Blog Post

A Reaction to a Shortage—Patents about EpiPen

By: Laura O’Brien

In 2004, Congress passed the Federal Food, Drug, and Cosmetic Act, requiring food labels to include the eight major food allergens: milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, and soybeans. Prior to the Act, many foods were mislabeled, or failed to label one or more of these allergens. By mislabeling, or failing to label foods, individuals with allergies were vulnerable to allergic reactions to seemingly safe foods. Allergies, to food, bees, and other common allergens, put approximately 30,000 individuals in the hospital every year due to anaphylactic reactions. Individuals with severe allergic reactions rely on EpiPen’s to provide relief from symptoms. An EpiPen contains epinephrine, otherwise known as adrenaline. One injection from an EpiPen allows for 20 to 30 minutes after injection to suppress the allergic reaction and allow for an individual to reach medical care. Typically, individuals with allergies carry two EpiPen’s to offer either a backup, or an extra 30 minutes.

Pfizer and Mylan, the drug maker and distributor, came under heat for increasing the price to the life-saving device. Pfizer and Mylan were then subject to several lawsuits arising out of the price hike. Pfizer and Mylan have lacked competition in the EpiPen market, essentially having a monopoly in the market. By having a monopoly, the drug companies are able to charge a higher price, and consumers have no option other than to pay what is required. Unlike many other pharmaceuticals, EpiPen’s consist of non-patented epinephrine and a patented injector, the patent is owned by Mylan. Previously, the FDA wouldn’t approve any EpiPen alternative that had a different injector than the one patented by Mylan. As a result, no other pharmaceutical companies were able to produce an alternative that would be approved by the FDA.

Recently, the FDA has announced its commitment to expedite the approval process for alternative treatments. As a result, the FDA recently approved an auto-injector from the Israel based pharmaceutical company, Teva, creating competition for Pfizer and Mylan. Although Mylan introduced a generic EpiPen in 2016, this introduction did not create competition between companies, allowing Mylan and Pfizer to continue to sell both products at a high price. The FDA hopes the introduction of competition into the market will allow for lower prices, and more accessibility to those who need the life-saving drug.

In 2017, Mylan recalled several lots of EpiPen’s due to potential defects. The recall resulted in the FDA reprimanding Pfizer for failing to investigate complaints they hade received about EpiPen failures, some of which resulted in death. More recently, a shortage of EpiPen’s has continued, causing concern for parents of children with allergies going back to school who can’t seem to track down any pharmacies that are stocked with EpiPen’s.

Although the approval of the generic gives hope for those who need EpiPen’s and haven’t been able to afford or find them, the approval will not allow immediate relief. The shortage will continue until manufacturing and distribution can catch up with the need.

 

Cites:

Sonja Haller, How parents can find a lifesaving EpiPen for their kids during current shortage, USA Today (Aug. 22, 2018), https://www.usatoday.com/story/life/allthemoms/2018/08/22/find-epipen-parents-can-try-3-things-find-one-during-shortage/1065096002/.

Nathan Bomey, FDA approves first generic EpiPen in blow to Mylan, USA Today (Aug. 08, 2018), https://www.usatoday.com/story/money/2018/08/16/generic-epipen-teva-pharmaceuticals-mylan/1010118002/.

Avik Roy, FDA’s New Generic EpiPen Approval Exemplifies Progress on Drug Price Reform, Forbes (Aug. 23, 2018), https://www.forbes.com/sites/theapothecary/2018/08/23/fdas-new-generic-epipen-approval-exemplifies-progress-on-drug-price-reform/#.

Joseph Walker, EpiPen Shortage Hits Back-to-School Season, The Wall Street Journal (Aug. 25, 2018), https://www.wsj.com/articles/epipen-shortage-hits-back-to-school-season-1535202001.

FDA approves Teva’s generic of Mylan’s EpiPen, 25 No. 14 Westlaw J. Med. Devices 08 (2018).

