Blog Post

By Victoria Collison

Jacob Wohl and Jack Burkman, through their business Burkman Associates, organized a targeted robocall campaign to spread false information to black voters during the 2020 presidential election.[1] Now, U.S. district Judge Victor Marrero held that the defendants committed fraud and violated several federal and state laws: the Voting Rights Act (VRA), the Ku Klux Klan (KKK) Act, the Civil Rights Act, and Sections 9 and 40-c of the NYCRL.[2]

New York is not the only state where these defendants’ faced charges. In October 2022, both defendants pled guilty to telecommunications fraud in Ohio.[3] The robocall reached voters in the following cities: Cleveland, Ohio; Minneapolis, Minnesota; Chicago, Illinois; Pittsburgh and Philadelphia, Pennsylvania; Detroit, Michigan; New York, New York; and Arlington, Virginia.[4]

When describing the call, plaintiffs used words such as distressing, traumatizing, and intimidating.[5] The robocall placed unfounded fear on voters who relied on the mail-in ballots. The robocall shared the following message:

Hi, this is Tamika Taylor from Project 1599, the civil rights organization founded by Jack Burkman and Jacob Wohl. Mail-in voting sounds great, but did you know that if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The CDC is even pushing to use records for mail-in voting to track people for mandatory vaccines. Don’t be finessed into giving your private information to the man, stay safe and beware of vote by mail.[6]

The allegations in the robocall were completely unfounded, even characterized as “making sh** up” by the defendants.[7] The state election law in New York prohibits using voter information for non-election purposes.[8] The defendants made it clear that their intention was to discourage black, democratic voters from participating in the election.

The 15^th Amendment in the US Constitution grants Americans the right to vote, a quintessential piece of our system of democracy. Because of the COVID-19 pandemic, many Americans feared in-person voting in 2020. Mail-in voting was a reasonable alternative to safely exercise their voting rights. For the targeted victims of the robocall, the decision to utilize mail-in ballots was altered.

While technology makes it easier to reach a vast number of people, it poses a greater risk when dealing with fraudulent actors. This fraud was found to be repeated approximately 5,494 times as the robocall reached an equivalent number of voters in New York.[9] This case represents a victory for voting rights and our system of democracy. Now, the Court waits to hear the relief sought against defendants.

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[1] Nat’l Coal. on Black Civic Participation v. Wohl, No. 20 Civ. 8668, 2023 U.S. Dist. LEXIS 39098, at 3-4 (N.Y. Dist. Ct. for the S.D. of N.Y. Mar. 8, 2023).

[2] Id. at 104.

[3] Id. at 15.

[4] Id. at 8.

[5] Id. at 11-12.

[6] Wohl, No. 20 Civ. 8668, 2023 U.S. Dist. LEXIS 39098, at 7-8.

[7] Id. at 5.

[8] Id. at 13.

[9] Id. at 88.

By Nicole Cooper

Could artificial intelligence systems replace lawyers in the future? The short answer is no. However, the capabilities of these artificial intelligence (AI) systems are concerning. The most popular AI system in the world’s view right now is ChatGPT. ChatGPT is an AI chatbot system that OpenAI, a company in San Francisco, released in November 2022.[1] ChatGPT is a generative AI that allows users to enter written prompts and receive human-like text or images and videos generated by the AI.[2]  This system can produce human-like responses to just about any request or prompt from a user.[3]

One reason people are concerned ChatGPT could replace jobs is that it has passed a range of tests and exams, including law exams and portions of the bar exam.[4] Daniel Katz, a professor at Chicago Kent College of Law and Michael Bommarito, a professor at Michigan State University College of Law, tested OpenAI’s GPT3.5 model on the multistate multiple choice (MBE) section of the Bar exam.[5] Overall, it was correct 50.3% of the time as compared to regular test-takers, who get 68% of the questions right.

Recently, professors at the University of Minnesota Law School graded tests blindly. After completing 95 multiple-choice questions and 12 essay questions, the bot performed on average at the level of a C+ student, achieving a passing score.[6] Although this system is smart enough to pass complicated exams, its scores aren’t particularly high enough to show that it can perform better than a law student. It would be more concerning if the exam produced perfect scores.  

