STLR Link Roundup – March 2, 2018

Facebook Must Face Biometric Privacy Suit

On Monday, a U.S. District Judge in San Francisco ruled that Facebook Inc. must face a privacy suit regarding the gathering and storing of millions of users’ biometric data. Alphabet Inc.’s Google is fighting similar suits in Chicago. Judge Donato’s decision to allow the class action to move forward means that Facebook may have to pay fines of between $1,000 and $5,000 for each use of an individual’s image without their consent. If the consumers win, Facebook may have to adhere to new restrictions on the use of biometrics in the US as was already done in Europe and Canada.

Donato wrote that “when an online service simply disregards the Illinois procedures, as Facebook is alleged to have done, the right of the individual to maintain her biometric privacy vanishes into thin air. The precise harm the Illinois legislature sought to prevent is then realized.” Facebook argued that the case should be dismissed because its user agreement requires that all disputes be resolved under California law. An argument which Donato rejected.

In 2016, the U.S. Supreme Court case involving Spokeo Inc. set a “concrete injury” standard for privacy suits. The Illinois residents argue that under the Biometric Information Privacy Act they have a property interest in their digital identities and, thus, the use of those identities without their consent is a concrete injury. Facebook believes that a more narrow definition of the term should be used and argues that the residents have not suffered any applicable injury such as physical harm, financial loss, or denial of free speech or religion.

In response, Donato concluded that the consent requirement for use of this data is “the very privacy rights the Illinois legislature sought to protect” and that “[t]his injury is worlds away from the trivial harm of a mishandled zip code or credit card receipt.”

Netflix Wins Case Against Video Streaming Patent

Netflix was sued by Affinity Labs for infringing patents involving the Hypertext Transfer Protocol (HTTP) adaptive bitrate (ABR) streaming technology. HTTP ABR formats video and audio sources into “chunks” for delivery and adapts to the sizes necessary for the user’s device. Netflix was unable to get the case dismissed because the U.S. Court for the Western District of Texas held that the patent was not ineligible as an abstract idea.

At the Patent and Trademark Office’s Patent Trial and Appeal Board, Netflix successfully filed an inter partes review challenge of the Affinity Labs of Texas LLC patent. Netflix argued that the patent was obvious due to four previously granted patents and a public document RealNetworks Inc. issued in 2000. On Wednesday, the Patent Trial and Appeal Board ruled in Netflix’s favor.

Netflix still has to fight against a case involving its alleged infringement of a second Affinity Labs patent involving the same invention. Netflix is currently in the process of challenging that patent as well.

Medicare E-Prescribing to Fight Opioid Crisis

The opioid crisis has led to significant costs to the federal government. For example, last year, opioids cost the Medicare prescription drug program more than $4 billion. According to a Health and Human Services Office of Inspector General report, a third of the 43.6 million Medicare Part D beneficiaries received prescription opioids. 80% of these opioids were designed Schedule II or III controlled substances with the highest likelihood of abuse.

One possible way to combat opioid overdoses is through the electronic prescribing (“e-prescribing”) of opioids so that the prescriptions can be tracked to help identify patients who are at a high risk for overdose. On February 27, Senator Michael Bennet (D-Colo.) announced that he would introduce a bill requiring e-prescribing for all controlled substances going to Medicare recipients in order to help prevent these opioid overdoses.

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