Wasted Places Report Elucidates Key Problem in Current Environmental Legal and Regulatory Infrastructure

by David Hanna, MJLST Lead Article Editor, UMN J.D./M.S. in Chemistry Joint Degree Candidate

Thumbnail-David-Hanna-II.jpgDuring a time when environmental issues flood the headlines of newspapers, magazine covers, and television broadcasts, it is hard not to come across sustainable efforts by concerned companies and institutions trying to proactively tackle these environmental issues. While these pointed campaigns and programs deserve some recognition, there is plenty of room for improvement and this improvement needs immediate legal and regulatory acknowledgment.

Recently, in her article “Wasted Places: Slow, Underfunded EPA Program Falls Short in Toxic Site Cleanups,” Kate Golden attributed limited funds, lack of federal oversight, and complex approval processes as the reasons for the hundreds of thousands of abandoned and polluted properties referred to as “brownfields” that continue to exist all over the country. Despite billions of dollars in federal grants and loans provided by the Environmental Protection Agency (EPA), there are still brownfields that are contaminating groundwater. While EPA funds are arguably one part of the sustainability puzzle, legal and regulatory infrastructure is another piece of the puzzle that has apparently fallen under the table. It should come as no surprise that the current legal and regulatory infrastructure is the root of the brownfields problem, as evidenced by current environmental issues stemming forth from insufficient legal and regulatory governance.

For example, the current controversial discussion of the natural gas drilling process known as hydraulic fracturing, or “fracking,” is one area where environmentalists have recognized and commented on the lack of EPA monitoring in regulating potential public health hazards. In “Notes from Underground: Hydraulic Fracturing in the Marcellus Shale,” Joseph Dammel examined the effect of fracking on our energy portfolio, national security, and capacity for technological innovation. Dammel proposes that courts, Congress, and regulatory agencies take reformative legal and regulatory action to address the current environmental issues posed by a technology that seems to have outpaced our lawmakers. Ultimately, this vicious, inescapable cycle is the result of insufficient legal and regulatory governance. Without intervention, the history of brownfields is likely to repeat itself through fracking.

Chemical waste management and minimization in university teaching and research laboratories is another area where legal and regulatory reform is needed. In my upcoming article, “Do Educational Institutions Score High on Their Sustainability Efforts?: A Case Study (and Grade) on Chemical Waste Management and Minimization in Teaching and Research Laboratories at the University of Minnesota,” that will be published in Volume 14, Issue 1 of the Minnesota Journal of Law, Science & Technology, I utilize the University of Minnesota, one of the largest institutions by student enrollment in the United States, as a case study to elucidate how universities and colleges have missed key areas of development and improvement of sustainability in their sustainability campaigns and programs. By evaluating the legal and regulatory framework currently in place, the article suggests ways to move forward in managing and reducing chemical waste at educational institutions like the University of Minnesota.

Whether the issue concerns brownfields, fracking, or chemical management, a big reason these environmental issues exist is a lack of legal and regulatory governance. This lack of governance might be due to key players not carrying out their delegated responsibilities. Or, perhaps, the problem stems from the laws themselves. Regardless, while funding is certainly a piece of the environmental puzzle, a legal and regulatory reformative approach at both the federal and state levels is needed to move forward and achieve a more complete picture.


Don’t Track Me! – Okay Maybe Just a Little

by Mike Borchardt, UMN Law Student, MJLST Managing Editor

Thumbnail-Michael-Borchardt.jpgRecent announcements from Microsoft have helped to underscore the current conflict between internet privacy advocates and businesses which rely on online tracking and advertising to generate revenues. Microsoft recently announced that “Do Not Track” settings will be enabled by default in the next version of their web browser, Internet Explorer 10 (IE 10).

As explained by Omer Tene and Jules Polonetsky in their article in the Minnesota Journal of Law, Science & Technology 13.1, “To Track or ‘Do not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising,” the amount and type of data web services and advertisers collect on users has developed as quickly as the internet itself. (For an excellent overview of various technologies used to track online behavior, and the variety of information they can obtain, see section II of their article). The success and ability of online services to supply their products free to users is heavily dependent on this data tracking and the advertising revenue it generates. Though many online services are dependent on this data collection in order to generate revenue, users and privacy advocates are suspicious about the amount of data being collected, how it is being used, and who has access.

