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When Your Apps Threaten National Security – A Review of the TikTok and WeChat Bans and Government Actions Under IEEPA and FIRRMA
Get PDFPersonal data can evolve into a national security issue. In August 2020, fears of foreign adversaries’ access to Americans’ personal data prompted President Trump to issue two executive orders that attempted to ban Chinese-owned social media applications TikTok and WeChat in the United States. In the last few years, the U.S. executive branch has acted against foreign entities that implicate national security interests via two primary tools: the presidential power under the International Economic Emergency Powers Act (IEEPA) and a foreign investment screening regime under the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). However, the statutes were enacted before Congress could have envisioned the impact of personal information on national security. IEEPA’s statutory limitations especially make it an ill-fitting tool to regulate software data ownership and acquisitions. This Note will review recent uses of IEEPA and FIRRMA, analyze the legal problems and economic implications of the TikTok-WeChat ban, and propose that FIRRMA serves as a better solution to address data privacy risks posed by software and that further statutory reforms are necessary to better protect the nation’s and people’s interests
Revising U.S. Privacy Laws: New Laws are Required to Fill in the Gaps of Current and Proposed Legislation to Account for New Technologies and Future Emergencies
Get PDFWith the ongoing expansion of internet services and increase in cyberattacks, Congress has long recognized the need for comprehensive federal privacy legislation, but no federal legislation has been passed. Currently, the scatter-shot of sector and state-specific privacy laws have proven to be ineffective. The authority of the Federal Trade Commission (FTC) has also been weak. The unexpected occurrence of the COVID-19 pandemic further exposed the dire need for comprehensive federal privacy legislation. Data-collection methods such as facial recognition, immunity passports, and contact tracing leave users’ health and location data vulnerable in the hands of the government and private companies. Technologies such as Zoom have also revealed privacy concerns. Amongst the many state-based privacy laws, the California Consumer Privacy Act (CCPA) is the most comprehensive state law to date. It governs every company that does business with a California company, has California resident customers, or collects any personal data of a California resident. However, this Note will suggest that the CCPA and other state and sector-based regulations still leave loopholes. While there are comprehensive federal privacy bills being proposed, none have been passed due to the inability of the political parties to agree on the issues of preemption and private right of action. This Note will suggest a new approach to federal privacy regulation – a revised private right of action component, a sunset provision for preemption, and a minimization of disparate impact and increased scope of governance in COVID-19-responsive legislation
Big Data and Accuracy in Statutory Interpretation
Get PDFScholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of “ordinary people.” Such a scholar may argue that certain interpretive canons are valid approximations of language usage outside of the law. Data-driven approaches to statutory interpretation may reorient how arguments about accuracy are made and evaluated. This essay considers two data-driven approaches to statutory interpretation: surveys and corpus linguistics. The use of surveys is a tool of the growing “experimental jurisprudence” movement that is by definition empirically based. In turn, corpus linguistics typically involves the statistical analysis of data from a corpus, which is a machine-readable “compilation of written and transcribed spoken language used in authentic communicative contexts” (such as in newspapers, novels, books, etc.). If performed competently, corpus linguistics results meet the “scientific standards of generalizability, reliability, and validity.” Surveys and corpus linguistics thus have the potential to help judges make more empirically based decisions about statutory meaning, although neither can transform statutory interpretation into an empirical science. This essay considers data-driven approaches and claims about interpretive accuracy through an evaluation of how these interpretive sources fit within the traditional structures of statutory interpretation. The continuing adaptation of corpus linguistics and surveys as sources of meaning for legal interpretation is an exciting development. But they must be properly situated within the process and theory of interpretation in order to assess whether they can transform how the accuracy of statutory interpretations is measured. Both corpus linguistics and surveys have the potential to help judges make more empirically based decisions about statutory meaning. Even so, features of legal interpretation prevent either source from transforming legal interpretation into an empirical science. Legal knowledge and training, the full context of a statute, and interpretive inferences and judgment are all integral to statutory interpretation, and these features prevent statutory interpretation from being fully informed by empirical methods. Appeals to interpretive accuracy must therefore remain at least partly rhetorical
Freedom Without Opportunity: Using Medicare Policy and CMS Mechanisms to Anticipate the Platform Economy’s Pitfalls and Ensure Healthcare Platform Workers Are Fairly Paid