 

Using Neuroscience to Understand the Criminal Mind

By: Dejaih Johnson

The legal system is primarily reactive in its processes. Whether through common law to prevent the reoccurrence of a certain act, or trials to determine the culpability of one accused of committing a certain act, much of the legwork is done after commission. However, what if we could get ahead of this and identify those prone to committing crimes before the commission? For ages we have marveled with the criminal mind, making countless attempts to understand what makes these individuals tick, and a team at Cornell University may have begun taking steps in the right direction.

Recently, Valerie Reyna and her team have made great strides with a study of self-reporting criminal and non-criminal tendency individuals. The team has examined the neurological correlations between risk-preferences and criminality in adults. In part one, participants were offered a choice between $20 guaranteed, or a coin flip to gamble for double or nothing. Results found that individuals with higher criminal tendencies chose the gamble, arguing that $40 is more than $20. In part two, participants were given an option between losing $20, or flipping a coin to lose $40 or lose nothing. Those with lower criminal tendencies chose to gamble, conversely, those with higher criminal-tendencies chose a sure loss over the gamble.

These results offer a much different approach to understanding the criminal mind – a cognitive approach. In particular, Reyna’s study illustrates that it may be possible to identify and deter future high criminal-tendency individuals before a commission. Perhaps the most important takeaway from this study comes from Reyna’s team monitoring brain activation during completion of the tasks. After reviewing the results, the team found greater activation in temporal and parietal cortices for individuals that had higher criminal tendencies. These two areas of the brain are mostly involved with cognitive analysis and reasoning. This suggests that higher risk-takers utilize these two areas to maximize their winnings and minimize their loss at all costs. Those that are ordinary risk-takers showed brain activity in the amygdala and striatal areas, commonly associated with emotional reactivity and reward motivation. This implies that ordinary risk-takers are allured by the sure winnings of $20 and emotionally deterred from the guaranteed loss, favoring the possibility of losing nothing.

Moving onward, this study further illustrates that research into the criminal mind is important in creating policy. Reyna’s study demonstrates that the criminal mind and criminal reasoning is not always the same. Therefore, public policy surrounding the legal system should reflect this. Reyna argues that this study provides a greater understanding of brain behavior and can result in a more just system to protect both the public and the rights of the individual.

Beyond the reactive implications, the team at Cornell has provided an understanding of how to prevent criminal behavior proactively. When asked about the consequences of her study, Reyna stated, “I think this can really give us insight into how to help young people.” For example, she continued, this may help distinguish those who will and will not become criminals, in addition to helping us understand their behaviors and how to rehabilitate them. No matter which way you look at the results, it is readily apparent that studies like that conducted by Reyna and her team significantly contribute towards understanding criminality and the criminal mind. It is expected that this will excite new, novel research into the topic.

Cite:

Does neuroscience hold the key to understanding the criminal mind?, ScienceDaily (Sept. 5, 2018), https://www.sciencedaily.com/releases/2018/09/180905140235.htm.

Is Your Phone Listening to You?

By: Emma Coppola

Voice technology, for so many devices, has inevitably changed the way we communicate and manipulate our surroundings. “Talk to text” on our phone, helps us send messages to friends and family, when our hands might not be free. “Alexa”, with Amazon, can turn the lights on for us when we walk into our apartments.  Siri for iPhone, and Cortana for Android are at the ready to answer our most pressing questions, such as “What year did Brittany Spears shave her head?” and “Do bugs have feelings?” But all of this begs an even greater question, which is, “Are our devices listening to us?”

Earlier this year in July 2018, the Energy and Commerce Committee sent letters to Apple’s CEO Tim Cook and Alphabet (Google’s parent company) CEO Larry Page, concerned with whether these devices were listening, or “eavesdropping” on people’s conversations. While these voice technologies prove to make our lives all a bit easier at times, consumers and lawmakers were worried that smartphones were collecting data and listening to conversations when the voice activation had not been triggered.

