By Cecily Capo

On October 28, 2021, the U.S. Copyright Office adopted exemptions to provisions in the Digital Millennium Copyright Act (DMCA) which will allow for technological protection measures (TMPs) to be bypassed if certain conditions are met.[1] The DMCA was enacted in 1998 to implement two World Intellectual Property Organization (WIPO) treaties and address various copyright-related issues.[2] The provision at issue, title 1, prohibited the “circumvention of technological measures employed by or on behalf of copyright owners”.[3] These measures were put in place to ensure that only the copyright owner could make alterations to the copyright-eligible features of their product, such as software.[4] However, under this new ruling, the restriction will not apply to those who use a copyrighted work for non-infringing purposes for three years.[5]

Prior to this ruling, if a copyright owner licensed its product to a third party and the third party circumvented a technological measure in some way without the owner’s permission, the third party would be found to have infringed the owner’s copyright.[6] Since software is often protected by copyright, any alteration to it could be seen as an infringement.[7] As a result, the right to repair movement spread across the country.[8] Many have argued that if they are prohibited from altering a product’s software, they are unable to make repairs to it, and thus they are at the mercy of the manufacturer.[9] For example, a farmer who purchases a new tractor equipped with an electronic feature would often be without the legal right to make repairs, since certain repairs would be seen as circumventing a technological measure without the owner’s permission.[10] The U.S. Copyright Office’s ruling remedies this concern by giving purchasers three years to circumvent the product’s technological measures for non-infringing uses without fear of recourse by the copyright owner.[11]

There has been some concern regarding how this ruling will affect the security of medical devices. Peter Pitts, President of the Center for Medicine in the Public Interest, opined that this ruling will open the door to anyone hacking into secure medical devices and claiming it is for purposes of repair, calling it an “open season” for medical device hacking.[12] Pitts said that the unintended consequence of this ruling is that a once hard to track illegal activity becomes a hard to track legal activity and puts patient safety and security at risk.[13] However, this exemption will only be granted if one can show that their ability to make non-infringing uses of their copyrighted work will be adversely affected by the safeguards put in place by the DMCA.[14]

---

[1] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

[8] Ron Lyseng, U.S. Farmers Fight for Right to Repair, The Western Producer (Mar. 8, 2013), https://www.producer.com/crops/u-s-farmers-fight-right-repair/.

[9] Id.

[10] Id.

[11] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

[12] Peter J. Pitts, Right-to-Repair: Building Back Worse, IP Watchdog (Jan. 6, 2022), https://www.ipwatchdog.com/2022/01/06/right-repair-building-back-worse/id=142476/.

[13] Id.

[14] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

By: Christopher Henley

Back in 2011, a largely bi-partisan Congress passed the “America Invents Act,” (AIA) a pivotal piece of legislation that completely overhauled the patenting process.^[1] Prior to the passing of the Act, patent practitioners sought a means of exercising patent review that was not left entirely to the discretion of the Director of the United States Patent and Trademark Office (USPTO) or the district court. Thus, under the AIA, the Patent Trials and Appeals Board (PTAB) was created. In the past 10 years, however, the PTAB has been under fire, being hailed by some as a “means for big tech companies to steamroll small inventors,” and the body of law responsible for stifling innovation and devaluing US patents.^[2] After a recent pivotal Supreme Court Decision, both political parties have offered their ideas to drastically change the law body, each addressing the issue from different perspectives.

The PTAB is an administrative law body within the USPTO whose sole focus is to determine issues of patentability.^[3] These issues are presented to the court in the form of examination appeals, inter partes review, covered business method review, derivation proceedings, and Post Grant Review.^[4] The court itself is made up of statutory members, such as the Director of the USPTO, and administrative patent judges (APJs) who are appointed by the Secretary of Commerce.^[5] Each APJ is required to be “persons of competent legal knowledge and scientific ability” and sufficiently qualified to be of skill in a technical field.^[6]

Proceedings in the PTAB are remarkably similar to those in an Article III court, such that proceedings are initiated by a petition and preliminary response, trials are conducted, and final written decisions are issued. Despite the law body’s statutory support, the authority of the PTAB was challenged this past summer at the Supreme Court in United States v. Arthrex. In a majority opinion written by Justice Roberts, the Court held that the exercise of power held by the PTAB must be at some level, subject to the discretion of the Director of the USPTO, an un-elected officer nominated by the President.^[7] While Arthrex does on some level address the PTAB’s unchecked authority, the majority opinion avoids the discussion of whether or not the court is unconstitutional as a whole. Instead, it gives a signal to practitioners who want the PTAB to be reformed that they are unlikely to find that relief from the Supreme Court. 

