Blog Post

By: Scott Ceurvels

While adapting to an online learning environment largely necessitated by the spread of COVID-19, many academic institutions have started to utilize AI-proctoring technology in an effort to reduce cheating and ensure academic integrity as exams loom near.[1] Students and faculty have responded to this decision with great skepticism and opposition, joined by experts emanating an eerie sense of déjà vu.[2]   

In June of 2020, IBM, Microsoft, and Amazon all refused to permit their facial recognition technology to be utilized by law enforcement.[3] The concern? While this technology is advancing rapidly, there are numerous flaws critical to its fair and equitable performance that have not been remedied. [4]

Facial recognition technology is known to be far from perfect, and developers’ decision not to authorize the release of such technology for more consequential use further evidences that these imperfections are in part explained by the measurable bias exhibited in their performance.[5]

While AI technology has improved significantly in recent years, the fact remains that the accuracy of performance varies based on gender and race.[6] Facial recognition has consistently been most successful in identifying white males, while accuracy decreases substantially when identifying women and people of color.[7] This bias is so widely recognized that US lawmakers have gone as far as proposing a federal moratorium to ban its use in law enforcement until (and if) such bias can be eliminated from the technology.[8]

Even the U.S. Department of Commerce has confirmed these concerns, as the National Institute for Science and Technology stated in a December 2019 report that most facial recognition technologies are anywhere from 10 to 100 times more likely to falsely identify African American or Asian faces, as well as more likely to falsely identify women than men.[9]

But this is about academia, not law enforcement, so what’s the connection? Facial recognition, along with object recognition, eye movement detection, voice and audio recognition, and the collection of other biometric data are key components of AI-proctoring technology. [10] Consequently, racial bias, as well as invasions of privacy, security of information, and a host of other disparities have been the center of conversation surrounding the use of AI-proctoring technology. [11]

Despite these known flaws, students around the country are being compelled to comply with their institution’s integration of AI-proctoring technology, as their grades are dependent on the exams this technology will be facilitating.[12] Requiring students to permit these for-profit corporations to access and control their devices in order to record them while they take exams feels like an invasion of privacy to many students.[13] Furthermore, the security (or lack thereof) of these practices in the face of massive data breaches raises additional concerns of the potential for the data these companies collect to be exploited.[14]

While students around the country enter the final stretch of a semester contextualized amid a once in a lifetime global pandemic, anxiety is high while certainty is low.[15] Academic institutions are facing growing scrutiny on their focus on academic integrity, while students protest in opposition to the addition of yet another layer of uncertainty being thrust upon them. [16]

Many academics have insisted that technology is not the solution to preventing cheating, as this is a complex social problem that must instead be addressed by reframing the approach taken to academic assessments.[17] Rather than doubling down on the online systems that have fostered an environment where cheating has increased, institutions should instead focus on adapting with the circumstances with which they are faced. [18]

Whether altering formats to provide for open-book examinations or shifting towards written paper-based evaluations, there are far less controversial alternatives, each of which is accompanied by substantially more data to support its effectiveness in measuring students’ performance. [19]

While the concerns of cheating are undeniable, academic institutions that choose to adopt AI-proctoring technology are begging the question: is this stringent focus on academic integrity really the most effective approach, despite the lack of evidence and potential detriments to our students’ well-being?

[1] Clive Thompson, What AI College Exam Proctors Are Really Teaching Our Kids, Wired (Oct. 10, 2020, 6:00 AM), https://www.wired.com/story/ai-college-exam-proctors-surveillance/.

[2] Maddy Andersen and Hugo Smith, “Essentially Malware”: Experts Raise Concerns about Stuyvesant’s Lockdown Software, The Spectator (Oct. 23, 2020), https://www.stuyspec.com/quaranzine/essentially-malware-experts-raise-concerns-about-stuyvesant-s-lockdown-software.

[3] Larry Magid, IBM, Microsoft and Amazon Not Letting Police Use Their Facial Recognition Technology, Forbes (Jun. 12, 2020, 9:26 PM), https://www.forbes.com/sites/larrymagid/2020/06/12/ibm-microsoft-and-amazon-not-letting-police-use-their-facial-recognition-technology/?sh=73ddec7b1887.

[4] Id.

[5] Id.

[6] Davide Castelvecchi, Is facial recognition too biased to be let loose?, nature (Nov. 18, 2020), https://www.nature.com/articles/d41586-020-03186-4.

[7] Id.

[8] Jonathan Greig, Congress proposes ban on government use of facial recognition software, TechRepublic (Jun. 26, 2020, 11:31 AM), https://www.techrepublic.com/article/congress-proposes-ban-on-government-use-of-facial-recognition-software/.

[9] Patrick Grother, Mei Ngan and Kayee Hanaoka, Face Recognition Vendor Test Part 3: Demographic Effects (NIST, 2019), https://nvlpubs.nist.gov/nistpubs/ir/2019/NIST.IR.8280.pdf.

[10] Aileen Scott, Artificial Intelligence is Making Online Proctoring Safe and Secure, Medium (Mar. 14, 2019), https://medium.com/@aileenscott604/artificial-intelligence-is-making-online-proctoring-safe-and-secure-9b03845602da.

[11] Meg Foulkes, Exams that use facial recognition may be ‘fair’ – but they’re also intrusive, The Guardian (Jul. 22, 2020), https://www.theguardian.com/law/2020/jul/22/exams-that-use-facial-recognition-are-fair-but-theyre-also-intrusive-and-biased.