Apple responded stating that Siri is triggered through voice assistants like “Hey Siri” and only then does the smart device begin to process voice commands. Apple also stated that the guidelines of their program require the iPhone to show some sort of visual indicator when the device is collecting data (that little purple thing on your phone when you’re talking to Siri). There is also a microphone and audio setting on the phone, where users can revoke the device’s access to “hear” commands.

Some experts in the field of computer science and technology say users have nothing to worry about. “Its categorically untrue that this is happening” stated Serge Egelman, the director of security and privacy research at Berkley’s International Computer Science Institute. On the flip side, others are concerned and troubled by these devices’ powers. “We really need a baseline privacy law in the United States that protects people, we can’t just rely on Apple’s policies or other big tech companies” stated Chris Calabrese, VP of policy at the Center of Democracy and Technology.

While the opinions may be fluctuating, the issue and concern of a reasonable expectation of privacy still stand, especially when interacting with technology. When will the way technology works cross the “privacy line”, or has it already?

 

Cites

Kaya Yurieff, Apple: No, your iPhone isn’t eavesdropping on you, CNN Tech (Aug. 8, 2018, 5:12 PM), https://money.cnn.com/2018/08/08/technology/apple-iphone-listening/index.html.

Department of Justice to Crack Down on Safe Injection Facilities

By: Joseph Mallek

U.S. Deputy Attorney General Rod Rosenstein was interviewed on the local Philadelphia radio station, WHYY, where he stated that the Department of Justice would be taking, “swift and aggressive action” against cities which open Safe Injection Facilities. Major cities across the United States are planning to open Safe Injection Facilities to combat overdose deaths by providing centers where users are monitored by staffers who are equipped with the opioid antidote naloxone and oxygen. With overdose-related deaths increasing to epidemic levels in the past several years, cities are looking for a new approach to save lives. Safe Injection Facilities are one option, modeled after similar facilities in Europe and Canada, to provide a quicker response in the event of an overdose. City health officials in Philadelphia stated that in countries with these kinds of facilities, overdose deaths have dropped.

Rosenstein stated in an interview on WHYY and in a subsequent opinion column he wrote in the New York Times, that the Safe Injection Facilities are a violation of federal law. Under federal law, it is illegal to maintain a location for the purposes of facilitating illegal drug use, even though the facility staffers do not provide users with illegal drugs or assist in the use of illegal drugs, by either injection or smoking. Rosenstein argued in his opinion column that in addition to these facilities being illegal under federal law, they have a detrimental impact on the communities they sit through the flood of drug users to an area, bringing with them the peripheral criminal activity associated with illegal drug use. Officials in cities planning to open Safe Injection Facilities – in San Francisco, Philadelphia, New York City, Seattle and elsewhere – have pushed back against the statements of Rosenstein and the Department of Justice, creating the possibility of another standoff between cities federal authorities.

Citations:

Lenny Bernstein & Katie Zezima, Cities defiant after Justice Department’s threat on ‘supervised injection sites’, The Washington Post (Sept. 4, 2018), https://www.washingtonpost.com/national/health-science/cities-defiant-after-justice-departments-threat-on-supervised-injection-sites/2018/09/04/fcf798d6-b056-11e8-a20b-5f4f84429666_story.html?utm_term=.ffcccbe2eefc.

Bobby Allyn, DOJ’s Rosenstein: If Philly opens injection site, U.S. crackdown will be swift, WHYY (Aug. 29, 2018), https://whyy.org/segments/dojs-rosenstein-if-philly-opens-injection-site-u-s-crackdown-will-be-swift/.

Rod J. Rosenstein, Fight Drug Abuse, Don’t Subsidize It, The New York Times (Aug. 27, 2018), https://www.nytimes.com/2018/08/27/opinion/opioids-heroin-injection-sites.html.

