Washington Journal of Law, Technology & Arts

Volume 11  | Winter 2016  | Number 4

Jail (E)Mail: Free Speech Implications of Granting Inmates Access to Electronic Messaging Services

Brennen J. Johnson
11 Wash. J.L. Tech. & Arts  285

3/17/2016

Constitutional & Regulatory

The First Amendment protects not only our right to share ideas, but also to some extent, our right to choose the specific method by which we share them. Generally speaking, these protections apply to inmates’ rights to communicate with those outside of prison. However, the protection of those rights must be balanced with the penological interests of prisons and jails. Electronic messaging has now become a standard form of communication within most American homes and businesses. Accordingly, the Federal Bureau of Prisons has implemented the TRULINCS program, a program which allows inmates to communicate with those outside of prison through electronic messaging. The Washington State Department of Corrections has installed JPay kiosks in state-operated facilities that allow inmates to send and receive electronic messages. However, most state prison systems and county jails currently do not offer inmates the option of receiving or sending electronic messages. The Supreme Court of the United States has indicated that prisoners have a constitutional right to send and receive mail, and some circuit courts have extended that right to telephone use. This Article examines the foundational aspects of free speech in prison settings and how the evolution of communication might affect the breadth of an inmate’s free speech rights. This Article argues that, in certain situations, the First Amendment should protect inmates’ interests in sending and receiving emails.

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End of the Parallel Between Patent Law’s § 284 Willfulness and § 285 Exceptional Case Analysis

Don Zhe Nan Wang
11 Wash. J.L. Tech. & Arts  311

3/17/2016

Intellectual Property

Patent law’s “willful infringement” analysis under 35 U.S.C. § 284 and the “exceptional case” analysis under 35 U.S.C. § 285 are largely considered parallel, and essentially identical. In 2014, the Supreme Court of the United States drastically changed the standards for the § 285 exceptional case analysis in its Octane Fitness, LLC v. Icon Health & Fitness, Inc. and Highmark Inc. v. Allcare Health Management System, Inc. decisions. This prompted two federal circuit judges to call for similar changes to the § 284 willful infringement analysis. On October 19, 2015, the Supreme Court granted certiorari to review whether such a change is warranted. This Article examines the legal and policy arguments on both sides and concludes that, while a drastic change of the substantive standard of the willful infringement analysis is unlikely, a change of the standard of review is possible. Consequently, the parallel between § 284 willfulness and § 285 exceptional case analysis will likely come to an end.    

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Undermining Bitcoin

Sam Hampton
11 Wash. J.L. Tech. & Arts  331

3/17/2016

Constitutional & Regulatory

In March 2014, the IRS issued a notice detailing the tax treatment the agency would apply to virtual currencies such as Bitcoin. Although applauded by some as a step towards legal legitimacy for this new technology, the IRS’s position severely undermines the transactional utility of virtual currencies. Using tax rules established for traditional property transactions frustrates one of virtual currencies’ principal purposes: its use as a medium of exchange. Tax compliance requires calculation and payment of capital gains tax, which necessitates documentation of all acquisitions and dispositions of virtual currencies. This tax treatment will likely discourage the use of these currencies, or alternatively will encourage noncompliance by their users. Decentralized currencies like Bitcoin pose novel and difficult regulatory questions, but mechanically applying old rules will lead to an unsatisfactory outcome. The best solution is new legislation that specifically addresses the novel issues posed by virtual currencies, fosters the use of virtual currency in transactions, and still collects tax revenues from investors.

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