Of Thickets and Gerrymanders: SCOTUS Will Enter Once More into the Thorny Thicket of Partisan Gerrymandering

This post was written by Senior Editor, Jennifer Moore.  The views and opinions expressed herein are those of the author alone.

          The Supreme Court will hear arguments in March on two challenges to state redistricting maps in Rucho v. Common Cause and Benisek v. Lamone.1 For decades, the Court has wrestled with the issue of whether and how intrusively the courts should wade into the thorny thicket of political electoral districting. The Court has struggled to define the contours of a doctrine for the constitutionality of the partisan gerrymandering and has struggled with creating standards that can be used to determine whether a state redistricting plan meets the criteria for constitutionality.

In 2018, the Court sidestepped a ruling on the merits when the Court decided Gill v. Whitford on Article III issues of standing instead of resolving the issues on the merits of the argument.2 The Court sent both Gill and Benisek back to the lower courts for further proceedings on the narrow issues. Benisek is headed back to the Court along with Rucho, for resolution. In Benisek, Republican voters brought a challenge to the redistricting map created by Democrats in the Maryland state legislature after the 2010 census, while in Rucho, Democratic voters are challenging the GOP majority legislatures’ redistricting map in North Carolina.3

Challenges to partisan congressional maps have been brought against several state legislatures and are currently working their way through both state and federal courts.4 These challenges will continue to be brought until the state supreme courts or the U.S. Supreme Court finally resolves these issues.

Looking at Ohio as an example, the Ohio A. Philip Randolph Institute, et. al. filed a challenge to the gerrymandered districts that have resulted in GOP congressional control of 12 of 16 seats since the 2012 redistricting plan was implemented.5 The GOP have held these same 12 seats for four election cycles, regardless of the actual vote totals in each election year. One would wonder why Ohio would hold elections at all if the districts have been so fixed that the outcome is predetermined by the majority party in the statehouse? In 2018, Ohio Republican candidates for the U.S. Congress garnered 52% of the votes statewide and yet still managed to win 75% of the seats in the House.6

Ohio Republicans have achieved this result in the past four election cycles by using advanced mapping technologies to carve out and sort voters into reliably partisan districts. The GOP mapmakers packed many Democratic voters into 4 districts, resulting in many “wasted” votes of Democrats that were far more than the number needed for their candidate of choice to win. One such district, known as the “snake on the lake,” stretches along Lake Erie and links Cleveland and Toledo. Rep. Marcy Kaptur won the 2018 midterm election for this district by 35.2 points.7 The GOP then spread Republican voting strength out among the other 12 districts, sometimes through cracking communities of traditionally Democratic voters in urban centers and subsuming these communities into larger, reliably Republican districts. One such district is the 1st Congressional district in the southwest corner of the state. To create this safe district for Rep. Steve Chabot, GOP lawmakers carved up the Democratic leaning city of Cincinnati into two parts. They created an irrationally shaped district that takes the urban, west side neighborhoods of Cincinnati and hooks up and over to link with the very Republican suburbs and ex-burbs of Warren County. The other half of the city of Cincinnati is then subsumed into Republican leaning Clermont County.8

Ohioans voted in 2015 and 2018 for reform measures to change the way in which both state and congressional districts will be drawn going forward, but these measures will not be implemented until after the 2020 election.9 Even when they are implemented, the majority party can still pass partisan 4-year plans that circumvent the requirement of approval by either both parties in the legislature or by the requisite members of the seven-member panel. A ruling by the Courts resolving the constitutionality of partisan gerrymandering could resolve this issue with more finality.

The Courts have wrestled with ways to shape the doctrine and to define manageable standards to apply in a determination of constitutionality. In Davis v. Bandemer, “the Court made clear that the lack of proportional representation if not sufficient basis for a partisan-gerrymandering claim.”10 In Vieth v. Jubelirer, “the court set out the structure of partisan-gerrymandering claims as one that requires both intent and effect.”11 In Gill, Justice Kagan’s concurrence “cogently recognized multiple constitutional harms wrought by partisan gerrymandering.”12 The opinion hints at other constitutional challenges that can be brought to bear on these cases: “the guarantee of associational freedom for all and the prohibition on viewpoint discrimination.”13

Justice Kagan wrote of partisan gerrymandering in the Gill decision that “[m]ore effectively every day, that practice enables politicians to entrench themselves in power against the people’s will.”14 She concludes that “only the courts can do anything to remedy the problem” of partisan gerrymanders because “gerrymanders benefit those who control the political branches.”15 With another census year fast approaching, and yet another opportunity for entrenched political parties to engage in extreme redistricting plans, the Courts need to step in and protect the rights of those voters who are negatively and intentionally impacted by these practices. As Justice Kagan notes, the Court must stop partisan officials from degrading the nation’s democracy.16


    1. See Rucho v. Common Cause, 138 S.Ct. 923 (2018) and Benisek v. Lamone, 138 S.Ct. 1942 (2018).
    2. Gill v. Whitford, 138 S. Ct. 1916 (2018).
    3. See Rucho v. Common Cause, 138 S.Ct. 923 (2018) and Benisek v. Lamone, 138 S.Ct. 1942 (2018).
    4. For a list of pending cases, see Michael Li, Thomas Wolf, and Annie Lo, The State of Redistricting Litigation, The Brennan Ctr. for Justice, (Jan. 8, 2019), https://www.brennancenter.org/blog/state-redistricting-litigation.
    5. http://media.cleveland.com/datacentral/other/ohio-gerrymandering-lawsuit.pdf.
    6. Rich Exner, Ohio Democrats Nearly Match Republicans in Statehouse Votes, but Will Remain in Deep Minority; What’s Ahead for Gerrymandering, Cleveland.com, (November 15, 2018), https://www.cleveland.com/expo/news/erry-2018/11/0f32e762411182/ohio-democrats-outpolled-repub.html.
    7. Id.
    8. Id.
    9. Id.
    10. Theresa J. Lee and Emily Rong Zhang, Symposium: Strategy from a Punt, SCOTUSBlog (Jun. 19, 2018, 1:43 PM), https://www.scotusblog.com/2018/06/symposium-strategy-from-a-punt/.
    11. Id.
    12. David H. Gans, Symposium: The Fight to Vindicate Our Constitution’s Promise of Democracy of Far From Over, SCOTUSBlog (Jun. 19, 2018, 11:14 AM), https://www.scotusblog.com/2018/06/symposium-the-fight-to-vindicate-our-constitutions-promise-of-democracy-is-far-from-over/.
    13. Id.
    14. Gill v. Whitford, 138 S. Ct. 1916, 1935 (2018).
    15. Id.
    16. Id.




