This Week in Law 280 (Transcript)
Denise Howell: Hi, folks, I'm Denise Howell. And next up on TWIL, we've got Greg Vetter, Jonathan Frieden, and Lindsey Cook joining me. We're going to talk about data. We're going to do a deep dive into health care data, its open-source nature, how it can be crunched and manipulated to help solve things like the Ebola crisis and cancer, but also the privacy overtones on all of that and the consent considerations that need to come into play. We're going to talk about why the heck we're not electronically voting everywhere yet. We're going to talk about an interesting Supreme Court patent case that was just argued, an increase in defamation cases in the U.K., and lots, lots more for you next on This Week in Law.
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Denise: This is TWIL, This Week in Law, with Denise Howell, episode 280, recorded October 24, 2014
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Hi, folks. I'm Denise Howell, and you're joining us for This Week in Law. I'm really excited that you've joined us this week. We are going to do a deep data dive on today's show, talk about some issues related to data, privacy, the law, and just, in general, this whole universe of data that we're living in these days and how it affects us all and the policies that the law might take toward it. To help us have that discussion, we have Lindsey Cook joining us. She is the data reporter for U.S. News and World Report; and I guess, Lindsey — first of all, welcome to the show.
Lindsey Rogers Cook: Thank you.
Denise: I should ask, since we're going to talk a lot about it on the show, do you prefer "data" [pronounced with long A] or "data" [pronounced with short A]? I've never really nailed that one down for myself.
Lindsey: I usually say "data" [pronounced with long A]; but I'm also from the South, so I think that most Northerners probably say "data" [pronounced with short A].
Denise: (Laughs) Okay.
Lindsey: But it's "data are," not "data is."
Denise: Ahh, "data are," not "data is." That's right because it's a plural. All right. Well, we appreciate that, and we're going to appreciate your help as we go along during the show. Helping us do that as well is Greg Vetter. Greg is a law professor at the University of Houston School of Law, specializing in intellectual property and with a particular interest in open-source technologies. Hello, Greg.
Greg R. Vetter: Well, good afternoon or good morning, depending on where you're listening; and I'm thrilled to be here to have a chance to speak with the audience for This Week in Law.
Denise: It's great to have you, Greg. And returning to the show after way too long in absence is E-commerce lawyer from Odin, Feldman & Pittleman in Virginia, Jonathan Frieden. Hello, Jonathan.
Jonathan Frieden: Hi, Denise.
Denise: Good to see you again.
Jonathan: It's good to see you.
Denise: You've had a good couple of years, I hope?
Jonathan: I have.
Jonathan: Fairly uneventful, which is good.
Denise: I know, for me, they've just flown by because it feels like we just had you on the show, but I know that's not the case.
Let's jump into this data dive that we're going to do today. And you know what? I've kind of put it under privacy, but we can talk about that, too. But let's just play our little graphic and get going.
(The intro plays.)
Denise: So Lindsey, the pieces that you write at U.S. News and World Report go under the heading "Data Mine"; and you cover everything related to data. It's really fascinating. If you're not reading Lindsey at that source, I encourage you to do so and to check out her Twitter feed. And you also do a newsletter I just signed up for. Can we go ahead and plug that, too?
Lindsey: Yes. Daily newsletter. It's called "Up, Down, and All Around"; and it chronicles what data numbers have gone up, what have gone down, and just some interesting developments in the field of data every day.
Denise: Very cool. And tell us how you got so interested in this. I mean, it's — I've been explaining to people — people ask me from time to time, Who are you going to have on your show this week, and what's it going to be about? And when I say it's going to be about data, I can see them starting to fall asleep. (Laughs)
Denise: But it fascinates me; and clearly, it fascinates you, too. And maybe we should try and identify why.
Lindsey: Well, it's just such a growing and interesting field, and it's really going to affect every area of our lives going forward. For example, health is really an area I'm interested in because there's just so much health care data out there; and we're really reaching a tipping point where it's going to start affecting your health outcomes, making everyone healthier. I have a background in computer science and in journalism, so that's kind of how I got interested in data, just really diving in and figuring out the stories that needed to be told that weren't being told as much. And just because it is such a dense topic, I think it's something that needs to be talked about so people can really understand, what is the difference between correlation and causation, and how much are you actually at risk of your data being kind of de-identified and then re-identified? And people need to have those tools and that information so that they can prepare themselves.
Denise: And I did put this under our privacy topic. We cover a lot of privacy-related topics on this show. But I do that with some trepidation because not everything related to data intersects with privacy, does it, Lindsey?
Lindsey: No. I mean, not really. So for example, when you have your Netflix streaming coming in and they're suggesting different things in your shows you watch, you're probably going to be the only one to see that. So is that really privacy? I don't know. It turns to privacy if Netflix releases that for some reason, or it's hacked and has to release that. So it's a very — they go together because your data is always — can always be released, unfortunately; and that's a privacy issue.
Denise: Okay. Well, you touched on health care, and I know that is something that is close to Greg's area of interest and study as well, at this time, anyway. Greg, you, too, have a computer science background, don't you?
Greg: Yeah. I'm an electrical engineer with a master's in computer science, and I worked nine years full-time in software after finishing my undergrad before, as my friends say, I went to the dark side and became a lawyer. But the time period working full-time in software helped me really understand both the business and technology of software.
Denise: Well, you let me know before the show you have been looking at the world of technology in health care. Can you tell us what kind of things you've been examining and studying, and then we'll look at some concrete stories related to that?
Greg: Certainly. Following Lindsey's point, we basically have a national policy the last five to eight years who, the result of some federal legislation, to drive automation, drive computing, into health care in a very, very substantial way. And this is evidenced by a number of things, including payments to get physicians and hospitals to use electronic medical record software. There's also a great emphasis on tying those systems together to make sure that the electronic medical records or electronic health record software in a physician's office or hospital could exchange data and help aggregate that data and really bring it upward so that we have a "big database in the sky" of health information, health data, health outcomes, which has some potentially large public health benefits. But that automation is putting a lot of computing technology into health care, both the last three or four years, and that's a trend that I think will just continue.
Denise: And it's not just on the doctors' or the care providers' side, is it? As people are starting to take the old maxim "An unexamined life is not worth living" to new heights, lots of data is being gathered about one's physical condition, and thus health, through devices that people wear, and a lot of self-monitoring, too, isn't it?
Greg: Well, clearly, this phrase, "The Internet of Things" could be applied in health care. Hospitals are increasingly having devices that feed data directly into computer systems. We do this ourselves personally, some of us with devices. But it's really an emphasis of the health care system to get more and better clinical data in a more timely way and try and use it to improve health outcomes; but we're really in the beginning phases of that, to have computers really help us with that process. The impacts go beyond the physician's office and the hospital because there's exchanges, regional exchanges, that are supposed to aggregate this data and make it available for researchers and others who'd like to think about ways to have better health outcomes, both as to what we pay for in treatment and what should be done differently in treatment.
Denise: Jonathan, what do you think about the sort of gray area between health care providers and technologies that are specifically developed for the health field, and things like what I was alluding to before, start-ups that want to put out a great monitor. Maybe they're Kickstarter-ing themselves into existence and popularity to help people track information about themselves. It's kind of an interesting time we live in, isn't it?
Jonathan: Well, it is, Denise. And what we have here is the technology now gives us the ability to collect, analyze, access, and transmit a larger volume of data than we've ever had the opportunity to before. And there's a lot of different areas of our lives that that connects to, and health is one of them. So what you have is, you have electronic data being collected on folks in the official or the more formalized medical setting, but also individuals collecting that data on themselves. And the issue, then, is that — what do we do with that volume of data? That volume of data would seem to be a remarkably — potentially helpful in terms of assisting physicians in diagnosing and treating illnesses; but there are a number of legal and, I think, perceptual, hurdles to cross before we get to that point where we can do that effectively. And I draw a distinction here between what I refer to as data privacy, which is what a person who you voluntarily give your data to does with your information; and data security, which deals with the issue of, once you've given voluntarily your data to a party, it deals with situations where unauthorized parties may hack into a system and access your data at that point. And then I think it raises both data security and data privacy issues that have to be overcome before that information can be used in a helpful way. But I think the potential of that data is so important that we have to get over those hurdles and deal with them so that we can get the useful information to the people that need it in order to help physicians do their jobs.
