Photo by Charles Fair ()

Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Over the past few years, there has been a rise of copyright strikes purporting to moderate infringing content on YouTube. Although this may protect copyright holders such as musicians and artists, its potential for misuse can , as is the case here.

On the 29^th of June in 2021, James Burch in solidarity and support for the family of . Steven Taylor, a 33-year-old Black man, was at a Walmart in San Leandro. As Burch and other supporters of the campaign outside listened intently to the pre-trial hearing, officers approached and asked them to move a banner. Burch and a fellow supporter started recording the interaction,

The . At , the police officer quickly begins to play Taylor Swift’s Blank Space from his cellphone speakers. Beyond the irony of trying to escape accountability and fill space with copyrighted music, the officer deliberately chooses to obscure the recording in the hopes of getting the video copyright stricken by YouTube’s AI algorithm. At , the officer says: “[the protestors] can record all [they] want, [but] I just know it can’t be posted to YouTube.” ��

This incident has not been the of such behaviour by the police. However, these unsettling attempts at eschewing accountability point to larger issues regarding freedom of speech, Anti-Black racism, policing, and obscure algorithms in America and beyond.

The right to record the police in the US has been reaffirmed in and , where the courts determined that recording a public officer’s actions resonates with principles enshrined in the : The right to record was in Derek Chauvin’s trial for his murder of George Floyd.

While the US courts have evidently prioritized the public’s rights to film officers, video and live streaming services like YouTube, TikTok, and Instagram have been much more obscure regarding how their algorithms target and remove videos. A preliminary search into YouTube’s is unhelpful in determining how videos are assessed on a “case-to-case basis” and instead redirects you to . The is a non-profit organization whose mandate is to protect user privacy and defend digital civil liberties. They have published , which is more user-friendly. However, it is important to note that automated processes like Content ID are alleged to independent , ; different equity-seeking groups have filed lawsuits against YouTube, including a group of and . TikTok has come under fire for flagging “vulnerable” creators and preventing their videos from reaching audiences. This practice is dubbed “.” Moderators identified creators through short clips, and most singled out creators with tags in their bios like “#disabled” or with pride flags.

Burch posted the video on July 1^st, 2021. It has not yet been taken down. However, questions remain as to the apparent lack of oversight for large US corporations and what this means for activists and creators. Just as the internet has expanded opportunities for mass global viewership and collective action, so too have the dimensions of existing power structures and inequality.

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��police should obtain a warrant before searching the cellphones of arrestees. This decision provides better protection of privacy rights of individuals against police power and misconduct.��: Riley v. California and United States v. Wurie, referring to the common question of whether or not police can search an arrestee’s cellphone.

The protection of privacy and contemporaneous challenges

to the United States Constitution prohibits unreasonable and illegal searches and seizures and states that warrants shall be issued only upon probable cause.��However, search incident to arrest is an exception to this rule, which allows search of an arrestee by police officers to protect their safety and prevent any destruction of evidence. In a leading decision,��, the US Supreme court held that a full search of an arrestee upon a legal custodial search, without a warrant, is constitutional and in conformity with the Fourth Amendment. This search also extends to the immediate area under control of the arrestee. However, the scope of this search has long been subject to controversy and privacy advocates have called for new protective measures, as the advent of technology has given rise to an increase in violation of privacy rights. In this digital age, highly sensitive data are carried and stored in cellphones, tablets and laptops making such data prone to theft and illegal access.

One major concern for privacy advocates is if private information stored in a cellphone should��be included in protection against unreasonable search and seizure��under privacy rights offered by the Fourth Amendment, and a warrant be required to access such information upon arrest of an individual? Cellphones and the data they contain, have long been subject to exception and have not been covered by the privacy protection of the Fourth Amendment. The rationale behind this exception is that a cellphone being in an immediate area under control of the arrestee allows police officers its search and seizure, just like a suitcase or a briefcase would be subject to such search and seizure. From this perspective the contents in a cellphone could be compared to the contents found in a briefcase under immediate control of the arrestee, making a cellphone no exception to the search incident to arrest principle. Police officers have continued to search and seize cellphones of arrestees based on this analogy and�� “ cellphones should have no greater protection from a search than anything else police find”.