In addition to the constitutional challenges, the PTAB has been widely criticized for its institution of inter partes review (IPR). IPR is a proceeding instituted post grant of a patent, wherein a third party can challenge the validity of a patent under either a novelty or non-obviousness claim.^[8] To file an IPR, a third party must pay at minimum $19,000 and submit prior art that they believe renders the granted patent, or a portion of the patent, invalid.^[9] IPR proceedings have long been abused by large corporations who are capable of paying the initial filing fee and keeping patent holders in limbo. Some even believe that IPR proceedings are partially responsible for the devaluing of the US patent.^[10]

To resolve some of the issues posed by the PTAB, each party in Congress has introduced a bill post-Arthrex to address the failing US patent system. First, Senator Leahy (D-VT) introduced the “Restoring the American Invents Act” bill in September that aims to expand the PTAB’s jurisdiction to include obviousness-type double patenting, codify the Arthrex decision, and strongly encourage district court stays pending PTAB review among other things.^[11] Senator Leahy in his bill is sending a signal that the PTAB is here to stay, and that its authority should be expanded.  According to some, the bill would reinforce high-quality patents by eliminating low-quality patents in PTAB review while also incentivizing patent owners to draft high quality patents, thus increasing their chance of surviving a PTAB challenge.^[12]The bill, of note, has had an mixed initial response and has been popular among some tech companies.^[13]

Conversely, House Representative Thomas Massie (R-KY) introduced a bill on November 4^th, 2021 titled “Restoring America’s Leadership in Innovation Act of 2021” that proposes to eliminate the PTAB as well as IPR.^[14]With this proposal, Republicans in the House are taking a strong stance against the AIA and the PTAB, proposing a complete overhaul of the patent system. Representative Massie, an MIT grad, has been on the record saying that the AIA and the Supreme Court have eroded the “strength and value” of the US patent.^[15]

The role of the PTAB remains to be a point of partisan debate. While both parties acknowledge that reform in the patent system must happen, neither proposal appears to have the same amount of support as the original AIA bill when it passed over 10 years ago. As for now, both proposed bills are in their infant stage and show no sign of progressing through Congress. Both parties will continue to maintain that the law body is flawed, but until there is a resolution, the PTAB will continue to be a vestige of the USPTO that is here to stay, at least for now.

---

^[1] See Leahy-Smith America Invents Act, H.R. 1249, 112^th Cong.

^[2] Jeff John Roberts, Apple Tried to Kill More Patents Than Anyone Else, By Far, Fortune (Jan. 21, 2016),https://fortune.com/2016/01/21/apple-ptab/.

^[3] Janet Gongola, The Patent Trial and Appeal Board: Who are they and what do they do? United States Patent and Trademark Office, https://www.uspto.gov/learning-and-resources/newsletter/inventors-eye/patent-trial-and-appeal-board-who-are-they-and-what.

^[4] Id.

^[5] Id.

^[6] Id.

^[7] United States v. Arthrex, Inc., 141 S. Ct. 273, 288 1970 (2021).

 

^[8] 37 C.F.R.  § 42.104 (2021).

^[9] See USPTO Fee Schedule (Last visited Nov. 15, 2021) https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule.

^[10]Gene Quinn, A kinder, Gentler “Death Squad”: Ten Years in, Despite Some Reforms, the USPTO is Still Killing U.S. Patents, IP Watchdog (September 19, 2021) https://www.ipwatchdog.com/2021/09/19/kinder-gentler-death-squad-ten-years-despite-reforms-uspto-still-killing-u-s-patents/id=137765/.