[12] Anushka Patil and Jonah Engel Bromwich, How It Feels When Software Watches You Take Tests, The New York Times (Sept. 29, 2020), https://www.nytimes.com/2020/09/29/style/testing-schools-proctorio.html.

[13] Id.

[14] Joe Patrice, ExamSoft Partner Suffered 440K User Data Breach… ExamSoft Still Says Everything’s Fine, Above The Law (Sep. 8, 2020, 1:13 PM), https://abovethelaw.com/2020/09/examsoft-partner-suffered-440k-user-data-breach-examsoft-still-says-everythings-fine/.

[15] COVID-19 and Mental Health: How America’s high school and college students are coping during the pandemic, Chegg, https://www.chegg.org/covid-19-mental-health-2020 (last visited Nov. 20, 2020).

[16] Avi Asher-Schapiro, ‘Unfair surveillance’? Online exam software sparks global student revolt, Reuters (Nov. 10, 2020, 7:24 AM), https://fr.reuters.com/article/global-tech-education-idUSL8N2HP5DS.

[17] Shea Swauger, Remote testing monitored by AI is failing the students forced to undergo it, NBC News (Nov. 7, 2020, 4:30 AM), https://www.nbcnews.com/think/opinion/remote-testing-monitored-ai-failing-students-forced-undergo-it-ncna1246769; see also Anna Baker, Ai proctoring won’t stop students from cheating, it is just added stress for students, The Cougar (Sept. 24, 2020), http://thedailycougar.com/2020/09/24/ai-proctoring-cheating-added-stress/.

[18] Beckie Supiano, Teaching: Assessment in a Continuing Pandemic, Chronicle (Aug. 20, 2020), https://www.chronicle.com/newsletter/teaching/2020-08-20.

[19] Id.

By: Christian Gates

Most likely if you use social media you have seen a post, tweet or comment that made you think, “Why on earth is someone able to say this?” Over the past 10 years social media outlets like Facebook and Twitter have exploded in popularity and led to people being able to share what they feel is important with a light tap on a screen. However, as social media becomes a more popular method of sharing and gathering news, censorship of it has too.

On Wednesday, October 28, 2020 the big three social media giants, Twitter, Facebook, and Google, virtually appeared before the Senate Commerce Committee to discuss amending Section 280 of the 1996 Communications Decency Act, however the main focus of the hearing turned out to be grilling the big three over censorship. [1] Section 280 protects social media companies from liability stemming from what their users post but it also gives them free reign to decide what is allowed on their platforms.[2] The big issue for lawmakers seemed to be mainly over Twitter blocking links to the contentious New York Post story regarding Hunter Biden.

This raised the question of who gets to decide what should and shouldn’t be censored. Senator Ted Cruz of Texas asked Twitter CEO Jack Dorsey, “[W]ho the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear?”[3] However, it is not as easy as Senator Cruz implies. People should be allowed to freely exchange their ideas and knowledge but there is a point when that exchange can become dangerous.

If you’re even an occasional user of Twitter, Instagram or Facebook you’ve probably seen the “Fact-Checked” notice attached to posts. This notice is an easy and fast way for users to see that the post might be misleading or false. Twitter claims that the notice is not really a fact-check but is there to provide context and allow people to come to a conclusion on their own. [4]

The chaos surrounding censorship in social media started when the big three came under heavy fire for their handling of the spread of misinformation during the 2016 election cycle and the reactive approach they took. Now that the big three are being proactive in trying to stop the spread of misinformation they are being called out for censorship.

Unfortunately, it seems like no matter what the big three do they will get flak from users and lawmakers. One thing that is good, is that the social media giants seem willing to engage with users and lawmakers in coming up with solutions so that there can be a free exchange of information and ideas on those platforms.

Thus, in the meantime social media giants like Facebook, Twitter, and Google, should better inform their users about what type of posts, tweets, and comments are more likely to get flagged. Twitter has already stated that they intend to make changes in how they enforce certain policies, especially the policies that caused the Hunter Biden New York Post debacle. [5] Twitter’s head of legal, policy, trust and safety, Vijaya Gadde, tweeted that hacked information will only be removed if directly shared by the hackers or someone working with them. [6]

Only time will tell whether or not social media giants, lawmakers and users can agree to ground rules for censorship on social media. We are not out of the woods yet, and with the 2020 presidential election only four days away, expect censorship to be a contentious topic in the months to come.

[1] Rodrigo, Chris, Tech CEOs Clash with Lawmakers in Contentious Hearing, The Hill (Oct. 28, 2020 6:07pm) https://thehill.com/policy/technology/523268-tech-ceo-clash-with-lawmakers-in-contentious-hearing

[2] Bond, Shannon, Days Before Election, Tech CEOs Defend Themselves From GOP Accusations Of Censorship, NPR (Oct. 28, 2020 1:23pm) https://www.npr.org/2020/10/28/928702931/days-before-election-tech-ceos-defend-themselves-from-gop-claims-of-censorship

[3] Id.