Denise: Yeah. You're absolutely right that data privacy and data security are two areas where this all collides head-on with legal requirements and regulations, and the consent area is real interesting, too, as more and more data is being put online, stored electronically, potentially shareable among larger groups of people than, perhaps, patients originally thought they signed up for. The consent piece becomes real important, too.
Let's look at some specifics. Since everyone's talking about Ebola, let's talk about Ebola. It's maybe the second or third show where Ebola has come up for us. But clearly, this is an opportunity for data and data analysis to play a big role in helping a crisis situation. It's certainly something that — maybe it's blown up into a crisis in people's minds greater than perhaps it is; but it's a serious situation no matter how you slice it. You've been writing about this, Lindsey. Tell us, first of all, about the mapping project that you wrote about.
Lindsey: Right. So one of the big issues in fighting Ebola is the lack of data, just because doctors trying to find these remote villages, trying to find these remote communities, they don't know where they're located, they don't know how to get to them. They're going on a four-wheeler, in a truck, and they don't necessarily even know where they're going. They don't speak the language. It's very dangerous. So one of the things that people are trying to do is actually map the areas and contribute data. So they're looking at these very, very old maps, maybe from World War II, World War I, even before; and they're digitizing those maps and giving them to the doctors on the ground. And then these doctors are printing the maps out and then using them to go around. And you can actually help with this if you would like; there's a tool online where you can do that. But what we also have to consider with data and Ebola is that the Internet connections in Africa are not what they are in the United States; and the computing power is not what it is in the United states. So collecting this data and analyzing it is very cumbersome on the ground. And that's the reason why we don't know how many people have actually died from Ebola or how many people actually have it. I mean, we have estimates, but we're not sure.
Denise: Okay. And this project that we're talking about is called ... let me get the name ... Humanitarian Open Street Map Team, abbreviated to HOT. And here's a quote from your article: "Most of those areas hadn't had good mapping in decades." You are quoting — let's see. Who was the person that you were quoting here? Someone from Doctors Without —
Lindsey: I think it — yeah. I talked to someone from the Red Cross.
Denise: Ah. Yeah.
Lindsey: The mapping expert from the Red Cross. That might be the person.
Denise: Mikel Maron. No, this is Mikel Maron, president of HOT's board.
Lindsey: Okay. Yes.
Lindsey: So — HOT.
Denise: So he's anxious to get more updated data and to get people participating. Do you feel a this is a really concrete — you know, this isn't just making yourself feel good to participate in this. This is something that is a concrete step in the right direction and helpful.
Lindsey: No, I do think that. It makes sense, if you think about it. Like, how is anyone going to reach these remote villages if they don't know how to get there? They're wasting a lot of time. So anyone who — no matter how many tech skills you have, if you know how to use a computer, you can do this. And I really think that you will be making an impact.
Denise: Great. Let's talk about the CDC and what it's up to as far as data and Ebola. It has a tracking app that is in play here. Let's see; we've got ... I'm actually not sure it's the CDC. The CDC is certainly endorsing this app; but interestingly, Greg, this is an open-source project. It reduces data entry errors and lessens data management for public health responders. It is called VHF — Viral Hemorrhagic Fever — application, the epi-info Viral Hemorrhagic Fever Application. It needs some branding help, perhaps. (Laughs) Right now it says, Greg, that it only works with Microsoft Windows operating systems and uses Microsoft Access to store questionnaires and data; but there's an open-source rewrite project currently underway that will offer a MSQL database driver to support other operating systems. Is it important that things like this be available outside the Microsoft arena?
Greg: Well, I think absolutely, yes. It's one of the benefits of an open-source approach to software development. I'm sure most of this audience knows, but open-source means the source code is typically available for some types of FOSS. And when I say "FOSS," I mean free and open-source software. It's a general label, free and open-source software, FOSS, that a lot of people apply to describe, generally, the entire universe of applications that are developed under either a free software model or an open-source model; and there's some differences between those two. But relevant to your question is the idea that the source code is available. It maybe has been sponsored or supported or the CDC is perhaps the custodian of it; and it's attracted volunteer — other types of developers. But with that source code being available, a rewrite like this can sometimes happen much more quickly with far-flung resources all over the world contributing to the rewrite to make the software potentially more agile than you might have with other types of development models.
Denise: So there are several modules here. It says that — I'm reading from coverage at GCN.com. And the CDC has partnered with — partnership between CDC's Center for Surveillance, Epidemiology, and Laboratory Sciences and the Viral Special Pathogens branch in the National Center for Emerging and Zoonotic Infectious Diseases. (Laughs) So we've got a couple of government agencies working on this app. And it has a mapping component to it, similar to what we were just discussing. It lets users create questionnaires and data entry forms; so it's basically something that is helpful for all people striving to contain and address and treat Ebola and the other diseases that this is for. So once again, a whole lot of data will be used in addressing the problem. As we're fighting something that involves so much urgency, Lindsey, where this is a true public health issue and containment for world health is in everybody's top ten list right now, how do you think that impacts the privacy ramifications of the data here? I mean, certainly the sharing and use of the data takes on an importance that may push privacy to a backseat in this kind of situation; don't you think?
Lindsey: Yes. I mean, I think that any of the patients that were diagnosed with Ebola in the United States, for example — I mean, their privacy's pretty much been thrown out the window. We've spent two weeks wondering about Nina Pham's dog.
Lindsey: We all know who Bentley is now. So yes, I think that when it is escalated to this level with this much news interest, if you happen to be swept up in it, you are kind of just giving up a lot of your privacy. But that's the same thing that happens, unfortunately, in a lot of tragedies. For example, in the Boston bombing, the victims that were photographed and had their lives written about. And people were very interested; the news interest was high. And that does — it is a tradeoff for privacy for those individuals; and I think most reporters — and health organizations, in this case — dealing with Ebola would say that it's the greatest good for the greatest number.
Denise: Right. Is that problematic at all to you, Jonathan?
Jonathan: It's certainly not problematic when you think about the large picture, I suppose, in terms of — the greatest good for the greatest number, I think, is probably the way to look at it. If you — so in large scale, it's not problematic; but if you look at smaller scale, it depends on how the information is obtained. If it's obtained in violation of federal laws designed to protect the privacy of certain medical information, obviously those small, distinct violations of law are problematic. But overall, for the public to have the identity of, or have specific information about, individuals with Ebola, for instance, when public interest in the event is very high, there is a public health component to having the information. And in some instances, the information is actually being released by the government or by the CDC in order to protect the public and provide the information to the public to calm some fears that were out of proportion, I think, with respect to the actual danger. I think that there's a greater good to having that information as long as it's not obtained in violation of law.
Lindsey: And we see the same tradeoff with other diseases and other disorders. For example, with cancer, we're seeing people's information being put into electronic health records, and then that information being put into these big data resources so that we can learn from all the people who have lung cancer, for example, or all the people who have breast cancer, to better see which treatments work. And I don't think that the majority of people who have cancer or have been affected by cancer, would care that their information is being fed into this system in a de-identified way.
Denise: Right. Well, you point out in your article on that point — really excellent, in-depth article on big data and can it cure cancer — that there are some legal issues that come into play, that you do have to address the fact that patients may go into their relationship with their doctor thinking that the doctor is keeping records purely to administer treatment to the patient and not to help the medical community at large benefit from the knowledge gleaned from treating that patient. And that's something that maybe current consent structures are not dealing with adequately. And it raises the issue of sort of taking the context and changing it, and how people's understandings about their data may be in constant flux because consent that they'd give in one circumstance might not be intended by them to apply in different ones. And I agree with you that — I think the vast majority of cancer patients would love for their situation to be able to help others, but it's just not that straightforward from the legal standpoint, is it?
