Next year, the Supreme Court’s Daubert decision will turn 20.  The decision, in interpreting Federal Rule of Evidence 702, dramatically changed the landscape of expert witness testimony.  Still, there are many who would turn the clock back to disabling the gatekeeping function.  In past posts, I have identified scholars, such as Erica Beecher-Monas and the late Margaret Berger, who tried to eviscerate judicial gatekeeping.  Recently a student note argued for the complete abandonment of all judicial control of expert witness testimony.  See Note, “Admitting Doubt: A New Standard for Scientific Evidence,” 123 Harv. L. Rev. 2021 (2010)(arguing that courts should admit all relevant evidence).

One advantage that comes from requiring trial courts to serve as gatekeepers is that the expert witnesses’ reasoning is approved or disapproved in an open, transparent, and rational way.  Trial courts subject themselves to public scrutiny in a way that jury decision making does not permit.  The critics of Daubert often engage in a cynical attempt to remove all controls over expert witnesses in order to empower juries to act on their populist passions and prejudices.  When courts misinterpret statistical and scientific evidence, there is some hope of changing subsequent decisions by pointing out their errors.  Jury errors on the other hand, unless they involve determinations of issues for which there were “no evidence,” are immune to institutional criticism or correction.

Despite my whining, not all courts butcher statistical concepts.  There are many astute judges out there who see error and call it error.  Take for instance, the trial judge who was confronted with this typical argument:

“While Giles admits that a p-value of .15 is three times higher than what scientists generally consider statistically significant—that is, a p-value of .05 or lower—she maintains that this ‘‘represents 85% certainty, which meets any conceivable concept of preponderance of the evidence.’’ (Doc. 103 at 16).”

Giles v. Wyeth, Inc., 500 F.Supp. 2d 1048, 1056-57 (S.D.Ill. 2007), aff’d, 556 F.3d 596 (7th Cir. 2009).  Despite having case law cited to it (such as In re Ephedra), the trial court looked to the Reference Manual on Scientific Evidence, a resource that seems to be ignored by many federal judges, and rejected the bogus argument.  Unfortunately, the lawyers who made the bogus argument still are licensed, and at large, to incite the same error in other cases.

This business perhaps would be amenable to an empirical analysis.  An enterprising sociologist of the law could conduct some survey research on the science and math training of the federal judiciary, on whether the federal judges have read chapters of the Reference Manual before deciding cases involving statistics or science, and whether federal judges expressed the need for further education.  This survey evidence could be capped by an analysis of the prevalence of certain kinds of basic errors, such as the transpositional fallacy committed by so many judges (but decisively rejected in the Giles case).  Perhaps such an empirical analysis would advance our understanding whether we need specialty science courts.

One of the reasons that the Reference Manual on Scientific Evidence is worthy of so much critical attention is that the volume has the imprimatur of the Federal Judicial Center, and now the National Academies of Science.  Putting aside the idiosyncratic chapter by the late Professor Berger, the Manual clearly present guidance on many important issues.  To be sure, there are gaps, inconsistencies, and mistakes, but the statistics chapter should be a must-read for federal (and state) judges.

Unfortunately, the Manual has competition from lesser authors whose work obscures, misleads, and confuses important issues.  Consider an article by two would-be expert witnesses, who testify for plaintiffs, and confidently misstate the meaning of a confidence interval:

“Thus, a RR [relative risk] of 1.8 with a confidence interval of 1.3 to 2.9 could very likely represent a true RR of greater than 2.0, and as high as 2.9 in 95 out of 100 repeated trials.”

Richard W. Clapp & David Ozonoff, “Environment and Health: Vital Intersection or Contested Territory?” 30 Am. J. L. & Med. 189, 210 (2004).  This misstatement was then cited and quoted with obvious approval by Professor Beecher-Monas, in her text on scientific evidence.  Erica Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process 60-61 n. 17 (2007).   Beecher-Monas goes on, however, to argue that confidence interval coefficients are not the same as burdens of proof, but then implies that scientific standards of proof are different from the legal preponderance of the evidence.  She provides no citation or support for the higher burden of scientific proof:

“Some commentators have attributed the causation conundrum in the courts to the differing burdens of proof in science and law.²⁸ In law, the civil standard of ‘more probable than not’ is often characterized as a probability greater than 50 percent.²⁹ In science, on the other hand, the most widely used standard is a 95 percent confidence interval (corresponding to a 5 percent level of significance, or p-level).³⁰ Both sound like probabilistic assessment. As a result, the argument goes, civil judges should not exclude scientific testimony that fails scientific validity standards because the civil legal standards are much lower. The transliteration of the ‘more probable than not’ standard of civil factfinding into a quantitative threshold of statistical evidence is misconceived. The legal and scientific standards are fundamentally different. They have different goals and different measures.  Therefore, one cannot justifiably argue that evidence failing to meet the scientific standards nonetheless should be admissible because the scientific standards are too high for preponderance determinations.”

Id. at 65.  This seems to be on the right track, although Beecher-Monas does not state clearly whether she subscribes to the notion that the burdens of proof in science and law differ.  The argument then takes a wrong turn:

“Equating confidence intervals with burdens of persuasion is simply incoherent. The goal of the scientific standard – the 95 percent confidence interval – is to avoid claiming an effect when there is none (i.e., a false positive).³¹“

Id. at 66.   But this is crazy error; confidence intervals are not burdens of persuasion, legal or scientific.  Beecher-Monas is not, however, content to leave this alone:

“Scientists using a 95 percent confidence interval are making a prediction about the results being due to somethingother than chance.”

