Law, Technology & Arts Blog

Wireless Trumps Television: FCC Incentive Auctions of the TV Spectrum

Posted in Government and Regulation, Technology by LTA-Editor on April 27, 2015

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By Sam Hampton

Responding to novel technological needs and market forces, the FCC has developed a program of incentive auctions. The agency is working to allocate more spectrum to wireless broadband services. The 2010 National Broadband Plan introduced the incentive auction as a voluntary, market-driven system to efficiently allocate the spectrum in a new technological climate; the plan was given congressional authorization in 2012. The FCC issued a notice of proposed rulemaking in September 2012, detailing proposed procedures for these incentive auctions; rules were adopted in May 2014.

The first auction under the new rule regime was Auction 97, which concluded in late January 2015. The auctioned licenses were for the Advanced Wireless Services (AWS-3) spectrum, covering the 1700MHz and 2100MHz blocks. Auction 97 set revenue records; gross bids for the auction totaled nearly $44.9 billion on over 1600 licenses. Furthermore, just 31 bidders purchased these licenses, principally wireless carriers such as AT&T, which alone bid nearly $18.2 billion. The resulting revenue was more than double the previous auction of the 700MHz auction, which took place in 2008. (more…)

NFL Cheerleaders: restricted heavily and paid minimally

Posted in Entertainment, Litigation by LTA-Editor on April 25, 2015

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By Talia Loucks

Being a cheerleader for a winning football team like the Seattle Seahawks or the Denver Broncos sounds like a lot of fun: exciting games, screaming fans, and trips to the Super Bowl. But for the teams that are not winning any titles, the cheerleaders do not have much to cheer about. On top of cheering for a team with a losing record, many of these cheerleaders are barely even compensated for their time.

Minimum compensation may seem reasonable to the average fan: these cheerleaders get to be on the field at every game. Many want this position, and many are turned down. That should be enough for these women, right? Well, taking a closer look at the requirements shows that the NFL cheerleaders are restricted in a number of ways: the gaining of a couple pounds can result in suspension, many of the squads must pay for their own uniforms, and some are even encouraged to have plastic surgery. Additionally, cheerleaders must rehearse for long hours and participate in charity events and publicity events. All of this, plus any travel time for playoffs can make having a regular 9-5 job very difficult. (more…)

Invasion of Wearable Technology in the Workplace

Posted in Commerce, Government and Regulation, Privacy, Technology by LTA-Editor on April 23, 2015

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By Cheryl Lee

Wearable Technology is one of the hottest new technology areas today. Apple Watch, Google Glass, as well as health monitoring devices like FitBit, may be some of the most well known examples of wearable technology. However, there are many others in development. Future wearable technology even includes jewelry such as smart earrings that can monitor one’s heart rate as well as energy burned and   allows the user to sync wirelessly with a smartphone or a PC. Morgan Stanley estimated the potential market size for wearable technology at $1.6 trillion and noted that wearable devices will become the fastest consumer technology devices. IDC Worldwide Wearable Computing Device 2014-2018 Forecast and Analysis predicts that by 2018, wearable technology will account for 10% of the global electronics market. There is even a Wearable Technologies Conference in Milan, Italy, the fashion capital of the world, with a focus on bringing together the world of fashion and the world of technology.

Wearable technology refers to electronic technologies or computers that are incorporated into items of clothing and accessories, which can be worn on the body or attached to clothes. These wearable technologies, like Google Glass and Apple Watch, perform many of the same computing tasks as mobile phones and laptop computers. As the invasion of the latest wearable technologies continues to pervade our everyday lives and workplace, it creates issues for the workplace and the employers. Someone wearing Google Glass or an Apple Watch can take photos and videos of documents, which might potentially infringe upon someone else’s proprietary rights. These confidential documents can be uploaded directly to a personal account in the Cloud and then deleted from the wearable device. The risk of inadvertent disclosure of an employer’s trade secret is significant; it could result in millions of dollars in licensing revenue losses or loss of a competitive advantage. Despite such risks, the employer’s policy to regulate the usage and restrictions in the workplace may be quite challenging. (more…)

“Dislike” – Service of Process Via Facebook Messenger

Posted in University of Washington School of Law by LTA-Editor on April 20, 2015

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By Christian Kaiser

Suppose you are sitting across from a hot date at a trendy restaurant downtown. Like all of the dates you get from Tinder, this date starts off great. It is intellectually stimulating. You talk about your interests. You might also talk about the Seahawks, or why Nelson Cruz is going to hit 40 homeruns this year, etc. Then you slip in that you are a lawyer, to which your date replies, “Tell me something ‘lawyerly.’” Since you are a Securities lawyer for a big Seattle law firm, you blurt out the first thing that pops into your head: “Have you heard about the rule against perpetuities?” As you begin to explain this fascinating legal issue, your date’s eyes predictably glaze over, and she starts to check her iPhone. You do the same and check your Facebook. You have a new message, which reads: “You have been served.” The message specifies a date and time when you must appear in court. The words “general partnerships are fine” and “you guys won’t ever fight” begin echoing through your head as you remember those East Coast clients from a few years back. You look up at your date and tell her you have to leave. As you exit the restaurant, you call your friend in your firm’s litigation department and ask whether Facebook Messenger meets the constitutional standards of due process for service of process. To your surprise, he answers “yes.”

