Privacy Shield No More

Under EU privacy law, personal data can only be transferred to countries with adequate data protection. When the General Data Protection Regulation (GDPR) went into effect, adequate countries included only Andorra, Argentina, Canada (for commercial organizations), the Faroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland, Uruguay, and Japan. For those in countries without adequacy decisions, recipients of personal information must ensure they are sufficiently protecting data in other ways. The U.S. is not deemed adequate. However, organizations were able to confront this issue by self-certifying under the EU-U.S. and Swiss-U.S. Privacy Shield frameworks designed by the European Commission, Swiss Administration, and the U.S. Department of Commerce. If an organization self-certified under the Privacy Shield and remained in compliance with its data protection requirements, then that organization would be deemed adequate to receive personal data from the EU and Switzerland. More than 5,000 U.S. organizations rely on the Privacy Shield to legitimize their international data transfers. 

Artificial Intelligence and Inventions

Part of the question of how the proliferation of artificial intelligence will impact intellectual property has been answered in a new ruling by the US Patent and Trademark Office (the “USPTO”).

Many interested in the effects of artificial intelligence on society, law, and the economy have asked whether artificial intelligence could be considered an “inventor” under patent law and who—or what—is entitled to protection, legal personality, and legal rights. Deeper under the surface, this question also requires an analysis of what it means to be a “human” and how our current notions are challenged by advancing technologies and scientific discoveries about the capabilities of non-humans. 

The USPTO has responded to an application for two patents with an artificial intelligence system, DABUS, listed as the inventor. DABUS designed an invention for shape-shifting food containers that are more robot-friendly and an emergency flashlight with an exigent rhythm. DABUS’s creator, Stephen Thaler, argued that he did not help DABUS design these inventions, so it would be technically inaccurate to claim that he, and not DABUS, is the inventor. Significantly, the application was not requesting that DABUS own the patent, just that it be recognized for its contribution as the inventor. 

Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls and the Fight for Privacy on the Internet

by Leeja Miller and Amanda McAllister

 Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls is part memoir, part call to arms by Carrie Goldberg, a victim’s rights lawyer whose Brooklyn law firm, C.A. Goldberg, has seen staggering growth since its founding in 2014. This is due largely to Goldberg’s larger-than-life personality and her fierce and compassionate work representing victims of cybercrime, a notoriously difficult area of law for victims to find any sort of recourse. Nobody’s Victim recounts some of the most grisly cases Goldberg has faced during her career, including her own, as a means to highlight the egregious shortcomings of our legal system’s ability to provide justice to victims of cybercrime. 

Through Goldberg’s tales of hard-fought battles, many of which were lost, the book highlights the feeling of empowerment her clients can find in legal representation, as well as the statutory, technological, and societal obstacles standing in the way of meaningful remedies. Those obstacles include the notorious Communications Decency Act § 230 (“CDA 230”), tort law’s inability to accommodate rapidly-changing tech and the abuse that comes with it, and schools, workplaces, and law enforcement that are woefully undertrained to deal with cyber and sexual abuse. Without well-trained institutions, adequate resources, and well-written laws to hold criminals accountable, victims are left to fend for themselves in a civil law landscape that shields tech companies from liability and provides little recourse against judgment-proof defendants. Despite the bleak picture she paints, Goldberg encourages us all to join the fight, and this book is a testament to the uphill battle yet to unfold.

Deepfakes, Privacy, and Deception

by Amanda McAllister and Navin Ramalingam

A “deepfake” is an ultrarealistic fake video made with artificial intelligence software. The term is a portmanteau of the concept of machine “deep learning” and the word “fake.” Essentially, it is the end-product of a computer program “learning” the map of the target subject’s face, finding common ground between two faces, and stitching one face over the other in a video editing process. 

Manipulating video is not necessarily a recent invention. Hollywood has been doing it many years, such as when film effects were used to make Joseph Gordon-Levitt look like a young Bruce Willis in the film Looper, or the digital recreation of a young Carrie Fisher on actress Ingvild Deila for the Princess Leia cameo in Rogue One. Face-morphing features are also an essential part of multimedia messaging applications like Snapchat.

While the technology may not be inherently illegal or unethical, some manifestations of deepfakes do have the potential to be illegal, to create liability, to spread misinformation, or to violate the privacy of subjects of deepfakes.

For instance, people have been using facial recognition apps and deepfake technology to superimpose faces of well-known celebrities and ordinary people over that of actors in pornographic films or over nude photos to create nonconsensual pornography. The past year has seen several deepfake consumer apps being released permitting its users to create their own deepfakes, including one disturbing app that provided its users the opportunity to create nonconsensual pornography by “undress[ing] photos of women” and making them look “realistically nude.” Fortunately, this app has since been taken down.

Protecting Artificially Intelligent Technologies

By Shantal Pai and Amanda McAllister

Artificial intelligence (AI) is becoming increasingly integrated into modern life. From self-driving cars to smart toothbrushes, AI can and will change the way we interact with the world around us.

The proliferation of AI has some inventors and designers considering how they can protect AI-related technologies through intellectual property rights. There also has been much discussion around how to build, design, and protect AI-related technologies without reinforcing biases and while still ensuring due process rights. 

As AI technology evolves, it has been less and less clear how intellectual property protections will apply to these technologies. For instance, most AI-related technologies are ineligible for patents. Courts refuse patents for “abstract ideas,” including software, and consequently, critical components of AI technologies, including data compilations and source code, may be ineligible for patent protection. 

Consequently, many have been looking to trade secrets as a potentially viable way of protecting rights in AI-related technologies. Trade secrets law protects economically valuable secrets when reasonable measures have been taken to protect their secrecy. In order to protect an AI-related technology as a trade secret, an AI developer must be able to do two things: (1) articulate what the trade secret is, and (2) take steps to protect the secrecy of the technology. 

