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America's First Flu Season Under the ACA

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Allison Kvien, MJLST Staff Member

Have you seen the "flu shots today" signs outside your local grocery stores yet? Looked at any maps tracking where in the United States flu outbreaks are occurring? Gotten a flu shot? This year's flu season is quickly approaching, and with it may come many implications for the future of health care in this country. This year marks the first year with the Patient Protection and Affordable Care Act (ACA) in full effect, so thousands of people in the country will get their first taste of the ACA's health care benefits in the upcoming months. The L.A. Times reported that nearly 10 million previously uninsured people now have coverage under the ACA. Though there might still be debate between opponents and proponents of the ACA, the ACA has already survived a Supreme Court challenge and is well on its way to becoming a durable feature of the American healthcare system. Will the upcoming flu season prove to be any more of a challenge?

In a recent article entitled, "Developing a Durable Right to Health Care" in Volume 14, Issue 1 of the Minnesota Journal of Law, Science, and Technology, Erin Brown examined the durability of the ACA going forward. Brown explained, "[a]mong its many provisions, the ACA's most significant is one that creates a right to health care in this country for the uninsured." Another provision of the ACA is an "essential benefits package," in which Congress included "preventative and wellness services," presumably including flu shots. For those that will be relying on the healthcare provided by the ACA in the upcoming flu season, it may also be important to understand where the ACA's vulnerabilities lie. Brown posited that the vulnerabilities are concentrated mostly in the early years of the statute, and the federal right to health care may strengthen as the benefits take hold. How will the end of the ACA's first year go? This is a very important question for many Americans, and Brown's article examines several other questions that might be on the minds of millions in the upcoming months.

Will Orlady, MJLST Staff Member

The Internet is infinite. At least, that's what I thought. But Ashley Parker, a New York Times reporter doesn't agree. When it comes to political ad space, our worldwide information hub may not be the panacea politicians hoped for this election season.

Parker based her argument on two premises. First, not all Internet content providers are equal, at least when it comes to attracting Internet traffic. Second, politicians--especially those in "big" elections--wish to reach more people, motivating their campaigns to run ads on a major content hubs i.e. YouTube.

But sites like YouTube can handle heavy network traffic. And, for the most part, political constituents do not increase site traffic for the purpose of viewing (or hearing) political ads. So what serves to limit a site's ad space if not its own physical technology that facilitates the site's user experience? Parker contends that the issue is not new: it's merely a function of supply and demand.

Ad space on so-called premium video streaming sites like YouTube is broken down into two categories: ads that can be skipped ("skip-able ads") and ads that must be played entirely before you reach the desired content ("reserved by ads"). The former is sold without exhaustion at auction, but the price of each ad impression increases with demand. The latter is innately more expensive, but can be strategically purchased for reserved times slots, much like television ad space.

Skip-able ads are available for purchase without regard to number. But they are limited by price and by desirability. Because they are sold by auction, in times of high demand (during a political campaign, for example) Parker contends that their value can increase ten-fold. Skip-able ads are, however, most seriously limited by their lack of desirability. Assuming, as I believe it is fair to do here, that most Internet users actually skip the skip-able ads, advertising purchasers would be incentivized to purchase a site's "reserved by" advertising space.

"Reserved by" ads are sold as their name indicates, by reservation. And if the price of certain Internet ad space is determined by time or geography, it is no longer fungible. Thus, because not all Internet ad space is the same in price, quality, and desirability, certain arenas of Internet advertising are finite.

Parker's argument ends with the conclusion that political candidates will now compete for ad space on the Internet. This issue, however, is not necessarily problematic or novel. Elections have always been adversarial. And I am not convinced that limited Internet ad space adds to campaign vitriol. An argument could be made to the contrary: that limited ad space will confine candidate to spending resources on meaningful messages about election issues rather than smear tactics. Campaign tactics notwithstanding, I do not believe that the Internet's limited ad space presents an issue distinct from campaign advertising in other media. Rather, Parker's argument merely forces purchasers and consumers of such ad space to consider the fact that the internet, as an advertising and political communication medium, may be more similar to existing media than some initially believed.


