Witnesses in the United States may choose to exercise their right to “plead the Fifth,” or refuse to answer a question because the response could provide self incriminating evidence of an illegal act. But how strong is this right if a prosecutor is already aware of where a witness was, what they saw, what they heard, and in some ways even what they were thinking at any given time on any given day? I do not refer to torture, truth serums, or the recent accomplishment of Berkeley scientists in creating visual pictures from brain waves. Rather, I refer to smart phones and the growing field of “reality mining” or “mobile phone sensing.”

The Progression of Mobile Phone Technology

Mobile phones had a humble beginning in 1973. Unlike modern iterations, the first mobile phone was bulky, difficult to transport, and had but one function; it allowed you to make a phone call. Technology has rapidly progressed from 1973, and today’s smart phones come rich with functionality through the use of embedded sensors. For example, the Apple iPhone comes equipped with an accelerometer, gyroscope, GPS, digital compass, ambient light detection, and dual microphones and cameras. These sensors give the iPhone the ability to speak, listen, locate, give directions, detect movement etc…  The new iPhone4S also responds to natural language queries.

“Mobile phone sensing” makes use of these digital senses to enable smart phones to become even more dynamic. Dartmouth College’s Smartphone Sensing Group
describes it as “turning the everyday smart phone into a cognitive phone by pushing intelligence to the phone and the computing cloud to make inferences about people’s behavior, surroundings and their life patterns.” The practical applications of this field seem enormous:

• Researchers at Dartmouth college describe examples such as 1) using accelerometer data to automatically recognize different activities (e.g., running, walking, standing), 2) combining accelerometer data with location estimates from a phone’s GPS to recognize the mode of transportation such as walking, biking, driving, taking a bus or riding the subway and 3) continuously collecting audio from a phone’s microphone to “classify a diverse set of distinctive sounds associated with a particular context or activity in a person’s life, such as using an automated teller machine, being in a particular coffee shop, having a conversation, listening to music, making coffee, and driving.” Amongst a laundry list of other applications, this data can be translated into suggestions for how to avoid traffic, increase social networking, and for personal health care by tracking your physical activity or the number of times you’ve visited your doctor’s office.
• An Oregon based technology company, Digimarc, has developed an application that uses a mobile phone’s camera and microphone to “detect digital watermarks encoded into magazines, newspapers, packaging and other printed materials, as well as identify songs in music and read QR codes.” Mobile phones can then recognize what it is that a user is looking at or listening to and make personalized suggestions.
• Sandy Pentland (a leader in the field of mobile phone sensing and director of MIT’s Human Dynamics Laboratory) predicts that mobile phone sensing may be able to give clues to diagnosing depression by detecting changes in speech patterns, or using a phones motion sensors to reveal slight changes in gait, potentially acting as an early indicator of ailments such as Parkinson’s disease.

Smart Phone as a Witness

Yet these examples may not be the limit to what mobile phone sensing may be used for in the future. It seems possible that future criminal (or civil) trials may not need live witnesses so long as the sensor data from an accused individual’s smart phone was admissible as evidence. Before a word was said, it could be known where the individual was, who they were with, what they were looking at, listening to, talking about etc… Not just the day that a crime was committed, but days, weeks, or months in the past. These seem to be the personal experiences that individuals were traditionally allowed to protect to avoid self-incrimination.

Conclusion

The Fifth Amendment is concerned with what an individual must be witness to after a crime is committed, rather than before. Ex ante choices such as planning to commit a crime do not bar a person’s right to avoid self-incrimination. Thus a person who purchases a smart phone in order to utilize the advantages of mobile phone sensing (or for whatever other reason) should not diminish their rights under the Constitution. When we look ex post, the experiences that a phone interprets are the users, the senses that it has are digital extensions of the individuals. Those experiences and senses is what the Fifth Amendment is concerned with and should not be allowed as evidence of a person’s guilt.

When probed for the reasoning behind the change, Sony responded that the updated terms were “designed to benefit both the consumer and the company by ensuring that there is adequate time and procedures to resolve disputes.”  The gaming community seems unconvinced.  “Seems to me Sony is spontaneously forcing users to renegotiate their use contract in a decidedly one-sided fashion,” wrote one Slashdot contributor.  “With this new clause, Sony can make a quick buck off its customers without having to worry about ramifications,” another poster lamented.

But is this really the case?  Law and economics principles teach that arbitration clauses can actually be efficient for consumers: if given the choice between arbitrating or filing suit over a defective product (say, for example, an iPod), most consumers would choose arbitration.  Individual suits are expensive and take a long time; most consumers would rather recover quickly through an inexpensive procedure and move on.  Consumers may also prefer products with binding arbitration clauses because they cost less, as manufacturers often build litigation risk into their pricing.

However, it’s unclear whether these principles apply to Sony’s Playstation Network.  Rather than an off-the-shelf consumer product, the Playstation Network is a complex service with a wide range of potential consumer grievances.  Some, such as small service interruptions, could be worth very little to a consumer, while others, such as a massive leakage of sensitive financial data, could be worth a lot.  In these latter cases, consumers might be less willing to settle for an arbitration proceeding and would want the option to sue.  Moreover, because potential grievances are more diverse, it would be harder to design “efficient, streamlined [arbitration] procedures tailored to the type of dispute,” a key advantage of arbitration noted by the Supreme Court in AT&T Mobility v. Concepcion.  Given this, Sony’s new agreement may be more one-sided than its comments let on.