And it is in response to this growing environment of unease concerning the amount and types of user data being collected that Microsoft has added these new Do Not Track features (All other major browsers are set to include do not track settings, with Google’s Chrome the last to announce them. These settings, however, will likely not be enabled by default. This, however, may not be the boon for user privacy that some have been hoping for. Do Not Track is a voluntary standard developed by the web industry; it relies on browser headings to tell advertisers not to track users (for a more in depth description of how this technology works, see pgs. 325-26 of Tene and Polonetsky’s article). This is where the problem arises-websites can ignore browser headings and track users anyway. Part of the Do Not Track standard developed by the industry is that users must opt in to Do Not Track-it cannot be enabled by default. In response to Microsoft’s default Do Not Track settings, Apache (the most common webserver application), has been updated to ignore do not track setting from IE 10 users. With one side claiming that “Microsoft deliberately violate[d] the standard,” and the other claiming that the industry is ignoring privacy for profit, the conflict over user data collection seems poised to continue.

A variety of alternatives to the industry implemented Do Not Track settings have been proposed. As the conflict continues, one of the most commonly proposed solutions is legislation. Privacy advocates and web companies, however, have very different views about what Do Not Track legislation should cover. (For differing viewpoints see “‘Do Not Track’ Internet spat risks legislative crackdown). Tene and Polonetsky argue that a value judgment must be made, that policymakers must evaluate whether the “information-for-value business model currently prevailing online” is socially acceptable or “a perverse monetization of users’ fundamental rights,” and create Do Not Track standards accordingly. Unfortunately, this choice between the generally free-to-use websites and web services users have come to expect on one hand, and personal privacy on the other, does not seem like much of a choice at all.

There are, however, alternatives to the standard Do Not Track proposals. One of the best is allowing the collection of user data to continue, but to legally limit the ways in which that data could be used. Tene and Polonetsky recommend a variety of policies that could be enacted which could help to assuage users’ privacy concerns, while allowing web services to continue generating targeted advertising revenue. Some of their proposals include limiting user data use to advertising and fraud prevention, preventing the use of data collected from children, anonymizing data as much as possible, limiting the retention of user data, limiting transmission of data to third parties, and clearly explaining to users what data is being collected about them and how it is being used. Many of these options have been proposed before, but used in conjunction they could provide an acceptable alternative to the strict Do Not Track approach proposed by privacy advocates, while still allowing the free-to-use, advertising-based web to thrive.


Mashing up Copyright Infringment with the Beastie Boys and Ghostface Killah

by Eric Maloney, UMN Law Student, MJLST Staff

Thumbnail-Eric-Maloney.jpgApparently, Bridgeport Music has never seen the episode of Chappelle’s Show declaring that “Wu-Tang Clan ain’t nothing to [mess] with.” The record label has decided to sue the group, specifically artists Raekwon, Ghostface Killah, Method Man, and producer RZA, for reportedly using a sample of a 1970’s recording originally by the Magictones on a 2009 Raekwon album track. The portion of the recording allegedly utilized in production of the song was sped up to change the sample’s key from E minor to F# minor, and constituted four measures of the original tune. The sample was only ten seconds long.

Wu-Tang Clan isn’t the only group currently under scrutiny for their use of sampling. The Beastie Boys are also facing an infringement suit, due to allegedly sampling two songs by a group called Trouble Funk in four of their tracks from the late 1980’s. This suit is different in at least one respect from the Bridgeport matter: the record company, Tuf America, will have to show not only infringement, but also explain why the suit shouldn’t be barred by the statute of limitations after over 20 years have passed since the Beasties released these songs.

These lawsuits are hardly novel; hip-hop and electronica artists have been subject to infringement liability for years now due to the rise in their use of digital sampling methods. The Beastie Boys especially have been repeatedly sued for using unauthorized samples. (See, e.g. Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002). For a great summary of the history of sampling in music production and court cases regarding infringement, see Professor Tracy Reilly’s article Good Fences Make Good Neighboring Rights in the Winter 2012 issue of the Minnesota Journal of Law, Science & Technology.

