Volume 15, Issue 2 (Spring 2014)

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    The Times They Are a-Changin’: Shifting Norms and Employee Privacy in the Technological Era
    (Minnesota Journal of Law, Science and Technology, 2014-05) Durham Taylor, Lisa M.
    When it comes to employee privacy rights in emerging technologies, the times they are a-changin’. In the dawn of the modern technological era, when electronic mail and the Internet were in their relative infancy, the right to privacy meant almost nothing in the workplace. Employers could promise that e-mail would not be monitored, but then proceed to do so anyway. When employees sued, seeking vindication of their perceived privacy rights, courts cast aside any notion that an employee could expect privacy in the workplace, and they did so almost uniformly. The tide, however, appears to be turning. Judicial decisions rendered in more recent years, coupled with comparable statutory reform initiatives, suggest that as social norms shift in light of the rapid development and mainstreaming of modern technologies, the law is affording protection to employees that previously did not exist. This Article takes a retrospective-comparative approach to this turning tide, delving deeply into the law of the early era of modern technology and juxtaposing it against more recent developments. The result is exposition of an unmistakable trend favoring employee rights. This Article therefore tackles head-on the ultra-modern legal problem of workplace privacy rights in emerging technologies, but it does so in novel ways, as the first to suggest that the trend is shifting toward greater recognition of employee rights at the expense of employer prerogative.
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    Did You Give the Government Your Baby’s DNA? Rethinking Consent in Newborn Screening
    (Minnesota Journal of Law, Science and Technology, 2014-05) Suter, Sonia
    Newborn screening (NBS) has long offered the possibility of identifying rare conditions, which can be lethal or debilitating if not detected and treated quickly in the newborn period. These screening programs, usually mandatory, have been well established in every state since the 1960s. In the last decade, the number of conditions screened for has risen exponentially to include more than fifty inborn errors of metabolism, blood disorders, genetic, or other conditions. Not surprisingly, newborn screening programs have been widely accepted for their potential to save the lives of countless children. Despite their valuable public health benefits, however, old approaches to, and more recent expansions of, NBS raise important privacy and policy concerns. NBS samples are collected in most states without affirmative, or sometimes any, consent from parents. NBS programs now screen for an ever-broadening range of diseases—sometimes without careful assessment of the risks and benefits—including conditions for which there is no treatment. NBS samples are retained for long periods or indefinitely. And finally, few, if any, limits prevent potentially invasive uses of these samples by the government or third parties. Indeed, evidence suggests that a great deal of research is being conducted on these stored blood spots, the collection and storage of which many parents are simply unaware. Only a few lawsuits and legislatures have addressed the legality of these practices. With recent expansions in the scope of NBS and increased interest in these samples for research, it is time to take a fresh look at this long-standing public-health system and to reexamine some of the underlying philosophies and practices associated with it. While NBS offers important public health benefits, it also threatens some of the civil liberties of the parents and children involved. This piece argues for the need to strike a careful balance between the public goods and private interests, and describes a methodology that allows these competing values to be recognized in policymaking. It concludes by suggesting ways to balance the important values of maximizing the well-being of newborns and promoting research, while also protecting autonomy and privacy as much as possible.
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    Selective Contracting in Prescription Drugs: The Benefits of Pharmacy Networks
    (Minnesota Journal of Law, Science and Technology, 2014-05) Shepherd, Joanna
    Selective contracting in health care involves contractual arrangements among insurers and health care providers that give covered individuals a financial incentive to obtain health care from a limited panel of providers. Although selective contracting has been an important strategy of health insurance plans for decades, it has only recently expanded to prescription drug coverage. Drug plans now create pharmacy networks that channel customers to in-network pharmacies. Pharmacies compete to be part of the networks by offering discounts on the drugs they sell to covered customers and drug plans. Although networks can lower prescription drug costs for drug plans and consumers, opponents have argued that they also reduce access to care because consumers can only visit certain providers. In this Article, I use the principles of economic theory, the conclusions of previous empirical studies, the determinations of the FTC, and proprietary data I obtained from the largest pharmacy benefit manager in the United States to analyze both the claims in support of pharmacy networks and the arguments against them. I find that pharmacy networks significantly lower the cost of prescription drugs for drug plans and consumers. Moreover, pharmacy networks have almost no effect on most consumers’ access to pharmacies; the overwhelming majority of consumers live near retail pharmacies that are included in exclusive pharmacy networks.
