Articles Posted in Technology

Quantum computers will be more prevalent in the coming years as technology advances and they become more affordable. Quantum computers function differently than traditional computers. They are faster and much more efficient when compared to traditional computers. Today’s traditional computers use digital bits which represent zeros and ones – i.e., they must be either on or off for computing process. However, quantum computers operate by using qubits which can store digital information and have several properties. In essence, they can make instantaneous calculations that can take a traditional computer several years. Quantum computers can resolve industrial problems that can take traditional computers a longer time.

What are the applicable technologies and legal problems?

The advantage of having access to quantum computers can be significant. This is because, for example, a company that has access to these exponentially-advanced electronic devices can decrypt a sophisticated program within minutes and threaten the victim’s privacy rights. In other words, it could carry a potential invasive power that would be unmatched by traditional computers. Encryption technology is being used to protect sensitive information. There is “symmetric” and “asymmetric” encryption technology that is being used in the market.

The California Electronic Communications Privacy Act (“CalECPA”) was enacted several years ago to require government agencies to obtain a valid search warrant prior to requesting electronic information from service providers. These statutory protections can be enforced by business entities and individuals and extend to communication service providers which collect and store electronic information, including, but not limited to, emails, digital documents, pictures, videos, geolocation data, and Internet Protocol addresses.

This statute yields additional privacy protections when compared to the federal Electronic Communications Privacy Act which was passed as Public Law 99-508, Statute 1848, and codified under three separate titles. Title I, is referred to as the “Wiretap Act” and prohibits the unlawful interception of electronic communications. Title II, is referred to as the “Stored Communications Act” and protects content that is stored by service providers. Title III, is referred to as the “Pen Register Act” and addresses pen registers and trap-and-trace devices. It mandates government agencies to obtain a valid court order that authorizes the installation and use of pen register and trap and trace devices.

The CalECPA requires a valid search warrant in order to compel the production of or access to sensitive information such as emails that are stored on a computer server for more than 180 days, detailed geolocation, and sensitive metadata that is related to the consumer’s electronic communications. The statute does not allow government agencies to: (1) compel the production of or access to electronic communication information from a service provider; (2) compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; or (3) access electronic device information through physical interaction or electronic communication with the electronic device unless it is voluntarily disclosed by the intended recipient.

Machine learning algorithms can help create fake videos or pictures of someone else without their knowledge or consent. In fact, in 2017, University of Washington’s researchers created a video of Barak Obama who was seemingly discussing important issues. Now, there are software applications such as FakeApp that can help create deepfake pictures or videos for free. FakeApp was created by using Google’s open-source deep learning software program.

The advent of “fake news” has created a new movement in the entertainment and news industries. It has allowed everyone to question the source and validity of journalistic works. So now, deepfake movements and creations are creating new legal predicaments. The relevant issues, include, but may not be limited to, invasion of privacy, false light, and defamation.

The creator or publisher of the deepfake picture or video can put together a seamless video by having access to a base video and several source images of the person’s face. The computer-generated face can look identical to the original person’s face which can create confusion. This confusion can result in monetary damages to the victim. For example, a deepfake video can show the victim saying or doing something wrong which could cause the victim’s loss of employment. Or, in another example, the victim, who is running for political office, may be shown to have said or done something that could impede the election process.

Deepfake rules and regulations have been developing in the recent times. The term “deepfake” comes from two separate words – deep learning and fake – which uses artificial intelligence technology to create fake pictures or videos. The creator can utilize special software programs to create the picture or video by face swapping. This has become a problem because it can violate the victim’s privacy rights and public image.

We can detect the false image by conducting a reverse-image search. So, in other words, if the fake image was made by using another image on the web, the original version should be found. The fake image may be also detected by close evaluation. So, for example, the person in the fake video may not blink or yield normal facial expressions. It may also be detected through magnification or physiological analysis.

The victim’s legal rights can be violated by the deepfake creator or publisher. In most cases, it raises an issue regarding privacy rights. In California, false light is a legal cause of action that can be used by the plaintiff against the defendant who improperly represented the plaintiff who was embarrassed or offended by those actions. The plaintiff may argue that any reasonable person in the same or similar circumstances would be embarrassed or offended. The plaintiff may bring a cause of action for defamation against the creator and argue that the false factual statement – i.e., picture or video – was not privileged and had a tendency to damage his or her reputation in the community. The plaintiff may also file a legal action for misappropriation or right of publicity of the picture or video was utilized to promote a promote or service. Now, if the plaintiff suffers from emotional distress (e.g., depression, anxiety, insomnia), then he or she may also bring a cause of action for intentional or negligent infliction of emotional stress. See https://www.justia.com/trials-litigation/docs/caci/1600/1600 for more information.