Id. at 66 (emphasis added).  Other than chance?  Well this implies causality, as well as bias and confounding, but the confidence interval, like the p-value, addresses only random or sampling error.  Beecher-Monas’s error is neither random nor scientific.  Indeed, she perpetuates the same error committed by the Fifth Circuit in a frequently cited Bendectin case, which interpreted the confidence interval as resolving questions of the role of matters “other than chance,” such as bias and confounding.  Brock v. Merrill Dow Pharmaceuticals, Inc., 874 F.2d 307, 311-12 (5th Cir. 1989)(“Fortunately, we do not have to resolve any of the above questions [as to bias and confounding], since the studies presented to us incorporate the possibility of these factors by the use of a confidence interval.”)(emphasis in original).  See, e.g., David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore – A Treatise on Evidence:  Expert Evidence § 12.6.4, at 546 (2d ed. 2011) Michael O. Finkelstein, Basic Concepts of Probability and Statistics in the Law 86-87 (2009)(criticizing the overinterpretation of confidence intervals by the Brock court).

Clapp, Ozonoff, and Beecher-Monas are not alone in offering bad advice to judges who must help resolve statistical issues.  Déirdre Dwyer, a prominent scholar of expert evidence in the United Kingdom, manages to bundle up the transpositional fallacy and a misstatement of the meaning of the confidence interval into one succinct exposition:

“By convention, scientists require a 95 per cent probability that a finding is not due to chance alone. The risk ratio (e.g. ‘2.2’) represents a mean figure. The actual risk has a 95 per cent probability of lying somewhere between upper and lower limits (e.g. 2.2 ±0.3, which equals a risk somewhere between 1.9 and 2.5) (the ‘confidence interval’).”

Déirdre Dwyer, The Judicial Assessment of Expert Evidence 154-55 (Cambridge Univ. Press 2008).

Of course, Clapp, Ozonoff, Beecher-Monas, and Dwyer build upon a long tradition of academics’ giving errant advice to judges on this very issue.  See, e.g., Christopher B. Mueller, “Daubert Asks the Right Questions:  Now Appellate Courts Should Help Find the Right Answers,” 33 Seton Hall L. Rev. 987, 997 (2003)(describing the 95% confidence interval as “the range of outcomes that would be expected to occur by chance no more than five percent of the time”); Arthur H. Bryant &Alexander A. Reinert, “The Legal System’s Use of Epidemiology,” 87 Judicature 12, 19 (2003)(“The confidence interval is intended to provide a range of values within which, at a specified level of certainty, the magnitude of association lies.”) (incorrectly citing the first edition of Rothman & Greenland, Modern Epidemiology 190 (Philadelphia 1998);  John M. Conley & David W. Peterson, “The Science of Gatekeeping: The Federal Judicial Center’s New Reference Manual on Scientific Evidence,” 74 N.C.L.Rev. 1183, 1212 n.172 (1996)(“a 95% confidence interval … means that we can be 95% certain that the true population average lies within that range”).

Who has prevailed?  The statistically correct authors of the statistics chapter of the Reference Manual on Scientific Evidence, or the errant commentators?  It would be good to have some empirical evidence to help evaluate the judiciary’s competence. Here are some cases, many drawn from the Manual‘s discussions, arranged chronologically, before and after the first appearance of the Manual:

Before First Edition of the Reference Manual on Scientific Evidence:

DeLuca v. Merrell Dow Pharms., Inc., 911 F.2d 941, 948 (3d Cir. 1990)(“A 95% confidence interval is constructed with enough width so that one can be confident that it is only 5% likely that the relative risk attained would have occurred if the true parameter, i.e., the actual unknown relationship between the two studied variables, were outside the confidence interval.   If a 95% confidence interval thus contains ’1′, or the null hypothesis, then a researcher cannot say that the results are ‘statistically significant’, that is, that the null hypothesis has been disproved at a .05 level of significance.”)(internal citations omitted)(citing in part, D. Barnes & J. Conley, Statistical Evidence in Litigation § 3.15, at 107 (1986), as defining a CI as “a limit above or below or a range around the sample mean, beyond which the true population is unlikely to fall”).

United States ex rel. Free v. Peters, 806 F. Supp. 705, 713 n.6 (N.D. Ill. 1992) (“A 99% confidence interval, for instance, is an indication that if we repeated our measurement 100 times under identical conditions, 99 times out of 100 the point estimate derived from the repeated experimentation will fall within the initial interval estimate … .”), rev’d in part, 12 F.3d 700 (7th Cir. 1993)

DeLuca v. Merrell Dow Pharms., Inc., 791 F. Supp. 1042, 1046 (D.N.J. 1992)(”A 95% confidence interval means that there is a 95% probability that the ‘true’ relative risk falls within the interval”) , aff’d, 6 F.3d 778 (3d Cir. 1993)

Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1353-54 & n.1 (6th Cir. 1992)(describing a 95% CI of 0.8 to 3.10, to mean that “random repetition of the study should produce, 95 percent of the time, a relative risk somewhere between 0.8 and 3.10″)

Hilao v. Estate of Marcos, 103 F.3d 767, 787 (9th Cir. 1996)(Rymer, J., dissenting and concurring in part).