[4] Pham, Sherisse, Twitter says it labels tweets to provide ‘context, not fact-checking’, CNN (Jun. 3, 2020 5:13am) https://www.cnn.com/2020/06/03/tech/twitter-enforcement-policy/index.html

[5] Chan, Kelvin, Twitter CEO Says it was Wrong to Block Links to Biden Story, AP (Oct. 16, 2020) https://apnews.com/article/business-media-social-media-censorship-ec529ef85c1e72cefe0ae9450e118b9c

[6] Id.

By: Justin Fowler

With over 2 billion downloads, TikTok has taken the United States by storm. TikTok, a social media platform that has users posting and watching short videos, has been the platform of choice for many during the Coronavirus pandemic (Covid-19).

Due to TikTok’s rise in popularity, the United States government led by the Trump administration targeted the app stating that a ban may be necessary. The reason for the potential ban, according to the Trump administration, was a growing concern that the Chinese government could gain access to United States user data.

Is this a legitimate concern? And if so, is a ban of the app appropriate? Experts say, “the reality of TikTok’s threat is far more mundane and not particularly unique.” Although users should be skeptical of how the app collects and handles data, the increasing concern stems from the fact that TikTok is a China-based app (owned by ByteDance).

Whitney Merrill, a former lawyer of the Federal Trade Commission, believes that “China could buy similar mobile data from data brokers or ad networks. Most ad networks are collecting the same, if not worse, information.” In 2018, Facebook confirmed that it has data-sharing partnerships with Chinese companies. And Facebook collects a LOT of data. Perhaps even more concerning, even if Facebook’s most aggressive initiates to collecting data are shutdown, countless software companies are willing to sell their users’ data to Facebook. So, what is to say that this would not be the case for TikTok?

Overall there does seem to be a privacy concern regarding TikTok, but not any more so than with any other phone app. So is a ban on TikTok the proper response? President Donald Trump certainly believes so. In his executive order, Trump posited that the TikTok app threatened “national security, foreign policy, and [the] economy of the United States.”

In response to Trump’s ban, TikTok has sued the administration. United States District Court Judge Carl Nichols stated that it is likely the Trump administration overstepped its legal authority with its TikTok ban. Proponents of the President’s ban argue that TikTok’s actions rightly lead to a ban in fear of spreading inflammatory and dangerous propaganda. It is interesting to note that proponents of the ban cited Facebook and Twitter as other applications that spread inflammatory and dangerous propaganda but did not recommend a ban on either of those apps.

Although it is uncertain what will happen, a ban could have some unfavorable consequences. A ban would likely increase distrust among countries and companies. Retaliation could ensue with other countries banning United States companies, leading to a back and forth of censorship.

As the presidential election approaches for the United States, only time will tell what may happen. A change in leadership could lead to the dismissal of the ban on TikTok. It could also lead to a shift in stance on the ongoing ban and tension between the United States and China.  

[1] Fowler, Geoffrey A. Is It Time to Delete TikTok? A Guide to the Rumors and the Real Privacy Risks, The Washington Post, https://www.washingtonpost.com/technology/2020/07/13/tiktok-privacy/(last visited October 16, 2020).

[1] Id.

[1] Wong, Queenie, Hautala Laura, Morse, Andrew. The TikTok Saga: Everything You Need to Know, CNET, https://www.cnet.com/news/the-tiktok-saga-everything-you-need-to-know/(last visited October 16, 2020).

[1] Id.

[1] Collier, Kevin. TikTok a Privacy Threat? Sure, But So Are Most of Your Smartphone Apps, NBC News, https://www.nbcnews.com/tech/security/tiktok-privacy-threat-sure-so-are-most-your-smartphone-apps-n1233625(last visited October 16, 2020).

[1] Id.

[1] Id.

[1] Michael LaForgia & Gabriel J.X. Dance.  Facebook Gave Data Access to Chinese Firm Flagged by US Intelligence, The New York Times, https://www.nytimes.com/2018/06/05/technology/facebook-device-partnerships-china.html(last visited October 16, 2020).

[1] Feldman, Brian. Even if Facebook Stops Aggressively Collecting Data, Developers Will Still Supply It, Intelligencer, New York Magazine, https://nymag.com/intelligencer/2019/02/why-facebooks-data-collection-practice-is-so-messy.html(last visited October 16, 2020).

[1] Id.

[1] Collier, Kevin. TikTok a Privacy Threat? Sure, But So Are Most of Your Smartphone Apps, NBC News, https://www.nbcnews.com/tech/security/tiktok-privacy-threat-sure-so-are-most-your-smartphone-apps-n1233625(last visited October 16, 2020).

[1] Chan, Julia.  Top Apps Worldwide for August 2020 by Downloads, Sensor Tower Blog, Sensor Tower, https://sensortower.com/blog/top-apps-worldwide-august-2020-by-downloads(last visited October 16, 2020).

[1] Collier, Kevin. TikTok a Privacy Threat? Sure, But So Are Most of Your Smartphone Apps, NBC News, https://www.nbcnews.com/tech/security/tiktok-privacy-threat-sure-so-are-most-your-smartphone-apps-n1233625(last visited October 16, 2020).

[1] Feng, Zhaoyin.  TikTok Threatens Legal Action Against Trump, BBC News, https://www.bbc.com/news/business-53660860(last viewed October 16, 2020).

[1] Id.

[1] Crichton, Danny. TikTok Files for Injunction Against Pending Trump App Ban, Tech Crunch, https://techcrunch.com/2020/09/23/tiktok-files-for-injunction-against-pending-trump-app-ban/?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAELDh_fuoXeyeR2hvqI5Eoev4-(last visited October 16, 2020).