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    Associated Press v. Meltwater: Are Courts Being Fair to News Aggregators?
    (Minnesota Journal of Law, Science and Technology, 2014-05) Quinn, Dylan
    While it has long been thought that news aggregators were protected from news providers by the fair use defense of the Copyright Act, Meltwater demonstrates that this may not be true. Although this was the first time a judgment had actually been rendered against a news aggregator for copyright infringement, it is noteworthy that the controversy ended like other infringement suits do, just prior to appeal—with a licensing agreement or other mutually beneficial agreement. Therefore, it is unlikely this case will dramatically alter the landscape. Even if Meltwater does not completely alter the relationship between news aggregators and news providers, it is important that courts take a more expansive view of what is “transformative,” since it is such a crucial part of the fair use analysis. Weighing in favor of news aggregators on the first factor will make it more likely that aggregators will be protected by fair use. This is desirable because aggregators increase news consumption, which leads to wider dissemination of information and a more informed public. The court’s analysis does provide some guidance for aggregators in order to find protection under fair use. This includes the implication that aggregators market themselves as a search engine (or just not as a news clipping service) and allow as many users to access the website (or service) as possible. However, there are still important questions on how best to classify an aggregation service that is protected by fair use and one that is not. Aside from being more flexible in terms of what constitutes “transformative use,” courts should more seriously consider the expanded implied license defense and opt-out framework proposed by Meltwater. This way the aggregators may continue to disseminate information broadly, while also giving the copyright holder discretion to choose who is using the content. This might be the best option for the future, since it is questionable if the Meltwater court, in applying the fair use factors, is being fair to aggregators.
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    Aligning Online Privacy Protection with Reasonable Expectations of Privacy: How Joffe Can Be Used to Modernize the Wiretap Act
    (Minnesota Journal of Law, Science and Technology, 2014-05) Mason, Matthew
    Between May 2007 and 2010, as part of its popular Street View project, Google collected an enormous amount of Wi-Fi data transmitted from unencrypted networks throughout the United States and over thirty countries worldwide. After initially denying the collection of any payload data, Google publicly acknowledged that fragmented samples of payload data were collected from open Wi-Fi networks due to a code mistakenly included in its Street View software. Several months later, however, Google admitted that the data collected was not just fragmentary in nature; in some instances the full content of e-mails, URL searches, passwords, and financial transactions were collected. In response to what has been called a “big brother-like . . . invasion of privacy,” investigations have been launched in the United States and abroad. In a private action against Google, the Northern District of California denied Google’s motion to dismiss a claim alleging that Google’s collection of payload data from unencrypted Wi-Fi networks violated the Wiretap Act. The Ninth Circuit affirmed, holding that Wi-Fi communications do not constitute an “electronic communication . . . readily accessible to the general public” under the Wiretap Act, and thus are not exempt from liability. The Ninth Circuit’s ruling in Joffe v. Google, Inc. raises a number of important issues that may have significant implications on privacy protections for Internet and other electronic communication. Joffe exposed our current privacy protection framework as inadequate for new technologies and advancements in communication. Such inadequacy raises the question as to what extent, and in what way, Congress must update the Wiretap Act to accommodate a changing communication landscape since the enactment of the Electronic Communications Privacy Act (ECPA) in 1986. Furthermore, it becomes necessary to consider whether users of unsecured Wi-Fi networks have a reasonable expectation of privacy in their transmitted electronic communications. As a corollary, it is important to examine how offline Fourth Amendment principles may be applied to an increasingly online society to protect an individual’s electronic and Internet communications. This Comment seeks to examine how Congress, and the courts, might use Joffe as a springboard to bring privacy protections up to date with technological and communication advances. This Comment analyzes the reasoning and holding advanced by the Joffe court, placing Joffe in context with the current state of the law, and argues that Congress and courts should use Joffe to align the reality of users’ knowledge of Wi-Fi technology and reasonable expectations of privacy with the Wiretap Act. This Comment concludes that Congress should amend the ECPA to expressly protect both encrypted and unencrypted Wi-Fi transmissions, and that courts should adapt offline Fourth Amendment principles to protect online and other electronic communications.
