Health-Tech Apps: Unclear Regulations and Their Effects on Progress
Emily Dieli The increased emphasis on creating a more streamlined healthcare system in the United States has led to a rise in digital health-tech apps and devices. To protect the privacy of personal health data on these technologies, policymakers have turned towards regulation. The Federal Trade Commission’s (FTC) recent statement on the Health Breach Notification (HBN) Rule has extended the scope of the 2009 regulation to include previously unregulated health-tech entities. Nevertheless, the statement is vague and will have a negative impact on health-tech innovation. Policymakers should consider the implications of their regulations on health-tech progress before making such hasty...
Through the Spying-Glass: Data Privacy Concerns Regarding Mobile Spyware Apps
Payton P. Reisinger Spyware app surveillance technologies are rising in popularity for both legitimate monitoring and also to illegally spy on unsuspecting victims. In 2021, the Federal Trade Commission (FTC) issued its first ban of a spyware app, SpyFone, due to deceptive and unfair trade practices and lack of data security provisions. Some call for specific legislation to curb the effects of growing spyware apps, but opponents of regulation claim that legislative efforts will be too restrictive on growing technological industries or the legitimate uses of spyware apps. This Essay agrees with the policy rationale for implementing spyware legislation and...
Mind over Data: A Case for Increased Privacy Protections in Mobile Mental Health Apps
Marian Lemont As mobile mental health apps gain popularity as an emotional support alternative, privacy concerns regarding how consumers’ sensitive health data is handled are at an all-time high. Current federal privacy provisions provide insufficient consumer protection and thus render consumers’ sensitive information vulnerable to unwanted third-party sharing practices. The recently passed California Privacy Rights Act of 2020 (CPRA) includes new provisions governing businesses’ handling and deletion of sensitive user data. This article discusses how these new CPRA provisions provide a helpful framework to begin addressing this regulatory gap and identifies ways future privacy legislation can continue to strengthen mobile...
The Intersection of Product Liability Law and the Internet of Things
Lucas M. Amodio Every year, an increasing number of Internet of Things devices are released. These devices can make our lives easier, but they also make our data, and potentially ourselves, more vulnerable to hackers. The question is no longer theoretical, as many of these devices can have a real impact on the world around them, like a networked sprinkler system that, if hacked, could flood a target’s basement. Going forward, we can look to the current law of product liability and the Federal Trade Commission to protect individuals from harm and loss when these devices might be compromised. Read...
The Liquidation of Data Privacy: How an Outdated Bankruptcy Code Threatens Consumer Information
Michael R. Akselrad In the modern world, billions of people share personal information online every day, ranging from consumer preferences to biometric and genetic identifiers, leading to the commoditization of user data, the value of which may dwarf the other assets of even large, multinational corporations. In the ordinary course of business, this user data may be kept confidential through such measures as privacy policies, statutory protections, and the reputational backlash facing a company that acts too brazenly with users’ sensitive information. In bankruptcy, however, some of these safeguards are eliminated in the interest of maximizing the value of the...
Applying Antitrust in Digital Markets: Foundations and Approaches
Mark Jamison This paper analyzes the conflicts that arise when trying to apply traditional antitrust principles in the context of digital markets. Antitrust has both political and economic foundations. The political approach emphasizes populist themes that ultimately harm economic development, whereas economic approaches focus on characterizations of and remedies for market power. Digitization of markets thwarts current antitrust tools by adding complexity and rapid change. Several authors suggest populist approaches for antitrust in digital markets, but these lack rigor and fail to address central challenges. This Article suggests that antitrust should return to its earliest roots and directly address features...
Apple Bites Back: An Antitrust Analysis of Qualcomm’s Licensing Practices
Marie Weisfeiler Both Apple and the Federal Trade Commission filed lawsuits against Qualcomm alleging antitrust violations. Specifically, both alleged that Qualcomm used its monopoly power to engage in unfair licensing practices and create an exclusive deal with Apple, in violation of its industry commitment to use fair practices in licensing its patents. This essay compares Qualcomm’s practices to those of Microsoft in 1998, which, because of Microsoft’s restrictive licensing and exclusive deals, were deemed to have violated the Sherman Act. It then considers the implications for licensing, technology, and antitrust law if a similar case is litigated in the future....
Get Out of My Head: An Examination of Potential Brain-Computer Interface Data Privacy Concerns
Kevin Y. Li Brain-computer interfaces (“BCI”), which interpret brain impulses and translate them into real world outputs, currently exist in a variety of forms. With the continued development of BCIs and their increasing complexity, privacy issues will arise in regards to the data that they collect. Existing federal statutes, such as HIPAA, as well as state data privacy statutes offer some protection to BCI users, but it remains to be seen whether these laws will be sufficient to accommodate the amount and sensitivity of the data likely to be generated by future BCIs. Lastly, this article explores the possibility of...
FTC Social Media Endorsement Guidelines: The Effects on Social Media Users and Business Owners
Jason Kim In the midst of heydays of social media, a social media user will inevitably face a product or service endorsement post in his/her social media feed or thread page. However, in the endorsement post, it is quite rare to see disclosure information as to whether the social media endorser has some kind of commercial relationship with the product manufacturer or service provider. On September 7, 2017 the FTC issued its first ever legal action against individual social media endorsers for posting endorsement posts without revealing their commercial relationship with the service providing company. This action by the FTC...
Antitrust Issues in Reverse Payment Settlements: Federal Trade Commission v. Actavis, Inc. et al., a Case Study
Amanda Creedon In Federal Trade Commission v. Actavis, Inc., the Federal Trade Commission (FTC) filed a complaint alleging that reverse settlement payments were unfair restraints of trade and therefore violated federal antitrust laws. The Supreme Court held that reverse payment settlements in patent infringement litigation are not presumptively unlawful but can sometimes violate antitrust laws, to be determined on a case-by-case basis. The settlements are not immune from antitrust attack even if the agreement’s anticompetitive effects fell within the scope of the exclusionary potential of the patent. Read Full Text Here