After the first publication of the Reference Manual on Scientific Evidence:

American Library Ass’n v. United States, 201 F.Supp. 2d 401, 439 & n.11 (E.D.Pa. 2002), rev’d on other grounds, 539 U.S. 194 (2003)

SmithKline Beecham Corp. v. Apotex Corp., 247 F.Supp.2d 1011, 1037-38 (N.D. Ill. 2003)(“the probability that the true value was between 3 percent and 7 percent, that is, within two standard deviations of the mean estimate, would be 95 percent”)(also confusing attained significance probability with posterior probability: “This need not be a fatal concession, since 95 percent (i.e., a 5 percent probability that the sign of the coefficient being tested would be observed in the test even if the true value of the sign was zero) is an  arbitrary measure of statistical significance.  This is especially so when the burden of persuasion on an issue is the undemanding ‘preponderance’ standard, which  requires a confidence of only a mite over 50 percent. So recomputing Niemczyk’s estimates as significant only at the 80 or 85 percent level need not be thought to invalidate his findings.”), aff’d on other grounds, 403 F.3d 1331 (Fed. Cir. 2005)

In re Silicone Gel Breast Implants Prods. Liab. Litig, 318 F.Supp.2d 879, 897 (C.D. Cal. 2004) (interpreting a relative risk of 1.99, in a subgroup of women who had had polyurethane foam covered breast implants, with a 95% CI that ran from 0.5 to 8.0, to mean that “95 out of 100 a study of that type would yield a relative risk somewhere between on 0.5 and 8.0.  This huge margin of error associated with the PUF-specific data (ranging from a potential finding that implants make a woman 50% less likely to develop breast cancer to a potential finding that they make her 800% more likely to develop breast cancer) render those findings meaningless for purposes of proving or disproving general causation in a court of law.”)(emphasis in original)

Ortho–McNeil Pharm., Inc. v. Kali Labs., Inc., 482 F.Supp. 2d 478, 495 (D.N.J.2007)(“Therefore, a 95 percent confidence interval means that if the inventors’ mice experiment was repeated 100 times, roughly 95 percent of results would fall within the 95 percent confidence interval ranges.”)(apparently relying party’s expert witness’s report), aff’d in part, vacated in part, sub nom. Ortho McNeil Pharm., Inc. v. Teva Pharms Indus., Ltd., 344 Fed.Appx. 595 (Fed. Cir. 2009)

Eli Lilly & Co. v. Teva Pharms, USA, 2008 WL 2410420, *24 (S.D.Ind. 2008)(stating incorrectly that “95% percent of the time, the true mean value will be contained within the lower and upper limits of the confidence interval range”)

Benavidez v. City of Irving, 638 F.Supp. 2d 709, 720 (N.D. Tex. 2009)(interpreting a 90% CI to mean that “there is a 90% chance that the range surrounding the point estimate contains the truly accurate value.”)

Estate of George v. Vermont League of Cities and Towns, 993 A.2d 367, 378 n.12 (Vt. 2010)(erroneously describing a confidence interval to be a “range of values within which the results of a study sample would be likely to fall if the study were repeated numerous times”)

Correct Statements

There is no reason for any of these courts to have struggled so with the concept of statistical significance or of the confidence interval.  These concepts are well elucidated in the Reference Manual on Scientific Evidence (RMSE):

“To begin with, ‘confidence’ is a term of art. The confidence level indicates the percentage of the time that intervals from repeated samples would cover the true value. The confidence level does not express the chance that repeated estimates would fall into the confidence interval.91

* * *

According to the frequentist theory of statistics, probability statements cannot be made about population characteristics: Probability statements apply to the behavior of samples. That is why the different term ‘confidence’ is used.”

RMSE 3d at 247 (2011).

Even before the Manual, many capable authors have tried to reach the judiciary to help them learn and apply statistical concepts more confidently.  Professors Michael Finkelstein and Bruce Levin, of the Columbia University’s Law School and Mailman School of Public Health, respectively, have worked hard to educate lawyers and judges in the important concepts of statistical analyses:

“It is the confidence limits PL and PU that are random variables based on the sample data. Thus, a confidence interval (PL, PU ) is a random interval, which may or may not contain the population parameter P. The term ‘confidence’ derives from the fundamental property that, whatever the true value of P, the 95% confidence interval will contain P within its limits 95% of the time, or with 95% probability. This statement is made only with reference to the general property of confidence intervals and not to a probabilistic evaluation of its truth in any particular instance with realized values of PL and PU. “

Michael O. Finkelstein & Bruce Levin, Statistics for Lawyers at 169-70 (2d ed. 2001)

Courts have no doubt been confused to some extent between the operational definition of a confidence interval and the role of the sample point estimate as an estimator of the population parameter.  In some instances, the sample statistic may be the best estimate of the population parameter, but that estimate may be rather crummy because of the sampling error involved.  See, e.g., Kenneth J. Rothman, Sander Greenland, Timothy L. Lash, Modern Epidemiology 158 (3d ed. 2008) (“Although a single confidence interval can be much more informative than a single P-value, it is subject to the misinterpretation that values inside the interval are equally compatible with the data, and all values outside it are equally incompatible. * * *  A given confidence interval is only one of an infinite number of ranges nested within one another. Points nearer the center of these ranges are more compatible with the data than points farther away from the center.”); Nicholas P. Jewell, Statistics for Epidemiology 23 (2004)(“A popular interpretation of a confidence interval is that it provides values for the unknown population proportion that are ‘compatible’ with the observed data.  But we must be careful not to fall into the trap of assuming that each value in the interval is equally compatible.”); Charles Poole, “Confidence Intervals Exclude Nothing,” 77 Am. J. Pub. Health 492, 493 (1987)(“It would be more useful to the thoughtful reader to acknowledge the great differences that exist among the p-values corresponding to the parameter values that lie within a confidence interval … .”).

Admittedly, I have given an impressionistic account, and I have used anecdotal methods, to explore the question whether the courts have improved in their statistical assessments in the 20 years since the Supreme Court decided Daubert.  Many decisions go unreported, and perhaps many errors are cut off from the bench in the course of testimony or argument.  I personally doubt that judges exercise greater care in their comments from the bench than they do in published opinions.  Still, the quality of care exercised by the courts would be a worthy area of investigation by the Federal Judicial Center, or perhaps by other sociologists of the law.

As a laborer in the gasoline station construction industry, I found myself at odds with the then-new regulatory regime enacted by California in 2003. At the time, I blamed California for requiring excessively advanced technology for testing. Tracer testing placed onerous requirements upon construction workers, requiring utmost care in an industry that is by its nature rough and dirty.

