INSURANCE coverage for has been available for over forty years. It was first included in the definition of Personal in the Insurance Services Office's (ISO's) Broad Form Endorsement (GL 00 04) to its 1973 Comprehensive General Form (CGL; GL 00 02), as a covered offense, as distinguished from the occurrences that could give rise to bodily injury and property damage liability. Personal was defined to include, among other offenses, false arrest, detention, imprisonment, or malicious prosecution. additional coverage provided by that endorsement had to be purchased separately. In 1985, ISO's standard CGL form (renamed General Coverage Form; CG 00 01 11 85), was revised to include coverage for Bodily Injury and Property Damage Liability (Coverage A) and Personal and Advertising (Coverage B); at that time, the definition of Personal injury was amended and since then arrest, detention and imprisonment have been separated from prosecution. Despite its long existence, and the spate of coverage litigation during the past forty years, there are surprisingly few cases dealing with coverage for malicious prosecution; and, among those, a sharp difference of opinion is found as to whether potential coverage is nullified by exclusions. This article will look at and comment on cases. I. CGL Coverage B Insuring Agreement of Coverage B in the 2006 ISO Commercial General Coverage Form (CG 00 01 12 07) provides coverage for those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies. Personal and advertising injury is defined as follows: 14. Personal and advertising injury means including consequential bodily injury, arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral or written publication, in any manner, of material that slanders or libels a person of organization or disparages a person's or organization's goods, products or services; e. Oral or written publication, in any manner, of material that violates a person's right of privacy; f. use of another's advertising idea in your advertisement; or g. Infringing upon another's copyright, trade dress or slogan in your advertisement. coverage provided by the Insuring Agreement is made subject to a number of exclusions, including: 2.a. Knowing Violation of Rights of Another Personal and advertising injury caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict personal and advertising injury. 2.b. Material Published with Knowledge of Falsity Personal and advertising injury' arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of falsity. II. Malicious Prosecution Overlaps with Abuse of Process The torts of malicious prosecution and abuse of process were both created to remedy abusive litigation. Malicious prosecution blazed the trail, while abuse of process followed behind to fill in the gaps. By virtue of their histories, they are distinct torts, at least in a strictly legal sense,... In reality, however, the line between these torts is blurred... (2) elements necessary for the successful maintenance of a malicious prosecution action are: (1) the commencement and prosecution of a judicial proceeding against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which has terminated in favor of the plaintiff in the malicious prosecution (6) to his and (7) where the proceeding complained of was civil in nature, it must also be shown that the plaintiff suffered interference from some provisional remedy. …
All the forces of a technological age... operate to narrow the area of and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society. (1) LAW as a normative tool was invented to maintain order in society; laws, however, continually evolve to accommodate changing times and respond to society's needs. In the information age, ideas and news become accessible in an instant (2) Along with the ease of the flow of information, the system of connections and the collection of data have greatly improved, benefiting not only human relations, but the development of the economy as well. Along with the upside, however, is the downside of these new technological advances--from the inconvenience caused by prank calls, to the more serious problems of harassment, scams, and acts of terror. Society must respond with measures deemed appropriate, reasonable, and efficacious, to keep abreast of technological progress. This article discusses the constitutional and legal implications engendered by the collision between the to individual and the exercise of the state's police power pursuant to the demands of public interest and state security under Philippine law. We touch on the tension between rights and public interest embedded in the various laws enacted to meet new threats, and elaborates on this tension as the courts balance competing interests in the following legislation: (a) Human Security Act of 2007, (3) (b) Anti-Money Laundering Act of 2001, (4) (c) Terrorism Financing Prevention and Suppression Act of 2012, (5) (d) Cybercrime Prevention Act of 2012, (6) (e) Data Privacy Act of 2012, (7) (f) the proposed national centralized identification system, and (g) the proposed registration of prepaid mobile phones. I. Right to Privacy Under Philippine Law: A Survey of Jurisprudence The to means the right to be let alone (8) and is the beginning of all freedoms. (9) Discussing the origin of the to privacy, Pavesich v. New England Life Insurance Co. held that the to has its foundation in natural law and the instinct of nature. (10) In Philippine law, the concept of is enshrined in the Constitution and is regarded as the to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. (11) It has been described as the most comprehensive of rights and the most valued by civilized men. (12) A. Privacy--an Independent Right In Morfe v. Mutuc, the Philippine Supreme Court affirmed that the to exists independently of its identification with liberty, and in itself fully deserving of constitutional protection. (13) Disini v. Secretary of Justice, (14) citing Sabio v. Gordon, (15) also recognized the importance of the different zones of protected under Philippine law. This could also be derived from the Universal Declaration of Human Rights, which mandates that no one shall be subjected to arbitrary interference with his privacy and everyone has the to the protection of the law against such interference or attacks. (16) The Philippine Constitution guarantees the against unreasonable searches and seizure, as well as the to of communication and correspondence. (17) It expressly guarantees the against self-incrimination, (18) liberty of abode, (19) to due process, (20) and the to and freedom of association. (21) 1. Situational, Informational, and Decisional Privacy The concept of has, through time, greatly evolved, with technological advancements playing an influential role. This evolution was briefly recounted in former Chief Justice Reynato S. Puno's speech, The Common Right to Privacy, where he explained the three strands of the to privacy: (1) locational or situational privacy; (2) informational privacy; and (3) decisional privacy. …
