Automated Cars Should Never be Called “Driverless”

The concept of self-driving cars is nothing new nowadays. People have dreamt of the self-driving car since at least the 1930s.1 Unfortunately for those dreamers, the actual automation of consumer vehicles was nothing more than science fiction until recent years.2 Nevertheless, today it seems everywhere you look another company is trying to get into the market; companies from Google to Tesla, Apple, Toyota, and even Uber are getting on the autopilot bandwagon.3The list includes seemingly every car, computer, technology, and leading transportation company you can think of totaling an astounding 33 corporations to date.4 But how safe is the idea in the first place to those on the road? Furthermore, how much research has been put into just that question? Even more worrisome, how much as the heads of these corporations paid attention to the safety research in their quest to corner the new market?

Peter Valdes-Dapena with CNN explains that the greatest danger may be in the name.5 He argues that the term “autopilot” “…invites the driver to take their feet off the pedals and hands from the steering wheel for long stretches of highway travel.”6 But what drivers may be missing is that not all “autopilots” are equal. In 2014, the Society of Automotive Engineers International (SAE International) set out a classification system consisting of six different levels of automated vehicles.7

Level 0: No Automation: the full-time performance by the human driver of all aspects of the dynamic driving task, even when enhanced by warning or intervention systems.

Level 1: Driver Assistance: the driving mode-specific execution by a driver assistance system of either steering or acceleration/deceleration using information about the driving environment and with the expectation that the human driver perform all remaining aspects of the dynamic driving task.

Level 2: Partial Automation: the driving mode-specific execution by one or more driver assistance systems of both steering and acceleration/ deceleration using information about the driving environment and with the expectation that the human driver perform all remaining aspects of the dynamic driving task

Level 3: Conditional Automation: the driving mode-specific performance by an automated driving system of all aspects of the dynamic driving task with the expectation that the human driver will respond appropriately to a request to intervene.

Level 4: High Automation: the driving mode-specific performance by an automated driving system of all aspects of the dynamic driving task, even if a human driver does not respond appropriately to a request to intervene.

Level 5: Full Automation: the full-time performance by an automated driving system of all aspects of the dynamic driving task under all roadway and environmental conditions that can be managed by a human driver.8

Knowing this, it makes much more sense that that Tesla Model S Owner’s Manual, for example, says some things that you might not expect given your prior understanding of “autopilot.”9 The Tesla Model S can do things like, maintain the car’s lane position, maintain a safe following distance behind traffic ahead, and change lanes when you signal.10 The car can even stop when there is something ahead; however, the manual warns that it will not always activate.11 In instances where there is a non-moving object in your path or when you are moving more than 50 miles per hour and a moving vehicle changes lanes revealing a stationary vehicle, the system is unlike to brake.12 “Drivers are also warned that the system is intended for use by a fully attentive driver and only on highways without intersections.”13

Despite the misleading nature of the term “autopilot” which can understandably cause drivers to operate these cars in an unsafe manner, the term is unfortunately not the only reason for fear. Seth Fiegerman with CNN reports that employees of the perceived leader in the field, Tesla, worried that the company was not taking every possible precaution to ensure the safety of the vehicles.14 Fiegerman cites that “[t]hose building autopilot were acutely aware that any shortcoming or unforeseen flaw could lead to injury or death . . . .”15 But Tesla founder and CEO Elon Musk believes that autopilot has the potential to save lives by reducing human error; a source close to Tesla says his driving force is “don’t let concerns slow progress.”16 Some Tesla employees struggled with this, telling CNN Money in interviews that they knew they were “pushing the limits” and that they were scared “someone was going to die.”17 David Keith, an assistant professor of system dynamics at MIT Sloan School of Management, says “It’s hard to believe a Toyota or a Mercedes would make that same tradeoff . . .[b]ut the whole ethos around Tesla is completely different: they believe in the minimum viable product you get out there that’s safe.”18

In the United States, there is little legislative history governing or prohibiting the use of automated cars.19 As of 2016, only eight states and the District of Columbia have enacted Autonomous Vehicle Legislation.20 Additional states are following behind; for example, Arizona Governor Doug Ducey signed an executive order in August 2015 directing agencies to “undertake any necessary steps to support the testing and operation of self-driving vehicles on public roads within Arizona.”21