[1] Lima, Cristiano. Trump’s TikTok Restrictions ‘Likely Exceed’ His Legal Authority, Federal Judge Says, Politico, https://www.politico.com/news/2020/09/28/trump-tiktok-legal-authority-422663(last visited October 16, 2020).

[1] Can We Legally Ban TikTok?, Lawyer Monthly, https://www.lawyer-monthly.com/2020/09/can-we-legally-ban-tiktok/(last visited October 16, 2020).

[1] Id.

[1] Keman Huang & Stuart Madnick. The TikTok Ban Should Worry Every Company, Harvard Business Review, https://hbr.org/2020/08/the-tiktok-ban-should-worry-every-company(last visited October 16, 2020).

[1] Id.

[1] Id.

[1] Robertson, Adi. The Big Legal Questions Behind Trump’s TikTok and WeChat Bans, The Verge, https://www.theverge.com/2020/8/10/21358505/trump-tiktok-wechat-tencent-bytedance-china-ban-executive-order-legal-sanctions-rules (last visited October 16, 2020).

[1] Id.

[1] Id.

By: Timothy Murphy

As it stands today, most people only associate augmented and virtual reality (AR/VR) technology with video game products like the Oculus Rift, the Playstation VR or the augmented reality game Pokemon Go. However, industry insiders are keen to utilize so-called “immersive technology” in all manner of new applications, such as the fields of medicine, education, and even the military. According to the “2020 Augmented and Virtual Reality Survey Report,” which surveyed 191 experts within the industry, we have only begun to scratch the surface of the functionality and applications of this technology. Most experts in the survey predict that AR/VR technology will become a mainstream product within the next two to five years.

There are still, however, several hurdles this burgeoning industry must overcome. As some technological limitations begin to shrink with the onset of 5G, experts are anticipating challenges in another setting: the legal field. The most readily apparent legal risks in the industry take the form of user privacy concerns, government regulation, and product liability.

As with most technology industries, user data protection is a foremost concern. One of the most promising aspects of augmented reality for large companies is the potential for advertising their brand in ways never before possible. Last year, Burger King utilized an augmented reality promotion where users could point their phone’s camera at a McDonald’s advertisement. The app would then overlay a “burning” effect and reveal a voucher for a free Whopper beneath the digitally razed McDonald’s advert. As marketing efforts like this become more widespread, so too does the public concern over potential data collecting. Imagine a future where AR apps not only entertain the user, but also collect information about their home, routines, and desires. 

Several laws have already been passed to protect user privacy that will have ramifications in the AR/VR field. One such law is the California Consumer Privacy Act. This law, which became effective on January 1, 2020, gives Californians the right to request all data that large companies have collected on them, and even to have that data deleted upon request. As potentially invasive technologies continue to grow in popularity and ingenuity, it is likely that more states will need to update their privacy protection laws to keep up. 

Another legal risk stems from the sensory deprivation that consumers experience while immersed in virtual reality. There have already been several instances of VR users dying as a result of injuries sustained while wearing a headset, such as a man in Moscow who passed away after falling onto a glass table while he was using VR. There have also been hundreds of accidents attributed to Pokemon Go, the most popular AR game to date. As the AR/VR industry continues to rise in ubiquity, it is likely that there will be an equally large uptick in AR/VR injuries, and subsequent lawsuits.

It is clear that virtual and augmented reality technology has not yet fully reached its true potential. Like the internet or the cell phone, this new technology could drastically change the way we communicate with one another. Like all new technology, it is hard to predict exactly how the dust will settle, but hopefully lawmakers can strike the correct balance between encouraging the growth of this new field while also protecting consumers.

Sources:

About the California Consumer Privacy Act, Californians For Consumer Privacy, https://www.caprivacy.org/about.

Callum Patton, Virtual Reality Gamer Slips and Dies From Blood Loss After Falling On Glass Table. Newsweek (December 23, 2017), https://www.newsweek.com/virtual-reality-gamer-slips-and-dies-blood-loss-after-falling-glass-table-757966.

Dan Robitzski, The U.S. Army Is Using Virtual Reality Combat to Train Soliders. Futurism (March 22, 2019), https://futurism.com/army-soldiers-vr-combat-training.

Sol Rogers, AR Advertising: A Gimmick Or A New Advertising Frontier?Forbes (June 28, 2019),

Zach Warren, Augmented and Virtual Reality Tech Is Here, but Legal Risks Still Evolving.Law.com (April 3, 2020), https://www.law.com/legaltechnews/2020/04/03/augmented-and-virtual-reality-tech-is-here-but-legal-risks-still-evolving/.

ZoëBernard,Maybe You Shouldn’t Catch ‘Em All — A New Study Links ‘Pokémon Go’ to Traffic Deaths, Injuries, and Vehicle damage. Business Insider (November 27, 2017), https://www.businessinsider.com/pokemon-go-linked-to-traffic-deaths-accidents-and-hundreds-of-thousands-of-dollars-in-vehicular-damage-2017-11.

2020 Augmented and Virtual Reality Survey Report, Perkins Coie LLP (March 2020), https://www.perkinscoie.com/en/ar-vr-survey-results/2020-augmented-and-virtual-reality-survey-results.html.

