WELCOME TO “THE TWILIGHT ZONE”: THE

LEGAL CONUNDRUMS OF NEW TECHNOLOGY

A Brief Overview of Legal Issues Arising with New Technologies

The future ain’t what it used to be.*

*All Yogi Berra quotes used in this PowerPoint presentation are from:http://ftw.usatoday.com/2015/09/the-50-greatest-yogi-berra-quotes

Overview

DronesAutonomous VehiclesGenetically Modified Organisms

(GMOs)Ethics: Can a lawyer advise a client

to “clean” social media page?

He hits from both sides of the plate. He’s amphibious.

DronesJeff Lieser

You’ve got to be very careful if you don’t know where you are going, because you might not get there.

I don’t know (if they were men or women fans running naked across the field). They had bags over their heads.

Police State Fears

I’m not going to buy my kids an encyclopedia. Let them walk to school like I did.

“

”

A law enforcement agency may not use a drone to gather evidence or other information.

Florida Statute § 934.50(3)(a)

In baseball, you don’t know nothing.

Pizza Delivery

I never said most of the things I said.

“

”

One day, seeing Prime Air vehicles will be as normal as seeing mail trucks on the road.-Amazon

If you ask me anything I don’t know, I’m not going to answer.

FAA Proposed Regulations

Why buy good luggage, you only use it when you travel.

Autonomous VehiclesSteven L. Brannock, Esq.

Prof. Terri Pulley Radwan

We have deep depth.

A Routine Commute Gone Wrong: Hypothetical #1

It was a beautiful, sunny day, and Dana Dryver was driving eastbound on Kennedy Boulevard toward her office building in downtown Tampa. She was talking with her husband, using the car’s hands-free function. Suddenly, a stray dog ran into the road. Dana panicked and swerved to avoid hitting the dog. Unfortunately, she swerved more than needed to avoid the dog and directly into traffic heading west on Kennedy. She caused a multi-car accident.

Who is liable for the accident?

If the people don’t want to come out to the ballpark, nobody’s going to stop them.

A Routine Commute Gone Wrong: Hypothetical #2

It was a beautiful, sunny day, and Dana Dryver was heading eastbound on Kennedy Boulevard toward her office building in downtown Tampa in her automated (“driverless”) car. She was talking with her husband on the cell phone, and looked up just in time to see a stray dog run into the road. Almost immediately, the car swerved excessively into oncoming traffic heading west on Kennedy, and caused a multi-car accident. The manufacturer of the car knew of a possible defect that caused the car to over-compensate for road obstacles, and had recently uploaded a fix for the problem, but Dana had not yet downloaded the fix to her car. The car has a driver override function that, when engaged, allows for human operation of the car.

Who is liable for the accident?

It gets late early out here.

Currently Technology Leading to Autonomous Vehicles

How can you think and hit at the same time?

Why autonomous vehicles?

Safety

According to NHTSA, there are roughly 33,000 traffic fatalities in the US annually, and more than 90% of accidents (more than 2 million accidents annually) are caused by human error.

Studies suggest that if most cars were autonomous, the total number of accidents would be reduced by 80%, and fatalities would be reduced by about 65%.

Google blogged in May that its driverless cars have driven 1.7 million miles in the past six years, and have been involved in 11 accidents, all “minor.”

Convenience

Reduced traffic congestion due to “rational” decisions made by technology

Ability for groups not currently able to drive to use automobiles (younger teenagers, elders who would otherwise have had license revoked, etc.) https://www.youtube.com/watch?v=cdgQpa1pUUE

Slump? I ain’t in no slump . . . I just ain’t hitting.

Recommendations for Autonomous Vehicles (in the testing stage)

Ability to disengage automated technology quickly and easily

Ability to record information when system malfunctions

Maintain federally-required safety features at all times, with no ability to disengage

Record information about status of technologies in event of crash

Fla. Stat. §§ 316 & 319, as amended in 2012 (apply to testing Person who engages the technology is

“operator” under law Vehicle meets all federal standards for

a motor vehicle, and• Ability to disengage automated

technology

• Visual indicator when operating autonomously

• Ability to alert operator in event of technology failure affecting safety

• Comply with all motor vehicle laws

Testing entities have to provide $5m of insurance (or surety bond or self-insurance)

NHTSA “Recommended Basic Principles” for Testing of Self-Driving Vehicles

Never answer an anonymous letter.

Genetically Modified Organisms (GMOs)Diana Evans

I usually take a two-hour nap from one to four.

What are GMOs?

A GMO is an organism that has been genetically engineered to introduce new traits or characteristics.

GMOs have been sold since 1994; but have become more prevalent in the last fifteen years.

About 80% of processed foods in the United States contain GMOs.

Corn, Canola, Soybeans, and Cotton are the most common GMO crops in the United States.

You wouldn’t have won if we’d beaten you.

What’s the Deal with GMOs?

In the United States, the current prevailing scientific opinion is that GMOs are safe for animal and human consumption.