In January 2016, U.S. Transportation Secretary Anthony Foxx unveiled new policy that updates the National Highway Traffic Safety Administration’s (NHTSA) 2013 preliminary policy statement on autonomous vehicles as well as a commitment of almost $4 billion over the next 10 years to accelerate the development and adoption of safe vehicle automation.23 Nevertheless, it seems California is leading the march against vehicle automation; a Senate bill proposed at the end of 2015 aims to reduce automation attempts despite promises by manufacturers to reduce the 94 percent of accidents that are caused by human error and bring everyday destinations within reach of those who might otherwise be excluded by their inability to drive a car.22

Senate Bill 1298 first establishes “certain vehicle equipment requirements, equipment performance standards, safety certifications, and any other matters the department concludes is necessary to ensure the safe operation of autonomous vehicles on public roads, with or without the presence of a driver inside the vehicle.”23 Meanwhile, the second “requires people to operate their autonomous cars.24 In addition, “driverless car manufacturers would also need to put their vehicles through a third-party safety test and provide measures to report accidents or car software hacks.”25 Here, California would set forth a strong focus on safety legislation surrounding autonomous cars despite the frustration it causes to manufacturers.

The Legality of Ballot Selfies

Nothing is more prevalent and controversial in our current society than the upcoming Presidential election. Everyday the news cycle is fraught with talk of policies, appearances and controversies. However, one aspect of this provocative topic that many people do not immediately think about is the influence of modern technology on the election cycle. With the increased accessibility of new technology and the desire to share all aspects of our lives with others, many technological issues have arisen in the political and legal world. Specifically, ballot selfies and public postings of ballots on social media have caused several legal issues that are currently being addressed.

For example, in 2015 a lawsuit was brought against the state of New Hampshire by three citizens who were convicted under a state statute for taking photographs of their marked ballots and publishing them on social media.1 The specific state statute made it unlawful for a person to allow his or her ballot to be seen and prohibited a person from “taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media . . .”2 The Plaintiffs argued that their first amendment rights to freedom of expression were violated by this statute and that it was thus unconstitutional.3

The First Amendment allows for freedom of speech and expression.4 In the case above, the expression at issue was the sharing of the photos. The Plaintiffs argued that posting their photos was a form of political expression that should be protected.5 They also argued that any restriction on this expression would be a content-based restriction, meaning that the expression was restricted purely based on its content, and was thus inherently unfair as content based restrictions are subject to strict scrutiny.6 Strict scrutiny is a standard of review which “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,” which Plaintiffs argued could not be proven through the New Hampshire statute.7 On the other hand, the Defendants maintained that posting photos of ballots on social media would ultimately amount to voter coercion or selling of votes, and would eliminate the impartial aspect of the voter process.8 Ultimately, the Judge declared the New Hampshire law invalid for the reasons cited by the Plaintiffs, thereby allowing ballot selfies legally in the state of New Hampshire.9

Unfortunately, this case is not the end of the debate over ballot selfies and social media posts. In fact, the case is currently being analyzed by the First Circuit Court of Appeals.10 The issue of ballot selfies is prevalent throughout the nation, and more than half of the states have similar laws to that of New Hampshire.11 Further demonstrating the importance of this issue, various social media sites have joined in as amicus curiae in the argument in favor of allowing the photos as a First Amendment right.12 This issue could have serious implications on the voting process, as well as on First Amendment restrictions. The New Hampshire case demonstrates that something as innocent as ballot selfies, though seemingly unimportant, can have a large impact on our law and society.

Supreme Court Upholds Apple’s Design Patents

In perhaps one of the largest patent infringement suit in the history of intellectual property, the US Supreme Court rendered a decision against Samsung in the famous Apple v. Samsung lawsuit.1 Apple Inc. first filed a suit against Samsung in 2011 alleging infringement of Apple’s intellectual property in the design and utility of their iPhones and iPads.2 Specifically, Apple contended that Samsung infringed four design patents on how their phones and tablets look, and three utility patents on how their devices work.3 Apple won on design patent infringement.