ChatGPT also has severe limitations. It cannot perform the complex tasks that lawyers do daily such as applying facts to the law, providing advice that is in the best interests of clients, interviewing witnesses, negotiating settlements, and much more. It also struggles to know what the user really wants from it as its answers to questions vary widely to how the prompts are phrased.[7] Its inability to perform interpersonal tasks will keep its potential advancements into the legal field limited to a research tool similar to Westlaw and LexisNexis.[8]

Lastly, I actually tested out ChatGPT myself and asked the AI a wide range of requests/questions. These prompts included a recipe for chocolate chip cookies, a poem about dogs, and lastly a question: can lawyers be replaced by ChatGPT? After typing out a great chocolate chip cookie recipe, and a heart-warming poem about dogs, the response to my last question was interesting as it came to the same conclusion that I did. ChatGPT states that “No, lawyers cannot be replaced by ChatGPT or any other AI language model. While AI technology has made significant strides in recent years, there are still many areas where human lawyers have critical advantage.”[9] I included the rest of the response in a screenshot below.

It is much appreciated that this AI does not think it will take over the legal field, however, lawyers should be careful if they choose to use this technology in practice. While it may be able to draft legal documents and conduct legal research faster than humanly possible, it can still make mistakes and provide misinformation. Even OpenAI stated on their website, “ChatGPT sometimes writes plausible-sounding but incorrect or nonsensical answers.”[10] If lawyers rely on AI to do the work for them, it will likely create a host of liabilities and malpractice concerns. 

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[1] Ryan Browne, All you need to know about ChatGPT, the A.I. chatbot that’s got the world talking and tech giants clashing, cnbc (Feb. 98, 2023, 7:37 AM EST), https://www.cnbc.com/2023/02/08/what-is-chatgpt-viral-ai-chatbot-at-heart-of-microsoft-google-fight.html#:~:text=In%20its%20own%20description%2C%20ChatGPT,talk%20of%20the%20business%20world.

[2] Id.

[3] Id.

[4] Samantha Murphy Kelly, ChatGPT passes exams from law and business schools, cnn business (Jan. 26, 2023, 1:35 PM EST), https://www.cnn.com/2023/01/26/tech/chatgpt-passes-exams/index.html.

[5] Michael Bommarito & Daniel Katz, GPT Takes the Bar Exam, ssrn (Jan. 03, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4314839.

[6] Kelly, supra note 4.

[7] Jason Hennessey, How Law Firms Can Leverage ChatGPT To Get More Cases, the national law review (Jan. 17, 2023), https://www.natlawreview.com/article/how-law-firms-can-leverage-chatgpt-to-get-more-cases#:~:text=Recent%20adopters%20have%20been%20impressed,would%20typically%20be%20manual%20tasks.

[8] Eran Kahana, ChatGPT Is a Cool Trick, But AI Won’t Replace Lawyers, lexis+ (Feb. 07, 2023, 3:39 PM EST), https://plus.lexis.com/newsstand#/law360-pulse/article/1573178.

[9] ChatGPT, openai, https://chat.openai.com/chat (last visited Feb 23, 2023).

[10] ChatGPT: Optimizing Language Models for Dialogue, openai, https://openai.com/blog/chatgpt/ (last visited Feb. 23, 2023).

By Daniel Bonsangue

The US government has propagated nutritional guidelines since 1916.[1]  Only since 1980, however, have the Dietary Guidelines for Americans been the cornerstone of nutritional policies and programs in the United States.[2] These guidelines are taught to children in public schools, and to future doctors, nutritionists, and dieticians in professional schools.[3] Yet, according to the Nutrition Coalition, the health of Americans has declined sharply in that time.[4] 74% of adults are overweight or obese[5], including 18.5% of all U.S. kids.[6] 18.2 million adults have coronary artery disease, 45% of American adults (4% of adolescents) have hypertension, 11% of Americans have diabetes, 35% have prediabetes, and 17% of women have osteoporosis.[7]

There is no question that, by almost every metric, the health of Americans has declined, and that decline is correlated almost exactly with the USDA’s release of the first food pyramid and subsequent guides. Whether there is a causal link between the government guidance and the health crisis is another question. The USDA maintains that the nutritional guidelines are based on sound science, and the problem is that Americans simply do not follow them well enough for them to work. Other groups, notably the Nutrition Coalition, contend that Americans do follow them, and that the guidance is faulty.

