Charmed and Disarmed or A Shattered Dream; The Trial of Elizabeth Holmes

  

     Elizabeth Holmes started as a charismatic Stanford dropout at the age of 19, claiming she had found her calling in life through the identification of a technological gap in our healthcare system. In 2003, Holmes founded a private healthcare company she named Theranos, a conjunction of Therapy and Diagnose, becoming the youngest CEO in the Silicon Valley. Her dream was to create a machine that could detect hundreds of medical conditions and diseases with just one drop of blood from the fingertip. This machine was to be implemented in stores across America to provide citizens with the ability to test at a lower cost and higher frequency. Holmes was eager to flip the healthcare system on its head, revolutionizing medical laboratory testing, and she was out for blood.

    To fund Theranos, Holmes had charmed many powerful men into believing in her dream. One investor was former U.S. Secretary of Defense James “Mad Dawg” Mattis, investing $85,000 of his own money into Theranos, placing its net worth over $9 billion. On September 22, 2021, Mattis stated in his testimony that Holmes initially struck him as “sharp, articulate, committed”, but concluded by saying “looking back, I am disappointed at the level of transparency from Ms. Holmes”[1]. Mattis is the seventh witness to give testimony against Holmes in a criminal case of two counts of conspiracy to commit wire fraud and nine counts of wire fraud [2] as defined by 18 U.S.C.A. § 371[3], alleging clear intent to defraud someone under false representations or promises.

    Holmes also had disarmed national pharmacy and retail chain Walgreen through publicity and mainstream attention, raising over $50 million from the pharmacy giant by stating they had been FDA approved-which they never had- and that their technology had been comprehensively validated, which they could never prove[4].

    Additionally, Holmes had solicited doctors and patients into using Theranos’s blood testing laboratory services, even though, allegedly, she knew Theranos was not capable of producing reliable and accurate results for most blood tests[5]. The means of alleged deception was done through a combination of direct communications, marketing materials, media statements, and financial statements. Holmes is being criminally investigated under the allegation of defrauding investors by lying about the accuracy of her tests as well as defrauding patients and doctors by producing inaccurate tests, going against what she had advertised. Trial for Holmes began 08/31/2021 where she may face 20 years of prison and a $500,000 fine. She intends to plead not guilty of wire fraud under the defense of  naivety, that she was a hard-working, young businesswoman who simply failed in the industry[6].

 

My questions to you are:

(1)   Do you believe naivety is reason enough to be found not guilty?

(2) Can "conspiracy to commit fraud" be proven beyond reasonable doubt in a criminal case?

(3)   Should some of the fault of Holmes’ actions fall on those blindly investing?

(4)   Based on the fact pattern above, would you consider her innocent, not guilty, or guilty?

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[1] The Associated Press, “What a Trump Defense Secretary Said at the Elizabeth Holmes Trial,” NPR, September 23, 2021, https://www.npr.org/2021/09/23/1040033127/mattis-elizabeth-holmes-theranos-trial

[2] U.S. v. Holmes, et al. (2021) Northern District of California

[3] 18 U.S.C.A. § 371 (1994)

[4] Sophia Kunthara “A Closer Look At Theranos’ Big-Name Investors, Partners And Board As Elizabeth Holmes’ Criminal Trial Begins “, September 14, 2021, https://news.crunchbase.com/news/theranos-elizabeth-holmes-trial-investors-board/

[5] U.S. v. Holmes, et al. (2021) Northern District of California

[6] Jody Godoy, “Failure is not a crime,' defense says in trial of Theranos founder Holmes”, September 9,2021 https://www.reuters.com/business/healthcare-pharmaceuticals/fraud-trial-theranos-founder-elizabeth-holmes-set-begin-2021-09-08/

Deplatforming and Free Speech - Jessica Hartle

               “Cancel Culture” is a buzzword we have all become very familiar with since it gained popularity in 2014. However, for the most part, cancel culture does not have the permanent and detrimental effect that is implied in the name. Comedian Louis C.K. was “cancelled” in 2017 when he admitted to multiple sexual assaults and returned with a 24 city tour in 2021. Does “cancellation” only derail a career for a few years and provide an opportunity to capitalize on being canceled?