Thanks to Apple’s design patents, the reason Samsung is required to pay the exorbitant damages award of $548 million is due to their use of the rounded colorful icons, the pinch-to-zoom feature, one-finger and two-finger scrolling and the “bounce back” effect.4 This is due to the protection afforded a type of patent known as a design patent, first awarded in the US in 1842.5 This type of patent protects ornamental designs – the form of a device rather than its function.6

Of course, no one can argue that Samsung copied Apple devices completely. There are consistent differences between Samsung and Apple phones, so much so that people are almost religious in their dislike for one over the other. However, since design patents are able to cover small portions of a whole, companies like Apple are able to patent something as seemingly meaningless as their icons, and companies like Samsung could be considered to infringe on those patents even if they have not done so for the entire device.7 In fact, the jury found across the board that Samsung infringed on Apple’s patents, quickly burying Samsung’s countersuit that Apple had infringed on some of its patents.8

This finding and award will make it incredibly difficult for any company to mimic Apple’s products – and even beyond the tech world, make it difficult for similarities with any design patent in any field. The very particular degree of protection afforded to patent applications makes for an interesting legal environment in light of Apple’s design patent. Normally the appearance of any given product is given protection through trademark laws if it comes to represent that product, or copyright protection for things that are solely appearance, not function-related. Now that design patents are in the mix, courts will have to find a balance and a distinction between what constitutes as a trademark issue and what should be allowed a patent. In today’s world especially, the design of any particular product is extremely valuable to its identity and value in the market. Apple products are no exception. People flock to these gadgets in large part because of the way that they look: simple, sleek, and futuristic.

In the tech world, the decision poses a new turn in the appearance and design of smartphones and tablets created to compete with Apple. Other products will either have clumsier interfaces, create stealthy design changes to maneuver the patents claimed by Apple, or come up with revolutionary design interfaces altogether. Whatever the case may be, the change in the smartphone industry will bring about fascinating new technology – a new generation of smartphone.

No Patent Infringement in Apple’s GPS Apps

On Wednesday, September 20, 2016, the Patent Trial and Appeals Board ruled on a challenge of patent claims. 3 preeminent giants in the tech world, Apple, Google, and Samsung, each were successful against their individual defenses of a claim against them made by American Navigation Systems Inc(ANS).1 The debate was regarding ANS’s U.S. Patent numbered 5,902,347,(also known as the “347 patent”) which was published on May 11, 1999. In the patent abstract, it describes “ a hand-held navigation, mapping and positioning device containing among other features a GPS receiver, a topical map, and a user interface”.2

Since the tech bubble, and the prevalence of smart phones have increased exponentially, so has the competition.3 The phones are often reviewed based on their utility and available features. One of the most notable features is the ability to locate ones self and find directions to a nearby location. This technology has tremendously affected how people have gone about daily travel and exploration. The implementation of the Google maps on these smart phones are what gives companies the reliable service which consumers are demanding.

In its complaint filed on May 12, 2014 against Apple, ANS alleges Apple infringed upon its patent in its use of Google Maps and its own Apple Maps app, which were accessible through their smartphones, tablets, and other handheld electronics.4 It alleges that due to these two features Apple experienced success in sales during its numerous releases dating back to the initial iPhone in 2007. ANS argues that the GPS technology used on the Google Maps and Apple Maps is substantially similar to its 347 patent and is a patent infringement.5 The PTAB ultimately ruled in favor of Apple due in part to the relative publicity of the GPS features that ANS claimed, even when their patent was granted. The board was persuaded by Apple’s defense stating that previously patented concept is one in which was published in 1992 and renders the 347 Patent “obvious.6

The issue with the date of the patent application is not the only problem that ANS faced. It is also the manner of which the patent is described. The purpose of patent law is to protect an idea, which is rightfully the owners, but it is not a means to cast a proverbial wall upon others from implementing anything within the confines of a wide net. A patent application must be specific and contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains. Since ANS failed to meet this standard therefore its patent claim was ultimately declared invalid.

Streaming the Illegal

For those who are old enough to have lived through the rise and fall of Napster, the fear of punishment for being caught downloading music illegally was enough to make any one stop. For those who are not old enough to know what Napster is, Napster was one of the first music file sharing sites that allowed users to download music that someone else had on their computer.1

Napster made its debut in late 1999 and in 2000, record labels saw the first drop “in global record sales.”2 Lawsuits ensued and the founders of Napster even abandoned their creation as they “had been ordered to start charging [for the music] or else close entirely.”3 While the shutdown of Napster led to the creation of programs like iTunes and Spotify, it was not the end of pirating.

The litigation that enveloped the world because of Napster, and other filed sharing sites such as KaZaA, has not stopped people from hosting pirating sites, in which illegal music and movies are available for download and streaming without authorization.4 However, “[r]ecord labels, movie studios, and ISPs have joined forces for an industry-led warning system that will notify users when they are suspected of illegally downloading music, TV shows, or movies.”5 This is the essence of the Copyright Alert System. It is enforced by having the internet service providers (“ISPs”) send warnings to the users, which, if ignored, allows the ISPs to “turn to ‘Mitigation Measures’” which include such things as “temporary reductions of Internet speeds or redirection to a landing page until you contact your ISP to discuss the matter.”6

The question remains: what happens when a user streams pirated copyrighted works?