However, it is worthy of note that there is a significant difference between a suitcase and a cellphone and the type and sensitivity of contents that can be stored in each of these items. Cell phones or computers are sensitive mediums in which extremely private and highly sensitive information could be stored in very large amounts. Cell phones have a strikingly higher storage capacity as compared to other mediums such as briefcases, and the nature of the information that can be stored in them can vary. Privacy advocates have long battled to demonstrate such differences and have urged legislators to take measures in protecting private data found in cellphones and computers.����in the ruling: “Cellphones are powerful devices unlike anything else police may find on someone they arrest said for the court. Because the phones contain so much information, police must get a warrant before looking through them”.����“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life”.�� “Many cell phones now in use are capable of storing and accessing a quantity of information, some highly personal, that no person would ever have had on his person in hard-copy form. This calls for a new balancing of law enforcement and privacy interests. “

in addressing concerns about search and seizure of cellphones and the digital data contained in them, upon arrest of individuals by police.��Privacy advocates in Canada, have also emphasized the differences��in the��sensitivity of private data stored in cellphones compared to information stored as hard-copy or other formats, and have urged legislators to take adequate measures in protecting such data.����“Smartphones are potentially repositories of vast amounts of personal information”. He adds “The privacy interests that are engaged with these kinds of devices are markedly different from the privacy interests in other receptacles.”

Wilson, along with other privacy advocates, believes that due to the significant privacy interests at stake, police officers have to go further and obtain a warrant if they want to do the full forensic analysis of devices such as cellphones and computers.��There are definitely less intrusive, alternative measures that can be taken to prevent destruction of evidence rather than searching private data in a cellphone, unreasonably and needlessly, without a warrant.�� “Authorities concerned about the destruction of evidence the remote erasure of a phone’s contents or the activation of encryption”.

Extensive privacy protection and more stringent police power

The US Supreme Court’s decision prohibiting police from searching an arrestee’s cellphone without a warrant also protects the rights of an accused against illegally obtained evidence and police misconduct. Moreover, this decision reinforces an individual’s privacy against police intrusion and it defines police power in accordance with the privacy requirements of the new technological era. Before this decision, suspects could risk conviction . This phenomenon used to take place in violation of privacy and defense rights of an accused. However, now arrestees can benefit from more extensive rights once again as this decision limits illegally obtained evidence by requiring a search warrant before searching cellphones upon arrest.

in situations where officers reasonably believe there is a risk to their safety or the lives of other individuals. This exception allows protection of the police and public when required.��, “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Officers may examine the phone’s physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one”.

The US Supreme Court’s revolutionary decision enhances and protects privacy rights all across the county. It can be served as a role model for legislators in other jurisdictions, to take measures in providing better protection to individuals in regards to their private information, in conformity with the requirements of the digital age. This ruling balances the interests of public safety with the protection of private digital information, according to the norms of the 21st century.

Sophia Qureshi��is an IPilogue Editor and an LLM Candidate at Osgoode Hall Law School.

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The ongoing ��tension between the two companies has been well documented by the IPilogue. Visit��, , and to trace the progression of these legal battles. When Apple against Samsung in 2012 for infringing on several of its patents, Samsung returned with a ��claiming that Apple had been dabbling in some infringement of their own.

On May 5th, a Californian jury that, in fact, both companies had infringed on one another's patents and each company was rewarded damages accordingly. ��Apple was��ordered to pay Samsung $158,400 for infringing on ��for photo and video organization in folders. Of the 5 Apple patents at issue in this case, Samsung was found to have infringed on only 3. All of Samsung's devices infringed on Apple's ��while��only some devices infringed on the ��as well as the����patents. Based on the jury's findings, Samsung was ordered to pay Apple $119.6 million in damages, significantly less than the $2.2 billion they had asked for.

So can we find a clear 'winner' and 'loser' in all of this? It really depends on how you look at it. Looking at the damages alone, it may appear to be a 'win' for Apple. On the other hand, Apple not only asked for more money than they were awarded in this case, but also asked for a sales ban on Samsung's infringing devices. According to , the outcome of the trial was not what Apple had hoped for and unsurprisingly they have already set the wheels in motion to��. Apple has asked presiding Judge Lucy Koh for a retrial to recalculate the damages Samsung should be required to pay as well as to issue a sales ban on the infringing devices. This prospect seems unlikely given that Judge Koh has twice��( and ) refused these requests.

What was particularly interesting about this case, and what Samsung argued in court, is that many of the aspects of their phones that��were thought to infringe on Apple's patents are actually part of Google's Android operating system that powers Samsung phones. Though this argument did not officially influence the jury's decision, it brings up an interesting question. Why doesn't Apple go after Google? After all, Steve Jobs reportedly did����in his biography written by Walter Isaacson,��"I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this." One likely reason is that it is difficult to go after Google head on when they offer their operating system for free and do not directly profit from it. In comparison, the device manufacturers are much easier targets.

