Monthly Archives: February 2015

Your TV is Not a Spy, Big Brother is Not in Your Living Room, and Yet, Without the Power to See Through Your TV, You Still Aren’t Safe By Michael Pepper

Your TV is Not a Spy, Big Brother is Not in Your Living Room, and Yet, Without the Power to See Through Your TV, You Still Aren’t Safe

By Michael Pepper

First off, anybody who wants to use the voice recognition features of a smart TV should not be outraged that the TV is listening to them—there can be no voice recognition without a voice to recognize. Comparing a television keeping its passive microphone on to wait for the phrase “Hi TV” so that it can process commands[1], a feature you paid for, to an Orwellian dystopian future is outrageous[2].

However, consumers deserve, and may be entitled to, demonstrable transparency with respect to how their speech is analyzed, stored, and used. At this point, Samsung has not delivered this. Samsung has recently come under fire because of its privacy policy for its SmartTVs: “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of Voice Recognition.”[3] What Samsung’s privacy policy provides fair warning against is exactly the problem that reveals Samsung and other electronics companies are not doing nearly enough to protect personal data, and, in the worst case scenario, may reveal that no company feels the pressure to actively safeguard against massive misappropriation.

The “third party” mentioned in Samsung’s privacy policy is Nuance Communications, Inc.[4] The voice commands are transmitted from the TV microphone to Nuance’s servers, which sends back the appropriate command to the TV.[5] This is simple enough and very similar to how most voice recognition, like Apple’s Siri, works with sending voice commands to external servers for comparison.[6] However, Nuance “has its own privacy policy that TV users suddenly become subject to if they utilize the on-board voice recognition feature.”[7] This is where the danger lies. The voice commands and the speech have been reasonably recorded, but they have now been sent to a third party, where consumers are in the dark about what they have implicitly agreed to just by using a feature that came with their TV. Who knows what that third party can then do? Are consumers really protected once their personal speech has left the living room?

Samsung’s answer: yes, because of “industry-standard security safeguards and practices, including data encryption, to secure consumers’ personal information and prevent unauthorized collection or use.”[8] This quote comes from a blog posted by Samsung in response to the outcry against its SmartTV.[9] Interestingly, it goes into some good detail about how voice recognition actually works and discusses how one may disable voice recognition.[10]

Despite all the technological details, Samsung remains vague on one key point: what are “industry-standard security safeguard[s]”?[11] It is unclear what these safeguards are, how they are implemented, how their compliance is overseen, and how, if at all, they really prevent unauthorized use. “Data encryption” is the singular example of a safeguard. What does this entail? Is it encrypted only in transit from the TV to Nuance? Is it separately encrypted at Nuance? How strong is the encryption? As Senator Al Franken wrote in memos sent to Samsung and LG, “It remains unclear, however, how this data is treated after it is captured . . . Whether [third parties] cooperate with Samsung to ensure the protection of this highly sensitive information.”[12] The questions of how consumer data is transferred, to whom is it transferred, and how it is used could be endless, yet at this point there are no clear answers, and there is little indication that any electronics company wants to transparently set the record straight. Without the power to see through your own TV, the paths your data travels and the places it arrives are anybody’s best guess, and companies like Samsung need to do more than vague descriptions of protection and privacy policies.

Why should they have to? Senator Franken offers a seemingly personhood-related justification: “Consumers must be able to make informed decisions about whether and with whom they share that information . . . And they must be assured that when the information is shared that it will receive the utmost protection.”[13] This seems common sense: it is your info, and you should be able to knowledgably determine where it goes. Also, the pervasiveness of the internet may require greater protection of a constitutional, albeit minimal, right to informational privacy to curtail impermissible dissemination of personal data.[14] Further, Federal Trade Commission chairwoman Edith Ramirez is particularly concerned with the enormous risks posed to user privacy and security  “without businesses adopting security by design; engaging in data minimization rather than logging everything they can; and being transparent about the data they are collecting — and who else they want to share it with . . . .”[15]

There are not enough safeguards in place to protect the personal information once it has been reasonably recorded, there is not enough transparency provided to consumers so they can see for themselves where their data is going, and there are no incentives in place for companies to be any less opaque. Furthermore, as one author describes, these problems represent the struggles “to achieve such rigorous privacy standards on the current Internet,” and the internet is just going to keep growing and growing at a pace likely much faster than our lawmakers.[16] The Samsung SmartTV is just a singular example that the law has failed to keep up with the proliferation of technology into every facet of our daily lives and adequately protect our information’s privacy, and indicates the dangers as we approach the critical mass of connected devices.

