Blog Post

It’s A Bird! It’s A Plane! It’s A…Spy Balloon? Are We Prepared For The Advancements In Aerial Surveillance Technology?

By Omnia Shedid

In January 2023, the U.S. Congress received a classified report detailing a country’s efforts to conduct aerial surveillance with “unknown cutting edge technology.”[1]  The technology included quadcopter drones, spy balloons, and other “aerial phenomena” designed to fly at high altitudes and gather sensitive information.[2] On February 2, 2023, U.S. government officials shared that a Chinese spy balloon was flying over the United States.[3] Flights were grounded, the meme-iverse went ablaze, and “balloongate” was trending on Twitter. Made of metal plates and containing gas and other chemicals, the Chinese spy balloon was spotted flying over Montana all the way to the Carolinas.[4] Although military officials said that the spy balloon was not capable of gathering more intelligence than was already being gathered by Chinese satellites, the balloon was shot down by U.S. fighter jets over the Atlantic Ocean.[5] The incident has fractured an already fragile diplomatic relationship between the United States and China, prompting Secretary of State Antony Blinken to cancel his visit to Beijing.[6] The visit would have been the first visit of a top U.S. diplomat since 2018.[7] In addition to the diplomatic ramifications caused by this incident, it has started many other conversations relating to the U.S.’s ability to anticipate and respond to other aerial surveillance threats. Are we prepared for the advancements in aerial surveillance technology?  

While a spy balloon undoubtedly poses a serious threat, the most significant aerial surveillance threat comes from unmanned aerial vehicles (UAVs). UAVs, also known as drones, have evolved into being faster, smarter, and much cheaper to make, positioning them to be the safest option for continued aerial surveillance. According to the U.S. Department of Homeland Security Cybersecurity and Infrastructure Security Agency Interagency Security Committee, the threat risks from UAVs can come from recreational users, intentional operators, or terrorist and paramilitary users.[8] Their wide availability to the average citizen as well as government entities makes their threat notable, as they are much more accessible to people or entities who intentionally want to gather information or cause harm. These aircrafts can also be used for electronic, cyber, and physical attacks. While the exact number of foreign aerial surveillance objects is unclear, more than three-dozen countries have armed drones capable of surveilling and attacking.[9] Some countries, including Russia, Turkey, and China, have increasingly begun to develop drones domestically, which makes it harder for other countries to anticipate one another’s advancements in drone technology.[10] More reliant and stealthy than a spy balloon turned weather machine, drones have adapted to transport chemical and explosive contraband, perform cyberattacks, and surveil much larger areas than ever before.[11] Their range, flight method, and ability to limit its detection are all areas of advancements that could make aerial surveillance much more accessible to foreign governments.[12]

In addition to threats associated with foreign aerial surveillance of the U.S. and its citizens, there has been tension among U.S. federal, state, local, and tribal governments on how to regulate aerial surveillance within the U.S. by government and non-government operators. The Federal Aviation Administration (FAA) predicted that more than 4.3 million unmanned aircraft systems were sold annually as of 2020.[13] The FAA also predicts that there will be 1.4 million drones being operated for recreational use and more than 800,000 commercial drones operated by businesses by 2024.[14] While the FAA attempts to integrate drones into national airspace, it will have to ensure that they are not used to infringe on the privacy of U.S. citizens and that the U.S. government has the capacity and equipment to detect and track threatening activity.[15] For example, in the aftermath of George Floyd’s murder and the protests against police brutality, law enforcement entities increased police reliance on artificial intelligence, facial recognition, and aerial surveillance.[16] In New York alone, a Freedom of Information Act request to the FAA revealed that there are 530 active drone registrations from 85 government entities.[17] This sparked conversations about regulations, or the lack thereof, surrounding aerial surveillance by U.S. and non-U.S. government entities. Among those debates, the FAA has continued to integrate procedures and protocols that curb surveillance drones, both within the U.S. and by foreign entities.