^[11] Restoring the America Invents Act, S. 2891, 117^th Cong. (2021).

^[12] David Cochran and Zach Sharb, Legislation: Restoring the America Invents Act, JDSupra (October 6, 2021). 

^[13] Id.

^[14] Restoring America’s Leadership in Innovation Act, H.R. 5847, 117^th Cong. (2021).

^[15] Gene Quinn, Massie Introduces Bill to Repeal PTAB, Abrogate Alice, IP Watchdog (November 9, 2021) https://www.ipwatchdog.com/2021/11/09/massie-introduces-bill-repeal-ptab-abrogate-alice/id=139758/.

By: Sam Schimel

Gestational surrogacy legality in New York state is what is needed to combat the immediate concern of declining birth rates. The Child Parent Security Act (CPSA) was introduced in 2020 to legalize gestational surrogacy which has been illegal for a large amount of time. A gestational surrogate is when a surrogate gestates a fetus, formed from an embryo using an oocyte from either the intended mother or an oocyte donor (which is combined with the sperm from either the intended father or a sperm donor.^[1] This type of surrogacy differs from traditional surrogacy, an agreement where surrogate also donates the oocyte.^[2] Gestational surrogacy is more often seen as less controversial than traditional, and the majority of states have legalized it. 

Gestational surrogacy has had a long an arduous journey to legality in New York State beginning with the landmark New Jersey Case, aptly named the Baby M Case. The case concluded that the full surrogacy contract in question was not permitted by New Jersey law. ^[3] The case was controversial because the surrogate, whose own genetic material was used in a traditional surrogacy, decided that she didn’t want to follow the contract and wished to keep the baby instead.^[4] This case had such a profound effect, that it was not until this year that the Child Parent Security Act has been signed into law. ^[5]

There have been several recent controversies surrounding women’s reproductive health that have not helped the declining birth rate currently plaguing the U.S. From the Texas abortion law to cryopreserved embryo storage spaces malfunctioning resulting in the loss of dozens of frozen embryos.^[6] This sort of news is a light at the end of a currently dark tunnel. The CPSA allows for relaxed surrogacy eligibility and calls for reasonable compensation.^[7] This overhaul for New York State surrogacy legislation could not have come at a better time than when the overall birth rate in the United States has been significantly lowered by the pandemic-related financial stresses facing many Americans.^[8] The fact that this legislation was introduced at the same time as this decline in birth rate seems too strong of a correlation to be coincidental. But in any case, it could help bring the U.S. back on its footing and also make up for the current upsets in women’s reproductive health. 

---

^[1] Kate Swanson Et Al., Understanding gestational surrogacy in the United States: a primer for obstetricians and gynecologists, Ajog, April 2020, https://www.sciencedirect.com/science/article/pii/S0002937820300582.

^[2] Id.

^[3] In re Baby M, 537 A.2d 1227, 1264 (1987).

^[4] Elizabeth Chuck, New York state, long a holdout against legalizing surrogacy, overturns ban, Nbc news (Apr. 3, 2020, 3:04 PM), https://www.nbcnews.com/news/us-news/new-york-state-long-holdout-against-legalizing-surrogacy-overturns-ban-n1176071.

^[5] Id.

^[6] Gerard Letterie & Dov Fox, Lawsuit frequency and claims basis over lost, damaged, and destroyed frozen embryos over a 10-year period, 79 Seattle Reproductive Medicine, Seattle, Washington; and School of Law, Center for Health Law and Policy and Bioethics, University of San Diego, San Diego, California (2020).

^[7] Joseph Williams, New Surrogacy Law Brings Opportunities but Practitioners Beware, N.y.s. Bar Ass’n,, (Mar. 9, 2021), https://nysba.org/new-surrogacy-law-brings-opportunities-but-practitioners-beware/. 

^[8] Sabrina Tavernise, The U.S. Birthrate Has Dropped Again. The Pandemic May Be Accelerating the Decline, N.Y. Times (May 5, 2021), https://www.nytimes.com/2021/05/05/us/us-birthrate-falls-covid.html. 