              It is arguable that the threat of “cancelation” is not an effective hindrance against harmful behaviors but what about deplatforming?

              In 2012, the horrors of the Sandy Hook Mass Shooting unfolded in front of the entire nation. Not everyone was as impacted by the deaths of 20 six-seven year olds; radio personality Alex Jones had questions about the truth of the event and embarked on a conspiracy campaign alleging Sandy Hook was a “false flag” and accused the parents of being crisis actors. During Jones’ daily 3hr InfoWars shows he encouraged followers to begin harassing the bereaved parents and survivors of the event. This has led to an ongoing class-action lawsuit by those affected by his speech, but Jones continued to freely post on the largest social media platforms.

              It wasn’t until six years later that Jones was deplatformed with the tech giants stating they blocked Infowars not because of the conspiracy theories, but because of hate speech.

• Spotify:  Infowars “expressly and principally promotes, advocates, or incites hatred or violence against a group or individual based on characteristics.”
• Facebook: for “glorifying violence, which violates our graphic violence policy, and using dehumanizing language to describe people who are transgender, Muslims and immigrants, which violates our hate speech policies.”
• Apple: “Apple does not tolerate hate speech, and we have clear guidelines that creators and developers must follow to ensure we provide a safe environment for all of our users,” adding, “podcasts that violate these guidelines are removed from our directory.”

Alex Jones protesting a COVID lockdown at a Texas Park

Studies have begun to show deplatforming is an effective reduction in “the overall activity and toxicity levels of supporters”. Is this reduction of harmful rhetoric, that often leads to pain and violence, worth the possible infringement on free speech?

       Is deplatforming by private companies a violation of free speech? Should we consider Twitter, Facebook, Youtube, etc. as a “public square” where citizens should be able to engage in the marketplace of ideas?

       Should the tech platforms be allowed to remove users and limit platforms for them to espouse such speech?

What, if any, do you find as an acceptable level of “promoting violence or hate speech” to justify deplatforming someone from a social media network?

       If deplatforming is a justifiable strategy, is there a route to redemption that allows the offender back onto the platforms? 

Please Don't Touch...

 

In 1787, as our founding fathers were writing the Constitution, there is no way they could have even dreamed of the advances in technology the next 250 years would bring. Because of this, we are now faced with trying to fit modern problems into a framework conceived over two centuries prior.

The infiltration of technology into the law is not particularly new. The first conviction using fingerprint evidence was obtained in 1911. Since then, the courts have routinely upheld the use of fingerprints as evidence, and subject to Fourth Amendment protections in obtaining them. This standard principle prevailed for decades, until the introduction of fingerprint technology being utilized as a security measure on electronics.  

Federal judges in many districts have concurred with the longstanding precedent that compelling someone to provide their fingerprints to unlock electronic devices is admissible when a proper search warrant is obtained. However, some courts have found that with the shift in the utilization of fingerprints, so have the implications in constitutional protections.

A federal judge in the District of Northern California ruled that compelling someone to provide their biometric data—such as fingerprints or facial images—is testimony rather than evidence, in the context of unlocking an electronic devise.[1]

This interpretation of the change from fingerprints being strictly evidence, to a form of testimony, is further expounded upon by a federal judge in the Northern District of Illinois. The judge held, “By using a finger to unlock a phone's contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.”[2] 

Taking it even further, in 2016, law enforcement approached a Michigan State University computer science professor, asking him to create a 3D-printed replica of a dead man’s finger. They believed the fingerprint would unlock a murder victim’s cell phone, possibly leading them to the killer. “Once printed, a micron-thick coating of metal – gold, copper or silver – is applied to the surface. This recreates the electrical conductivity found in human skin that is required to make modern capacitive fingerprint readers work.” [3]

With every new technology made available, it is inevitable it will eventually be the subject of legal arguments. The advent and popularity of biometric data outside of fingerprints has now been the topic of discussion in courtrooms.