For sophisticated users, many believe they will not get caught by using a virtual private network (“VPN”) server, which allows the user to have an internet connection between the user’s router and a proxy server in a different location.7 This causes the internet protocol (“IP”) address to be linked to the proxy server.8 The internet traffic that is seen from the IP address linked to their home is the traffic between their home router and that proxy server.9 That traffic is encrypted, which means no one can really tell what the user is doing.10

For users that read the prior paragraph and still do not understand what using a VPN server is, the bottom line is the risk of being caught is still there. A “site that ‘makes available or facilitates the availability’ of rights-owners’ content without their permission is unlawful.”11 For the people that stream the content from these sites, it “is generally legal.”12 This activity becomes illegal “[w]hen the user downloads even part of a file . . . [a] when the user streams content as a ‘public performance.’”13 But user beware, even if there is no plan to do anything illegal, there is the “risk of exposure to viruses. . . poor quality, pop-up ads, and other annoyances” that may not make that free show or movie worth it.14

The Emerging Use of Smartphones and Social Media for Intimidating Witnesses in Criminal Prosecutions

With the technology available today, witness intimidation is a major obstacle that the court has to consider in criminal prosecutions. Witness intimidation is the act of “interfering with a witness’s testimony or cooperation in a criminal case.”1 Witness intimidation can take many forms, ranging from explicit threats to implicit harassment.2 Although criminals have historically pressured witnesses not to cooperate with authorities through the use of explicit or implicit harassment, the rise of smartphone technology and social media extends the reach of criminals’ ability to contact or relay messages to witnesses, which can potentially exasperate this dilemma and create a more pressing issue for the courts.3

With the use of smartphones and social media, criminals are easily able to identify those who are cooperating with authorities and intimidate them.4 Camera phones give criminals the ability to take pictures of people suspected of being a witness or a “snitch,” and easily relay that picture to others within seconds. Furthermore, a simple search of a person’s name on social media easily allows for access to personal information and presents ways to deliver threats or harassments between an intimidator and a witness.

In a recent case, a thirty-year-old Cleveland woman witnessed a murder and was subsequently harassed and threatened by friends of the suspect.5 It started with “old-fashioned” face-to-face witness intimidation.6 After learning that one of the intimidators “wr[ote] about her on his Facebook page and solicited others to post her picture, […] she feared for her life.”7

In a different case in Brooklyn, while an accuser of a molestation charge took the stand to testify about the incident, spectators in the courtroom were able to take pictures of the accuser with their smartphones, which were later found appearing on twitter.”8

Despite possible misdemeanor or felony charges for those found guilty of witness intimidation, more needs to be done by the courts to deter criminals from threatening witnesses and prevent witnesses from being exposed to potential intimidators.9. If the courts do not do anything to rectify this issue, logically, less people will be willing to cooperate with authorities out of fear of exposure of their identity. Obviously, advice of a witness is valuable information to the courts, however the court needs to consider the expense to the witness for turning over information. In order to fix this problem, courts should consider keeping witnesses identities anonymous. Moreover, in situations where the testimony of a witness is essential, the court should take more precautions in terms of limiting the spectators and technology allowed in the court while witnesses are present. Limiting the exposure of witness will likely help counteract the dynamic use of technology in witness intimidation, and therefore further compel witnesses to help serve justice by feeling secure in cooperating with authorities.

Twitter Harassment and the Limits of Employment Law

It is an interesting almost-paradox that in 2016, the Internet is an open, seemingly boundless space where young people often learn about the limits of the real world. Crises within Internet communities have an unfortunate tendency to spill out into the real world, and what may seem like good fun online suddenly has material effects on real lives. Consider a social media outlet like Twitter, where unbridled discourse sometimes runs into the reality of at-will employment:

Politics on Twitter can be bewildering to the uninitiated. There’s “Traditional Conservative Twitter,” “Alt-Right Twitter,” “Gamergate Twitter,” “Liberal Pundit Twitter,” “Liberal Think Tank Twitter,” “Left Twitter,” “Communist Twitter,” “Woke Twitter,” and many more, all consisting of people tweeting and retweeting each other as they build a sense of online community while typically spending just as much time tweeting and retweeting other “Twitters” so at to chastise and make fun of them.