By: Stephan Surman

September 1, 2020 marks the publication of the 21st edition of The Bluebook. ^[1] Weighing in at just 16 ounces (365 pages), the latest edition is a wraith of its former self, having shed over 195 pages and 7 ounces of dead weight. ^[2]Unfortunately, nearly 9 ounces of dead weight remain.

Ostensibly, legal citations are important for two reasons. First, citations identify the document or other source material to which the writer is referring, ideally making it easy for the reader to locate the source material for further review.^[3]Second, citations help the reader distinguish between new and unique ideas, and those borrowing from the ideas of others. The two most often used systems of citation in the United States are The Bluebook and the ALWD Guide to Legal Citation^[4], however The Bluebook is taught at most US law schools and employed by most federal courts.^[5]

Unfortunately, in contrast to haircare, the rules of the Bluebook are anything but simple and finite, and thousands of law students fritter away countless hours with their noses buried deep within its pages. Ilya Somin, Professor of Law at George Mason University School of Law, agrees The Bluebook is a waste of time and effort, arguing:

Every year, law review editors across the country spend thousands of man-hours editing articles to make sure that they conform to the Blue Book rules, taking Blue Book tests, and engaging in other Blue Book-related activities…. This time could easily be spent in more productive ways, such as studying, research, clinical work, or even working on your tan at the beach.^[6]

I don’t tan. I fry like the Colonel’s chicken, but I was required to take a citation exam based on The Bluebook to earn a position on Syracuse University’s Journal of Science and Technology. Though my experience on the journal has been fantastic, the exam was too long and entirely unnecessary, and I’m certain my performance almost no impact on my acceptance to the journal. And, I’m not the only student who feels this way.^[7]

In his article, Beyond The Bluebook: Teaching First-year Law Students What They Need to Know About Legal Citation, Peter Nemerovski, Professor of Legal Writing at The University of North Carolina Law School, cites (pun unintended) several theories as to why The Bluebook remains central to legal education today. First, The Bluebook has been taught and used within the legal profession for nearly 100 years.^[8][9] Second, uniformity in citations is important and a single standard helps drive uniformity.^[10] Third, compliance with a standard is an indicator of quality and professionalism.^[11] Fourth, the longevity of The Bluebook can be attributed to pride and greed.^[12] And fifth, study of The Bluebook requires a process of reasoning analogous to the study of law.^[13]

Vinny Gambini and Mona Lisa Vito would agree none of these arguments hold water. Regardless, each of these arguments is purely academic when considering the purpose of legal citations. A centuries old, highly complex, and debatably uniform system of citations provides no benefit toward the identification and location of source material when Google is a click away. Like the pyramids of Egypt, the Bluebook is both antiquated and excessive.^[14] It’s no surprise noted jurist and former circuit court judge for the United States Court of Appeals for the Seventh Circuit called for The Bluebook to be burned.^[15] Computerized search technology has rendered The Bloatbook entirely unnecessary.

An adaptation of Posner’s standard of citation was used for the references contained in this blog post.^[16] Though Posner’s theories of economics are questionable, his alternative method of citation is exactly what the legal profession needs.

If you can’t find it Google it; I will be outside trying to catch a tan.

---

^[1] Amazon’s Bluebook product listing, https://www.amazon.com/Bluebook-Uniform-System-Citation-21st/dp/0578666154/ (visited April 26, 2021)

^[2] Amazon’s Bluebook product listing, https://www.amazon.com/Bluebook-Uniform-System-Citation-21st/dp/0578666154/ (visited April 26, 2021)

^[3] Peter W. Martin, Introduction to Basic Legal Citation, https://www.cali.org/sites/default/files/basic_legal_citation_1.pdf (visited April 26, 2021)

^[4] Legal Citation, https://iupui.libguides.com/legalcitation (visited April 26, 2021)

^[5] Wikipedia entry on Bluebook, https://en.wikipedia.org/wiki/Bluebook (visited April 26, 2021)