Judicial Software Engineers: Is There Only One Way?

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This post was written by Associate Editor, Derek Freitas.  All views and opinions expressed herein are those of the author alone.

We are the digital age. Whether you preset the timer on your coffee maker, use your computer or an app on your smartphone – software is a part of everyday life. According to Black’s Law Dictionary, software is “the sequence of instructions by which a computer accepts and translates input symbols, executes actions, and outputs symbols such as numbers, characters in an e-mail message, pictures in a text message, the music played on a mobile device, or GPS coordinates.” [1]

While the Federal Courts have ruled on software cases from Apple to Alice, are they consistent?[2] The Supreme Court held in Alice that utilizing software to perform a process is merely an algorithm and therefore an unpatentable idea.[3] Yet, thirty years earlier the Apple court stated that software was not merely an idea, rather that software was worthy of copyright protection.[4] If you are confused by the Alice decision you should be – scholars feel the same way.[5] Apple v. Franklin Computer Corp was the initial case that addressed copyright infringement of software.[6] Noteworthy for speaking to the distinction that generally translating source code into object code is not protected, but the various expressions of that idea are protected.[7] This distinction is based upon the concept that software is a set of instructions used in a computer to bring about a specific result.[8] Shortly after the Apple case the Third Circuit decided Whelan Assocs., Inc. v. Jaslow Dental.[9] Whelan held that the uncopyrightable idea in software is its “purpose or function … and everything that is not necessary to that purpose or function would be part of the expression of that idea,” and thus copyrightable.[10]

Does Alice purport to overturn thirty years of law that held software is more than a mere idea? Some might view that question as misguided, but copyright case law states that software is not merely an idea.[11] Software developers seeking protection of their creations have two options. Developers must either obtain copyright protection or attempt to obtain a patent on the software.[12] Each purportedly requires the subject matter for which protection is sought to be more than a mere idea.[13] After Alice the software industry is wondering when federal courts will adhere to the copyright standard, that software is more than a mere idea.[14]

The Federal Circuit weighed in on copyright infringement in September of 1992 in Atari Games Corp. v. Nintendo.[15] Atari dictates that so long as there are multiple ways of carrying out a process, any one expression or version of that process is copyrightable.[16]

In December of 1992, the Second Circuit Court of Appeals ruled on a claim of copyright infringement regarding software in Computer Associates International, Inc. v. Altai.[17] The Second Circuit provided the test for substantial similarity.[18] First a judge will perform the processes of abstraction and filtration of software source code in that order.[19] This allows the judge to determine what is protectable and what is merely an idea.[20] Abstraction requires that a judge “reverse [engineer] on a theoretical plane … dissect the allegedly copied program’s structure and isolate each level of abstraction contained within it.[21] This process begins with the code and ends with an articulation of the programs ultimate function.”[22] In order to perform abstraction and filtration the court must look at the software’s individual instructions – then determine more broadly the functionality as the instructions work in coordination.[23]

After the judge has determined the use of the source code one instruction at a time, he is then to:

Examin[e] the structural components at each level of abstraction to determine whether their particular inclusion at that level was idea or was dictated by considerations of efficiency so as to be necessarily incidental to that idea; required by factors external to the program itself; or taken from the public domain and hence is nonprotectable expression.[24]

Boiling this down, the judge must determine if the use of particular set of instructions in the source code is necessary for that particular portion of the overall process.[25] In addition, a determination must be made as to what is simply incidental source code and what is actually protected.[26]

To determine copyright infringement a federal judge will comb through each instruction in the source code to understand how and why they all interact.[27] Then the judge will decide what source code is copyrightable by separating code necessary to write software, code that is merely an idea, and code that is taken from the public domain from that which is protectable.[28]

Finally, the Federal Circuit embraced that view in Oracle America, Inc. v. Google.[29] Where the Oracle court found that since a result can be achieved through different combinations of source code instruction, the particular expression at issue was protected.[30] In the same year the Supreme Court issued a land mark patent decision in Alice v. CLS.[31] The Court held that a patent simply implementing a process by way of a computer is no more than an abstract idea.[32]

Alice is troublesome because the Supreme Court’s inability or unwillingness to adhere to decades of federal rulings.[33] While patent law and copyright are different, they both require that the subject matter or material, for which protection is sought be more than an idea or concept.[34] The analysis of three Federal Appellate Courts all seem to agree that software is a set of created instructions that carry out a process and produce a result. Various cases tell us, when we can get from problem “A” to solution “B” using various routes each individual route is no longer an idea.[35] Yet the highest court in the land would have us believe that performing a process through another means or another route (software) is nothing more than an idea.[36] Alice stands for the general notion that the development of software does not “promote[s] the progress of science.”[37]

[1] Software, Black’s Law Dictionary (10th ed. 2014).

[2] Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983); Alice Corp. Ltd. v. CLS Bank Int., 573 U.S. 208 (2014).

[3] Alice, 573 U.S. at 223.

[4] Apple, 714 F.2d at 1240.

[5] Michael Gershoni, An Argument Against Reinventing the Wheel: Using an Obviousness Analysis to Bring Consistency and Clarity to Patent Eligibility Determinations of Software Patents After Alice Corp., 44 AIPLA Q.J. 295, 299 (2016).

[6] Apple, 714 F.2d at 1240.

[7] Id. at 1240.

[8] Id. at 1240; Software, Black’s Law Dictionary (10th ed. 2014).

[9] Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986).

[10]Id. at 1236.

11Apple, 714 F.2d at 1240.