This March, in FTC v. PCCare247, Inc., the Southern District of New York ruled that serving notice over Facebook was constitutionally adequate for service of process on international defendants. (https://www.ftc.gov/enforcement/cases-proceedings/122-3243-x120057/pccare247-inc-et-al). In this case, the defendants were located in India, and more traditional means of service had failed. Under FRCP 4(f)(3), a judge can order means of process, so long as it is “(1) not prohibited by international agreement; and (2) comports with constitutional notions of due process.” International conventions do not prohibit service of process via Facebook and, as the S.D.N.Y. stated, the circumstances in which the Facebook accounts would be served ensured service was constitutionally proper. In PCCare247, Inc., service was sent in two ways: via email and through Facebook Messenger. The court found that the defendants’ Facebook accounts were legitimate because they listed the defendant company as the defendants’ current employer, and a number of the defendants were friends with each other on Facebook. This, along with the similarities between Facebook Messenger and email, convinced the court that the standards of due process were met.  (more…)

Guided into the Wilderness: FDA’s Guidance on Mobile Medical Apps Leaves Many Unanswered Questions

Posted in University of Washington School of Law by LTA-Editor on April 17, 2015

Screen Shot 2015-04-17 at 12.12.13 PMBy Miriam Swedlow

Let’s face it; the FDA has a tough job. It must navigate the thin line between balancing public safety and facilitating business innovation. It is perpetually in the zone of “damned if they do and damned if they don’t.” This scenario is currently playing out in the relatively new concept of mHealth, a term used to describe medical services delivered over a mobile device (“m” is for mobile).

The past decade has seen an explosion in health and medical-related apps available to medical professionals and consumers. Apps provide access to medical textbooks or allow users to track health data such as calories and blood pressure. Apps can also directly connect to medical devices such as blood pressure cuffs or cardiac leads, or allow doctors to remotely monitor a patient in real time. Given the broad range of applications, the FDA has struggled to determine when an app becomes a medical device subject to regulation under the Federal Food, Drug, and Cosmetic Act (FD&C Act). On February 9, 2015 the FDA published its updated Guidance for Industry and Food and Drug Administration Staff on Mobile Medical Applications. Despite providing manufacturers some clarity, the Guidance falls short of creating a clear indication of what will or will not fall within FDA oversight. (more…)

Washington Journal of Law, Technology & Arts Publishes Winter 2015 Issue

Posted in University of Washington School of Law by LTA-Editor on April 16, 2015

The Washington Journal of Law, Technology & Arts (LTA Journal) has published its Winter 2015 Issue. The LTA Journal publishes concise legal analysis aimed at practicing attorneys on a quarterly basis.

Patrick Holvey, a 2015 J.D. candidate at NYU School of Law and registered Patent Agent, wrote the first article, “The Anti-Clone Wars: Towards a Reinvigoration of the Doctrine of Patent Misuse and the Per Se Illegality of Anti-Cloning Provisions.” The article argues that anti-cloning provisions improperly broaden the patent grant, constrain competition in unpatented subject matter, harm competition, and should be considered by the courts to constitute per se patent misuse or, in the alternative, patent misuse under a rule of reason analysis.

Submissions Editor Christopher Ferrell wrote the second article, “Standing Room Only: MadStad Engineering and the Potential to Challenge the Constitutionality of the America Invents Act’s ‘First-Inventor-to-File’ Patenting System.” The article explores the ramifications of the MadStad Engineering v. USPTO ruling and examines the constitutionality of the first-inventor-to-file patent system.

In the issue’s third article, “The Code-Based Interpretation of Authorization: An Incomplete Picture,” Managing Articles Editor Nicholas Ulrich examines the two leading interpretive theories on the issue of authorization under the Stored Communications Act: the code-based theory and the trespass theory. The article argues that the appropriate approach to authorization looks to both theories.

Associate Editor-in-Chief of Operations Jeffrey Echert contributed the fourth article, “Radio Revolution: The Local Community Radio Act’s Expansion of Possibilities for Low-Power FM Stations.” The article explores the struggle to establish low-power FM radio stations (LPFMs) and argues that the Local Community Radio Act is a step in the right direction for LPFMs, but not without obstacles.

