Mobile Privacy

Anglo-American law has long regarded certain places, things, and contexts, such as the home, as particularly deserving of protection against unreasonable intrusion by the sovereign.  Notably, the Fourth Amendment of the United States Constitution offers robust privacy protection against government searches:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In the dual cases of Riley v. California and United States v. Wurie, the United States Supreme Court considerably curbed governmental rights to abridge the privacy of the contents of mobile phones.  In both cases, police arrested suspects allegedly engaged in criminal activities, then seized their mobile phones.  Rather than tagging and bagging the phones, the police searched their digital contents, in both cases revealing information valuable to prosecute the defendants.  However, the Supremes found that these mobile phone searches violated the defendants' privacy rights.

The Court specifically elevates the privacy rights of owners of mobile phones (and, probably, other mobile devices).  Here is how the Court explained the expectation of privacy surrounding mobile phones:

Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house:  A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

Even in isolation, Riley v. California signals a marked strengthening of privacy rights for individuals in a particularly crucial technological context where people spend an increasing part of their waking lives.  Add in the recent judicial decisions in the European Court of Justice (Google Inc. v. Mario Costeja González) and the Supreme Court of Canada (Regina v. Spencer (2014 SCC 43)), and the tide appears to be turning away from the data panopticon many dread and towards the enhanced digital privacy they crave.

EPA BACT Up

Ever since the United States Supreme Court decided Massachusetts v. Environmental Protection Agency ("EPA"), the EPA has been crafting possible strategies for regulating emission of greenhouse gases as pollutants.  On June 23, 2014, the Supremes released its decision in Utility Air Regulatory Group v. EPA et al., in which it acquiesced to an indirect, but potentially highly-effective, regulatory scheme.  Specifically, the Court held that the Clean Air Act (42 U.S.C. §101) grants EPA authority "to require sources that would need permits based on their emission of conventional pollutants to comply with BACT ["best available control technology"] for greenhouse gases."  In a minor setback for the agency, the Court refused to allow the EPA to shoehorn greenhouse gases and some of their specific sources into existing statutory categories the Court interpreted as incongruous.  Nevertheless, this decision is a major victory for President Obama's administrative agency-based strategy to regulate the reduction of greenhouse gas emissions.

Alice In Patentland

The United States Supreme Court handed down its decision in Alice Corporation v. CLS Bank International et al. today, June 19, 2014.  Alice Corporation ("Alice") owns United States Patent Nos. 5,970,479, 6,912,510, 7,149,720, and 7,725,375, which the Court describes as

disclos[ing] a scheme for mitigating “settlement risk,” i.e.,the risk that only one party to an agreed-upon financial exchange will satisfy its obligation. In particular, the patent claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary. The patents in suit claim (1) a method for exchangingfinancial obligations, (2) a computer system configured to carry out the method for exchanging obligations, and (3) a computer-readable medium containing program code for performing the method of exchanging obligations.

CLS Bank International et al. ("CLS Bank"),

who operate a global network that facilitates currency transactions, filed suit against petitioner, arguing that the patent claims at issue are invalid, unenforceable, or not infringed. Petitioner counterclaimed, alleging infringement.  After Bilski v. Kappos, 561 U.S. 593, was decided, the District Court held that all of the claims were ineligible for patent protection under 35 U.S.C. §101 because they are directed to an abstract idea. The en banc Federal Circuit affirmed.

The Court found that "the claims at issue are directed to the abstract idea of intermediated settlement."  It further found "that the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention."  The Court also considered the patent-eligibility of "system" claims, deciding that

the system claims are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer;  the system claims recite a handful of generic computer components configured to implement the same idea.

Claims involving computer-readable media were also held unpatentable.

A concurrence by Justice Sotomayor, joined by Justices Ginsburg and Breyer, suggested that claims merely to methods of doing business do not qualify as patentable under the "process" category of 35 U.S.C. §101, and cited the proposition that "processes for organizing human activity" are similarly unpatentable.