However, the legal and policy considerations around aerial surveillance, from jurisdiction questions to organizational capacity to fight security risks of such surveillance, are complex. In response, the FAA developed the UAV Integration Pilot Program (IPP) to help state, local, and tribal governments work with private-sector entities, such as drone operators and manufacturers, to develop safety guidelines and integration methods.[18] Because there is minimal legislative clarity and competing jurisdiction issues surrounding UAVs and private organizations, the National Telecommunications and Information Administration has developed a best practices document that could support private and commercial users.[19] Additionally, the Department of Homeland Security develops awareness and mitigation resources to be used by security personnel and federal government employees involved in non-military activities.[20] Policy researchers also recommend that Congress develop and pass legislation that limits the aggregate amount of time government drones may surveil as well as increase procedural protections surrounding data retention by drones, and transparency and accountability, among other measures.[21]

Whether it is operated by a foreign actor or a recreational user, it is clear that aerial surveillance technology will continue to advance, and so will its threat. In response, U.S. laws and policies should be modified to prepare for those threats.

[1] Julian E. Barnes and Edward Wong, Classified U.S. Report Highlights Foreign Power Aerial Spying With Advanced Tech, The New York Times (Feb. 4, 2023), https://www.nytimes.com/2023/02/04/us/politics/balloon-congress-surveillance-report.html.

[2] Id.

[3] Idrees Ali and Phil Stewart, Chinese spy balloon flies over the United States: Pentagon, Reuters (Feb. 1, 2023), https://www.reuters.com/world/suspected-chinese-spy-balloon-flying-over-united-states-us-officials-2023-02-02/.

[4] Juliette Kayyem, Why the U.S. Isn’t Shooting Down the Chinese Spy Balloon, The Atlantic (Feb. 3, 2023), https://www.theatlantic.com/ideas/archive/2023/02/why-the-us-isnt-shooting-down-the-chinese-spy-balloon/672945/.

[5] Zachary Cohen, Kevin Liptak, Oren Liebermann and Phil Mattingly, US fighter jets shoot down Chinese spy balloon off East Coast, CNN (Feb. 4, 2023), https://www.cnn.com/2023/02/04/politics/china-spy-balloon-us-latest/index.html.

[6] Barnes and Wong, supra note 1.

[7] Id.

[8] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), US Dep’t of Homeland Sec. Cybersec. And Infrastructure Sec. Agency Interagency Sec. Comm. (Nov. 2020), https://www.cisa.gov/sites/default/files/publications/Protecting%20Against%20the%20Threat%20of%20Unmanned%20Aircraft%20Systems%20November%202020_508c.pdf.

[9] Who Has What: Countries with Armed Drones, New America, https://www.newamerica.org/international-security/reports/world-drones/who-has-what-countries-developing-armed-drones.

[10] Id.

[11] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[12] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[13] FAA predicts small drone purchases to reach 4.3 million by 2020, Aerospace Tech. (Mar. 28, 2023), https://www.aerospace-technology.com/news/newsfaa-predicts-small-drone-purchase-to-reach-43-million-by-2020-4848780/.

[14] Drone Operations, US Gov’t Accountability Off., https://www.gao.gov/drone-operations (last visited Feb. 5, 2023).

[15] Richard M. Thompson II, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, Cong. Rep. Serv. (Apr. 3, 2013), https://sgp.fas.org/crs/natsec/R42701.pdf.  

[16] Steven Feldstein and David Wong, New Technologies, New Problems – Troubling Surveillance Trends in America, Just Sec. (Aug. 6, 2020), https://www.justsecurity.org/71837/new-technologies-new-problems-troubling-surveillance-trends-in-america/.

[17] PRYING EYES: GOVERNMENT DRONE DATA ACROSS NEW YORK STATE, NYACLU, https://www.nyclu.org/en/campaigns/prying-eyes-government-drone-data-across-new-york-state (last visited Feb. 5, 2023)

[18] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[19] Voluntary Best Practices for UAS Privacy, Transparency, and Accountability, Nat’l Telecomm. And Info. Admin., https://www.ntia.doc.gov/files/ntia/publications/voluntary_best_practices_for_uas_privacy_transparency_and_accountability_0.pdf. (last visited Feb. 5, 2023).