^[6] Ilya Somin, “The Case for Abolishing The Bluebook”, The Volokh Conspiracy, May 19, 2010, http://volokh.com/2010/05/19/31605/

^[7] Staci Zaretsky, “Law Student’s Revolt Against Law Review’s Bluebook Exam”, Above the Law, March 22, 2012, https://abovethelaw.com/2012/03/law-student-revolts-against-law-reviews-bluebook-exam/

^[8] Peter Nemerovski, “Beyond The Bluebook: Teaching First-year Law Students What They Need to Know About Legal Citation”, Arizona L. Rev. 56:4, 84 (2014)

^[9] Shapiro and Krishnaswami, “The Secret History of The Bluebook”, Minn. L. Rev. 100, 1563 (2016)

^[10] Nemerovski at 85

^[11] Nemerovski at 86

^[12] Nemerovski at 87

^[13] Nemerovski at 89

^[14] Richard A. Posner, “The Bluebook Blues”, Yale L. Journal 120, 851 (2010)

^[15] Debra Cassens Weiss, “Posner says Bluebook is ‘560 pages of rubbish,’ suggests changes to improve jury trials”, ABA Journal, March 29, 2016, https://www.abajournal.com/news/article/want_to_even_out_lawyer_quality_and_end_contingent_fees_adopt_a_uniform_pay

^[16] Posner at 854

By: Robert Baurley

On September 3, 2018, musical artist Machine Gun Kelly released an attack single (commonly called a “diss track” within the music industry) against fellow rapper Eminem (“Marshall Mathers”) on World Star Hip Hop’s YouTube account. The lyrics to Kelly’s song, Rap Devil, included various attacks against Eminem, but most notably included the following lyric: “I think my dad’s gone crazy. Yeah Hallie, you right. Dad’s always mad cooped up in the studio yelling at the mic.” When Kelly released his music video on World Star Hip Hop’s YouTube account, these lyrics included a sample of an audio recording over the lines “I think my dad’s gone crazy”—implying, arguably, that the pre-recorded voice was Eminem’s daughter Hallie Jade Scott Mathers. 

Notably, when Machine Gun Kelly released the attack single for sale on iTunes—through the music label Bad Boy Records (a subsidiary of Interscope Records)—the line “I think my dad’s gone crazy”, that was included in his YouTube release, was partially censored and removed from the master recording of the song. Not only was the line “crazy” completely removed, but the underlying pre-recorded audio was also removed from the recording released to iTunes.^[i]

Basic intellectual property law (“IP”) explains this discrepancy. If Machine Gun Kelly did not own the recording included within his pre-release on YouTube, he cannot include this audio recording within his master track sold to the public; unless he owns a license to use the pre-recording in his own song. Now, we may ask: why can the pre-recorded audio still be published on YouTube, but not iTunes? The answer to this involves both IP law and contract law. 

From a legal standpoint, Machine Gun Kelly faces potentially less liability for a release of the pre-recorded track within the sample of his song on YouTube, because a copyright holder (attempting to assert a claim for copyright infringement) must generally first undergo the internal procedures outlined by YouTube’s user agreement, when trying to pursue a copyright infringement action within the medium of YouTube’s website. However, in the traditional medium of releasing and selling music to the public, there is no internal issue of dealing with a reproduction of copyright-protected material on a self-contained website. Rather, distributing this copyright material to the public for direct sale would be governed solely by IP law (Copyright Act of 1976) and not the contract law implications attached to a service provider like YouTube. 

As such, under the hypothetical situation where Machine Gun Kelly did not have the permission—of the entity who owns and recorded the line “I think my dad’s gone crazy”—to use the recording within Kelly’s YouTube version of Rap Devil, that entity would first need to file an internal claim against World Star Hip Hop for copyright infringement on YouTube’s interface.^[ii] Upon notice of a potential IP violation, the owner of the pre-recorded sound bite (“I think my dad’s gone crazy”) can submit a request to remove the video from YouTube under an internal complaint of copyright infringement.^[iii] Thereafter, the entity may also pursue a claim against World Star Hip Hop within the traditional bounds of IP law—if in fact there was an unauthorized derivative use of the recorded lyrics under the Copyright Act of 1976.^[iv] As mentioned above, if the use was not permitted and the line was still used in the version of the song sold on iTunes, this procedure would not apply and a strict application of 17 U.S.C. § 501-513 would allow an immediate IP action against Kelly’s hypothetical use. 

