Science and Technology Law Commons^™

Oculogica: An Eye-Catching Innovation In Health Care And The Privacy Implications Of Artificial Intelligence And Machine Learning In Diagnostics For The Human Brain, Samantha V. Ettari, Elijah Roden, Vishal Ahuja, Uzma Samadani

SMU Science and Technology Law Review

This article explores the use of Artificial Intelligence (AI) in emerging eye-tracking diagnostic technology, with a focus on both the patient data privacy and security regulations that firms, specifically device inventors and manufacturers, may face and how such firms can address the developing privacy and regulatory legal challenges. In addition, we discuss the ethical considerations of algorithmic bias, the impact such biases have on society and emerging technology, along with specific actions companies should take to maximize patient outcomes. Lastly, we offer a case study of Oculogica, an emerging digital health technology company—and its medical device (EyeBOX) – to illustrate …

Death Of The Limited License To Data: United States V. Van Buren, Nick Curley

SMU Science and Technology Law Review

The United States Supreme Court has normally viewed data as property. Yet in United States v. Van Buren, the Court abandoned the property law angle. Van Buren included examination of the Computer Fraud and Abuse Act’s applicability to a police officer who accepted a bribe from undercover agents to look up a phony license plate. The Court held that under the CFAA someone only “exceeds authorized access” when they properly access a computer and then improperly access files “that are off limits to [them].”

This Case Note explores why the Supreme Court should not have abandoned the property analogy …

In The Midst Of A Global Pandemic: Benefits Of A Biomedical Patenting Regime, Amy Q. Nguyen

SMU Science and Technology Law Review

There has long been a debate centered around genomic and biomedical data patenting. The opposition expresses concern that the patenting of genomic and biomedical data will hinder the manufacturing and distribution of medical and scientific discoveries to those who need them. On the other hand, supporters of patenting genomic and biomedical data explain that patents are beneficial. For example, genomic and biomedical patents allow pharmaceutical companies and research labs to recoup their massive investments in researching and developing new medical and scientific methodologies and technologies. Patents also incentivize these companies to make discoveries to prevent future pandemics and diseases.

In …

Selling Out For A Song: “Artist Abuse” And Saving Creatives From Servitude And Economic Disadvantage In The Entertainment Industry, Rick G. Morris

SMU Science and Technology Law Review

Artists drive the entertainment industry with their creative work, and in some cases, there are protections for artists when it comes to their work, wealth, and autonomy. However, the area of contracts called “private law,” under which artists’ contracts fall, is lightly regulated in comparison to other employment agreements. Artists, often at the beginning of their careers, are signed to long-term contracts that take advantage of them and do not provide adequate compensation. Artists might be locked into contractual arrangements that they cannot free themselves from. Sometimes, they are directly cheated. And much of this comes from people they trust, …

Crypto-Litigation: An Empirical Overview For 2020–Present, Moin A. Yahya, Nicole Pecharsky

SMU Science and Technology Law Review

This article is an empirical analysis of the past two years of litigation around cryptocurrencies and other crypto-assets. We collected data points, from nearly 300 cases, over the past two years and then classified them by the various litigated issues. This article provides a breakdown of these issues as well as the jurisdictions from where these cases come from. The discussion reviews a few notable cases to illustrate what kinds of disputes have been brought to the courts. As we move into a new round of litigation due to a recent drop in the prices of cryptocurrencies, we hope that …

Creating A United Front: Harmonizing The United States Regulatory Policies Surrounding Human Embryonic Stem Cell Research, Sydney Kossow

SMU Science and Technology Law Review

Stem cell therapy is an imperative development in science and medicine that is heavily regulated worldwide. With the potential to cure illnesses, help understand disease development, and advance regenerative medicine, a harmonized regulatory policy is crucial to capitalize on the benefits of stem cells. This article examines an important topic of discussion surrounding stem cell therapy and research: the political debate on how and when embryonic stem cells can be used. In addition to examining ethical challenges, this article discusses the legal challenges surrounding using embryonic stem cells to inform regenerative therapies. Specifically, this article will examine the National Institute …