Indeed, Twitter is perhaps most interesting when groups collide. Users often spend entire afternoons in the online equivalent of a ‘shouting match’ with other users. Each user’s followers will pick up digital arms and fight on behalf of their preferred side. A great deal of mental energy and frustration is expended, and a user’s day typically ends with some hurt feelings and the satisfaction of having written a few clever zingers. But, there is a darker side. The line between a ‘shouting match’ and harassment is often blurred. While the two main individuals arguing may be careful not to cross any lines, their followers are often not so careful. Women are on the receiving end of the majority of these attacks.1 The idea that many attacks are not justified is an understatement. However, there’s another facet to this: what some may perceive as harassment may be valid criticisms that they do not understand. It becomes even harder to parse when these valid criticisms come alongside a tidal wave of unjustified attacks.

So, what are people who are victimized on Twitter supposed to do beyond reporting the offending user to Twitter, Inc.? If they’re lucky, their harasser is not posting anonymously and they can make the harassment public in an attempt to shame the offender. Sometimes this works, and results in repercussions such as that person losing their job. Many find it easy to cheer when sexist Toronto firefighters are punished for their online behavior, especially by a department that wants to encourage more females to join.2 However, it is not always easy to know what is fair.

Consider the case of Matt Bruenig, who was once a major personality in “Left Twitter.” Best known for his data-driven anti-poverty writing for the left-liberal think tank Demos, Bruenig had an abrasive Twitter personality. After calling Neera Tanden, head of the liberal think tank Center for American Process, a “scumbag” for her role in the 1996 welfare reform bill, the resulting kerfuffle was large enough that Demos fired Bruenig.3 To the outside observer, it is not clear whether this was a case of a small blogger being beaten down by an influential political figure, or the comeuppance of a Twitter personality whose bread and butter was demeaning people online. What is clear, however, is that regardless of the morals, ethics, and reality of whatever happened, Demos had the right to fire Bruenig; who was of no recourse in this situation. As the Supreme Court of California has explained:

“[A]n employer may terminate its employees at will, for any or no reason . . . the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment . . . The mere existence of an employment relationship affords no expectation, protectable by law, that employment will continue, or will end only on certain conditions, unless the parties have actually adopted such terms.”4

And that is the reality in which naïve Twitter users learn about the real world every time online fights are taken seriously.

Possible Challenges to Sports Leagues’ and Teams’ New Policies Regarding Secondary Ticket Exchanges

Sports fans across the United States utilize secondary ticket exchanges such as StubHub and SeatGeek to obtain tickets to sporting events. These exchanges allow fans to acquire tickets for sporting events from current holders of tickets. Additionally, these services allow for the exchange of digital tickets that fans can print out from the comfort of their own home. However, sports teams and leagues in recent years have implemented policies that limit access to these secondary ticket exchanges.1

Some teams have implemented paperless policies.2 Leagues have also limited what exchanges can be used to procure tickets and have set price floors that limit the alienability of tickets.3 These limitations are in response to fraud concerns as well as to season ticket holders, who spend a large amount on season tickets, having to sit next to fans who purchased their ticket for a fraction of the cost on one of the secondary ticket exchanges.4

Several lawsuits have been brought over the years that challenge these practices, arguing that they violate Section 2 of the Sherman Antitrust Act. These cases include lawsuits against the San Francisco 49ers5 of the National Football League (“NFL”), and against the Golden State Warriors6 and Minnesota Timberwolves7 of the National Basketball Association (“NBA”). The lawsuit against the 49ers was voluntarily dismissed by the plaintiff8 and the case against the Warriors was dismissed.9 Additionally, Eric Schneiderman, the New York Attorney General, published a report on similar practices used throughout the state of New York, including practices used by the New York Yankees.10 The Yankees implemented a new paperless policy earlier this year, but have since reached an agreement with StubHub, which will allow fans to use the secondary ticket exchange.11

Legal commentators, such as Michael McCann, from Sports Illustrated, have analyzed the potential antitrust implications for these policies.12 McCann also presents several defenses available to the leagues and suggests a glimmer of hope in that the Golden State Warriors lawsuit was dismissed by the U.S. District Court for the Northern District of California.13 Rather than focusing on an antitrust argument, I believe fans who wish to sell their tickets but are prohibited from doing so may have a claim against the leagues and teams for tortious interference with prospective economic gain.