As Professor Reilly indicates in her article, the latest federal appeals court to directly address this issue has taken a hard-line stance: appropriation of any part of a sound recording is a physical taking, no matter how minute the sample may be. That case, Bridgeport Music v. Dimnesion Films, featured the same plaintiff record company that is now suing Wu-Tang Clan. The Sixth Circuit Court of Appeals in this instance held that there is no type of de minimis protection for use of small samples; instead, any unauthorized, direct sample of a protected recording subsequently used by an artist constitutes infringement.

The risk that courts run in following such a bright-line doctrine is that they may be a bit behind trends in culture and technology in dealing so harshly with those who choose to sample copyrighted works. So-called “mash-up” artists, such as Greg Gillis of Girl Talk, make a living through exclusively sampling copyrighted works and then distributing them for free under the penumbra of “fair use.” His sampling is both notorious and fairly obvious; there are websites dedicated to tracking which samples he chooses to use in his productions. Gillis is still able to make a living by touring and selling merchandise, while also speaking out against current copyright infringement standards.

As digital sampling techniques continue to improve and the demand for “mash-up” artists grows, the Bridgeport ruling will start to look dated in the face of the reality of modern-day music production. This is especially true in the case against the Wu-Tang Clan, where it appears somewhat absurd to condition liability on such a small amount of sampled music. For now, though, artists will need to stay on their toes and be sure to license any samples, no matter how minimal, or face the consequences. This doctrine may stifle creativity for the time being, but perhaps all this legal wrangling will give artists emotional fodder for future compositions. Either way, it’s becoming clearer as more of these suits are brought that greater clarity on the issue is needed, either from Congress or the courts. A better balance between encouraging creativity and protecting copyrights than what is given to us by Bridgeport can hopefully be found as this area of law continues to evolve.


Food Label Regulations Fall Short

by Bobbi Leal, UMN Law Student, MJLST Articles Editor

Thumbnail-Bobbi-Leal-ii.jpgA recent study, published in Agricultural Economics, found that the average body mass index for consumers that read nutrition labels is lower than those that do not read the labels. This finding implies that understanding and utilizing food and nutrition labels provides consumers with the information needed to make informed decisions about what they eat. However, a recent article by J.C. Horvath published in the Minnesota Journal of Law, Science & Technology, “How Can Better Food Labels Contribute to True Choice?” makes evident that food labeling has a long way to go before it truly gives consumers the information necessary to make informed decisions.

Food label regulations, outlined by the Food and Drug Administration, have a number of flaws. The FDA has declined to define strict standards for use of the food label “all-natural,” claiming that the term is too nebulous to be strictly defined and standardized across the entire food industry. Undoubtedly, consumers assume that a food labeled as “all-natural” has not been chemically processed or structurally altered from its natural state. Unfortunately, this is not the case. The FDA has a vague policy which defines the term “natural,” to mean “nothing artificial or synthetic…is included in, or has been added to, the product that would not normally be expected to be there.” According to the Wall Street Journal, some ingredients that have been labeled as “all-natural” include high fructose corn syrup, genetically modified plants, and sodium benzoate.

Similarly, the approved use of certain terms, such as “artificial flavor,” “natural flavor,” and “artificial coloring” often hide significant details about the nature of the food. These three phrases can stand in for over 3900 food additives that come from a wide range of sources, giving the consumer no real notice of the substance or origin of the “flavor” or “coloring.” For example, beef tallow, gelatin, and lard can all be covered by these three phrases. Even the requirements for listing allergens is incomplete, as the FDA only requires that eight of the known allergic-reaction-inducing ingredients be explicitly listed: milk, eggs, fish, Crustacean shellfish, tree nuts, peanuts, wheat, and soybeans.

This recent study concerning the use of nutrition labels makes clear that when consumers read and understand food labels, they can make better choices for their health. In order for this to occur, however, it is imperative that the food labels which consumers rely upon are transparent and accurate. Food label regulations have not yet accomplished this objective.


Unlocking the Abortion & Evolution Debates:Defining the Essence of Being Human

by Emily Puchalski, UMN Law Student, MJLST Notes & Comments Editor

Thumbnail-Emily-Puchalski.jpgAs scientific research and technological advancement abound in our modern world, often times the law struggles to keep up. The law’s struggle to keep up is evident in debates centering on defining personhood. The question of what it means to be a person/human involves the controversial issues of abortion and evolution, which have divided our nation for decades. Although scientists are helping our understanding of what being human means by studying life at its most basic, controversy abounds regarding not only the results of the studies but also the theoretical underpinnings of even allowing the studies. As our nation becomes more polarized between conservative and liberal thinkers the struggle of defining personhood has come to the forefront in politics.