By: Matthew Feibert

In one inconspicuous aspect, access to health care is no different than ordinary household items—it can be procured by using the internet.  This is done via telemedicine.  Specifically, telemedicine is the “practice of medicine using technology to deliver care at a distance.”[1]  In the majority of settings, telemedicine uses real-time digital face-to-face video-chatting to allow a health care professional to speak with and examine a patient.[2]  Instead of traveling to your doctor’s office and making the effort to avoid contracting an illness while sitting in the waiting room, telemedicine offers the benefit and ease of visiting your doctor from the comfort of your own home.  While telemedicine has steadily gained traction over the recent years, its use has skyrocketed since the arrival of COVID-19 in the United States.[3]  Though the use of telemedicine appears to be facially innocent, telemedicine is particularly vulnerable as it has been used as a vehicle to perpetuate health care fraud.[4]

Individuals have exploited the use of telemedicine for the purpose of enriching themselves.  The U.S Department of Justice has investigated and prosecuted egregious instances of health care fraud relating to the improper use of telemedicine.[5]  Unfortunately, telemedicine fraud schemes have resulted in the loss of staggering amounts of taxpayer dollars.

In 2019, Lester Stockett, the owner of numerous telemedicine companies, pleaded guilty to federal charges and admitted his role in a massive telemedicine fraud scheme.[6]  Over the course of the conspiracy, Stockett submitted or induced the submission of over $424 million in fraudulent claims to Medicare, over $200 million of which was paid and ultimately lined the pockets of the Stockett and his co-conspirators.[7] 

The companies that were used to perpetrate this fraud scheme were not nearby in geographic proximity.  Instead, the companies named in the indictment were registered and controlled in Florida, Wyoming, Delaware, and the Dominican Republic.[8]  This smattering of proximity between these companies demonstrates how the technological component of telemedicine allows for fraud schemes to be more far reaching and complex than ordinarily possible.  This case is only one illustration of the magnitude that telemedicine offers for those who seek to defraud the United States.

Today, although the medical community’s attention is currently focused on addressing the COVID-19 pandemic, the practice of medicine in non-COVID-19 areas must continue.  Yes, you can still become sick of an illness other than COVID-19.  In an effort to continue treating patients while simultaneously containing the spread of COVID-19 in the United States, health care providers of wide-ranging specialties have resorted to transitioning their office visits from an in-person interaction to now, a virtual interaction.[9]

On March 17, 2020, the Centers for Medicare & Medicaid Services (“CMS”) relaxed their ordinary reimbursement requirements for services performed via telemedicine.[10]  Using the “1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act,” CMS expanded the use of telemedicine.[11]  “Prior to this waiver[,] Medicare could only pay for telehealth on a limited basis: when the person receiving the service is in a designated rural area” and in order to receive medical attention, they would need to travel a great distance.[12]  Now, among other rollbacks under the 1135 Waiver, CMS will reimburse for telemedicine services that a beneficiary receives, regardless of the geographic distance between their residence and treatment site.[13]

Given this relaxation in policy, CMS should expect to see an increase in fraudulent billing submissions relating to the use of telemedicine.  After all, it is the harsh reality in that even during times of crisis, the frequency of fraud schemes tend to experience an uptick.[14]  We can be rightfully disheartened, yet not be surprised to learn of telemedicine fraud schemes that have occurred so far during the COVID-19 pandemic.

[1]                What’s the Difference Between Telemedicine and Telehealth?, Am. Academy of Family Physicians, https://www.aafp.org/media-center/kits/telemedicine-and-telehealth.html (last visited Apr. 9, 2020).

[2]                Yolanda Smith, Types of Telemedicine, News Medical, https://www.news-medical.net/health/types-of-telemedicine.aspx (last updated Aug. 23, 2018).

[3]                Jeff Lagasse, Telemedicine is Poised to Grow as its Popularity Increases Among Physicians and Patients, Healthcare Finance (July 16, 2019), https://www.healthcarefinancenews.com/news/telemedicine-poised-grow-its-popularity-increases-among-physicians-and-patients.

[4]                Jackie Drees, 5 Things to Know About Telehealth Fraud, Becker’s Hospital Review (May 2, 2019), https://www.beckershospitalreview.com/telehealth/5-things-to-know-about-telehealth-fraud.html.

[5]                See, e.g., Two Owners of Telemedicine Companies Charged for Roles in $56 Million Conspiracy to Defraud Medicare and Receive Illegal Kickbacks in Exchange for Orders of Orthotic Braces, U.S. Dep’t Justice (Feb. 5, 2020), https://www.justice.gov/opa/pr/two-owners-telemedicine-companies-charged-roles-56-million-conspiracy-defraud-medicare-and.

[6]                Owner and Chief Executive Officer of Telemedicine Company Pleads Guilty to $424 Million Conspiracy to Defraud Medicare and Receive Illegal Kickbacks in Exchange for Orders of Durable Medical Equipment, U.S. Dep’t Justice (Sept. 6, 2019), https://www.justice.gov/opa/pr/owner-and-chief-executive-officer-telemedicine-company-pleads-424-million-conspiracy.

[7]                Id.

[8]                Id.

[9]                Medicare Telemedicine Health Care Provider Fact Sheet, Ctrs. for Medicare & Medicaid Servs. (Mar. 17, 2020), https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.

[10]              See id.

[11]              Id.

[12]              Id.

[13]              Supra, note 9.