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    Complexity in Global Energy-Environment Governance
    (Minnesota Journal of Law, Science and Technology, 2014-05) Long, Andrew
    Thinking about energy as a complex system from which fossil fuel dominance and climate change emerge provides an analytical and policy-relevant framework for exploring pathways toward transforming that system. The linkage of issues and scales of authority, highlighted briefly above, are but two examples of how this might be operationalized. Literature since the 2009 UNFCCC negotiations in Copenhagen is beginning to explore alternatives to top-down binding international environmental agreements for catalyzing successful mitigation, but it has yet to coalesce around an analytical framework that can foster synergy and the development of a cohesive body of work identifying and testing viable options that are likely to produce solid policy recommendations. A perspective on climate change informed by an understanding of the global energy system as a complex system has the potential to provide such a framework. Further exploring the potential for an interdisciplinary perspective on energy as a complex system may provide the analytical framework needed to accelerate the learning process by uniting the somewhat disparate strands of thought that have emerged since the “dream of Rio,” characterized by an unjustified faith in global top-down environmentalism, came to a crashing halt at the end of 2009. A complexity perspective on energy as the source of climate change may unite many of the developing approaches, which include work exploring near-term approaches to climate change mitigation, detailed analysis of particular aspects of the mitigation challenge if developed outside of a unifying top-down structure, and analytical expositions of polycentric governance theories in climate-relevant ways. Viewed as a body of literature addressing facets of a global complex systems challenge, such work can be understood to contain the seeds of an approach that is sufficiently salient to garner political support while also probing for effective tools that will engage the multiple interacting threads of social, ecological, and technical components that affect the energy system across scales in order to produce an overall shift that achieves climate stabilization. There is much work to be done if we hope to bring about the kind of transformation of the global energy system necessary to reduce GHG emissions significantly and rapidly enough to avoid drastic climate change impacts. A complexity perspective strikes an appropriate balance between resigning the global population to the massive suffering and destabilization that climate change may bring, as a narrow focus on developed country adaptation would do, and the unwarranted faith in top-down global governance that much of the previous decade’s climate change analysis exhibited. In this sense, a complexity perspective on climate change urges a form of governance reflecting the nature of adaptive systems situated on the edge of chaos—advocating enough order to avert disaster, while imbuing reform with the long-term catalytic vision necessary to bring about the emergence of that which is desirable, but remains uncertain and unpredictable.
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    Privatizing Biomedical Citizenship: Risk, Duty, and Potential in the Circle of Pharmaceutical Life
    (Minnesota Journal of Law, Science and Technology, 2014-05) Kahn, Jonathan
    Genomic research is at an impasse. In the decade since the completion of the first draft of the human genome, progress has been made, but few of the grandest promises of genomics have materialized. Biomedical researchers largely agree that one critical thing is essential to propel genomics into the future and maintain its legitimacy: more bodies. This Article will examine recent efforts at massive recruitment of subjects to participate in biomedical research and will argue that such efforts, while clearly motivated by a desire to drive biomedical research to its next stage of promised critical breakthroughs, also promote a privatized conception of citizenship that configures citizens’ duties as serving the public good primarily through serving the good of private corporations—pharmaceutical manufacturers in particular. This reconfiguration of citizenship, in turn, implicates the allocation of related public resources to support drug development.
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    Country of Origin Labeling Revisited: Processed Chicken from China and the USDA Processed Foods Exception
    (Minnesota Journal of Law, Science and Technology, 2014-05) Schueppert, Daniel
    In late August 2013, the United States Department of Agriculture (USDA) made it possible for the United States to export chicken to China for processing. Under these present regulations, chicken originating from U.S. farms can be slaughtered in the United States, shipped to China for processing, and then shipped back to the United States for sale. This chicken need not include Country of Origin Labeling (COOL) to indicate that it has been processed in China. This practice was technically authorized several years ago, but was specifically denied funding by affirmative use of a three-year congressional ban by means of congressional appropriations bills. Since China’s original application for approval, a total of ten years has passed in the course of lengthy inspections, the congressional ban, and yet more inspections. Time was also required to write and issue official reports. In 2013, the Food Safety and Inspection Service (FSIS), an arm of the USDA, completed remedial audits of China’s poultry processing system. The FSIS again certified the administrative side of the Chinese poultry processing system in addition to issuing permits to four select processing plants, thereby deeming them equivalent to U.S. standards. Perhaps inevitably, this was not a popular change. Some American politicians and consumer groups have retained reservations about the safety of chicken processed in China due to a variety of newer and older reasons relating back to the congressional ban. As it stands, opponents point to perceived food-safety concerns and consumer-information issues based on the fact that consumers will not know in which country their chicken products have been processed. This Note introduces the relevant background information and the history of Chinese processed poultry standards, the concept of equivalence, and a brief history of U.S. assessment of Chinese poultry processing, concluding with a description of the health safety scares in China in the context of this issue. This Note then analyzes these trends and argues for the adoption of modified COOL standards for some processed foods in light of strategic uses of COOL.