[1] Caleb Denison, You Can Stop Whispering: Your Samsung Smart TV Isn’t Spying On You, Digital Trends (Feb. 9, 2015), http://www.digitaltrends.com/home-theater/samsung-tvs-arent-spying-eavesdropping-listening/.

[2] See Jared Newman, Shhh! Your Smart TV is Eavesdropping On You, TechHive (Feb. 9, 2015, 8:43 AM), http://www.techhive.com/article/2881653/shhh-your-smart-tv-is-eavesdropping-on-you.html.

[3] Samsung Privacy Policy–SmartTV Supplement, http://www.samsung.com/sg/info/privacy/smarttv.html.

[4] Stephanie Mlot, Samsung: Our TVs Are Not Listening to Living Room Chatter, PC Mag (Feb. 10, 2015, 5:50 PM), http://www.pcmag.com/article2/0,2817,2476583,00.asp.

[5] Id.

[6] Andrew Nusca, How Apple’s Siri Really Works, ZDNet (Nov. 3, 2011, 9:00 PM), http://www.zdnet.com/article/how-apples-siri-really-works/.

[7] Natasha Lomas, Today in Creepy Privacy Policies, Samsung’s Eavesdropping TV, TechCrunch (Feb. 8, 2015), http://techcrunch.com/2015/02/08/telescreen/.

[8] Samsung, Samsung Smart TVs Do Not Monitor Living Room Conversations, SamsungTomorrow (Feb. 10, 2015), http://global.samsungtomorrow.com/samsung-smart-tvs-do-not-monitor-living-room-conversations/.

[9] Id.

[10] Id.

[11] Id.

[12] Stephanie Mlot, Senator Probes Samsung, LG Over Smart TV Privacy, PC Mag (Feb. 12, 2015), http://www.pcmag.com/article2/0,2817,2476661,00.asp.

[13] Id.

[14] See generally Elbert Lin, Prioritizing Privacy: A Constitutional Response to the Internet, 17 Berkeley Tech. L.J. 1085, 1091-118 (2002).

[15] Natasha Lomas, What Happens to Privacy When the Internet is in Everything?, TechCrunch (Jan. 25, 2015), http://techcrunch.com/2015/01/25/what-happens-to-privacy-when-the-internet-is-in-everything/.

[16] Id.

“Have Your Cake and Eat It Too?”: The Overreaction to the “Eavesdropping” Samsung Smart Television By Jason Malone

 “Have Your Cake and Eat It Too?”: The Overreaction to the “Eavesdropping” Samsung Smart Television

By Jason Malone

Last week, several media outlets reported that Samsung’s smart televisions “eavesdrop” on its owners.[1] Quickly, hysteria broke out among smart television owners about possible breaches of privacy from unknown individuals who were listening to their every word through, of all things, the television. Besides, if one can’t trust his or her television to keep their deepest and darkest secrets private, who in the world can be trusted?

Surprisingly, the hysteria was caused largely by Samsung. In its privacy policy settings for its smart televisions, Samsung advised smart television owners that their conversations could be sent to third parties.[2] “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of [v]oice [r]ecognition,” Samsung’s policy reads.[3] Honestly, Samsung could have better phrased the policy to avoid the backlash.

However, upon a review of how the voice recognition technology really works, consumers will find that the Samsung smart televisions work in a fashion that should calm the anxiety of owners of the televisions. First, the smart televisions are actually “listening” to you, but the televisions are not recording or reporting words that are said. The Samsung smart televisions are “listening” for a limited number of the specific commands such as “change the channel” or “increase the volume.”[4] These commands are not stored or transmitted.[5] Unless one of the factory-programmed commands are spoken, the television remains “inactive”; once one of the commands is spoken, the television becomes “active.”[6] Once the television is “actively” listening, the user is notified by the presence of a large microphone in the middle of the television screen and a loud “beeping” noise.[7]

Furthermore, the smart televisions’ push-to-talk feature is not that different from the technology used in Apple’s Siri. Television owners can use the feature on the remote to search for items on the Internet using the television’s browser. The words spoken while using this feature is sent to a third-party speech-to-text translation company.[8] However, unlike Apple or Google (who handle the speech-to-text translation using their own servers), Samsung uses a third-party company to handle its speech-to-text translation.[9] Samsung does not sell or store this information.[10]