The Alice Corporation v. CLS Bank International et al. decision marks the latest in a remarkable series of patent law cases considered by the Supreme Court.  One result is an apparent narrowing of patent subject matter especially relevant to inventions involving algorithms, computer implementation, naturally-occurring chemicals, and medical diagnostic methods.  Determining the precise boundaries of patentability remains devilishly challenging, but the recent trend in Supreme Court's patent jurisprudence appears to head towards a relatively more restrictive view of patent-eligiblity. 
 

A Right To Anonymity

The Supreme Court of Canada has clarified that Canadians possess robust privacy rights on the internet.  In Regina v. Spencer (2014 SCC 43), the Court explored some of the contours of privacy rights in the context of online filesharing.  Justice Cromwell, writing for a unanimous Court, presented the lamentable facts of the case:

The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file sharing program.  They then obtained from the Internet Service Provider (ISP), without prior judicial authorization, the subscriber information associated with that IP address.  The request was purportedly made pursuant to s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA). This led them to the accused.  He had downloaded child pornography into a folder that was accessible to other Internet users using the same file sharing program.  He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available.  The Court of Appeal upheld the conviction, however set aside the acquittal on the making available charge and ordered a new trial.

The Court upheld both Spencer's conviction for possession of child pornography and the Court of Appeal's order of a new trial on making these sordid materials available to others.
However, in arriving at its decision, the Court discussed the existence of an "anonymity right" that could, in some circumstances, protect even heinous behavior from the prying eyes of state actors such as the police:

Informational privacy is often equated with secrecy or confidentiality, and also includes the related but wider notion of control over, access to and use of information.  However, particularly important in the context of Internet usage is the understanding of privacy as anonymity.  The identity of a person linked to their use of the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the person’s name, address and telephone number found in the subscriber information.  Subscriber information, by tending to link particular kinds of information to identifiable individuals may implicate privacy interests relating to an individual’s identity as the source, possessor or user of that information.  Some degree of anonymity is a feature of much Internet activity and depending on the totality of the circumstances, anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure.

According to the reasoning the Court employed in Regina v. Spencer, Spencer's anonymity rights, though important, were outweighed by more important concerns of justice:

The police, however, were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose.  The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute.  While the impact of the Charter‑infringing conduct on the Charter protected interests of the accused weighs in favour of excluding the evidence, the offences here are serious.  Society has a strong interest in the adjudication of the case and also in ensuring the justice system remains above reproach in its treatment of those charged with these serious offences.  Balancing the three factors, the exclusion of the evidence rather than its admission would bring the administration of justice into disrepute.  The admission of the evidence is therefore upheld.

Nevertheless, the Court suggests that there are other circumstances when Canadian anonymity rights may shield unlawful - even heinous - behavior from police search.

Elementary Copyright

In The Sign of Four, Sherlock Holmes declares "I am the last and highest court of appeal in detection."  For at least today, June 16, 2014, Judge Richard Posner (United States Court of Appeals for the Seventh Circuit) is the the last and highest court of appeal in copyright term for Sherlock Holmes.  Judge Posner, writing for a unanimous panel in Klinger v. Conan Doyle Estate, set most of the stories Sir Arthur Conan Doyle wrote about his famous detective free from further encumbrance by copyright.

In this case, Conan Doyle estate argued that

copyright on a “complex” character in a story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain...[T]he fact that early stories in which Holmes or Watson appeared are already in the public domain does not permit their less than fully “complexified” characters in the early stories to be copied even though the stories themselves are in the public domain.

Posner strongly disagreed, even going to far as to suggest that "the estate's appeal borders on the quixotic."  The result is that most of Sherlock Holmes' stories now sit firmly in the public domain, alongside Cervantes Saavedra's adjectivally-cited hero, Don Quixote, awaiting republication, derivation, and all manner of creative uses.  Meanwhile, the Conan Doyle estate is left with the realization that it has been tilting at literary windmills.

