Berkeley Technology Law Journal http://btlj.org The Top Rated Technology Law Journal Mon, 02 Dec 2019 21:37:59 -0800 en-US hourly 1 https://wordpress.org/?v=5.3 137438150 Net Neutrality with Berkeley Law Profs. Erik Stallman and Tejas Narechania (Big Conversations) http://btlj.org/2019/12/net-neutrality-with-berkeley-law-profs-erik-stallman-and-tejas-narechania-big-conversations/ Mon, 02 Dec 2019 21:29:40 +0000 http://btlj.org/?p=6256 We sat down with Berkeley Law professors (and former FTC attorneys) Erik Stallman and Tejas Narechania for an … Continue Reading

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We sat down with Berkeley Law professors (and former FTC attorneys) Erik Stallman and Tejas Narechania for an overview of the issue of net neutrality and to discuss the D.C. Circuit’s recent major decision about the issue.

Hosts: Dan Noel ’21 and Allan Holder ’21

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5 Minutes in Tech Law – November 21st http://btlj.org/2019/11/5-minutes-in-tech-law-november-21st/ Mon, 25 Nov 2019 20:33:14 +0000 http://btlj.org/?p=6249 This week, we discuss a ruling on border searches, Apple being accused of not playing fair with its … Continue Reading

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This week, we discuss a ruling on border searches, Apple being accused of not playing fair with its chips, and… personal jurisdiction.

Hosts: Barbora Studihradová LLM ’20 and Dan Noel ’21

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Can You Copyright the Law … ish? http://btlj.org/2019/11/can-you-copyright-the-law-ish/ Mon, 25 Nov 2019 18:16:50 +0000 http://btlj.org/?p=6245 by Ross Ufberg (J.D. 2022)   Open-government advocates have wreaked havoc on the world of legal publishing. The … Continue Reading

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by Ross Ufberg (J.D. 2022)

 

Open-government advocates have wreaked havoc on the world of legal publishing.

The Supreme Court is about to hear a contentious question: Can states copyright the law? Public.Resources.Org, (PRO), a website committed to making the government more accessible, is being sued by the State of Georgia for copyright infringement for purchasing, scanning, and making available online, for free, the complete Official Code of Georgia Annotated (OCGA). The Eleventh Circuit ruled in favor of PRO, reversing the district court’s decision, and the Supreme Court will hear oral arguments on December 2, 2019.

Courts have reached a consensus that federal laws cannot be copyrighted. The government edicts doctrine holds that federal laws are uncopyrightable. The doctrine was developed to further obvious public policy justifications, like the rule of law principles, and to account for the difficulty of deciding how to assign authorship of the law. (The Eleventh Circuit held that the People had “constructive authorship,” since the law is written by “agents of the People.”)[1] While the government edicts doctrine is pervasive, broad uncopyrightability has not yet extended to state law.

At issue in Georgia v. Public.Resource.Org is whether the state’s agreement with LexisNexis violates the government edicts doctrine. According to the agreement, the state holds copyright to the OCGA, and Lexis licenses the exclusive right to publish it. While the OCGA is the official code of Georgia, subject to a bicameral vote in the legislature and is considered authoritative, the unannotated code . . . is not. In fact, “the very first annotation [in the OCGA] . . . warns that ‘attorneys who cite unofficial publication of 1981 Code do so at their peril.’”[2]

In its brief, Georgia argued that the OCGA does not have the force of law, and therefore it is copyrightable. It noted that the unannotated version is available for free, while the annotated code is available on CD-ROMs at 60 public institutions across the state. The state also makes the economic argument that “[a]ffirming the decision [by the Eleventh Circuit] would scuttle the well-established regimes of numerous states that, like Georgia, rely on copyright protection to incentivize private publishers to create and maintain annotated official codes.”[3]

PRO argued that the code has effectively merged with the annotations, so anybody who wants to understand the law must consult the OCGA. Furthermore, the legislative process by which Georgia approves the OCGA bears “sufficient imprimaturs of state authority to fall within the government edicts doctrine under any plausible rule.”[4] Therefore, the annotations are the law and are uncopyrightable.