Public Law 101-445, 7 United States Code 5341 requires the Secretary of Agriculture to publish a report entitled “Dietary Guidelines for Americans” every five years, containing nutritional and dietary information and guidelines for the general public.[8] The information and guidelines in the report must be based on the “preponderance of scientific and medical knowledge which is current at the time the report is prepared”.[9] In other words, the dietary guidance is, at least in theory, based off of what the majority of experts are saying at the time.

In the 2020-2025 Dietary Guidelines, the USDA outlines the ways in which Americans have failed to follow the guidelines that they have put out. Citing the National Health and Nutrition Examination Survey data from 2005/6 to 2015/16, the USDA found that adherence to the Dietary Guidelines only reached 56-60 out of 100 on the Average Total Healthy Eating Index in any given year.[10]

The government recommends that half of daily grain intake should be from whole grain, that only 15% of daily calorie intake should come from added sugars and saturated fats, and more specifically that a healthy diet should consist only 10% of added sugars.[11] However, while most American meet recommendations for total grain intakes, 98% fall below recommendations for whole grains, and 74% of Americans exceed limits for refined grains.[12] 20% of Americans’ intake of refined grains comes from snacks and sweets, such as crackers, pretzels, cakes, cookies, and other grain desserts.[13] 13% of Americans’ diet consists of added sugars.[14]

While the USDA points to evidence that their guidelines would be effective if only the American people followed them, groups like the Nutrition Coalition point to evidence that the guidelines are flawed. A study in a journal of the National Academy of Sciences found that U.S. guidelines cannot be guaranteed to reflect trustworthy advice for combating obesity, diabetes, or any other chronic disease.[15] The National Academy of Sciences issued seven recommendations for the USDA to implement in order to remedy some of the issues in their guidelines, among those being the lack of public disclosure of conflicts of interest on the dietary guidelines committee, but the USDA did not implement six of them.[16] A Cambridge University Press publication reported that 95% of the members on the dietary guidelines committee did in fact have conflicts of interest with the food or pharmaceutical industry, notably Kellogg, Abbott, Kraft, Mead Johnson, General Mills, Dannon, and the International Life Sciences.[17]

Of course, conflicts of interest on the guidelines committee don’t necessarily translate to faulty guidelines. However, among the problems found in the guidelines process, the National Academy of Sciences publication found that guidelines on dietary fat, saturated fat, and cholesterol were either no longer supported by science or were simply in error.[18] Various studies would tend to support this conclusion. A 2020 study found that people who reduced their saturated fat intake were just as likely to die from heart disease and other causes as those who ate more saturated fat.[19] Another study in 2021 found that total saturated fat intake has no effect on the risk of heart disease, however certain foods high in saturated fat may impact heart health differently than others.[20]

The dietary guidelines about fats are not insignificant, mainly because of the implications that they have on other food groups. Meat, dairy, and eggs provide much of the total fat and saturated fat in the US food supply.[21] Encouraging the public to eat less of these things means that they will necessarily replace them with something else in their diets and, while the guidelines might recommend more vegetables, it is not farfetched to conclude that people have instead replaced the fats in their diets with carbohydrates. If the newer studies about fats are true, then they have replaced something that wasn’t all that harmful to begin with something that might be.

It is important not to take the approach of simply finding studies that contradict what the guidelines say and using them to support the argument that the guidelines got it wrong. Nevertheless, certain trends would tend to suggest that it is the guidelines themselves, not the fact that people aren’t following them, that are the root cause of the rising rates of chronic diseases. While the USDA points to data suggesting that Americans are eating too many refined grains and saturated fats and not enough whole grains, other data suggests that, since 1980, consumption of fresh vegetables is up 20%, fresh fruits up 35%, grains are up 28% and vegetable oils (the recommended fats) are up 87%.[22] At the same time, consumption of whole milk is down 79%, eggs down 13%, animal fats down 28%, and Americans are consuming 9% less butter, all in accordance with the guidelines.[23]

Particular issue is taken with the USDA’s treatment of carbohydrates. Critics point out that the guidelines committee did not consider low-carbohydrate diets, despite growing evidence that curtailing the consumption of grains and sugars in favor of meat, dairy, and eggs could improve and eliminate some metabolic diseases, and despite the fact that 80% of comments during the comment period while the rules were being considered talked about low-carbohydrate diets.[24] In addition, carbohydrate restriction is currently the only whole-foods approach that can reverse a diagnosis of Type 2 Diabetes.[25] So, given that grain is still the largest food category recommended in the most updated graphic, and given that people have followed that recommendation, these critics suggest that the guidelines have contributed to the onset of many of the chronic conditions plaguing Americans, and that reluctance to change these guidelines is hindering potential solutions.

