Utility Models Revisited: The Case of Investing in China

By Runhua Wang*

I. Introduction

To encourage innovation, Chinese investors increasingly invest in U.S. technology researchers.[1]  Meanwhile, U.S. investors also invest in the technology market in China. Recently, Intel Capital invested $67 million in eight Chinese startups, and Dell Inc. pledged $125 billion in investments in Chinese businesses, including technological component purchases and manufacturing expenses.[2]  When entering a market in a developing country, investors in high-technology industries must consider IP protection, especially patent protection, so they should understand what a utility model is and how that patent system can be efficiently used in the developing countries that have a utility model patent regime.[3]

This article focuses on explaining the utility model regime in China and helps investors in developed countries, especially U.S. investors whose home country does not have a parallel regime, to avoid relative legal risks in the Chinese market, so they can adjust to and survive in that market. This article includes three sections.  In this section, I will introduce the utility model patent system and compare the Chinese utility model regime to other utility model regimes, as well as general utility patent regimes, to help investors from developed countries understand the inherent characteristics in the Chinese utility model regime.  In the second section, I will analyze the efficiency of utility model regimes from economic and technological perspectives and explain why the U.S. does not have a utility model patent system.  Based on the comparative analysis of the Chinese and other utility model regimes, I will make recommendations in the last section as to how investors can avoid relative legal risks and maximize their benefits in the Chinese market through this particular regime.

II. Background

A. FDI and the Trend of Financial Globalization

Foreign Direct Investment (FDI) in China is transforming from solely manufacturing FDI to FDI in technology development.[4]  It is not difficult to recognize that, under the trend of financial globalization, the bright line between traditional FDI and international portfolio investment, which focuses more on capital mobility rather than on technology transfer,[5] diminishes.

FDI is important for technology transfers and spillovers.[6]  Most developing countries rely on inward FDI to effect technical change and structural transformation,[7] which could increase economic growth.[8]  Moreover, FDI may also directly facilitate the growth of a country’s economy in many other ways, such as creating new jobs, improving access to new and advanced technologies, increasing productivity, and strengthening management strategies.[9]

B. Concerns of the Strength of IP Regime in Developing Countries

Besides the benefits of FDI to receiving economies, the benefits to originating economies are also important in international trade and financial transactions, because levels of FDI are driven by factors in originating economies.[10]  The technology transfers and spillovers through FDI trigger concerns regarding IP protection, another factor driving the levels of FDI;[11] so, scholars and international institutions usually suggest that developing countries strengthen their IP protection to attract FDI.[12]  For example, one of the main obligations of the World Intellectual Property Organization (WIPO) is to assist developing countries in preparing IP laws and in promoting the overall protection of IP rights.[13]

Statistics of several developing countries show an uneven distribution of FDI among developing countries and among their industrial regions, but not among their IP laws.[14]  However, even though strong IP protection alone is not sufficient to attract foreign firms to invest in a country, some scholars, including Maskus, believe that a weak IP system would deter foreign firms from investing in a developing economy.[15]

Can this theory of the relationship between FDI and the strength of the IP regime in a developing country be used by developing countries to attract U.S. capital investors and technology investors if those countries strengthen their IP protections?  WIPO and the TRIPS Agreement do not require IP regimes in developing countries to be as strong as those in developed countries to avoid a “development dilemma.”[16]  Because there are no rigid restrictions on the strength of developing countries’ IP regimes, how should U.S investors evaluate the strength of an IP regime in a developing country?  Under the trend of financial globalization, what concerns would U.S. investors have regarding the patent regime and the technology market in China?

In practice, statistics show that the venture capital market could be over-developed so as to become uneven in developed countries, including the U.S, thus decreasing the incentives of investors to invest in the domestic financial market.[17]  Hence, regardless of the concerns regarding the costs of production or labor, it seems to be inevitable that there will be more U.S. investors involved in the financial and technology markets in developing countries, especially in China.

III. Understanding Utility Model

A. What is Utility Model?

“Utility model” is a generic term that refers to the subject matter falling between patent law and sui generis design law.[18]  However, there is no global consensus on the term’s meaning due to fundamentally different concepts from one country to another, such as “innovation patent” in Australia, “utility certificate” in France, “short term patent” in Belgium, and “utility innovation” in Malaysia.[19]  Thus, it is necessary to review the nature of these systems through the characteristics of some typically designed utility model regimes.