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    A Spoonful of Sugarcane Ethanol: A Green Tax Medicine for the Cellulosic Ethanol Industry
    (Minnesota Journal of Law, Science and Technology, 2014-05) Huang, Ke
    On July 31, 2013, INEOS Bio, a bioenergy company, announced that its Florida facility became the world pioneer in producing commercial-scale cellulosic ethanol. Ethanol, or ethyl alcohol, is a renewable fuel resulting from fermenting plant-based materials. INEOS Bio produces cellulosic ethanol using vegetative and yard waste. Despite the flurry that accompanied last July’s event, Brazil is still regarded as the country that implemented the most successful ethanol industry in the world —the sugarcane ethanol industry. In the United States, the ethanol industry touches on two critical areas. First, ethanol can be used as motor fuel, and it is no secret that the United States relies on motor fuel. Second, the nation’s reliance on motor fuel, especially gasoline, raises significant environmental concerns, notably, greenhouse gas (GHG) emissions. Thus, given the recent advancements in ethanol production, and the critical areas that ethanol touches on, an issue emerges as to whether Brazil’s ethanol policy model can be instructive to the United States’ fledgling cellulosic ethanol industry. This Note seeks to suggest changes to the tax benefits of the U.S. cellulosic ethanol industry. This Note argues, primarily by focusing on federal tax policies and environmental effects linked with ethanol, (1) the trajectory of the United States’ corn and cellulosic ethanol industries; and (2) the trajectory of Brazil’s sugarcane ethanol industry. This Note then (1) reviews the relevant existing literature addressing ethanol; (2) compares and contrasts the federal ethanol tax benefits of the United States’ and Brazil’s ethanol industries; (3) compares and contrasts these industries’ impact on the respective country’s environment; and (4) explains why Brazil’s tax benefits should encourage the United States to implement similar benefits. This Note concludes that revising some of the U.S. cellulosic ethanol tax benefits, following Brazil’s ethanol industry tax benefits, will likely spur the U.S. cellulosic ethanol industry, which would ultimately result in significant environmental benefits.
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    The Case Against Access to Decedents’ E-mail: Password Protection as an Exercise of the Right to Destroy
    (Minnesota Journal of Law, Science and Technology, 2014-05) Cummings, Rebecca
    There is currently substantial national momentum in state legislatures to grant personal representatives access to decedents’ e-mail as a part of a larger grant of access to all digital assets. In this Article, I make the case against such a default rule granting access to decedents’ e-mail. In the past nine years, Yahoo has not softened its position towards those who seek access to a Yahoo user’s e-mail post mortem. However, the other two largest e-mail service providers have more lenient policies on access to decedents’ e-mail. In this Article, I examine the service providers’ perspectives on access to decedents’ e-mail. Commentators are overwhelmingly supportive of access by personal representatives. They typically position Internet service providers, those providers’ terms of service, and secret passwords chosen by the deceased as stumbling blocks to efficient estate administration, the preservation of unique and irreplaceable sentimental and historical data, and the transfer of valuable property into the hands of deserving family members. Beginning with Connecticut in 2005, seven states have enacted statutes granting personal representatives some level of access to decedents’ digital assets, including e-mail. As of October 2013, about a dozen additional states have pending legislation that grants personal representatives access to decedents’ e-mail. Additionally, in January 2012, the Uniform Law Commission created a committee to “study the need for a feasibility of state legislation on fiduciary powers and authority to access digital information.” The committee is now operating with the mission to draft an act that “will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets,” and has developed a working draft that grants personal representatives access to password-protected e-mail accounts of the deceased (the Draft Uniform Act). I highlight the problems with, and new issues raised by, the access laws, proposed laws, and the Draft Uniform Act, and explore the problems with the arguments for access to decedents’ e-mail. I then assert that the commentary, statutes, and proposed legislation fail to adequately consider decedents’ intent, or probable intent, which is the bedrock of estate jurisprudence. I argue that storing e-mail in a password-protected account, coupled with nondisclosure of that password by the deceased, is an exercise of a decedent’s right to destroy his or her own property. Further, I maintain that state law and the Draft Uniform Act granting access to decedents’ e-mail inappropriately infringe upon this right. I conclude in Part V with a recommendation for an alternative default rule.