Tesla Electrifies Open Source Patenting

With a wry nod to Kansas City DJ Jeffrey Ray Roberts, Tesla CEO Elon Musk announced on June 12, 2014, that "All Our Patent Are Belong To You".  He detailed what he meant by this in an iconoclastic blog post on the Tesla corporate website.  Here is an excerpt:

Yesterday, there was a wall of Tesla patents in the lobby of our Palo Alto headquarters. That is no longer the case. They have been removed, in the spirit of the open source movement, for the advancement of electric vehicle technology...Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology...We believe that applying the open source philosophy to our patents will strengthen rather than diminish Tesla’s position in this regard.

By pledging to "open source" the Tesla patent portfolio, Musk may have done more to spur the open source patenting than all previous efforts combined, including the BioBrick Public Agreement.  Will his gesture succeed?  To reverse Marshall McLuhan, Elon Musk's patent message may be the open source medium.

Ginned Up Juice

Two federal statutes directly regulate food labeling in the United States.  In essence, the Food, Drug and Cosmetic Act ("FCDA") prohibits misbranding of food, which can include false or misleading ingredient labeling (21 U. S. C. §§331 and 343), while the Lanham Act creates a private cause of action for unfair competition, such as false advertising (15 U. S. C. §1125).  On June 12, 2014, the Supreme Court unanimously (sans Justice Breyer) decided POM Wonderful LLC v. Coca-Cola Company, a case about whether or not the labeling provisions of the FCDA precluded PM Wonderful from suing Coca-Coca for false advertising under the Lanham Act.

The facts of the case are summarized in the decision's syllabus:

Petitioner POM Wonderful LLC, which produces, markets, and sells, inter alia, a pomegranate-blueberry juice blend, filed a Lanham Act suit against respondent Coca-Cola Company, alleging that the name, label, marketing, and advertising of one of Coca-Cola’s juice blends mislead consumers into believing the product consists predominantly of pomegranate and blueberry juice when it in fact consists predominantly of less expensive apple and grape juices, and that the ensuing confusion causes POM to lose sales.

Justice Kennedy, who wrote for the Supreme Court, described specific dispute over ingredient labeling as follows:

Coca-Cola’s Minute Maid Division makes a juice blend sold with a label that, in describing the contents, displays the words “pomegranate blueberry” with far more prominence than other words on the label that show the juice to be a blend of five juices. In truth, the Coca-Cola product contains but 0.3% pomegranate juice and 0.2% blueberry juice.

Both the District Court for the Central District of California and the Ninth Circuit Court of Appeals sided with Coca-Cola, precluding POM Wonderful from suing Coca-Cola for unfair competition.  The Supremes decisively disagreed:

The ruling that POM’s Lanham Act cause of action is precluded by the FDCA was incorrect. There is no statutory text or established interpretive principle to support the contention that the FDCA precludes Lanham Act suits like the one brought by POM in this case. Nothing in the text, history, or structure of the FDCA or the Lanham Act shows the congressional purpose or design to forbid these suits. Quite to the contrary, the FDCA and the Lanham Act complement each other in the federal regulation of misleading food and beverage labels. Competitors, in their own interest, may bring Lanham Act claims like POM’s that challenge food and beverage labels that are regulated by the FDCA.

The Supremes have now clarified that food labeling can be policed by two separate actors at the federal level.  Naturally, the Food and Drug Administration may continue to play a dominant role in enforcing labeling requirements of the FDCA.  However, private firms may also enforce sound labeling practices by bringing suits in federal courts to combat inaccurate or misleading food labeling by competitors.

There is considerable irony in POM Wonderful's victory in the Supreme Court.  The company is currently embroiled in litigation with the Federal Trade Commission over whether or not POM Wonderful impermissibly exaggerated the health benefits of its products.

Aussies Question IP

The government of Australia is currently conducting a formal review of competition policy in the Lucky Country.   As part of its review, Australia commissioned a Competition Policy Review Panel to prepare an "Issues Paper" entitled "Competition Policy Review" ("Review").  Although the Review only briefly addresses intellectual property policy, the two paragraphs it does include are worth considering:

2.18  The underlying rationale for governments to grant intellectual property (IP) rights (such as patents, trademarks and copyrights) is that creations and ideas, once known, may otherwise be copied at little cost, leading to under-investment in intellectual goods and services.  However, providing too much protection for IP can deter competition and limit choice for consumers.

