The Columbia science and technology law review最新文献

{"title":"Privacy as the Price of Drug Access","authors":"Laura Karas","doi":"10.52214/stlr.v23i1.9390","DOIUrl":"https://doi.org/10.52214/stlr.v23i1.9390","url":null,"abstract":"In response to the recent increase in FDA-approved specialty drugs and escalating specialty drug prices, drug companies now offer patient support programs (“PSPs”) for eligible patients prescribed a particular pharmaceutical drug. Such programs encompass both financial assistance for the purchase of a specialty drug and behavioral services, including nursing support and injection training, intended to improve drug adherence. Although ostensibly gratuitous, these programs have a steep and underappreciated cost: disclosure of protected health information. In effect, patient support programs compel patients to trade protected health information for drug access. This Article provides the first in- depth examination of the legal and ethical concerns associated with patient support programs. Enrollment in a drug company’s patient support program furnishes the company with linked patient- and prescriber- identifying information for each enrollee, data which may enable drug companies to target marketing to patients and healthcare providers with an otherwise unattainable degree of precision. Moreover, once a drug company acquires an enrollee’s protected health information pursuant to a valid Health Insurance Portability and Accountability Act (HIPAA) authorization, a drug company faces few limits on downstream uses of those data. This Article illuminates a possible role for patient support program-mediated data collection in two unlawful drug company practices: (1) kickback schemes in coordination with foundations that cover pharmaceutical drug copays, and (2) “product hopping” to a new brand-name drug formulation after patent expiration of an older formulation. The current regime for health data privacy in the United States lacks adequate safeguards to prevent drug companies from exploiting patient support program-derived data to the detriment of patients. The Article ends by proposing practical modifications to the HIPAA Privacy Rule to modernize HIPAA’s protections vis-à-vis health data transferred from covered entities to noncovered entities such as drug companies.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"80 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90283793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Approaches to Assess Market Power in the Online Networking Market","authors":"Shin-Ru Cheng","doi":"10.52214/STLR.V22I2.8664","DOIUrl":"https://doi.org/10.52214/STLR.V22I2.8664","url":null,"abstract":"Facebook, the world’s largest online networking platform, is the subject of multiple antitrust investigations by various state and federal regulators. Yet scholars and practitioners remain divided on how to measure Facebook’s market power. Some argue that conventional approaches for identifying market power are suitable for the online networking market. This Article argues such conventional approaches are inadequate for assessing market power in online networking markets.This Article begins by introducing the traditional approaches that courts have employed to assess market power: the direct effects approach, the Lerner Index approach, and the market share approach. It next describes Facebook’s business model and shows that, because Facebook is a two-sided market, these traditional approaches should not be applied to Facebook.Instead, the Article proposes that the information gaps, switching costs, and entry barriers approaches are better suited for assessing the market power of online networking platforms. The Article thus concludes by proposing a legal framework for assessing market power in online networking platforms which employs such non-traditional approaches. While this Article uses Facebook as the main case study, this paper’s findings are equally applicable to similar online networking platforms.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86689864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Calculated Discrimination: Exposing Racial Gerrymandering Using Computational Methods","authors":"Aviel Menter","doi":"10.52214/stlr.v22i2.8669","DOIUrl":"https://doi.org/10.52214/stlr.v22i2.8669","url":null,"abstract":"In Rucho v. Common Cause, the Supreme Court held that challenges to partisan gerrymanders presented a nonjusticiable political question. This decision threatened to discard decades of work by political scientists and other experts, who had developed a myriad of techniques designed to help the courts objectively and unambiguously identify excessively partisan district maps. Simulated redistricting promised to be one of the most effective of these techniques. Simulated redistricting algorithms are computer programs capable of generating thousands of election-district maps, each of which conforms to a set of permissible criteria determined by the relevant state legislature. By measuring the partisan lean of both the automatically generated maps and the map put forth by the state legislature, a court could determine how much of this partisan bias was attributable to the deliberate actions of the legislature, rather than the natural distribution of the state’s population.Rucho ended partisan gerrymandering challenges brought under the U.S. Constitution—but it need not close the book on simulated redistricting. Although originally developed to combat partisan gerrymanders, simulated redistricting algorithms can be repurposed to help courts identify intentional racial gerrymanders. Instead of measuring the partisan bias of automatically generated maps, these programs can gauge improper racial considerations evident in the legislature’s plan and demonstrate the discriminatory intent that produced such an outcome. As long as the redistricting process remains in the hands of state legislatures, there is a threat that constitutionally impermissible considerations will be employed when drawing district plans. Simulated redistricting provides a powerful tool with which courts can detect a hidden unconstitutional motive in the redistricting process.