When I began research for this post, I expected to find tracer testing to be the culprit for exorbitant costs imposed upon gasoline stations. But though the original justification for tracer testing no longer exists, the regulatory regime, rather than the technology, is responsible for the difficult standards. As long as California retains the current definition of product-tight—including both liquid and vapor—tracer testing is necessary.

Tracer Testing

Tracer testing, also known as inert gas pressure testing, is a form of testing used to find small leaks in containment systems. The containment system is pressurized with the tracer gas (usually helium due to its inertness, small molecular size, and thermal conductivity) and then delicate instruments search for the presence or concentration of the inert gas in the air immediately surrounding the containment system.

Tracer testing is more advanced than traditional air or water-based pressure testing. Under the traditional forms of pressure testing, a containment system is placed under substantial pressure and the amount of pressure lost determines whether there is a substantial leak. Unlike traditional pressure tests, tracer testing detects extremely small leaks, because rather than simply measuring the lost pressure, the presence of inert gas is measured. Extremely small amounts of helium can escape and still be detected, rendering the test able to achieve more exacting requirements.

AB 2481: Mandating Vapor-Tight Standards in California

In 2002, California passed AB 2481, rendering California standards for underground storage tanks stricter than federal standards in several ways. The bill redefined “product-tight,” a basic requirement for underground storage tanks, to include the ability to contain the liquid and vapor of the product, rather than merely the liquid. To meet this new requirement, the bill mandated enhanced leak detection or inert gas testing, as approved by the State Water Resources Control Board. Praxair’s tracer testing was the only test approved by the California Water Resources Control Board for quite a while, and remains the industry-dominant test.

Passing tracer tests was extremely difficult for contractors used to meeting traditional pressure testing standards. Systems that fail tracer tests, and most do, must be inspected and repaired by hand, until they can pass tracer testing. This process is very difficult, as the cracks being dealt with are sometimes not identifiable to the naked eye. The prior testing regime, air or water based pressure testing, still required careful inspection, but any flaw large enough to cause a pressure test failure could be easily found using soap and water. Because tracer tests can discover minute discrepancies, these discrepancies are harder to find and remedy. Requiring tracer testing increased the cost of labor and decreased the pool of specialists who could bring a station into compliance.

MTBE’s Rise and Fall

The original purpose of AB 2481 was “to protect the environment against unauthorized releases of methyl tertiary butyl ether (MTBE).” The legislation was later changed to account for all “unauthorized releases of petroleum, including methyl tertiary butyl ether (MTBE),” but MTBE remained a major motivating factor for the updated containment requirements.

MTBE was a substantial threat for three reasons. First, it poses a greater threat to the water supply than other gasoline components, including petroleum, because it has higher water solubility, allowing it to travel further underground than other gasoline components. MTBE also poses a more substantial water contamination threat than other gasoline components because even trace amounts of MTBE noticeably alter the taste of water. Finally, MTBE has potentially negative health effects. Considering these factors, the concern than MTBE would contaminate the groundwater could powerfully justify stringent regulation of underground storage tanks.

This original purpose no longer exists; MTBE is permanently banned in California and many other states. MTBE was permanently banned in all gasoline sold in California in 2003, the same year AB 2481 began enforcement. Gas station contractors in California are left with an extremely stringent test that requires product-tight containment that prevents even subterranean emission of vapor.

Should California Continue Tracer Testing?

One alternate justification for the regime of testing is extreme environmental caution. Keeping any amount of gasoline out of the ground could be said to be worth substantial investment. If MTBE had been banned before it caused problems in the water supply, perhaps the regulatory regime would have continued to use traditional air or water based testing, but now that the industry has used enhanced leak detection tests for eight years, much of the fixed costs to learn how to pass tracer testing have already been incurred. There are also the continuing costs that come from the enforcement of a strict regulatory regime that does not permit any leakage of vapor.

Many inefficiencies plague California’s regulatory regime of gasoline stations: California-mandated use of phase II enhanced vapor recovery (EVR) in gasoline stations creates more air pollution by conflicting with EPA-mandated onboard vapor recovery. California’s requirement for secondary containment for tank sumps is unjustified because sumps are not a primary containment system that holds product, and California’s use of continuous monitoring systems prone to false alarms has created a cottage-industry around checking false alarms. However, the use of tracer testing does not seem to be one of those inefficiencies. The technology itself is more effective at locating deficiencies than traditional air or water based pressure testing. The need for vapor-tight underground containment is debatable, but so long as California requires it, tracer testing is a justified standard for contractors to employ.

The Prometheus patents covered the concept of adjusting the dosage of thiopurine drugs based on the level of metabolites in a patient’s blood. The patents on the thiopurine drugs involved have long since expired and the patents in question claim no specific method for measuring the metabolite level in a patient. The now invalidated claims had two steps. The first step was simply the administration of the drug. The second step was the measurement of the metabolite in the patient after the administration. The remainder of the claim describes the correlation. If the metabolite concentration is higher than a certain value, this “indicate[s] a need” to reduce the next dose and vice versa.

The Mayo Clinic used the thiopurine metabolites test developed by Prometheus until 2004 when it developed its own test. Prometheus sued Mayo in 2004, alleging that the patents covered more than just the particular test that Prometheus had developed. Prometheus argued that the patents covered the entire process in the claims without any restriction to a particular method of administration or measurement. In effect, this prevented anyone else from making use of the correlation between certain metabolite levels and drug dosages however the patents were allowed as applications of this correlation.