Some of these systems define utility models as intangible subject matter like technical concepts; other systems relate their definition of utility models to three-dimensional forms; still others consider utility models tantamount to utility patents without examination and for a shorter duration (usually seven to ten years).[20]  Classical utility models are usually recognized by these characteristics: cheap, quick, and easily accessible protection for inventions or innovations, many of which cannot gain protection under the utility patent regime.[21]

The earliest classical utility model regime appears to be the United Kingdom’s Utility Designs Act of 1843.[22]  It protected designs for the shape or configuration of useful articles of manufacture, which were literally remote from utility patent protection.[23]  However, because of its narrow protection only for external appearance or “form,” not for function or principle, many commentators argued to extend its scope to functional equivalents of the embodiments that the drawing illustrates.[24]  In 1919, the act was reduced to insignificance by a series of judicial and legislative actions.[25]

Germany, comparatively, introduced a utility model regime, Gebraucbsmuster, firmly and essentially remaining a creature of design protection in 1891, a prototype of classical utility model regime.[26]  It features lower standards of inventiveness, no pre-grant examination, limited subject matters only for movable articles having three dimensions, and a very short term of protection.[27]

Progressively, the utility model regime in Germany departed from the classical utility model originating in design protection concepts to a modern second-tier patent regime as a complement to its utility patent regime.[28]  In 1990, Germany enacted reforms to abolish the requirements of a three-dimensional configuration and to permit protection of electronic circuit designs, chemical substances, foodstuffs, drugs and immovables.[29]  Thus, this regime is no longer only a close cousin of design protection,[30] but has transformed into a longer and stronger regime, providing patent-like protections of small inventions generally for a relatively short period of time.[31]  The qualified protected inventions are less strictly tied to three-dimensional, functional shapes of tools or everyday implements.

Another vital characteristic of a utility model regime in many countries is the lack of substantive examination to register.[32]  The registration process hence is often significantly simpler and faster than that in a patent regime in testing for non-obviousness,[33] and it expands a temporary protection for pending applications of patents.[34]

Similar to patents but with lower standards of non-obviousness, utility models require novelty,[35] even if the level of the novelty standard could vary in different countries’ utility model regimes.  The Commission of the European Community (“The Commission”) suggests that restricting novelty to the territory of a particular Member State might run counter to the objective of a single market.[36]

Therefore, based on their common characteristics, utility models are fairly defined by Pager as subpatentable innovations combined with early disclosure of patent applications and narrow interpretation of claims to allow local firms to invent around foreign innovations.[37]  This series of rules for favoring surrounding inventions is excluded from the restriction of TRIPS Article 31 for dependency patents to favor developing countries.

B. Utility Model in China

In the law of China, utility model is defined as a type a “patent.”[38] It should be practical and have new technical solutions relating to the shape, the structure, or a combination thereof of a product.[39]  Beside the P.R.C. Patent Law (“Patent Law”), the patent regime also administers utility models through other regulations: the Rules for the Implementation of the Patent Law (“the Rules”) and the Guide of Patent Examination (“the Guide”).  Until the amendment of the “Patent Law” in 2009, utility models had not been clarified, and they were only specified by these two regulations at a lower level of authority.[40]  Functionally, these two regulations provide or emphasize the details to clearly explain the terms in “Patent Law.”

The contents of the patent laws show that utility models in China acquire a second-tier patent protection.[41]  The Guide requires that the subject matter of utility models be attached to products.[42]  Measures can only be protected under utility patents.[43] Moreover, utility patents are protected for twenty years after the filing date; utility models are protected for ten years after the filing date.[44]  In addition, the qualifications of both types of rights demand novelty, inventiveness, and utility,[45] but the standards to grant rights differ between them.[46]

The State Intellectual Property Office of the P.R.C. (SIPO) conducts a preliminary examination to determine conformity with proper procedures and qualifications for the requirements of utility and novelty.[47]  When a utility model application passes this preliminary examination, it should be published and issued on the same day.[48]  Only utility patents require a substantive examination as a condition to issue.[49]  However, for enforcement, courts or administrative authorities can ask for a patent examination report as evidence in a dispute concerning utility model infringement.  The report is made by SIPO after searching, analyzing, and judging the technology from the request of the patentee or an interest-related party.[50]