Digital Art and Borderless Experiences

During a recent trip to Japan, I visited the Mori Building Digital Art Museum to see the teamLab Borderless gallery. teamLab is a Japanese digital art collective with temporary and permanent exhibitions in select cities throughout the world. 

The museum is unlike any art museum I’ve ever visited. It is very dark, calming electronic music fills its maze of hallways, and the art is truly borderless: it moves across the walls, ceilings, floors, and the visitors themselves. This constant immersion into the art was a truly unique experience. For instance, while you can view Van Gogh’s Sunflowers series at the Van Gogh Museum in Amsterdam, at Borderless, you are the canvas upon which digital sunflowers take root and grow.

There are multiple rooms with different interactive activities, including a space-bathed trampoline, a floating nest for visitors to view the art, and rooms of raining crystals, floating lanterns, and giant colorful balloons. Unlike most museums, visitors are encouraged to touch and interact with the artwork, and visitors can take photographs of the art and themselves in or as part of the exhibitions. Indeed, the permissibility of mobile phone photographs is one of the reasons the art gallery has exploded in popularity as its “Instagrammability” is a draw for many users who are keen to share their experiences with others. 

Self-Healing Technology and Soft Robotics

When we think of technology, whether devices, machinery, or robots, we often imagine hard surfaces, sharp lines, and noncompliant, breakable material. Indeed, the fragility of our electronics is a source of stress for many consumers, who must assess the value of additional warranties or insurance after already having made a substantial investment in the technology itself. We are all very human, and as much as we may try to convince ourselves that we will never drop our new smartphone, we probably will. Unfortunately, these mishaps force us to go through an inconvenient replacement or repair process, to upgrade earlier than expected, or to live with a cracked screen. 

Smartphone companies have begun addressing this issue through self-healing technologies, which give their devices the ability to self-heal small cracks and scratches. Indeed, Motorola and Samsung have filed patents for self-healing technology for smart phones. Self-healing technology is just one of the ways high tech can be reused and repurposed to reduce waste, and it has the potential to substantially impact and revolutionize several industries, including automobiles, prosthetics, and robotics. 

The Future of Passwords

Passwords are the most common form of authentication on the Internet. Today, the average user has 90 different accounts that require usernames and passwords, making it improbable that the average consumer will effectively remember all of their passwords for each of their accounts. All too often we choose predictable passwords and pins and reuse the same password for multiple accounts. Cyber criminals and thieves will often engage in credential stuffing to use compromised username and password combinations to breach other accounts associated with their victims.

While there has been a trend towards businesses offering two-factor SMS-based authentication, this process is also not not entirely secure. It is becoming increasingly common for cyber criminals to hijack a victim’s mobile phone number and intercept the password reset link.

The proliferation of knowledge-based authentication requiring users to answer questions to verify their identity is also compromised by the plethora of publicly available personal information posted on social media or in public records. While we can change our passwords, we cannot change other details of our lives in the event of a security breach, such as our mothers’ maiden names or the city where we were born. 

Influencer Marketing: Trendy, Effective, and Potentially Deceptive Under Section 5 of the FTC Act

Influencer marketing has become an attractive prospect for companies seeking to advertise to younger generations and social media users.

Today’s consumers have many options to avoid the traditional platforms used by advertisers: streaming music helps consumers avoid radio commercials, streaming television prevents exposure to television commercials, ad blockers help to avoid advertisements online, and upgrade options on media providers such as Hulu, Spotify, and YouTube disable most of the advertising on those platforms. As more consumers are exercising their ability to “turn off” advertisements from their lives, advertisers are perilously trying to adapt.

Here is where the influencer comes in. From the Instagram model to the YouTube star, influencers, or social media users with significant followings on social media, have the unique ability to “influence” their followers. Influencers run the gamut from makeup artists to fitness gurus, from world travelers to gamers. Advertisers have been keen to explore this medium of advertising and are spending millions on influencer marketing each month. Indeed, many influencers can command thousands of dollars per post. 

While influencer marketing may feel like a foreign concept to many, it emerged from the recognizable celebrity endorsement. Social media has made the status of “celebrity” or “public figure” significantly more accessible and those same social media platforms provide a way for influencers to directly engage with their followers. Advertisers, in turn, are happy to provide free products or a sponsorship to influencers in exchange for the influencer featuring the advertiser’s products in their social media posts. For instance, a clothing company may pay an Instagram model to wear their clothing in his social media posts or a video game company may pay a gamer in exchange for reviewing one of their games or DLCs. 

Virtual Reality: May the Force Be With You

Growing up, I loved Star Wars. I played the video games, read the Expanded Universe novels, and built my own galaxy through the accumulation of many, many Lego sets. Yet, truly, what I wanted more than anything was to experience Star Wars, to be in that galaxy far, far away. 

Now, as an adult, I may get to do just that. In the midst of Disney’s construction of the Star Wars expansions to its parks, THE VOID’S walk-through virtual reality experience, Star Wars: Secrets of the Empire, has opened, offering Star Wars fans a depth of immersion that many, including myself, had previously only dreamed of. THE VOID offers a “hyper-reality” experience that enables players to go on a team mission on the planet of Mustafar. Rather than being stationery, the players move, interact, and experience immersive sensory details, even down to smells and temperature.  

Virtual reality (VR) is not new, but it is becoming increasingly more mainstream. While it is still most commonly found in the entertainment sector, VR has the potential to be tapped for a vast number of applications and we may very well see it play a more prominent role in the legal field.