Berkeley Law faculty members have submitted two amici briefs in support of PRO. Berkeley Law Professor Peter S. Menell and University of Pennsylvania Law Professor Shyamkrishna Balganesh asserted that the appellate court’s ruling was correct on three grounds.[5] First, the OCGA is an official pronouncement of the law and is not copyrightable under the government edicts doctrine.[6] Additionally, all government edicts are “methods of operation” and therefore are uncopyrightable.[7] Finally, “authentic statements of the law” only retain their force when they are expressed in certain mediums.[8] Berkeley Law Professors Jennifer Urban and Erik Stallman submitted a brief on behalf of library and research organizations.[9] They argued that libraries have a duty to give citizens meaningful access to the law. When that access is dependent on having a subscription to Lexis, purchasing the hard copies, or being one of the 60 libraries to whom the state has given a CD-ROM, that access is circumscribed. They also claim that the Eleventh Circuit’s ruling on the case “track[s] centuries of recognition that access to government promulgations anchors and legitimates the relationship between the government and the governed.”[10]

Additional amici briefs were filed in support of PRO by the Cato Institute and the Center for Democracy, the ACLU, Reporters Committee for Freedom of the Press, and The Wikimedia Foundation.

Arkansas, Alabama, Alaska, Idaho, Kansas, Mississippi, Nebraska, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and the District of Columbia have filed a brief supporting Georgia’s Code Commission, as has the Software and Information Industry Association, among others.

The Court’s decision will have implications on pending cases and may overrule lower court precedent. In a pending case, International Code Council v. Upcodes, the International Code Council (ICC), a non-profit organization that develops building codes and standards, is suing a San-Francisco-based startup UpCodes over copyright infringement. UpCodes scanned a variety of municipal and state building codes that were published and under copyright by the ICC and made them available for free on the Internet. In another case, Veeck v. Southern Bldg. Code Congress Int’l, Inc., the Fifth Circuit held that building codes, once adopted into law, obtain the force of law and become uncopyrightable.[11]

Very shortly, the Supreme Court will take a crack at delimiting the government edicts doctrine and clearing up any uncertainty as to its scope and application. That decision, with force of law, will be available, for free, to anybody with access to the Internet.

 

[1] See Code Revision Comm’n for Gen. Assembly of Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229, 1232 (11th Cir. 2018), cert. granted sub nom, Georgia v. Public.Resource.Org, Inc., 139 S. Ct. 2746 (2019).

[2] Id. at 1250 (citation omitted).

[3] Reply Brief for the Petitioners at 22, Georgia v. Public.Resource.Org Inc., No. 18-1150 (U.S., 2019), http://www.supremecourt.gov/DocketPDF/18/18-1150/121926/20191108144123535_2019-11-07%20Reply%20Brief%20with%20Appendix%20-%20to%20Printer.pdf [https://perma.cc/X6GN-G7KA].

[4] Brief of Respondent at 18, Georgia v. Public.Resource.Org Inc., No. 18-1150 (U.S., 2019), http://www.supremecourt.gov/DocketPDF/18/18-1150/118634/20191009175846470_18-1150%20bs.pdf [https://perma.cc/R9SC-ZKCR].

[5] Brief of Professors Shyamkrishna, Balganesh and Peter S. Menell as Amici Curiae in Support of Respondent, Georgia v. Public.Resource.Org Inc., No. 18-1150 (U.S., 2019), https://www.supremecourt.gov/DocketPDF/18/18-1150/119117/20191016122742730_38845%20pdf%20Menell.pdf [https://perma.cc/U4HE-6GMQ].

[6] Id. at 1–2.

[7] Id.

[8] Id.

[9] Brief for American Library Association of College and Research Libraries, Association of Research Libraries, and the American Association of Law Libraries as Amici Curiae in Support of Respondent, Georgia v. Public.Resource.Org Inc., No. 18-1150 (U.S., 2019), https://www.supremecourt.gov/DocketPDF/18/18-1150/119208/20191016155247671_18-1150_Urban_Brief%20Amicus%20Curiae-Library%20Associations.pdf [https://perma.cc/YP29-6QTS].

[10] Id. at 3.

[11] 293 F.3d 791, 805–06 (5th Cir. 2002) (en banc).

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5 Minutes in Tech Law – November 14th http://btlj.org/2019/11/5-minutes-in-tech-law-november-14th/ Fri, 22 Nov 2019 20:21:55 +0000 http://btlj.org/?p=6243 This week, we discuss super warrants, foreign agents inside tech companies, and a wrist slap over data throttling. … Continue Reading

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This week, we discuss super warrants, foreign agents inside tech companies, and a wrist slap over data throttling.

Hosts: Yexi Xu LLM ’20 and Debbie Mosley ’22

The post 5 Minutes in Tech Law – November 14th appeared first on Berkeley Technology Law Journal.