Moreover, the Rules require that the scale of protection and the remedies or punishments, such as injunctive relief, be basically similar between utility patents and utility models.  The requirement of a patent examination report for utility model disputes is the only distinctive term to regulate how utility patents and utility models get protected through litigation.  The rules of compulsory licenses and the rules of the six month grace period for utility patents and utility models are not differentiated.[51]  In addition, both of them must satisfy the same standards of novelty, which requires a “prior art” search, and have practical applicability to meet the standards of utility.[52]

The requirement of prior art for both utility patent and utility model is an important notion to judge their novelty and creation.[53]  The prior art in “Patent Law” refers to any technologies known to the public in the country or abroad before the date of filing.[54]  It should be a statement in which the knowledge and information concerned are disclosed to the public, and the technicians in the field can obtain the knowledge and information from public domains through normal channels.[55]  Thus, it includes both the local prior arts and the existing arts in any other countries.[56]

Filing both a utility model and a utility patent for an identical invention on the same day is permitted.[57]  However, only one patent right shall be granted, so an applicant shall be granted a utility patent only if the applicant agrees to abandon the previously obtained utility model that has not ended.[58]

C. Standards of Non-Obviousness

From 2006 to 2010 in China, there were merely around 21.5 percent utility model applicants who were rejected in the preliminary examination for lacking utility, but more than 97 percent of these failed applications were individual applicants rather than “work for hire.”[59]  Hence, investors who are interested in investing in Chinese startups or established firms rather than individuals need to understand that the fundamental difference between registration of utility model and registration of a utility patent is substantive examination, the core of which in China is the standards of non-obviousness.[60]

Some European utility model regimes have no requirements of non-obviousness.  These regimes are similar to classical utility regimes and usually are called three-dimensional regimes, such as the regimes in Italy, Denmark, Finland, Greece, Portugal, and Spain,[61] and they only examine for formalities.[62]  Because of their standards of local novelty that only prohibit using local prior arts, the three-dimensional form requirement could be abolished.[63]  Some scholars, such as Janis, believe that a second-tier patent system could be a gap-filler to utility patent regimes.[64]

The U.S. has a trend of increasing the strictness of patent requirements through the standards of non-obviousness.[65]  Australia applies the same standards for obviousness to both utility patents and utility models.[66]  Comparatively, while Germany has amended its utility model regime several times, its procedure, which has a soft obviousness standard rather than requiring substantive examination, has not been changed,[67] and Germany has experienced a softening of the non-obviousness standard for patents to be less strict.[68]  Therefore, the soft obviousness standard makes the utility model regime primarily different from a utility patent regime with a shorter term.[69]  In the European Union, apart from the European Patent Convention, other conventions, such as the Strasbourg Convention on the Unification of Certain Points of Substantive Law and Patents for Inventions, left the standards of registration of utility models unclear,[70] so member countries can flexibly design and adjust a proper system for their local economy.

IV. Conclusion

Utility model regimes provide exclusive rights to inventions or innovations, similar to utility patent regimes.  Compared to utility patents, utility models usually provide a shorter duration of protection.  Utility models are cheap, quick, and easy for inventors to gain exclusive protection for their inventions.  Hence, more technologies and inventions can qualify for protection under a utility model regime than for protection under a utility patent regime.  However, examination under a utility model regime is much less strict than that under a utility patent regime.  Utility model claims do not have to meet the same non-obviousness standards as utility patents.  Therefore, it is difficult to simply conclude the utility model regime in China is weak or strong.  In the forthcoming part, I will explain the efficiency of utility models in addressing the concerns of FDI investors from developed countries, particularly U.S. investors, whose home country does not have a parallel system.

 


*Runhua Wang. University of Illinois College of Law, J.S.D Candidate, Class of 2016. Special thanks to my parents. Many thanks also to Professor Paul Heald and Professor Jay P. Kesan (University of Illinois College of Law), and JLTP editor Iman Naim (Class of 2016) for their instruction and help.

[1] See Jason Lange, Chinese Firms Pour Money into U.S. R&D in Shift to Innovation, Reuters (June 21, 2015, 9:17 AM), http://www.reuters.com/article/2015/06/21/us-usa-china-investment-insight-idUSKBN0P10KD20150621.

[2] Eva Dou, Intel Capital Invests $67 Million in Eight Chinese Startups, Wall St. J. (Sept. 17, 2015, 8:27 AM),  http://www.wsj.com/articles/intel-capital-invests-67-million-in-eight-chinese-startups-1442492847.