After reflecting on the response to the Samsung smart televisions, the backlash truly isn’t isolated to the Samsung TVs. After all, the voice recognition features can actually be turned off by the television owner. This backlash is more connected to some people’s constant worry about encroachment into their privacy. This fear will likely continue to grow with rapid advancements in technology that effect the manner people communicate, receive information, and enjoy entertainment. Granted, privacy is one of the freedoms that Americans most enjoy and take pride in, and by no means am I vouching for Americans to totally forfeit their privacy in any way. I do think that a “man’s home is his castle.”

However, I am making a practical observation: when it comes to some forms of technology, you may not be able to “have your cake and eat it too.” Without making too broad of a generalization, generally those who purchase a smart TV do so in order to take advantage of the very features (i.e. voice recognition, Internet capability) that make the television popular among the masses. These people believe that the utility of such a television is high. These same people must also realize that such features just don’t “magically” work on the television; artificial intelligence may not be to the point where televisions can actually “think” on their own. Also, implementing the technology into the televisions could be costly. Therefore, if the owner truly wants to benefit from the features on the television, he or she also has to accept the fact that current technology dictates that another party will have to be involved. In the very worst case, the TV owner could speak private or sensitive information that would be sent to the third party. The speak-to-talk feature may determine that it is a search and return search results.

I am sure that there will always be some people who feel uncomfortable with the technology because of its ability to possibly be compromised and misused, especially after the revelation of the NSA spying scandal. However, this argument can be made for several other technological advancements that have improved life. Simply put, the prospective television owner has to the weigh pros and cons of the technology. This rationale applies to several other areas of technology. As for me, I will continue to enjoy Siri and other forms of voice recognition technology.

[1]E.g. David Goldman, Your Samsung TV is eavesdropping on your private conversations, CNN Money (February 15,2015),http://money.cnn.com/2015/02/09/technology/security/samsung-smart-tv-privacy/index.html?section=money_latest.

[2] Id.

[3] Id.

[4] David Goldman, Samsung says its eavesdropping TV works like Siri, CNN MONEY (February 15, 2015), http://money.cnn.com/2015/02/10/technology/samsung-eavesdropping-tv/index.html?section=money_topstories.

[5] Id.

[6] Id.

[7] Caleb Denison, You Can Stop Whispering: Your Samsung Smart TV is Not Listening to You, Digital Trends (February 15, 2015), http://www.digitaltrends.com/home-theater/samsung-tvs-arent-spying-eavesdropping-listening/.

[8] Id.

[9] Id.

[10] Id.

Compulsory Vaccination Regulations Should be Left to the States By Stephen Mckitt

Compulsory Vaccination Regulations Should be Left to the States

By

Stephen Mckitt

            In recent months, the outbreak of measles in southern California and other incidents like it have brought the issue of compulsory vaccinations to the forefront of the national news.[1] While all fifty have at least some requirements for vaccinations, no federal regulation requiring vaccinations exist.[2] With apparent danger of diseases such as measles and the obvious protections vaccinations afford communities from them, many have begun to wonder why the Federal Government has not stepped in and provided uniform regulations that would require children to be vaccinated. This question has began to be asked more as citizens have become increasingly aware of the ease of which those that are against vaccinations can gain an exemption from the mandatory vaccination laws of their state.[3] Despite this, whether vaccinations should be compulsory should be left to the states for two reasons. First, this form of the police power should be left to the states. Secondly, this issue has centered primarily on parents that have refused to vaccinate their children for various reasons and while the Supreme Court has recognized the states’ right to require vaccination in Jacobson, it has been reluctant to override the right of fit parents to make decisions for their children.