12Id. at 1240; Alice Corp. Ltd. v. CLS Bank Int., 573 U.S. 208 (2014).

13Apple, 714 F.2d at 1240; Alice, 573 U.S. at 223.

14Daniel Taylor, Down the Rabbit Hole: Who Will Stand Up for Software Patents After Alice?, 68 Me. L. Rev. 217, 218 (2016).

[15] Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 840 (Fed. Cir. 1992).

[16] Id. at 840.

[17] Comput. Assocs. Int., Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).

[18] Id. at 707.

[19] Id.

[20]  Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 710.

[25] Id. at 707, 710.

[26] Id. at 710.

[27] Id. at 707, 710.

[28] Id.

[29] Oracle America, Inc. v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014).

[30] Id. at 1357.

[31] Alice Corp. Ltd. v. CLS Bank Int., 573 U.S. 208 (2014).

[32] Id. at 223.

[33] See id. at 212.

[34] Id; Oracle, 750 F.3d at 1357.

[35] Oracle, 750 F.3d at 1357; Computer Assocs. Int., Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Whelan Assocs. Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1236 (3d Cir. 1986).

[36] Alice, 573 U.S. at 223.

[37] Id; U.S. Const. art. I, § 8, cl. 2.

Who Gets the Car, the House, and the Embryos?

Rosenberger, Jeff Headshot.jpgThis post was written by Associate Editor, Jeffrey Rosenberger.  The views and opinions expressed herein are those of the author alone.

When a couple gets a divorce and are unable to agree on the division of marital assets, state courts are usually able to equitably divide assets without much fanfare. After all, most people probably do not have a significant emotional investment in a car or a couch. However, technology has created a new marital asset, the frozen embryo, that is causing couples to go to war and leaving courts and legislatures searching for a way to resolve these disputes equitably.[1] In vitro fertilization (IVF) has enabled couples to create and store frozen embryos using their own eggs and sperm for future implantation and gestation.[2] This is a great benefit to couples who are unable to conceive naturally but it is also used in cases where one partner will be undergoing cancer treatment.[3] Cancer treatments can harm fertility or even cause sterility, so some couples will choose to preserve frozen embryos to ensure a chance at having healthy children.[4] However, when a couple divorces, the difficult question of who, if anyone, should be granted rights to any unused frozen embryos must be decided.

The majority of courts that have addressed the disposition of frozen embryos in divorce proceedings have applied a contract approach.[5] This approach simply asks whether the couple had a valid written agreement, either between themselves, or between them and the fertility clinic, that speaks to the disposition of the frozen embryos after a divorce.[6] If there is a valid agreement, the court will follow it.[7] The contract approach is often justified because it gives the affected parties control over the intimate decision of whether to procreate or not.[8] In theory, it should also lead to more people seriously considering this issue when undergoing IVF treatment and executing agreements accordingly to avoid litigation.[9]

If a couple does not have a valid agreement in place, the courts will often turn to a balancing of the interests test to determine the disposition of the embryos.[10] With the balancing test, courts often put significant weight on a party’s right not to procreate and normally this right prevails, except in cases where the party seeking the embryos is incapable of conceiving.[11] For example, the Superior Court in Pennsylvania awarded frozen embryos to a spouse that was no longer able to conceive over the objections of her husband.[12] The Court reasoned that the husband’s fear of being responsible for child support and his personal experience as an adopted child who did not know his genetic parents were not significant enough to outweigh the fact that his wife would likely never have children without the embryos.[13]

The balancing test provides the benefit of evaluating each case on an ad-hoc basis, which allows courts to consider the specific interests and concerns of each party. However, it also requires litigation, and all of the associated costs, to resolve every dispute. Nevertheless, the balancing test seems to be the approach that most states are taking when the contract approach is unavailable, with the Colorado Supreme Court most recently following suit.[14]

However, while the trend is for most state courts to adopt the contract and balancing approaches to the disposition of frozen embryos, some courts have rejected these approaches.[15] Both Iowa and Missouri courts have adopted the contemporaneous mutual consent approach.[16] The contemporaneous mutual consent approach requires that both parties must agree on the disposition of the frozen embryos or the status quo will remain.[17] Effectively, this means that the party who does not want to procreate always prevails. While this ensures the protection of the right not to procreate, the approach has been criticized because it can create an unfair bargaining chip and allow one party to hold the embryos hostage in a divorce negotiation.[18] Therefore, it is not likely to become a majority approach.

Overall, the judicially created solutions to this issue are the correct approach. The contract approach respects the decisions of couples who plan for the disposition of embryos via contract and the balancing approach is an equitable solution when a valid agreement has not been executed.

In the face of this trend of judicial adoption of the contract and balancing approaches, one state legislature, unhappy with the results of a balancing approach, decided to force procreation by statute.[19] The Arizona Legislature passed Senate Bill 1393 to prevent Arizona courts from applying the contract approach, the balancing approach, or even the contemporaneous mutual consent approach.[20] The statute requires courts to “award the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop to birth.”[21] The statute prevents courts from performing any balancing of the interests approach and also explicitly overrides any valid agreement the parties may have regarding the disposition of the embryos.[22] Thus, every couple in Arizona who stores frozen embryos must assume the risk that those embryos could be implanted and gestated despite a valid agreement. In effect, a decision to create a frozen embryo in Arizona is a perpetual consent to procreate. It remains to be seen if the statute will survive an inevitable court challenge, but it marks a striking departure from the judicially created approaches that have been gaining traction to date. Hopefully, it will not be one that is emulated by any other states.


[1] See e.g. Andrew Fies, Divorced Couple Take Their Fight Over Frozen Embryos to Colorado Supreme Court, ABCNews (Jan. 10, 2018), https://abcnews.go.com/US/divorced-couple-fight-frozen-embryos-colorado-court/story?id=52270585.

[2] In Vitro Fertilization (IVF), Mayo Clinic, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716 (last visited Nov. 18, 2018).

[3] Fertility Preservation: Understand Your Options Before Cancer Treatment, Mayo Clinic, https://www.mayoclinic.org/healthy-lifestyle/getting-pregnant/in-depth/fertility-preservation/art-20047512 (last visited Nov. 18, 2018).