In-N-Stout Beer’s Marketing Success based on an In-N-Out Burger’s Cease and Desist Letter

By Erin Kelly

As a small brewery in California, Seven Stills Brewery & Distillery (“Seven Stills”) uses creative tactics to conjure up business. Among their marketing strategies is intentional trademark infringement. On July 12, 2018, Seven Still posted a picture to the social media platform, Instagram. The post displayed the In-N-Stout beer can design, advertising the upcoming release of their new Neapolitan milkshake stout. Seven Still was under no impression that the popular burger joint, In-N-Out, would allow the blatant trademark infringement. “We were pretty certain it wouldn’t fly,” a later Seven Stills Instagram posted explained. “If we really wanted to get away with it, we’d hide the art until release, and be sold out before anyone complained.”

In the original picture posted of the In-N-Stout beer can design, Seven Stills tagged In-N-Out’s Instagram account, just to be certain it was seen. In-N-Out was quick to respond with a cease and desist letter, requesting Seven Stills to refrain from further use of In-N-Out’s trademarks. Seven Stills seized the opportunity it hoped to create all along – major publicity. The brewery posted the cease and desist letter to Instagram, highlighting In-N-Out’s clever use of brewing puns throughout the letter. Seven Stills complied with the letter and redesigned the cans and the beer name to remove any relation from In-N-Out. Capitalizing on the attention, disguised as a symbol of their comradery, Seven Stills purchased 100 burgers from In-N-Out to give away to the first 100 customers that purchased their new stout. They also posted multiple photos of the new beer can design in front of the In-N-Out sign and food, continuing to ride on the coattails of In-N-Out. The marketing strategy was successful, as the new stout sold out quickly.

This In-N-Stout has not been the first or the last of Seven Stills’ infringement marketing ploys. The replacement design for In-N-Stout featured a silhouette of Kanye West, filled in with lyrics from one of the singer’s recent songs. Previously, Seven Stills has also produced beer cans with an uncanny resemblance to the product design of Swedish Fish and TNT Fireworks. Whether there will be any trademark misappropriation suits and how long Seven Stills can thrive on this market strategy are highly-focused.

Citations:

Brendan Weber, ‘In-N-Stout Beer’ Spurs Punny Cease and Desist Letter from Burger Chain, NBC Bay Area (Aug. 15, 2018, 10:43 AM), https://www.nbcbayarea.com/news/local/In-N-Stout-Beer-Punny-Cease-and-Desist-Letter-490937491.html.

Luis Gomez, ‘In-N-Stout’ Beer Offends In-N-Out. Burger Chain Crafts Response Full of Beer Puns, San Diego Union-Trib. (Aug. 15, 2018, 12:25 PM), http://www.sandiegouniontribune.com/opinion/the-conversation/sd-in-n-stout-beer-offends-in-n-out-trademark-20180815-htmlstory.html.

Mark Saunders, In-N-Out Sends Pun-Laden Cease and Desist to California Brewery over ‘In-N-Stout’ Beer, 10 News – San Diego, California (Aug. 15. 2018, 6:13 PM), https://www.10news.com/news/in-n-out-sends-cease-and-desist-to-california-brewery-over-in-n-stout-beer.

Seven Stills (@sevenstills), Instagram, https://www.instagram.com/p/Bmji3gxnLkG/ (last visited Aug. 31, 2018).

Seven Stills (@sevenstills), Instagram, https://www.instagram.com/p/Bk1h6pnnyin/?taken-by=sevenstills (last visited Aug. 31, 2018).

Seven Stills (@sevenstills), Instagram, https://www.instagram.com/p/Blo896Bnu2L/?taken-by=sevenstills (last visited Aug. 31, 2018).

Tethered Drones

By: Cody Andrushko

Drones (also known as Unmanned Aircraft System (“UAS”)) are currently a subject of controversy within the United States and globally due to the potential safety, security, and privacy threats that people face when exposed to them. Currently, drones are operated both for recreational and commercial purposes.

Tethered drone, a hybrid field of drones, has recently seen new innovation and implementation. Companies, such as Fotokite, who recently was awarded one million dollars in the GENIUS NY business accelerator competition, has developed patented flight control processes that enable kite-like operation

Tethered drones, as opposed to free-flying drones, have potentially three significant advantages: (1) power, (2) security, and (3) control.

