Washington Journal of Law, Technology & Arts
Volume 8
| Winter 2013
| Number 4
What Your Tweet Doesn’t Say: Twitter, Non-Content Data, and the Stored Communications Act
Daniel Shickich
8
Wash. J.L.
Tech. & Arts
457
3/29/2013
Constitutional & Regulatory
A federal district court in Virginia recently held that Twitter users have no privacy rights regarding non-content information associated with their use of Twitter. The court thus affirmed that the government may obtain Twitter users’ Internet Protocol (IP) addresses without notice to the users. The users in this case were alleged to be members of WikiLeaks. The government obtained an order of production in connection with grand jury proceedings, compelling Twitter to turn over IP address data to the government. After Twitter motioned to have the order unsealed, the alleged WikiLeaks members unsuccessfully attempted to intervene to quash the order of production. The district court found that the users lacked standing to challenge the order under the Stored Communications Act (SCA) because Twitter’s terms of use negated any expectations of privacy and the nature of IP address data itself requires that users convey IP addresses and associated information in order to use the Internet. This Article examines the court’s decision and analysis under the SCA and Fourth Amendment jurisprudence, and discusses the impact of expanded warrantless disclosures of non-content electronic records.
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When Is a Phone a Computer?
J.C. Lundberg
8
Wash. J.L.
Tech. & Arts
473
In United States v. Kramer, the Eighth Circuit upheld a two-level sentence enhancement for a defendant who made calls and sent text messages from a cellphone to a minor in order to lure her across state lines for criminal sexual activity. This enhancement was based on a provision in the United States Sentencing Guidelines that incorporates the definition of “computer” from the Computer Fraud and Abuse Act. The broad language of that statute encompasses not only computers—in the plainest sense—and cellphones, but also a myriad of other devices such as automobiles equipped with GPS navigation. In contrast to the sentencing context, this conception of many electronics devices as “computers” does not extend into issues related to searches. There, courts tend to permit broader examination of cellphones and other electronic devices in searches incident to arrest, despite the general protection computers are usually afforded under the Fourth Amendment.
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Unchaining E-Discovery in the Patent Courts
Daniel B. Garrie, Esq. and Yoav M. Griver, Esq.
8
Wash. J.L.
Tech. & Arts
487
This Article analyzes the Federal Circuit’s Model Order Regarding E-Discovery in Patent Cases (the “Model Order”). The Article briefly describes the purpose behind the Model Order, describes its key provisions, analyzes the Model Order to identify some areas of continuing concern, and defines predictive coding to examine the impact, or lack thereof, on the Model Order. The Author concludes that, while it is beyond refute that the Model Order is an appropriate step toward controlling and managing e-discovery, the Model Order is only the first step. In this regard, several problems, as set forth below, can potentially arise when counsel or the courts use the Model Order. It is hoped that this Article will encourage judges, litigants, and other interested parties to continue trying to solve the continuously troubling aspects of e-discovery and e-discovery abuse.
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Personalized Medicine, Genetic Exceptionalism, and the Rule of Law: An Analysis of the Prevailing Justification for Invalidating BRCA1/2 Patents in Association of Molecular Pathology v. USPTO
Kristen L. Burge
8
Wash. J.L.
Tech. & Arts
501
3/29/2013
Intellectual Property
As medicine advances toward a more personalized model, the significance of genetic information is growing exponentially. While unlocking the genetic code has advanced the state of medicine, it has also reinvigorated the debate over the boundaries of patentable subject matter. The potential clash between having access to state-of-the-art medicine and protecting intellectual property investments came to a head in the case, Association of Molecular Pathology v. USPTO (“Myriad”). This Article analyzes the legal opinion rendered by the district court through the unique lens of genetic exceptionalism—a concept previously reserved to social science and public policy. Then, this Article analyzes Judge Sweet’s unprecedented incorporation of genetic exceptionalism into the Patent Act by first tracing the historical roots of the exceptionalism doctrine and then dissecting the Myriad decision through that historical lens. As it stands at publication, it has yet to be seen whether the Supreme Court will similarly adopting a novel interpretation of the Patent Act that incorporates genetic exceptionalism into the Act’s subject matter restrictions.
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