IN VIEW of improving mutual judicial cooperation in civil and commercial matters, 58 countries, including France and the U.S., concluded Hague Convention of 18 March 1970 which sets out provisions for the communication of evidence in the scope of foreign court proceedings (hereafter The Hague Evidence Convention). Despite the ratification of Hague Evidence Convention in 1972 by the United States, U.S. courts have mainly refused to abide with the provisions of Hague Evidence Convention and instead authorized parties to the broader discovery permitted under the U.S. Federal Rules of Civil Procedure. Under the civil law culture, legally-compelled disclosure procedures do not exist: parties to civil litigation have no duty to inform the opposing party of any documents other than those they intend to rely on to support their own case. France has long viewed the recourse of parties to the U.S.-style discovery procedures to obtain evidence in France as an infringement of its national sovereignty. In an attempt to protect nationals against U.S. discovery procedures, France enacted the so-called French blocking statute, criminal statute prohibiting anyone to engage in discovery under foreign judicial system without using the cooperation mechanisms provided for by Hague Evidence Convention. Along with data protection and privacy laws, the blocking statute constitutes another hurdle for the transfer of certain information from the jurisdiction to the United States. Lack of enforcement of the blocking statute since its enactment (only one conviction has been recorded in nearly forty years) led the U.S. courts to believe that the threat of criminal conviction under the statute was largely theoretical. Little deference was therefore given to the blocking statute. Although until recently the matter was the object of little debate, it seems to have become hot topic again lately. extraterritorial reach of United States laws has indeed been recently under the scrutiny of the Parliament as result of strong criticism following successive sanctions imposed on several companies over the last few years for acts committed outside of the United States. In particular, the payment of an unprecedented fine of nearly 9 billion dollars by BNP Paribas in June 2014 on the grounds of the breach of the embargo on Sudan, Iran and Cuba and the fine of almost $800 million paid by Alstom on the grounds of the breach of the U.S. Foreign Corrupt Practices Act for acts of corruption of foreign government officials, led to public indignation and to an outcry from large number of politicians. In both cases, the payments had been made on voluntary basis by companies following negotiations with the U.S. Department of Justice. As result, parliamentary task force was created by the National Assembly's commissions for foreign affairs and finances in March 2016 for the purpose of taking an exhaustive inventory of the cases of extraterritorial application of U.S. laws and to analyze the impact of such an application on the economy, in particular focusing on the distortion of competition and financial damage suffered by companies. report (the so-called Rapport Lellouche) was published on October 5, 2016, and its conclusions are harsh: it blames the United States for using their laws to impose sanctions on the foreign companies that may harm their interests. In particular, it observes that the fines paid by European banks over the past few years amount to several dozens of billions of dollars and denounces a significant levy on European economies to the benefit of U.S. public finances. parliamentary task force has made suggestions to stop these practices at both national and European levels. One of the suggestions is to strengthen the repressive arsenal to fight against corruption. Indeed, the absence of sufficiently constraining foreign legal mechanisms (in particular ones) is one of the criticisms usually asserted by the U. …
IN 1889 the Eastman Dry Plate and Film Company rolled out the first portable camera, stunning the public and revolutionizing the world of photography forever. However, a year later the same camera was a source for countless scandals, as unscrupulous journalists used it to take pictures of celebrities and the country's wealthiest citizens. (1) Today we find ourselves in a similar situation, not from the Kodak, but the unmanned aerial vehicle. Unmanned aerial vehicles, commonly called drones due to the similarities between the humming sounds they emit and the worker bee, (2) have become almost omnipresent in our society, and while some champion them for their countless uses, in others they instill a sense of dread. I. Big Brother is Watching: Usage of Drones at the Federal Level federal government itself uses drones to conduct a variety of tasks from scientific research to predicting weather, inspection of power lines, and even coordinating humanitarian aid. Unsurprisingly, drones also have military and intelligence purposes. On its face the concept isn't malicious, the government isn't watching us like big brother to stamp out dissent. Rather, drones are used in the fulfillment of legitimate goals like stopping crimes or solving missing person cases. However, rights and interests do not exist in a vacuum and must be weighed against each other to achieve a just result. In this instance, the counterbalance with the government interest is the right to main issue when dealing with government interest versus the right to privacy at the federal level is that there is no central federal omnibus regarding aerial privacy in the United States. While the federal government defers to the FAA on aviation matters and the FAA has issued guidelines on operation of drones, the FAA has not issued guidelines on drones with respect to (3) As a result, any guidance we can glean on aerial privacy is contained in a mish-mash of precedent and inferences drawn from other statutes. Compounding the problem is the notable lack of precedent from federal case law. Supreme Court has not dealt with a case involving aerial tracking. (4) Most cases involving drones have dealt instead with foreign nationals suing the government or companies suing each other for copyright claims, and the remainder are frivolous claims. In order to examine where we stand, we have to examine how case law has carved out the current status quo. bedrock of the right to privacy is the Fourth Amendment, which states: The Right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (5) Initially the Fourth Amendment applied only to personal property and trespassing on land, but it was expanded considerably in Katz v. United States. (6) In Katz v. United States that the right to privacy was extended to protect people in places with a expectation of Charles Katz, a gambler, entered a phone booth to make several wagers unaware that the FBI had placed eavesdropping devices in the booth. (7) Mr. Katz was arrested and filed suit, arguing that the recordings violated his privacy and the FBI's actions constituted a search under the Fourth Amendment. (8) Supreme Court agreed and held that a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a reasonable expectation of privacy. (9) However, this right is not absolute. doctrine allows an officer to search for and seize evidence without a warrant if the evidence is found in plain view during a lawful search or observation. (10) In Terry v. Ohio, a limited search of a suspect to check for weapons when the officer had suspicion that a crime had either occurred or was about to occur, was found reasonable. …