Having the device tethered has allowed companies to develop drones that can be continually powered for prolonged operation. As a result, tethered drone devices and services have seen recent marketing to municipal governments for implementation within police forces and fire departments. Tethered drones often offer better vantage points and larger perspectives than current tools used, which enables first responders to better assess quickly evolving and often-dangerous situations, where information saves lives. Drone cameras can be outfitted with an array of sensors, which can enable tethered drones to be tailored to particular market sectors, such as infrared cameras for fire departments.

Tethered drones have seen practical application by the secret service that is operating an undisclosed model of the tethered drone while protecting President Trump. Tethered drones will likely see larger implementation for security purposes in the future, as they are often: portable; designed for quick set-up; able to provide aerial imaging (for often larger and better perspectives); enabled to operate for a long period of time permission; and incorporated with video feed and control software that can be hard lined into the drone, which enables more secure operation.

Further, the tether enables operators to have more control over the device. While the drone still has a radius of movement, the tether enables more control when unforeseen weather or operation issues occur because it is still limited by how much tether has been provided.

However, although some people seek to avoid UAS regulations by tethering their drone and arguing that it is more akin to a balloon or kite, than a drone; the FAA does not agree. The FAA addressed this issue in a recent document [Docket No.: FAA-2015-0150], “…a small unmanned aircraft that uses powered systems for actions such as propulsion or steering is not a balloon or kite subject to part 101” and further states that “the definition of small UAS in this rule includes tethered powered small UAS.”

 

Citations:

  1. Patrick C. Miller, Swiss company Fotokite wins $1 million business competition, UAS magazine (April 25, 2018), http://uasmagazine.com/articles/1848/swiss-company-fotokite-wins-1-million-business-competition-award.
  2. US Patent No: US 9446858 B2, https://patents.google.com/patent/US9446858B2/en?q=tethered&q=drone&status=GRANT.
  3. Trevor Mogg, Tethered drones to help Secret Service provide security for president, Digital Trends (Aug. 3, 2017), https://www.digitaltrends.com/cool-tech/secret-service-drones-president-security/.
  4. Billing Code 4910-13-P, Department of Transportation: Federal Aviation Administration, Operation and Certification of Small Unmanned Aircraft Systems, https://www.faa.gov/uas/media/RIN_2120-AJ60_Clean_Signed.pdf.

FDA Approves First Cancer-Spotting DNA Test

By: Rachel Theodorou

On March 6 2018, the FDA approved, with warnings, the first ever breast cancer-spotting DNA test. This test, produced and distributed by California-based company 23andMe, searched for three DNA mutations that are found most commonly in people of Jewish descent. The test “analyzes DNA from a self-collected saliva sample, and the report describes if a woman is at increased risk of developing breast and ovarian cancer, and if a man is at increased risk of developing breast cancer or may be at increased risk of developing prostate cancer.”

While this may seem like a step in the right direction, the test is able to detect only three out of over 1,000 breast cancer-causing genes, none of which are the most common BRCA1/BRCA2 mutations. Additionally, consumers do not need a doctor’s prescription to obtain and use the test. The National Society of Genetic Counselors stated, “[p]eople shouldn’t take the test without talking to an expert…consumers who test positive for these mutations need to be retested in a clinical setting under the supervision of a medical professional before moving forward with any medical decisions.” The group also opined that anyone who is interested in finding out more about their individualized risk should consult with a genetic counselor.

Cite:

Maggie Fox, FDA OKs 23andMe home breast cancer DNA test, with warning, NBC News (last visited Mar. 8, 2018), https://www.nbcnews.com/health/health-news/fda-oks-23andme-home-breast-cancer-dna-test-warning-n854206.

The Innocence Project and DNA Exoneration

By: Kristian Walker

Steven Barnes was only 19 years old when the body of his Whitesboro High School classmate, Kimberly Simon, was found raped and murdered on the side of the road in 1985. Witness testimony revealed that a man matching Barnes’ description was seen near the scene that night, as well as a truck similar to his. However, other witnesses put Barnes at a local bowling alley during the night in question. After twelve hours of questioning a couple of days after the incident, Barnes was released. It was not until two years later that he was arrested and charged with rape, sodomy, and murder.