The Police Power

            The seminal case on the issue of state compulsory immunization, Jacobson v. Commonwealth of Massachusetts, is also important in understanding the reach of state police power on this issue.[4] In Jacobson., the court  considered  the constitutionality  of a state law that allowed a city or town board of health to require inhabitants to be vaccinated.[5] The statute was passed in order to prevent a smallpox outbreaks from spreading.[6]The court analyzed the statute as an exercise of the states Police Power, “a power which the state did not surrender when becoming a member of the Union under the Constitution.”[7] The states have to the freedom to exercise this power so long as it does not violate the Constitution.[8] According to James Hodge and Lawrence Gosten, in deciding the constitutionality of the statute the court analyzed the issue in four ways: the public health necessity of the statute, the reasonableness of the means used to achieve the public health objective, the proportionality of the health regulation in regard to the threat it is meant to prevent, and harm avoidance i.e. whether the measure itself poses a health risk to its subjects.[9]

The court in Jacobson concluded that the statute was a reasonable exercise of the state police power to promote public health.[10] The manner by which a state promotes public health is in the states discretion, so long as in doing o the state does not infringe on the U.S. Constitution.[11] It is telling that the court in Jacobson analyzed this issue as one of the state’s police power. The states are likely better equipped to understand the needs of their citizens. Also the four categories that the court viewed the statute under are better understood and constitutionally met at a state level, particularly the reasonableness of the means used and the proportionality of the regulation requiring the vaccination. In addition, as previously stated, all 50 states already have some form of vaccination regulation. While the issue of compulsory vaccination is a very serious one, the states have been handling the issue since 1905 and the federal government should continue to allow them to do so.

Reluctance to Override the Decisions of Fit Parents

            Much of the debate concerning the issue of compulsory vaccinations centers on parents who, in the face of a large amount of scientific evidence proving otherwise, believe that vaccinations would be detrimental to their children.[12] While some believe that these parents’ decisions should be overridden for the good of the many, the Supreme Court has long recognized that parents have a fundamental right to make decisions concerning the care custody and control of their children.[13] When the government is forced to infringe on a fundamental right of its citizens, it should do so carefully, proportionally, and in the most reasonable manner possible to achieve the objective. Additionally, the Court has held that there is a presumption that fit parents act in their children’s best interest when making decisions for them.[14] While data indicates vaccination is one of the human races greatest medical advances, it would be unfair to label every parent who decides not to get their child vaccinated as unfit. It would be very difficult to argue that parents electing to vaccinate their children are making a bad decision, however the Court has held that the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.[15] So, the fact that electing to vaccinate a child is, in all likelihood, the better decision does not automatically give the Government the right to override the decision of a parent who decides not to vaccinate their child.

I recount these ruling not to argue that these parent’s right to raise their children trumps the public health concerns that have arisen with the reemergence of diseases like measles, which vaccinations had driven to the brink of extinction in this country. I recount these rulings simply to indicate that these parent’s rights are real, and if they must be infringed upon for the public safety of the rest of the community it must be done in a reasonable way. As my colleague Ms. Smith points out in her blog, many states have exemptions to their compulsory vaccination laws and many people are upset with the ease of which the exemptions are sometimes granted. These exemptions can be characterized as a comprise or balance between the fundamental right parents have to choose what they believe is best for their children, and the public health need stop the highly preventable spread of diseases for which vaccinations have been engineered. A blanket federal regulation mandating vaccinations would upset this balance that the states have created and open the Government up to Due Process claims from citizens across the country. It would likely be much easier for citizens to lobby their state legislatures for stronger vaccine regulation or a complete elimination of exemptions than it would be to lobby the entire legislative branch of the federal government.

Conclusion

            The point of this blog is not to argue against compulsory vaccination. Instead, it is to stress the existence of the rights of the individuals on both sides of this issue and how these rights can likely be better protected at the state level. While it is easy to say that parents that refuse to get their children vaccinated are unfit or misinformed, there are those among them that are simply concerned parents, and no one can be faulted for that.

[1] Maggie Fox, Disney Measles Outbreak Could Get Worse, Experts Warn, NBC NEWS http://www.nbcnews.com/storyline/measles-outbreak/disney-measles-outbreak-could-get-worse-experts-warn-n291426

[2] http://www.cdc.gov/vaccines/imz-managers/laws/state-reqs.html

[3] Mariano Castillo, What Vaccination Exemptions Does Your State Allow, CNN (Fed. 4 2015. 5:01 P.M.), http://www.cnn.com/2015/20/03/health/vaccination-exemptions-state-by-state/index.html

[4] 197 U.S. 11 (1905)

[5] Id. at 12.

[6] Id. at 12.

[7] Id. at 25.

[8] Id. at 361.

[9] Allan J. Jacobs,  Is State Power to Protect Health Compatible with Substantive Due Process, 20 Annals Health L. 113, 128 (2011).