In his recent article in the Minnesota Journal of Law, Science & Technology, Defining the Essence of Being Human, Efthimio Parasidis contemplates how science could aid the law in attempting to define a person and looks at modern examples of the personhood debate. One of the examples Parasidis describes are personhood amendments that are often backed by anti-abortion groups seeking to have life defined as beginning at conception. These so called personhood amendments have begun to spring up in various states and in many instances the groups attempt to get them on ballots for the public’s vote. Interestingly, after Parasidis’s publication an attempt in Ohio to define life as starting with fertilization failed to get the requisite number of signatures to get on the ballot.

The failure of Personhood Ohio to get the requisite number of votes could foreshadow a big issue in the upcoming presidential election, because Ohio is a battleground state for the by all accounts close presidential race between Obama and Romney. Whether the failure of the amendment signals trouble for the Romney-Ryan ticket is unknown. Interestingly, Romney’s position on abortion has been he opposes abortion except in cases where it may be required for the mother’s health or the pregnancy was the result of rape or incest. While Ryan seems to have tempered his pro-life views during the election.The Romney-Ryan ticket is in a difficult place trying to win the conservative vote while still trying to win Ohio where enough signatures were not garnered.


Google Glass: Augmented Realty or ADmented Realty?

by Sarvesh Desai, UMN Law Student, MJLSTStaff

Thumbnail-Sarvesh-Desai.jpgGoogle glasses . . . like a wearable smartphone, but “weighing a few ounces, the sleek electronic device has a tiny embedded camera. The glasses also deploy what’s known as a ‘heads-up display,’ in which data are projected into the user’s field of vision on a small screen above the right eye.”

google-glasses2.jpgThe glasses are designed to provide an augmented reality experience in which (hopefully useful) information can be displayed to the wearer based on what the wearer is observing in the world at that particular moment. The result could be a stunning and useful achievement, but as one commentator pointed out, Google is an advertising company. The result of Google glasses, or as Google prefers to call them “Google Glass”(since they actually have no lenses) is that advertisements following you around and continuously updating as you move through the world may soon be a reality.

With the ever increasing digital age, more of our movements, preferences, and lives are incessantly tracked. A large portion of the American population carries a mobile phone at all times, and as iPhone users learned in 2011, a smartphone is not only a handy way to keep Facebook up to date, it is also a potential GPS tracking device.

With technologies like smartphones, movement data is combined with location data to create a detailed profile of each person. Google Glass extends this personal profile even further by recording not only where you are, but what you are looking at. This technology makes advertising, as displayed in the hit movie, The Minority Report, a reality, while also creating privacy issues that previously could not even be conceptualized outside science fiction.

Wondering what it might look like to wander the world, as context-sensitive advertisements flood your field of vision? Jonathan McIntosh, a pop culture hacker has the answer. He released a video titled ADmented Reality in which he placed ads onto Google’s Project Glass promotional video demonstrating what the potential combination of the technology, tracking, and advertising might yield. McIntosh discussed the potential implications of such technology in the ABC News Technology Blog. “Google’s an ad company. I think it’s something people should be mindful of and critical of, especially in the frame of these awesome new glasses,” McIntosh said.

As this technology continues to improve and become a more integrated part of our lives, the issue of tracking becomes ever more important. For a thorough analysis of these important issues, take a look at Omer Tene and Jules Polonetsky’s article in the Minnesota Journal of Law, Science & Technology, “To Track or ‘Do Not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising.” The article covers current online tracking devices, the use of tracking, and recent developments in the regulation of online tracking. The issues are not simple and there are many competing interests involved: efficiency vs. privacy, law enforcement vs. individual rights, and reputation vs. freedom of speech, to name a few. As this technology inexorably marches on, it is good to consider whether legislation is needed and, if so, how will it balance those competing interests. In addition, what values do we consider to be of greatest importance and worth preserving at the risk of hindering “awesome new” technology?