The district court held that patents were invalid under §101 because they claimed scientific correlations which were natural phenomena that resulted from natural body processes. However, the Federal Circuit overturned this ruling and upheld the validity of the patents. The Federal Circuit relied on the machine or transformation test in coming to its decision. Understanding that the machine or transformation test is only a “useful  and important clue, an investigative tool,” the Federal Circuit held that the steps in the claims comprised a method of treatment which was a proper application of a scientific principle. In addition, the Federal Circuit noted that the method of treatment claimed in the patents satisfied the transformation prong of the machine-or-transformation test. Prometheus Laboratories, Inc. v. Mayo Collaborative Services, 628 F.3d 1347, 1355-57 (Fed. Cir. 2010).

The Supreme Court started its analysis by noting that the relationship between the concentration of metabolite in a patient’s blood and the efficacy of another dosage of the thiopurine drug is a law of nature that is not patentable. The relationship itself is simply a consequence of how the metabolite interacts with one’s body in a way that is separate from any human action. Thus, to be patentable, the claims have to contain additional features that conclusively show that the process applies the law of nature.

Identifying three additional features in the Prometheus patents, the Court found them all to be insufficient to deem the process an application of a law of nature. The first feature, the administration step, was dismissed as only identifying the people interested in the correlation. Specifically, the people interested are doctors using thiopurine drugs and this group existed before these patents existed. The measuring step does not make this claim patentable because the methods of measuring metabolite levels are well known in the art. Telling doctors to engage in routine, well known activity does not make this process patentable. Lastly, the explanation of the correlation adds little to the actual application of the process and just describes the law of nature. At most, it suggests that doctors should consider the test results when deciding the next dosage of the drug.

Because the features in the Prometheus claims were simply drafting efforts rather than substantive additions, the Supreme Court struck down the patents. However, the Court did not shed much light on what exactly constitutes an additional feature that would demonstrate an application of a law of nature. Finding the three additional features in the Prometheus claims to be insufficient gives some guidance, but no other specific explanation was provided.

While cloud storage can be an economical and practical method for storing data and information, use of the cloud may result in reduced privacy protection.  When using cloud storage, an individual or a company uses storage capacity provided to it by a third party instead of maintaining its own files.  Although one may not intuitively view this distinction as significant, there is case law (US v. Miller (1976)) which allows such information to be treated differently for privacy purposes.  Law enforcement agencies argue that because a file has been turned over to a third party, the file does not have the same privacy protections it would if it were held by the creator.  The significance of the government’s approach becomes increasingly important as more and more files are being turned over for third party storage.

Those in favor of the government’s right to access such information would argue that one does not have a reasonable expectation of privacy once they turn over the information to a third party.  However, is this how individuals and corporations think of the issue when storing information on the cloud?  While most people would likely acknowledge that there is a set of privacy concerns associated with cloud storage, these concerns generally stem from the fact that the information is being stored on the internet and the third party to which the information is turned over may not be trustworthy.  A reasonable expectation of privacy in email was acknowledged in a recent Sixth Circuit decision, US v. Warshak (2010), but it remains to be seen how this will impact the law in the area.

The main statutory provision which protects wire, oral, and electronic communications is the Electronic Communications Privacy Act (ECPA).  Title II of the ECPA, the Stored Communications Act (SCA), protects communications held in electronic storage.  The ECPA has not undergone a major revision since being enacted in 1986 and its privacy standards are wildly out of sync with much of the computer activity which occurs today.  Take, for example, the fact that Email can be accessed by the government without a warrant if it has been left on a server for more than 180 days.  When the law was passed, Email was generally downloaded.  Therefore, the law considered email which remained on a server for more than 6 months to be abandoned.  Today, however, email is regularly kept and stored on servers, yet the law still considers email left on a server abandoned and allows law enforcement to access it without a warrant.  This leads to POP and IMAP email services to be treated asymmetrically.

An organization called Digital Due Process (a coalition of many of today’s most prominent internet companies) has laid out its major principles for bringing the ECPA up to date with today’s computing needs.  These principles include required use of warrants in order for government entities to require that private information from entities covered by the ECPA be turned over, and requirement that more particularized evidence be provider in order for governmental entities to receive subpoenas.  Senator Patrick Leahy has introduced a bill in the Senate which corresponds with many of these ideas.

While these reforms are necessary to align the law with the current state of the internet they are unlikely to be implemented any time soon. The major roadblocks to enacting this change come from the law enforcement and the cloud computing industry itself.  Obviously law enforcement wishes to continue the practices in which they currently take part and want investigative procedures to remain as simple and quiet as possible. At the same time, the cloud computing industry is caught in a tough position.  On the one hand cloud computing providers want to back data and privacy protections insofar as they encourage individuals and corporations to embrace the cloud and utilize their services.  However, the cloud providers want to continue to access individuals data for their own informational purposes (see Amazon terms of service regarding consumer files, particularly 5.2) and do not want to back any laws which might increase privacy protections and inhibit their use of consumer data.

As part of its project curriculum, Columbia Law School’s Lawyering in the Digital Age Clinic engages in an ongoing collaboration with NYC’s Project FAIR to innovate and implement greater access to legal help and resources for the low-income and underrepresented members of the New York City community.

Project FAIR

Project FAIR (Fair Hearing Assistance, Information & Referral) comprises a consortium of attorneys, paralegals, public benefits experts, legal advocates and law students working to ensure that individuals who seek public assistance, food stamps, and Medicaid are able to effectively exercise their due process rights to access these services. Project FAIR is the sole independent provider of free legal information and service located on the premises of the main hearing site at 14 Boerum Place in Brooklyn where approximately 500 hearings are held each day.

Project FAIR is unique in that it does not have a standalone office. Volunteer attorneys and advocates chair a table at the hearing site, where they “rely on technology as the glue to hold operations together- providing the calendaring system to ensure the help table is staffed by someone every weekday, as well as housing the online database that serves as the primary data collection point from the individuals who go to the table,” says Columbia Clinical Professor of Law Conrad Johnson, who oversees FAIR’s collaboration with the Clinic.