Lindsey: No, it's not, especially when you get into the idea of data security. If your data is re-identified — which is always a risk — then a lot of people are going to come back and say, Oh, I wasn't aware that was happening. It becomes another issue of education that's wrapped up in this issue of consent. Can anyone give their consent if they don't actually understand fully what they're giving their consent for? Because this — big data resources, it's very complicated what your data is going to be used for and how it may or may not benefit you and may or may not benefit other patients. So I think that there is also a level of education that needs to be involved with it. But I mean, the issue with consent is, how much consent and how often? Because should you have to consent every single time your data's being used? I don't know; but that would be a huge hurdle for the technologists working on this if they had to get consent every single time.
Denise: The numbers you mention in your story about curing cancer with big data are just staggering. Kaiser, you write, is currently managing more than 4,000 times the amount of information housed in the Library of Congress. The amount of health care data worldwide is expected to increase 50 times by 2020 to 25,000 petabytes. For comparison, 2 petabytes is about the size of all the information in all of the academic research libraries in the United States. And that's just, I mean, at the beginning of things now. You're writing that — okay, we're getting to the point where primary care physicians are keeping electronic records, and that's how we have generated this enormous universe of knowledge you just described. But we are poised to exponentially increase the amount of data; and this study going on — sort of an experiment at Ohio State University — it's one of eleven institutions establishing a national institutes of health data to knowledge center that involves having patients wear monitoring devices that gather all kinds of statistics on them that then are going to be used ... let's see. Specifically, here, they are trying to address heart failure and smoking relapse; but of course, the kinds of information that they're gathering here, the constant monitoring of one's physical status, could be used to fight not just other diseases that the article at Ohio State points out, but general baseline health kinds of concerns, preventative care kinds of concerns. But in a world where everyone is running around with a sensor monitoring their health — and this world is not that far off, as we see health kinds of applications being built into iPhones now — but the data is going to be enormous, and the ramifications of that I don't think any of us can fully appreciate right now. Lindsey, do you want to comment on it?
Lindsey: Sure. I agree; I don't think the ramifications can — we can figure those out right now. It's important to point out that since computers existed doctors have been integrating data into them, so this is not something new. Electronic health records aren't new; it's just that they've reached a tipping point recently where most hospitals are using them. And this is also an issue of data transparency. How much data should I, as a patient, have access to? For example, outcomes data is something that hospitals have had for a very, very long time, and they've used it. So for example, they know which doctors have higher mortality rates for certain surgeries. They know if one doctor has, basically, a higher chance of killing you if he does a certain surgery, as opposed to another doctor. That type of data is not being released, mostly. In New York, it has been released to some extent but not in other places. And so I think data transparency is also an issue. If you're contributing to this system, how much data should you be able to have access to? But the world where we're running around with all sorts of sensors on us, it is coming but it's also limited to the elite. It's limited to the people who can afford these sensors right now. It's very much painting a world of haves and have-nots that should be very concerning to people, I think.
Denise: Right. What was the Matt Damon movie recently? — Elysium — where a certain segment of the society was healthy and cared for and living in orbit, and the rest of us left down here were fending for ourselves in a not-very-health-conscious or health-enabled way. The whole plot of the movie was getting someone up to the space station to get them treated. So yeah. I mean, although that's a —
Greg: Denise, I could —
Greg: Denise, I could offer a follow-on point to Lindsey's point.
Greg: I think that what's happening in health care right now is, we're seeing first-generation information technology systems that are automating health care. And I would draw a real broad but, I think, useful analogy between manufacturing, where for about 50, 60 years, we've been using computers to increase quality, reduce problems with manufactured goods. And so the revolution is manufacturing has gone on for many, many decades. To me, in health care, we're at the beginning of that for roughly the last 10 years; and I agree very much with Lindsey that we're at a tipping point now. We're starting to see a sufficient infusion of electronic medical record software in enough hospitals, in enough physicians' offices, that we are coming to a tipping point, having more data, more ability to see how it affects health outcomes. But I also think we're in kind of the first generation of these systems, that it may take the second generation of electronic medical record software and better interoperability among those systems, which has been a problem even though it was very much a goal to have all these systems be highly interoperable. So we may not see some of the highly-touted health care benefits until we go down the road another decade or so and have kind of the next generation of these EMR electronic health management systems be installed. And you get some benefit from the experience of the first-generation systems in seeing how they work and how people can improve them, as well as improve the business processes of delivering health care around them.
Denise: Yeah. That's a really good point, Greg. And I'm curious as to — I know you look at the open-source side of things — as to how you think, as these systems develop, open-source is being embraced. And maybe you should explain — I do think that our audience is fairly familiar with open-source and its benefits, but why it's important that that be integrated and embraced as the systems evolve.
Greg: Well, I appreciate that. Mostly, I think that the electronic health record market is an enterprise software market; and so some writing I did several years ago made me somewhat skeptical that free and open-source software packages were going to do as well in an enterprise software market as they've done in some other areas. The flagship example, and one of the classic examples of very successful FOSS, is the Linux kernel and the various operating systems that are built on the Linux kernel. And that includes the Android platform for half, two-thirds of the cell phones in the world. And so open-source has been very successful — Foss has been very successful — when it creates a platform for kind of other technologies to build upon. It's also been pretty successful when there's some kind of support or maybe ceding of the technology by maybe a government agency or some kind of consortium; and this can take us to electronic medical record software. The Department of Veterans Affairs in the United States has for many years had its own internal electronic medical record system. That, however, has always been available as source code. And there's some companies — Medsphere is one example — some companies that try to use that system as a jumping-off point to deliver kind of a hybrid product out in the general EMR — electronic medical records — marketplace. But the EMR marketplace is really dominated by your traditional proprietary software vendors; and I think there's some structural reasons for that. The kind of care and feeding you need to give to a doctor's office or a hospital to have them install and use the software isn't typical of a lot of FOSS projects, which are great for developers who know how to go grab some code, use it, and deploy it, but maybe isn't so great for non-technologists like the staff you see in a typical hospital, particularly a small hospital or physician's office.
Denise: Right. Hey, Jonathan, we got a comment in IRC from CRL, who says: "It's simple. Unless the patient signs a release of data, the patient won't get health care." Do you think that we're already there or are headed there, where people are just going to have to sign over — at least agree to de-identify data for all of their health records?
Jonathan: Well, that touches on the constitutional — what some people believe is the constitutional right to privacy, which is framed in some very specific ways by the First Amendment, the Fourth Amendment, and the Fifteenth Amendment, I believe. And so it depends upon the extent to which that constitutional right is broadened and exists generally. So are we at a point where we would either require in order to obtain health care, or impose a penalty upon those that wouldn't share their information. I'm not sure that we're at that point yet. I'm not sure that that would pass constitutional muster, first of all; and I'm fairly certain that it would not be very popular. So I suspect that even if it was constitutional, I don't think that a law imposing that sort of an obligation would be ultimately enacted. The issue with respect to — I think the key here is to give people some comfort in the fact that they're individualized information, their identified information, will be disidentified when it's used to provide a basis for diagnosis and treatment of other patients. And I think that you can do that by simply following the tenants or the pillars of privacy, which are established in the private business world and E-commerce throughout this country and in Western Europe, which actually originated these — there were seven, actually, pillars that originated with the EU's directive on privacy and on data privacy. But it really comes down to notice, consent, security, and then accountability. If you provide people notice of what their information's going to be used for and how it's going to be used and how it's going to be disidentified; and then you require their consent in order to take the information; and then you keep their information secure; and there's some accountability if the information is released in a way that was not disclosed by the notice, or it's obtained by an unauthorized third party, then I think that, for the greater good, most people would voluntarily agree to permit their information to be used, particularly if they knew that it was going to be properly disidentified. And remember that there's a fairly significant generational gap in the terms of how people view privacy; and people are very upset when the government collects our information; but if you look at a generation probably even a little younger than I am — younger than forty, younger than mid-thirties, they publish, themselves, quite a bit of information about themselves on social media sites. And we talk about these individualized health monitors. I'm receiving health information from my Facebook friends on a daily basis because a lot of them are connected to Fitbits or to their Apple device; and the software applications that monitor those aspects of their health are linked to Facebook and release that information often on Facebook. I can't tell you the number of times that my Facebook friends have automatic notifications or automatic posts about where they ran and how far they ran on Facebook. I think they usually do it just to make me feel guilty.
