Keeping Up With China: CFIUS and the Need to Secure Material Nonpublic Technical Knowledge of AI/ML

By: Anthony Severin Artificial intelligence (AI) and machine learning (ML) technologies will shape societies by the values they are programmed to respect. In part because of anti-competitive Chinese practices such as forced transfers of intellectual property (IP), companies based in the U.S. have lost the ability to compete in several fields. To avoid losing competitiveness in AI/ML sectors, the Committee on Foreign Investment in the United States (CFIUS) should promulgate rules blocking Chinese investors from acquiring ownership interests in U.S. companies when that ownership would allow access to material nonpublic technical knowledge of AI/ML. Such a categorical blacklist approach will limit forced transfers of IP and increase the influence of American values on the development of AI/ML technology. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 59

Consumers Beware: How Are Your Favorite “Free” Investment Apps Regulated?

By: Siqi Wang The proliferation of free or low-cost investment apps has disrupted the financial industry in recent years. Major brokerage firms have been pressured to go to zero fees due to intense competition from their fintech counterparts. While these apps have extended their products and services to those underserved by traditional brokers, some of their practices raise consumer protection concerns. Namely, the practice of “payment for order flow,” which helps fintech startups sustain a zero-commission model, could lead to subordinating customers’ best interest to market makers who acquire their retail orders from these fintech startups. Further, “cash management accounts,” newly popular among fintech startups with an ambition to compete with chartered banks raise questions about the use of idle customer assets and the protections afforded to these accounts in case of liquidation. This Note considers the products and services of these investment apps in the context of existing U.S. regulations and regulators for broker-dealers, investment advisors, and chartered banks. To illustrate this, this Note analyzes the potential consumer financial protection issues arising out of these fintech-based investment platforms’ distinctive business models and the services they provide. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 43

Cyber and TRIA: Expanding the Definition of An “Act of Terrorism” to Include Cyber Attacks

By: Nehal Patel The 9/11 terrorist attacks brought on financial losses that caused insurers and Congress to reevaluate how the United States approaches terrorism risk coverage. Congress quelled concerns of insurers evading coverage of future terrorist attacks by enacting the Terrorism Risk Insurance Act in 2002. This Note considers the difficulties presented by the out-of-date language employed by Congress in 2002 and proposes amendments so that the Act more clearly covers acts of cyberterrorism, which are ever-growing in their destructive potential. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 23

Ripple Effects: How in Re Ripple Labs Inc. Litigation Could Signal the Beginning of the End of the Payment Platform

By: Lindsay Martin Ripple Labs provides an international payment network that allows financial institutions to transfer money more cheaply and quickly than traditional international payments. Ripple’s native digital currency, XRP, supports global payments by acting as intermediate currency between different currencies, eliminating correspondent bank’s need to hold deposits in foreign currencies. In an ongoing class action lawsuit, XRP purchasers claim that the digital asset qualifies as a security under federal securities laws and that Ripple illegally offered and sold XRP as an unregistered security. Given Ripple’s rising prominence as a tool for financial institutions, this pending case will impact cryptocurrency markets and international payments. Because XRP is most likely a security subject to regulation by the Securities and Exchange Commission (SEC), this matter poses an existential threat to the Ripple network. This note examines the legal issues leading up to the Ripple litigation and explains why XRP is most likely a security. It concludes by discussing the SEC’s likely approach to Ripple’s unregistered Initial Coin Offering (ICO). Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 1

High Health Care Spending and Developing Technology: Proton Beam Therapy

By: Yoojeong Jaye Han Rising health care spending is a source of concern in the U.S. With new, high-cost health care technology, paying higher prices for the use of new technology without considering cheaper, equally effective alternatives leads to inefficient spending. This Note focuses on proton beam therapy (“PBT”) for treatment of prostate cancer to explore several causes that contribute to high health care spending in the U.S. In treating prostate cancer, PBT has not been shown to be more effective than its cheaper alternative, IMRT. Yet, investors and many states continue to encourage its use for prostate cancer. This Note argues that inefficient use of PBT increased because existing standard for review of new health care technology and its reimbursement often suggest new health care technology will be reimbursed at a prime rate. Hence, private investors fueled the development of PBT Centers indiscriminately, expecting a high return on their investment. Then, this Note proposes several ways to encourage a more efficient use of PBT. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 369

Opting Out: Biometric Information Privacy and Standing

By: Michelle Jackson Biometric technology promises to reshape the modern economy. With the increased prevalence of biometric technology comes a heightened risk of data breaches and identity theft. To protect consumers, state legislatures have enacted biometric privacy laws. As more state legislatures define the intangible harm of data misuse, some federal courts have restricted what constitutes an injury sufficient to create Article III standing. This analysis misapplies Spokeo and undermines legislative efforts to protect individual privacy. Because of the important interests at stake with biometric information privacy, federal courts should follow the Ninth Circuit and recognize the misuse of that data as a sufficient injury to constitute standing. Consumers usually cannot opt out of new biometric technologies implemented at airport gates, shopping centers, and workplaces. The federal courts also should not use standing doctrines to opt out of the intangible harms characterizing the information age. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 293

Measuring Baseball’s Heartbeat: The Hidden Harms of Wearable Technology to Professional Ballplayers

By: John A. Balletta After two-and-a-half decades of labor peace in Major League Baseball, storm clouds of a player strike are brewing as the operating Competitive Bargaining Agreement comes under fire. That same CBA includes Attachment 56, the most expansive allowance of wearable technology of the four major American professional sports. While the privacy of the athletes’ data might be the foremost concern under Attachment 56, there are a myriad of untapped arenas involving the use and dissemination of data from wearables, including issues in good-faith contracting and contract and trade negotiations. After situating the wearables provisions in the context of the CBA and describing the approved technologies, this Note will identify three infrequently discussed problems in Attachment 56 before positing ways around these concerns. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 268