Clinic Collaboration

In addition to creating Project FAIR’s vast knowledge database containing all of its training and reference resources, Columbia’s clinic also created and maintains an online database which contains records and information collected by the volunteers from all those who visit the help table.  This database now contains more than 10,000 entries and enables the volunteers to “track systemic trends in real time,” says Professor Johnson.

Through their work with FAIR, the database, and participating advocates, clinic students learned that for more than a year, those seeking to apply for or maintain their public assistance benefits were forced to wait for hours outside of many of the City’s welfare “job centers”.  Lines at many of the centers often spanned blocks and persisted in rain or shine, summer heat or winter cold. Last October the concern grew that as winter set in, it would be dangerous for individuals, many with children at their side, to be standing out in the cold for hours as they waited their turn.

Technology in Action

Prompted by this growing problem, clinic students Chris Watts, CLS ’13 and Ben Kopelman, CLS ’12, joined Professor Johnson on a visit to one of the centers on Dec. 5^th, 2011.  There, they encountered a long line of individuals waiting outside of the center.  That day they filmed a video of the overcrowding, and interviewed those waiting in line:

The Legal Aid Society used the clinic students’ video as part of its effort to raise awareness about the overcrowding issue.  The Wall Street Journal was the first media outlet to report on the issue when it published an article titled “Welfare Lines Overflow.” Similar stories were subsequently published by New York Magazine, NY Times and Social Service Employees Union.  Shortly thereafter, the WSJ published a follow-up article to its first column wherein NYC Mayor Michael Bloomberg acknowledged the pressing issue of the overcrowding at job centers across the city, and stated his pledge to work on improving the problem.

Spurred by the widespread media coverage, the City Council held hearings on the overcrowding problem in January of 2012.  Council member Gale Brewer, who chaired the hearings, showed the Clinic’s video as her opening statement to begin the hearings.

Professor Johnson was asked to testify at the city council hearing.  The day before the hearing, he returned to the job center he and his students had visited on Dec. 5^th.  To his surprise, the line outside of the center was gone.  He called several advocate colleagues who were also working on the issue and they too reported that lines outside other job centers had also disappeared.  It seemed that the HRA had finally enacted measures that eliminated the lines outside of the job centers.  Asked of his impression of the experience, Professor Johnson speaks about the power and importance of using technology in contemporary law practice. “It was a visual story; we were able to alert the media and the public by capturing images that both proved the existence of the problem and conveyed the hardships it created in ways that words alone could not. We also got results far more quickly and effectively than we would have using conventional advocacy.” He goes on: “Using tools of the digital age allowed for relief mechanisms that were not available to people who relied on traditional methods.”

While the story comes with many lessons, the most important is that technology not only creates greater access to our legal and judicial processes: it is used in creative ways to reach and influence the political process and to aid the members of our community who need help most.

Flicking your index finger up to scroll through an address book? Pinching a map or image to zoom out? Slicing watermelons to bits in Fruit Ninja? They’re all (arguably) covered by United States patent number 7966578 (“the ’578 patent”). Though the capacitive touchscreen technology incorporated in the iPhone and most every modern smartphone is not itself claimed in Apple’s patent, the very means by which mobile phone users interact with that piece of hardware apparently is. The strength of the ’578 patent has more recently been called into question by Judge Lucy Koh of the Northern District Court of California, who in October of 2011 ruled that although Samsung’s devices indeed infringe Apple’s patent, Apple still bears the burden of demonstrating the patent’s validity before relief may be granted. Judge Koh more recently denied Apple’s zealous bid to enjoin sales of Samsung smartphones and tablets in the United States.[i]

Apple has additionally based a significant portion of its legal battle against Samsung on similarities in design between the companies’ respective device families. In a recent and rather embarrassing courtroom exchange, Samsung’s attorneys themselves were unable to differentiate their new Galaxy 10.1” tablet from Apple’s iPad 2 while the two were held over the presiding judge’s head at a distance of ten feet. Samsung’s lead mobile device designer last week voiced offense at Apple’s allegations concerning such similarities, declaring, “the Galaxy [smartphone] is original from the beginning,” and the child of Samsung’s own independent efforts. Hardware design similarities are further aggravated by software-based visual overlaps, including the incorporation of rounded square icons in the modified Android operating system that ships with so many of Samsung’s new phones.

Adding fuel to the fire, Samsung filed numerous countersuits hinging on its ownership of patents in standardized technologies like 3G and UMTS communications protocols. That move was frowned upon in the European Union, where Samsung is presently being investigated by the European Commission’s Directorate-General for Competition for alleged antitrust violations on that basis. Due to the necessity of wide access to those industry-standard protocols, Samsung is legally required to license the manufacture of devices incorporating those technologies in a fair, reasonable, and non-discriminatory manner. Samsung’s attempts to secure injunctions against Apple in Europe have failed as a result of those protocol patents’ essentiality to cross-compatibility between different manufacturers’ devices and the wireless networks on which they reside.

So what does this all mean for consumers?  Germany has granted a preliminary injunction against Apple’s sale of the iPhone, while Australia temporarily banned sales of Samsung’s Galaxy tablet. Apple’s litigation with Motorola over two patents unrelated to the Samsung dispute further prompted a German court to enjoin sales of certain Apple devices within its borders. German smartphone buyers are now faced with a market severely limited by the effects of these interwoven lawsuits. Samsung has further sought to enjoin the sale of Apple products in its home country of Korea, as well as in Italy, Japan, and a handful of other prominent markets. Indeed, the Apple-Samsung dispute now comprises at least 21 separate suits in ten countries. The outcomes of these lawsuits could have dire effects on the availability of the mobile technologies that consumers have already begun to take for granted.