MORE and more businesses are waking up to the importance of big data as a strategic resource. By analyzing the purchase history of its customers, a business can easily identify purchase trends and patterns. The increasing availability of cloud processing, analytics, and storage services has enabled businesses of all sizes across many industries to access big data. However, we must remain concerned both about the collection of data and in particular, the promulgation of data privacy laws to both protect data and, at the same time, promote the utilization of big data. In Japan, the Act on the Protection of Personal (PPIA) was recently amended and became effective on May 30, 2017 (the Act). The amendments will introduce a number of changes to existing data protection system. The term personal as used in the Amended Act, for example, has been clarified to further protect data and introduce more necessary regulations. At the same time, the amendments introduce the concept of Processed Information to promote the use of enormous data (i.e., big data) collected through the development of information and communication technology (ICT). The Amended Act also introduces new rules in response to the globalization of data flows. The purpose of this article is to provide practitioners with an understanding of three important changes made by the Amended Act and how these changes are likely to play out in practice. In Part I of this article, we will give a brief explanation on the newly revised definition of information under the Amended Act. Part II addresses and clarifies how and when big data should be treated under the new concept of Anonymously Processed Information. Part III discusses the new scheme under the Amended Act on cross-border transfers of information. I. Definition of Personal A. Clarification of definition of information Under PPIA, personal was defined broadly, and the scope of information was at times ambiguous. This ambiguity created difficulties among business operators. (1) For instance, information like identification numbers would not fall under the definition of information under PPIA in the absence of other information that could be easily used to identify a specific individual. With the development of ICT, however, there is a growing concern that privacy rights are at risk if information like identification numbers are not properly handled, since this type of information can now be easily linked with other information to identify a specific individual. To clarify the scope of information, the Amended Act defined the concept of Identification Codes. (2) Identification Codes, include codes, characters, letters, numbers, or symbols as prescribed in the Order for Enforcement of the Amended Act (the Order). According to the Cabinet Order, Individual Identification Codes consist of two categories of codes: (1) Codes which a body feature of a specific individual has been converted into data to be provided for use by computers, including DNA sequence data, facial recognition data, iris pattern data, voiceprint data, gait pattern data, palm/finger vein pattern data and fingerprint/palm print data. (2) Codes which are assigned in regard to the use of services provided to an individual or to the purchase of goods sold to an individual, or which are stated in a document issued to an individual so as to be able to identify a specific user or purchaser, such as a passport number, basic pension number, driver's license number, individual number (so-called My Number) and national health insurance number. (3) B. Regulations concerning Care-Required Personal The Amended Act introduces the concept of Special Care-Required Personal Information, which broadly corresponds to concepts of sensitive as seen in other jurisdictions, most notably in the EU and an increasing number of jurisdictions in the Asia-Pacific region. …
Basil A. (Bill) DiSipio has been a member of the IADC since 2002 and is a former President of the IADC Foundation. Mr. DiSipio is the Managing Shareholder of Lavin, O'Neil, Cedrone & DiSipio. The firm maintains offices in Philadelphia, Pennsylvania, New Jersey, New York, New York and Rochester, New York. For close to 40 years, he has been a litigator and trial lawyer representing corporations, insurers, and non-profit and religious organizations in tort and commercial litigation. Mr. DiSipio was assisted in writing this article by a former Lavin, O'Neil, Cedrone & DiSipio law clerk, Caitlin Wilenchik. She is a 2016 graduate of The George Washington University School of Law.LIKE a cat and mouse game, privacy law strives to keep up and provide redress for injuries related to information extracted from the latest technology. As a result of social media driven technology, society's notion of what should be protected personal information has changed over time.1 Posting a picture of an intimate moment between two people has become commonplace, and so has meeting that person through a cellphone application. In an age where face-to-face interactions can be completely avoided, society's privacy concerns have adjusted, inspiring new law, but not implementing it. Courts are left to analyze new privacy issues using antiquated methods.Juxtaposing old practices people used to unlawfully invade another's privacy to the new practices used reflects how old privacy law does not properly address the new problems. People are no longer breaking into buildings or homes to steal sensitive information. This world is now full of people who carry tremendous amounts of sensitive information in their cell phone, and someone no longer has to steal the cell phone to get that information. It can be accessed remotely. The cell phone has advanced to a degree greater than those devices used to send men to the moon. It does not help that because of the current legal landscape, it is unclear whether the average person has a right to protect a majority of the information supplied to social media applications or the unknown information collected.A modern cell phone is now called a smartphone, which is capable of sharing its physical location at any time.2 Smartphones have a Global Positioning System (GPS) chip inside, and the chip uses satellite data to calculate a person's exact position, which is supplied to various social media applications.3 Even if a GPS signal is unavailable, some social media applications, like Foursquare,4 can use a less accurate method to gain information from cell towers to find someone's approximate position.5 GPS and social media applications garner a mass amount of its user's private information, and this process poses a threat to their privacy because industries that manufacture this technology have unregulated security measures to protect sensitive information, if they have any measures at all.Years ago, small children could gain access to their parents' computers, enter an AOL chat room and at most, risk knowingly sharing personal information with the wrong person. It started with chat rooms, then MySpace and LiveJournal where anyone could publish their thoughts, feelings, birthdays, identify family members and friends, and the website could, in turn, provide direct access to other users. Today, add Twitter, Tumbler, Instagram, Facebook and Snapchat to the social media category as applications available at all times on a cell phone, which provide a user with more outlets to project personal information to others and keep a permanent log of this information. These social media outlets can help someone create a brand; or keep family and friends abreast of their life by sharing images, opinions, and details; or create an easy opportunity for others to unlawfully gain or use personal information.Social media applications succeed when users use them as much as possible. Profits increase the more information a customer shares, but this information can also be mined and traced by the wrong person. …