So what if consumers don’t think arbitration is the right answer to potential Playstation Network woes?  Sony allows users to opt out of the waiver by submitting a written request within 30 days.  Numerous gaming blogs have posted alerts with detailed instructions for opting out, but it remains to be seen how many people will notice the alerts or care to respond.

• Patent Docs reviews Senator Patrick Leahy’s proposals for patent reform.

• Third Circuit gives “Spam filter ate my filing notice” excuse a second chance, from the Technology & Marketing Blog.

• EFF sues to find out how the government spies on us using social networks; Indiana University students makes a Freedom of Information request to find out much the big telcos charge the government to spy on their networks, says Wired.

• The New York Times opines in favor of the Empire State’s decision to collect sales tax on online purchases from out-of-state retailers delivered in New York.

• Lazy IP enforcement leads to prosecution of the wrong guy, who makes a big deal out of it, says Ars Technica.

• FTC isn’t done with Intel yet, now looking into anticompetitive behavior with regard to Nvidia, reports BusinessWeek.

• Google to end free access to subscription news, blogs Gizmodo.

• And for an international perspective: BioTechBlog reports on IP and the biotech industry in India.

STLR has been ahead of the curve on this front, choosing since our inception to publish only online and in open, documented formats like PDF and HTML. We’re also continuing to improve open access to STLR’s legal scholarship–intiatives we’re working on include formally adopting open access principles and using archival-quality online repositories for all our published works.  We hope more journals follow us in this direction soon.

Attorneys’ Fees in American Courts

Attorneys’ fees are the costs of legal representation. They are usually expressed in one of three ways: 1) as a contingency fee; 2) as a fixed fee or 3) as an hourly billing fee. The standard billing practice for law firms is the hourly rate system, and rates for large law firms can average over $300 per lawyer per hour.

Unless the parties have agreed in advance to a different result, under the default American Rule each party in a lawsuit is responsible for paying its own attorneys’ fees. Certain statutes, however, force the losing party to pay the prevailing party’s attorneys’ fees or else give the judge discretion to order such a payment. For example, under 17 U.S.C. § 505, a judge has the discretion to award attorneys’ fees to the prevailing party in a copyright dispute. In a recent case, Gonzales v. Transfer Technologies Inc., the judge considered the cost of prosecuting copyright infringement and the relatively low statutory damage award, and the judge chose to award attorneys’ fees.

The Andersen Case

In February 2005, the RIAA sued Tanya Andersen, a disabled single mother living in Oregon, for copyright infringement related to online file sharing. Alleging abusive practices, Andersen filed a counter-claim accusing the RIAA of, among other things, electronic trespass, deceptive business practices, invasion of privacy, fraud and negligent misrepresentation. Andersen demanded statutory and punitive damages, as well as attorneys’ fees.

On June 1, 2007, the RIAA filed for dismissal of its case with prejudice, reflecting its belief that the case was non-winnable. To determine whether Andersen can recover attorneys’ fees, the federal district court judge must decide whether the goals of the Copyright Act would be furthered by the award. The federal magistrate wrote the judge a recommendation stating that the RIAA’s suit “lacked prima facie evidence,” that the suit “did not appear justified as a reasonable exploration of the boundaries of copyright law” and that “copyright holders generally, and these plaintiffs especially, should be deterred from prosecuting infringement cases [in a similar manner].” Accordingly, the magistrate recommended awarding Andersen attorneys’ fees. The judge has not yet ruled on this recommendation. (reported at Ars Technica)

Legal and Strategic Implications of Awarding Fees

If legal fees are awarded to Andersen, the RIAA may be forced to rethink its tactics in prosecuting copyright infringers. Until now, the RIAA has relied on a “shotgun approach,” filing nearly three hundred lawsuits per week against alleged downloaders of copyrighted music, often without particularly strong evidence of illegal activity. If the court forces the RIAA to pay Andersen’s legal fees, it could establish a precedent upon which other accused copyright infringers will rely. This may cost hundreds of thousands of dollars per case, and it may prompt the RIAA to abandon the shotgun approach and focus its legal strategy on downloaders who can be more conclusively tied to illegal activity. On the other hand, the RIAA might not be particularly sensitive to these costs and may instead prefer to occasionally pay in order to pressure file traders to stop downloading copyrighted music.

No matter how the RIAA responds, it is certain that a ruling for Anderson would make it more difficult to bully defendants into settling to avoid costly legal fees. Defendants with strong cases may be more willing to go to trial and to stand up to the RIAA if they believe they will recover their legal fees. These recoveries can be quite large – Andersen’s lawyers, for example, estimate their fees to be well over $200,000. Some argue that this would simply force the RIAA to be more careful about whom it sues and to avoid frivolous lawsuits. Others believe that even the RIAA has a right to have its day in court. Therefore, it’s clear that the judge’s decision in the Andersen case may prompt a dramatic change in the way the RIAA approaches copyright infringement cases.

By James Alonso, Marc Friedenberg, Michael Nguyen, Shawn Oakley and Sarah Calvert; originally published at the Columbia Project on Law and Technology blog.