Nevertheless, Machine Gun Kelly (or executives at Interscope Records) made the preemptive decision to remove the pre-recorded audio from the final version of Rap Devil sold to the public. The label clearly understood that selling a song with a lyric of questionable ownership exposed the artist to more liability—or “heat”—than is typically warranted through the release of a diss track. 

---

^[i] For a full version of Machine Gun Kelly’s YouTube music video, see https://www.youtube.com/watch?v=Fp0BScQSSvg; (0:23 to 0:25) “I think my dad’s gone crazy”. 

^[ii]https://www.youtube.com/howyoutubeworks/policies/copyright/?utm_source=paidsearch&utm_medium=txt&utm_campaign=ytgen&utm_content=usco&gclid=Cj0KCQjw4ImEBhDFARIsAGOTMj8tJK7LoLm-nzcnLwh5Uamu8MamdzDq_Ld5qAZDeOSsRuvWeYEUIH0aAnB2EALw_wcB#enforcing-copyright.

^[iii]https://www.youtube.com/howyoutubeworks/policies/copyright/?utm_source=paidsearch&utm_medium=txt&utm_campaign=ytgen&utm_content=usco&gclid=Cj0KCQjw4ImEBhDFARIsAGOTMj8tJK7LoLm-nzcnLwh5Uamu8MamdzDq_Ld5qAZDeOSsRuvWeYEUIH0aAnB2EALw_wcB#enforcing-copyright.

^[iv] See 17 U.S.C.A. §§ 101-805; 1001-1010; 1101; 1201-1205; 1301-1332; 1401.

By: Alexandra Douglass

On April 12, 2012, a federal district court in Montana invalidated the Federal Government’s approval of the first phase of Rock Creek Mine construction, a major copper and silver mine. The mine was to be constructed beneath the Cabinet Mountains Wilderness in northwest Montana.^[1] The miners proposed digging under the boundary of the federal wilderness area to reach large deposits of copper and silver.^[2] Heleca Mining Company, is attempting to develop two large mines – the Montanore and Rock Creek projects – in the Cabinet Mountains.^[3] The land, which contains high elevation streams that are among the purest water sources in the United States, harbors vital populations of bull trout and grizzly bear.^[4] These trout, depended on the cold waters and protected by the Endangered Species Act, are facing increasing threats due to global warming.^[5] The area is also home to one of the last five grizzly bear population in the United States today.^[6]

A coalition of conservation groups and cultural leaders within the Ksanka band of the Ktunaza Nation have filed various lawsuits challenging the permits.^[7] In 2017 a district court in Montana invalided the permits for The Montanore Mine on the grounds that they violated the Endangered Species Act.^[8] In the current litigation, challenging the permits for the Rock Creek Mine, the federal court also found that the U.S. Fish and Wildlife Service and the U.S. Forest Service violated the Endangered Special Act by not considering the impact of the full mine proposal on federally protected grizzly bear and bull trout.^[9] Heleca Mining Company attempted to break the permitting process into small steps.^[10] They first sough permits for the exploration phase of the project which were granted by the government.^[11] The federal court ruled that the government could not grant permits for an exploratory stage of a project without first considering the impact on environment resources once the full project was underway.^[12]

While gathering minerals under the wilderness area does not alone violate the Wilderness Act, the miners must show that their activities will not disturb surface resources – wilderness and water.^[13] The company was unable to show that the roadbuilding, human activity and the mines potential to dewater Cabinet lakes and streams would not impact both grizzly bear and bull trout populations.^[14]  In 2019, U.S. Forest Service issued a biological opinion relating only to Phase I of the project.^[15] In the recent decision, the federal court said, “Unsurprisingly, removing Phase II from consideration drastically reduced both the scope of the activity and the potential environmental impacts. […] For comparison, Phase II, or mine development, would involve the removal of 10,000 tons of ore per day with a production life of 26 to 30 years. Mine activity would disturb over 400 acres of land, cause drawdown of stream levels, and require the construction of roads.”^[16] “On the other hand, Phase I involves only the excavation of an evaluation adit (mine shaft). Construction of the ad it is anticipated to take two years and the estimated disturbance area encompasses approximately 19.6 acres.”^[17]