It’s not clear which came first, the chicken or the egg. It is possible that the USDA has been disseminating faulty nutritional guidelines which, when followed by Americans, have contributed to burgeoning levels of obesity and chronic diseases. It is also possible, however, that with the increasing availability of sugary and processed foods, Americans’ dietary habits worsened, and the dietary guidelines have attempted to reverse that trend with limited success.

It is also possible that both of those things are true. The guidelines advise limiting added sugars, which are also recommendations that critics of the guidelines point to. The battleground appears to be the role of fats, particular animal and saturated ones, and carbohydrates that aren’t added sugars. It probably wouldn’t hurt for the USDA to at least consider diets that reflect emerging research on those food groups.

For the time being, however, it’s important for Americans to both follow the advice of experts while also maintaining a healthy level of skepticism and keeping their eye out for promising new information about how to eat.  

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[1] Food and Nutrition through the 21^st Century, https://guides.lib.unc.edu/nutrition-history/government (last visited Jan. 31, 2023).

[2] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[3] Id.

[4] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[5] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2020-2025. 9th Edition. December 2020. https://www.dietaryguidelines.gov/.

[6] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[7] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2020-2025. 9th Edition. December 2020. https://www.dietaryguidelines.gov/.

[8] Establishment of Dietary Guidelines, 7 U.S.C. §5341 (2023).

[9] Id.

[10] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2020-2025. 9th Edition. December 2020. https://www.dietaryguidelines.gov/.

[11] Id. at 37.

[12] Id. at 37.

[13] Id.

[14] Id.  

[15] Cheryl Achterberg, et al., An Analysis of the Recent US Dietary Guidelines Process in Light of its Federal Mandate and a National Academics Report, PNAS Nexus, 1, 1- 12 (2022).

[16] Id.

[17] Mélissa Mialon et al., Conflicts of Interest for Members of the U.S. 2020 Dietary Guidelines Advisory Committee, Public Health Nutrition, (2022).

[18] Cheryl Achterberg, et al., An Analysis of the Recent US Dietary Guidelines Process in Light of its Federal Mandate and a National Academics Report, PNAS Nexus, 1, 1- 12, (2022).

[19]  Lee Hooper, et al., Reduction in Saturated Fat Intake for Cardiovascular Disease, Cochrane Databased Systematic, National Institutes of Health, (2020).

[20] Marinka Steur, et al., Dietary fatty acids, Macronutrient Substitutions, Food Sources and Incidence of Coronary Heart Disease: Findings from the EPIC-CVD Case-Cohort Study Across Nine European countries. Trusted Source Journal of the American Heart Association, (2021).

[21] Marion Nestle, USDA’s Dietary Guidelines: Health Goals Meet Politics, (1992), https://www.foodpolitics.com/wp-content/uploads/DietaryGuidelines_CNI_92.pdf.

[22] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[23] Id.

[24] Id.

[25] Id.

By Naamu Harvey

Wait, technology can perpetuate racism? Unfortunately, the answer is yes. The technology we use every day often perpetuates racism and this occurrence can go unnoticed by most. Most technology is designed, created, and tested in systems and institutions that have been marked by entrenched discrimination.[1] This new fight for racial equality in the tech world is called techno-racism[2] While this may be a new phenomenon, it has already snuck itself into some of the technology we encounter every day.[3]

Techno-racism describes a phenomenon in which the racism experienced by people of color is encoded in the technical systems used in our everyday lives.[4] The term developed in 2019, when a member of a Detroit civilian police commission used it to describe flawed facial recognition systems that confuse African American faces.[5] These new digital technologies can implicitly or explicitly exacerbate existing biases about race, ethnicity, and national origin.[6] In fact, even when developers and users do not intend for technology to discriminate, it often does so despite one’s intention.[7] Technology is not neutral or objective, it is fundamentally shaped by the racial, ethnic, gender and other inequalities prevalent in society, and typically makes these inequalities worse.[8]