Direct-To-Consumer Genetic Testing: Privacy Issues & Impacts On Biological Relatives, Quinn Prchal

SMU Science and Technology Law Review

Numerous direct-to-consumer genetic testing services now offer individuals genetic sequencing, testing, and ancestry mapping services outside of the traditional healthcare infrastructure and regulatory barriers. The rise of direct-to-consumer testing services presents policy questions on how to best protect consumers while still promoting future innovation. From a data privacy perspective, concerns include who can share other people’s genetic information, what entities can use the information, what happens if the information is stolen, and whether law enforcement, or other entities, can request information from a third party. The overarching concern is that once disclosed, genetic information often cannot be unshared or returned. …

Blockchain Disruption: Digital Assets Are Changing How We Do Business, Nick Curley

SMU Science and Technology Law Review

Digital assets are changing the way businesses think about equity, labor, business models, and business organization. Digital assets, like Bitcoin or Ethereum, provide incredible opportunities to further align shareholders with the objectives of the entity.

Each time humanity advances its technology for ledgers, markets explode, and we witness immense wealth creation. Digital assets like Bitcoin and Ethereum are the next great step forward for ledger technology. While there are incredible opportunities to leverage this new technology, there are also incredible risks. There are many public examples of “hacks” of prominent blockchains like Ethereum and Solana. Blockchain technology has captured the …

Congressional Myopia In Biomedical Innovation Policy, W. Nicholson Price Ii

Reviews

Innovation policy is hard. Getting it right requires balancing incentives for developers, consumer access, rewards for later innovators, safety concerns, and other factors. This balance is vitally important and wickedly difficult—even when it’s the focus of concerted, careful, informed effort. How well should we expect it to go when innovation policy is made by accident? Enter The Accidental Innovation Policymakers, an illuminating new project by Professor Rachel Sachs. Sachs persuasively shows how Congress has repeatedly made substantial changes to innovation policy, seemingly without talking about, seriously considering, or even recognizing that it is doing so. There’s an asymmetry to this …

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …

Broken Infrastructure, Del C. Wright Jr.

Faculty Works

This article examines the cryptocurrency-related provisions of the Infrastructure Investment and Jobs Act of 2021, focusing on amendments to the Internal Revenue Code that expand tax reporting and surveillance obligations for digital assets. Specifically, it analyzes the new “Broker” and “Tax” provisions, which extend reporting requirements beyond traditional financial intermediaries to actors in the blockchain ecosystem who may lack access to the necessary data. The article situates these provisions within the broader regulatory and political context, tracing their roots to prior Treasury rulemaking efforts and exploring their intended role in closing the “tax gap.” It highlights the significant compliance challenges, …

Antibody Claims And The Evolution Of The Written Description/Enablement Requirement, S Sean Tu, Christopher M. Holman

Faculty Works

No abstract provided.

Institutional Choice For Software Safety Standards, Bryan H. Choi

Publications

The pursuit of software safety standards has stalled. In response, commentators and policymakers have looked increasingly to federal agencies to deliver new hope. Some place their faith in existing agencies while others propose a new super agency to oversee software-specific issues. This turn reflects both optimism in the agency model as well as pessimism in other institutions such as the judiciary or private markets.

This Essay argues that the agency model is not a silver bullet. Applying a comparative institutional choice lens, this Essay explains that the characteristic strengths of the agency model—expertise, uniformity, and efficiency—offer less advantage than one …

The Common Law And The Self-Driving Car, Mbilike M. Mwafulirwa

University of San Francisco Law Review

No abstract provided.