The conviction of Barnes was based on inconclusive evidence and three forms of unvalidated forensic science. Serology results and DNA testing were found to be inconclusive, meaning they could not definitively be matched to Barnes. The first form of forensic science used was a photographic overlay of the jeans the victim was wearing and an imprint found in Barnes’ truck. This test found only that the patterns were similar. Second, hair analysis was conducted on two hairs found in Barnes’ truck. The hairs were found to be only similar to that of the victim while dissimilar to that of Barnes. There were also no findings of hair on the victim that were similar to Barnes. Finally, tests were conducted on dirt taken from Barnes’ truck and the soil at the crime scene two years later and they were found to have similar characteristics. None of these three forms of forensic science have been validated and their use in court was strictly prejudicial rather than probative. Further, a prison informant testified that Barnes confessed to the murder to him. However, the informant was not located in a cell near Barnes’ and he could not recall when or where the conversation took place. Barnes was convicted of first degree rape, first degree sodomy and three counts of second degree murder. His sentence was 25 years to life.

Barnes’ mother was shocked to hear the guilty verdict. She had raised a well-rounded and happy son. Barnes had no criminal history or history of bad behavior; he played football, did well in school, and had a lot of friends. He was “a clean cut kid” and she knew he was innocent.

It was not until 2007 that the Innocence Project was able to reopen his case. At this point in time, almost two decades later, DNA testing and forensic science had seen many advancements. The new advanced DNA testing revealed conclusive results that the bodily fluids found on the victim did not match Barnes. Barnes was freed in 2008 and officially exonerated in 2009 at the age of 43. Throughout his two decades in prison, Barnes never gave up hope and neither did his family. His mother visited him regularly and worked tirelessly to prove his innocence. Freed right before Thanksgiving, Barnes was excited to finally celebrate a holiday with his family and have a home-cooked meal. Further, he was intrigued by cellphones, social media, and the internet. Barnes stated that he is not angered by the twenty years of lost time, rather, he is excited to start his life.

Since his wrongful conviction, Barnes sued the state and won a $3.5 million dollar settlement. He also has his own snow plowing business and works with the Oneida County youth. In his spare time, he tries to travel as much as possible. His goal is to aid in improving the justice system to ensure that wrongful convictions do not continue to happen. For this reason, he works closely with the Innocence Project in an attempt to pay it forward. To this day, the actual perpetrator has not been found.

Cites:

Sylvia Barnes, Mother of Exoneree Steven Barnes, Speaks (Dec. 18, 2016), https://www.youtube.com/watch?v=qmPkest9yZI

After 20 years in prison, Marcy man walks free (Nov. 25, 2008), http://www.syracuse.com/news/index.ssf/2008/11/da_dna_clears_upstate_ny_man_j.html.

Steven Barnes: Life After A Wrongful Conviction (May 26, 2016), http://www.wgrz.com/video/news/steven-barnes-life-after-a-wrongful-conviction/71-2202659

Group, S.B. (n.d.), Judge overturns man’s rape and murder convictions, (retrieved February 20, 2018) http://cnycentral.com/news/local/judge-overturns-mans-rape-and-murder-convictions

Press, T.A., UPDATE: Wrongly jailed NY man formally cleared of murder (Jan. 9, 2009), http://auburnpub.com/news/update-wrongly-jailed-ny-man-formally-cleared-of-murder/article_ca946c2b-d152-595e-b0c4-0b3b6c2ac248.html

Amazon’s New Patented Wristbands Can Track Warehouse Worker’s Productivity

By Samantha Cirillo

New privacy and workplace concerns arise as Amazon gains two patents on wristband technology designed to monitor and steer warehouse worker’s everyday movements. The patent application was filed in 2016 and Amazon received both patents in early 2018. The wristband technology allows the company to trace where the workers are in relation to inventory bins and uses vibrations to steer the employees towards the correct bin. Amazon states that the purpose of the new technology would be to save time while workers are filling orders.