To make out a claim for tortious inference with prospective economic gain in New York, for example, “a plaintiff must establish ‘(1) that [he] had a business relationship with a third party; (2) the defendant knew of that relationship and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest, unfair, or improper means; and (4) the defendant’s interference caused injury to the relationship.’”14 In cases where a season ticket holder would have sold tickets to another consumer but for ticket restriction policies, elements 1 and 4 should be satisfied.
The problem with these claims will come in arguing that the leagues and teams have knowledge of the relationship and acted with malice. For the latter element, New York courts require the Defendant’s actions rise to a level of criminal or tort liability.15 If the seller is able to show that the team or league violated a ticket consumer act, or any consumer protection act, this element should also be satisfied. The former element will most likely prove to be the most difficult to show. Whether courts will determine actual knowledge or constructive knowledge is required will resolve this issue. If a plaintiff need only show constructive knowledge, it is likely all elements will be satisfied as it is reasonable to expect fans to sell tickets if they cannot make a game.

NY, COPAA, and the Fight to Protect Children from Online Tracking

The grand realm of the internet has regularly created new challenges throughout the years. The latest trend in online fiascos concerns the use of tracking devices on websites. Over the years, social media, such as the world-renowned Facebook, have been collecting data from hundreds of individuals.1 Although this has been a major issue for some time, a dire concern evolves from websites that particularly target children. On September 13, 2016, NY Attorney General Eric Schneiderman announced settlements against four industry giants over their failure to regulate the online tracking of children.2 Viacom, Mattel, and various others are now required to pay “a combined $835,000 in penalties and implement ‘significant’ reforms to the way they monitor third-party tracking technologies on their sites.”3 This will spark a major movement in the use and misuse of online tracking.

Websites tracking children are subject to the Federal Trade Commission’s ‘Children’s Online Privacy Protection Act’ (COPPA) which provides, in relevant part, that “it is unlawful for an operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting personal information from a child, to collect personal information from a child in a manner that violates the regulations prescribed under subsection (b).”4 Subsection b requires various disclosures which outline, in a conspicuous manner, that the website is collecting information.5 In 2013, the FTC amended COPPA which subjected website owners to nothing less than strict liability for “the collection, use and disclosure of personal information by independent third parties that are allowed to plug into their sites.”6 Any website operators found to violate COPPA will be subject to fines by the FTC. The NY Attorney General has construed the regulation in a way that coincides with the views of the FTC, which would mean full cooperation between the Federal Government and the States on this subject.

This regulation has been in effect since 1998, however, States have been actively looking into this issue for the past few years. Texas, New Jersey, and Maryland have been the few states so far who have led the charge in filing suits under COPPA.7 The action in NY is a large-scale movement toward the regulation and protection of children online. With the shift to mobile games becoming an even larger threat, it is of particular important that other States follow suit. Children’s privacy should be a top priority not only for the individual States but for the Federal government as well. The broad expansions to COPPA add various loopholes and difficulties to Website operators, who rely on website views in order to create revenue. Fortunately, there are FTC approved safe-harbor programs which monitor compliance with the statute, making it easier for websites to make changes without any lawsuits against them. The FTC sponsored compliance programs are not in any way cheap. However, compared to the $500,000 that Viacom paid and the $250,000 penalty imposed upon Mattel; Hasbro, who had a safe-harbor program in place paid nothing in the action against them.8 These safe-harbor programs should be a major incentive for companies with websites geared toward children to ensure that those websites are not only complying with the statute, but also providing a safe environment for children to enjoy themselves. Surely, in the next year, massive changes will take place and States will begin to regulate websites aimed at children more effectively.

Harvesting Wind in the Garden State: Offshore Wind and New Jersey’s Energy Future

In 2019, New Jersey will face an energy crisis. The Oyster Creek Nuclear Power Plant, which provides 637 megawatts of electricity1 to New Jersey, will shut down permanently.2 But, New Jersey, along with the rest of the east coast states, is a geographically fortunate state in terms of its shore-front location. It has access to a renewable resource that could potentially power eighty percent of the entire state’s energy needs3: off-shore wind.4 This valuable resource is something New Jersey should invest in to provide a sustainable, permanent, and safe future for New Jersey inhabitants. While it is subject to certain inadequacies, including siting issues, intermittency, upfront costs, and potential threats to avian wildlife, its benefits certainly outweigh its deficiencies.