The Court ultimately decided that the Defendant’s approval of Phase I without considering the effects of Phase II was arbitrary and capricious. It amounted to a “piecemeal chipping away of habitat for endangered species.”^[18] Several of the plaintiff’s blame the Trump Administration, and the Center for Biological Diversity has sued the administration over environmental actions over 250 times since 2016.^[19] The Trump Administration repeatedly and purposefully ignored scientists over the course of This presidency and now they are dealing with the legal consequences.

^[1] Federal Court Halts Proposed Rock Creek Mine In Montana’s Cabinet Mountains, EarthJustice (Apr. 15, 2021), https://earthjustice.org/news/press/2021/federal-court-halts-proposed-rock-creek-mine-in-montanas-cabinet-mountains.

^[2] Rob Chaney, Legal Strategy Damaged Hecla Permit Bid, KVIP (Apr.16, 2021), https://www.kpvi.com/news/regional_news/legal-strategy-damaged-hecla-permit-bid/article_179ef830-13d8-5f50-865a-1741373d3372.html.

^[3] EarthJustice, supra note 1.

^[4] Id.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] EarthJustice, supra note 1.

^[9] Associated Press, Federal Court Halts Proposed Rock Creek Mine, Clark Ford Valley Press & Mineral Independent (Apr. 21, 2021), https://vp-mi.com/news/2021/apr/21/federal-court-halts-proposed-rock-creek-mine/.

^[10] Chaney, supra note 2.

^[11] Id. 

^[12] Id.

^[13] Id.

^[14] Id.

^[15] Chaney, supra note 2.

^[16] Ksanka Kupaqa Xa’Lcin, et al. v. United States Fish and Wildlife Service et al., CV 19-20-M-DWM (D. Mont. Apr. 14, 2021).

^[17] Id.

^[18] Id.

^[19] Id.

By: Jared Calderon

Whether or not you are a vehicle owner, it is likely that in the last year, you have received an automated scam call that went something like this; “Hello this is ___ we’re calling to alert you that your car warranty is expiring/has been extended”. After this initial pre-recorded message, the call will almost always include a promotion to renew or cancel the renewal of that warranty. After the pitch, you will be asked to provide personal information such as your social security number, credit card and banking information and driver’s license number.^[1] Generally speaking, this type of information should never be conveyed over the phone unless you are able to verify that you are in fact dealing with a legitimate company with whom you have previously established a business relationship.^[2] The simple truth is that these calls have nothing to do with your car warranty, and everything to do with trying to get you to willingly release your sensitive personal information.

It follows, not only are these calls annoying, they are also dangerous. According to the Federal Communications Commission (hereinafter FCC), this scam isn’t new, however it has quickly become the preferred method of cheating unknowing victims out of their hard-earned money.^[3] The FCC has further indicated that warranty “robocalls” represented the highest call complaint filed by consumers in 2020.^[4] Specifically, between June and December of last year alone, Americans filed just short of 200,000 “Do Not Call” complaints, a number which the Federal Trade Commission (hereinafter FTC) says, represents only a small fraction of calls actually received.^[5]

You might be asking, are these calls illegal? The short answer is yes. The FTC banned almost all pre-recorded automated telemarketing calls in 2009, with the exception of political calls, charitable solicitations and debt collections.^[6] It goes without saying that these robocalls do not fall into any of these categories. More troubling, is the fact that these scams are nearly impossible to trace and are being operated both domestically, as well as overseas.^[7] Essentially, the calling operation (scammer) will purchase information or “leads”, in this case phone numbers, from third-party data providers (some more legitimate than others) which then allows those calling operations to facilitate their massive scamming campaigns.^[8] Unfortunately, if you have ever: phoned a business that utilizes caller I.D., checked the “sign me up for emails” box while online shopping, registered to vote, applied for credit, or donated to a charitable organization it is likely that you have unknowingly auctioned off your contact information to one of these third-party data providers.^[9]