However, the new technology patents are raising several concerns for workers in the industry. First, employees are concerned for their privacy. The wristbands would track activity outside of the employee’s actual work,  lunches, breaks, or any worker inactivity. Another voiced concern is how the wristbands could affect workplace conditions, including setting unrealistic daily goals. One employee stated that the bands are only a placeholder until the company can replace workers with robots. Another stated that the bands are intended to allow the company to control humans like they robots.

There is no news on the creation or implementation of the patented technology, however, some say it is only a matter of time.

Cites:

Ceylan Yeginsu, If Workers Slack Off, the Wristband Will Know. (And Amazon has a Patent for It.), New York Times (Feb. 1, 2018), https://www.nytimes.com/2018/02/01/technology/amazon-wristband-tracking-privacy.html?rref=collection%2Fsectioncollection%2Ftechnology&action=click&contentCollection=technology&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=sectionfront

Alan Boyle, Amazon Wins a pair of Patents for Wireless Wristbands that Track Warehouse Workers, GeekWire (Jan. 30, 2018), https://www.geekwire.com/2018/amazon-wins-patents-wireless-wristbands-track-warehouse-workers/

 Jessica Scladebeck, Amazon Patents Wristbands Designed to Steer Employee’s Movements, Daily News (Feb. 1, 2018), http://www.nydailynews.com/news/national/amazon-patents-wristbands-designed-steer-employees-movements-article-1.3792895

Web Site Accessibility for Individuals with Disabilities

By: Laura O’Brien

Applying for college, or graduate school, is a stressful time for any individual. For individuals with disabilities it can be an even burdensome when university websites are not accessible to them. The Americans with Disabilities Act (ADA) is a federal regulation that requires public entities be accessible to individuals with disabilities. However, even though the ADA was updated in 2008, it fails to mention an individual’s rights to web accessibility. As a result, there have been many lawsuits regarding accessibility to company’s websites. Without regulation in the ADA, the decision on how to regulate accessibility has been up to individual judges, resulting in a wide range of decisions and leaving widespread uncertainty for plaintiffs.

In 2016, the National Association of the Deaf brought suit against Harvard on behalf of a class of individuals who are deaf or hard of hearing. The individuals claimed they were not provided with equal access to Harvard’s website and denied equal enjoyment to the site. The class of individuals was not able to view online lectures or educational materials that had been posted. A failure to take steps to ensure that no individual with a disability is excluded or denied services is a violation of Title III of the ADA. The Court determined the type of auxiliary aid Harvard provides is up to Harvard, rather than the deaf and hard of hearing individuals. Though the type of auxiliary aid is at the website owner’s discretion, there is still a requirement that the owner put in place an auxiliary aid to make the website accessible to the deaf and hard of hearing individuals.

Recently, eight suits similar to the case above have been filed in federal court for Emanuel Delacruz, a blind individual. Mr. Delacruz claims that in his attempt to access eight college’s websites, none were accessible, and therefore, violated the ADA. Professor Arlene Kanter states that students increasing awareness with their right to access has recently increased, and will likely continue to increase the number of similar law suits. However, Mr. Gottlieb, a founder of the firm, Gottlieb and Associates, explained without appropriate government intervention and reform, the interest of those who need it most will not be advanced.

The results of Mr. Delacruz’s suits remain uncertain. Until the ADA is updated to include an individual’s rights to web accessibility, there are no regulations, causing a range of decisions in response to similar suits.

Citations:

Nat’l Ass’n of the Deaf v. Harvard, 2016 WL 3561622, (Mass. 2016).

Vivian Wang, College Websites Must Accommodate Disabled Students, Lawsuits Say (Oct. 11, 2017), https://www.nytimes.com/2017/10/11/nyregion/college-websites-disabled.html.

Americans with Disabilities Act 42 U.S.C. §12182(a).