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Terms of Service and the Erosion of the Right to Privacy

Written By: Elliot Millerd-Taylor

“I wouldn’t want to slow the wheels of progress. But then, on the other hand, I wouldn’t want those wheels to run over my client in their unbridled haste.” [1]

In a set of recent decisions, courts in the Ninth and Tenth Circuit have held that as long as the government stays within the parameters of the intrusions you agree to in the Terms of Service (TOS) with an internet service provider there is no search subject to the warrant requirement or, in the alternative, a reasonable expectation of privacy. [2]

For example, in United States v. Wilson, the court denied a motion to suppress evidence implicating the defendant in the possession, distribution, and solicitation of child pornography because the government’s visual examination of the images turned over by Google did not “significantly expand” on the proprietary technology Google uses to search someone’s email. [3]

Facially, the district court’s decision comports with the majority of Fourth Amendment case law.  However, this surface level appearance masks the troubling implications of the decision.

First, Google’s TOS for Gmail reserves the right to investigate suspected misconduct, review content, and remove or refuse to display content that violates policy. [4] In short, you are not obligated to use or be allowed to use the service if you break the law.

Second, 18 U.S.C. 2258(a) compels Google to turn over “actual knowledge of any facts or circumstances” that indicate a user is distributing, solicitating, or producing child pornography to the CyberTipline of the National Center for Missing and Exploited Children (NCMEC).  This includes relevant identity, geographic, and historical reference material.

Finally, Google goes beyond 18 U.S.C. 2258(a)’s requirements. Google uses a proprietary hashing technology to identify possible violations which are then manually identified by trained employees who catalogue and assign a hash value to the image.  Next, Google places this information into a server that matches the hash value to known media.  Then, Google turns the information over to NCMEC.  In short, Google searches a user’s email in a manner that would require a law enforcement office to procure a warrant. [5]

Where does this leave things?

As noted in Amicus Curae in Wilson, this potentially means that one will need to operate their own email server in order to maintain a reasonable expectation of privacy on the internet. [6] A ridiculous proposition, but it would not be the first time a Fourth Amendment case said facially or economically ridiculous and impracticable behavior was reasonable. [7]

Recent decisions and jurisprudence however, portend good omens. In Byrd v. United States, the court held that violating a signed contract which had provisions barring certain behavior did not eliminate the reasonable expectation of privacy the Fourth Amendment provides. In short, the court held you cannot sign away your rights or your reasonable expectations of privacy. [8]

Finally, the concern over third party or private searches in the internet age held in dissenting opinions regarding the Fourth Amendment. Most recently, Justice Gorsuch’s dissent in Carpenter v. United States now seem justified. [9] There may be five votes on the court to expand upon the Carpenter holding. [10] Justice Gorsuch noted that the Smith and Miller exceptions to the Katz test could have dramatic and deeply problematic implications for the Fourth Amendment in an era when the majority of American society conducts its business through electronic mediums. [11] In noting that even the reasonableness test leads to unreasonable results, Gorsuch’s dissent notes that the court’s case-by-case approach to the Fourth Amendment threatens the ability of the court to adequately address these new concerns with the Fourth Amendment. [12]

Much like the internet’s disruption of the American economy, it now seems that it provides challenges to the fundamental civil liberties of all Americans as frequently as, well, someone sending an email.

 

[1] Star Trek: Court Martial, (NBC Television Broadcast 1967).

[2] United States v. Wilson, 2017 U.S. Dist. Lexis 98432; see also United States v. Wolfenbarger, 2019 U.S. Dist. LEXIS 148822 (N.D. Cal. 2019); United States v. Ackerman, 296 F. Supp. 3d. 1267 (D. Kan. 2017); and United States v. Stratton, 229 F. Supp. 3d 1230 (D. Kan. 2017).

[3] United States v. Wilson, 2017 U.S. Dist. Lexis 98432 at 17-18.  The first indictment was two counts under 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(b). A second indictment a month later charged defendant under 18 U.S.C. § 2251 (d)(1)(A), §2252 (a)(2), and § 2253 (a)-(b).

[4] Id. at 19-20.

[5] See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (Kozinski, J., concurring) (“These and similar search tools should not be used without specific authorization in the warrant, and such permission should only be given if there is probable cause to believe that such files can be found on the electronic medium to be seized.”). A discussion of the limitations placed on the government’s use of hashing technology.