EVERY second an estimated 2.4 million emails are sent. The number of email users worldwide is 3.7 billion, and the amount of emails sent per day is around 269 billion. (1) The practical advantages of these technologies are obvious: they are time-saving, cost-effective and reliable. Most of our communications, whether professional or personal, are not held in paper or physical support but in an intangible record. Since the application of every new technology comes with inevitable controversies, it has been necessary to legislate on these innovations in order to prevent conflicts and provide adequate answers to those in need of justice. Because of its timeless quality and general, ample wording, the 19th Century Argentine Civil and Commercial Codes have been used to rule over a wide range of matters involving postal or electronic mails, with almost no legal improvements since their enactments (1862 and 1869, respectively). But in recent times, with the massive popularity of new forms of communications, it has become necessary to pass a law that includes not only facsimile or electronic mails, but also all kind of new technologies widely used. In response to those needs, the newly unified Civil and Commercial Code (2) (CCC) regulates all types of electronic communications and applies to all kind of information in the form of a data message, in accordance with the first article of the UNCITRAL Model Law on Electronic Commerce. (3) I. CCC provisions The CCC provides practical solutions involving the admissibility of evidence based on emails in both arbitration and litigation procedures. It is worth to point out that in matters concerning signature and its evidential value, the CCC follows the UNCITRAL Model Law on Electronic Commerce and the Civil Code of Quebec. (4) UNCITRAL Model Law Electronic Commerce has influenced legislation in more than thirty countries, including the CCC, as set out in its preface. (5) Although not expressly stated, the CCC also closely follows the United Nations Convention on the Use of Electronic Communications in International Contracts. (6) As noted above, the CCC takes into account all methods of written communications. Hence, emails are a type of evidence that can be admitted in arbitration and in court in the same way as any other methods of documentary evidence. However, the letter of the law establishes several limitations regarding confidentiality, as a way of protecting privacy. A positive aspect of the Argentine legal system is that it allows all types of evidence, even if it is not expressly permitted by law. These principles are referred to as freedom of proof. Any written communication, regardless of its form of creation or transmission, is admissible as evidence as long as it has been lawfully acquired and is not confidential. For the purposes of this article, evidence is referred to as information intended to prove a fact from which a conclusion may logically be drawn as to the existence of that fact. Evidence is a crucial tool for the judiciary as it is used to determine matters of controversy. It may consist of proof by testimony of witnesses, writings or records. In adjudicating a matter, judges prefer direct evidence like documents or witness assertions; that is why in many cases intangible electronic evidence is challenged on its admissibility. Legal limitations on admissibility are not based on mistrust of the technology, but are justified by the constitutional right to privacy. The law requires that the use of confidential emails as evidence in arbitration or in litigation be authorized by the addressee, following the maxim nemo tenetur armare adversarium contra se, meaning that nobody is bound to arm his adversary against himself. Third parties are not allowed to use emails or any form of correspondence without the consent of the addressee. When this type of evidence is provided by someone who neither is the originator nor the addressee, magistrates are required to take into account how this person gained access to the mails and reject those obtained in an illegal way. …
WE live in an era of data. Our increasing reliance on digital communication coupled with technological ability to capture, collect, and analyze ever-growing volumes of has led to application of predictive analytics techniques to many of most important facets of our lives, including healthcare, education, and employment. (1) ubiquitous nature of raises questions about the relationship between individuals and those who collect and use about them. (2) In seminal Harvard Law Review article The Right to Privacy, Samuel D. Warren and Louis D. Brandeis wrote of need for law to adapt to address new intrusions on right to privacy occasioned by social and technological change. article opens with following observation: That individual shall have full protection in person and in property is a principle as old as common law; but it has been found necessary from time to time to define anew exact nature and extent of protection. Political, social, and economic changes entail recognition of new rights, and common law, in its eternal youth, grows to meet demands of society. (3) These prescient words apply as forcefully today in age of as they did in 1890 when Warren and Brandeis first discussed the right to be let alone. (4) Inherent in traditional view of right to privacy is generally accepted principle that each individual has the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. (5) Yet in our wired world, individuals passively communicate information about themselves each day with little knowledge about or control over how information is transmitted and purposes for which it is used. Big raises concerns about not only individual right to privacy, but also whether it creates such an opaque decision-making environment that individual autonomy is lost in an impenetrable set of algorithms. (6) Existing legal frameworks may prove insufficient to address novel privacy concerns raised by data, and time might yet again be upon us to consider scope of right to privacy and legal mechanisms required to protect it. This article focuses on use of in employment context. Big can be used by employers in many positive ways, including eliminating irrational or even discriminatory biases in hiring process; identifying unique and unexpected sources of talent; promoting employee wellness; reducing healthcare costs; and increasing worker efficiency. Critics of predictive analytics in workplace decry fact that from digital activities can be used by employers to make assumptions about individuals' behavior that impact their livelihood without their even knowing it. (7) Employers and their advisors who seek to realize potential of must navigate largely uncharted territory because does not fit neatly within existing legal frameworks that govern employment relationship. Until employment laws are updated to more directly address data, counsel advising employers on use of in workplace must consider how existing legal protections may apply. Many compliance issues can arise and will continue to arise as technology evolves and new applications emerge. This article seeks to provide employers and their counsel with just a few examples of impact that can have in workplace and related compliance concerns. I. Defining Big Data A. Characteristics of Big Data There are many different definitions of data. In privacy context, has been defined as data about one or a group of individuals, or that might be analyzed to make inferences about individuals. (8) Perhaps most commonly-referenced characteristics that make big are so-called three V's: datasets of enormous volume, in an ever-increasing variety of formats, continuously collected at a rapid velocity. …