Apple has never been friendly to the idea of licensing its technologies out to competitors, and unlike Samsung, does not hold patents subject to mandatory licensing under European Union law. Experts opined last year that Apple was trying to knock Samsung, HTC, and other prominent competitors as far down as possible in anticipation of the upcoming holiday season, but domestic sales figures have remained strong on all sides. Apple’s March 16 release of the iPad 3 brought with it nearly $1.5 billion in revenue when upwards of three million units were sold over the opening weekend. If not for the fact that Android device sales significantly eclipsed iOS units’ in 2011, Apple would not appear to need any additional assistance in securing mobile device market share.

As much as Apple fanboys (and girls) would love to see the company’s family of i-devices remain at the top of the pack, some argue that litigation wins on these patent and trademark issues could spell disaster for competitive, and therefore innovative, markets. Google’s Android operating system, which relies heavily on the methods of use allegedly covered in Apple’s patents, would likely suffer significant immediate losses, presenting the risk that consumers will be forced into a “very closed world of Apple’s making.”

On the contrary, the mobile device market has developed so rapidly since Apple’s 2007 release of the original iPhone that Apple’s legal victories could work to usher the development of revolutionary new interfaces for the next generation of mobile devices. In developing its Kindle Fire, released in November of last year, Amazon worked hard to dodge intellectual property infringement issues by designing a tablet that is more easily distinguishable from the iPad than the Galaxy has proven in court. The device is notably smaller and incorporates a proprietary set of algorithms governing the use of pinch-zoom functions and the like. Consumers appear to have greeted Amazon’s device warmly as a marriage of low price and respectable functionality, though solid sales figures have been difficult to pin down. Whether it, along with other Android-based devices, will maintain strong market presence over the long term depends largely upon the wider impacts of the Apple-Samsung litigation and concurrent government antitrust investigations.

Additional considerations in the present round of litigation include the fact that Apple is one of Samsung’s biggest parts consumers, regularly buying huge quantities of capacitive touchscreens and semiconductors from the vertically integrated Korean giant. Samsung further owns patents in the iPhone 4S antenna design, but has yet to use this ammunition to its advantage in the present rounds of litigation. How these factors play into the smartphone wars is a dynamic yet to be observed, but here’s hoping that whatever happens means more and cooler options at market in the months to come!

As ideal as the new system may sound, it does not come without criticism.  The America Invents Act is a federal statute, passed by Congress and signed into law by the President, which was the result of a push to reform U.S. patent laws. However, Article I, Section 8, Clause 8 of the Constitution empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to … Inventors the exclusive Right to their … Discoveries.”  The language of the Constitution indicates that “inventors” – the first person to invent or true inventors – should be awarded patents.  The new patent law, by changing the system from first-to-invent to first-to-file, could be considered unconstitutional as it changes the meaning of the constitutional language and allows a subsequent inventor to obtain a patent over the true inventor of a patentable invention.  In order to properly adopt a first-to-file system, it may be considered necessary to amend the Constitution.

It is argued by the proponents of the first-to-file system that the first-to-invent system rarely benefits the inventor, whether a small business or an independent inventor. Interference proceedings to determine who invented first can be substantially costly.  The cost of proving who was the first to invent is prohibitive to the individual inventor in comparison to large companies with deep pockets and unlimited resources.  An argument in favor of the first-to-file system is that it will eliminate interference proceedings and provide certainty as to the patent’s date of invention, which will benefit all regardless of size.

However, first-to-file creates a race for inventors to be the first to file a patent application.  Large companies have in-house patent attorneys and strong research and development teams so that patent applications can be filed swiftly. On the other hand, small companies and individuals do not have the financial resources to file costly patent applications that turn out to be useless.  Furthermore, the Patent Office itself will receive an increase of applications of lesser quality as large companies speculate and rush to file patents on every new idea.  Small companies or individuals with limited funding would be placed at an extreme disadvantage in comparison to large companies in a first-to-file system, whereas in the first-to-invent system, what matters is the invention itself and reducing it to practice – filing can come after.

The first-to-file system proposed by the America Invents Act, beyond its facial unconstitutionality, would likely have an adverse impact on the U.S. patent system.  Filing patent applications will become a more risky investment and turn into a business of speculation at a level at which startups, the main source of innovations, will be unable to compete.  With a decrease in the commercialization of inventions, the America Invent Act will disrupt the U.S. patent system and hurt the U.S. as an industrial powerhouse in comparison to competing nations.

Apple claims that Samsung only partially complied with a court order requiring Samsung to release source code for products involved in a patent suit.

European Union competition regulators are questioning Europe’s biggest telecommunications companies regarding the possibility of collusion based on a series of meetings held since 2010.

A Dutch court rejected Samsung’s attempt to ban sales of Apple’s iPhone and iPad in the Netherlands.

The SEC has brought charges against an online trading platform and two private funds which were offering Facebook shares prior to the initial public offering.

Taiwanese company AU Optronics Corp. will appeal a guilty verdict in the US over price fixing on LCD screens.

The trial regarding whether Google violated Oracle’s intellectual property rights related to Java has been set for April.

Yahoo is suing Facebook over ten patents that include methods and systems for advertising on the internet.

“MOBILE PHONE WARS” HEAT UP BETWEEN APPLE AND MOTOROLA: Google Inc. (GOOG) and Motorola Mobility Holdings Inc. (MMI) have been ordered by U.S. Circuit Judge Posner of Chicago to hand over information to Apple Inc. (AAPL) regarding the development of Google’s Android operating system. This information comes following Google’s acquisition of Motorola Mobility for $12.5 billion and is in connection with Apple’s suit against Motorola filed in 2010 regarding multi-touch technology.