Jonathan: But I'm getting a lot of that information as it is. And so I think that if you provide people a basis to be comfortable with the fact that their information will not be tied to their identity, and that they know that the information will ultimately be used to help other people, in a way, that the information could be used to help them, I think that, in many instances, people will voluntarily provide that information. And certainly, enough people will provide the information to provide a basis — a volume of data from which we can begin this process to use it to help others.
Denise: Do you think, though, that in the notice component of your rubric there — notice, consent, security, and accountability, I think were the four corners of your building there. In the notice portion, do you think that what doctors will do as a practical matter, or companies like a Fitbit sort of application that are gathering this data, that what they will do is just say, Well, the notice that we're giving you is, we can use this and share this at will, and you have no recourse. Or does that run into the constitutional problem that you raised?
Jonathan: Well, I think to the extent that they have no recourse, which would — then that second pillar would come into play, and they really aren't giving true consent. Compelled consent is not consent; so then, that second pillar would not be satisfied. But I think that — in the medical field, remember that doctors deal with the issue of informed consent for medical procedures all the time. So they understand, at least in a very general way, the importance and the framework with providing people notice of the specific consequences of a certain procedure. So this really just transfers over. What this is is an informed consent with respect to the use of data. Now, with respect to the private sector, if you're talking about those exercise devices — and now the Apple devices containing sensors that collect some of that information — I think that the commercial entities understand that concept perhaps in a different way, but just as well, in the concept of the privacy that they already have to provide to their customers as a market issue. Because the companies who suffer privacy violations often see a problem with respect to customers not wanting to visit them. You probably see that in terms of the Home Depot breach of the last few months; Apple certainly got a lot of bad press with regard to their iCloud hack. So I think that both in the private sector in terms of commercial entities providing personal health devices, but also in the medical field, you have a basis for those entities to provide good, clear, accurate notice and obtain what I would refer to as an informed consent for the use of data.
Denise: Hey, Lindsey, what Jonathan has been discussing segues really nicely to your article about Twitter and your lunch solving problems. Specifically, people voluntarily putting information about their health on something like Facebook or Twitter and then, now that that data — those data — are out there ... (Laughs) ... that public health organizations can come and make use of them. Can you tell us about what Chicago's doing? Lindsey?
Lindsey: Right. So they are mining Twitter. So they have ran an application that goes to Twitter and finds all the tweets in the Chicago area that say — I think it's "food poisoning" or "food poison" or something. And they find all those tweets, grab them, and then they have a machine learning algorithm that is slowly learning which of those tweets actually have to do with food poisoning and which of them don't; and that's being aided by some health workers who are going through these tweets. And then they're actually following up with those people who do have food poisoning and figuring out where they ate and trying to go to those restaurants and do some surprise inspections. So they're trying to use the data on Twitter that people are putting out there voluntarily about vomiting or something after they ate Chinese food, they're using that data and trying to use it for the public good, I would argue.
Denise: So this is called Food-borne Chicago, the project, and you write that other cities are interested in doing this, too, and that this may be just the beginning. Can you see this — well, first of all, that algorithm that they do had better be pretty darn sophisticated because one of the problems in, like you said, correlating data and trying to draw conclusions based on it is that sometimes you look at something and you think, Well, this has to do with what it's talking about; but, humans being humans, that's not always the case. So I'm real curious about how they're winnowing these tweets and deciding, this is cause to actually go investigate a restaurant. Do you have any more information about that?
Lindsey: Well, when I talked to them, they said that they had a lot of problems at the beginning with people going to universities, or, like, health officials going to universities or other places and speaking about food poisoning instead of actually having food poisoning.
Lindsey: So I think that a lot of that is the language choices that people are using and the emoticons or whatever. If you have a happy face emoticon with your food poisoning tweet, you probably don't have food poisoning. (Laughs) I would hope so.
Lindsey: It's not a happy thing. And New York is doing this, too, some with Yelp, where they're going through and looking for the those "food poisoning" on a review of a restaurant. And I would say that in that arena, on Yelp, for a restaurant, it's probably easier to figure out which ones are actually food poisoning as opposed to — I don't even know why you'd be using the word "food poisoning" if it wasn't food poisoning on a restaurant review.
Denise: Yeah. You would think that in the context of a review, that would certainly have something to do with a complaint someone was lodging. But on Twitter, who knows why people post what they post to Twitter or Facebook? They could be making a comparison or an exaggeration that wasn't actually based in fact. Greg, you'll be happy to know that the code for Food-borne Chicago is available on GetHub and is open-source. So for other cities who are interested in finding out when people are throwing up on Twitter, they can go right ahead and do it. (Laughs)
Greg: Well, I think that Lindsey's remarks make me want to raise just a computer science point; it's not a legal point. All this data and the increasing amounts of "big data" we're collecting in so many places across society and business, there's really a need for greater natural language processing and figuring out what people are saying on Twitter and whether it really means they got food sickness or not. It's very difficult as computers struggle with interpreting those little bits of language that come out in a tweet; and it'll get better. I think the comp sci — the computer science — will get better at doing that over time; but there's a similar kind of an issue in health care as health care aggregates lots of big data. Having that data be more useful means that it has to be increasingly better described in what are called medical vocabularies, kind of specific taxonomies of labels to apply to conditions. And making the data more uniform, either through medical vocabularies or better natural language processing in these health care systems, is a part of what I think of when I think about next-generation systems that will really do a better job of helping health care providers to improve health outcomes and understanding trends in what might be happening in a population of health.
Denise: Yeah, absolutely. I think we have a long way to go in being able to make sense of what information people put out about themselves, either passively or intentionally. Particularly intentionally, though, because if you don't know the context and you don't have a human brain trying to tell you what the context is, you're going to have mistakes and errors. I'm going to go ahead and put our first MCLE pass phrase into this episode of This Week in Law. We put these in in case you are listening to the show for continuing legal or other professional education credit. Some of the oversight boards that ask people to continue their legal or other professional education would like to know that you actually watched or listened to the show; so we put these phrases in so that you can demonstrate that you did. So our first one is going to be "bad taco," based on the story that we've been discussing about Chicago. (Laughs)
And I guess now would be a good time to throw into our discussion something that Jonathan sent my way and I hadn't seen before. Presumably, Lindsey, you have. This guy's name is Tyler Vigen [pronounced with long I], or Tyler Vigen [pronounced like "vegan"]; and he has a delightful website that is called Spurious Correlations, where he takes some statistics and puts them side by side on a graph and tries to show how drawing a correlation between these two things is just ludicrous even though you might be tempted to do so because the rate at which something has increased or decreased correlates so precisely with something else. And some of his examples are U.S. spending on science, space, and technology and its strange correlation with suicides by hanging, strangulation, and suffocation. Jonathan, since you put this my way and said it made you chuckle, do you have any other favorites?
Jonathan: Sure. And actually, I came across this site because I have an engineering degree from the University of Virginia. And I never worked as an engineer, but that was my degree before I went on to law school. And so I find that a number of lawyers are math deficient or afraid of math, and I often end up in discussions with lawyers on cases and outside of cases where they believe that correlation equals causation. And then I came across the site because it has some great examples of situations that clearly are not caused by one another but are correlated. For instance, my favorite today is that the per capita consumption of cheese in the United States is highly correlated with the number of people who died by becoming tangled in their bed sheets.
Jonathan: And the correlation is at approximately 0.95. So that's a very high degree of correlation; but certainly, I don't believe anybody really believes that eating cheese causes you to become entangled in your bed sheets and die.
Denise: Right. And Tyler must be fascinated with that per capita consumption of mozzarella cheese stat because he also correlated with people who have been awarded their civil engineering doctorate. So presumably, that happened before they died entangled in their bed sheets. (Laughs) So it's kind of fun. Does this point out anything that we can draw a lesson from, Lindsey?