Questions:  Are there restrictions arising from IP laws that have an unduly adverse impact on competition? Can the objectives of these IP laws be achieved in a manner more conducive to competition?

Even before the Statute of Monopolies became English law in 1624, officially-sanctioned intellectual property protections, such as patent and copyright, have been in confusing tension with laws intended to promote competition.  It is ambitious for Australia to be asking basic questions about how to harmonize intellectual property laws with those intended to promote robust competition.  Let's hope the Aussies can battle through to some fair dinkum answers.

Our Brains, Ourselves

On April 2, 2014, United States President Barack Obama announced the Brain Research through Advancing Innovative Neurotechnologies ("BRAIN") Initiative, whose mission is to “accelerate the development and application of new technologies that will enable researchers to produce dynamic pictures of the brain that show how individual brain cells and complex neural circuits interact at the speed of thought.”  The U.S. National Institutes of Health ("NIH") will help lead this ambitious effort.  To this end, its (BRAIN) Working Group released a report on June 5, 2014, entitled BRAIN 2025: A Scientific Vision.  This report begins with a bold assertion unlikely to attract universal agreement among neurobiologists and other scientists who study the complex relationships between brain, cognition, and behavior:

The human brain is the source of our thoughts, emotions, perceptions, actions, and memories;  it confers on us the abilities that make us human, while simultaneously making each of us unique. Over recent years, neuroscience has advanced to the level that we can envision a comprehensive understanding of the brain in action, spanning molecules, cells, circuits, systems, and behavior.

The report ends in a similarly ambitious tone:

The BRAIN Initiative is a challenge and an opportunity to solve a central mystery—how organized circuits of cells interact dynamically to produce behavior and cognition, the essence of our mental lives. The answers to that mystery will not come easily. But until we start, the progress we desire will always be distant. The time to start is now.

Hoping to replicate the successes of the Human Genome Project, President Obama has thrown down the gauntlet to neurobiologists.  Research into the brain is likely to yield many benefits to society.  However, just as complete knowledge of the nucleotide sequence of our genomes is unlikely to offer complete understanding of our genetics, neither is comprehensive mapping of our neural circuits likely to reveal the "essence of our mental lives."  A better scientific description of the brain will certainly shed valuable light on behavior.  However, understanding behavior is unlikely to be as easy as characterizing neurons and neural circuits.   

Wise Synthetic Biology

The University of Kansas ran a story on June 9, 2014, describing research by Linda Kahl and me on the regulation of synthetic biology.

Two New Biolaw Journals

The field of biolaw is taking wing in many directions.  A signal achievement has been the recognition of an official Biolaw Section at the American Association of Law Schools.  However, biolaw scholarship has lacked a home, instead being scattered throughout numerous unrelated publications.  That may begin to change with the creation of two new academic journals dedicated to biolaw.  The Journal of Law and the Biosciences describes its mission as follows:

The Journal of Law and the Biosciences (JLB) is the first fully Open Access peer-reviewed legal journal focused on the advances at the intersection of law and the biosciences. A co-venture between Duke University, Harvard University Law School, and Stanford University, and published by Oxford University Press, this open access, online, and interdisciplinary academic journal publishes cutting-edge scholarship in this important new field. The Journal contains original and response articles, essays, and commentaries on a wide range of topics, including bioethics, neuroethics, genetics, reproductive technologies, stem cells, enhancement, patent law, and food and drug regulation.

Across the Pond, the BioLaw Journal/Rivista di BioDiritto has announced a similar focus:

BioLaw Journal – Rivista di BioDiritto is a peer reviewed, online law journal focusing on the relationships between law and life sciences under a comparative perspective. According to its interdisciplinary nature, the Journal hosts contributions in the fields of law, life sciences and bioethics.

The Journal presents articles, commentaries and book reviews which provide an innovative and original source of reference for academics, lawyers, legal and medical practitioners, law students, and anyone interested in national, European and international biolaw.

These two new journals are welcome additions to the burgeoning field of biolaw.