Comi Sharif, Managing Editor

This week marks the end of the 2014 Major League Baseball regular season, and with it, the completion of the first regular season under the league's expanded rules regarding the use of instant replay technology. Though MLB initially resisted utilizing instant replay, holding out longer than other American professional sport leagues, an agreement between team owners, the players association, and the umpires association produced a gross expansion of the use of replay technology beginning this season.

The expanded rules permit managers to "challenge" at least one call made by an umpire during a game. The types of calls allowed to be challenged are limited to objective plays such as whether a runner was safe or out at a base, or whether a fielder caught or "trapped" a batted ball. Subjective umpire calls, including calls regarding balls and strikes and "check" swings, are not reviewable. The complete set of MLB's instant replay rules is available here.

As alluded to above, the process of going from the idea of instant replay in baseball to actual implementation was long and complex. First, rule changes must be collectively bargained by MLB and the players association (MLBPA). Thus, the proposal to expand the use of instant replay had to be proposed during the recent collective bargaining agreement (CBA) discussions in 2011. What both sides agreed to was language in the CBA stating that subject to approval by the umpires association, MLB baseball could expand the use of instant replay. Second, after agreeing to general idea of more instant replay, MLB developed specific rules and policies for instant replay, which had to be approved by the owners of the 30 MLB franchises. Once the owners approved the specific rules, which they did unanimously, the rules could finally be put into action. One issue to watch is how each of the different parties involved in the approval process reacts to the changes instant replay has on the league. The current CBA expires in December of 2016, at which time wholesale changes to the current instant replay system could be realized.

The replay technology used by MLB is somewhat unique compared to that used by other professional sports leagues such as the National Basketball Association and the National Football League. Often in the NBA and NFL, referees or officials view video replays of a contested call themselves with technology located at the playing venue itself. MLB, however, created a "Replay Operation Center" (ROC), located at MLB headquarters in New York City, where a team of umpires reviews video replays and communicates a final ruling through headsets to the umpires on the field. Additionally, MLB permits each team to have a "video specialist" located in the clubhouse to watch for challengeable plays; the specialist can call the manager by phone to communicate whether or not the play should be challenged.

In one sense, the MLB system may be advantageous because it allows the ROC to have the best available technology, whereas the NBA and NFL have to adapt the sophistication of their replay systems to make it possible for use at every stadium and to the referees or officials at the venue immediately. While the NFL and NBA referees and officials typically look at one relatively small monitor when reviewing a play, the ROC houses 37 high-definition televisions, each of which can be subdivided into 12 smaller screens. Though this may not seem like a big deal to the casual observer, a number of calls are so close that the quality of the image available on replay can directly impact the call. One might conclude, then, that because MLB has more advanced technology at its disposable, its replay system is, in fact, more accurate. The MLB system does have its downsides, however. Outsourcing the review process can lead to lengthy delays and put decisions in the hands of an umpire thousands of miles away from the action, which many find unappealing.

The site Retrosheet has a comprehensive collection of data on MLB's replay system, including an entry for every play reviewed, its result, and the length of time taken for the review to be completed.

Overall, there are mixed reviews concerning the success of the expanded replay rules used in MLB this season. Though it's unclear exactly how MLB will adjust its system in the future, if the current trend continues, as increasingly effective technology becomes available, the impact of that technology on the sport of baseball is only likely to rise as well.