[4] Id.

[5] Sarah H. Loy, Note, Responding to Reber: The Disposition of Pre-embryos Following Divorce in Pennsylvania, 122 Penn St. L. Rev. 545, at 552 (2018).

[6] Id. at 553.

[7] Id.

[8] See e.g. Szafranski v. Dunston, 993 N.E.2d 502, 515 (Ill. App. Ct. 2013).

[9] Id.

[10] In Re Marriage of Rooks, No. 16SC906, 2018 WL 5316404, at *8 (Colo. Oct. 29, 2018).

[11] See Szafranski v. Dunston, 34 N.E.3d 1132, 1162 (Ill. App. Ct. 2015)(citing Reber v. Reiss, 42 A.3d 1131, 1142 (Pa. Super. Ct. 2012); Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992)).

[12] Reber v. Reiss, 42 A.3d 1131, 1142 (Pa. Super. Ct. 2012)

[13] Id. at 1140.

[14] In Re Marriage of Rooks, No. 16SC906, 2018 WL 5316404, at *8 (Colo. Oct. 29, 2018).

[15] In re Marriage of Witten, 672 N.W.2d 768, 783 (Iowa 2003); McQueen v. Gadbury, 507 S.W.3d 127, at 157 (Mo. Ct. App. 2016).

[16] Id.

[17] Sarah H. Loy, Note, Responding to Reber: The Disposition of Pre-embryos Following Divorce in Pennsylvania, 122 Penn St. L. Rev. 545, at 557 (2018).

[18] Id.

[19] Alexa Lardieri, Arizona Law Awards Custody of Embryos to Partner Who Wants Child After Divorce, USNews & World Report (July 19, 2018), https://www.usnews.com/news/politics/articles/2018-07-19/arizona-law-awards-custody-of-embryos-to-partner-who-wants-child-after-divorce.

[20] Ariz. Rev. Stat. Ann. §25-318-03 (2018).

[21] Id.

[22] Id.


Will FOSTA’s Good Intentions Break the Internet?

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This post was written by Associate Editor, Brittany Wright.  The views and opinions expressed herein are those of author alone.

  • The Communications Decency Act of 1996


In the early stages of the internet, the United States Congress (“Congress”) enacted the Communications Decency Act of 1996 (“CDA”) to promote the development of the internet and allow websites to be unfettered by government regulation.[1] More importantly, CDA §230 offered an immunity provision to websites acting as distributors of content.[2] Prior common law did not allow such immunities and websites were liable for third party postings.[3] Along with the rapid growth of the internet came bad actors who abused the immunities of CDA §230 to sell the services of sex trafficking victims.

Backpage.com (“Backpage”) was a free, online classified advertising website that allowed listings by third party sellers, including an adult entertainment page.[4] This page contained revealing and suggestive pictures of sex workers and escorts accompanied by offered “services.” However, among these advertisements were children and other victims forced or coerced into sex trafficking. Three victims who were age fifteen when they were advertised brought suit against Backpage.[5] Their traffickers posted advertisements on Backpage, which led the three victims to be raped collectively over 1,900 times.[6] Backpage used the immunity of CDA §230 as a defense, claiming it was not liable for user content.[7] The First Circuit agreed with Backpage,[8] however, it suggested that Congress amend CDA §230.[9] Backpage also successfully stopped state legislation criminalizing the advertisement of commercial sexual abuse of minors.[10]

In J.S. v. Village Voice Media Holdings, three minors brought a tort action against Backpage and its parent company claiming it was an active participant in their sex trafficking.[11] Backpage again moved to dismiss the case because state law was preempted by the immunity of CDA §230.[12] The plaintiffs argued that CDA §230 immunity did not apply.[13] Backpage posted rules that assisted pimps in creating advertisements for minors without detection by law enforcement.[14] The court rationalized that Backpage did not simply host the advertisements, but helped develop the content through its posting rules.[15] Therefore, the Washington Supreme Court found that CDA §230 immunity did not apply because it assisted with creating the illegal content.[16]

  • Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”)


Congress responded to Backpage’s evasion of liability by passing the House of Representatives’ Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”),[17] and its Senate equivalent Stop Enabling Sex Traffickers Act of 2017 (“SESTA”).[18] When the CDA was amended in 1996, Congress did not intend for websites like Backpage to be immune from liability.[19] Therefore, FOSTA amended CDA §230 so websites were liable for promoting or facilitating prostitution and for recklessly disregarding sex trafficking.[20]

FOSTA passed through Congress with an overwhelming majority in its favor.[21] However, prior to enactment, not everyone supported FOSTA. Critics argued that FOSTA discouraged internet freedom by holding websites liable for third party posts. For example, if a user posted a sex trafficking advertisement on Reddit or Facebook, the social media platform could be criminally and civilly liable. One of the two opposing Senators of FOSTA, Ron Wyden, believed that FOSTA would deter startups from creating websites without the protection of CDA §230.[22]

On behalf of the Department of Justice (“DOJ”), the Assistant Attorney General, Stephen Boyd, informed Congress that FOSTA would make it difficult to prosecute traffickers.[23] Additionally, the DOJ objected to FOSTA applying retroactively.[24] It argued that the bill violated the Ex Post Facto Clause of the Constitution by imposing punishment on acts that were legal when they occurred.[25]

Many pro-speech and pro-internet advocacy groups criticized FOSTA. The American Civil Liberties Union asserted that FOSTA would hinder online freedom of expression and innovation.[26] It argued that current laws will amply punish traffickers without the support of FOSTA.[27] The Electronic Frontier Foundation (“EFF”) identified the biggest issue for websites with FOSTA’s enactment would be the difficulty of determining whether a post created an advertisement for sex trafficking.[28] EFF also raised the same constitutional issues as DOJ.[29] It joined a lawsuit pro hac vice, challenging the constitutionality of FOSTA and sought a preliminary injunction to prevent its enforcement.[30] The court rejected the argument and dismissed the case.[31]

  • The End of the Internet as We Know It?