Being Green by Helping the Giants Beat the Eagles

by Nathanial Weimer, UMN Law Student, MJLST Staff

Thumbnail-Nathanial-Weimer.jpgSporting events are a nightmare in terms of the environment. The vast number of spectators involved–over 16 million paying fans attended NFL games last year, according to NBC Sports–leave behind massive amounts of trash, while stadiums face huge challenges with water conservation and electricity consumption on game days. Fans also have to transport themselves to and from the event, using large quantities of fuel. And, of course, the problem extends to all stadium events, whether professional or college, football or a different sport. Such a widespread problem needs a powerful solution, one that goes beyond merely suggesting that teams “do the right thing”. The fact is, teams that effectively deal with this problem must be rewarded, and those rewards must contribute to on-field success. By linking sustainability to team performance, the green movement can benefit from the competitive spirit that drives sports.

Many sports teams have already taken steps toward making their stadiums green. SustainableBusiness.com lists professional sports teams with effective environmental strategies, while the EPA has organized waste reduction competitions between collegiate football programs. The University of Minnesota became a leader with the construction of its new football field; upon completion, TCF Bank Stadium became the first collegiate or professional football facility to achieve LEED Silver Certification for environmental design.

Several motivations have contributed to this move towards sustainability. Some owners have used environmental campaigns as a way to strengthen community ties, or improve a team’s brand image to attract sponsors, according to Switchboard. Reductions in energy consumption, often through the installation of solar panels, can greatly reduce utility costs. Groups such as the Green Sports Alliance, a non-profit originating in the Pacific Northwest, have collaborated with professional teams across different sports to incite a higher level of environmental responsibility. Still, the greatest motivation in sports is noticeably missing–winning.

Achieving environmental sustainability requires continuous improvement. In order to ensure that sports teams continue to innovate and strive for improvement, their waste management accomplishments must be able to contribute to their on-field success. In professional leagues, this could easily be accomplished through a salary-cap bump. An NBA team with a model sustainability program could be allowed to spend, say, $5 million more a year on its roster than a team without such a program. Alternatively, draft odds could be adjusted. Instead of losing 59 games in the hopes of landing number one draft pick Anthony Davis, the Charlotte Bobcats could have installed low-flush, dual flush toilets and aerated faucets like those at Target Field. College programs, “arguably the next frontier for the sports greening movement” according to Switchboard, could be rewarded for their environmental initiatives through postseason considerations. Bowl Games could be allowed, or even encouraged, to take a program’s sustainability accomplishments into consideration. NCAA basketball tournament seeds could be similarly tweaked.

While going green might save money on utilities and attract corporate sponsors, the fastest way to make money in sports is to put a successful product on the field. Connecting greenness to on-field benefits would boost community involvement as well–an NBA fan is far more likely to volunteer to sort recycling when she thinks her efforts might help her team find cap room to sign a Dwight Howard. By the same token, collegiate boosters are more likely to donate money towards sustainability projects when those projects earn benefits that would otherwise go to a bitter rival. Sports, after all, are about competition, and winning feels better when you defeat somebody. Giants owner John Mara, when asked about the competitive outlet provided by greening efforts, agreed: “Most of all, I want to beat the Philadelphia Eagles.” It shouldn’t matter that by bringing competition into the quest for sustainability, we all win.

The environmental responsibility of sports events has come a long way. Many stadiums feature technology aimed at tackling the challenging problem of waste management. Still, the fight for sustainability remains an uphill battle, and teams must strive to find new ways to improve their stadiums. Rewarding committed teams with performance-related benefits not only preserves this commitment to innovation, it strengthens it.

Interested in law and sports? You might also like:
Fantasy Baseball Litigation: “C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, LP: Why Major League Baseball Struck Out and Won’t Have Better Luck in its Next Trip to the Plate” by Daniel Mead


Pandemic Flu and You

by Eric Nielson, UMN Law Student, MJLST Staff

Thumbnail-Eric-Nielson.jpgWelcome to flu season. That wonderful time of year where we cross-contaminate millions of bioreactors in our schools and unleash the resulting concoction on humanity.

Flu kills thousands of Americans each year. The good news is that since H1N1 in 2009, we’ve gone without a serious flu pandemic threat. The bad news, according to researchers, is that may be just a matter of luck.