Ransomware Warfare: Exploring Global And Private Negotiations To Help U.S. Victims Respond To The Threat, Karina Nad

Cardozo Journal of Conflict Resolution

By weaponizing technology, now more than ever before, cybercriminals are transforming the cyberworld into their new hunting ground. Almost daily, news headlines alert us to a new malicious cyber threat or major data breach. The evolution of cybercrime has created a malicious online environment, or "malspace," that is now inhabited by hacker groups and espionage units from all over the world. As a global concern, the use of powerful online capabilities by hacker groups has led to the "militarization" of cyberspace. Closer to home, critical infrastructure, valuable personal data, and access to medical care has been compromised at alarming rates …

Algorithmic Decision-Making And Discrimination In Developing Countries, Cecil Abungu

Journal of Law, Technology, & the Internet

This article seeks to investigate how developing countries can ensure that algorithmic decision-making does not leave protected groups in their jurisdictions exposed to unlawful discrimination that would be almost impossible to prevent or prove. The article shows that universally, longstanding methods used to prevent and prove discrimination will struggle when confronted with algorithmic decision-making. It then argues that while some of the proposed solutions to this issue are promising, they cannot be successfully implemented in a vast majority of developing countries because these countries lack the necessary institutional foundation. The key features of this institutional foundation include: (i) a wellrooted …

Section 230 And The Right To Remove Vaccine Misinformation, Michael A. Cheah

Cardozo Arts & Entertainment Law Journal

Recognizing its clear propensity to cause serious public harm, many online platforms have restricted vaccine misinformation. This essay argues that these platforms are protected from liability when they remove such content under Section 230 of the Communications Decency Act. The essay conducts a textual and policy-based analysis of the "publisher" immunity conferred by Section 230(c) (1) and the immunity for restricting objectionable materials under Section 230(c)(2) and concludes that both protect the removal of vaccine misinformation. The essay further argues that repealing Section 230 will not encourage platforms to combat vaccine misinformation as some policymakers have suggested. That is because …

Will Products Liability Litigation Help Protect Iot Users From Cyber-Physical Attacks?, J Royce Fichtner, Troy J. Strader

Journal of International Technology and Information Management

While there is an identifiable trend towards protecting consumers from data breaches and data misuses related to IoT devices through new legislation, new regulations, government enforcement actions, and private lawsuits, there has been little progress towards creating similar legally enforceable standards of care for “cyber-physical device security.” This article explores this underdeveloped area of academic inquiry into cyber-physical device security within the context of product liability litigation in the United States. The two questions addressed in this article are: (1) Have there been any successful products liability court decisions in the United States that have held IoT manufacturers liable for …

Will Nfts Solve Some Of The Age-Old Problems In Art Law?, Ursula Von Schlenhenried

SMU Science and Technology Law Review

Non-Fungible Tokens, or NFTs, are digital assets based on blockchain technology and are steadily growing in popularity in the art market. The technology has created a novel way of establishing ownership through tamper-resistant cryptographic records. A majority of NFTs are created via the Ethereum protocol and are most notably associated with other assets, such as digital art. Even prominent auction houses, like Christie’s, have joined the action. NFTs offer a whole host of new and interesting legal concerns, including questions surrounding smart contracts. The concerns surrounding traditional art, however, are long-standing and include (but are not limited to) provenance, authenticity, …

Cryptocurrency And Security Issues: The Tide Awaiting Ripple’S Decision, Robel Tsegu

SMU Science and Technology Law Review

Bitcoin passed the test. Ethereum passed the test. Now, it is XRP’s turn. At the time of this writing, the SEC has the opportunity, through common law, to determine how to regulate the unregulated cryptocurrency world. This is a unique moment because guidance on SEC violations is usually promulgated through statutes, no-action letters, and quotes from SEC Commissioners, rather than common law. Therefore, the decision in SEC v. Ripple will pivot the direction on how cryptocurrencies and digital assets forever be used. Will this pivot be a “hard” or “soft” fork in how we use cryptocurrencies?

