trials. But despite what we see on Law and Order and CSI, obtaining a DNA sample from potential suspects isn’t always easy. In an episode of a popular crime-solving TV show, detectives are shown following a number of potential suspects. The detectives pick up used tissues and discarded cigarettes from a long list of suspects in order to obtain DNA samples from each of them. Is that the criminal justice system of the future? A system where a thrown away coffee cup could be used to obtain a DNA sample from an individual, without them even knowing?

In the murder investigation of 10-year-old Jessica Ridgeway, DNA evidence is expected to play a key role in the trial. DNA of the suspect, 17-year-old Austin Sigg, was found on Ridgeway’s backpack, and Ridgeway’s DNA was found in Sigg’s home.

The prosecution in the Ridgeway case is expected to use the DNA recovered from the backpack and Sigg’s home to link him to the murder. The defense is expected to argue that the evidence recovered is unreliable. A mainstream news story, “DNA Will Play Pivotal Role in Ridgeway Case” discusses how DNA evidence can be unreliable by using the example that an innocent sneeze on the backpack could lead someone to be a murder suspect. That is an extreme example, but maybe it raises a valid point.

David H. Kaye, in The Science of DNA Identification: From the Laboratory to the Courtroom (and Beyond), raised concern over the obtainment and future use of DNA in the criminal justice system. Kaye discussed that while DNA can lead to a guilty suspect being put in jail, we should be cautious about how detectives obtain DNA from suspects and what they do with the DNA afterwards. Kaye raises questions such as: how did the police obtain a DNA sample from the suspect, was DNA obtained from other suspects during the investigation (ones who were ultimately decided to be innocent), and will the DNA sample from those other suspects be put into a criminal database to potentially be used in future investigations? These are questions that we should keep in mind as our criminal justice systems evolves.


Growth of Social Media Outpaces Traditional Evidence Rules

by Sabrina Ly

Thumbnail-Sabrina-Ly.jpg Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers’ arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: “My tattoo iz a pig get’n his brains blew out.” Pig is considered a derogatory term for a police officer.The tattoo also had the officer’s misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.

The myriad of charges brought against an individual given evidence found on their social networking websites is the basis for Ira P. Robbin’s article “Writings on the Wall: The Need for an Author-Centric Approach to the Authentication of Social-Networking Evidence” published in Volume 13.1 of the Minnesota Journal of Law Science and Technology. Robbins begins by discussing the varying ways in which social networking websites have been used as evidence in personal injury and criminal matters. Specifically, Twitter, Facebook and Myspace postings have been deemed discoverable if relevant to the issue and admissible only if properly authenticated by the Federal Rules of Evidence. However, courts across the country have grappled with the evidentiary questions that are presented by social media. In some states, the court admitted the evidence given distinctive characteristics that created a nexus between the posting on the website and the owner of the account. In other states, the court found the proof of the nexus was lacking. Regardless, overall concerns of potential hackers or fictitious accounts created by a third-party posing as someone else create problems of authentication.

Robbins argues that the traditional Federal Rules of Evidence do not adapt well to evidence from social networking websites. Accordingly, Robbins proposes the courts adopt an author-centric authentication process that focuses on the author of the post and not just the owner of the account. Failing to adopt an authentication method for evidence obtained on social networking websites may create consequences that could harm the values and legitimacy of the judicial process. The ability to manipulate or fake a posting creates unreliable evidence that would not only undermine the ability of the fact-finder to determine its credibility but would also unfairly prejudice the party in which the evidence is presented against.

Technology is an area of law that is rapidly evolving and, as a result, has made some traditional laws antiquated. In order to keep pace with these changes, legislators and lawmakers must constantly reexamine traditional laws in order to promote and ensure fairness and accuracy in the judicial process. Robbins has raised an important issue regarding authentication of evidence in the technological world, but as it stands there is much work to be done as technological advances outpace the reformation of traditional laws that govern it.


To Serve or Not to Serve the Shareholders; That is the Question

by Maya Suresh, UMN Law Student, MJLST Staff

Thumbnail-Maya-Suresh.jpgHikma Pharmaceutical Company recently received the 2012 Client Leadership Award of the International Finance Corporation (IFC) due to its strong commitment to the community and leadership in the Pharmaceutical Industry. The award is given to companies that display this commitment through a variety factors, including strong corporate governance. As the biggest pharmaceutical manufacturer in the Middle East, Hikma has helped the public by providing affordable and lifesaving medicines to those in need. The CEO of the IFC lauded the corporation for setting the standard for corporate social responsibility within the industry.

The importance of these actions taken by Hikma was the basis for Martin Hirsch’s article, “Side Effects of Corporate Greed: Pharmaceutical Companies Need a Dose of Corporate Social Responsibility,” published in Issue 9.2 in the Minnesota Journal of Law, Science & Technology. The article talks about the tension that exists between the shareholders of pharmaceutical companies and the public the companies strive to serve. The shareholder model of corporate governance focuses on maximizing shareholder profit which often results in the production of lifestyle drugs over drugs that cure life threatening diseases. Lifestyle drugs include medicines for baldness and toe fungus that are in high demand and thus, sold for large profits. However, the lifesaving drugs, that are the most needed, are the ones the pharmaceutical companies refuse to produce. These drugs are mostly in demand by those living in poorer regions of the world. However, they typically cannot afford the high price point the pharmaceutical companies set the drugs at. Thus, the drugs are not bought, even though they are desperately needed, which leads the pharmaceutical companies to stop investing money into developing and producing them.