For over twenty years, CDA §230 offered protection and immunity to websites for user content and survived much scrutiny. CDA §230’s liability immunity allowed the explosion of the internet and social media websites without fear of civil or criminal liability for user content. Although FOSTA is good intentioned, it could have unintended consequences. It will likely increase frivolous lawsuits with its vague wording.[32] Additionally, the possibility of civil and criminal liability may make the next social media phenomenon reconsider launching its new app or website that contains user content

FOSTA “poses a risk to freedom of speech on the Internet as we have come to know it while purporting to solve a problem that could be addressed in other ways.”[33] An alternative to FOSTA is to allow courts to hold bad actors liable for acting outside of the scope of CDA §230 by actively promoting or facilitating sex trafficking.[34] Before FOSTA was signed into law, the DOJ charged Backpage principals in a ninety-three count indictment.[35] Also, Backpage.com can no longer be accessed because on April 6, 2018, federal and state agencies seized it as part of an enforcement action.[36]

[1] 47 U.S.C. §§ 230 (b) (2)-(3).

[2] 47 U.S.C. §§ 230 (c).

[3] Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991); Stratton Oakmont v. Prodigy Servs., No. 31063/94, 1995 N.Y. Misc. LEXIS 229 (NY Sup. Ct. May 24, 1995).

[4] Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 16 (1st Cir. 2016)cert. denied137 S. Ct. 622 (2017).

[5] Id. at 17

[6] Id.

[7] Id. at 18.

[8] Id. at 29; see also M.A. v. Vill. Voice Media Holdings, 809 F. Supp. 2d 1041 (E.D. Mo. 2011).

[9] Jane Doe No. 1, 817 F.3d at 29.

[10] Backpage.com, LLC v. McKenna, No. C12-954 RSM, 2012 U.S. Dist. LEXIS 134216, at *3-4 (W.D. Wash. Sep. 18, 2012) (Senate Bill 6251); Backpage.com, LLC v. Cooper, No. 3:12-654, 2013 U.S. Dist. LEXIS 43852 (M.D. Tenn. Mar. 27, 2013) (Tenn. Code Ann. § 39-13-315); Backpage.com, LLC v. Hoffman, No. 13-3952 DMC-JAD, 2013 U.S. Dist. LEXIS 119811 (D.N.J. Aug. 20, 2013)(N.J. Stat. Ann. § 2C:13-10(b)(1)).

[11] J.S. v. Vill. Voice Media Holdings, LLC, 359 P.3d 714, 716 (Wash. 2015).

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 717-18.

[16] Id. at 718.

[17] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865, 115th Cong. §5 (2018) [hereinafter “FOSTA”].

[18] Stop Enabling Sex Traffickers Act of 2017 (SESTA), S. 1693, 115th Cong. (2018).

[19] FOSTA, supra.

[20] Id. at §2.

[21] Id.

[22] 164 Cong. Rec. S1849 (daily ed. Mar. 21, 2018) (Statement of Sen. Wyden); Press Release, Ron Wyden, United States Senator for Oregon, Wyden Issues Warning About SESTA (Nov. 8, 2017).

[23] 164 Cong. Rec. S1849 (letter from Assistant A.G. Stephen Boyd).

[24] Id.

[25] Id.; U.S. Const. art I, 9, cl. 3.

[26] American Civil Liberties Union, ACLU.org, ACLU Vote Recommendation To Congress: Oppose H. R. 1865 – The “Allow States And Victims To Fight Online Sex Trafficking Act” (FOSTA), (Feb. 26, 2018), https://www.aclu.org/letter/aclu-vote-recommendation-congress-oppose-h-r-1865-allow-states-and-victims-fight-online-sex

[27] Id. at p. 3.

[28] Elliot Harmon, EFF.org, Amended Version of FOSTA Would Still Silence Legitimate Speech Online, https://www.eff.org/deeplinks/2017/12/amended-version-fosta-would-still-silence-legitimate-speech-online (Dec. 11, 2017).

[29] Id.

[30] Woodhull Freedom Found. v. United States, No. 18-1552, 2018 U.S. Dist. LEXIS 163292, at *36 (D.D.C. Sep. 24, 2018).

[31] Id. at *2.

[32] See Igbonwa v. Facebook, Inc. 2018 U.S. District LEXIS 173769 (N.D. Cal. Oct. 9, 2018) (Plaintiff sues Facebook and Mark Zuckerberg because people using fake profiles harassed him on Facebook. Plaintiff used FOSTA and cited “An Act [t]o amend the Communications Act of 1934 to clarify that section 230 of such Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking, and for other purposes.” (emphasis in original)).

[33] American Civil Liberties Union, supra note 27.

[34] See e.g. J.S. v. Vill. Voice Media Holdings, LLC, 359 P.3d 714 (Wash. 2015).

[35] Press Release 18-463, Elizabeth Strange, First Assistant United States Attorney, Backpage’s Co-founder and CEO, As Well As Several Backpage-Related Corporate Entities, Enter Guilty Pleas (April 12, 2018).

[36] http://www.backpage.com/; Press Release 18-427, U.S. Dep’t of Justice, Justice Department Leads Effort to Seize Backpage.Com, the Internet’s Leading Forum for Prostitution Ads, and Obtains 93-Count Federal Indictment (Apr. 9, 2018).

An Examination of Two Upcoming Death Penalty Cases at this Term

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This post was written by Senior Editor, Josh Kemme.  The views and opinions expressed herein are those of the author alone.

           The legality and morality of the use of capital punishment on convicted criminals has long been a subject of much debate and controversy in American jurisprudence. Once a common type of punishment that could be imposed on offenders for a multitude of various infractions, the death penalty today has been abandoned by an increasing number of states. Most recently, Washington became the twentieth state (along with the District of Columbia ) to abolish the death penalty in October 2018.[1] However, although the use of the death penalty has declined over the years, capital punishment remains a viable sentencing option in thirty U.S. states, including Kentucky, Ohio, and Indiana.[2]

With the exception of a four-year moratorium in place from 1972 to 1976, the Supreme Court of the United States has yet to strike down the death penalty as unconstitutional in all cases, although it has placed many substantive restrictions on its use in certain cases.[3] The Court has agreed to review two particular death penalty cases this term that will require the Court to determine whether further restrictions should be placed on the use of capital punishment in cases where the offender suffers from a particular mental or physical condition.[4] The defendants in both cases, Vernon Madison and Russell Bucklew, argue that the use of the death penalty on them would constitute cruel and unusual punishment in violation of the Eighth Amendment, though their reasonings as to why differ.