Artificial intelligence technologies have been used to enhance deepfake campaigns. Deepfake is defined as synthetic media where a real person’s image is replaced with someone else’s likeness. It can be used to create an artificial video of another person and make it look real. It has been used to create celebrity porn videos, revenge porn, or fake news. It uses deep learning artificial intelligence software to create a fake picture or video. So, in essence, it can threaten valid and truthful information by publishing false or inaccurate information.

The technology that permits the creation of deepfake is “deep neural networks” which is one kind of artificial intelligence algorithm that finds large data set patterns. The neural-network structure that is generally used is the “autoencoder” which comprises of an encoder and decoder. The encoder compresses the image to a smaller size and the decoder decompresses the image back to the original size. A similar technology is the VFX which has been used by movie studios for visual effects. However, at the present time, a similar and less expensive technology is available.

There can be problems with deepfake technologies. For example, it’s been used to create fake images or videos of well-known individuals. This, in and of itself, can create legal issues such as defamation, false light, and civil harassment. Defamation is a false factual statement that is not privileged and tends to harm someone’s reputation. Defamation can occur against individuals and corporations and can have a lasting negative effect. False light is similar to defamation but it usually concerns invasion of privacy. So, for example, it can happen when a person is falsely portrayed as something he or she is not due to inaccurate impressions. The Restatement Second of Torts, Section 652, defines it as follows:

Predictive policing has been used to calculate and forecast future crimes. Yes, although it sounds quite futuristic, but it has been used by various private and public organizations. The City of Santa Cruz, California was one of the first state governments that tried to implement this technology in an effort to stop crime. Predictive policing works by using machine-learning algorithms to calculate the possibility of future crimes. It uses mathematics and data analytics to evaluate information and make systematic predictions. It can also use artificial intelligence technology to reach the results. However, after some time, its public officials stopped their efforts to prevent racial inequality. Predictive policing raises several legal issues that will be addressed in this article.

First, there could be a problem with negligent police activity. We know that, once access is granted to a database of private or confidential information, it is highly probable that someone will abuse it. In other words, an agent may use that information in the wrong way. The technology has not proven to be effective in the sense that crime can be predicted. So, the police officers may engage in activities that would constitute harassment instead of protecting the public. C.C.P. § 527.6 defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” So far, predictive policing’s technology has not been able to specify who, when, where, what, how, or why future crimes can take place. It has not been able to tell the specific location of the future crime. So, for these reasons, it could be abused that could lead to negligent policing activities.

Second, there could be a problem when the private or confidential information is used to violate someone’s privacy. Invasion of privacy is a cause of action where the plaintiff sues the defendant for violating his or her privacy rights. The elements for public disclosure of private facts are as follows: (1) defendant publicized a matter regarding the private life of the plaintiff; (2) the publicized matter would be highly offensive to a reasonable person; and (3) it is not of legitimate concern to the public. In addition, invasion of privacy may occur if there is an intrusion upon someone’s seclusion. The prima facie elements for this cause of action are: (1) defendant intruded into plaintiff’s private affairs, seclusion, or solitude; and (2) the intrusion was objectionable to a reasonable person.

Cybersecurity risk management requires proper due diligence on the company’s cybersecurity program. This is an important aspect because the company’s executives owe a fiduciary duty towards their shareholders and customers. In other words, a company’s manager or director should take every reasonable measure to ensure the safety and security of the company’s intellectual properties, trade secrets, and other sensitive or confidential information. As such, a claim or cause of action for breach of fiduciary duty can seriously hinder business operations and should be avoided by any means necessary.

We recommend properly assessing internal and external threats such as disgruntled employees or third-party contractors who were given access to the computer network system. It’s certainly possible for a disgruntled employee to insert a flash drive which yields malware into the network server to cause a malfunction. Therefore, it is important to have the right security measures implemented on the computer network system. For example, our cybersecurity lawyers recommend installing an Intrusion Detection System (“IDS”) to detect unauthorized access to sensitive or confidential files. It is important to review and understand the laws related to workplace monitoring because it could trigger workplace privacy right violations. There are state and federal laws that would impact the legal rights and responsibilities of employers and employees so it’s important to understand them. In fact, companies that fall under the definition of “critical infrastructure” organizations pursuant to Executive Order 13636 should consider implementing insider threat programs as a precautionary measure.