Lindsey: I think that it's just that there's a lot of misinformation about data out there; and largely, people don't understand the difference between correlation and causation, and it's an important distinction. I mean, my favorite example is usually, when I wake up on a weekend, the sun is out; so the sun being out correlates with me waking up on a weekend, but that doesn't necessarily mean that me waking up makes the sun rise, even though that would be great. There was another one that I saw, not on this website but on another website, that had the percentage of women in an undergraduate major with the average IQ of people in that major. So as more women are in the major, the IQ goes down. So it's correlated. (Laughs) The amount of women is not causing the average IQ of the major to go down.
Denise: And was that because, on the whole, women have a lower IQ than men? (Laughs)
Lindsey: No. If you actually look, that's equal. Men and women's IQs are pretty equal.
Lindsey: The difference was that it was caused by, I think — I don't want to say definitively — but I think it was caused by the fact that there's a lot less women in STEM majors, and the IQ is actually drawn off of GRE scores. So if you're in a STEM major, you probably have a way higher quantitative GRE score. Although the qualitative GRE score is the writing portion of the GRE, it's pretty much equal across the board. So as there was less women because it was a STEM field and there's a lot less women in STEM, unfortunately — a lot less women in engineering computer science — the GRE scores were going up and the amount of women were going down.
Denise: I see.
Lindsey: So it was just this weird correlation that didn't have anything to do with how smart women are. (Laughs)
Denise: (Laughs) Good. Good to hear.
We've been trying to understand big data. Let's try, as we are coming up on an election next month, to once again — it seems like we try and grapple with this every time there's a major election — try and understand why the heck we can't vote online. (Laughs) And Jonathan, why don't we let you try and explain to us. I just filled out my early written ballot here in California, and my son got a huge kick out of watching me bubble in the squares with a black pen, and he thinks it's the most low-tech crazy thing he's ever seen in his life. He's never seen an actual voting booth, which actually, in our neck of the woods, I think, still uses the punch ballot. So he'd probably be delighted by that, too. Why, Jonathan, can't we vote online yet?
Jonathan: Well, I think the problem comes from — there's two parts of the problem, really, and one is a data privacy problem; and one is a data security issue. And the problem really stems from the fact that we have gotten used to engaging in E-commerce transactions and believe them to be safe; but they are not perfectly safe. And we see examples of that on a fairly regular basis where information is either intercepted or information is released in an unauthorized way. So when you have an E-commerce transaction and that occurs, you have a charge on your credit card that you have to challenge; sometimes you end up with an identity theft issue which is very serious. But that does not affect anyone other than the person who was entering their data. In the context of electronic voting, a change — the data security issue in particular can ultimately affect those who didn't vote or those who voted and their data was not affected by the security breach. And so then you get into the issue of the fact that voting requirements in terms of security are going to be very different in terms of framework and standard than the requirements for E-commerce transactions. Now, people are very concerned — obviously, we've been talking about health information, and people are very concerned about their privacy with respect to that; but people are also very concerned about their privacy with respect to the voting booth. And people are very suspicious, particularly in the last year and a half to two years, of the government in terms of how the government is maintaining information. And so providing your information in an electronic form that is identifiable to you in terms of who you vote for is something that I think people are going to be very concerned about. In addition to the issue of the security of that information, whether it could be hacked or released to others; and then, there's the third issue of, how do I know, if I submit my ballot in an electronic fashion, that by the time it gets counted, has it not been changed by some bot or some code developed by some hacker before it actually got counted in terms of the election? And so, in order to maintain the confidence in the election process, I think we're still a few years away from getting to the point where people could vote. But you get proponents suggesting that there are a lot of different things that make voting more difficult than it should be, and one of those is the fact that people can't vote electronically. You have to actually, in many states — in Virginia, for instance — you have to leave your house and go to a voting location and vote there. And obviously, voting online would be much easier; and they always point to the fact that 150, 160 million people vote in the last presidential election were two or three times that vote sometimes on some of these popular talent shows. Well, the fact is that many of those popular talent shows have had voting processes that have been affected by hacking or data security issues or data privacy issues, or just people developing bots to create false votes. So it's an issue that I think we still have some technological limitations in terms of, we cannot, I think, perfectly secure and guarantee that the votes cast will be the votes counted, or maintain people's privacy to the degree that we should with respect to a vote. But even once we get to the place where we have the systems — even once we get to a time where we have the systems in place to do that, creating, essentially, consumer confidence or voter confidence in the process is going to be the next hurdle; and I think it's actually going to be the most significant one.
Denise: Hearkening back to a couple of episodes ago, RaceQ in IRC is commenting that votes could be authenticated by a bitcoin-style block chain; and there's probably something to that. But until we get to that point, Greg, are you — do you find yourself happy or frustrated that we are still in the age of paper ballots?
Greg: Well, paper ballots are eventually hopefully going to go away. I'm a little bit frustrated about it, but I would actually follow on Jonathan's remarks with a comment about voting machines themselves. There's a group of computer scientists who probably for quite a few years now have been trying to advocate that all voting machines, which are supplied by a small number of fairly large companies, that all voting machines should run open-source code, code that is transparent, where someone could see the source code. And the convenience of voting online is one thing; and the reason we don't have that convenience per Jonathan's remarks is, we don't yet have full assurance we can have accountability for the voting. But that's not necessarily something everyone's confident in, even with respect to voting machines, if they're not fully transparent at the most basic level, the most important level, of that technology, which is, what is the code doing inside of them? And again, it shows the benefits of transparent source code under a FOSS model where many eyeballs, lots of people, can take a look at what the code is doing and maybe give third-party certification to the idea of, it handles the votes correctly, collects them correctly, maybe or maybe not does a better job of not being susceptible to malicious software. Open-source software hasn't done as well with that with a couple of examples recently; but I think it's a model that is an important policy perspective for voting both as we continue with voting machines and as we transition online. You might say, if we're going to go online, that should be a platform that's open-source based.
Denise: Yea, absolutely. It would probably help situations like the one that happened to Republic state representative candidate Jim Moynihan in Chicago. Presumably he went to the polls shortly after tweeting about his food poisoning experience lunch. But whether or not he did that, he did go to the polls and try to vote for himself. And there was a touch screen voting mechanism in place there at his polling place. And every time he tried to touch the screen, presumably he was only allowed to cast one vote. But when he did try to touch the screen and vote for himself it cast the vote for his opponent which is something that he complained about. The Cook County Board of Elections came out and said there was a calibration error on the touch screen of the machine and that we have done something about that improper calibration. So certainly that could be problematic and it’s pretty funny that it was an actual candidate who discovered the error. Any thoughts on this, Greg?
Greg: Well I had not seen that news report. But it’s both gives one pause and one entertaining. The pause really goes back to the idea of how do we have the greatest confidence in technology in these voting systems, be they machine-based where people come to them. Or online. And there’s some pretty strong arguments that they increase the confidence in the system if you have transparence, auditable by public actors, approached to the source code.
Denise: Alright, anybody else have any thoughts on electronic voting? Or representative Moynihan’s touch screen experience before we move on?
Lindsey: I think one thing that we also need to point out is that we don’t have universal Wi-Fi still. So we don’t have universal broadband. And that’s also going to be an issue because how are these people that are in rural Idaho going to vote if they need to vote electronically?
Denise: Yea, I think that’s an issue that could be addressed though. We could certainly have a phase-in of using the kinds of voting technologies that we use now and making sure that everyone has access to the voting process while still making steps toward improving that technology. I would hope anyway. Every time I get my early paper ballot here in California, I just have that once again back to the future kind of sensation. One of these days this is going to change. But it’s been many a year and it has not. Jonathan, any thoughts about voting?
Jonathan: Well I think in respect to this particular case that you mentioned, the calibration error is a third type of issue. And that’s a technical error with the voting machine itself and not an alteration of how the data is kept. And the calibration error was with a touch screen so he thought he was touching one part. The machine itself registered his touch in a different location so he voted for his opponent. And I think he recognized in the story and admitted that he should have checked his ballot before submitting it. So it’s a machine error but a shared-user error experience. But I wonder how many users would not have checked at all and probably didn’t know they voted for the wrong person.