[10] Jacobson, 197 U.S. at 39.

[11] Id. at 25.

[12]Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015), http://www.nytimes.com/2015/02/01/opinion/sunday/frank-bruni-disneyland-measles-and-madness.html?_r=0.

[13] Stanley v. Illinois 405 U.S. 645, 651 (1972)

[14] Parham v. J.R., 442 U.S. 584,602 (1979).

[15]Troxel v. Granville, 530 U.S. 57, 72-73 (2000)

Madness—Outbreaks Signal Need for Government Regulation of Immunizations If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice? By: Shalyn Smith

Madness—Outbreaks Signal Need for Government Regulation of Immunizations

If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice?

By: Shalyn Smith

A Rather Cynical Introduction

Alas, a topic that is not too liberal, and not too conservative—Mickey Mouse has the Measles. How could that be in 2015? Just 11 years ago in 2004 there were only 37 cases of the measles reported in the United States.[1] And interestingly enough, this topic (which seems so far from political in nature) has become a legal question in our county. Vaccinations, immunizations, and public health are officially the new controversial topic in America. Ironically enough, this issue rose to the forefront of American cocktail hour conversations after a Measles outbreak occurred in December 2014 at Disneyland in Anaheim California.[2] Since the Disney story hit the headlines about 644 cases of the measles have been reported.[3]

Former Secretary of State Hillary Clinton is tweeting: “The science is clear: The earth is round, the sky is blue, and #vaccineswork. Let’s protect all our kids.”[4] In contrast, possible Republican presidential candidate Chris Christie is singing another tune.[5] Christie, the New Jersey governor, states that “the government should find ‘balance’ on the issue” and that “parents need to have some measure of choice” when it comes to immunizations.[6] Rand Paul is even commenting. Paul, a Kentucky senator and ophthalmologist, said that he believes most vaccines should be voluntary, and that “parents should have some input… [t]he state doesn’t own your children … and it is an issue of freedom and public health.” Paul added that he “heard of many tragic cases of walking, talking normal children who would up with profound mental disorders after vaccines.”

So, in 2015 are vaccinations now a question of civil rights?

The Facts- Vaccination Numbers Across the Country

            In light of all the controversy surrounding vaccinations, it is helpful to recognize the number of children in America who are currently vaccinated. According to the Center for Disease Control (“CDC”), 95% of children in kindergarten have had vaccines for preventable diseases, including two doses of the measles, mumps, and rubella (“MMR”) vaccine.[7] 82% of children in Colorado have had the two-dose MMR vaccine that doctors say is necessary.[8] On the other hand, in Mississippi almost all children in kindergarten (99.7%) are vaccinated.[9] Sadly though, 26 states have not reported meeting a government target of 95% coverage for MMR.[10]

States are not reporting their vaccination rates because each state operating independently has created its own vaccination law.[11] 48 states and the District of Columbia allow religious exemptions from vaccines, and 20 states allow philosophical exemptions.[12] In California, there were 1,000 medical exemptions in the 2013-2014 school year, and more than 17,000 philosophical exemptions. In contrast, Florida had less than 800 medical exemptions and about 4,000 religious exemptions.[13] Florida does not allow philosophical exemptions.[14] Mississippi and West Virginia do not allow religious or philosophical exemptions, and they reported only about 50 medical exemptions combined.[15]

The Issue- Public Safety and Health Concerns

            Variations in vaccination laws lead us to the true “civil rights” issues surrounding the immunization debate. It is a basic principle of law that one person’s private rights end where the rights of another person begins.[16] The most common example of this principle is the enumerated right to free speech, which is given by the First Amendment of the United States Constitution.[17] Even though all citizens have the right to speak freely, one cannot walk into a crowded movie theater and yell “fire” when no such threat exists.[18] Additionally, cyber bullying, and anti terrorism laws infringe on freedom of speech because sometimes, one person’s right can cause harm to others or become an issue of national security. So, when states offer exemptions to immunization requirements, they ultimately infringe on the rights of other citizens to live free and clear of diseases that can cause death.[19]

It may sound outlandish to state that all exemptions are wrong. After all, there are cancer patients and young infants who do not qualify for immunizations. Some religions choose to live without the use of modern medicine. But my question to each of these situations is: “when is enough…enough?” There is a distinct difference between a person who is physically unable to be vaccinated without causing further medical issues, and a person who makes the choice not to be immunized.