Researchers have recently published multiple methodologies for converting existing animal strains of flu into pandemic capable versions. Flu strains are tested on unimmunized ferrets which are believed to best represent the human disease response to flu (and are kind of cute in a weaselly way). In Korea, researchers created a highly contagious swine flu variant that produces 100% fatalities in brave test ferrets. While it is expected that humanity’s general immunity to flu would provide significant protective effect, it’s still a bit worrisome that a pandemic strain can be produced with equipment little better than a couple of cages and some animals.

Work on bird flu variants that had been mutated to produce contagious versions was also recently described by researchers in the Netherlands . The article states, “The introduction of receptor-binding site mutations Q222L/G224S and the mutations H103Y and T156A in HA, acquired during ferret passage, did not result in increased cross-reactivity with human antisera (table S6), indicating that humans do not have antibodies against the HA of the airborne-transmissible A/H5N1 virus that was selected in our experiments.” Or in plain English, this variation, made with minor mutagenic exposure and some ferrets was indeed a pandemic capable virus.

It is hard to know how bad a flu pandemic would be. The exemplary case of the Spanish Flu in 1918 had a death rate of 3-7% of the population. CDC estimates that a similar disease treated with modern medicine techniques would have a 1.2% death rate. That would mean approximately 3.77 million deaths in the United States. It should be recognized that the Spanish flu pandemic had two waves when the flu mutated and became much more deadly partway through. Anthrax (not a flu) was estimated to have a 75% or higher respiratory kill rate prior to the letter attacks on congress in 2001. The actual death rate from those attacks was 5 of 22 infected or 23%. While modern antivirals, antibiotics, hydration, and ventilators are effective, these resources would be limited in the event of a true pandemic. Especially considering the CDC estimates that 55 million Americans contracted H1N1.

There has not been significant legislation since James Hodge, Jr. stated in his article “Global Legal Triage in Response to the 2009 H1N1 Outbreak” published in 2010 in the Minnesota Journal of Law, Science & Technology that, “If H1N1 was a “test” run of the modern global public health system, then the system has fallen short.” While states have included pandemic preparedness into their planning,the overall level of preparedness is mixed.

The fact of American life is that our politics are reactive to crisis. Even shocks like the bird flu and swine flu have not been enough for our federal and local governments to develop plans to prepare for a pandemic. Instead, the lesson learned has been that there is nothing to worry about. Stay healthy.


FBI Face Recognition Concerns Privacy Advocates

by Rebecca Boxhorn, Consortium Research Associate, Former MJLST Staff & Editor

Thumbnail-Rebecca-Boxhorn.jpgHelen of Troy’s face launched a thousand ships, but yours might provide probable cause. The FBI is developing a nationwide facial recognition database that has privacy experts fretting about the definition of privacy in a technologically advanced society. The $1 billion Next Generation Identification initiative seeks to harness the power of biometric data in the fight against crime. Part of the initiative is the creation of a facial photograph database that will allow officials to match pictures to mug shots, electronically identify suspects in crowds, or even find fugitives on Facebook. The use of biometrics in law enforcement is nothing new, of course. Fingerprint and DNA evidence have led to the successful incarceration of thousands. What privacy gurus worry about is the power of facial recognition technology and the potential destruction of anonymity.

Most facial recognition technology relies on the matching of “face prints” to reference photographs. Your face print is composed of as many as 80 measurements, including nose width, eye socket depth, and cheekbone shape. . Sophisticated computer software then matches images or video to a stored face print and any data accompanying that face print. Accuracy of facial recognition programs varies, from accuracy estimates as low as 61% to as high as 95%.

While facial recognition technology may prove useful for suspect identification, your face print could reveal much more than your identity to someone with a cell phone camera and a Wi-Fi connection. Researchers at Carnegie Melon University were able to link face print data to deeply personal information using the Internet: Facebook pages, dating profiles, even social security numbers! Although the FBI has assured the public that it only intends to include criminals in its nationwide database, this has not quieted concerns in the privacy community. Innocence before proof of guilt does not apply to the collection of biometrics. Police commonly collect fingerprints from arrestees, and California’s Proposition 69 allows police to collect DNA samples from all people they arrest, no matter the charge, circumstances, or eventual guilt or innocence. With the legality of pre-conviction DNA collection largely unsettled, the legal implications of new facial recognition technology are anything but certain.