Being that it is nearly impossible to stop the sale of your information from a third-party data provider to a calling operation, the best alternative is to limit the number of calls you receive. Initially, you should feel some assurance in knowing that major U.S. carriers offer at least some level of protection.^[10] Additionally, the Traced Act, a bi-partisan piece of legislation signed in 2019, reduces the statute of limitations previously imposed on government agencies and law enforcement officials, in their efforts to punish companies and individuals that break telephone consumer-protections laws.^[11] Beyond the measures already implemented by the government and major carriers, there are several steps you can take to  limit the amount of scam calls you receive. AT&T, Verizon, Sprint and T-Mobile each offer both free and premium services that block spam calls and provide users with a “nuisance” warning, sign up for these.^[12] Further, consumers can purchase third-party apps for both Android and iOS operating systems that offer a wide range of call blocking features.^[13] Hiya, Nomorobo, and RoboKiller are a few examples of subscription based services that protect users by constantly updating a database of numbers used by calling operations, numbers which are then blocked when they inevitably dial your phone.^[14] Although third-party apps are available for purchase, the FCC has provided several steps the cost-conscious consumer can take instead of purchasing additional apps.^[15] Don’t answer calls from numbers you don’t recognize, never hit a button or answer “yes”, avoid providing personal information, ask your phone company about additional tools you can implement to stop these calls, and register your number on the “Do Not Call List”.^[16]

Although it is unlikely that car warranty scam calls will cease to exist in the near future, there are several steps that you and your loved ones can take in an effort to keep your information private. Scam calls are not only annoying, they are also dangerous. While blocking scam calls from your phone is certainly worthwhile, spreading awareness of these dangers is of equal importance in the fight to protect our information as we continue to progress through the digital era. 

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^[1] Watch out for Auto Warranty Scams, FED. COMN. COMM’N, https://www.fcc.gov/consumers/guides/beware-auto-warranty-scams. (last visited Apr. 13, 2021).

^[2] See id.

^[3] Kim Komando, Car warranty scam robocalls: Here’s why you get so many (and how to stop them), USA Today (Apr. 13, 2021), https://www.usatoday.com/story/tech/columnist/komando/2021/04/08/tips-help-stop-flood-deceptive-auto-warranty-robocalls/7098844002/.

^[4] id. 

^[5] Martha White, Who’s Making Those Annoying ‘Your Car Warranty Has Expired’ Calls, and Why Won’t They Stop?, Money (Mar. 11, 2021), https://money.com/car-warranty-calls/.

^[6] See id. 

^[7] id.

^[8] Bethany McLean, How Do Robo Calls Work?, AARP (Apr. 1, 2021), https://www.aarp.org/money/scams-fraud/info-2020/how-do-robocalls-work.html.

^[9] id. 

^[10] Jason Cipriani, How to stop robocalls: Every way we know to block the annoying scam phone calls, Cnet (Mar. 14, 2021), https://www.cnet.com/how-to/block-robocalls-and-annoying-scam-phone-calls-every-we-we-know/. 

^[11] Eli Blumenthal, Trump signs Traced Act into law in bid to help put an end to robocalls, Cnet (Dec. 31 2019), https://www.cnet.com/news/trump-signs-traced-act-into-law-in-bid-to-help-put-an-end-to-robocalls/. 

^[12] Supra, note 10.

^[13] id. 

^[14] Chris Welch, How to stop annoying robocalls on your iPhone or Android Phone, The Verge (Sep. 10, 2020), https://www.theverge.com/21327304/spam-calls-how-to-stop-block-robocalls-robots-scam-iphone-android. 

^[15] Stop Unwanted Robocalls and Texts, FED. COMN. COMM’N, https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts. (last visited Apr. 13, 2021).

^[16] id.