So, you might be wondering where do we see techno-racism? Well, facial recognition systems, algorithms, photography and photo retouching apps, and targeted ads are all examples. Facial recognition is more than just the latest cool update on your new iPhone. It’s commonly used by law enforcement to identify and locate potential suspects.[9] However, this technology frequently misidentifies people of color—10 to 100 times more frequently than White Americans. [10] For example, a false facial recognition match sent a New Jersey man to jail for crimes he did not commit. Nijeer Parks, an African American, spent 11 days behind bars in 2019 after a facial recognition system mistakenly matched him with a fake ID left at a crime scene. The match was enough for prosecutors and a judge to sign off on a warrant for Parks’ arrest.[11] There are several other stories just like this one, these new technological devices are causing adverse effects in innocent people’s lives.

Another such tool is the mortgage algorithms used by online lenders to determine rates for loan applicants.[12] These algorithms continue to use flawed historical data from a period when African Americans could not own property.[13] In 2019, a study by UC Berkeley researchers found that mortgage algorithms show the same bias to African American and Hispanic borrowers as human loan officers.[14] These biases cost minority groups roughly half a billion dollars more in interest every year, compared to others.[15] African American content creators on the popular social media app, TikTok, too have complained about the racial bias they encounter with the app’s algorithm. Could this phenomenon be affecting other social media apps too?

New technology continues to be developed and enhanced as our society progresses. But how can we combat techno-racism before it takes over? Well, one way is to hire and train more diverse tech professionals. Welcoming more diverse voices in tech, will aid in the process of uncovering discrete biases.[16] That means thinking critically about the ways racial bias can affect our content, committing to anti-racism work, asking hard questions, and dedicating ourselves to amplifying the voices of minority creators and designers.[17] In 2019, federal lawmakers introduced the Algorithmic Accountability Act, which requires companies to review and fix computer algorithms that lead to inaccurate, unfair or discriminatory decisions.[18] The act is still in the works and has yet to be passed. With the growing age of technology, the legal ramifications of techno-racism may become a bigger issue sooner rather than later. But, if we combat the problem now, we can protect people from this new form of inequality.

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[1] Olga Akselrod, How Artificial Intelligence Can Deepen Racial and Economic Inequalities, Aclu (July 13, 2021), https://www.aclu.org/news/privacy-technology/how-artificial-intelligence-can-deepen-racial-and-economic-inequities.

[2] Faith Karimi, People of color have a new enemy: techno-racism, Cnn (May 9, 2021, 8:21 AM), https://www.cnn.com/2021/05/09/us/techno-racism-explainer-trnd/index.html.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Karimi, supra note 2.

[8] Id.

[9] 4 Examples of Racism in Technology and What We Can Do About It, Tgw Studio (Aug 5, 2021), https://tgwstudio.com/4-examples-of-racism-in-technology-and-what-we-can-do-about-it/.

[10] Id.

[11] Karimi, supra note 2.

[12] Id.

[13] Id.  

[14] Id.  

[15] Id.

[16] See Tgw Studio, supra note 9.

[17] Id.

[18] Id.  

By Amanda Greene

The term ‘designer babies’ refers to genetic modifications made to pre-implantation embryos to modify the characteristics that the offspring will possess.^[1] Although the research is still developing in the United States, at the end of November 2018, Chinese geneticist He Jiankui declared he had implanted embryos genetically modified with the CRISPR-Cas9 technique into two women.^[2] This announcement has aroused many comments and controversies in public opinion and the scientific community. Many people find it terrifying even to consider the possibility that parents could desire to select their children’s genes, particularly for traits other than diseases.

What is the specific objection? Of course, there are safety concerns, particularly those brought on by unanticipated and adverse side effects. For instance, studies on mice have demonstrated that the insertion of a specific gene improved their ability to navigate mazes but also caused them to be more sensitive to pain.^[3] Such a scenario would eliminate most, if not all, forms of genetic modification. All new technologies create safety concerns; however, they rarely result in requests for a complete ban.