Vernon Madison was convicted and sentenced to death for shooting and killing an Alabama police officer in 1985.[5] After a lengthy series of trials, reversals, retrials, and convictions, Madison was finally scheduled to be executed in May of 2016.[6] In January of 2016, however, Madison suffered a stroke that caused him to develop vascular dementia, multiple physical impairments, and significant memory loss.[7] As a result of his condition, Madison no longer has any memory of committing the offense for which he was convicted and sentenced to death.[8] Madison argues that, due to his significant cognitive decline, he is no longer competent to be executed because he lacks a rational understanding of why he is being punished and put to death.[9] Madison contends that execution in such circumstances would violate the protections afforded to him by the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court stayed Madison’s execution in January 2018 and agreed to hear oral arguments on behalf of Vernon Madison and the State of Alabama.[10]

The Court has also agreed to review the case of Russell Bucklew, who was convicted and sentenced to death by a Missouri trial court for kidnapping and raping his ex-girlfriend and murdering his ex-girlfriend’s roommate in 1996.[11] Bucklew was scheduled to be put to death by lethal injection in 2014, but his execution was stayed because of concern that Bucklew’s unique medical condition would complicate his execution and cause him to suffer “severe pain and needless suffering.”[12] Bucklew suffers from a rare condition known as cavernous hemangioma, which restricts the blood flow in the peripheral veins in his arms and hands, causing blood vessels and tumors to grow in and around Bucklew’s throat.[13] Medical experts determined that Bucklew’s condition creates a significant risk that the lethal drug to be injected into Bucklew would not circulate properly, causing Bucklew to be conscious and in severe pain during his execution. Due to the blood tumors in Bucklew’s neck and throat, medical personnel also concluded that Bucklew would likely choke on his own blood and be unable to breathe for up to four minutes.[14]

Bucklew challenged the lethal injection protocol to be used during his execution, arguing that it would constitute “cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments as applied to him because of his unique medical condition.”[15] The Eighth Circuit Court of Appeals rejected Bucklew’s challenge, concluding that he failed to satisfy the two-pronged test that an offender challenging the method of execution to be used against him must satisfy:[16] (1) that the method of execution “presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers;” and (2) the challenger must “identify an alternative [method of execution] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.”[17] The Eighth Circuit acknowledged the possibility that lethal injection would cause Bucklew to experience severe pain during his execution, but concluded that Bucklew’s proposed alternative method of execution (death by lethal amounts of the nitrogen gas) would not substantially reduce the amount of pain that Bucklew would experience.[18] Bucklew petitioned to the Supreme Court, which granted certiorari on April 30, 2018.[19]

The Court has heard oral arguments from counsel for both defendants. It is too early to tell what the Court’s position will be in either case, but news reports suggest that the justices are sharply divided in both cases.[20] Although the Court’s ultimate conclusion in either case will by no means end the death penalty debate among the states, it will serve as a good indicator of what to expect with regard to the death penalty’s continued existence. The Court’s allowance of either Vernon Madison or Russell Bucklew to be executed would serve as a victory to the states, supporting the continued viability of the death penalty even for defendants with mental or physical defects such as Madison and Bucklew. A finding of unconstitutionality would demonstrate the death penalty’s increasing vulnerability and serve as a further restriction on the use of capital punishment. The Supreme Court is set to decide on the issues by term’s end in June 2019.



[1] State v. Gregory, 427 P.3d 621, (Wash. 2018).

[2] Shayanne Gal & Michelle Mark, Washington State’s Supreme Court just tossed out its death penalty- here are the states that still have the power to execute prisoners, Business Insider (Oct. 11, 2018), https://www.businessinsider.com/states-with-the-death-penalty-america-2018-3.

[3] See Furman v. Georgia, 408 U.S. 238 (1972) (holding that the use of the death penalty was being unconstitutionally imposed on convicted African American defendants at a disproportionate and arbitrary rate, and placing a temporary moratorium on the use of the death penalty until state legislatures could address the problem); Gregg v. Georgia, 428 U.S. 153 (1976) (reinstating the death penalty).

[4] Madison v. Alabama, 138 S.Ct. 943 (2018) (Mem); Bucklew v. Precythe, 138 S.Ct. 1706 (2018) (Mem).

[5] Dunn v. Madison, 138 S.Ct. 9, 10 (2017).

[6] Petition for a Writ of Certiorari at 4, Madison v. State of Alabama, No. 17-7505 (U.S. Jan. 18, 2018).

[7] Id. at 1.

[8] Id.

[9] Id. at 2. See Panetti v. Quarterman, 551 U.S. 930 (2007) (holding that an offender sentenced to death is incompetent to be executed under the Eight Amendment where the offender is unable to rationally comprehend the seriousness of his crime and the connection between the crime committed and the punishment to be inflicted on the offender).

[10] Madison v. Alabama, 138 S.Ct. 943 (2018) (Mem).

[11] Bucklew v. Luebbers, 436 F.3d 1010 (8th Cir. 2006). Bucklew was also convicted of first-degree murder, kidnapping, forcible rape, burglary, and armed criminal action. Id. at 1014.

[12] Bucklew v. Precythe, 883 F.3d 1087, 1090 (8th Cir. 2018).

[13] Id.

[14] Id.

[15] Id. at 1089.

[16] Id. at 1091 (“Glossip and Baze established two requirements for an Eighth Amendment challenge to a method of execution.”).

[17] Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015).

[18] Bucklew v. Precythe, 883 F.3d 1087, 1096 (8th Cir. 2018).