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The Americans with Disabilities Act in the Digital Age http://btlj.org/2019/11/the-americans-with-disabilities-act-in-the-digital-age/ Wed, 20 Nov 2019 23:57:17 +0000 http://btlj.org/?p=6231 by Margo Blase (J.D. 2022) The Americans with Disabilities Act of 1990 (ADA) requires companies to provide reasonable … Continue Reading

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by Margo Blase (J.D. 2022)

The Americans with Disabilities Act of 1990 (ADA) requires companies to provide reasonable accommodations and accessibility to all public and private places open to the general public.[1] It provides little to no direction, however, for what accessibility means in the digital age. The ADA was written at a time when most companies did not have websites and apps were a thing of the future. While there are voice command programs available for users who are visually impaired, they often fail in practicality.[2] Due to this frustration, disabled Americans are less likely to utilize and benefit from the internet. A 2016 Pew Research survey found that only 50% of disabled users report using the internet on a daily basis compared to 79% of users without a disability.[3] As technology becomes a more vital part of everyday life, lawsuits pertaining to website accessibility are on the rise.[4] Companies and consumers alike are looking toward the courts to confirm whether the ADA, which dictates America’s physical landscape, is applicable to the online landscape.

When Domino’s was successfully sued in the U.S. Court of Appeals for the Ninth Circuit this past January, they turned to the Supreme Court on appeal.[5] Guillermo Robles, a blind man, brought suit after he was unable to order a pizza from Domino’s website or app, despite having screen-reading software. In a win for consumers with disabilities, the Ninth Circuit held that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”[6] This is a positive outcome considering courts over the last few years have often ruled the other way and circuit courts continue to be divided on the subject.[7]

While the ADA has been around for nearly 30 years, companies are pointing to a lack of guidelines as a justification for not providing disability accommodations on their online platforms. In Robles v. Domino’s Pizza, Domino’s defense was that the Department of Justice (DOJ) had failed to provide helpful guidelines or strict requirements.[8] This is an issue which does not appear to be going away soon. In 2010, under the Obama administration, the DOJ announced plans to amend the ADA to include web accessibility. Under the Trump administration in 2017, however, efforts were suspended, and no new guidelines have been put forward.[9] While the Ninth Circuit held that Domino’s is only entitled to fair notice of legal duties, not a “blueprint for compliance” of statutory obligations, a lack of regulation is sure to lead to more litigation in the future. On October 7th, the Supreme Court also denied Domino’s request for certiorari, leaving the application of the ADA to the online world open to debate.

 

[1] See 42 U.S.C. §§ 12101–12213 (2012).

[2] See Anne Quito, There’s Already a Blueprint for a More Accessible Internet. If Only Designers Would Learn It, Quartz (November 15, 2018), https://qz.com/1407450/theres-already-a-blueprint-for-a-more-accessible-internet/ [https://perma.cc/9WS5-2D8R].

[3] See Monica Anderson & Andrew Perrin, Disabled Americans are less likely to use technology, Pew Research Center (April 7, 2017),  https://www.pewresearch.org/fact-tank/2017/04/07/disabled-americans-are-less-likely-to-use-technology/ [https://perma.cc/6VFX-UYU2].

[4] UsableNet has been tracking federal web-accessibility lawsuits and found a 181% increase in suits for 2018 compared to 2017. See Jason Taylor, 2018 ADA Web Accessibility Lawsuit Recap Report [Blog], UsableNet (December 26, 2018),  https://blog.usablenet.com/2018-ada-web-accessibility-lawsuit-recap-report [https://perma.cc/2L2N-SXVX].

[5] See Robert Barnes, Do Protections for People with Disabilities Apply Online? Domino’s Asks High Court, Washington Post (July 20, 2019), https://www.washingtonpost.com/politics/courts_law/do-protections-for-people-with-disabilities-apply-online-dominos-asks-high-court/2019/07/20/984c685e-a7fd-11e9-a3a6-ab670962db05_story.html [https://perma.cc/YZQ4-N8RP].

[6] Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019), cert. denied 2019 WL 4921438 (Oct. 7, 2019).

[7] See Jason P. Brown & Robert T. Quackenboss, The Muddy Waters of ADA Website Compliance May Become Less Murky in 2019, Hunton Employment & Labor Perspectives (Jan. 3, 2019), https://www.huntonlaborblog.com/2019/01/articles/public-accommodations/muddy-waters-ada-website-compliance-may-become-less-murky-2019/ [https://perma.cc/A4LY-FYQM].

[8] See Robles, 913 F.3d at 908.

[9] See Nondiscrimination on the Basis of Disability; Notice of Withdrawal of Four Previously Announced Rulemaking Actions, Federal Register (Dec. 26, 2017), https://www.federalregister.gov/documents/2017/12/26/2017-27510/nondiscrimination-on-the-basis-of-disability-notice-of-withdrawal-of-four-previously-announced [https://perma.cc/VPQ7-6QUQ].