Perhaps the issue is completely foretelling the traits one’s offspring will or won’t have rather than exercising influence over features. It is possible to believe that genetic treatments significantly impact your children’s personalities more than other child development methods. If this is the argument, it illustrates the “fallacy of genetic determinism,” the idea that our genes determine our traits.^[4] Of course, genes play a part in the features we possess, but what makes us who we are is the consequence of numerous genes interacting with one another and the environment.^[5] Even if you had access to a child’s complete genome, like a clone, a parent would not have full control over the child’s traits. “All that anyone will ever obtain through the use of cloning, or any other reproductive technology, is an unpredictable son or daughter, who won’t listen to his parents any more than my children will listen to me,” said Princeton microbiologist Lee Silver.^[6] As a result, the term “designed babies” itself is misleading. Nobody will ever be able to “create” a child, or foretell the traits, aptitudes, skills, virtues, and vices the child will possess.

Admittedly, when parents decide which genes to give their kids, they do it without the kids’ knowledge or permission. But this applies to everyone, not just those who have had their DNA altered. None of us get to pick our DNA. What moral importance does it have that our genes were forced upon us because of someone’s decision rather than through random chance? Some scientists argue that the advancement of ‘designer babies’ “will have profound moral and cultural implications as the science progresses: Societies can come to view human life—all life, modified or not—as something that can easily be toyed with and discarded.”^[7]

Additionally, like other “assisted reproductive technologies,” many more embryos are created than are implanted and subsequently delivered. The remaining embryonic human beings are either frozen in perpetuity or destroyed. This research poses an immediate threat to the right to life of the unborn.”^[8] With the increasing concerns about an unborn fetus’ life in the United States, the advancement of ‘designer babies’ will cause several legal implications on how to govern these situations.

Hence, we should not always do something just because we can do it. Humans must govern technology, not the other way around, to avoid becoming a technocracy. At the same time, we must avoid falling into the Luddite trap. Only if technology is constrained by morality will new biotechnologies be able to promote human flourishing and cure and prevent disease.

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^[1]  Andrea Lavazza, Parental Selective Reproduction: Genome-editing and maternal behavior as a potential concern, 10 Frontiers In Genetics 532, 532-34 (2019).

^[2] Id.

^[3] Antonio Regalado, Exclusive: Chinese scientists are creating CRISPR babies, MIT Tech. Rev. (Nov. 25, 208), https://www.technologyreview.com/2018/11/25/138962/exclusive-chinese-scientists-are-creating-crispr-babies/.

^[4]  Bonnie Steinbock, Designer babies: Choosing our children’s genes, 372 The Lancet 1294-95, 1294 (2008).

^[5] Id.

^[6] Id.

^[7] Ryan Anderson, Just because we can create genetically modified babies doesn’t mean we should, The Heritage Found. (Dec. 17, 2018), https://www.heritage.org/marriage-and-family/commentary/just-because-we-can-create-genetically-modified-babies-doesnt-mean.

^[8] Id.

By: Zebedayo Masongo

In 2017, Virgil Abloh and Nike collaborated on one of the most iconic shoe releases of the last decade.[1] “The Ten” took ten Nike silhouettes and reconstructed them for an exclusive collection that till this day has sneaker collectors scrambling to acquire. Some of the sneakers in this collection have sold for as much as $2000 on the resale market.[2] As interesting as this is, one of the most unique aspects of this collection was the industrial red zip tie that was a design aspect of all of the sneakers.

The zip tie was used as early as 2016.[3] This collection was the collection that put it on the map for sneaker culture and for culture in general. The industrial red zip tie became synonymous with Virgil Abloh and his Off-White brand. With all of the newfound fame, the logical next step would be to protect the iconic design aspect. Trademark would be the proper route, and that is just what was done. Unfortunately, the United States Patent and Trademark Office rejected the trademark multiple times.[4] They argued that the red zip tie was functional and not distinctive.[5]

With the global sneaker resale business set to generate up to $30 billion in 2030, it’s not surprise that Off-White is attempting to protect such valuable property.[6] The damage that could be done if a design like this is not protected could be catastrophic to the value of a brand and could de-incentivize creatives to create certain things if they know that implicitly there are no protections set up for them.