[19] Bucklew v. Precythe, 138 S.Ct. 1706 (2018) (Mem).

[20] Supreme Court Hears Argument in Missouri Lethal-Injection Case, Death Penalty Information Center (Nov. 6, 2018), https://deathpenaltyinfo.org/category/categories/facts/us-supreme-court.

The False Claims Act and the Rule 9(b) Requirement

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This post was written by Lead Articles Editor, Tarah Remy.  The views and opinions expressed herein are those of the author alone.

In 1863, Congress enacted the False Claims Act (FCA) to combat fraud by suppliers of goods against the Union Army during the Civil War.[1] In the past, the main culprits were “government insiders” purchasing weapons for the army, however, today the main offenders are corporations committing procurement fraud through government contracts.[2] The primary industries affected are “the defense industry, Medicare, and Medicaid Reimbursements.”[3] Today the FCA continues to be the government’s best line of defense against those intending to defraud the Federal Treasury.[4]

Along with being a line of defense, the FCA works as an incentive benefiting private citizens (relators) by encouraging them to bring fraudulent acts to light. [5] This type of lawsuit is called a qui tam action, a type of whistle blower lawsuit brought under the FCA.[6] In these lawsuits, relators receive a cut in successful suits where the government recovers the stolen funds.[7] As an anti-fraud statute, claims brought under the FCA should comply with Fed R. Civ. Pro. 9(b)[8] which states the following: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake . . .”[9] However, the courts have yet to determine what level of specificity is required under this rule when alleging FCA claims.[10] For example, the Fourth, Sixth, Eighth, and Eleventh Circuits require a plaintiff “show ‘representative samples’ of the ‘alleged fraudulent conduct, specifying time, place, and content of the acts and the identity of the actors.’”  In contrast, the First, Fifth, Ninth, and now Third Circuit in the Fogila[11] decision, hold that Rule 9(b) requires a plaintiff show “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” [12]

United States ex rel. Doe v. Jan-Care Ambulance Serv., Tri-State Div. provides an example of the strict specificity requirement followed by the Sixth Circuit.[13] In this case, two ambulance companies bid for a contract with the Department of Veterans Affairs (VA); Trans-Star Ambulance Service, a Kentucky company, and Jan-Care Ambulance Service, a West Virginia company. Jan-Care won the contract and hired Trans-Star to conduct transports in Kentucky.[14] However, after some time Jan-Care began performing the Kentucky transports itself.[15] Trans-Star sued Jan-Care and claimed Jan-Care was in violation of the FCA by filing false or fraudulent claims with the VA.[16] Specifically, Trans-Star states that Jan-Care must have a license to transport in Kentucky, something it alleges Jan-Care did not have and by asking the VA to pay money owed under their contract, Jan-Care was violating the FCA. Trans-Star does not identify a single false claim or even an alleged falsely claimed invoice. The court does point out that Trans-Star identified three instances where Jan-Care transported without a Kentucky license and therefore infers that Jan-Care must have asked the VA for payment.[17] The court held that “merely alleging that false claims ‘must have been submitted’ does not meet Rule 9(b)’s standard. Trans-Star provides no ‘concrete facts’ about when Jan-Care allegedly submitted these allegedly fraudulent claims to the government.”[18] Therefore, Trans-Star “fails to plead its FCA claims with particularity . . .”[19]

On the other hand, United States ex rel. Grubbs v. Ravikumar Kanneganti, provides an example of the lenient specificity requirement followed by the Fifth Circuit.[20] In this case, two doctors told their employee about their fraudulent billing scheme and told him how he could contribute to the scheme.[21] The court found that the employee did not need the exact dollar amounts, etc., to prove that the fraudulent bills were actually submitted.[22] The court needs only proof that the fraud occurred, not of the exact contents. The court also found that the employee provided “simple, concise, and particular allegations of the making of a false record or statement for payment by the government [and that] the employee sufficiently stated conspiracy claims against the two doctors.”[23]

The two viewpoints outlined above have allowed for much discussion and concern. With the lenient requirements, some worry relators are “forum shopping” and bringing frivolous claims against corporations. However, how might corporations take advantage of courts maintaining the stricter standard applied by the Fourth, Sixth, Eighth, and Eleventh Circuits? These circuits, as mentioned above, require “representative samples,” or actual examples of the alleged fraud. For example, the Sixth Circuit requires “concrete facts” to bring a FCA claim.[24] Making it harder to bring a claim exposing fraudulent behavior may go against the policy behind the very enactment of the False Claims Act. Valid cases of fraud may be thrown out for simply lacking “concrete facts.” However, the strict standard may encourage relators to dive deeper and obtain evidence before bringing claims. Either way, it will be interesting to see what courts determine should be the uniform requirement.

[1] Federal False Claims Act and Qui Tam Litigation § 2.01

[2] Id.

[3] Id.

[4] Id.

[5] Black’s Law Dictionary (10th ed. 2014), available at Westlaw BLACKS.(qui tam action (kee-tam or kwI tam) [Latin qui tam pro domino rege quam pro se ipso in hac parte sequitur “who as well for the king as for himself sues in this matter”] (18c) An action brought under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.)

[6] Lawrence J. Tabas, Benjamin Waters, Supreme Court Punts on False Claims Act Specificity Requirement, Health Law: News, Commentary & Insights (May 1, 2018), https://www.healthlawgurus.com/2018/05/supreme-court-punts-false-claims-act-specificity-requirement/

[7] Id.

[8] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014) (“The Federal Rules of Civil Procedure usually require only that a plaintiff present ‘a short and plaint statement’ of his or her claim. See Fed. R. Civ. P. 8(a). However, the Rules demand that ‘in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake,’ though malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. Fed. R. Civ. P. 9(b). Since FCA claims inherently involve some ‘false’ or ‘fraudulent’ conduct, it seems appropriate that some level of more particularized pleading is required.”)