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"23 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78684497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ground-Level Pressing Issues at the Intersection of AI and IP","authors":"David Kappos, Åsa Kling","doi":"10.52214/STLR.V22I2.8665","DOIUrl":"https://doi.org/10.52214/STLR.V22I2.8665","url":null,"abstract":"Humankind has always sought to solve problems. This impetus has transformed hunters and gatherers into a society beginning to enjoy the fruits of the fourth industrial revolution. As part of the fourth industrial revolution, and the increased computing power accompanying it, the long-theorized concept of artificial intelligence (“AI”) is finally becoming a reality. This raises new issues in myriad fields—from the moral and ethical implications of replacing human activity with machines to who will own inventions created by AI. While these questions are worth exploring, they have already received a fair amount of coverage in popular and theoretical writing. This paper will take a different direction, focusing on the current and near-future issues arising on the ground at the intersection of AI and intellectual property (“IP”). After providing a brief overview of AI, we will analyze legal issues unique to AI, including access to data, patent requirements, open source licenses and trade secrecy. We will then suggest best practices for obtaining and preserving IP protection for AI-related innovations through the United States and European Union IP systems. By addressing these issues, the intellectual property system will be better positioned to do its part in unlocking AI’s immense potential.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"14 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87458354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How the Poor Data Privacy Regime Contributes to Misinformation Spread and Democratic Erosion","authors":"Wayne Unger","doi":"10.52214/STLR.V22I2.8668","DOIUrl":"https://doi.org/10.52214/STLR.V22I2.8668","url":null,"abstract":"Disinformation campaigns reduce trust in democracy, harm democratic institutions, and endanger public health and safety. While disinformation and misinformation are not new, their rapid and widespread dissemination has only recently been made possible by technological developments that enable never-before-seen levels of mass communication and persuasion.Today, a mix of social media, algorithms, personal profiling, and psychology enable a new dimension of political messaging—a dimension that disinformers exploit for their political gain. These enablers share a root cause—the poor data privacy and security regime in the U.S.At its core, democracy requires independent thought, personal autonomy, and trust in democratic institutions. A public that thinks critically and acts independently can check the government’s power and authority. However, when the public is misinformed, it lacks the autonomy to freely elect and check its representatives and the fundamental basis for democracy erodes. This Article addresses a root cause of misinformation dissemination —the absence of strong data privacy protections in the U.S.—and its effects on democracy. This Article explains, from a technological perspective, how personal information is used for personal profiling, and how personal profiling contributes to the mass interpersonal persuasion that disinformation campaigns exploit to advance their political goals.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88875081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Burning Bridges: The Automated Facial Recognition Technology and Public Space Surveillance in the Modern State","authors":"Monika Zalnieriute","doi":"10.52214/STLR.V22I2.8666","DOIUrl":"https://doi.org/10.52214/STLR.V22I2.8666","url":null,"abstract":"Live automated facial recognition technology, rolled out in public spaces and cities across the world, is transforming the nature of modern policing.  R (on the application of Bridges) v Chief Constable of South Wales Police, decided in August 2020, is the first successful legal challenge to automated facial recognition technology in the world. In Bridges, the United Kingdom’s Court of Appeal held that the South Wales Police force’s use of automated facial recognition technology was unlawful. This landmark ruling could influence future policy on facial recognition in many countries. The Bridges decision imposes some limits on the police’s previously unconstrained discretion to decide whom to target and where to deploy the technology. Yet, while the decision requires that the police adopt a clearer legal framework to limit this discretion, it does not, in principle, prevent the use of facial recognition technology for mass-surveillance in public places, nor for monitoring political protests. On the contrary, the Court held that the use of automated facial recognition in public spaces – even to identify and track the movement of very large numbers of people – was an acceptable means for achieving law enforcement goals. Thus, the Court dismissed the wider impact and significant risks posed by using facial recognition technology in public spaces. It underplayed the heavy burden this technology can place on democratic participation and freedoms of expression and association, which require collective action in public spaces. The Court neither demanded transparency about the technologies used by the police force, which is often shielded behind the “trade secrets” of the corporations who produce them, nor did it act to prevent inconsistency between local police