This Case Note argues …

The Mysteries Of Nft Taxation And The Problem Of Crypto Asset Tax Evasion, Amy Q. Nguyen

SMU Science and Technology Law Review

Cryptocurrencies have long captured the attention of the financial world, revolutionizing how the world does business by providing virtually costless transactions. More recently, however, a new digital token has taken its place on the world stage. Known as NFTs, non-fungible tokens have allowed for the reinvention of modern finance infrastructure consisting of sophisticated trading and loaning systems for different asset types. Despite cryptocurrencies’ and NFTs’ novelty and popularity, they are not immune to the U.S. Tax Code. The Internal Revenue Service (IRS) has provided guidance on the tax framework of cryptocurrencies, but the taxation of NFTs is still relatively unclear, …

Fourth Amendment Issues And Covid-19 Tracking, Brooke A. Banks

Cardozo Arts & Entertainment Law Journal

The note argues that the special needs doctrine does not justify warrantless government access to cell site location information (CSLI) for COVID-19 tracking, as individual privacy interests outweigh public health benefits. It advocates for voluntary, privacy-protective measures, such as opt-in apps, to balance privacy and pandemic response.

Section 230: The Internet's Most Important And Most Misunderstood Law Is Unfairly Under Attack, Málfríður A. Helgadóttir

Cardozo Arts & Entertainment Law Journal

Section 230 of the Communications Decency Act, a foundational law enabling the modern internet, is under threat despite its critical role in protecting online platforms from liability for user-generated content. The article argues that Section 230 is essential for promoting free speech and innovation, as its repeal would force platforms to censor content to avoid liability, fundamentally altering the internet. Critics often misunderstand the law, and bipartisan attacks jeopardize its future, risking the unravelling of the internet as we know it.

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

Why Digital Policing Is Different, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Many Fourth Amendment debates boil down to following argument: if police can already do something in an analog world, why does it matter that new digital technology allows them to do it better, more efficiently, or faster? This Article addresses why digital is, in fact, different when it comes to police surveillance technologies. The Article argues that courts should think of these digital technologies not as enhancements of traditional analog policing practices but as something completely different, warranting a different Fourth Amendment approach. Properly understood, certain digital searches should be legally distinguishable from analog search precedent such that the older …

Data Privacy, Human Rights, And Algorithmic Opacity, Sylvia Lu

Scholarly Articles in Law Reviews & Journals

Decades ago, it was difficult to imagine a reality in which artificial intelligence (AI) could penetrate every corner of our lives to monitor our innermost selves for commercial interests. Within just a few decades, the private sector has seen a wild proliferation of AI systems, many of which are more powerful and penetrating than anticipated. In many cases, AI systems have become “the power behind the throne,” tracking user activities and making fateful decisions through predictive analysis of personal information. Despite the growing power of AI, proprietary algorithmic systems can be technically complex, legally claimed as trade secrets, and managerially …

Legal Liability For Artificially Intelligent "Robot Lawyers", Michael Loy

Lewis & Clark Law Review

This Comment discusses liability for the use of autonomous “robot lawyers” in the practice of law. A “robot lawyer” is an artificially intelligent (AI) software program that performs legal tasks traditionally handled by lawyers. Law firms currently use “non-autonomous” robot lawyers that operate under the supervision of a human attorney to assist in legal research, e-discovery, and contract drafting. In the future, “autonomous” robot lawyers that operate without human oversight may one day represent clients. However, courts and legislatures have not determined who will be liable for errors, omissions, malpractice, or other harms caused by autonomous robot lawyers. This Note …

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

Examining The Fourth Amendment And Biometric Data Privacy Law Implications Of Ncaa Athletes' Mandated Use Of Athlete Biometric Data Tracking Devices, Alicia Jessop

Cardozo Arts & Entertainment Law Journal

This Article presents the first in-depth analysis of the privacy law implications, under both the Fourth Amendment to the United States Constitution and individual states' biometric data privacy laws, resulting from National Collegiate Athletic Association (NCAA) member institutions mandating that athletes wear athlete biometric data (ABD) tracking devices. The Article provides the NCAA' and its member institutions, athletes, and Congress with recommendations of how to respond to the privacy law concerns that exist in a period of expanded ABD collection, use, and storage. Part I discusses the growing practice of athletics departments requiring intercollegiate athletes to wear ABD tracking devices. …

Any Port In A Storm: What Social Media Platforms Should Do To Address The Shifting Legal Tides Governing Content Embedding, Laura Cohen

Cardozo Arts & Entertainment Law Journal

No abstract provided.