[6] Jennifer Lynch, Your Fourth Amendment Rights Should Not be Limited by Terms of Service, ELECTRONIC FRONTIER FOUNDATION (Sep. 27, 2019), https://www.eff.org/deeplinks/2019/04/your-fourth-amendment-rights-should-not-be-limited-terms-service. See also, Carol D. Leonning, Rosalind S. Helderman & Tom Hamburger, FBI Looking Into The Security of Hillary Clinton’s Private E-mail Setup, THE WASHINGTON POST (Sep. 27, 2019) (discussing as to why this is a bad idea – Secretary of State Hillary Clinton, George W. Bush administration, and the Trump administration), https://www.washingtonpost.com/politics/fbi-looks-into-security-of-clintons-private-e-mail-setup/2015/08/04/2bdd85ec-3aae-11e5-8e98-115a3cf7d7ae_story.html?noredirect=on&utm_term=.e7190be442d0. See also, Matt Apuzzo & Maggie Haberman, At Least 6 White House Advisors Used Private Email Addresses, THE NEW YORK TIMES (Sep. 27, 2019), https://www.nytimes.com/2017/09/25/us/politics/private-email-trump-kushner-bannon.html. See also, Nina Burleigh, The George W. Bush White House ‘Lost’ 22 Million Emails, NEWSWEEK MAGAZINE (Sep. 27, 2019), https://www.newsweek.com/2016/09/23/george-w-bush-white-house-lost-22-million-emails-497373.html.

[7] United States v. Carpenter, 138 S. Ct. 2206, 2266 (2018).

[8] Byrd v. United States, 138 S. Ct. 1518 (2018).

[9] Carpenter, 138 S. Ct. at 2261.

[10] Id. 

[11] See Katz v. United States, 88 S. Ct. 507  (1967) (Harlan, J., concurring); Smith v. Maryland, 99 S. Ct. 2577 (1979); United States v. Miller, 96 S. Ct. 1619 (1976).

[12] United States v. Carpenter, 138 S. Ct. 2206, 2266 (2018) (Gorsuch, J., dissenting) (harbors particularly sharp opinions on the reasonableness of a police helicopter flying 400 feet above one’s backyard).

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Gene Therapy: Therapy For All, But Patents For None?

Written By: Elyse Gottschalk

If you Google the top 10 life-improving inventions of the 2000s, unsurprisingly, the top of the list is “mobile broadband”, the technology that brought live streaming to “cat video” lovers across the globe. [1] While Apple and Samsung were in a race for the best smart phone, science was partaking in its own endeavor – the task of sequencing the human genome, known as the Human Genome Project. After nearly 13 years, three billion DNA base pairs and every gene in the human genome were identified, qualifying it as the second ranked life-improving invention of the 2000s. [2]

But, the Human Genome Project was not the end. It was the beginning of the “genomic revolution”, with the race for development of gene-based therapies at the forefront. [3]

Gene therapy, the replacement of mutated, dysfunctional genes with functional ones as a cure for lifelong (typically fatal) diseases caught the interest of scientists, recognizing the expansive and potentially lucrative opportunity. However, development and testing of these kinds of treatments involves huge amounts of money, and scientists are beginning seek patents to protect their discoveries. [4]

Gene patents are one of the most controversial categories of patents in the United States and abroad. Patent proponents focus on incentivizing invention and promoting commercialization through the economic efficiency provided by a patent monopoly. [5] They argue that, without the protection of patents, because of the unusually high failure rate of biology-based research, the economic burden would limit development to large biopharma companies that could absorb the loss. In addition, in the absence of patent protection, collaborative efficiencies would be stagnated, with companies relying on trade secrets as a means of protection, slowing the development of treatments. [6]

Those opposing patent protection to genetic material argue that it is not consistent with the intent of 35 U.S.C. § 101, which does not historically extend patent protection to phenomena of nature. [7] Their concerns were addressed in Association for Molecular Pathology v. Myriad Genetics, where the Supreme Court held that a gene sequence in its natural form was not patentable, as distinguished from cDNA, a stripped version of DNA sequence isolated in a lab. [8] This means that a specific version of the DNA once isolated or with a specific mutation is patentable, while the sequence itself is broadly available for use.

While the court refused to address the public policy implications, this was a win for those concerned that gene patenting had negative implications for patient care. In fact, as part of the Appellate courts review, the AMA submitted an amicus curiae brief stated that gene patents interfere with diagnosis and treatment, quality assurance, and patient access to health care because it limited the options available for the treatments, leaving patients at the mercy of those holding the monopoly. [9]

Gene therapy, though in its infancy, is becoming a hot topic for scientists and patent lawyers alike. While the Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics has provided some guidance into the patentability of genetic material and treatments, like gene therapy itself, the potential developments remain largely untapped. Patent attorneys, the scientists of patent law, will find themselves tasked with navigating the world of opportunities (and associated challenges) presented by the “genomic revolution”, by walking the line between protecting the inventor and benefiting society. The public policy implications that are the underpinnings of patent law are no exception here.

[1] Will McClennan, Great Life-Improving Inventions of the 2000s, The Richest (Nov. 23, 2013), https://www.therichest.com/business/technology/the-top-10-life-improving-inventions-of-the-2000s/.

[2] Id.

[3] Simon Trip and Martin Gruber, Economic Impact of the Human Genome Project (2011).

[4] Id.

[5] Laurie L. Hilla, The Race to Patent the Genome: Free Riders, Hold Ups, and The Future of Medical Breakthroughs, 11 Tex. Intell. Prop. L.J. 221, 237-42 (2003).

[6] Id.

[7] Id.

[8] Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013).

[9] Id.