[20] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[21] Gregory McNeal, Drones and aerial surveillance: Considerations for legislatures, Brookings (Nov. 2014), https://www.brookings.edu/research/drones-and-aerial-surveillance-considerations-for-legislatures/.

Are We in Good Hands: The Fight Against Techno-Racism

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.

[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.  

Are ‘Designer Babies’ Morally Wrong?

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.

[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.

Artificial Intelligence in the Biological System: Is Invasive Medical Intervention Modern Evolution?

By Anna Elizabeth Melo

With every medical technological innovation there is the anticipation of life changing opportunities and societal advancement as well as the fear of unintended risks and consequences. These considerations are ever-present with the concept of implanting a brain-computer interface directly on the cortex of the human brain, with potential uses that span far beyond medical necessity. This device is what Neuralink set out to create in 2016.[1]

The company, headed by Elon Musk, proposed that its product would eventually restore vision (including congenital blindness), would enable individuals with spinal cord injuries or motor issues to regain mobility and speech, and would reduce or even halt the progression of Alzheimer’s disease and dementia.[2] The procedure itself entails a neurosurgical placement of a device mimicking the capabilities of the axon and dendrite in a neuron (transmitting and processing neural signals).[3] Micron-scale threads replete with electrodes attach to the device, permeate the brain, and connect the device with the targeted region of the brain for ascertaining neuronal communications.[4]A robotic surgical placement device has been specially designed for placement of these threads and possesses the ability to detect target regions of the brain while avoiding placement in surface vasculature.[5]The device requires a charger that is capable of wirelessly charging the battery from outside of the body.[6]

While there have been experiments done by the company on animal subjects, including highly publicized demonstrations of a macaque capable of playing digitized Pong with its brain alone, the Federal Drug Administration (FDA) has not yet cleared the technology for human trials.[7]Musk has stated that he is confident that the first Neuralink implant will be placed into a human brain within the next six months, where the results of its efficacy on various conditions may be seen in 2023.[8]

While the idea of implanting a communicative brain-computer interface appears futuristic, it is already being done. A competitor to Neuralink, Synchron, was able to secure FDA approval for human trials first in this area in the United States in July of 2021.[9]While there are restorative brain function promises of both Synchron and Neuralink’s technology, the controversy surrounding Neuralink surpasses these possibilities in the areas of neuroscience and neurosurgery. This is the result of Musk’s proposal to eventually implant brain chips in individuals without any medical need resulting in a transhumanistic symbiosis between man and machine.[10]

Beyond the medical and scientific concerns for the longevity of this technology upon implantation, the possibility of removal post- neurosurgical placement and its adaptability to brain plasticity, there are numerous legal and ethical concerns in adopting Neuralink for elective use.  Human autonomy is at the forefront of this disquietude. Personhood emanates from complex cognitive function in the prefrontal cortex in consideration of somatosensory and visual inputs. When a private, for-profit company is capable of remotely controlling regions of the brain that regulate thought, vision, movement and emotion, there arises a question of who possesses agency over the individual. Arguably, if the individual is unable to remove the device, modify its settings, or override the machine, artificial intelligence precedes its human host.

Notwithstanding the numerous constitutional implications that may be invoked as a result of this technology, defenses to criminal liability for a person with a brain chip should also be assessed. If someone were charged with a crime that required a particular mental state, could incapacity, such as brain chip override or malfunction, resulting from this procedure negate an intentional or even negligent action? In the civil context, could a contract be rescinded due to coercion, undue influence, or incapacity as a result of this device? Could injured plaintiffs or vicariously liable parties on behalf of a defendant’s actions seek indemnification on the part of Neuralink? What about a wrongful death lawsuit against Neuralink if a party committed suicide after implantation?