It is not difficult to understand, then, why facial recognition has captured the attention of the federal government, including Senator Al Franken of Minnesota. During a Judiciary Committee hearing in July, Senator Franken underscored the free speech and privacy implications of the national face print database. From cataloging political demonstration attendees to misidentifications, the specter of facial recognition technology has privacy organizations and Senator Franken concerned.

But is new facial recognition technology worth all the fuss? Instead of tin foil hats, should we don ski masks? The Internet is inundated with deeply private information voluntarily shared by individuals. Thousands of people log on to Patientslikeme.com to describe their diagnoses and symptoms; 23andme.com allows users to connect to previously unknown relatives based on shared genetic information. Advances in technology seem to be chipping away at traditional notions of privacy. Despite all of this sharing, however, many users find solace and protection in the anonymity of the Internet. The ability to hide your identity and, indeed, your face is a defining feature of the Internet and the utility and chaos it provides. But as Omer Tene and Jules Polonetsky identify in their article “To Track or ‘Do Not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising,” online advertising “fuels the majority of free content and services online” while amassing enormous amounts of data on users. Facial recognition technology only exacerbates concerns about Internet privacy by providing the opportunity to harvest user-generated data, provided under the guise of anonymity, to give faces to usernames.

Facial recognition technology undoubtedly provides law enforcement officers with a powerful crime-fighting tool. As with all new technology, it is easy to overstate the danger of governmental abuse. Despite FBI assurances to use facial recognition technology only to catch criminals, concerns regarding privacy and domestic spying persist. Need the average American fear the FBI’s facial recognition initiative? Likely not. To be safe, however, it might be time to invest in those oversized sunglasses you have been pining after.


Got GMOs?

by Ude Lu, UMN Law Student, MJLST Staff.

Ude-Lue.jpgGMOs, genetically modified organisms, have long been a part of our daily diet. For example, most of the soybeans and corn on the supermarket shelves are GMOs. Currently, the issue of whether these GMOs should be labeled so that customers can make informed purchases is in a heated debate in California. California Proposition 37, which would require labeling of GMOs, will soon be voted in November this year. Proponents from both sides have poured millions of dollars into the campaign.

GMOs are plants that have been genetically engineered to be enhanced with characteristics that do not occur naturally, so that the harvest can be increased and the cost can be lowered. One example of a prominent GMO is soybean. Monsanto–a Missouri based chemical and agriculture company–introduced its genetically modified soybean, Roundup Ready, in 1996. Roundup Ready is infused with genes that resist weed-killers. In 2010, 93% of soybeans planted in the United States were Roundup Ready soybeans.

Although GMOs are one of the most promising solutions to address the sustainability of food supply in view of the growing global population, there are concerns in the public regarding their safety, and confusion as to which federal agency has responsibility for regulating them.

Amanda Welters in her article “Striking a balance: revising USDA regulations to promote competition without stifling innovation” published in the Minnesota Journal of Law, Science, and Technology explains the current regulatory scheme of GMOs. Three primary agencies regulate GMOs: the Food & Drug Administration (FDA), the Environmental Protection Agency (EPA), and the United States Department of Agriculture (USDA). The FDA regulates GMOs in interstate commerce that are intended to be consumed by animals or humans as foods, the EPA monitors how growing of GMOs impacts the environment, and the USDA assesses the safety of growing GMO plants themselves.

Specifically, the Animal and Plant Health Inspection Service (APHIS) in the USDA is responsible for ensuring crops are free of pests and diseases. APHIS is currently in the process of revising its regulations for GMOs in an attempt to improve transparency, eliminate unnecessary regulations and enhance clarity of regulations. Under the proposed regulations there will be three types of permits for GMOs: interstate movement, importation, and environmental release.

Taking the position that GMOs are generally beneficial and unavoidable, Welters suggests that the USDA should frame a regulatory structure similar to the Hatch-Waxman Act and the Biosimilar Act to promote both innovation and competition. Readers interested in the regulatory issues of GMOs and the balance between the interests of patent innovators and generic follow-ons would find Welters’ article informative and insightful.