For example, let’s consider the fictional story of Susie- a sixth grader in a state that allows exemptions. Susie’s mom is told at the beginning of the school year that many students have nut allergies, so she should not bring foods with nuts to the school. She is also told that Susie must have an updated immunization record before she begins classes. Susie’s classmate Mark is one of the students with nut allergies, and his parents were able to earn a vaccination exemption for him. Is it fair that Susie’s mom must protect Mark by remembering not to pack peanut butter sandwiches, but that Mark’s parents need not worry about the possibility that Mark could contract mutating forms of diseases like the Measles and effect his other classmates? An EpiPen might alleviate any of Mark’s allergy problems, and the school nurse can keep one on hand. However, that same school nurse probably cannot treat the Measles.

The graphic below depicts the Measles outbreak this year in America:

150204132250-01-vaccinations-graphics-super-169

[20]

With the spread of the Measles virus, public health should be one of our federal government’s major concerns.

The Barriers- Personal Autonomy and Freedom of Choice

            Despite these public health and safety concerns, scholars argue that the government should not be able to dictate what decisions parents make for their children. For example Mr. Stephen McKitt states elsewhere in this blog that parents should be able to make decisions for their children.

Mr. McKitt’s view reminds me of a lecture given by UA Law’s esteemed Prof. Ronald Krotoszynski. As one of his first year Constitutional Law students, I remember Prof. Krotoszynski stating: “if parents want to teach their children Klingon instead of English…they can!” Far be it from me to disagree with Professor Krotoszynski, so I admit, Mr. McKitt is correct. Parents have the right to raise their children as they wish.[21]

But, even that right has its limits. For example, parents can face criminal penalties for child abuse[22], they can’t give their children controlled substances[23], and I’m sure Mr. McKitt will agree that parents cannot intoxicate their children with liquor. At some point a parent’s personal view cannot and should not supersede the welfare of a child. And, considering the fact that physical and substance abuse can lead medical issues that parallel with the likelihood of contracting a disease on a family trip to Disneyland, immunizations are not a choice that parents should make for their children unless absolutely necessary.[24]

The Solution- Strict Government Regulation

            At the end of the day, very little can be done on the state level to remedy this issue. It seems unlikely that a state like California that reports thousands of exemptions a year will independently decide to streamline its laws to fit with a state like Mississippi’s laws. And although many of us detest the idea of big government, it might be best for the federal government to regulate immunizations.[25]

Federalism challenges aside[26] however, it is unlikely that the federal government will do so. President Obama’s 2015 budget already includes a $50 million budget cut to the federal immunization program.[27] Since the program’s purpose is to make immunizations more accessible, President Obama felt the budget cut was appropriate considering the ACA expansions that seek to achieve the same goal.[28]

Until Congress decides to consider regulation though, all Americans can do is sit back and ask their states to change exemption policies. I concede Mr. McKitt’s point: a federal regulatory scheme may never happen considering the political dynamic of the Hill at this time. What I will not concede though, is that personal autonomy and “freedom” are the true concerns of this movement.

[1] Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015), http://www.nytimes.com/2015/02/01/opinion/sunday/frank-bruni-disneyland-measles-and-madness.html?_r=0.

[2] Id.

[3] Id.

[4] Catalina Camia, Hillary Clinton: The earth is round and vaccines work, USA Today (Feb. 3, 2015, 12:06 P.M.), http://www.usatoday.com/story/news/nation-now/2015/02/03/hillary-clinton-vaccines-work-tweet-christie/22783761/.

[5] Id.

[6] Id.

[7] But that figure is not spread evenly across the country. See Josh Levs, The unvaccinated by the numbers, CNN (Feb. 4, 2015 , 8:05P.M.), http://www.cnn.com/2015/02/03/health/the-unvaccinated/index.html.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] See David G. Owena1, Expectations In Tort,  43 Ariz. St. L.J. 1287, 1287 (2011). Owenal states:

Most elementally, each person possesses an equal abstract right to pursue and protect his or her own interests without undue interference from others. Bearing prominently on intentionally inflicted harms, this right suggests that an actor should not deliberately harm another to advance the actor’s own interests without due consideration of the potential victim’s fair expectations of freedom from harm. For example, one should not deliver an unprovoked punch in the nose merely to show off one’s pugilistic skills, allay one’s anger, or win a bet. Since one person’s abstract autonomy rights are equal to every other person’s similar rights, no person should infringe the autonomy of another without fair consideration of the expected harm to the other’s interests. Simply put, one person may not fairly choose to harm the vested interests of another without consent or justification.31 Harmful conduct thus may be viewed as unjust or wrongful, in equality terms, if the actor chose to cause the harm while knowing that it would violate the victim’s equal right to freedom.