These probing inquiries are just the beginning of the legal, regulatory, constitutional, psychological, and moral questions that will be raised in the coming months and years. It is doubtful that current legal, medical, and technological infrastructure will be able to address these issues at this time. We are left with the question: is this the next step in human evolution and the key to unlocking dormant regions of brain, or the emergence of mind control from private companies? Only time will tell.

[1] Approach, NEURALINK (2022), https://neuralink.com/approach/.

[2] Id.

[3] Id.

[4] Id.

[5] Elon Musk & Neuralink, An Integrated Brain-Machine Platform with Thousands of Channels, PubMed Central (Oct. 31, 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6914248/.

[6] Supra note 1.

[7] Darrell Etherington, Watch a monkey equipped with Elon Musk’s Neuralink device play Pong with its brain, techcrunch (Apr. 8, 2021, 9:31 PM), https://techcrunch.com/2021/04/08/watch-a-monkey-equipped-with-elon-musks-neuralink-device-play-pong-with-its-brain/.

[8] Rebecca Falconer, Elon Musk highlights monkey “telepathic typing” at Neuralink event, axios (Dec. 1, 2022), https://www.axios.com/2022/12/01/elon-musk-neuralink-brain-chip-event.

[9] Jon Fingas, Synchron says it’s the first to implant a human brain-computer interface in the US, endgadget (July 19, 2022), https://www.engadget.com/first-brain-computer-interface-implant-in-us-163756888.html.

[10] Kenny L., What is Neuralink: A Look At What It Is, What it Wants to Be, and What it Could Become, medium (July 18, 2019), https://towardsdatascience.com/what-is-neuralink-a-look-at-what-it-is-what-it-wants-to-be-and-what-it-could-become-2acf32b51dc5.

Off-White Trademark

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.

[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.

New York Sports Betting: What does the Law Allow?

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]

The First Executive Order on Cryptocurrency: An outline for the future of digital assets in the U.S.

By: Milana Casillas

President Biden’s executive order on cryptocurrencies marks the first time the White House has formally weighed in on the growing development and adoption of digital assets.[1]

The March 9th order, titled Ensuring Responsible Development of Digital Assets, aims to make digital assets a government-wide priority and signals openness to their potential positive impacts, not just their enforcement challenges. [2]

The order calls for directed agencies across the federal government to study and generate reports on the potential of digital currencies. [3] The topics to be examined include consumer protection, data privacy, financial inclusion, and national security.[4] The array of topics demonstrates the potentially far-reaching implications of cryptocurrency and promotes equitable access to financial services and economic competitiveness. [5]

Further, the order calls for the study of a potential U.S. central bank digital currency (CBDC). [6] This would give rise to a “digital dollar,” ushering in an unprecedented level of U.S government adoption of blockchain technology.[7] Central banks outside of the U.S. have experimented with this concept, and Biden’s executive order implores the Justice Department to assess this possibility and what would be needed for its execution.[8]

While the executive order introduces the possibility of consolidating agency oversight, the order remains open and unclear on how such a consolidation would be executed.[9]Currently, responsibility for digital assets spreads across several agencies, including the U.S. Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and the Internal Revenue Service (IRS).[10]

Biden’s executive order is an acknowledgment by the White House that the government has more progress to make in the area of cryptocurrency.[11] While the order lacked specificity as to the positions the administration wants government agencies to adopt, it is clear the U.S. is on, “the path of innovation as opposed to prohibition.”[12] This path taken by the U.S. might influence further adoption of innovation-friendly regulation globally.[13]

[1] Elise Hansen, Biden Order Grapples with Crypto’s Rise Laws, LAW 360, (Mar. 9, 2022), https://plus.lexis.com/newsstand#/article/1472488.

[2]  The White House, FACT SHEET: President Biden to Sign Executive Order on Ensuring Responsible Development of Digital Assets (Mar. 9, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/03/09/fact-sheet-president-biden-to-sign-executive-order-on-ensuring-responsible-innovation-in-digital-assets/.

[3] Id.

[4] Id.

[5] supra note 1.

[6] Id.