Get PDFThe rapidly aging population, along with the demand for innovative Medicare delivery models such as bundled payment programs have incentivized the use of technology in healthcare because of its potential to cut costs and improve quality of care. Like many industries embracing technological strides to automate and digitize services, the healthcare industry has welcomed new labor markets like the platform economy to facilitate connections between patients and workers with ease. Along with streamlining connections, the platform economy also promises workers flexibility and autonomy over their own schedule. The platform economy’s promise of freedom, however, is not enough to prevent the ambiguous and narrow worker classification system under current labor and employment laws from pulling the safety net right out from under platform workers looking to make ends meet. The world has seen how the precarious work popularized by new labor markets like the platform economy has devastated the platform economy workforce, depriving workers of an opportunity to earn a livable wage. This note maintains that because the use of digital platforms will continue to grow in the industry, healthcare platform workers are susceptible to a similar financial fate to that in which Uber drivers and Taskrabbit-ers have found themselves. This note brings attention to the duality of the platform economy: its potential to create a new, narrow category of on-demand healthcare workers and its potential to exploit them. This note also critiques two potential solutions that address the platform economy’s pitfalls including expanding the antitrust labor exemption and redefining the definition of “employee” to include platform workers. Ultimately, this note proposes a solution as to how the healthcare industry can ensure fair compensation for a very narrow class of workers in a rapidly transforming labor economy. To that end, the U.S. government, through administrative agencies like CMS, should mitigate the wage issue engendered by the platform economy’s penetration into healthcare by expanding existing policies governing compensation to ensure a livable wage for the essential digital healthcare workforce
An Exclusive Property Model for the Common Heritage of Mankind: A Multilateral Regime for Natural Resources in Outer Space
Get PDFThe concept of the Common Heritage of Mankind (CHM) remains uncertain and controversial. This article starts with an analysis of the legal status of the CHM to identify the legal subjects who can exercise rights to the CHM and what types of rights they have. It is argued that an exclusive property model is the one successfully implemented in the law of sea regime., i.e., the CHM is defined as an exclusive property of mankind. Mankind, as a separate entity, can have ownership over the CHM, while other entities can only exercise usufruct to the CHM. This article moves further to evaluate the feasibility of transplanting this model to other fields, in particular the space field. The legal status and characteristics of the CHM can only be justified by a multilateral approach, which sets up an international regime for exploitation and utilization of natural resources in outer space
Copystrikes and Meme Bans: Social Media and Copyright Protections in the Digital Age
Get PDFSocial media is a pervasive and ever-present aspect of many peoples’ lives. Its use permeates nearly every aspect of our existence – there truly is an app for everything. Most notably, social media operates internationally both in scope and usage allowing for the creation of an astounding global society that shares cultures and perspectives in a way unprecedented in human history. Never before have societies been as interconnected as they are now. Unfortunately, such interconnectedness comes with the issue of globalizing enforcement of copyright laws. Infringement runs rampant online and forces creators to struggle against a seemingly faceless foe in their efforts to publicize and protect their work. Anyone can screenshot and share, and creators are often left with limited recourse. The real harm, however, stems from social media sites themselves and their enabling of infringement through their enforcement systems. While some users benefit from these enforcement regimes, these protocols increasingly allow for abuse, blackmail, and theft. There may be nothing illegal about the structure and enforcement of social media platforms’ copyright enforcement practices, but their implementation disregards the expressed policy goals of the 1976 Copyright Act, as well as comparable international conventions and directives. By examining copyright enforcement on social media, as well as legislation in the United States and the European Union, the problem’s scope becomes unsettlingly clear. This Note proposes a solution that would allow for centralized enforcement of copyright regimes on social media and streamline remedies for infringement
Throw the Book at Them: Why the FTC Needs to Get Tough with Influencers
Get PDFThe Federal Trade Commission is an administrative agency that has traditionally been aggressive when deploying its delegated authority. At the core of these actions is the FTC’s interpretive definition of deception as based upon a reasonable consumer standard. Specifically, the commission has regularly used Section 5(a) of the FTC Act, in tandem with its interpretive definition of deception, as a sword in a variety of contexts, including enforcement actions for deceptive advertising, endorsements, and claim substantiation against a range of industries. These include successfully brought actions or consent decrees obtained in enforcement proceedings against powerful economic entities, including Google and Facebook. Yet, in one area, the FTC has been reluctant to engage in the hard tactics it regularly deploys in other areas. The Commission has struggled to employ a coherent enforcement strategy for deceptive practices by Social Media Influencers. The Commission has taken significant steps towards deception and disclosure enforcement for influencers, including publication of a set of guidelines for disclosure. However, with the exception of a series of warning letters sent to high profile influencers in April of 2017, the Commission has not engaged in a significant enforcement action—choosing instead to launch an inquiry in February 2020 to review the disclosure guidelines. As empirical research demonstrates that consumers do not understand the nature of the influencer process, this Article argues that the FTC should employ a commitment to a robust enforcement stance. The FTC’s failure to “make an example” of high-profile influencers or to take a hardline approach with influencers, as the Commission did with native advertising online, represents a parting with the manner with which the Commissions has traditionally enforced the deception standard in endorsement ads. This departure, this Article argues, is undermining the FTC’s consumer protections