I.The of EraWE ARE living in an era that some refer to as the Internet of Things (IoT), where wireless connected devices know how we work, play, shop, sleep, drive, manage our homes, and medicate. IoT is a concept that represents the network of smart devices (or things) that are connected to the and to each other and have the ability to collect and exchange data on every aspect of our lives and businesses.1 Though there is no specific definition of IoT, the concept focuses on how computers, sensors, and objects interact with each other and collect information relating to their surroundings.2 The connected devices operate on embedded sensors that automatically measure and transfer data (i.e., environmental and activity information) over a network to data stores without human interaction.3 These data stores interact with analytic engines to collect and provide data that can be acted upon.4Among connected devices are devices that allow for the remote monitoring of babies and children; devices to help you to remember to take your medications; devices to track your activity levels; devices to help monitor an aging family member; medical devices that allow your health to be monitored by your doctor and that automatically release proper levels of medication; devices that allow you to remotely monitor your home; devices that allow you to turn off appliances or change the temperature in your home; devices that allow you to feed and water your plants and pets; and refrigerators that remind you when you are out of eggs. There are smart TVs and toys. There are devices that allow cities and governments to monitor trash pick-up, traffic flows, pollution levels, electricity usage, and the structural soundness of buildings and roads. There are devices that allow companies to monitor the repair and maintenance needs of equipment and track real time marketing trends in stores. This list of IoT devices is in no way complete, and it grows longer every day.In 2009, the number of IoT devices surpassed the number of people,5 yet, the development and use of connected devices is really just in its infancy. By 2020, it is estimated that there could be 50 billion connected devices.6 By way of example, only 10% of consumer cars were connected to the in 2009, but in 2020, 90% of consumer cars will be connected. 7 All of these connected machines mean much more data will be generated: globally, by 2018, mobile data traffic will exceed fifteen exabytes - about 15 quintillion bytes - each month. By comparison, according to one estimate, an exabyte of storage could contain 50,000 years' worth of DVD-quality video.8Certainly, IoT devices can provide many benefits to consumers - convenience, home safety, medical monitoring, and reduced energy waste are a few examples. These benefits help explain IoT's rapid growth. But, these devices create both security and privacy risks. IoT devices can be hacked and controlled by third-parties. For example, imagine if the software system for the electronic thermostat in your home is hacked and turned off. Your home is damaged as a result of frozen pipes and/or water damage. Or, imagine if your home security system is hacked and disconnected. Your home is then vandalized and robbed.9 Or, what if your doctor's medical monitoring equipment software is hacked? Your medical device doesn't release the medicine you need to survive. Or, what if your implanted defibrillator has been reprogrammed by an unauthorized user?There are also privacy risks related to IoT devices. The devices collect, transmit, and store consumer data, some of which is highly personal. If they are hacked, your private personal information could be shared, sold, and used. Private conversations could be exposed. Your private life is now no longer private.Beyond these security and privacy risks, a device may also simply malfunction. A remotely operated device might fail and cause property damage such as fire or water damage. …
MUCH has been written in the technology press regarding issues of privacy, the car, and the promise of automated driving and other innovative mobility solutions. Connected which are on the road today in one form or another, merge the driver's digital world and means of transport. Automated driving, with the promise of true autonomous, self-driving vehicles, holds the potential in the near future to revolutionize the way people and goods move around. These developments, which challenge traditional ideas of tort and product liability and the insurance coverage that should apply, also loom as the cyber-criminal's new frontier and pose privacy challenges. Why should any of these developments concern privacy? After all, device manufacturers equip today's smartphones with built-in geo-locating capabilities that enable numerous applications to track the user's every move, producing a rich stream of data which implicates the user's innermost thoughts. Apps added or activated by the smartphone owner enable the platform--either Google or Apple for most devices--to identify the movement of individual stocks in the owner's portfolio after the market closes each day or to inquire, Are you at Le Pain Quotidien on 58th Street? as lunch is being served. Other apps collect the user's heart rate, level of stress, steps taken each day, and a myriad of other data. A may get the user to a shopping mall, but smartphones know what individual stores a patron visits inside the mall, the aisles in the store that are browsed, and the articles of clothing considered for purchase, so that tailored ads, discounts, or coupons may dispatched the user's way. (1) How, then, could autonomous vehicles to networks and data centers via the cloud pose privacy challenges that haven't yet been addressed, if not resolved, in the operation of smartphones? This article explores the subject of privacy, cars, and automated driving. Additionally, this article will introduce the reader to current approaches to privacy advanced by constituencies having a stake in the continued advancement of vehicles and automated driving. (2) I. Defining Terms Car connectivity generally comprises the sets of functions and capabilities that digitally and wirelessly link automobiles to drivers, services, and other automobiles. (3) Thus, a connected car generally refers to a vehicle equipped with technologies and services that transmit and receive data via wireless internet. The concept of a is related to concepts of automated driving, which includes efforts to create autonomous driving and other innovative mobility solutions. SAE International, the society of automotive engineers, anticipates connectivity and automated driving emerging and being deployed along a continuum of functionality. SAE therefore has developed a scale to describe that continuum, with the fifth level representing a completely autonomous vehicle. In late 2016, the National Highway Traffic Safety Administration (NHTSA) adopted the SAE definition, which NHTSA then presented as follows: There are multiple definitions for various levels of automation and for some time there has been need for standardization to aid clarity and consistency. Therefore, this Policy adopts the [SAE] definitions for levels of automation. The SAE definitions divide vehicles into levels based on who does what, when. Generally: * At SAE Level 0, the human driver does everything; * At SAE Level 1, an automated system on the vehicle can sometimes assist the human driver to conduct some parts of the driving task; * At SAE Level 2, an automated system on the vehicle can actually conduct some parts of the driving task, while the human continues to monitor the driving environment and performs the rest of the driving task; * At SAE Level 3, an automated system can both actually conduct some parts of the driving task and monitor the driving environment in some instances, but the human driver must be ready to take back control when the automated system requests; * At SAE Level 4, an automated system can conduct the driving task and monitor the driving environment, and the human need not take back control, but the automated system can operate only in certain environments and under certain conditions; and * At SAE Level 5, the automated system can perform all driving tasks, under all conditions that a human driver could perform them. …