Just this year, Facebook settled a class action lawsuit in which they will be required to pay $650 million for violating Illinois Biometric Information Privacy Act (BIPA) when their “tag suggestions” feature violated the law by, “collecting and storing digital scans of faces without notice or consent.” [4]

Some questions to ponder:

Do you believe, with this expanded use of fingerprints, the courts need to expand the classification of fingerprints to include testimony? What about creating a prosthetic fingerprint and using it to open a cell phone? What constitutional implications does that have? Does it matter if the person is alive or deceased?

Also, do you agree with the Facebook ruling? Do we have an expectation of privacy regarding other biometric data? When we walk down the street, we don’t expect an individual we pass on the street to not look at our face. Is it different when it comes to technology using facial recognition for commercial reasons? Why or why not?     

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[1] Burt, Chris, “Judge rules U.S. law enforcement cannot compel biometrics to unlock device” (January 14, 2019). https://www.biometricupdate.com/201901/judge-rules-u-s-law-enforcement-cannot-compel-biometrics-to-unlock-device Last visited October 24, 2021

[2] In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 1073 (N.D. Ill. 2017)

[3] Solon, Olivia, “Police seek to unlock murder victim's phone using 3D replica of fingertips” https://www.theguardian.com/technology/2016/jul/22/smartphone-fingerprint-security-police-unlock-3d-printer-murder-victim-biometrics Last visited October 24, 2021.

[4] Bryant, Jennifer “Facebook’s $650M BIPA settlement ‘a make-or-break moment’”(March 5, 2021). https://iapp.org/news/a/facebooks-650m-bipa-settlement-a-make-or-break-moment Last visited October 24, 2021

 

I have been trying to reach you . . .

Trina Rich

. . . about your car’s extended warranty. 😊

I am sure we have all received calls like this and we would love for them to stop. I have lost count how many times I have been called about my extended car warranty that I already know is non-existent and should remain that way. What would you do about it?

Noah Duguid decided to do something about unwanted contact and his annoyance with not being removed from a contact list.  

Facebook, Inc. v. Duguid (https://www.supremecourt.gov/opinions/20pdf/19-511_p86b.pdf)

Noah Duguid was fed up with receiving unwanted contact from Facebook security regarding unauthorized logins to a Facebook account that he did not create and never created an account on Facebook. Duguid tried to stop the contact and was unsuccessful.  Duguid filed a putative class action against Facebook alleging that Facebook violated the Telephone Consumer Protection Act (TCPA). The case was filed in the U.S. District Court for the Norther District of California. Facebook moved to dismiss the case and the U.S. District Court agreed and dismissed with prejudice.

Duguid appealed to the Ninth Circuit Court of Appeals who reversed the dismissal and found the arguments compelling and applicable to Facebook and their contact system. Facebook appealed to the U.S. Supreme Court and the court agreed to hear the case.

The issue in this case is based on the reading of the following portion of the Telephone Consumer Protection Act of 1991 (TCPA).

47 U.S.C. § 227 (a)(1) states the following:

“(a) Definitions.—As used in this section—

(1) The term “automatic telephone dialing system” means equipment which has the capacity—

(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B) to dial such numbers.”

Facebook argued that an automatic telephone dialing system must have the capacity to generate a “random or sequential number generator “ which did not apply to their programming while Duguid argued that “using a random or sequential number generator” was not a requirement and that grammar rules and punctuation meant this part did not apply.

The crux of this argument in lay terms is grammar and punctuation matter and can change the meaning of a sentence.