Denise: Exactly. This guy was paying attention because he was a candidate. How many others would just log their vote? Alright, let us move on to an interesting development in the world of the social web. So this is a fun story to bring up in the wake of our discussion of correlations and not necessarily drawing conclusions based on causation due to correlation. However I think this one falls on the side of yes, we can see there is causation here. And this is a story out of the UK that is reporting that there has been a 23% rise in the number of reported defamation cases over the past year. Up from 70 to 86% because these cases, well it says it’s partly due to a sharp rise in claims brought over defamatory material published through social media and websites. So the more that people are out there posting about their bad taco and blaming the restaurant for their food poisoning experience, the more that people are going to find themselves held accountable for what they’ve posted if there is a defamation claim that can be brought as a result. And the UK appears to be experiencing that kind of increase. Lindsey, what do you think of this stat?
Lindsey: I think that the percent increase is an interesting number but we also need to put it into context to how many people there are in the United Kingdom. And a number under 100 is so very small.
Denise: What do you think, Jonathan? This just seems like a logical development as there’s more and more data, there are more and more opportunities to take something and turn it into a lawsuit.
Jonathan: I think there is certainly a cause and effect relationship between the increase in lawsuits over defamation and the increase of those comments online. The important thing I think to note is that that’s unlikely to happen in the United States because we have a very different legal framework with respect to comments online. For instance, section 230 of the Communications Decency Act of 1996 provides a fairly broad immunity to website operators that publish those comments as long as those comments were essentially provided by third-parties. So as long as the website operator is not preparing the comments, they can’t be held liable for defamation. It’s the individual commenter that would be liable for defamation if it’s a false and damaging remark. And it’s unlikely to result in an increase in lawsuits in the United States because those individual commenters often don’t have any money from which to pay a defamation judgment. Since you can’t go after the website operator which would probably be the deep pocket in that relationship, those lawsuits don’t get brought as often as they would in other places where they don’t have section 230 immunity. The other issue and I get these cases a fair amount because I do a lot of internet work, where companies come to me and say we have something negative that’s been said about us online. Can you get those comments taken down? Or can we sue the people who made the comments? Or can we sue the website that published them? And the lighter answer almost always is no. The probably with bringing those issues is that often times businesses think that everybody reads everything on the internet and just because it’s on the internet it reaches millions and millions of people just because it could potentially reach hundreds of millions of people. And that’s simply not the case. There are some instances where you’re shouting or make a comment on the internet and it’s like shouting in an empty forest. There’s really nobody to hear it or only a handful of people who hear it doesn’t really affect the business. And we always advise those businesses not to bring suit based on comments made on the internet unless they can show there is a real economic damage that resulted from the comment. And the other reason for that is that often times you fall right into the Streisand effect by raising the issue and filing suit on the issue, you actually draw more attention to the comment that would have been provided otherwise. The Streisand effect of course, it comes back to 2003 when Barbara Streisand found there was a picture of her Malibu home published on the web. So she filed suit to get it taken down essentially and filed suit for an invasion of privacy. As a result of her lawsuit, prior to the lawsuit, six people had visited that site and had seen the photo. After that lawsuit, 420,000 people in the month following the filing of the lawsuit visited the site to see the photo. By raising the issue and trying to suppress it, she actually drew more attention to it. That’s what we often caution our clients not to do, that you should only bring those claims when it’s clearly causing significant economic harm. Because what you’re likely to do is hurt yourself.
Denise: Yea, there are a bunch of interesting things in what you just said. One of them I think would apply to if you did decide to proceed with your defamation lawsuit. And you got around to the point of showing that defamation had occurred and you were trying to quantify the damage and have damages awarded. It would seem like there would be a real good defense to a claim for high damages by saying, look there’s just so much data out there. And so much noise that it’s impossible unless you can show me quantifiable reduction in business that is not just correlated to this happening. That you can demonstrate the causation, then just the fact that something has been published online shouldn’t necessarily support a high damage aware. Would you agree that we can see that play out in some of these cases?
Jonathan: Absolutely. We’re inundated with so much information about businesses that’s published by people online. And I think to a certain extent people who rarely view information online have a healthy distrust for some of it and take it with a grain of salt. So I think you can certainly, unless the comments are consistent negative and come across multiple platforms from what appears to be multiple different sources. I think people generally disregard them. I know that if you look on any of the popular retail sites reviews of products, no one takes them seriously if it’s just sparse negative comments by people who seem to be related or seem to have the same issue. And it seems to be a rare issue with the product. It’s only instances which the complaint is consistent and it comes from multiple sources, and is fairly severe and negative.
Denise: Greg, with your law professor hat on, any thoughts about rising defamation lawsuits in the UK?
Greg: Well I would say the matter of the legal analysis. I would not bet or prove upon Jonathan’s terrific summation. I would make two points though: one is the nine years I worked after undergrad before law school, part of my role in these enterprise software companies was doing marketing and public relations. And I think amplifying Jonathan’s point that companies are still trying to figure out best practices, smart ways to engage with and respond to social media. And I teach law students and I hope I don’t give them the idea that the solution to every business problem is a lawsuit. Often, that’s the worst idea. So I’m aware of some technology companies, instead of filing suit, things they think may be defamatory, they instead have programs that go in and engage with their own representatives identified as a member of that company. And kind of engage with those social media communities. Social media outreach as a way to get into the conversation where people might be saying things that are negative to your business interests seems to me to be a better overall business process than filing lawsuits.
Denise: Yep, lawsuits generally don’t get anyone where they need to go. Aside from a whole lot of expense, I’m not saying there aren’t situations where they’re not the only solution and the best solution. But those situations I think should be the exception and not the rule. Well, we are far enough away from talking about concrete cases of food poisoning that I think we should take a break. And thank our sponsor for this episode of This Week in Law, which is Nature Box. Nature Box is giving you a chance right now to get a complimentary trial box of their most popular snacks and pay just $2 for shipping. So what you’re going to do is take that candy bar, potato chips, all that junk food that you know you like to snack on all day, and instead do what I do. Get delicious, wholesome snacks at naturebox.com. Nature Box has hundreds of delicious snacks. I don’t feel guilty about eating them. I don’t feel guilty about feeding them to my family because they’re better for us. They’ve got zero artificial flavors, colors, or sweeteners. Zero grams of Trans fats and zero high fructose corn syrup. That’s saying a lot. I challenge you to go to your pantry right now and find things in there that can make all of those claims. Zero artificial flavors, colors, and sweeteners. Zero Trans fats and zero high fructose corn syrup. It’s hard. But it’s easy when you’ve got Nature Box. You’ll even find snacks with no added sugar and without gluten. So in the afternoon when you’re hungry, do what I do. Grab apple cinnamon crave from Nature Box or sriracha-roasted cashews or cranberry macaroon granola. Or I can’t even give you all the examples because there are hundreds of yummy, little, delectable nuggets that can come your way. And you just have to pick out what tastes are best for you. And Nature Box will take it from there. They’re so good and they’re so much better for you than the other snack options out there. You really have to try them. To do so, you can start a trial and get a complimentary sample box at naturebox.com/twit. That’s complimentary; that means they’re just going to send it to you and you get to enjoy these delicious snacks. So stay full, stay strong, and start snacking smarter. Go to naturebox.com/twit. Thank you so much Nature Box for your support of This Week in Law. Alright, Lindsey, I wanted to go over with you just real quick the round-up, the world of data this week that you did last Friday. And then I guess you do every Friday at US News and World Report. Much like your newsletter, although your newsletter focuses on ups and downs, just quick interesting hits from the data out there. What in particular last week was the most interesting you think you wrote about here?
Lindsey: I would say probably the Ebola data. Just because there is so much on it and it’s just taking off. And then also the wearables are very interesting. I link to the cancer story that we’ve already talked about and also that video that you see right there about what Microsoft thinks the future is going to be. And I think maybe 2030 or 2040; that video is fantastic. And there’s another video as well where it’s just the internet of things and everything is connected and you’re getting information from all these surfaces. It’s an interesting thing to think about.
Denise: Yea, absolutely. You have a Facebook group called Futurology. Tell us about that.