MOST people have never heard about the 1858 murder trial of William Duff Armstrong. But everyone knows Armstrong's defense attorney: Abraham Lincoln. Before he was elected the Sixteenth President of the United States, Lincoln had struggled to make a name for himself. As he told the jury, Mrs. Armstrong--the widowed mother of his client--had shown him kindness, providing shelter and clothes when he had none. Seeking to reciprocate the generosity when her boy found himself in some trouble, Lincoln volunteered for her son's defense without a fee. Armstrong was charged with murder in the first degree. Prosecutors alleged that on the night of August 29, 1857, Armstrong beat James Metzger so severely that he died the next day. A fellow by the name of Allen, witness for the prosecution, testified that he witnessed the blow. How? By the light of the full moon. It was 10 o'clock p.m., he testified, and the moon shined brightly. The court adjourned for the day. That night, Lincoln went to a corner drug store in Beardstown, Illinois, and purchased an almanac. The next day, he was prepared. The moon on that night, the almanac showed, did not shine until several hours after 10 p.m. The court took judicial notice. Shortly thereafter, the jury acquitted Armstrong. The reason for telling the story of the Almanac Trial is two-fold. The first is that judicial notice is valuable. Without it, Lincoln would have had to lay a foundation for introduction of testimonial evidence showing that the moon did not shine at the time Allen said, cross-examine Allen to impeach the witness or in the hopes he recanted, or offer documentary evidence and have it authenticated. The second reason for the story is that by using judicial notice, Lincoln won the case. Once called the deus ex machina of judicial notice provides a shortcut that is not only more efficient, but also more commanding than ordinary evidence. The jury was instructed to accept the fact that the moon did not shine until hours after midnight. Judicial notice is one of the most underappreciated and frequently misunderstood doctrines of evidence, yet it remains a powerful tool for any trial attorney. Judicial notice can help establish important facts beyond dispute, and more significantly, help establish facts decisively. This article will discuss this important evidentiary doctrine, offer some helpful insights into successful application of judicial notice, and offer tips to avoid its misuse. I. A Brief History Judicial notice has long-standing roots. Based on the ancient adage manifesta non indigent probatione, or what is known need not be proved, judicial notice is one of the oldest doctrines in common law history. Originally, judicial notice was a tool of convenience, used by trial judges with broad authority based on their own common knowledge. Eventually, however, Federal Rule 201 and its state counterparts paved the way for judicial notice to focus less on the common knowledge of judges, and more on the source of the fact. This seemingly slight change has broadened the application of the rule, and, coupled with the technological revolution, opened the door to an infinite amount of noticeable material. A. Early Common Law Surprisingly, the earliest use of judicial notice does not come from the rules of evidence for use at trial. Instead, the first application of judicial notice was at the motion to dismiss stage. Early American courts took judicial notice of obvious facts that were omitted from a pleading to avoid having to dismiss a claim. (1) Although judicial notice would soon become enshrined in the Federal Rules of Evidence and used during trials, it started as a simple means of convenience for the court. While the rule has evolved over the years, the importance of convenience has remained a constant, and judicial notice has developed into a tool to circumvent long and inefficient procedural hurdles in all stages of litigation. …
FOR the last eighteen months, you have been steeped in the intricacies your case. The facts that should make a difference. The theories that satisfy or refute the applicable five-pronged prima facie test. The idiosyncrasies the witnesses, and the temperament the judge. In final trial preparations, you laid out the entire case like a jigsaw puzzle and admired the interlocking arguments and evidence. And now, having marshalled the full resources your client, and armed with your own shining felicity expression, you look into your jurors' faces and see ... absolutely nothing. Blank incomprehension. They aren't following a word what you're saying. Where did you go wrong? It may be that, during trial preparation, you structured your case to appeal to the understanding, sensitivities and mindset a lawyer, rather than the very different worldview a juror. All those years law school; the time you spent apprenticing as an associate; the decades partnership thereafter; the year and a half that you devoted to working up this very case--all have shaped your thinking in a way that, at this moment, is entirely counterproductive. Your jury has none the benefit, or baggage, that you've brought to this experience. And you don't have a lot time to get them on your side. In commercial and business litigation, your problems at this moment are compounded by the specialized vocabulary and practices the business world--which may well be entirely foreign to your jurors. Mezzanine financing. Fiduciary duties. Proprietary trade secrets. Leveraged buyouts. Is it a non-compete or a non-solicit? Boards directors, limited partners, general ledgers. None this may be within the life experience the individuals tasked to decide your case. You can start by coming to grips with their psychology and the filters they use to process the information you will present in trial. This article focuses on three basic questions: 1. How do juries cognitively organize and interpret complex or unfamiliar concepts in a business case? 2. How can you maximize juror comprehension, so that they can follow the narrative thread your business case? 3. How can you consistently reinforce the evolving narrative thread to maximize juror retention? By focusing on cognition, comprehension and consistency, this article seeks to provide both psychological insight drawn from a rich body juror research and practical tips for how juror psychology can be harnessed to your advantage in a business dispute. I. What Was That Again? Jurors Struggle to Understand Legal and Business Concepts First, let there be no doubt that jurors struggle to understand concepts typical to even straightforward commercial and business disputes. While there is enormous regional variability, if one was to profile a fictitious average juror drawn from national demographics, that juror has graduated high school, but has not completed a four-year college degree. (2) Yet we might task that juror to consider the facts a trade secrets business dispute--likely involving accounting principles, general ledgers, business valuation damage assessments, a computer forensic expert, and competing interpretations a covenant-not to-compete or an employee handbook. And that's just for the business concepts. The legal standards conveyed in the jury instructions are equally daunting. Several studies have shown that jurors typically understand roughly half the jury instructions that they receive at close trial. (3) After polling sample jurors following instructions, one study summarized their understanding: [O]nly half the references to the law were accurate, even when credit was given for partial accuracy. One-fifth the references were clearly, seriously wrong. (4) In another study, despite explicit contrary instructions, 43% potential jurors believed that circumstantial evidence was of no value, and 23% believed that when faced with equal evidence a defendant's guilt or innocence, the law required that the defendant should be convicted. …
