On October 11, the Department of Justice released its statement on end-to-end encryption as it pertains to public safety – a particularly salient topic following the recent EARN IT and LAED bills. The statement (signed by representatives from the Five Eyes Alliance countries as well as by India and Japan) focuses on the implementation of encryption technology as it poses dangers to vulnerable members of society by precluding legal access to content. The statement calls upon technology companies to embed the safety of the public in system designs, enable law enforcement access to content when legally authorized, and consult with governments to facilitate legal access to encrypted content. While the privacy benefits of end-to-end encryption are significant, the statement recognizes, such technology can impede law enforcement agencies’ “responsibility to protect citizens by investigating and prosecuting crime and safeguarding the vulnerable.”
United States Cyber Command (USCYBERCOM), one of the Department of Defense’s eleven unified combatant commands and the leader of cyberspace operations, has conducted operations targeting TrickBot, a massive botnet controlled by an as-of-yet unidentified Russian-speaking organized crime group. TrickBot is a sophisticated, capable, and spread-out malware-as-a-service operation that appears to have been employed even by state actors such as North Korea. The operation by USCYBERCOM is the first publicly confirmed case of the command executing such disruption activities outside of an armed conflict, and comes as the U.S. presidential election nears and concerns around foreign influence remain high.
Following concerns from Senate Republicans and the Trump administration that tech giants are biased against conservatives, Mark Zuckerberg and Jack Dorsey have agreed to testify before a Senate panel on November 17. The panel will address the restrictions the companies deployed around a NY Post article covering recent allegations against Hunter Biden, the underlying facts of which have been questioned by other news outlets and the FBI. Despite the partisan nature of the current inquiry, the testimony will come against the larger backdrop of politicians seeking to rein in the influence of large tech companies, as the core of the questioning focuses on the companies’ liability protections for user-submitted content under Section 230 of the Communications Decency Act.
The California Court of Appeal issued an opinion affirming the trial court’s holding against key ride-sharing companies under California’s Assembly Bill 5 (AB5) litigation, stating that they must treat their drivers as employees. The classification of drivers as employees has far-reaching implications for the companies, given the expensive, heightened protections afforded to employees relative to contractors, as well as the extended liability of their employers. The effect of the ruling has been stayed for 30 days, giving Californians the opportunity to vote on Proposition 22 (the App-Based Drivers as Contractors and Labor Policies Initiative) in the meantime. Prop 22 would exempt the gig companies from AB5, creating a middle-ground in which drivers would receive notably more protection than as contractors, but still substantially less than as employees. Currently, backers of Prop 22 have spent approximately $200 million to support it, but without gaining a clear advantage: 39% of likely voters support the proposal, 36% are opposed to it, and the rest remain undecided.
In 1998, the U.S. government alleged that Microsoft was using its substantial market presence to require computer makers to set its web browser as the default on new machines; the suit allowed Microsoft’s competitors to catch up and improve their relative positions. Now, the current antitrust case against Google alleges similar conduct, focusing on Google’s payments to manufacturers to set its search engine as the default function on various mobile phones and web browsers. While Google’s argument will likely point out the widespread, easy access to other search engines, its practical monopoly (90% of the search engine market) may support the government in its claim that Google is causing harm to innovation and the competitive process – the same allegation in the older Microsoft case.
R&D tax credits provide substantial cash that companies can immediately reinvest, as they are credits against taxes owed or already paid. A wide range of companies can take advantage of these credits, including those that design new products, improve upon existing ones, develop IP, or conduct research. Qualifying activities must meet only four requirements: (1) attempt to develop a new or improved product/process/ software/technique/invention/formula; (2) rely on hard science; (3) eliminate uncertainty; and (4) require experimentation. While medical labs and tech incubators are often the first companies associated with such credits, a much broader range of enterprises are eligible for them, so long as they are able to gather the (substantial) required documentation. In view of the economic challenges widely posed by the current pandemic, such credits can be valuable sustenance for small- and mid-sized companies.
According to a recent article in The Journal of Law, Medicine, and Ethics, addressing gene-editing technologies that can be used on sperm and eggs will be a critical and influential responsibility of the next Congress. The current federal funding ban focuses on the embryo, but no statutes currently address the editing of the gametes that form the zygote. As such technology becomes more reliable, gamete gene-editing may come to substitute embryo gene-editing as a means of avoiding current regulations and funding bans. The emergence of gamete gene-editing technology raises different ethical and legal concerns than those addressed through previous debate and warrants attention by legislators.
According to decisions from the USPTO, the UKIPO, and the EPO, current law suggests that an inventor must be human, preventing an AI from being listed as the inventor on a patent application. Following the USPTO’s AI IP policy conference, the office published its report, “Public Views on Artificial Intelligence and Intellectual Property Policy,” summarizing comments received from stakeholders. The report focuses on two main areas: (1) patenting inventions “by” artificial intelligence; and (2) IP protection for AI innovation in areas other than patent law. The viewpoints were characterized by a few common perceptions, notable among them that AI is incapable of “conception,” or autonomous invention, and is rather a tool used by humans in creating inventions. However, commenters were split as to if the existing IP regime adequately protects AI innovation in light of potential advances.