[14]              Greg Iacurci, Coronavirus Scams, Feeding off Investor Fears, Mimic Fraud From the 2008 Financial Crisis, CNBC (Mar. 21, 2020), https://www.cnbc.com/2020/03/20/coronavirus-scams-on-the-rise-mimic-fraud-in-2008-financial-crisis.html.

By: Kaitlyn Crobar

The basic idea of the Food and Drug Administration (the “FDA”) is to look at approval of food, drugs, medical devices, and other related things for safety and efficacy. Approved products should be safe for the consumer to use and not create their own risks. Drug manufacturers must determine the highest tolerable dose and the potential effects of the drug to ensure safe measures are employed by prescribers and consumers. Efficacy means that the medical product must produce a positive clinical benefit.

            Typically for FDA approval the medical product manufacturers must take several steps. Drug approval requires pre-clinical steps, conducting pre-clinical studies, and conducting clinical trials in various phases which takes on average twelve years to complete. Medical devices must also undergo several pre-market tests and trials which take an average of three to seven years to complete. However, in times of crisis, like during the current COVID-19 epidemic, the FDA allows for Emergency Use Authorizations of both drugs and medical devices under the Food, Drug, and Cosmetic Act.

            The Emergency Use Authorization process moves very fast. Authorization must first be granted from the supplier of a medical product for emergency use. Then an application can be submitted to the FDA for Emergency Use Authorization. Once the FDA gives authorization, the manufacturer can send the medical product to the physician who can then use the product with a patient. In the case of a drug, the patient must give informed consent before receiving the drug and the FDA must be notified of any adverse reactions. This process can occur all within the same day, making it much faster than the typical approval timeline for medical products.

            There are two types of Emergency Use Authorizations. The first allows for medical professionals to use unapproved medical products to diagnose, treat, or prevent a disease in emergency situations. The second allows medical professionals to use an FDA approved medical product in an unapproved way. Either way before mass distribution the products granted Emergency Use Authorizations must undergo a fast-tracked safety and efficacy testing.

            On March 28^th, 2020 the drugs hydroxychloroquine sulfate and chloroquine phosphate were granted Emergency Use Authorizations for the treatment of COVID-19. These drugs are not new drugs, but old drugs that obtained FDA approval for other uses, placing them in the second category of Emergency Use Authorizations. Hydroxychloroquine sulfate has been approved to treat malaria, lupus, and rheumatoid arthritis. Some versions of chloroquine phosphate have been approved to treat malaria. Neither drug has been FDA approved to treat COVID-19.

            The Emergency Use Authorization allows labs to test the effect of the drugs on COVID-19. Lab testing, often completed in the form of in vitro studies, has shown that the drugs help prevent the growth of the virus. With successful initial lab testing, clinical trials for hydroxychloroquine sulfate and chloroquine phosphate have begun. The clinical trials will take time to complete, although the process will be sped up. Doctors and researchers hope to have results in one year as opposed to twelve years.

            Existing drugs that other nations have identified as potentially helpful in curing COVID-19 are favipiravir (a flu drug), remdesivir (a failed Ebola treatment), hydroxychloroquine with azithromycin (an antibiotic), convalescent plasma, and arthritis drugs. Tests are being performed on these drugs in countries like China, Japan, and France. We should not be surprised for the US to announce they have begun trials on these as well. However, the FDA has not yet provided any official Emergency Use Authorization for these drugs. As research continues, it is likely that Emergency Use Authorizations will be granted for new drugs created to combat COVID-19.

            In addition to Emergency Use Authorizations for drugs, the FDA has granted Emergency Use Authorizations for new test kits, personal protective equipment, and ventilators. With the tests for COVID-19 taking several days to return results, many patients waited in worry. Additionally, the need for test kits far overgrew the supply available. This presented the need for more tests and for rapid tests so that patients could have same day results. The FDA has given over thirty Emergency Use Authorizations for both in vitro diagnostic products and molecular-based laboratory developed tests.

            One new diagnostic test that was granted Emergency Use Authorization was created by the BD Company and BioGX Inc. Their test is run on a molecular diagnostic platform that is capable of analyzing hundreds of samples per day. This test is said to yield results in as little as three hours and is expected to increase the number of tests available nationwide by 50,000 per week. While their test has been given Emergency Use Authorization, it has not been approved by the FDA as a medical device to diagnose COVID-19. This means that the test can only be used to detect COVID-19 for as long as the FDA deems that there is an ongoing emergency.

            As we continue to combat COVID-19, we will likely see the number of Emergency Use Authorizations rise rapidly. This is all in part of the dedicated medical professionals who are working tirelessly day in and day out to find solutions in order to end this epidemic.