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5 Minutes in Tech Law – November 7th http://btlj.org/2019/11/5-minutes-in-tech-law-november-7th/ Thu, 07 Nov 2019 18:05:06 +0000 http://btlj.org/?p=6226 This week, we discuss reservations about TikTok, DNA collection of non-U.S. detainees, and alleged discrimination on Facebook ads. … Continue Reading

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This week, we discuss reservations about TikTok, DNA collection of non-U.S. detainees, and alleged discrimination on Facebook ads.

Hosts: Veronica Bognot ’21 and Joseph Kroon ’22

The post 5 Minutes in Tech Law – November 7th appeared first on Berkeley Technology Law Journal.

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Familial DNA Searches Using Public Databases and the Third-Party Doctrine http://btlj.org/2019/11/familial-dna-searches-using-public-databases-and-the-third-party-doctrine/ Thu, 07 Nov 2019 01:46:05 +0000 http://btlj.org/?p=6205 by Evan Enzer (J.D. 2021) This blog was inspired by an episode of Slate’s podcast “If Then” entitled … Continue Reading

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by Evan Enzer (J.D. 2021)

This blog was inspired by an episode of Slate’s podcast “If Then” entitled When Your DNA is Public Information. The podcast is available at https://slate.com/podcasts/if-then/2019/08/ancestry-and-genealogy-websites-crack-cold-cases-but-raise-privacy-concerns.

I. Introduction

Police departments have recently started using consumer DNA databases to conduct familial DNA searches, a practice that raises constitutional issues under the Fourth Amendment.[1] Prior to 2018, it seemed exceedingly likely that the Supreme Court would apply the third-party exception to a familial search,[2] but as will be discussed in Section III, the Supreme Court recently narrowed the application of this doctrine.[3] An added nuance is that familial DNA searches reveal information about people who did not volunteer their DNA.[4] Nila Bala, a criminal justice policy scholar, calls this a “fourth-party” consent issue.[5] The narrowing of the third-party doctrine and the issue of fourth-party consent brings the legality of familial searches into question.

II. Background

A familial DNA search uses genetic material collected from crime scenes to match and locate similar samples in a DNA database.[6] Investigators compare collected genetic information to material in the database to identify potential suspects by locating their family members.[7] Once a match is found, police officers then collect a DNA sample from the suspect and compare it to the DNA collected at the crime scene.[8]

Although familial DNA searches are not new,[9] the scope of their use has been expanded in recent years.[10] In Maryland v. King, the Supreme Court upheld a state statute that allowed law enforcement to collect DNA from individuals arrested for violent crimes.[11] Today, every state collects DNA samples from individuals convicted of felonies.[12] King did not address whether these government databases can be used for familial searches, but nearly every state allows the practice.[13] Police have now expanded the scope of their search by using public databases in addition to government databases.[14]

III. Third Party Doctrine

The third-party doctrine is an exception to the Fourth Amendment’s warrant requirement.[15] The doctrine allows the government to obtain information that a person voluntarily shared with a third party.[16] This doctrine was recently limited by the U.S. Supreme Court in Carpenter, when it found that the exception does not apply to cell phone location data because it reveals extensive personal information.[17] Carpenter acknowledged that  while there is a limit to the third-party doctrine, the doctrine is still good law.[18]

It is not clear whether the third-party doctrine applies to sharing genetic information with public DNA databases.[19] The DNA in question was voluntarily shared with the database, suggesting that the third-party doctrine applies. However, a DNA sample can potentially reveal more personal information than cell phone location data.[20] This suggests that the limit imposed by Carpenter may apply to searching a DNA database. Additionally, familial searches are not meant to reveal information about the individual who volunteered the DNA. Rather, they are designed to identify one of the volunteer’s family members.[21] Therefore, familial DNA searches fall outside the usual scope of the third-party doctrine.

Two lower state court cases suggest that using public databases for familial DNA searches is constitutional.[22] In the trial of William Talbott II, the parties agreed to treat familial searches akin to a traditional tip, and the judge did not rule on the issue.[23] In the trial of Jesse Bjerke, the court held that familial searches ”did not reveal private, personal information other than [the suspect’s] identity . . . .”[24] While these cases do not settle the constitutional question, they are early signs that courts will find that using a public database for a familial search does not violate the Fourth Amendment.

IV. Conclusion

Familial searches using public databases are becoming a high-profile topic, and it would not be surprising for the Supreme Court to address their constitutionality soon. Trial court have found familial DNA searches constitutional, but the law is still unsettled. While this suggests that the third-party doctrine applies to public DNA databases, Carpenter shows that the Court is willing to limit the doctrine. Therefore, the Court might limit the government’s ability to use public DNA databases for familial searches, and ambitious attorneys should consider challenging familial DNA searches under the Fourth Amendment.