Much of the energy modern civilization uses is produced using fossil fuels, which produce greenhouse gases (“GHGs”). But, there are alternatives that provide energy without producing GHGs, and some of them have been used for centuries5 while others have been developed more recently.6 They include wind power, photovoltaic solar power, solar hot water, nuclear, hydroelectric generation, and geothermal, among others. Wind energy is New Jersey’s best choice for providing renewable, clean energy to its residents because wind is so prevalent off the coast of New Jersey.7 New Jersey lacks the open spaces and volume of direct insolation that western states have for solar energy (either photovoltaic or hot water) or land-based wind power, lacks large topographic variation that aids in hydroelectric generation, and has no active volcanism for geothermal energy. Offshore wind is more constant than on land,8 and an offshore location offers a larger surface area to create a larger wind mill farm than any single land area in New Jersey.

Moreover, intermittency, which is the largest obstacle for successfully using off-shore wind energy, can be mitigated by innovations in energy storage. Intermittency is the natural variability of wind intensity that makes levels of energy production difficult to accurately predict.9 But, it is important to note that “wind over the oceans is steadier [than over land], providing more reliable output and hence lower reserve requirements.”10 There are multiple solutions to the issues presented by intermittency in wind energy production. First, there will be other sources of energy production, as a healthy energy system will have multiple sources. Second, advances in energy storage are on the horizon, and each of these could be used to supplement the energy needs of New Jersey residents to counteract the intermittency problems of wind energy.11

Both mechanical and chemical energy storage are viable options. Mechanical energy storage is using the motion or potential motion of a source to produce energy.12 There are several kinds of mechanical energy storage, including pumped hydroelectric storage (“PHS”), compressed air storage (“CAS”), and flywheel energy storage (“FES”). For example, in PHS, one could use energy during times of surplus and low demand to raise quantities of water to high elevations, then during higher demands, let gravity pull the water through a generator.13 In FES, a spinning flywheel, usually spinning at an extremely rapid rate, powers a generator.14 There are other forms of mechanical energy as well, including potential energy from a raised weight and generators that use tension as a source of potential energy, similar to springs that store energy by being forced apart or rubber bands that store energy as tightly wound bundles. Chemical energy storage is also an option, which is essentially the use of a conventional battery, such as a lead acid car battery or a lithium ion camera battery, and it is the way biological organisms store energy.15

There is also the growing idea of using ‘smart grid’ technologies to enhance the efficiency of energy use and storage.16In this idea, excess energy that is produced from wind sources during times of surplus is used to engage in a task that will conserve energy at later times, such as using the excess energy to freeze water then using that ice to cool buildings during the day, when summer energy loads are at their peak. This idea is not an alternative to any one mode of energy production, rather it is a method of increasing efficiency through the synthesized use of multiple modes of energy production.

But there are other problems associated with wind energy as well, including siting and threats to wildlife. These problems are evident in the Cape Wind project in Massachusetts, which was proposed in 2001 and was supposed to be the first offshore wind project in the United States, but has not yet been started.17 Some interested groups claim that the wind turbines will be unsightly or that they will interfere with commerce or natural and historic areas.18 The group Save Our Sound has created a campaign against the Cape Wind project because it claims that the wind turbines will cost too much, desecrate tribal lands, threaten wildlife, and result in job loss.19 But, these issues are not substantially supported by the available evidence. Cape Wind proponents argue that the project will produce over a thousand jobs, many them permanent, and will create other secondary industries, such as eco-tourism.20 Moreover, from shore at sea level, the wind turbines will only be one-half of an inch above the horizon, so they will not be unsightly or reduce property values.21 Further, there is no evidence that the wind turbines will adversely affect fishing,22 and when properly sited, it is possible to place a windfarm in a location that does not interfere with the paths of migratory birds or other wildlife.23

The legal framework in New Jersey and in the United States as a whole is set up to adopt wind energy as a major component of New Jersey’s energy portfolio. In the summer of 2014, the United States Department of the Interior leased 344,000 acres off the coast of New Jersey for offshore wind development; a massive area compared to the 15,360 acres of the Cape Wind project.24 Offshore wind is further encouraged by federal and state statutes designed to facilitate such development, but nonetheless the projects remain stuck in legal doldrums as challengers continue to prohibit construction. The federal government has encouraged and subsidized wind energy since the Wind Energy Systems Act of 1980, which provides federal funding for research and development of wind energy as well as for the construction of actual wind energy generation facilities.25 In 2009, DOI and the United States Federal Energy Regulatory Commission (“FERC”) announced that that they two agencies would cooperate to “facilitate the permitting of renewable energy in offshore waters.”26