[17] U.S. Const. amend I.

[18] See Rex Armstrong, Free Speech Fundamentalism—Justice Linde’s Lasting Legacy, 70 Or. L. Rev. 855, (1991) (stating: “it is possible to identify expression that almost all would agree should be subject to prosecution, such as falsely shouting “Fire!” in a crowded theater, it is argued that the first amendment cannot be absolute in its protection of expression.”).

[19] Robert Pearl, A Doctor’s Take: Why Measles Vaccination Must Be Mandatory, Forbes (Feb. 5, 2015, 1:00 P.M.), http://www.forbes.com/sites/robertpearl/2015/02/05/measles-vaccination-must-be-mandatory/

[20] Holly Yan, Different State, Different Rules on Vaccinations, CNN (Feb. 4, 2015), http://www.cnn.com/specials/health/measles.

[21] See Troxel v. Granville, 530 U.S. 57, 72-73 (2000) (holding that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made”).

[22] Thomas A. Jacobs, 1 Children & the Law: Rights and Obligations § 2:17 (last updated 2014)

[23] Id. at § 2:20.

[24] Pearl, supra note 19.

[25] Id.

[26] Mr. McKitt cites to the U.S. Supreme Court Decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). There the court held that states have the power to require vaccinations. In 2015, this is not a concern, we all know that state have the power to pass the vaccination laws, and therefore the real question is if the federal government does not have the power to do so. The court did not discuss this issue in Jacobson, and therefore it is a question of law that has yet to be decided.

[27] Devin Dwyer, Why Obama’s Budget Cuts $50 Million From National Vaccine Program, ABC News (Fe. 3, 2015, 11:28A.M.), http://abcnews.go.com/Politics/obamas-budget-cuts-50-million-national-vaccine-program/story?id=28689193.

[28] Id.

Ending the Cuban Embargo: Trading the Light of Freedom by Kelly Burke

Ending the Cuban Embargo: Trading the Light of Freedom

by Kelly Burke

(Note that this blog was originally written in response to another blog that has since been removed from the website and it does not necessarily represent the author’s actual opinions)

In 1959, Fidel Castro seized power in Cuba and proceeded to impose a harsh dictatorial rule.[1] By 1960 the Castro government taxed American imports so heavily that exports were halved and expanded trade with the Soviet Union.[2] On February 7, 1962 President Kennedy started the Cuban Embargo, which disallowed all trade with Cuba, except for medicine and food supplies.[3] The U.S. later strengthened its embargo rules with the Helms-Burton Act in response to the Castro government shooting down a civilian planes, applying the embargo to other foreign countries that still traded with Cuba.[4] The Helms-Burton Act specified strict conditions that the Castro regime must follow in order for the embargo to be lifted stating that Cuba must legalize all political activity, transition to a representative democracy, release political prisoners, recognize international human rights, confer freedom to the press, and allow labor unions.[5] Then in 2001 the U.S. allowed the sale of more food to Cuba after Cuba was hit by a devastating hurricane and the sale of food is still allowed today.[6] Recently the U.S. has entered into with Cuba to relax the embargo and allow more trade with the country.[7] The relaxation of the embargo is a decision that would sacrifice the incentive for Cuba to relax its tyrannical rule and even increase the power that the Castro government holds over Cuba.

The U.S. was correct in imposing the Cuban Embargo fifty years ago and should continue its resolve in enforcing the embargo. By lifting the embargo the U.S. would be putting money directly into the pocket of an oppressive government, it disincentives any action on the part of the Cuban government to provide their citizens with basic civil rights, and may solidify the Castro regime in a time of possible leadership change. Ending or relaxing the embargo could create more strife in Cuba and risks giving greater power to a tyrannical government.