It’s recommended to have an enterprise risk assessment program that involves cybersecurity experts and lawyers. These computer and legal experts should join forces to establish a program that addresses the key issues – e.g., data privacy, data protection, insider threats, breach notification protocols. It’s important to have a plan before the so-called “cyber incident” so the key players will know their responsibilities. This way, when an incident takes place, there will be a preexisting protocol for everyone. Moreover, having access to a cybersecurity attorney is crucial to the company’s legal and ethical responsibilities. Our law firm advises its clients regarding the relevant state, federal, and international rules and regulations as we have the necessary background and expertise in internet, technology, and cybersecurity laws.

Smart devices are being sold to consumers and businesses on a regular basis. They include smart phones, smart cars, smart televisions, smart thermostats, smart doorbells, smart bulbs, smart locks, smart watches, smart speakers, smart refrigerators, and other electronic devices. These smart devices can be recording you or collecting personal data without your knowledge or consent.

Privacy in the internet and technology age has become a major concern. This is primarily due to the existence and availability of smart devices which are even referred to as “smart spies” because they can record and transfer personal information to the hackers who use technical flaws to install spyware. This is why it’s important to review the security settings of the smart device on a regular basis. For example, smart televisions are connected to the internet, and if they are hacked into, they can easily be used for nefarious purposes. Smart speakers and digital assistants are listening to voices and that is why they can be a threat source for their users. They are constantly collecting information with or without the user’s knowledge or consent. There may be a way to delete the recently-recorded information by telling the smart device to delete the last conversation but consumers should read the user’s manual to learn about the options.

Smart doorbells, which are part of a home’s security surveillance system, have cameras and are connected to the internet. Therefore, they can be hacked into and used to record activities. For example, Ring has been questioned for sharing video recordings with police departments and third-party service providers such as Facebook and Google without the user’s knowledge or consent. It is important to view the “authorized client devices” feature to understand which device is accessing the account.

Internet fraud and scams have exponentially increased in recent years. There are several reasons for this development which include the expansion of technology and usage of electronic devices in our daily lives.

The fraudsters find different ways to retrieve sensitive or confidential information in order to commit their crimes. For example, they may extract the information by dumpster diving next to corporations and financial institutions. There have been cases where sensitive information of a corporation’s employees was extracted without authorization. They may also engage in “shoulder surfing” which is another way to surreptitiously extract confidential information from the unsuspecting victim. These activities usually take place close to a bank’s ATM in order to steal the victim’s debit card PIN. They can also use what is referred to as a “skimming device” as a way to obtain sensitive information from debit or credit cards. These devices can be placed on ATMs to procure the confidential information without suspicion. The fraudsters can also obtain sensitive or confidential information by breaking and entering into the victim’s property. This way, they can look into the victim’s house or vehicle for valuable items or confidential documents.

There is a long list of internet fraud methods such as auction scams, rental scams, dating scams, lottery scams, and charity scams. The criminals are finding new ways to trick their victims into relinquishing valuable information – e.g., address, telephone, date-of-birth, social security number, debit or credit card number. Social engineering is another method to obtain information which is usually done by gaining the victim’s trust. It has become one of the main methods for extracting valuable information from unsuspecting victims. The internet allows culprits to anonymously communicate with their victims which is the major issue in lawsuits simply because it takes time and effort to launch an investigation. Our law firm is able to unmask the anonymous culprit’s identity by using the proper tools and techniques. We have access to a network of experts and investigators who can help our clients. We have also established relationships with local, state, and federal law enforcement agencies.

The parties are generally entitled to discovery of relevant and admissible evidence during litigation. This process includes the discovery of electronically-stored information (“ESI”) which can be stored at internal and external locations such as the local area network and cloud.  It has become more prevalent for companies to transfer their electronic files to the cloud to reduce costs. It is now more practical to upload and transfer data to a third-party’s servers. However, there are certain risks associated with this process. First, you will be relinquishing control over the electronic information. Second, you will not have control over the third-party’s information security protocols. In other words, even if the electronic information is originally encrypted, it may lose its encryption status if uploaded or transferred to the third-party’s servers.

It is important for attorneys to have a general understanding of the client’s network infrastructure. So, it is always recommended to interview the client’s information technology staff. This way, legal counsel can be better prepared to ask and answer discovery-related questions. Moreover, the relevant discovery rules are outlined in the Federal Rules of Civil Procedure 26, 33, 34, 37, and 45, and Federal Rule of Evidence 502.

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