The U.S. Supreme Court heard the case on April 1, 2021 (not an April Fools joke). The opinion was written by Justice Sotomayor. The Supreme Court analyzed the information before the court and the disagreement between the U.S. District Court and the Ninth Circuit Court of Appeals. The U.S. Supreme Court opined in depth regarding the grammar of the statute, the applicable grammar rules, and the natural reading of the statute. Feel free to read the opinion in depth to learn more about these rules. 

My favorite example from the opinion regarding how sentences with similar structures should be read is as follows: 

“Imagine if a teacher announced that 'students must not complete or check any homework to be turned in for a grade, using online homework-help websites.' It would be strange to read that rule as prohibiting students from completing homework altogether, with or without online support.” Facebook, Inc. V. Duguid, 19 U.S. 511 (2021)

 As much as I would have loved to read this sentence as not having to do my homework, that is an absurd reading of the sentence and the argument would not fly with any professor who said this.

The U.S. Supreme Court agreed with Facebook regarding the reading of the statute, reversed the finding of the Ninth Circuit Court of Appeals, and remanded the case for further proceedings consistent with the opinion.

Questions to Answer:

• With two different courts reading the statue two different ways, which reading do you agree with and why?
• With the statute effective in 1991, should Congress reconsider the definition to include more modern technology?
• Finally, if you were Duguid, what would you do next?

Final Thoughts:

After reviewing this appeal, I know I will not look at grammar the same way. Reading statutes, rules, policies, and more all require some analysis beyond grammar rules including consideration of the intent and the normal reading of the sentence. Until all writing is perfect, the argument over words and their intended or actual meaning will continue both in and out of court.

Do Grandparent Have Visitation Rights?

Itzel Garcia-Razo

We all sometimes wonder if grandparents have a right to visit or take care of their grandchildren without parents’ permission nor become custody after one of their parents passed away? Here is the case of Jones v. Jones.

Summary: 

Mother (Sharon has since remarried and now goes by the name of Sharon Dunn)i married Tracy Jones Jr. (Father) in 2006. The Child was born in November 2007, and Mother and Father separated in January 2009. Mother and Father shared equal custody of the Child following their separation. Between January and March 2009, Father lived with Grandparents, who helped care for the Child while she was in Father's custody. After Father moved out of Grandparents' home, Ellie Jones (Grandmother) continued to visit him two to three times a week. Father died in May 2009, when the Child was approximately eighteen months old. Mother continued to facilitate contact between the Child and Grandparents during the months immediately following Father's death. On July 24, 2009, Grandparents took the Child to a baseball game and brought her home after 10:30 p.m. Although Grandparents believed that Mother had agreed for them to bring the Child home late, Mother later expressed concern about the late hour. 

Following the baseball game, Mother denied several of Grandparents' requests to spend time with the Child and also requested that Grandparents not call the Child on weeknights. Grandparents then wrote Mother an email requesting visits with the Child two full weekends per month, visits on holidays and birthdays, an extended visit each summer, and two phone calls per week. When Mother did not respond, Grandparents threatened to sue for grandparent visitation. 

Mother then responded with an email outlining concerns she had about permitting the Child to continue visiting Grandparents and informing them that she intended to limit their contact with the Child to one phone call per month and one visit every other month for a few hours in the presence of Mother or one of Mother's family members. Grandparents responded that they would not submit to being supervised and that they intended to initiate court proceedings.

Jones v. Jones, 2013 UT App 174, ¶¶ 1-3, 307 P.3d 598, 600–01, aff'd, 2015 UT 84, ¶¶ 1-3, 359 P.3d 603

As a result, the Court determined that this short-term assistance was inadequate to establish a substantial relationship within only three months. Father lived with grandparents while the Child was in Father's custody; therefore a mother has a right to say no to in-laws visiting their grandchildren. The statute establishes a rebuttable presumption that requires a court to presume that a parent’s decision in regards to grandparent visitation is in the best interests of the Childii from Utah Code Section 30-5-2: Visitation Rights of Grandparents.: 

(b)

If the Court considers whether grandparent visitation is in the best interest of the child, the Court shall take into account the totality of the circumstances, including:

(i)

the reasonableness of the parent's decision to deny grandparent visitation  

  

Question:

• Do you think parents should have the right to deny grandparents’ visitation requests? 
• If so, should that right be absolute, or can the right be overridden in certain circumstances?  