Hirsch argues that some companies take these actions further by influencing doctors’ diagnoses of patients, in an effort to increase the sales of higher revenue generating drugs. The actions of Hikma could lead consumers to believe that there is hope for the public, and that some companies are beginning to take a stand on this skewed model that has plagued the industry. However, some companies continue the practice of producing lifestyle drugs, versus lifesaving drugs.

WebMD has come under recent criticism for succumbing to that pressure when it should be serving as an objective medical resource for the public. A rigged online test for depression led test takers to believe they may be at risk for depression, when in fact they were not. This served as the perfect example of companies working to serve the BigPharma industry rather than the public. Unfortunately, as Research Associate Rallis asserts in the article, WebMD has no plans to alter its business model and as such, won’t be breaking ties with the industry anytime soon.

There appears to be some hope that the tension within the industry will resolve itself as the actions by Hikma will hopefully rub off on others in the industry. However, it is also clear that there is still work to be done.


Brains on Drugs: The Need for a Drug Policy that Embraces Scientific Understanding of Addiction

by Mike Borchardt, UMN Law Student, MJLST Managing Editor

Thumbnail-Mike-Borchardt.jpgThe strong showing in polls for marijuana legalization efforts in Colorado and Washington illustrate that America’s attitudes toward illegal drugs is starting to shift. Though the attitudes of some voters are starting to shift on pot, there is still a strong disconnect, especially when it comes to harder drugs, between what we know about addiction and the policies we use to curb drug use. In their article in MJLST 11.1, “Why Neuroscience Matters for Rational Drug Policy,” David M. Eagleman, Mark A. Correro, and Jyotpal Singh outline this disconnect between science and policy. As they explain, “Although addiction may involve volitional choices early on, it is best understood as a brain disease.” Despite this being the general consensus of the scientific community, our drug policies do too little to address addiction as a disease.

A good example of this is the use of Suboxone (buprenorphine), a drug used to treat opiate addiction . The US government spent millions of dollars funding Reckitt Benckiser’s development of Suboxone. It is an opiate which is much more difficult to overdose on than other drugs like heroin, and it is used to help manage withdrawal and cravings. Due to fears that it will be abused, Suboxone is difficult for many addicts to get. Doctors must undergo special training to prescribe it, and they are only allowed to write prescriptions for 30-100 patients a year. Additionally, many doctors are wary of prescribing it, as they don’t want to draw addicts to their offices. This makes it more difficult than necessary for addicts to gain access to Suboxone–they turn to drug dealers on the street for a supply of it, and when the dealers don’t have it, they use heroin or other opiates to satisfy their addiction.

Making Suboxone unnecessarily difficult for addicts to get is only one example of the disregard our drug policy shows towards our scientific understanding of addiction. As Eagleman, Correro, and Singh explain (at page 20) , “The United States has a history of combating the drug problem with increased law enforcement rather than customized intervention and rehabilitation.” Despite the fact that treatment has been shown to be far more effective (both cost-effective and effective in reducing drug use) than incarceration, drug treatment programs are underfunded and stigmatized. As the economic recession in the US has led to tighter budgets, drug-treatment programs are often one of the first things on the chopping block. Though US drug policy has generally been, and still is, heavily focused on law enforcement as a solution to the drug problem, there have been some hopeful developments. The Affordable Care Act includes addiction treatment as one of the “Essential Health Benefits” insurers are required to provide. If the law is successful in getting more Americans, especially low-income Americans, health insurance, it could help provide avenues of treatment that were formally unavailable to drug-addicts due to their cost.


Censorship Remains Viable in China– But For How Long?

by Greg Singer, UMN Law Student, MJLST Managing Editor

Thumbnail-Greg-Singer.jpgIn the west, perhaps no right is held in higher regard than the freedom of speech. It is almost universally agreed that a person has the inherent right to speak their mind as he or she pleases, without fear of censorship or reprisal by the state. Yet for the more than 1.3 billion currently residing in what is one of the oldest civilizations on the planet, such a concept is either unknown or wholly unreflective of the reality they live in.

Despite the exploding amount of internet users in China (from 200 million users in 2007 to over 530 million by the end of the first half of 2012, more than the entire population of North America), the Chinese Government has remained implausibly effective at banishing almost all traces of dissenting thought from the wires. A recent New York Times article detailing the fabulous wealth of the Chinese Premier Wen Jiabao and his family members (at least $2.7 billion) resulted in the almost immediate censorship of the newspaper’s English and Chinese web presence in China. Not stopping there, the censorship apparatus went on to scrub almost all links, reproductions, or blog posts based on the article, leaving little trace of its existence to the average Chinese citizen. Earlier this year, the Bloomberg News suffered a similar fate, as it too published an unacceptable report regarding the unusual wealth of Xi Jinping, the Chinese Vice President and expected successor of current President, Hu Jintao.

In “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China,” published in the Winter 2012 version of the Minnesota Journal of Law, Science & Technology, Jyh-An Lee and Ching-Yi Liu explain that it is not mere tenacity that permits such effective censorship–the structure of the Chinese internet itself has been designed to allow the centralized authority to control and filter the flow of all communications over the network. Even despite the decentralizing face of content creation on the web, it appears as though censorship will remain technically possible in China for the foreseeable future.

Yet still, technical capability is not synonymous with political permissibility. A powerful middle class is emerging in the country, with particular strength in the large urban areas, where ideas and sentiments are prone to spread quickly, even in the face of government censorship. At the same time, GDP growth is steadily declining from its tremendous peak in the mid-2000s. These two factors may combine to produce a population that has the time, education, and wherewithal to challenge a status quo that will perhaps look somewhat less like marvelous prosperity in the coming years. If China wishes to enter the developed world as a peer to the west (with an economy based on skilled and educated individuals, rather than mass labor), addressing its ongoing civil rights issues seems like an almost unavoidable prerequisite.