Lindsey: So anyone can join in it. It’s just a place to discuss the future and how we can either avoid the bad things that people are predicting in the future. For example, data insecurity; how we can avoid those and bring upon the good things about people predicting about the future. For example, innovations in health and innovations in education.
Denise: Very cool. As long as we’re sort of covering random odds and ends here, this caught my eye as I was prepping for the show. Mostly because Greg is in Houston, and it’s another little data point where young college graduates are choosing to live. And apparently, let’s see we’ve got Denver, San Diego, Nashville, Salt Lake City, Portland, Oregon, and Texas is high on the list. So are you seeing a lot of youngsters moving into your neighborhood, Greg?
Greg: Well not specifically into my neighborhood. But I think we’re very fortunate in Texas; just in the last 5-10 years the opportunities for jobs, the economy has remained pretty good and probably stronger on averages compared to other parts of the country that has had some difficulties. So Texas has four great metropolitan areas: Houston, Dallas-Ft. Worth, Austin, and San Antonio. And those four areas are all relatively close to each other in the southeastern part of the state. A four-hour drive at most between any of those cities. And really all of those four areas have really good drivers behind their economy and job prospects particularly in technology. Job prospects have been really good. The city of Houston has terrific technology production; it’s often said Houston is the energy capital of the world. But I think of it as the energy-technology capital of the world because so much of the technology that’s produced the revolution recently in bringing us back to potential energy independence derives from Houston-based companies and the great innovation that’s going on here.
Denise: Sadly, Detroit is down at the bottom of the bar graph that is included in this New York Times piece, with a minus 10% in change of college graduates age 25-34 from 2000-2012. So the leaving of Detroit as opposed to going anywhere else. Lindsey, any though on this little data point?
Lindsey: I think that just we’re seeing a lot of changes with the housing market, with millennials that are also correlated with this change. For example, millennials are choosing to rent over buy. We’re also seeing a lot of correlations with the car market; that millennials are choosing not to own cars. And I think that just caters a lot to these smaller cities that have a lot cheaper rent where you don’t need a car. And that’s where they’re choosing to move as opposed to these more expensive cities that kind of have been long-draws for young people like Washington D.C., New York, San Francisco. The rents are just sky-rocketing there for rented apartments. So they’re looking at other places. Also the technology companies and other companies that attract young grads are moving out to these cities. For example Dropbox has a location in Texas now.
Denise: It would be interesting to overlay on this graph something related to the ease and access to alternative forms of transportation. Alternatives to owning your own car, to see how high places like Houston, Austin, Nashville, and Denver rank in that as well. Whether it’s Uber penetration or some sort of car-share availability or other things. Because I think you’re absolutely right that that would be a very strong draw. Owning a car is definitely something that seems to be less attractive than it used to be. Are you seeing numbers on that, Lindsey?
Lindsey: I don’t have any in front of me but there was a recent article in the New York Times that talked about this. There are numbers; I can post them in the chat room.
Denise: That would be awesome. Okay let’s move on to talk about patent law exceptionalism and the judicial process. The story obviously related to patents. So Greg, we have sometimes talked on this show about cyber-exceptionalism and how things shouldn’t be treated differently simply because they happen in an online context. So tell us about patent law exceptionalism. What is that exactly?
Greg: The blog that I wrote is about a specific case which I can talk about in a moment if we want. But part of the point of the blog was to say we mostly have what I would call a unitary patent system. We have mostly the same patent law whether we’re talking about chemical technology, software technology, or drugs, or other technologies. There are some exceptions to that but we have a unitary patent law for all types of technology. And whether that’s good or bad, or your view on that, kind of depends on higher-level policy perspective. Because at a base level, we have the patent system to try to promote innovation, promote the generation of new inventions. And we’ve had the patent system for over 200 years in this country. And most countries in the world that have produced and manufactured technology. So the blog posts about this specific Supreme Court case that was argued last week; the blog post is looking at a different type of exceptionalism which is the judicial process. The way judges might think about both the law and the facts of the case, specifically a patent infringement case about a generic drug versus a quote-unquote pioneer drug. And part of the points in the piece is to say maybe patent law, if it’s going to be unitary to technologies should also be not so exceptional in trying to have different ways of looking at judicial process and the procedure of how parties litigate patent infringement cases all the way up the food chain if you will. These cases start at a federal district court and are usually appealed to a specific Pellet court. And a very small number of them end up in front of the Supreme Court.
Denise: Got it. So the argument happened last week. It’s always fun to try and arm-chair-quarterback a Supreme Court oral argument. Are you willing to do that? Do you have any thought about how this case might go based on the argument? And why it’s an important one?
Greg: Well before making it kind of a weasely prediction at best, let me just set the stage a little bit. This is a drug company, Teva that has a number of patents on a very important multiple sclerosis drug. And the patents were challenged by a generic drug company, challenged in a particular way with some special process Congress put in place to let generic drug companies have a chance to litigate before the expiration of the patent. Because what a generic drug company doesn’t want to do is they don’t want to make the drug and start selling it. They have to get FDA approval to do that. But if they would make the drug and start selling it, because of the value of pharmaceutical products, they could engender terrific infringement liabilities. So we have some ways for these issues to be litigated before the generic drug company actually goes into the process of making and selling the pill. And that’s what happened in this case and the federal district court judge found Teva’s patent to be valid. Every time a patent is subject to an infringement lawsuit, it has the potential to be invalidated. There is various legal requirements you have to meet to have a patent. Those are all subject to challenge. They’re at risk. So sue on your patent is to put our patent at risk to be invalidated. But that did not happen. Teva won at the district court level. The key patent that survived to the Supreme Court level survived because it’s not yet expired. The key patent was one the district court found to be valid, or at least not invalid. And so then the Pellet court, which in this case is in Washington D.C. It’s the United States Court of Appeals for the Federal Circuit; I actually personally had the great opportunity to court there from 2001 to 2002. So this is a court where I worked for a particular judge on the court. And the Pellet court said well we think that this particular patent, the claims and the patent are invalid due to something called indefiniteness. And that’s what was argued before the Supreme Court. The Supreme Court took this case to try and figure out whether it, the Supreme Court thinks the Pellet court called the federal circuit was the Pellet court is thinking about how to interpret the claims of a patent in the right way. And the issue is whether when a Pellet court thinks about interpreting the claims of a patent is that something where if there’s underlying factual determinations for the district court as a judge had to find some facts; should there be some deference given to those facts. And it’s really almost a philosophical debate. Do we want to interpret a patent claim as something that’s purely a matter of law, like interpreting a contract, or is it something where we think there’s some quote unquote facts involved? In which case, the relationship between the Pellet court and the district court, there does need to be some deference. I think there’s, to go to my weasely prediction now, a pretty strong chance the Supreme Court may want to alter how the federal circuit thinks about the process of interpreting a patent claim. Where there may need to be a recognition of subsidiary or underlying factual issues that might get some deference from the Pellet court. Or the Pellet court will have to give some deference to the district court. And what this does is changes a little bit or potentially quite a lot the quote unquote power between the Pellet court and the district court. We were talking earlier, Denise, about litigation and expensive litigation. The patent system has really been very much in the eyes of Congress the last 5-8 years. And the systems important to technology development. There’s also been major statutory revision to the patent system 2-3 years ago, Congress has done some major things to change it. And so the patent system is really a big focus of attention. These patent infringement litigations have gone up dramatically in terms of the number of them filed in the last three or four years. So it’s got a lot of attention. And another thing that is worthy of note for the audience is that the Supreme Court, the last couple of years has taken an astonishing number of these patent cases for it to review. So as the patent system becomes more important in both generally and for technology development, as it becomes more important in the eyes of Congress, the Supreme Court has taken a tremendous interest in patent law as well.