[7] Marco Quiroz-Gutierrez, What are CBDCs? Biden’s Executive Order on Crypto may Lead to a U.S. Digital Currency, FORTUNE (Mar. 10, 2022), https://fortune.com/2022/03/10/biden-executive-order-crypto-u-s-digital-currency-cbdc.

[8] Id.

[9] Id.

[10] Sandali Handagama & Amitoj Singh, Biden’s Executive Order Draws Mixed Reactions From Global Crypto Community, COIN DESK (Mar. 11, 2022), https://www.coindesk.com/policy/2022/03/11/bidens-executive-order-draws-mixed-reactions-from-global-crypto-community/.

[11] Id.

[12] Id.

[13] Id.

Cybersecurity and What Lawyers Should Know

By: Trisha Black

Our society is becoming more reliant on technology. As this happens, we are placing our information at more risk of being compromised. There is no way around using technology. As businesses and individuals strive for more efficiency, they adopt more technological advances to achieve that. With the increased use comes increased security concerns. Cybersecurity threats are increasing substantially.[1] API security incidents have impacted 95% of businesses in the past year.[2] Technology is becoming integrated with our physical infrastructure. As this happens the threats become significantly more detrimental to the country.

Lawyers and law firms are no different. They are trying to remain competitive and increase their efficiency, but lawyers are in a vulnerable position as they have requirements to protect their clients beyond the average business. Lawyers have a duty to maintain client confidentiality.[3] With few guidelines and regulations in place to ensure secure computing and technology, lawyers need to take responsibility for the security. This comes in the form of being more knowledgeable about cybersecurity.

Cybersecurity is a growing interest, and the recent events in Ukraine and Russia have increased the concern in our country.  Cyber-attacks are increasing, and most businesses are being impacted by them.[4] Most businesses are not implementing any additional protections against these attacks.[5] Though this is not unique to the legal field, the legal field is not immune. What recent events have shown is that attacks come in more than physical form.[6]  Kinetic attacks by Russia have been paralleled by cyber threats.[7] The unique aspect of this attack was that there was no attempt to take, but instead to destroy. They used something referred to as malware. Malware is not new, but the forms being used are. This is why the challenge with this tactic is creating problems in the cyber realm. The way the malware operates is that it spreads and deletes the data of the users. This malware can impact all users and would have grave consequences for large corporations and law firms.[8]

How can lawyers, companies and individuals protect their data? The Cybersecurity and Infrastructure Security Agency (CISA) is designed to help organizations and individuals protect their information.[9] CISA frequently publishes information to assist in protecting data across the United States.[10] They also assess the current risks and inform the general public of the potential attacks that they have observed or anticipate coming.[11] The attack on Ukraine has shown that there are many threats from foreign nations and by tracking and studying their tendencies, they can predict the threats that could be faced by the United States. Further, CISA provides information about who the threats may be coming from and what type of threats are given, with specific guidance on how these threats may be mitigated.[12]   CISA not only assesses the threats and provides guidance, but they also provide training on how to best handle the threats.[13]

 As we move towards a more internet, cloud computing, and IoT society we need to adapt our security measures to match. Law firms are beginning to want lawyers with cybersecurity expertise and companies are beginning to seek out counsel with an understanding of cybersecurity. Schools are beginning to offer more and more classes related to cybersecurity but that may not be enough for the growing concerns. Lawyers need to be current on the cybersecurity threats and ensure they are taking action to make certain their clients are protected. They also need to follow current research on the most significant threats and the guidance on how to protect the data of the organizations they work for and the clients.

[1] API attacks increase 681% in the last 12 months, Security Magazine (Mar. 2, 2022), securitymagazine.com/articles/97178-api-attacks-increased-681-in-the-last-12-months.

[2] API Attacks Rose 681% in the past 12 Months, Compared to a 321% increase in Overall API Traffic, Salt, https://salt.security/api-security-trends? (last visited Mar. 2, 2022).