[3] Bob Stembridge, Chinese Utility Models – A Lesser-Known IP Strategy, Indus. Insight, July-Aug. 2010, at 9, available at http://www.iam-media.com/Magazine/Issue/42/Industry-insight/Chinese-utility-models-a-lesser-known-IP-strategy.

[4] Foreign Direct Investment – the China Story, World Bank (July 16, 2010), http://www.worldbank.org/en/news/feature/2010/07/16/foreign-direct-investment-china-story (last visited Oct. 26, 2015).

[5] Christine Greenhalgh & Mark Rogers, Innovation, IP, and Economic Growth, 258 (2010).

[6] Beata S. Javorcik, International Technology Transfer and Foreign Direct Investment, in The Evidence and Impact of Financial Globalization 311-319, (Gerard Caprio ed., 2012), available at http://www.sciencedirect.com/science/article/pii/B9780123978745000439.

[7] Carsten Fink & Keith E. Maskus, Why We Study Intellectual Property Rights and What We Have Learned, in Intellectual Property and Development: Lessons from Recent Economic Research 6 (Carsten Fink & Keith E. Maskus eds., 2005).

[8] Nagesh Kumar, Intellectual Property Rights, Technology and Economic Development: Experiences of Asian Countries, 38 Econ. & Pol. Wkly. 209, 210 (2003), available at http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.469.8086&rep=rep1&type=pdf.

[9] Rami M. Olwan, Intellectual Property and Development: Theory and Practice 108, 123 (2013).

[10] Greenhalgh, supra note 5, at 257.

[11] Olwan, supra note 9, at 125.

[12] Benjamin Coriat & Luigi Orsenigo, Public Health and the Pharmaceutical Industry: Issues in the Post-2005 TRIPS Agenda, in Intellectual Property Rights: Legal and Economic Challenges for Development 227 (Mario Cimoli et al. eds., 2014).

[13] Comp. Gen., Strengthening Worldwide Protection of Intellectual Property, No.132699, at 22-25 (1987), available at http://archive.gao.gov/d2t4/132699.pdf.

[14] See Keith E. Maskus, The Role of Intellectual Property Rights in Encouraging Foreign Direct Investment and Technology, supra note 7, at 48.

[15] See Id. at 54.

[16] Pager refers to this as a “damage control” policy “that seek[s] to minimize or offset the costs of having a patent system pose significant, disproportionately burdensome obstacles to local innovation.” See Sean A. Pager, Patents on a Shoestring: Making Patent Protection Work for Developing Countries, 23 Ga. St. U. L. Rev. 755, 803-04 (2006-07); see also Jerome H. Reichman, Intellectual Property in the Twenty-First Century: Will the Developing Countries Lead or Follow? 46 Hous. L. Rev. 1116, 1119 (2009). (“‘[I]f they open their domestic markets to trade, they face political and economic pressure to protect foreign IP.’” (quoting Robert L. Ostergard, Jr.)).

[17] Josh Lerner et al., Venture Capital and Private Equity: A Casebook 242 (5th ed. 2012).

[18] Uma Suthersanen, et al., Utility Models and Other Alternatives to Patents, in Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World 18 (Edward Elgar ed., 2007).

[19] Id.

[20] Id.

[21] Id.

[22] See Lionel Bently & Brad Sherman, The United Kingdom’s Forgotten Utility Model: The Utility Designs Act of 1843, 3 Intell. Prop. Q. 265 (1997); see also Tabrez Ahmad & Pratic Priyadarshi Choudhury, Law of Patents Utility Model Protection: Harnessing the Backwaters of IP, 5 (2012), http://ssrn.com/abstract=1981780.

[23] See Ahmad, supra note 22 at 6.

[24] Mark D. Janis, Second-tier Patent Protection, 40 Harv. Int’l. L.J. 151, 156 (1999).

[25] Id.

[26] See id. at 158-59.

[27] See id. at 158. The duration is three years from the application date, and it is renewable for an additional three-year term.

[28] See id. at 155, 162-63.

[29] Id. at 164.

[30] Jerome H. Reichman, Legal Hybrids Between the Patent and Copyright Paradigms, 94 Colum. L. Rev. 2432, 2457 (1994).

[31] Id. at 165 n.73; see also Jerome H. Reichman, Charting the Collapse of the Patent-Copyright Dichotomy: Premises for a Restructured International Intellectual Property System, 13 Cardozo Arts & Ent. L.J. 475, 500 (1995).