Explain your answer

Sources:

  i. Jones v. Jones, 359 P.3d 603, 2015 UT 84, 795 Utah Adv. Rep. 58 (Utah 2015) 

  ii. Jones v. Jones, 2013 UT App 174, 307 P.3d 598, aff'd, 2015 UT 84, 359 P.3d 603

Civil Asset Forfeiture: Violation of Due Process and Illegal Search and Seizure?

by Stephanie Jarvi-Peterson

Imagine you are driving from the east coast to your home in Washington in a car belonging to your parents, who also live in Washington. As you travel through Arizona, you are pulled over by an Arizona Department of Public Safety officer for your dark window tint.[1] Before you know it, drug dogs are being brought out and you are arrested for having $31,000 in cash and some personal use marijuana. Your parents’ car is seized by Arizona state troopers, and they are informed they have 30 days to file an objection.

This is what happened to the son of William and Ria Platt in 2016. With no money to pay for legal assistance, the Platts set out to file the objection themselves only to have it rejected by the Navajo County Deputy Attorney due to an error made by the Platts because they did not include the language “signed under penalty of perjury.”[2] The state of Arizona kept the car and the cash and the Platts were left to figure out why this was allowed to happen, even after their son was not charged with a crime.

Ria and Terry Platt - Image Source

Civil asset forfeiture is a tool that allows law enforcement to seize property believed to have been obtained through illegal activities. At the federal level, it was established via the Comprehensive Crime Control Act of 1984, which set up the fund and the rules for the distribution of seized assets. Each state has their own version of this tool which is often kept in state coffers, regardless of the outcome of the case, and is used to fund law enforcement.[3]

The Platts decided to sue Moore, the police departments involved, and numerous individuals within the Arizona state government in a federal civil suit on the basis that the Arizona state civil asset forfeiture laws were unconstitutional via the fourth and fifth amendments. Shortly after they filed, their car was returned to them, but they decided to fight on with the help of the Institute of Justice. Moore, et al., filed multiple motions to dismiss with U.S. District Court of Arizona, only to have them split by the court. Some motions were granted and others were denied. The Platts appealed their case in the Ninth Circuit and on October 4, 2021, they were given the green light by the court to continue their case against the state of Arizona, remanding it back to the district court, [4] with Judge Marsha Berzon stating, “This obvious vulnerability in Arizona's forfeiture regime to a procedural due process challenge cannot be mitigated by interpretative sleight-of-hand.”[5]

In May of 2021, in a separate win for those advocating against Arizona’s civil forfeiture laws, Arizona Governor Doug Ducey signed into law Arizona House Bill 2810 which requires a conviction before assets can be seized, thanks, in part, to the attention that the Platts brought to this issue.[6]

Questions to consider:

• Did Moore deny the Platts their right to due process by dismissing their initial objection on a technicality as the appeals court opined?
• Should law enforcement be allowed to seize someone’s assets before they are convicted of a crime?
• If so, should said assets be returned automatically to the accused once it is deemed no charges will be brought?
• Do you agree that seized assets should be used to fund the law enforcement agencies responsible for seizing them?

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[1] Platt v. Moore, 2017 WL 6420477

[2] https://www.courthousenews.com/retirees-sue-arizona-for-seizing-their-car/

[3] https://www.ij.org/report/policing-for-profit-3/

[4] https://www.azcentral.com/story/news/local/arizona/2021/10/06/appeals-court-rules-favor-terry-ria-platt-fighting-arizona-civil-forfeiture-case/6013326001/

[5] Plattv. Moore, 2021 WL 4516856

[6] https://www.azmirror.com/2021/05/06/ducey-signs-bill-requiring-conviction-before-assets-are-seized/