[3] Jaime Sardina, How Cyber Security is Changing the Way Lawyers Work, Lawahead, https://lawahead.ie.edu/how-cybersecurity-is-changing-the-way-lawyers-work/ (last visited Mar. 2, 2022).

[4] Salt, supra note 2.

[5] Id.

[6] Destructive Malware Targeting Organizations in Ukraine, CISA, https://www.cisa.gov/uscert/ncas/alerts/aa22-057a (Mar. 1, 2022).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] CISA, supra note 6.

[12] Id.

[13] Id.

Unruly Courts: The New York State Courts’ Struggle to Abide by their own Covid Rules while Working in Public, Judicial Settings.

By: Allison Wick

In light of the covid surge following the 2021-2022 holiday season and the new Omicron variant, the court, like many other organizations, closed their doors for in-person business and reverted to Microsoft Teams to continue judicial proceedings remotely.[1] Over the course of January, news has been circulating regarding New York State court compliance issues among their employees, officers, and judges.[2] Amid these reports, The New York Appellate Division Courts are planned to return in-person following the January retreat to virtual hearings.[3]

At a varied schedule, the four Appellate Courts will return in-person to hear arguments. This modification does not come without its limitations; due to Covid procedural changes and regulations, only parties to causes of action and counsel will be welcomed back in-person for Appellate arguments.[4]

Limitations do not end with restricting building capacity to only “necessary” parties to litigation (the parties themselves and their counsel). The courts have moved to implement a vaccine mandate for court employees and officers that does not currently recognize religious or medical exemptions.[5] Rather than adopting regulations that allow for review of religious and medical exemptions in a non-biased and case-by-case basis, unvaccinated employees under the current court rule are prohibited from returning to in-person if they have not been vaccinated.[6]

With technology advanced to the point where hearings can be held virtually and offer an alternative method of access to judicial services and court hearings, one must wonder why the rush to return in-person? While public health is a pressing concern of the general public, the push for in-person hearings seem to be untimely in light of their employment disputes and offerings of limited in-person services. Postponement may be in the best interest of court officers, employees, HR, and litigants. Further, with the compliance issues arising from Covid-19 vaccine requirements, masking, and testing employees, should in-person court proceedings be prioritized over public health? 

The online platform allows for parties, their council, court reporters, translators, the judge, court officers, and any interested persons to access a hearing. With the proposed commencement of the hybrid system in the upcoming months, there are public health issues, court employee compliance issues, and complications of access to the courts and justice.

In the past weeks, there have been reported issues regarding a Ninth Circuit judge entering chambers unmasked and unvaccinated; Covid-related workplace protocol still undecided and unclear; and court officers concerned over unequal treatment and job security in light of the court’s preferable treatment given to judges.[7]

There have been instances of outcry from employees who are enraged by the inconsistent application of covid restrictions and requirements.[8] Since a the Ninth Circuit Judge Mora entered chambers unmasked and unvaccinated in early January, employees have noted an ongoing discrepancy in how the courts treat judges as opposed to any other court officers or employees.[9]

The Ninth Circuit has paid Justice Mora for his working hours and initially granted him job security following his misconduct of unsafely entering chambers and risking the spread of Covid throughout the court.[10] From Judge Mora’s misconduct, court officers are noticing another example of the courts favoring judges over other employees by giving them preferable treatment. As a result, many court officers are contesting the non-accommodating covid policies enforced upon employees that are not equally enforced against judges.[11]

While these compliance issues and employment disputes are just beginning, all of New York’s Appellate Division is scheduled to return in-person to hear arguments after being remote for the month of January. In the coming months, there will be amended Covid-related policies scattered throughout the courts to fit the demands for public welfare and employee concerns regarding personal freedoms. In the meantime, court employees and state government must make decisions with both public safety and personal interests in mind without knowing the ultimate procedural outcome. Hopefully safety and health will prevail in one way or another, whether that be virtually or through modern medicine, public policy will guide us through the New Year.

[1] Jane Wester, Appellate Departments Schedule Return to In-Person Arguments After Remote

January, N.Y. Law Journal (January 27, 2022), https://www.law.com/newyorklawjournal/2022/01/27/appellate-departments-schedule-return-to-in-person-arguments-after-remote-january/.