[32] Ahmad, supra note 22, at 5

[33] Janis, supra note 24, at 161.

[34] Robert Hart, The European Union’s Proposed Protection for Utility Models: The Implications for Computer Programs, 3 Int’l Intell. Prop. L. & Pol’y, 50-1, 50-1 (1998).  Hart concludes that the characteristics of a second-tier regime are quickness, simple registration, less stringent requirements than for patents, low cost, and temporary protection pending the grant of a patent, and most of these characteristics have been covered by classical utility model regimes.

[35] Heather Ann Forrest, Utility Model: Widening the Economic Divide between Legacy and New EU Member States, 32 Int’l Bus. L. 216, 217 (2004).

[36] See Hart, supra note 34, at 50-1, 50-2; see also Commission Green Paper: The Protection of Utility Models in the Single Market, COM (1995), 370 final (July 18, 1995).  The Proposed Directive in the Commission of the European Community proposed that “utility model protection is better suited than patent protection to technical inventions involving a specific level of inventiveness.”

[37] Pager, supra note 16, at 803-04.

[38] Hong Liu & Jun Wei, Technology Transfer to China: The Patent System, 5 Santa Clara Computer & High Tech. L J. 363, 373 (1989).  The authors looked at an earlier draft of China’s Patent Law that says: “‘Working a patent’ means the manufacture of the invention, utility model or design, or use of the patented process.”  Gradually, it becomes general knowledge that people in China call all three kinds of inventions patents.  The current draft of the 2009 Patent Law in China still states that “inventions-creations” means inventions, utility models and designs” in Article 2.

[39] Zhuanli Fa(专利法)[Law on Patent](promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 27, 2008, effective Oct. 1, 2009) P.R.C. Laws, Dec. 27, 2008, art. 2 (China).

[40] Xiaoqing Feng, The Interaction Between Enhancing the Capability for Independent Innovation and Patent Protection: A Perspective on the Third Amendment to the Patent Law of the P.R. China, 9 Pitt. J. Tech. L. & Pol’y 1, 24 (2009).

[41] Mark Shiqian Zhai, The Chinese Utility Model Patent is Destroying Innovation in China, 39 Aipla Q. J. 413, 415 (2011).

[42] Zhuanli Shencha Zhinan (专利审查指南)[The Guide of Patent Examination, “the Guide”](promulgated by SIPO., Jan. 21, 2010, effective Feb. 1, 2010) §1 ch. 2 art. 6.1 (China).

[43] Id. at art. 6.3; see also Zhuanli Fa(专利法)[Law on Patent](promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 27, 2008, effective Oct. 1, 2009) P.R.C. Laws, Dec. 27, 2008, art. 2 (China).

[44] Zhuanli Fa(专利法)[Law on Patent](promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 27, 2008, effective Oct. 1, 2009) P.R.C. Laws, Dec. 27, 2008, art. 42 (China).

[45] Id. at art 22.  Inventiveness is equivalent to the non-obviousness requirement of USPTO (U.S. Patent and Trademark Office) because of the difference of translation.

[46] Feng, supra note 40, at 52

[47] Liu & Wei, supra note 38, at 367; see also Zhuanli Shencha Zhinan (专利审查指南) [The Guide of Patent Examination] (promulgated by SIPO., Jan. 21, 2010, effective Feb. 1, 2010) §1 ch. 2 art. 7.4 (China).

[48] Zhuanli Fa (专利法)[Law on Patent] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 27, 2008, effective Oct. 1, 2009) P.R.C. Laws, Dec. 27, 2008, art. 40 (China).

[49] Id. at art. 35.

[50] Id. at art. 61; see also Zhuanli Fa Shishi Xize (专利法实施细则) [The Rules for the Implementation of the Patent Law (“the Rules”)] (promulgated by St. Council, 2010) P.R.C. Laws, Jan. 22, 2010, art. 56 (China); see also, Zhuanli Shencha Zhinan (专利审查指南) [The Guide of Patent Examination] (promulgated by SIPO., Jan. 21, 2010, effective Feb. 1, 2010) § 5 ch. 5 art. 2.3 (China).