Apple's Bark is Worse than its Bite

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Jessica Ford, MJLST Staff

Apple's iPhone tends to garner a great deal of excitement from its aficionados for its streamlined aspects and much resentment from users craving customization on their devices. Apple's newest smartphone model, the iPhone 6, is no exception. However, at Apple's September 9, 2014 iPhone 6 unveiling, Apple announced that the new iOS 8 operating system encrypts emails, photos, and contacts when a user assigns a passcode to the phone. Apple is unable to bypass a user's passcode under the new operating system and is accordingly unable to comply with government warrants demanding physical data extraction from iOS 8 devices.

The director of the FBI, James Comey, has already voiced concerns that this lack of access to iOS 8 devices could prevent the government from gathering information on a terror attack or child kidnappings.

Comey is not the only one to criticize Apple's apparent attempt to bypass legal court orders and warrants. Orin Kerr, a criminal procedure and computer crime law professor at The George Washington University Law School, worries that this could essentially nullify the Supreme Court's finding in Riley v. California this year which requires the police to have a warrant before searching and seizing the contents of an arrested individual's cell phone.

However, phone calls and text messages are not encrypted, and law enforcement can gain access to that data by serving a warrant upon wireless carriers. Law enforcement can also tap and monitor cellphones by going through the same process. Any data backed to iCloud, including iMessages and photos, can be accessed under a warrant. The only data that law enforcement would not be able to access without a passcode is data normally backed up to iCloud that still remains on the device.

While security agencies argue otherwise, iOS 8 seems far from rendering Riley's warrants useless. Law enforcement still has several viable options to gain information with a warrant. Furthermore, the Supreme Court has already made it clear that it does not find that the public's interest in solving or preventing crimes outweighs the public's interest in privacy of phone data, even when there is a chance that the data on a cell phone at issue will be encrypted once the passcode locks the phone,

"[I]n situations in which . . . an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressuring matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away . . . . If 'the police are truly confronted with a 'now or never' situation,' . . . they may be able to rely on exigent circumstances to search the phone immediately . . . . Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone's automatic-lock feature in order to prevent the phone from locking and encrypting data . . . . Such a preventive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U.S. 326, 121 S.Ct. 946, which approved officers' reasonable steps to secure a scene to preserve evidence while they awaited a warrant." (citations omitted) Riley v. California, 134 S. Ct. 2473, 2487-88 (2014).

With all the legal recourse that remains open, it appears somewhat hasty for the paragon-of-virtue FBI to be crying "big bad wolf."

Daniel Schueppert, MJLST Executive Editor

More and more Americans are getting rid of their cable TV and opting to consume their media of choice through other sources. Roughly 19% of American households with a TV do not subscribe to cable. This change in consumer preferences means that instead of dealing with the infamous "Cable Company Runaround" many households are using their internet connection or tapping into local over-the-air broadcasts to get their TV fix. One of the obvious consequences of this change is that cable TV providers are losing subscribers and may become stuck carrying the costs of existing infrastructure and hardware. Meanwhile, the CEO of Comcast's cable division announced that "it may take a few years" to fix the company's customer experience.

In 2011 Ralitza A. Grigorova-Minchev and Tomas W. Hazlett published an article entitled Policy-Induced Competition: The Case of Cable TV Set-Top Boxes in Volume 12 Issue 1 of the Minnesota Journal of Law, Science & Technology. In their article the authors noted that despite the FCC's policy efforts to bring consumer cable boxes to retail stores like Best Buy, the vast majority of cable subscribing households in America received their cable box from their cable TV operators. In the national cable TV market the two elephants in the room are Comcast and Time Warner Cable. One of these two operators are often the only cable option in certain areas and together they provide over a third of the broadband internet and pay-TV services in the nation. Interestingly, Comcast and Time Warner Cable are currently pursuing a controversial $45 billion merger and in the process both companies are shrewdly negotiating concessions by TV networks and taking shots at Netflix in FCC filings.