Sources:

• Emergency Use Authorization, U.S. Food and Drug Administration, https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization#LDTs (last visited Apr. 9, 2020).
• Frequently Asked Questions on the Emergency Use Authorization (EUA) for Chloroquine Phosphate and Hydroxychloroquine Sulfate for Certain Hospitalized COVID-19 Patients, U.S. Food and Drug Administration, https://www.fda.gov/media/136784/download (last visited Apr. 9, 2020).
• Gail A. Van Norman, Drugs, Devices, and the FDA: Part 1: An Overview of Approval Process for Drugs, 1 JAAC: Basic to Translational Sci. 170, 170-179 (2016).
• Gail A. Van Norman, Drugs, Devices, and the FDA: Part 2: An Overview of Approval Processes: FDA Approval of Medical Devices, 1 JAAC: Basic to Translational Sci. 277, 277-287 (2016).
• Matthew Herper, When might experimental drugs to treat Covid-19 be ready? A forecast, STAT (Mar. 24, 2020) https://www.statnews.com/2020/03/24/when-might-experimental-drugs-to-treat-covid-19-be-ready-a-forecast/.
• Troy Kirkpatrick, BD, BioGX Announce FDA Emergency Use Authorization for New COVID-19 Diagnostic for Use in the U.S., BD (Apr. 3, 2020) https://www.bd.com/en-us/company/news-and-media/press-releases/bd-biogx-announce-fda-emergency-use-authorization–for-new-covid-19-diagnostics-for-use-in-us.

By: Ryan Thompson

“Let me be clear: everymother, regardless of race or background, deserves to have a healthy pregnancy and childbirth,” tennis star Serena Williams said in a Facebook post speaking to the racial disparities and bias present in maternal healthcare, following her Vogue cover story where she opened up about her own personal experience. “I personally want all women of all colors to have the best experience they can have.” For the numerous fatal obstetric outcomes resulting from childbirth, there exist clear disparities across racial groups. In 2019, the Centers for Disease Control and Prevention (‘CDC’) reported that Black, Native American, and Alaska Native women are approximately three times more likely to die from pregnancy-related causes than White women.

On December 21, 2018, the Preventing Maternal Deaths Act (H.R. 1318) was signed into law, allowing for the allocation of resources to collect and analyze data on every maternal death in the country. Through this bill, the Federal Government intends to use funds for the establishment and support of existing maternal mortality review committees (‘MMRCs’) in states and tribal nations across the United States. These committees collect data and recommend preventive measures to be taken during the prenatal and postpartum stages. Principal Deputy Director of the CDC, Dr. Ann Schuchat, said: “The bottom line is that too many women are dying [from] largely preventable deaths associated with their pregnancy…we have the means to identify and close gaps in the care they receive, we can and should do more.”

Maternal health amongst black women has garnered much attention in recent years as more data became available. Of the approximate 3.8 million births each year, there are an estimated 700 pregnancy-related deaths. The CDC has reported that while 13 white women die per every 100,000 live births, the figure increases to 42.8 for Black women, and 32.5 for Native American/Alaska Natives women.  These statistics have prompted the Federal government to take action to ensure that there are closer studies of the information available and a dramatic reduction in these figures for women, particularly those for women of color. Though the reasons for the differences remain unclear, the passing of H.R. 1318 was a good step in the right direction.

Current and former presidential candidates have also made it a priority to shed light on this issue, with Senator Kamala Harris even proposing new legislation in her fight against maternal mortality. A reduction in cognitive implicit biases by healthcare providers and a call for improvement facilities through the care provided in the disproportionately affected communities may lead to a better result in the years to come. It is saddening that in one of the leading countries of the world, there exists a reality where black women from all socioeconomic statuses and the death rate for black infants exponentially surpasses that of non-Hispanic white women. Healthcare for all women must be a priority, especially in one of the most precious and vulnerable times of their lives.

References:

Julia Curley, Serena Williams reflects on post-birth complications: ‘It made me stronger’, Today, (Jan. 15, 2018), https://www.today.com/parents/serena-williams-reflects-post-birth-complications-it-made-me-stronger-t121223.

Rob Haskell, Serena Williams on Motherhood, Marriage, and Making Her Comeback, Vogue, (Jan. 10, 2018), https://www.vogue.com/article/serena-williams-vogue-cover-interview-february-2018?mbid=zr_serenawilliams.

Roni Caryn Rabin,Huge Racial Disparities Found in Deaths Linked to Pregnancy, The New York Times, (May 7, 2019), https://www.nytimes.com/2019/05/07/health/pregnancy-deaths-.html.

Emily E. Petersen, MD ET AL,Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015, and Strategies for Prevention, 13 States, 2013-2017, CDC, (May 10, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6818e1.htm.

By: Emily Aziz

Investors eager to benefit from the COVID-19 pandemic rushed to purchase shares of Zoom, a video-calling platform that has seen an increase in surge share prices due to COVID-19. Many traders, however, purchased the wrong stock. On March 25, 2020, the Securities and Exchange Commission (“SEC”) announced the temporary suspension, pursuant to Section 12(k) of the Securities Exchange Act of 1934 (the “Act”), of trading in the securities of Zoom Technologies Inc. due to this confusion. 

Under Section 12(k) of the Act, the Commission is authorized to suspend trading in any security for a period not exceeding 10 business days if, in its opinion, is necessary to protect the public interest and investors. 

Zoom Technologies, a Delaware Corporation that has its principal executive offices in China, primarily engages in technology and communication businesses. The company has not filed a public disclosure statement since 2015. Because of this, the SEC had concerns about the adequacy and accuracy of publicly available information concerning Zoom, including its financial data. Zoom Video Communications, on the other hand, has become incredibly popular amid the coronavirus pandemic as more people work or study from home, and as a result, have become reliant on videoconferencing for maintaining day-to-day communications. 

According to Business Insider, the shares of Zoom Video are up roughly 116 percent year-to date. Zoom Technologies stock was up more than 800 percent year-to-date before its trading halt.  This is not the first time this mix up between the two companies has occurred; In April 2019, Zoom Video went public and Zoom Technologies rallied nearly 100% on the initial public offering day despite, again, not having released any new financial information. 