 

[1] See Megan Molteni, The Key to Cracking Cold Cases Might Be Genealogy Sites, Wired (June 1, 2018, 7:00 AM), https://www.wired.com/story/police-will-crack-a-lot-more-cold-cases-with-dna [https://perma.cc/Y88H-EN5K]; Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 334–35 (2010).

[2] See When Your DNA is Public Information, Slate (Aug. 21, 2018), https://slate.com/podcasts/if-then/2019/08/ancestry-and-genealogy-websites-crack-cold-cases-but-raise-privacy-concerns [https://perma.cc/TLH8-3JGT].

[3] Carpenter v. United States, 138 S. Ct. 2206, 2216–17 (2018).

[4] See Lars Trautman & Nila Bala, Golden State Killer Case Ushers in New Era of Fourth Party Consent, The Brookings Institution (July 3, 2018), https://www.brookings.edu/blog/techtank/2018/07/03/golden-state-killer-case-ushers-in-new-era-of-fourth-party-consent [https://perma.cc/3XXZ-QWGK].

[5] Id.

[6] See Murphy, supra note 1, at 297–98.

[7] See id. at 298.

[8] See id.

[9] See id. at 292.

[10] Police have only started using public databases within the last few years. See Molenti, supra note 1.

[11] See 569 U.S. 435, 465–66 (2013).

[12] See Elizabeth E. Joh, Should Arrestee Databases Extend to Misdemeanors?, 8 Recent Advances in DNA & Gene Sequences 59, 61 (2014).

[13] 569 U.S. at 444; see Trautman & Bala, supra note 4.

[14] See Molenti, supra note 1.

[15] See Carpenter v. United States, 138 S. Ct. 2206, 2216 (2018).

[16] See id.

[17] See id. at 2216–17.

[18] See id. at 2216.

[19] See When Your DNA is Public Information, supra note 2.

[20] See Murphy, supra note 1, at 315–16; but see Maryland v. King, 569 U.S. 435, 445 (2013).

[21] See Trautman & Bala, supra note 4.

[22] See Rachel Weiner, Alexandria Rape Case Based on Database Search to go Forward, Washington Post (July 11, 2019, 3:49 PM), https://www.washingtonpost.com/local/public-safety/alexandria-rape-case-based-on-dna-database-search-to-go-forward/2019/07/11/782eaa8a-a417-11e9-bd56-eac6bb02d01d_story.html [https://perma.cc/R84S-EBLY].

[23] See Megan Molenti,  A Murder Trial Will Allow DNA Evidence From a Geneaology Site, Wired (June 11, 2019, 3:31 PM), https://www.wired.com/story/a-murder-trial-will-allow-dna-evidence-from-a-genealogy-site/ [https://perma.cc/N67V-BBW4].

[24] See Weiner, supra note 22.

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5 Minutes in Tech Law – October 31st http://btlj.org/2019/11/5-minutes-in-tech-law-october-31st/ Sat, 02 Nov 2019 00:45:13 +0000 http://btlj.org/?p=6196 This week, we discuss tech and constitutional rights at the U.S. border, a JEDI at the Department of … Continue Reading

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This week, we discuss tech and constitutional rights at the U.S. border, a JEDI at the Department of Defense, and Facebook’s recent interactions with both the judiciary and the legislature.

Hosts: Andy Zachrich ’22 and Allison Talker ’22

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5 Minutes in Tech Law – October 25th http://btlj.org/2019/11/5-minutes-in-tech-law-october-25th/ Sat, 02 Nov 2019 00:44:03 +0000 http://btlj.org/?p=6194 For the week of October 25th, we discussed India’s future plans for social media platforms, Section 230 of … Continue Reading

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For the week of October 25th, we discussed India’s future plans for social media platforms, Section 230 of the Communications Decency Act, and cybersecurity for law firms.

Hosts: Yexi Xu LLM ’20 and Maximin Orsero LLM ’20

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5 Minutes in Tech Law – October 10th http://btlj.org/2019/10/5-minutes-in-tech-law-october-10th/ Fri, 11 Oct 2019 19:27:45 +0000 http://btlj.org/?p=6118 This week we discuss net neutrality, deepfakes, and the UK reviving an iPhone cookies case from earlier this … Continue Reading

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This week we discuss net neutrality, deepfakes, and the UK reviving an iPhone cookies case from earlier this decade.

Hosts: Barbora Studihradová LLM ’20 and Veronica Bognot ’21

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