To start with, ending the embargo will subsequently end any incentive the Castro regime would have towards improving human rights. According to the Congressional Research Service there are about 65,000 to 70,000 people incarcerated in Cuban prisons as of May 2012, making Cuba among the highest on a per capita basis in the world.[8] Many are detained for political reasons, including opposing the Castro regime and speaking out for better treatment of Cuban citizens.[9] Without the embargo encouraging Cuba to release its political prisoners, Cuba will have no reason to set free those people that have done nothing wrong except encourage freedom in their country. The embargo remains a pressure point for the U.S. to push, motivating the Cuban government to reexamine its oppressive policies and without it the Cuban government will have no motivation to recognize the basic civil rights of their people.

The next issue is that lifting the embargo will not benefit privately held businesses in Cuba and will instead put money into the Cuban government’s pockets. The Cuban government owns about 90% of the economy, making the Castro regime the beneficiaries of any trade that comes out of lifting the embargo.[10] All foreign companies in Cuba must pay wages in hard currency directly to the Cuban government which is then converted to Pesos and given to Cuban workers at a decreased value of about 4.2%.[11] This means that when a foreign firm that pays 500 U.S. dollars to the Cuban government, the government pockets about $479 and gives the worker 500 Pesos or about $21 a week.[12] From these numbers it is clear to see that opening up trade with Cuba will not benefit the payment of wage earners in Cuba at all, the workers will only get a miniscule percentage of the wages that are rightfully theirs and instead the U.S. would directly be funding the tyrannical regime that they have tried so hard to remove from power.

Finally, with all that cash lining their pockets from U.S. businesses, the current Cuban government will be more able to resist any type of political change. Both Castro brothers are nearing the end of their natural lives, and their old ages could mean significant political change towards a more democratic government. However, the U.S. putting significant amounts of money into the Castro regime from prematurely ending the embargo could spoil the chance at this transition. The current Cuban government will take advantage of the new trade entering into the country in order to solidify its control over the nation and keeping most of the profit from foreign trade in its control. The government will have more money at its disposal than what it has ever had before; creating a more powerful beast that is harder to bring down.

Lifting the embargo is likely to cause more harm than good to Cuban civil rights. Cuba has not changed it stance on human rights despite ongoing trade with other free countries like Canada, the Netherlands, and Spain.[13] One of the main argument of those that are in favor of lifting the embargo is that the influence of a free country like the U.S. could encourage more change than keeping to the no trade policy. However, other free countries have been trading with Cuba and no fortuitous change has been produced from their trade. It is clear then, that ending the embargo and hoping that it may do some good comes at the risk of the Cuban people becoming more oppressed. Lifting the embargo would create the appearance of the U.S. supporting Castro’s anti-humanitarian ideals and could lead to greater political strife in the country. In an interview, Sen. Marco Rubio, the son of Cuban immigrants defended his stance on keeping the embargo in place, stating, “That’s what they say. It is a relic of the Cold War, but our policy is not the relic. The relic is the Cuban government, that’s the relic. The relic is tyranny. The relic is communism.”[14] The U.S. remains a guiding light to freedom for Cuban citizens working for democracy and it is a light that will only dim if the U.S. decided to lift the embargo.

[1] Claire Suddath, U.S.-Cuba Relations Time, Inc. (Apr. 15, 2009), http://content.time.com/time/nation/article/0,8599,1891359,00.html.

[2] Id.

[3] Id.

[4] Id.

[5] Cuban Liberty & Democratic Solidarity Act of 1996, 22 U.S.C.A. §§ 6021-91 (1996)

[6] Suddath, supra note1.

[7] Id.

[8] Mark P. Sullivan, Cuba: Issues for the 112th Congress, Congressional Research Service, (Nov. 6, 2012), http://fpc.state.gov/documents/organization/171377.pdf.

[9]  See Id.

[10] Crown. (May 2014) https://www.gov.uk/government/publications/exporting-to-cuba/exporting-to-cuba.

[11]  Richard E. Feinberg, The New Cuban Economy: What Roles for Foreign Investment, The Brooking Inst. (Dec. 2012), http://www.brookings.edu/research/papers/2012/12/cuba-economy-feinberg.

[12] See Id.

[13] Highbeam Research, Inc. http://www.encyclopedia.com/topic/Cuba.aspx.

[14] Jordan Fabian, Marco Rubio Rips U.S.-Cuba Travel: “Cuba is not a Zoo,” ABC News Internet Ventures, (Mar. 12, 2013), http://abcnews.go.com/ABC_Univision/Politics/marco-rubio-rips-us-cuba-travel-cuba-zoo/story?id=18712801.

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