[9] Fed. R. Civ. Pro. 9(b)

[10] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014)

[11] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014) citing Foglia v. Renal Ventures Mgmt., LLC, No. 12-4050, 2014 U.S. App. LEXIS 10549 (3d Cir. June 6, 2014) (Third Circuit rejects the strict standard applied by the Fourth, Sixth, Eighth and Eleventh Circuits “reasoning that requiring ‘representative samples’ would be ‘one small step shy of requiring production of actual documentation with the complaint, a level of proof not demanded to win at trial and significantly more than any federal pleading rule contemplates.’”).

[12] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014)

[13] Jan-Care Ambulance Serv., Tri-State Div., 187 F. Supp. 3d 786 at 791

[14] Id.

[15] Id.

[16] Jan-Care Ambulance Serv., Tri-State Div., 187 F. Supp. 3d 786 at 791

[17] Id.

[18] Id. at 793.

[19] Id.

[20] Ravikumar Kanneganti, 565 F.3d 180

[21] Id. at 184

[22] Id.

[23] Id.

[24] United States ex rel. Doe v. Jan-Care Ambulance Serv., Tri-State Div., 187 F. Supp. 3d 786, 793 (E.D. Ky. 2016) (“Trans-Star provides no “concrete facts” about when Jan-Care allegedly submitted these allegedly fraudulent claims to the government. See Marlar, 525 F.3d at 446. Jan-Care could have submitted the allegedly fraudulent claims to the VA the day after the transport, the next month, or the next year. Or perhaps Jan-Care never submitted claims for those three transports. As such, Trans-Star fails to plead its FCA claims with particularity and they are “properly dismissed” upon this ground as well.”)



Drone Home: How Courts Are Likely to Treat Drone Surveillance with Regard to the Fourth Amendment

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This post was written by Senior Editor, Alexander Wilcox.  The views and opinions expressed herein are those of author alone.


Technology evolves at a rapid pace and often does so in unexpected ways. Ten years ago, few would have predicted the boom of social media and how it has changed our day-to-day lives personally and professionally. While it is difficult to forecast what the future holds for technology and how it will interact with the law, relevant case law available to us today allows for some signaling of what is to come in the realm of legal procedure.

Distinguished from High-Tech Search Framework

The continued evolution of drones is likely to warrant changes in evidentiary and procedural rules, as well as legislation. A drone is defined as “an unmanned aircraft or ship guided by remote control or onboard computers.”[1] The holding of Kyllo V. United States[2] asserts that usage of uncommon high-tech devices at a defendant’s home constitutes a search for the purposes of Fourth Amendment search and seizure. Have drones become so common that they no longer fall under the uncommon technology umbrella? A cursory online search shows that drones advertised as children’s play things can be as inexpensive as $22.50, and surprisingly, higher tech drones equipped with 4k recording and imaging technology can be purchased for as low as $150.[3] The mass production of drones, the fall of their prices, and the ready availability of them at every major retailer is likely to allow for drones to fall out of the “uncommon high-tech device” definition, meaning that a police drone flyover of one’s house may not constitute a search.[4]

Distinguished from Aerial Search Framework

The judiciary, when looking at the admissibility of drone surveillance, is likely to look at past precedent regarding potential searches executed from the air. The seminal case concerning helicopter-based searches is Florida v. Riley.[5] The facts of Riley regard police flying over a suspect’s home at 400ft and peering into a greenhouse located on the property.[6] The police discovered, without the aid of any other technology, that the suspect was growing marijuana.[7] The case hinged on the fact that the helicopter was flying at a height that was within Federal Aviation Administration regulations.[8] The court ultimately found that no search had occurred because the suspect had no reasonable expectation of privacy when any member of the public could similarly fly at that level and see the illegal activity.[9]

Drawing a similar parallel, a drone being flown in compliance with its respective FAA rules should allow for an admissible “non-search” leading to an arrest. Section 107 of Chapter 14 of the Code of Federal Regulations lays out the limitations for drone flights. [10] It states that any drone cannot exceed 100mph in speed, 400ft in altitude unless avoiding a structure, or travel over three miles away from its controller.[11] If the same logic can be applied to a similar situation involving a drone, it seems unlikely that a would-be defendant would have any sort of expectation of privacy when viewed through a window, skylight, lunette, or similar aperture even if their illegal activity would be otherwise out of view from the street or sky and only accessible from a drone’s angle.[12] The rationale that any member of the public could fly their store bought drone down the street and view illegal activity similarly applies.


Drone usage has exploded in the past several years. Three million commercial and private drones were shipped last year alone.[13] While there was undoubtedly a moment in time in which a drone would have been considered high-tech and uncommon enough that the major public would not have been put on notice to its use in surveilling them, that time has most assuredly come and passed.[14] We are then left to compare legal precedent with modern facts and attempt to draw parallels between the past and future. Prior case law has stated that aerial surveillance does not constitute a search when viewing unobstructed apertures from an appropriate and legal altitude.[15] These two legal principles combine to forecast a future of criminal jurisprudence in which drone surveillance of one’s home is unlikely to constitute a search under the Fourth Amendment of the Constitution.


[1] “drone.” Merriam-Webster Online Dictionary. 2018. https://www.merriam-webster.com/dictionary/drone (25 Oct. 2018).

[2] Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001).

[3] GearBest, https://www.gearbest.com/rc-quadcopters (last visited Oct. 15, 2018).

[4] Andrew B. Talai, Drones and Jones, 102 Calif. L. Rev. 720,735 (2014).

[5] Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693 (1989).

[6] Id at 450.

[7] Id.

[8] Id.

[9] Robert Molko, The Drones Are Coming!, 78 Brook. L. Rev. 1279, 1283 (2013).

[10] 14 C.F.R. §107.51.

[11] Id.

[12] Jonathan Olivito, Beyond the Fourth Amendment, 74 Ohio St. L.J. 669, 683 (2013).

[13] Amy Ann Forni, Gartner Says Almost 3 Million Personal and Commercial Drones Will Be Shipped in 2017, Gartner, (Feb. 9, 2017), https://www.gartner.com/en/newsroom/press-releases/2017-02-09.

[14] Matthew R. Koerner, Drones And The Fourth Amendment, 64 Duke L.J. 1129, 1143 (2015).

[15] Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693 (1989).