YELP! HITS THE MARKET RUNNING: In one of the most highly anticipated IPO’s this year, online local business review and community rating website Yelp! (YELP) began trading on the New York Stock Exchange on March 2^nd. Yelp’s first day proved to be very successful ending with share prices up 64% from the IPO price of $15 selling for $24.58. At closing this put Yelp at a market value of nearly $1.5 billion, a surprisingly high valuation for a company who has yet to show any profits.

KODAK FIGHTS APPLE IN BANKRUPTCY: 131 year old Eastman Kodak Co. filed for Chapter 11 bankruptcy on January 19^th of this year in response to decline in photographic film business in recent years. Attempting to survive their liquidity crisis, Eastman Kodak has set forth a goal of selling a portfolio of digital-imaging patents for up to $2.6 billion but may be encumbered by stayed patent litigation with Apple Inc. Eastman Kodak has asked a bankruptcy judge to block Apple Inc. from restarting patent litigation over a dispute between the two companies over who owns a patent for a digital camera that can preview the image on a liquid crystal display (LCD).

TALK OF THE TABLETS: Apple Inc. unveiled the latest version of its extremely popular iPad tablet computer (the “latest iPad” rather than what people believed would be called the iPad 3) on Wednesday, March 7. Although the new tablet comes with new features such as high-speed 4G networking, a higher definition “retina display” screen and a better camera, some people believe that it isn’t enough to ensure Apple retains its competitive lead in the marketplace.

The facts of the case, In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, are as follows. The government served a subpoena duces tecum on the suspect (“Doe”), compelling him to produce the unecrypted contents located on the hard drives of his laptop computers and five external hard drives. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, No. 11-12268, 2012 WL 579433, at *1 (11th Cir. Feb. 23, 2012). Doe refused to comply with the subpoena, instead invoking his Fifth Amendment right against self-incrimination. Id. The U.S. Attorney applied to the district court for an order that would grant Doe immunity and require him to respond to the subpoena. Id. The district court rejected Doe’s explanations, judged him to be in contempt of court, and ordered him incarcerated. Id.

On appeal, the 11th Circuit arrived at two overall conclusions. First, [the district court] erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting its immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed. Id. at 3. I will be focusing on the first issue—the issue of “whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” Id. at 4.

The Court stated that there were two ways for the government to avoid implicating the Fifth Amendment right. First, Doe’s decryption and production of the hard drives would have to be a physical act, not a testimonial act that “requires the use of the contents of his mind.” Second, the government would have to already know what is inside the drives. The government would only be asking Doe to produce the decrypted drives; the knowledge of what is inside would have only been a foregone conclusion. However, the Court held that the government failed in satisfying either of these methods. The Court stated that it reached its holding for this issue by concluding that “(1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.” Id. at 8.

While the Court’s analysis mostly seems correct, I have a few problems with some parts of the analysis. First, regarding the distinction between a physical act and a testimonial act, the Court lists some implied factual statements that determine whether or not Doe’s decryption and production of the hard drives would be testimonial. The Court states that “the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt those files.” Id. The latter two factors can certainly be classified as making the use of one’s mind, but I would argue that the first factor should not be involved if Doe were to decrypt and produce the hard drives. By producing the decrypted hard drives, Doe would be showing that he had possession, control, and access to the hard drives, and he would also be showing that he had the ability to decrypt the files. In regards to the first factor, however, Doe would not necessarily be showing that he had knowledge of the existence and location of potentially incriminating files. The government basically just needs the decryption passwords so it can access the encrypted partitions inside the hard drives.

Second, the Court uses a useful analogy in comparing Doe’s situation to surrendering a combination as opposed to surrendering a key; however, I believe that the Court’s analogy should focus on a different point. The Court believes that producing a key is a physical act while producing a combination is a testimonial act that requires use of the contents of one’s mind. The Court analogized Doe’s situation to producing a combination, saying that “[r]equiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because [it demands] the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory.” Id. To further explain its point, the Court referred to the Supreme Court’s explanation of this distinction in U.S. v. Hubbell:

“The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox . . . The Government’s anemic view of respondent’s act of production as a mere physical act that is principally nontestimonial in character and can be entirely divorced from its “implicit” testimonial aspect so as to constitute a “legitimate, wholly independent source” . . . for the documents produced simply fails to account for these realities.” U.S. v. Hubbell, 530 U.S. 27, 43 (2000).

My problem with the Court’s analysis here is that I believe the focus should simply be on whether or not implied factual statements are involved or not. A key vs. combination analogy seems to wrongly focus on a physical production of a key as opposed to a mental production of a combination, and whether there are implied factual statements seems to be an additional factor to consider when that should be the primary factor.

Putting this proposal into action, if compelling the production of a key or combination to some kind of safe ends up involving implied factual statements, then such an act of production would be testimonial. For instance, in this case, the key factor is whether or not the government actually knows that Doe has “knowledge of the combination”—for instance, whether Doe has the decryption passwords for the hard drives. If the government is not sure whether or not the suspect has knowledge of the combination, then the act of production should qualify as a testimonial act because such an act would be accompanied by the implied factual statement that the suspect knew the combination (e.g., a decryption password in this case). However, if the government knows that the suspect knows the combination, then producing the combination should qualify as a physical nontestimonial act. This would be functionally similar to asking a suspect to produce a key—there is no accompanying implied factual statement, and the combination would essentially be acting as a “key.”

Under this proposed focus, then, it is the fact that the government does not know for sure whether or not Doe has “the combination to the safe” that makes Doe’s decryption and production of the hard drives testimonial—producing the decrypted hard drives would bring in the implied factual statement that Doe knew the decryption passwords. In conclusion, the focus should simply be on whether or not implied factual statements are involved or not; this key point better fulfills the purpose behind the standard of “requiring the use of the contents of one’s mind.”