The current fad of cutting cable TV implicates a pushback against the traditional policy of vertically integrating media, infrastructure, customer service, and hardware like cable boxes into one service. In contrast to the expensive cable box hardware required and often provided by traditional cable, internet media streaming onto a TV can usually be achieved by any number of relatively low cost and multi-function consumer electronic devices like Google's Chromecast. This arguably gives customers more control over their media experience by providing the ability to choose which hardware-specific services they bring into their home. If customers no longer want to be part of this vertical model, big companies like Comcast may find it difficult to adjust to changing consumer preferences given the considerable regulatory pressure discussed in Grigorova-Minchev and Hazlett's article.

Mickey Stevens, MJLST Staff

The Eleventh Circuit's recent decision in United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) has created a split among the circuits regarding the interaction between the Third-Party Doctrine and cell site data recorded by cell phone service providers. The Stored Communications Act 18 U.S.C. § 2703, which was enacted as part of the Electronic Communications Privacy Act of 1986, allows the Government to obtain disclosures of information regarding wire and electronic communications held by third-party service providers. Under 18 U.S.C. § 2703(d), the Government may obtain this information by court order and bypass any requirement of a warrant or showing of probable cause. The Third-Party Doctrine, which says that a person who voluntarily turns information over to third parties has no legitimate expectation of privacy in that information, served as grounds for this provision to operate without violating the Fourth Amendment. This practice was a central issue involved in the Davis decision, rendered this past June.

In Davis, a panel for the Eleventh Circuit ruled that law enforcement officers violated the Appellant's Fourth Amendment rights when they obtained, without a warrant, records of location evidence based on cell site information. Despite this ruling, the panel concluded that the trial court's denial of Appellant's motions to suppress did not constitute reversible error due to the good faith exception to the exclusionary rule.

In reaching its decision, the panel rejected the Government's argument that the Third-Party Doctrine applied to the cell site data evidence. The panel cited to a 2010 decision from the Third Circuit, In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov't, 620 F.3d 304 (3d Cir. 2010), which held that a cell phone user voluntarily conveys only the number dialed and not the location data when he makes a call. The Eleventh Circuit's decision is clearly contradictory to a 2013 decision from the Fifth Circuit, In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013). There, the Fifth Circuit held that a cell phone user voluntarily conveys his cell site data each time he makes a call, and that this data could be properly obtained without a warrant.

On September 4, 2014 the Eleventh Circuit granted a motion for rehearing en banc. If the en banc court's decision maintains the split between the Eleventh and Fifth Circuits, we might see a decision from the Supreme Court on the matter. The Supreme Court seems to have shown a particular interest in digital data as of late, judging by recent decisions in Riley v. California, 134 S. Ct. 2473 (2014), and United States v. Jones, 132 S. Ct. 945 (2012), among others. If the pro-privacy holdings and rationale in Riley and Jones serve as any indication, the Supreme Court may put an end to the Third-Party Doctrine's application to warrantless gathering of cell site data.

Nia Chung, MJLST Staff

Cyberbullying comes in varying forms. Online outlets with user identification features such as Facebook and MySpace give third party attackers a platform to target individuals but remain identifiable to the victim. The transparency of identification provided on these websites allows victims the ability of possible redress without involving the Internet Service Providers (ISPs).

In February 2014, Bryan Morben published an article on cyberbullying in volume 15.1 of the Minnesota Journal of Law, Science and Technology. In that article Mr. Morben wrote that Minnesota's new anti-cyberbullying statute, the "Safe and Supportive Minnesota Schools Act" H.F. 826 would "reconstruct the Minnesota bullying statute and would provide much more guidance and instruction to local schools that want to create a safer learning environment for all." Mr. Morben's article analyzes the culture of cyberbullying and the importance of finding a solution to such actions.

Another form of cyberbullying has been emerging, however, and state initiatives such as the Safe and Supportive Minnesota Schools Act may prompt Congress to revisit current, outdated, federal law. This form of cyberbullying occurs on websites that provide third parties the ability to hide behind the cloak of anonymity to escape liability for improper actions, like 4chan and AOL.