At the end of the 1980's and throughout the 1990's, there were numerous contractor bankruptcies and insolvencies, which triggered defaults under the terms of construction contracts. This led to claims by owners against the insurance companies acting as sureties of the contractors, under performance and payment bonds. Surety companies, their consultants and attorneys were kept busy for several years. Since that time, underwriting standards have improved, and there have been less claims on bonds. In recent years, industry veterans have noted that there does not seem to be the same understanding of the ins and outs of the surety claim process. This article provides an overview of the suretyship and how it fits into the field of construction law. We will also underline some distinctions between the interpretation of the suretyship in the United States and Canada and will address the following points: 1. The difference between insurance and surety; 2. The underwriting of a surety bond and the indemnity agreement; 3. The different type of bonds: bid bonds, performance and payment bonds; and 4. Dispute resolution: must the parties go to Court? I. Insurance vs. Surety One of the first questions asked by newcomers to the surety field is: if a bond is issued by an insurance company, why isn't it always interpreted in the same manner as an insurance policy? However similar they appear, the obligations between the parties are different, and the loss under the bond is ultimately the contractor's, that is, the principal under the bond. In the case of a first party insurance policy, the insurer pays the insured the amount of the loss, which the insurer may then seek to recover from the responsible third party, if possible. Under the terms of a CGL policy, the insurer will pay a third party for the liability of the insured. There is a three-party relationship in a surety arrangement between the following parties: (1) the contractor/principal, (2) the owner/obligee, and (3) the insurance company/surety. The principal has a contract to perform for the obligee, and in case of default of the principal, the surety is bound to perform and fulfill all of the terms and conditions of the underlying contract. If the surety pays an amount to the obligee, it will seek recovery from the principal as well as those parties who signed an indemnity agreement in favor of the surety, as will be explained in greater detail in the section on underwriting. Under the terms of an insurance policy, there are only two parties to the agreement, the insurer and the insured. The insurer does not perform the insured's obligation, its obligation is to pay the insured or a third-party claimant upon the occurrence of an insured event. Some courts respect the historical distinctions between insurance and suretyship, like the California Supreme Court in Cates Construction Inc. v. Talbot Partners. (2) However, certain jurisdictions are not as preoccupied with the differences between suretyship and insurance because, in certain states, sureties are treated like insurers, as may be seen in Dodge v. Fidelity and Deposit Co. of Maryland. (3) And in the more recent case of Ewing Construction Co. v. Amerisure Insurance Co., (4) the Texas Supreme Court took a different approach, as it treated CGL coverage in a manner similar to an interpretation of a surety bond. (5) Ewing Construction had entered into a standard AIA contract with a school district to build tennis courts. After Ewing completed construction, the school district complained that the tennis courts were flaking, cracking and crumbling, rendering them unusable. The school district filed suit against Ewing, asserting claims for breach of contract and negligence. Ewing tendered the defense to its general liability carrier, Amerisure, which denied coverage. Ewing sued Amerisure in federal court in Texas, seeking a declaration that Amerisure had breached its duties to defend and indemnify it in the school district's suit. …
A recent series of cases in aerospace product space attempted to breathe new life into product line exception to general rule that successor corporation not liable for wrongdoing of While all four of most recent cases rejected product line theory on summary judgment, renewed invocation of product line doctrine warrants revisiting of it to understand why this once bourgeoning, economically-based exception to successor nonliability no longer flies in vast majority of states. This article will discuss rule of successor nonliability generally, and commonly known exceptions to that rule. Then, two modern exceptions--continuity of enterprise and product line--will be reviewed, with an in-depth analysis of product line theory and its origins. Finally, this article will address most recent rejection of this doctrine by Seventh Circuit and Illinois state courts in four recent cases involving alleged product defects in airplanes. I. Successor Liability and Its Traditional Exceptions As general rule of successor liability, when manufacturing business acquires assets of predecessor manufacturer, successor not liable for unassumed liabilities of predecessor whose assets it purchased. (1) As with every rule, there are exceptions. For example, successor may be liable for predecessor's liabilities when, in words of Restatement Third of Torts, the acquisition [of business]: (a) accompanied by an agreement for successor to assume such liability; or (b) results from fraudulent conveyance to escape for debts or liabilities of predecessor; or (c) constitutes consolidation or merger with predecessor; or (d) results in successor becoming of predecessor. (2) The majority of courts impose strict on successor corporations only if one of four above-listed exceptions apply. (3) II. The Modern Exceptions of Continuity of Enterprise and Product Line Over time, small number of states have recognized two additional exceptions to general rule of no successor for an asset-purchaser. Those exceptions are referred to as continuity of enterprise, and product line exception. Continuity of enterprise considered an expansion of traditional, continuation exception to general rule of successor non-liability as it has less rigid requirements. (4) This exception still minority rule, followed by only few jurisdictions in certain limited circumstances. (5) Under mere exception, a successor may be subject to for debts of its predecessor where it found that successor essentially reincarnation that merely 'new hat' for predecessor entity. (6) For mere exception to apply, there must be a continuity of ownership and between successor and predecessor businesses. (7) Under continuity of enterprise theory, however, liability may also be imposed on successor that has continued business operations of predecessor. (8) This represents shift of focus from mere exception, which looks to of business entity of predecessor. (9) The continuity of enterprise approach focuses less on whether legal owners of predecessor continue to influence control over successor company and instead is focused on whether successor has continued same general business operations of predecessor entity. (10) Accordingly, continuity of enterprise exception applies without regard to whether there has been continuity of ownership by shareholders of predecessor. (11) The product line exception was first recognized by California Supreme Court in Ray v. Alad Corporation. (12) The court in Ray held that a party which acquires manufacturing business and continues output of its line of products. …