Recently, Apple agreed to��with Motorola Mobility, which Google had����but decided to sell to Lenovo Group Ltd. in January 2014. The sale was for a fraction of what Google had paid and as part of the deal they maintained the majority of Motorola's patents. Apple was in fact in legal battles with Google, even if indirectly, but decided to stop litigation. Why? Perhaps because both companies had already invested far too much time and resources in the battle. I think another reason, and one that seems more prominent, is that Apple would rather focus on the bigger fish in the sea.

Motorola is for Apple, which makes them less of a threat and perhaps not worth spending millions of dollars in legal fees fighting against. Samsung, on the other hand, may be worth their while. Particularly if they are able to secure a ban on their infringing devices.

At the end of the day it seems that Apple is not as concerned about enforcing their intellectual property rights��as they are about maintaining a stronger share of the smart phone and tablet market. Then again, perhaps these two things aren't so different in the first place. In my opinion, the fact that Apple is willing to drop lawsuits with smaller, less threatening manufacturers, signals that this is not about recovering all of the time and money that went into the��research and development of their devices or the fact that companies have infringed to produce cheaper versions of what Apple spent years developing. This is what is argued and can be argued legally, but the reality is that the decision to pursue legal action going forward will likely have more to do with which company is most successful in detracting from Apple's own share of the market.

Maggie Reid is an IPilogue Editor and PhD candidate in the Communication and Culture program at 91��ɫ/Ryerson University.

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Recently, Apple garnered unwanted attention when it was that the iPhone was recording location and time stamp data through its GPS and wireless internet capabilities and then backing up the information, unencrypted, whenever users synced the device with their computers.

It is no secret that the latest evolution of the mobile phone, the aptly named “smart” phone, has unearthed fresh concerns regarding the use and protection of personal information. The technological development of mobile smartphones has rapidly accelerated in recent years, and they have now attained mainstream acceptance with expected to have one by the end of 2011 (Canadian numbers unavailable). With their newfound capabilities and use as an extremely personal, go-everywhere device, smartphones have the potential to provide insight into an individual’s characteristics, preferences, and life in a way never seen before. Unfortunately, the lack of set rules, expectations, and general knowledge regarding the collection and use of this information has resulted in a murky mess for many consumers looking to understand how their information is being use.

At the forefront of the consumer smartphone market is Apple’s iconic iPhone and a smorgasbord of manufacturers built on Google’s Android platform. While many were outraged at Apple’s collection and storage of location and time stamp data and the apparent disregard for users’ privacy, Apple pointed to their which, near the end of the document, grants them the right to collect anonymized location data. Nonetheless, Apple recently to reduce the amount of data collected, remove backup files, and delete the data entirely when location services are turned off.

Apple is far from alone in the controversy; Google also collects location data. According to , an Android powered smartphone will collect data every few seconds and then transmit the data back to Google several times an hour. However, Google claims that the user must first agree to enable location services on their phone before this data collection occurs. Unlike the anonymized iPhone data, the study showed that Google also gathered a unique identifier tied to each individual phone.

Rather than striving to create a big brother scenario, it appears that the motivation for corporations to monitor users’ behaviour is being driven by marketing potential. that they are actively involved in building a giant database of information, of which location data plays a valuable role. It is no surprise that the data available for collection via smartphone devices represents a potential gold-mine for advertisers. As such, the thirst for smartphone data will only increase as technology becomes more powerful, and will only be tempered if consumers demand control over their information coupled with the law adapting to manage this new reality.

The root of the problem seems to be a lack of transparency throughout the entire process of data collection. Most of the information regarding smartphone data collection has only come to light after being revealed by independent researchers. This means the average user rarely has a clear idea of what data is collected and depends on the media for accurate information. Furthermore, this lack of knowledge equates with a lack of control. While the scarcity of clear rules and regulations are to be expected with any emerging technology, this digital Wild West has created an environment which implicitly encourages the bending of rules and opaque procedures in the lucrative data chase.

If the first quarter of 2011 is any indication, expect this to be a breakout year for issues regarding technology and its widening influence on privacy and personal information matters. In response to the fallout from the iPhone location data revelations, Senator Al Franken (Democrat Representative of Minnesota), Chairman of the Senate Subcommittee on Privacy, Technology, and the Law, is . Additionally, lawsuits have been filed by customers against both and regarding the collection of location data. For those interested in more information regarding privacy and technology, The Wall Street Journal’s blog is an excellent resource. You can also stay up-to-date by following them on twitter .

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