In order to counter the rejections, the lawyers for Off-White offered a few counterarguments. One of the first counterarguments that was presented was that the zip tie was not absolutely necessary or indispensable to the design of the shoe.[7] They also highlighted that no other company was using the zip tie in the same way that they were, so granting the trademark for the zip tie would have no anticompetitive effects.[8]

Thankfully, after years of back and forth, Off-White finally secured the trademark on March 29, 2022.[9] This is significant because it expands the limits on what kinds of design aspects can be trademarked and also changes how sneaker law is approached. In a world where sneaker culture is growing at exponentially fast rate, it is inevitable that other companies will attempt to protect the intellectual property that is embedded in their sneaker designs. Counterfeiters, resellers, retail stores, designers, and brands all have a vested interested in a development like this. It would not be surprising that over the next few months we saw more companies attempting to file trademarks for certain aspects of their sneaker designs. It is an exciting time both for the creator and the consumer.

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[1] Virgil Abloh and Nike Announce New Design Project “The Ten,” Nike News (Aug. 21, 2017), https://news.nike.com/news/virgil-abloh-nike-the-10.

[2] Fabian Gorsler, A Complete Guide To Off-White X Nike Resell Prices, Highsnobiety (2019), https://www.highsnobiety.com/p/off-white-nike-resell-price-analysis/.

[3] Ian Servantes, Off-White Secures Zip Tie Trademark After Four-Year Battle, Input Mag (Mar. 30, 2022), https://www.inputmag.com/style/off-white-zip-tie-trademark-registration.

[4] Id.

[5] Id.

[6] Curtis Bunn, Sneakers Are So Hot, Resellers Are Making A Living Off Of Coveted Models, NBC News (Oct. 23, 2021), https://www.nbcnews.com/news/nbcblk/sneakers-are-hot-resellers-are-making-living-coveted-models-rcna3619. 

[7] Aaron Chow, Off-White Secures Trademark For Its Red Zip Tie, Hypebeast (Mar. 31, 2022),  https://hypebeast.com/2022/3/off-white-wins-trademark-registration-patent-red-zip-tie-news.

[8] Id.

[9] Id.

By: Gabriela Groman

The New York Court of Appeals held, on March 22, 2022, that interactive fantasy sports contests do not constitute “gambling” within the meaning of New York’s constitutional restriction on gambling in White v. Cuomo. [1] The Court reasoned that fantasy sports betting are not “predominately skill-based competitions.” [2] But where does this leave fantasy better’s privacy and security on the numerous apps used throughout the season?

Since the launching of sportsbook apps, those who gamble online increase their privacy and security risks. [3] During the first 16 days of mobile sports betting in New York State, participates wagered over $1.1 billion. [4] Data being collected by betters can include: birthdates, Social Security numbers, physical addresses, email addresses, financial and banking information, geolocation, e-wallets, wire transfers, and promotional credits. [5] Based on NYCRR Part 5329 and 5330, operators are meant to have in place a monitoring system that can identify any unusual or suspicious wagering activity. [6]

Operators, and sports betting fans, should be aware that a sports betting app’s security data may flow through third-party contracts, which will increase the risk of privacy and security breaches. [7]

Not only is it vital that operators maintain their customers’ private information for their customers’ sake, but since New York has the highest tax rate on mobile sports betting in the nation, operators have to worry about the negative publicity that would come with a security breach, thus leading to a major loss in revenue. [8] Operators must carefully work through vendor management in order to maintain security and contain cyber risks. [9]

Even with the privacy and security risks, it does not seem as though sports betting will slow down anytime soon. Betters, like always, should be cautious of the sites they use to wager and the information they are freely giving to apps

[1] New York Court of Appeals Rules That Interactive Fantasy Sports Contests Do Not Constitute Gambling Under State Constitution, Gibson Dunn, March 29, 2022, https://www.gibsondunn.com/wp-content/uploads/2022/03/new-york-court-of-appeals-rules-that-interactive-fantasy-sports-contests-do-not-constitute-gambling-under-state-constitution.pdf.

[2] Id.

[3] Klein, Sharon and Daniels, Jennifer, A Safe Bet? Privacy and Security Law for Online Sports Wagering in New York State, New York Law Journal, March 29, 2022, https://www.law.com/newyorklawjournal/2022/03/04/a-safe-bet-privacy-and-security-law-for-online-sports-wagering-in-new-york-state/?slreturn=20220230105039.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Spector, Joseph and Gronewold, Anna, Mobile sports betting tops $3.5B in wagers, Politico, March 29, 2022, https://www.politico.com/newsletters/new-york-playbook-pm/2022/03/11/hed-goes-here-00016456.

[9] See [3]