ARBITRATION agreements are becoming more the norm, especially in international transactions. (1) International arbitration courts like the ICSID and the international Chamber of Commerce have shown a steady, continuing increase in international arbitration cases. (2) As arbitration clauses become more prevalent in contracts, bankruptcy courts will often have to determine if to submit a claim in bankruptcy court to arbitration, as arbitration clauses are generally broad, encompassing disputes arising out of or in connection that contract. (3) International transactions can be enormous, even involving states, and bankruptcy remains a prevalent issue. (4) zzzz What bankruptcy courts are required to do is still uncertain in the United States. The Supreme Court has not addressed this issue, and there is some variation between circuits. Generally, bankruptcy courts tend to refuse enforcement of an arbitration agreement when arbitration would inherently with the purposes of the Bankruptcy Code. But some courts rely heavily on the core/non-core distinction in bankruptcy claims in determining if the arbitration agreement should be enforced, while others only focus on the inherent between purposes of the Bankruptcy Code and FAA. The trend by the Supreme Court seems to be in limiting the power of the bankruptcy court under Article III, (5) while broadly enforcing international arbitration agreements in general, even when the dispute involves statutory rights. International arbitration agreements rely on predictability in resolving the disputes and providing a neutral forum for the dispute, protecting the rights of all parties. This article discusses the increasing trend by courts to enforce arbitration agreements unless they conflict with the Bankruptcy Code's purpose, and analyzes new issues that may affect bankruptcy courts' determinations. In international arbitration agreements, even in the context of bankruptcy proceedings, these agreements should be enforced more rigorously than domestic arbitrations to remain in line with the Supreme Court's recent jurisprudence and protect the rights of all international parties. I. Conflicting Purposes Bankruptcy and arbitration are often at odds in their purpose. [T]he purposes of the Bankruptcy Code include '[centralization of disputes concerning a debtor's legal obligations' and protect[ing] creditors and reorganizing debtors from piecemeal litigation' (6) while arbitration can disrupt this purpose because it can permit[] an arbitrator to decide a issue would make debtor-creditor rights 'contingent upon an arbitrator's ruling' rather than the ruling of the bankruptcy judge assigned to hear the debtor's case.' (7) In bankruptcy, efficient decisions of claims and conserving of the bankrupt estate's assets are fundamental to the purposes of the Bankruptcy Code. (8) However, arbitration has the potential to last much longer and can affect the rights of creditors, presenting what many courts view as legitimate concerns. (9) The Bankruptcy Code and the FAA may even a conflict of near polar extremes: bankruptcy policy exerts an inexorable pull towards centralization while arbitration policy advocates a decentralized approach towards dispute resolution. (10) Arbitration may also present piecemeal litigation concerns as well, especially as some courts will distinguish between core and issues, discussed below. But, in the context of international arbitration, the benefits and purposes of international arbitration may outweigh the costs that arbitration imposes on bankruptcy. Many of the cases discussed below are domestic arbitration cases, but in the context of international arbitration a court should be more willing to compel arbitration. A U.S. bankruptcy court has discretion to compel or not compel arbitration in either a or non-core proceeding, but there is a greater tendency to compel arbitration where international arbitration is involved. …
In medicine, a is a technique physicians sometimes use to identify the cause of a patient's symptoms. As its name indicates, the process is intended to result a medical diagnosis. The term differential diagnosis has often been used toxic tort litigation to mean something completely different. A plaintiff who files a toxic tort case should already have a medical diagnosis. Indeed, it should be the which leads the plaintiff to file the lawsuit the first place. The toxic tort differential diagnosis is not a at all, but rather a method whereby a plaintiff's expert purports to rule in various potential causes for the plaintiff's illness and then to rule alternative causes until only one cause remains. It should come as no surprise to defense attorneys that, when a plaintiff's expert uses the technique, it inevitably points to the defendant. The accurate name for the technique as used litigation is differential Yet, courts persist calling it a and sometimes confuse the medical standard for diagnosing an illness with the legal standard for determining cause and effect. When that happens, a plaintiff's expert may be allowed to introduce causation opinions that are based on unscientific The case law on is inconsistent and sometimes contradictory. This article is intended as a guide for defense lawyers who are facing claims which the plaintiff's expert purports to base his or her causation opinion on a etiology. It will explore the method as it has been employed state and federal courts, and provide some practice tips for defending against such opinions. The goal of this article is to place defense counsel the best position to exclude etiology opinions and, if the opinions survive the defense challenge, to cross examine the expert. I. Differential Diagnosis Perspective: The Daubert/Frye Framework and the Plaintiff's Burden The cases which courts have admitted speculative etiology opinions generally appear to be ones which the courts have ignored the Daubert or Frye standard and accepted the expert's characterization that his or her causation opinion is based on clinical experience or professional judgment. To be the best position to keep such testimony out of evidence, the defense lawyer plan the expert's deposition such a way that the expert either agrees with the generally-accepted legal standard for proving causation or admits that he or she did not follow that standard. A Daubert or Frye motion should follow. A. Daubert: Science, not speculation The purpose of Federal Rule of Evidence 702 is to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. (1) The Supreme Court has explained that an expert employ the courtroom the same level of intellectual rigor that characterizes the practice of an expert the relevant field. (2) The knowledge requirement of Rule 702 requires more than subjective belief or unsupported speculation. (3) When deciding a Daubert challenge, the judge's task is to separate real science from speculation masquerading as science. Daubert cautioned, however, that the trial court's focus must be solely on principles and methodology, not on the conclusions that they generate. (4) Since Daubert, appellate courts have sometimes reversed trial courts because the trial courts focused on the expert's conclusion (with which it disagreed) rather than on the expert's methodology. (5) One obstacle to mounting a Daubert challenge to a etiology opinion is that many courts have already accepted the technique as a valid method for determining causation. (6) As set forth below, there should still be room to attack a etiology by arguing that the expert applied the technique an unreliable and unscientific way. …