The temporary suspension ends on April 8, 2020 at 11:59 PM. 

CITATIONS: 

Securities Exchange Act Section 12(k), 15 U.S.C. § 781(k) (1988)

Order of Suspension of Trading, Zoom Technologies, Inc., No. 500-1 (Securities Exchange Comm’n March 25, 2020) 

Jonathan Garber, A company called Zoom Technologies is surging because people think it’s Zoom Video Communications (ZOOM, ZM), Markets Insider (Apr. 18, 2019 10:57 AM) https://markets.businessinsider.com/news/stocks/publicly-listed-zoom-video-communications-traders-buying-zoom-technologies-2019-4-1028122561?utm_source=markets&utm_medium=ingest

Ben Winck, The SEC stopped trading on an over-the-counter stock because people were confusing it with Zoom Video, which has soared amid the coronavirus lockdown, Market Insider (Mar. 26, 2020 12:33 PM) https://markets.businessinsider.com/news/stocks/zoom-technologies-stock-halted-sec-confusion-with-zoom-video-coronavirus-2020-3-1029036453

 Jessica Bursztynsky, SEC pauses Zoom Technologies trading because people think it’s Zoom Video, CNBC (Mar. 26, 2020 11:57 AM) https://www.cnbc.com/2020/03/26/sec-pauses-zoom-technologies-as-traders-confuse-it-with-zoom-video.html

David Canellis, SEC halts $ZOOM after coronavirus traders confuse it for Zoom app, The Next Web (Mar. 27, 2020 2:12 PM) https://thenextweb.com/hardfork/2020/03/27/sec-halts-zoom-after-coronavirus-traders-confuse-it-for-zoom-app/

Photo: Courtesy of Forbes

By: Joseph Mallek

Across the country consumers are seeking cleaning and other products to protect themselves due to the COVID-19 outbreak. Supermarkets and online retailers are struggling to keep up with the rise in demand. Businesses and third-party sellers are now increasing their prices due to this rise in demand and decrease in supply. States attorney generals across the country are receiving and responding to complaints from price gouging consumers.^[1]This practice is normally lawful but in the current health crisis, states are using price gouging statutes to protect consumers.^[2]

Although many states have price gouging statutes, these statutes vary in terminology and penalties. Michigan Gov. Gretchen Whitmer prohibited the resale of a product at a price that is grossly in excess of the purchase price.^[3]Price gouging is penalized in Michigan under the Michigan’s Consumer Protection Act.^[4]Under the governors executive order, the sale of a product “at a price that is more than 20% higher” than the price charged for that product as of March 9 is prohibited.^[5]

In New York, Attorney General Letitia James ordered merchants from price gouging sanitation products and set up a website for consumers to submit price gouging complaints.^[6]Under New York law, it is prohibited to sell goods or services at an “unconscionably excessive price” during a declared state of emergency.^[7]The New York statute reserves the right to the courts to determine whether a price is unconscionably excessive.^[8]Some of the factors the courts consider include the exercise of unfair leverage or unconscionable means and that the “amount of the excess in price is unconscionably extreme.”^[9]

In the past few weeks, consumers have reported that the prices on these items have significantly increased.^[10]Attorney general’s offices around the country are warning sellers against price gouging necessary products.^[11]In addition to consumers reporting abuses, retailers like Amazon must do their part to monitor third-party retailers. As well, it is important for all retailers to keep records and documentation to prove that increases in cost led to the price increase. 

^[1]Michael Levenson, Price Gouging Complaints Surge Amid Coronavirus Pandemic, The New York Times, https://www.nytimes.com/2020/03/27/us/coronavirus-price-gouging-hand-sanitizer-masks-wipes.html (last visited Mar. 28, 2020).

^[2]Price Gouging Laws by State,FindLaw, https://consumer.findlaw.com/consumer-transactions/price-gouging-laws-by-state.html (last visited Mar. 28, 2020).

^[3]Ryan Jarvi, AG’s Office Receives New COVID-19 Scam Report, More Than 800 Price-gouging Complaints, Official Website of Michigan.gov (https://www.michigan.gov/coronavirus/0,9753,7-406-98158-522347–,00.html) (last visited Mar. 28, 2020).

^[4]Supranote 2. 

^[5]Supra note 3.

^[6]AG James: Price Gouging Will Not Be Tolerated, NYS Attorney General(https://ag.ny.gov/press-release/2020/ag-james-price-gouging-will-not-be-tolerated) (last visited Mar. 28, 2020).

^[7]Supranote 2.

^[8]General Business Law § 396-r

^[9]Id.

^[10]Jessica Guynn, Coronavirus price gouging: eBay bans face masks, hand sanitizer and disinfecting wipes, USA Today(https://www.usatoday.com/story/tech/2020/03/06/coronavirus-price-gouging-ebay-bans-face-masks-hand-sanitizer-sales/4976292002/) (last visited Mar. 28, 2020).

^[11]Jack Nicas, He Has 17,700 Bottles of Hand Sanitizer and Nowhere to Sell Them, The New York Times(https://www.nytimes.com/2020/03/14/technology/coronavirus-purell-wipes-amazon-sellers.html) (last visited Mar. 28, 2020).