Denise: Yea, and it’s not something that you generally think about in the world of patent reform. How a court is going to handle a patent case that comes before it. But if in the wake of this Supreme Court case when it gets decided, a Pellet courts have to give more deference to trial courts then what you were saying, Greg, about litigation getting expensive or being discouraged comes very much into focus. Because it’s going to be more of a challenge to undertake an appeal in a trial court’s patent decision one way or the other if the Pellet court has to give deference to that decision. That’s not to say it couldn’t be set aside but it has… there are different kinds of Pellet review. And one is dinovo. Where a Pellet court can just toss out what happened before and look at everything with brand new eyes. And that wouldn’t be the case it sounds like if this case goes that particular way, correct?
Greg: Yes, if the Supreme Court changes a standard and makes it so that the public circuit has to give some deference to facts so to speak, facts that are part of claim construction, I think it will alter how patent litigation happens. These are very expensive lawsuits. Parties might spend $5-8M a side for a case. One problem we’ve seen in the last decade is if there’s no deference, the federal circuit can determine claim meaning without any deference. You don’t necessarily know until the very end of a case, after an appeal is over, what claim terms meant. And that can really undo a lot of the case. As difficult as this whole patent litigation system is, the sport of kings because it’s so expensive. But maybe we’ll eliminate that uncertainty if there’s some deference. But on the other hand it may focus the energy of the patent litigators, a very sophisticated group of lawyers that do patent litigation. They really know what they’re doing and they can take opportunities to use a change in procedure, or a change in a nuance of how we think about fact versus law for claims. And maybe focus energy at the trial court level and people will have the goal that you just said, which is to have that claim construction be less upsettable on appeal. Particularly if they win at the district court level.
Denise: Right. Alright, well we’re going to go ahead and have some synergy from our prior MCLE passphrase. And make our second one bad patent. Moving on, we’ve got several resources for you this week and a tip. And as long as we’re talking about the Supreme Court, and we were talking very seriously about the Supreme Court and very cerebrally about what goes on there in the import of its decisions, I see no reason not to go from the sublime to the ridiculous. And I like for you if you haven’t seen it yet, the fact that the Verge took something that was put out there by John Oliver. John Oliver was making a statement concerning the fact that all Supreme Court oral arguments happen behind closed doors are not made available in any sort of broadcast form. The audio comes out after the argument, but you never have a video view of oral arguments as they are happening. Well John Oliver thought that was just too plain bad. And put together an all-animal Supreme Court clip that he did with the hope that news outfits or anyone else would come along and overlay some oral argument on top of these mostly dogs. We have dogs as the nine justices, a duck as an assistant, and a pecking chicken as the stenographer. So the Verge went along and said the areole oral argument seems to be a good one to put on top of this. And that’s exactly what they did so it’s quite educational because you can listen to some very critical parts of the areole oral argument. I think we’ve got a bit of it playing here in a moment. There we go, we’ve got the doggy justices and I’ll quiet down so you can…
When they sign up, they’re system is completely empty. There’s no content being provided. There’s equipment that’s being provided. So the notion that they have in the reply over that we’re a content provider, would mean that everybody who provides an antenna or a DVR is somehow a content provider. They give the subscriber a menu and says you have these choices and they’re providing these choices…
Denise: We’ll let you listen and watch this at your leisure. It is definitely worth going through for anyone who like all of us involved in TWiL, we’re very anxious to see the outcome of the areole case and paid close attention to the oral argument. This definitely brings it to life in a whole new way. Our second resource is from Jonathan who has been doing a great series at his ecommerce blog on the seven key elements of a terms of service. And we’ve got the link for you, on several posts. Everything we’ve talked about today including this is at delicious.com/thisweekinlaw/280. Jonathan, without trying to go into all your lengthy posts, first I’ll just thank you. It’s a wonderful resource. Why don’t you tell us why you felt like it would be important to outline what are the seven key elements of a terms of service? Do you feel like people miss these a lot?
Lindsey: It’s been on my radar a little. We actually have a security writer who writes more about that: Tom Reisand. So I would encourage anyone who’s interested to check that out. But I think what’s been a little more on my radar is how these companies respond to data breaches and the type of services they offer once your identity is stolen, and that kind of thing. I was actually one of the people who got their information stolen from the Target breach. So I definitely experienced it first-hand and they offer you credit monitoring. So thinking about what they should offer at that point is interesting. And what kind of services they offer.
Denise: And what were your conclusions? Have you written about that experience?
Lindsey: I have not. Maybe I should.
Denise: It would be interesting. Tell us now, were you satisfied with the response? Do you feel you were put back into a situation where your data had not been leaked?
Lindsey: No, I had to cancel my credit cards and I did sign up for the identity monitoring service but it hasn’t paid or anything. So I’m not sure. Also I think that it’s only for a specific time, maybe like a year. And your identity can, if they have your information, can be used at any time. So I would say that’s one critique.
Denise: Alright well, here we go, we’ve given you an article idea. We’ll look for that. And unless anybody else has anything else they feel like they really want to get to today that we haven’t got to, I think we will wrap this show. Going, going, gone. Greg, anything else?
Greg: No. Thank you very much. I appreciate the opportunity.
Denise: Yes. It’s been really fun getting to know you and having you on the show. You can find Greg at gregvedder.org in addition to in person at the University of Houston’s law school. Anything going on at the law school or in general, Greg that you think people should be aware of? Any final thoughts you want to leave our listeners with?
Greg: The University of Houston and the Law Center, it’s a beautiful campus. We’re having lovely 80 degree weather down here, so we’re in the perfect weather time for Houston right now. And it’s always fun to be here in the fall. A lot of things going on on campus. So if you’re in Houston and want to know what’s going on, let me know!
Denise: Great, thanks so much, Greg. And wonderful to see you again, Jonathan.
Jonathan: It was great to be back, Denise. Thanks for having me.
Denise: Any news from Virginia that you want to share with folks or anything you’re involved in that you’d like to plug?
Jonathan: Well most of the things I’m involved in I can’t talk about, Denise. Since I’m in private practice. No, things are going like they always go.
Denise: Good. I’m glad they’re going well and I’m glad that you could join us today. And Lindsey, it’s been a kick talking to you. I’ve really enjoyed your writing and really appreciate your taking the time to join us today. How about you? We’ve already talked about your Facebook group, your US News writings, your newsletter. Have I left anything out?
Lindsey: Well I did think of one thing that people might think is interesting. If you Google fantasy Scotus, I’ve written recently about a fantasy league where they’re trying to get people to predict the Supreme Court decisions from this term. And the winner gets $10,000. So you may want to look that up.
Denise: Yes! We talked about that on the show. I thought that was so fascinating. In fact I think that’s how I found you. I found that story and when I think she would be a fascinating guest. So thank you for alerting us to that. We had an online gambling oriented show; it was either last week or the week before. And it talked a lot about that particular aspect of trying to arm-chair-quarterback the Supreme Court. So thank you for highlighting that and for joining us today.
Lindsey: Thank you for having me.
Denise: Alright folks, if you’ve been joining us live, we really appreciate your taking the time to do that. We record this show every Friday at 11:00 Pacific time, 1800 UTC. But don’t worry about it if that doesn’t jive with your schedule. We’re available on demand too. Of course you can go to twit.tv/twil and our archive of shows is there. You can find us on YouTube. You can find us on iTunes. You can find us on Roku. All manner of places, whatever makes it easy for you. You can listen to us, you can watch us. Just again, however it works best for you. We love it when you join us live and you jump on in the IRC. Always so great to have an audience there. Thank you everyone in IRC for joining us today. Once again, between the shows, you can reach out to us. Give us suggestions for great guests you’d like to see or topics you’d like to see us discuss. Or follow-ups on the topics we’ve already discussed. You can email me; I’m email@example.com. You can find our Facebook page; we’re at facebook.com/thisweekinlaw. And we have a Google Plus presence as well; you can find us over there. Those are great places to write more at length; follow-up with us, and have a discussion with other members of the audience. And me too; I check those regularly. Or I also check my Twitter feed in a compulsive manner, as we all do these days. I’m dhowell over there so if you ping me there, that’s how I’m sure to find out about something that might otherwise have missed my radar. So I definitely appreciate you keeping me in the loop of things that you think are important and I know it’s been important to me to have you join us here today and every week on This Week in Law. We will see you next week for our next episode! Thanks so much, and take care.