[2] Court Officers Decry Ruling Allowing Judges to Work from Home, Mid-Hudson News (January 25, 2022), https://midhudsonnews.com/2022/01/25/court-officers-decry-ruling-allowing-judges-to-work-from-home-2/; Frank G. Runyeon, Unvaxxed NY Judge Defies Courthouse Ban As Others Ousted, Law360 (January 20, 2022),

https://www.law360.com/articles/1457205/unvaxxed-ny-judge-defies-courthouse-ban-as-others-ousted; Lauren Berg, NY Court Reporters Challenge Courthouse Vax Mandate, Law360 (January 25, 2022), https://www.law360.com/articles/1458715/ny-court-reporters-challenge-courthouse-vax-mandate.

[3] Wester, supra note 1.

[4] Id.

[5] Berg, supra note 2.

[6] Wester, supra note 1.

[7] Berg, supra note 2; Court Officers Decry Ruling Allowing Judges to Work from Home, supra note 2.

[8] Id.

[9] Id.

[10] Runyeon, supra note 2.

[11] Berg, supra note 2; Court Officers Decry Ruling Allowing Judges to Work from Home, supra note 2.

Killer Robots Coming Soon Near You!

By: Miriam Mokhemar

While most of us were taking finals or gathering with family over Winter Break, country leaders were meeting in Europe to discuss banning killer robots. 125 nation representatives and experts in the fields of artificial intelligence (AI), military strategy, weapons disarmament, and humanitarian law met in Geneva at the United Nations’ Convention on Certain Conventional Weapons. During the meeting on December 13-17, these leaders and experts wanted to introduce new legally binding mechanisms against killer robots that could be used as Lethal Autonomous Weapon Systems (LAWS) powered by AI.[1]

While many countries are still developing their LAWS, others are beginning to use these in battle today. In the ongoing civil war in Libya, reports suggested that a LAWS were used in the form of a drone. In March 2020, the Government of National Accord-the interim government of Libya- launched Turkish Kargu-2 drones “hunted down and remotely engaged” opposing military forces.[2] These drone LAWS were “programmed to attack targets without requiring data connectivity between the operator and the munition” creating a “‘fire, forget and find’ capability”.[3] Between these weapons and jamming devices from other warfare systems, the Libyan government decimated the operational capability of opposing forces.

Libya is just one example of a country using these new battlefield technologies as a significant force multiplier. The US has been testing drone LAWS by incorporating AI into L-39 Albatros jets at the Defense Advanced Research Projects Agency.[4]

LAWS using AI is attractive to state militaries because it new and not widely used by other militaries, removes the military personnel fatality risk, human emotions, and ethics by making decisions based on processing data and algorithms. Like any new technology, once it becomes mass produced and cheaper, it is even more attractive. However, the negatives that come with AI from bias data, such as targeting “friendlies”, attacking civilians, and enforcing gender and racial stereotypes, will be transferred into LAWS.[5] Furthermore, if nonstate actors acquire LAWS or AI technologies, they become substantially more threaten to the state-nonstate battles in conflicts.[6]

This has not stopped countries from advancing LAWs and blocking international legal procedures against such use. The United States, Australia, South Korea, India, Russia, Japan, and Israel have blocked any advancements in U.N. talks toward legally binding measures to ban and regulate the development and use of LAWS.[7] These countries in particular find that the military advantages of quicker reactions and reduced direct exposure of troops in battle outweighs the negatives of AI and potential harm from international regulations.[8] Other countries, such as Austria, Chile, Ireland and New Zealand, have been lobbying for legal binding rules.[9]

It is important to note that China, one of the United States’ important adversaries, was not against legally binding rules “based on an agreement to be reached on definitions”.[10] China even submitted a position paper on regulating military use of AI at the conference.[11] While the position paper uses strong rhetoric, it does not mention restricting the use of machines capable of choosing and engaging targets autonomously.[12]

Additionally, the position paper might suggest that China’s military use of AI may not necessarily focus on LAWS. Instead, China’s desires may be just to make miliary decisions faster.