forces’ rules and regulations on automated facial recognition technology. Thus, while the Bridges decision is reassuring and demands change in the discretionary approaches of U.K. police in the short term, its long-term impact in burning the “bridges” between the expanding public space surveillance infrastructure and the modern state is unlikely. In fact, the decision legitimizes such an expansion. ","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"46 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89442781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Big Data’s Exploitation of Social Determinants of Health: Human Rights Implications","authors":"S. Wood","doi":"10.52214/STLR.V22I1.8054","DOIUrl":"https://doi.org/10.52214/STLR.V22I1.8054","url":null,"abstract":"This Article acknowledges the necessity of including social determinants of health (SDH) data in healthcare planning and treatment but highlights the lack of regulation around the collection of SDH data and potential for violating consumers’ basic rights to be treated equally, protected from discrimination, and to have their privacy respected. The Article analyzes different approaches from the U.S. and EU and proffers the global application of the GDPR plus data human rights provisions as the most sustainable option in a world where technology is ever-changing.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"116 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76306968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Safeguarding Civilian Internet Access During Armed Conflict: Protecting Humanity’s Most Important Resource in War","authors":"T. E. Hutchins","doi":"10.52214/STLR.V22I1.8056","DOIUrl":"https://doi.org/10.52214/STLR.V22I1.8056","url":null,"abstract":"A recent spate of governmental shutdowns of the civilian internet in a broad range of violent contexts, from uprisings in Hong Kong and Iraq to armed conflicts in Ethiopia, Kashmir, Myanmar, and Yemen, suggests civilian internet blackouts are the ‘new normal.’ Given the vital and expanding role of internet connectivity in modern society, and the emergence of artificial intelligence, internet shutdowns raise important questions regarding their legality under intentional law. This article considers whether the existing international humanitarian law provides adequate protection for civilian internet connectivity and infrastructure during armed conflicts. Concluding that current safeguards are insufficient, this article proposes a new legal paradigm with special protections for physical internet infrastructure and the right of civilian access, while advocating the adoption of emblems (such as the Red Cross or Blue Shield) in the digital world to protect vital humanitarian communications.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75386845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"WHY WE FEAR GENETIC INFORMANTS: USING GENETIC GENEALOGY TO CATCH SERIAL KILLERS.","authors":"Teneille R. Brown","doi":"10.7916/STLR.V21I1.5765","DOIUrl":"https://doi.org/10.7916/STLR.V21I1.5765","url":null,"abstract":"Consumer genetics has exploded, driven by the second-most popular hobby in the United States: genealogy. This hobby has been co-opted by law enforcement to solve cold cases, by linking crime-scene DNA with the DNA of a suspect's relative, which is contained in a direct-to-consumer (DTC) genetic database. The relative’s genetic data acts as a silent witness, or genetic informant, wordlessly guiding law enforcement to a handful of potential suspects. At least thirty murderers and rapists have been arrested in this way, a process which I describe in careful detail in this article. Legal scholars have sounded many alarms, and have called for immediate bans on this methodology, which is referred to as long- range familial searching (or \"LRFS\"). The opponents’ concerns are many, but generally boil down to fears that LRFS will invade the privacy and autonomy of presumptively innocent individuals. These concerns, I argue, are considerably overblown. Indeed, many aspects of the methodology implicate nothing new, legally or ethically, and might even better protect privacy while exonerating the innocent. Law enforcement’s use of LRFS to solve cold cases is a bogeyman. The real threat to genetic privacy comes from shoddy consumer consent procedures, poor data security standards, and user agreements that permit rampant secondary uses of data. So why do so many legal scholars fear a world where law enforcement uses this methodology? I surmise that our fear of so-called genetic informants stems from the sticky and long-standing traps of genetic essentialism and genetic determinism, where we incorrectly attribute intentional action to our genes and fear a world where humans are controlled by our biology. Rather than banning the use of genetic genealogy to catch serial killers and rapists, I call for improved direct-to-consumer consent processes, and more transparent privacy and security measures. This will better protect genetic privacy in line with consumer expectations, while still permitting the use of LRFS to deliver justice to victims and punish those who commit society's most heinous acts.","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"68 1","pages":"114-181"},"PeriodicalIF":0.0,"publicationDate":"2020-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79968014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"WHY WE FEAR GENETIC INFORMANTS: USING GENETIC GENEALOGY TO CATCH SERIAL KILLERS.","authors":"Teneille R Brown","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":87208,"journal":{"name":"The Columbia science and technology law review","volume":"21 1","pages":"114-181"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7946161/pdf/nihms-1655090.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25480275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}