On September 22, 2014, British actress Emma Watson delivered a powerful U.N. speech about women's rights. Less than 24 hours later, a webpage titled "Emma You Are Next" appeared, displaying the actress's face next to a countdown, suggesting that Ms. Watson would be targeted this Friday. The webpage was stamped with the 4chan logo, the same entity that is said to have recently leaked celebrity photos of actresses including Jennifer Lawrence, this past summer. On the same website, one anonymous member responded to Ms. Watson's speech by stating "[s]he makes stupid feminist speeches at UN, and now her nudes will be online." Problematically, the law provides no incentive for such ISPs to remove such defamatory content because they are barred from liability by a federal statute. The Communications Decency Act, 47 U.S.C. § 230, provides, "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Essentially, this provision provides ISPs immunity from tort liability for content or information generated on a user-generated website. Codified in 1996, initially to regulate pornographic material, the statute added sweeping protection for ISPs. However, 20 years ago, the internet was relatively untouched and had yet to realize its full potential.

Courts historically have applied Section 230 broadly and have prevented ISPs from being held liable for cyberbullying actions brought from victims of cyberbullying on its forum. For example, the Ninth Circuit upheld CDA immunity for an ISP for distributing an email to a listserv who posted an allegedly defamatory email authored by a third party. The Fourth Circuit immunized ISPs even when they acknowledged that the content was tortious. The Third Circuit upheld immunity for AOL against allegations of negligence because punishing the ISP for its third party's role would be "actions quintessentially related to a publisher's role." Understandably, the First Amendment provides the right to free exchange of information and ideas, which gives private individuals the right to anonymous speech. We must ask, however, where the line must be drawn when anonymity serves not as a tool to communicate with others in a public forum but merely as a tool to bring harm to individuals, their reputations and their images.

In early April of this year, the "Safe and Supportive Minnesota Schools Act was approved and officially went into effect. Currently, http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf have anti-cyberbullying statutes in place, demonstrating positive reform in keeping our users safe in a rapidly changing and hostile online environment. Opinions from both critics and advocates of the bill were voiced through the course of the bill's passing, and how effectively Minnesota will apply its cyberbullying statute remains to be seen. A closer look at the culture of cyberbullying, as is discussed in Mr. Morben's article, and the increasing numbers of anti-cyberbullying state statutes, however, may prompt Congress to revisit Section 230 of the Communications Decency Act, to at least modestly reform ISP immunity and give cyber-attacks victims some form of meaningful redress.

E-Discovery Costs: Quick Peek and Clawback

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Joe McCartin, Managing Editor

E-Discovery costs can be quite prohibitive. The problem was detailed by David Degnan in Volume 12, Issue 1 of the Minnesota Journal of Law, Science, and Technology. In his article, Accounting for the Costs of Electronic Discovery, Degnan discussed the use of four methods for controlling costs - sampling, gap testing, crawl systems, and cooperation. Recently, FDIC litigation against former directors of failed banks has created a new trend in E-Discovery cost containment - the quick peek and clawback. However, this new cost control mechanism may not control cost at all. It merely shifts a significant amount of cost onto the requesting party, upending traditional discovery procedures.

In FDIC v. Hayden, et al. and FDIC v. Copenhaver, et al. the court required the requesting party of Electronically Stored Information (ESI) to submit search terms to the FDIC, which would then produce all documents relevant to those terms in a Relativity database. The requesting party would then have access to all hosted documents, but would be responsible for conducting initial document review itself. After the requesting party conducted a "quick peek" and selected relevant documents, the FDIC would then have the opportunity to "clawback" any privileged documents. The FDIC would not have to review any documents not selected by the requesting party.