According to Colonel Yuan-Chou Jing, former director of the Army Command Headquarters’ Intelligence Division and an associate professor at the Graduate Institute of China Military Affairs Studies, China would want to beat opposing forces based on “swiftness” and would mirror tactics similar to Hitler’s use of the Blitzkrieg during World War II.[13]  Colonel Jing asserts the advantage of Blitzkrieg tactics were that they effectively overwhelmed the enemy, especially when they had an unprepared infantry.[14] After every Blitzkrieg attack, the German infantry would move into the battlefield to suppress the last resistance from opposition forces, but it took time for armored tanks to move out of the battlefield.[15]

With AI, Blitzkrieg tactics could be faster and more decisive in acquiring targets and eliminating them, particularly when the initial attack is from a drone. It would also eliminate the need for troops to suppress the final opposition or make it easier for troops to intervene as the last stage of the Blitzkrieg-styled attack.

However, China’s position paper does not mention LAWS directly. Combined with other important security states objecting to international binding regulations against LAWS, the global community should have every reason to believe LAWS and killer robots are being developed and likely to be utilized in the future.

[1] Sam Shead, “UN talks to ban ‘slaughterbots’ collapsed — here’s why that matters”, CNBC News (Dec. 22, 2021, 9:45 AM EST), https://www.cnbc.com/2021/12/22/un-talks-to-ban-slaughterbots-collapsed-heres-why-that-matters.html.

[2] Final report of the Panel of Experts on Libya established pursuant to Security Council resolution 1973 (2011), (March 8, 2021), https://undocs.org/S/2021/229; See Maria Cramer, “A.I. Drone May Have Acted on Its Own in Attacking Fighters, U.N. Says”, The New York Times (June 4, 2021), https://www.nytimes.com/2021/06/03/world/africa/libya-drone.html.

[3] Id.

[4] Sue Halpern, “The Rise of A.I. Fighter Pilots”, The New Yorker (Jan. 17, 2022), https://www.newyorker.com/magazine/2022/01/24/the-rise-of-ai-fighter-pilots.

[5] Sumana Bhattacharya, “TOP 10 MASSIVE FAILURES OF ARTIFICIAL INTELLIGENCE TILL DATE”, Analytics Insight (Sept. 15, 2021), https://www.analyticsinsight.net/top-10-massive-failures-of-artificial-intelligence-till-date/.

[6] Sarah Kreps, “Democratizing Harm: Artificial Intelligence in the Hands of Nonstate Actors”, The Brookings Institute, 2, November 2021, https://www.brookings.edu/wp-content/uploads/2021/11/FP_20211122_ai_nonstate_actors_kreps.pdf.

[7] “Japan, U.S. block advancement in U.N. talks on autonomous weapons”, Kyodo News (Dec. 20, 2021), https://english.kyodonews.net/news/2021/12/c086de7578e9-japan-us-block-advancement-in-un-talks-on-autonomous-weapons.html.

[8] Id.

[9] Id.

[10] Id.

[11] Permanent Mission of the People’s Republic of China to the United Nations Office at Geneva and Other International Organizations in Switzerland “Position Paper of the People’s Republic of China on Regulating Military Applications of Artificial Intelligence (AI)”, United Nations (Dec. 13, 2021, 13:00 CET) http://www.china-un.ch/eng/dbdt/202112/t20211213_10467517.htm.

[12] Id.

[13] Yuan-Chou Jing, “How Does China Aim to Use AI in Warfare?”, The Diplomat (Dec. 28, 2021), https://thediplomat.com/2021/12/how-does-china-aim-to-use-ai-in-warfare/.

[14] Id.

[15] “The German ‘Lightning War’ Strategy Of The Second World War”, Imperial War Museums (2022), https://www.iwm.org.uk/history/the-german-lightning-war-strategy-of-the-second-world-war.