Further, New Jersey is also encouraging growth in this sector. In 2010, Governor Chris Christie signed a bill known as the Offshore Wind Economic Development Act that “directs the New Jersey Board of Public Utilities (“BPU”) to develop an offshore renewable energy certificate program that calls for a percentage of electricity sold in the state to be from offshore wind energy. This percentage would be developed to support at least 1,100 megawatts of generation from qualified offshore wind projects.”27

Wind energy has already proven to be a successful investment: “[b]y the end of 2006, the total world wind energy capacity was over 74,000 MW – a capital investment worth about $100 billion.”28 Of that, 15,000 MW, or twenty-five percent of the total capacity, had only been added in the last year.29 While the United States has not cultivated its wind energy to the same degree as many European countries, it certainly has the potential to do so; if the United States began harnessing its offshore wind resources, some estimate it would be equivalent to 70% of the power generated in the United States in 2005.30

To date there are no operational offshore wind turbines along the New Jersey shore, or in any state for that matter.31 The media has noted that four years after the Offshore Wind Development Act, the BPU “has yet to adopt rules that would promote offshore wind by awarding developers subsidies from ratepayers to make their projects economically viable.”32 That begs the question: why not? Why are so many energy regulators and other interest groups opposed to developing offshore wind infrastructure? The answer to that question at the nexus of unprogressive economics and status quo maintenance; it might cost more to build these wind turbines and the associated transmission lines than to just continue to burn fossil fuels and, more significantly, the interest groups opposed to offshore wind energy (or any renewable energy) may be acting in conjunction with fossil fuel industries, which have an interest in retaining their domination of the market.33 This is a problematic conclusion, particularly because of how significantly it ignores the externalization of burdens characterized by fossil fuel consumption and the domination of fossil fuel-based industries in the energy market.

The problem is compounded by the fact that Oyster Creek, one of the three nuclear power plants in New Jersey that collectively supply more than half of the state’s energy,34 will be shutting down in 2019.35 This situation means that New Jersey will lose a significant portion of its energy production in the next half decade, and will require replacement. Nuclear does not produce airborne emissions, so if Oyster Creek was replaced with oil, coal, or natural gas power plants, the state’s total emissions would drastically increase. If, however, regulators permitted offshore wind energy production, New Jersey would not further burden the global climate by increasing its GHG emissions. But this problem is unfortunately not simply a matter of doing what is best for the environment, it is also a matter of what is the cheapest option.

So, what is New Jersey to do? Proponents of offshore wind energy must convince the public of their message by explaining that (1) New Jersey is reaching an energy crisis because of the closing of the Oyster Creek facility; (2) GHG emissions harm the global environment to such a degree that they must be reduced, which is a goal worth paying for; (3) the most promising method of reducing GHG emissions from New Jersey’s energy production is through offshore wind; (4) the finding that although offshore wind may cost one to two percent more for ratepayers than fossil fuel methods of energy production, the latter method externalize burdens on the rest of the world while the former method does not, so a cost-benefit analysis of using offshore wind over other energy sources must include all benefits and burdens; and (5) other environmental impacts are manageable when properly studied so any adverse effects will be reduced to the maximum extent practicable.

If proponents of offshore wind energy can successfully make their case to the citizens of New Jersey, or in the more likely alternative, the interested industrial and political parties in the state, then ideally the project will gain enough public support to progress. Although no offshore wind turbines have been built, preparations are being made for the project to begin: Fishermen’s Energy has broken “ground in Atlantic City… to make way for underground lines that may one day send electricity from five offshore wind turbines to an inland substation.”36

In this time of the impending threat of global climate change, an attitude of ‘business as usual’ has only created the situation humanity is currently facing. Historically, when some societal ill threatens public health, welfare, or safety, the majority of Americans have made the best choice in terms of providing the most good for the most people. That was the case with abolition, the Women’s Suffragist Movement, the Civil Rights Movement, and the Environmental Movement, where the evidence clearly indicated that some ill needed to be remedied- even if it took a few lifetimes. In the offshore wind context, all of the available data indicates that, from a holistic perspective, human action is causing a global problem and New Jersey residents are at the trailhead that begins the path toward a solution. In terms beyond the bounds of just economic justifications or government regulation, this is a cause in which Aldo Leopold’s idea of a ‘Land Ethic’ readily applies.37 Here, New Jersey residents and regulators can build a strong foundation for future prosperity, if they so choose.