Nevertheless, there is a schism regarding the safety of GMOs. People are concerned about:

1. Risks to human and animal health

2. Risks to biodiversity and the environment

3. Risks to small-scale farmers

4. Labeling

March Against Monsanto

You better cut the pizza in four pieces because I am not hungry enough to eat six.

Benefits & Risks of GMOs

Benefits Crops grow more quickly on less land

Better overall quality and taste

Aid in helping world hunger

Crops have less environmental impact

Reduce the need for pesticides and herbicides; less contamination of water and soil

GMOs can be fortified with essential nutrients

Can be engineered to function as biopharmaceuticals

Risks Uncertainty

Risks to human health (potential risks of allergens; lessened nutritional value of foods; contribute to spread of antibiotic resistance)

Threats to biodiversity and the environment

Most of the control over agricultural biotechnologies is in the control of a few companies, who could then have power over the majority of the food supply

Congratulations. I knew the record would stand until it was broken.

How do we balance the risks of GMOs with the benefits?

GMOs are currently regulated by the FDA

Labeling

Currently, the FDA does not require that manufacturers label foods containing GMOs.

Manufacturers may voluntarily label their products GMO free.

Some states, like Vermont, have enacted legislation that requires manufacturers to label foods containing GMOs .

In 40 countries, including Japan and the countries of the European Union, there are significant restrictions on the use of GMOs, and in some cases, their use is banned outright. China, Australia, and the EU require foods containing GMOs to be labeled.

We made too many wrong mistakes.

What do GMOs have to do with the law?

Much of the GMO-debate surrounds the social, health, and economic issues associated with GMOs.

But as with most other areas of social concern, that means that it also creates a series of legal problems.

Most of these problems are best understood as arising in the context of the distribution chain.

Manufacturer

FarmerDistributor

Consumer

Always go to other people’s funerals, otherwise they won’t come to yours.

Manufactures & Farmers: Hypothetical #1

Samwise Gamgee is a farmer who owns Bag End Farm, which is adjacent to Party Tree Farm owned by Pippin Took. Farmer Gamgee plants genetically modified potatoes, whose seeds he bought from Mordor Biotech, Inc.

Pursuant to a technology agreement between Farmer Gamgee and Mordor Biotech, Inc., Farmer Gamgee is supposed to plant a 600-foot buffer zone around his GM potatoes to prevent them from cross-pollinating with potatoes grown on adjacent farms.

Farmer Gamgee failed to maintain the buffer zone and some of his seeds contaminated the organic potatoes on Farmer Took’s farm.

Farmer Took’s potatoes were intended for sale to Merry’s Fry Company, a manufacturer of organic french fries, and for export to Austria, which bans the cultivation and sale of GMOs. Now Farmer Took cannot sell his potatoes to Merry’s or export them to Austria.

What are some potential causes of action and some potential issues that could arise?

A nickel ain’t worth a dime anymore.

Distributors & Consumers: Hypothetical #2

Gandalf Grey purchased pumpkin granola bars from Gondor Foods, Inc. The bars are labeled as “all natural.” Because the bars were labeled “all natural,” Mr. Grey believed that the bars did not contain GMOs, but later discovered that the bars contained GM soybean oil. Other products manufactured by Gondor Foods, Inc. also contain the “all natural” label and contain GMOs.

The FDA does not provide any guidance regarding the meaning of the “all natural” label.

What are some potential causes of action and some potential issues that could arise?

An interesting scenario: what if the GM soybean oil turned out to be harmful to humans and caused illnesses?

Baseball is 90% mental and the other half is physical.

Final Thoughts on GMOs

Issues also arise with GMOs in the regulatory context. Manufacturers of GMO seeds, farmers, and food manufacturers, all have an interest in GMO crops. Statutes that mandate labeling of GMO products or restrict the cultivation of GMO crops foster litigation.

Most GMO seeds are protected by patents. So what happens when a farmer saves GMO seeds from a prior harvest without permission from the manufacturer. Monsanto, in particular, is fairly well known for aggressively enforcing its intellectual property rights.

No one goes there nowadays, it’s too crowded.

Ethics: Can a lawyer advise a client to “clean” a social media page?Loretta O’Keeffe

Stann Givens

Kristen Overstreet

It’s like déjà vu all over again.

Client Consultation Simulation

So I’m ugly. I never saw anyone hit with his face.

PROFESSIONAL ETHICS OF THE FLORIDA BARPROPOSED ADVISORY OPINION 14-1

[Affirmed as modified by the Professional Ethics Committee on June 25, 2015.]

A lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages.

A lawyer may advise a client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence.

If a lawyer does so, the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

You can observe a lot just by watching.

Cont’d

The general obligation of competence may require the lawyer to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of evidence, regardless of the privacy settings.

If a client specifically asks the lawyer about removal of information, the lawyer’s advice must comply with Rule 4-3.4(a).

What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.

When you come to a fork in the road, take it.

In Summary

The lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence

The lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.

It ain’t over till it’s over.