It is entirely appropriate for courts to shift the costs to a requesting party at times. Zubulake v. UBS Warburg, LLC. detailed a number of factors that could warrant cost shifting from the producing to the requesting party, and in FDIC v Hayden, et al. the court engaged in extensive analysis of the Zubulake factors. However, courts need to bear in mind that review is not just a portion of the production cost, it is the overwhelming bulk of the cost, and should not be shifted between parties without compelling reasons. Degnan showed in his article that the primary costs associated with E-discovery comes from review, which accounts for roughly 58% of the cost of e-discovery. Even in the presence of a number of compelling Zubulake factors, courts should make an attempt to split, not just shift, the cost of review.

While some requesting parties have found the arrangement to their liking, courts have also foisted this on others. Notably, this practice doesn't reduce the overall amount of review, it merely shifts the costs of initial review from the producing to the requesting party. Requesting parties need to be aware of the potential costs they will bear under this arrangement. If they want to avoid the imposition of quick peek and clawback by courts, they should seek to follow the guidance of Degnan and the Sedona Conference and cooperate extensively with the opposing party in crafting a discovery process that is acceptable. Failure to work on a discovery plan cooperatively, leaves the requesting party more vulnerable to having a plan foisted upon them, one that may shift the bulk of costs onto them.

Halbig v. Burwell Revisited

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Roma Patel, Note and Comment Editor

The Supreme Court's decision in Hobby Lobby took the health law spotlight this summer. As the Court's opinion was dissected every which way in the weeks following its release, something else was brewing at the Court of Appeals for the D.C. Circuit in Halbig v. Burwell.

On its face, the Halbig case challenges the federal tax credits, which are available to qualified individuals, enrolled in the health insurance exchange programs. The provision, established by the Patient Protection and Affordable Care Act, references the payment of credits to individuals who enroll through an Exchange established by the state. The legal challenge claims these credits are not available to the 36 states that chose to let the federal government manage their exchanges.

With millions of Americans relying on these tax credits in order to afford health insurance under the mandate, the case's outcome could be devastating. One concern few are addressing is whether Halbig presents a legitimate legal question in the first place. While the plaintiff, senior policy advisor to the Department of Health and Human Services under President George W. Bush, paints this as a matter of statutory language and intent. Advocates for the ACA feel opponents are making a last ditch effort to invalidate the entire law based on imperfect legislative wording. The incessant politicization of health care reform has left most Americans frustrated and disillusioned. Regardless of the outcome, perhaps Halbig represents an opportunity to shine a light on the rhetoric surrounding the healthcare debate itself.


Drones Raise Fourth Amendment Issues

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Alex Vlisides, Symposium Editor

Law professors love to tweak hypotheticals until students become uncomfortable with the result. It is the classic law school trap. As soon as you agree a premeditated, unprovoked killing is never justified, you are swept away to a desperate life raft in which the only way for the innocents to survive is for one of them to be thrown overboard. This is how we test which of the competing values will break first. And how law professors entertain themselves.

The developments in drone and camera technology are bringing Fourth Amendment privacy rules, particularly the public observation doctrine, to their breaking point. Public observation is the idea that generally what one exposes to the public may be observed or even recorded without violating privacy. But fundamental changes in what can be observed alters this balance. The development of technologies that sound made up for law school hypotheticals will challenge constitutional doctrine. Surveillance technology capable of tracking the movements of every individual in a several square mile are. Drones which can stay stationed in the air for years at a time. Cameras capable of surveilling private land and spaces from so high above they are effectively invisible. These technologies exist and each challenge the notion that observation in and from public spaces does not violate privacy.

These technologies are not exactly new: both aerial crafts and surveillance technologies have improved steadily for decades. What is new is that the rapid development of the last decade has brought the doctrine near to the breaking point, the point that law professors love. The point at which the designed rule, the sturdy absolute, cracks under changing facts. The point at which we have to decide which principle gives: the general autonomy to observe and record in public spaces and right to privacy. The public observation doctrine was developed to navigate this balance. The challenge for courts, and perhaps law students, is that the breaking point approaching Fourth Amendment law is no longer hypothetical.