See the full issue here.

Visit the Washington Journal of Law, Technology & Arts Website: http://www.law.washington.edu/wjlta/

New Executive Order expands foreign cyber-attack retaliation options

Posted in University of Washington School of Law by LTA-Editor on April 10, 2015

Screen Shot 2015-04-10 at 2.38.07 PMBy Denise Kim

On April 1, 2015, President Obama signed a new executive order designed to block the property of certain persons engaging in significant malicious cyber-enabled activities. Over the past several years, the number of malicious cyber-attacks has continued to increase and experts predict that major cyber-attacks will continue to increase over the next decade.

In support of the new executive order, President Obama declared a national emergency to deal with this threat after finding that the “increasing prevalence and severity of malicious cyber-enabled activities originating from, or directed by persons located, in whole or in substantial part, outside the United States constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.” (more…)

Alleged Corruption Casts Doubt on Silk Road Trial

Posted in University of Washington School of Law by LTA-Editor on April 8, 2015

Screen Shot 2015-04-08 at 12.02.43 PMBy Juliya Ziskina

The Department of Justice has charged two of the law enforcement agents involved in the complex multi-agency investigation into the Silk Road for stealing hundreds of thousands of dollars (at the very least) in bitcoins.

When charges were announced against Ross Ulbricht in October 2013 and the website was shut down, the authorities called Silk Road “the most sophisticated and extensive criminal marketplace on the internet.” Several thousand drug dealers and other vendors used the site from January 2011 through its closing to sell hundreds of kilograms of illegal drugs and other illicit goods to more than 100,000 buyers, according to charges filed in Manhattan. The site generated over $213 million in revenue during that period, and Mr. Ulbricht, operating under the pseudonym “Dread Pirate Roberts,” took millions of dollars in commissions, federal prosecutors in Manhattan charged. (We previously covered takeaways from the trial here.) (more…)

RadioShack tries to sell customer data, in direct violation of their corporate policies

Posted in Government and Regulation, Privacy by LTA-Editor on April 6, 2015

Screen Shot 2015-04-06 at 1.39.56 PMBy Robin Hammond

RadioShack declared bankruptcy and the internet erupted. Some people who saw this as inevitable argued that their products were obsolete—for example, every single product advertised in a 1991 RadioShack flyer can be replicated by a smartphone. Some argued that their business model was unviable, and pointed to their managerial and labor practices. Others have decried the joyful nature with which the internet is reacting to the death of a 94-year-old business. One only needs to peruse the catalogues from 1939 through 2011 to see how the business has changed. As part of the bankruptcy, RadioShack is attempting to auction off customer data from 117 million customers, including “consumer names, phone numbers, mailing addresses, e-mail addresses, and, where allowed, activity data.”

RadioShack is incorporated in Delaware and has its headquarters in Texas. The Texas Attorney General filed a limited objection to the sale of Personal Identifying Information (PII), and outlined RadioShack’s stated privacy policies. RadioShack has separate privacy policies for their web-platform and in-store locations. All versions of the privacy policy contain an unequivocal provision that consumer PII will not be sold. “We will not sell or rent your personally identifiable information to anyone at any time.” The online privacy policy gives further assurances that “[i]nformation about you specifically will not be used for any purpose other than to carry out the services you requested from RadioShack and its affiliates. All of our affiliates have agreed to maintain the security and confidentiality of the information we provide to them. . . .” and “[w]e will not use any personal information beyond what is necessary to assist us in delivering to you the services you have requested.” Furthermore, in-store signage stated similar information, including the statement “We Respect Your Privacy. We Do Not Sell Our Mailing List. The information you give us is treated with discretion and respect. We pride ourselves on not selling our private mailing list.” (more…)

Blackphone 2 − The Panacea for Smartphone Confidentiality Concerns?

Posted in University of Washington School of Law by LTA-Editor on March 25, 2015

Screen Shot 2015-03-25 at 11.17.05 AMBy Yayi Ding

The use of smartphones has proliferated in the past couple of years. Not surprisingly, many of the users of such technology are lawyers! However, even given their immense benefits, the widespread use of smartphones in the practice of law can raise ethical risks for lawyers, particularly when confidential client information is on the line (no pun intended). The newest “Blackphone 2,” a collaboration project between phone-maker Blackphone and security communications company Silent Circle, just might provide the answer that lawyers have been searching for.

As background, Rule 1.6 of the Model Rules of Professional Conduct requires that lawyers hold private client information confidential. It states, in part: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” Rule 1.6 has been interpreted as having a negligence standard. In other words, as long as a lawyer takes reasonable steps to insure client confidentiality, he/she is in compliance with Rule 1.6. Conversely, a failure to take such reasonable steps may result in liability to the lawyer. (more…)

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