[51] Zhuanli Fa Shishi Xize (专利法实施细则) [The Rules for the Implementation of the Patent Law, “the Rules”] (promulgated by St. Council, 2010) P.R.C. Laws, art. 24, 51 (China); see also Zhuanli Shencha Zhinan (专利审查指南) [The Guide of Patent Examination] (promulgated by SIPO., Jan. 21, 2010, effective Feb. 1, 2010) §1 ch. 2 art. 7.3 (China).

[52] Zhuanli Fa Shishi Xize (专利法实施细则) [The Rules for the Implementation of the Patent Law (“the Rules”)] (promulgated by St. Council, 2010) P.R.C. Laws, Jan. 22, 2010, art. 22 (China); see also Liu & Wei, supra note 38, at 364; see also Zhuanli Shencha Zhinan (专利审查指南) [The Guide of Patent Examination, “the Guide”] (promulgated by SIPO., Jan. 21, 2010, effective Feb. 1, 2010) § 5 ch. 5 art. 2.3 (China). The novelty requirement of utility models could be softer than that of utility patents in the detail regulation of “the Guide.”

[53] Feng, supra note 40, at 55.

[54] Zhuanli Fa (专利法) [Law on Patent] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 27, 2008, effective Oct. 1, 2009) P.R.C. Laws, Dec. 27, 2008, art. 22 (China).

[55] Feng, supra note 40, at 55.

[56] Edward W. Tracy, et al., A Practical Patent Strategy for U.S. Companies Doing Business in China, 3 Landslide 14, 15 (2010-2011).

[57] Id.

[58] Id. See also Fa, supra note 54, at art. 9.

[59] Hui Lian (廉惠), Shiyong Xinxing Bohui Anjian Shizheng Fenxi (实用新型驳回案件实证分析) [An Empirical Study of Rejected Applications of Utility Models], 8 Intell Prop. 77, 78-79 (2011).

[60] “The Guide” includes the search of both local and international prior arts in the process of preliminary examination for utility models, but excludes the process of testing non-obviousness, which is required only in the pending of an application of a utility patent.  “The Guide” shows the three types of preliminary examination for the three types of patent filing separately in Part I, and mentions less about the search for novelty in the same part.  However, even though it expresses the details of examination of novelty of utility models in Part II, “The Substantive Examination,” the Patent Law of China only requires this procedure in Article 35.  Therefore, because the test of utility is a forward step of testing novelty, which is defined in Part 2.3, Article 3 of “the Guide,” we learn that the nature of the substantive examination is to test non-obviousness of an invention.

[61] See Suthersanen, supra note 18, at 12.  Suthersanen separates the classical utility model regime from second-tier protection, like in Germany, Austria, and the proposal from the EU Commission, and the type of utility model regimes which are closest to the utility patent regime.  She calls these types “Three Dimensional Regime,” “German Regime,” and “Patent Regime.”

[62] Id. at 13.  The formalities include correct documentation, name, and address of applicant and agent.

[63] See Hart, supra note 34, at 50-52.

[64] See Janis, supra note 24, at 191.

[65] Id. at 161.  Janis shows the pattern for the PTO and judicial system to emphasize the inventive step requirement for patents since the mid-twentieth century in the U.S.

[66] Id. at 166.

[67] Ruifang Chen, The Utility Model System and Its Benefits for China—Some Deliberations Based on German and Japanese Legislation, 14 IIC: Int’l Rev. Intell. & Competition L. 493, 505 (1983).

[68] Id. at 162-63. (“In order to comply with the European Patent Convention of 1978, Germany abolished its relatively strict ‘technical step forward’ standard for inventiveness, replacing it with the less rigorous erfinderische Tdtigkeit standard . . . . The inventiveness standard for utility models . . . was adjusted to erfinderischer Schritt . . . to correspond to an even lower standard.”)

[69] Janis, supra note 24, at 168.

[70] Rudolf Krasser, Developments in Utility Model Law, 26 IIC: Int’l Rev. Intell. & Competition L. 950, 951 (1995).

Here Come the Teamsters: A Unionized Future for Tech Employees

By Matthew R. Lowe*

I. Introduction

Since the biggest tech giants came onto the scene, Silicon Valley has seen a tension between the companies and labor unions due to an arguable lack of employee representation.[1]  While there are numerous hypotheses for why unions have been unable to infiltrate the tech sphere, one of the most compelling explanations has been the simply technology-averse attitude of unions.  However, on March 12, 2015, Facebook agreed to a contract proposed by Teamsters Local 853 on behalf of shuttle bus drivers.[2]  The agreement could signal a major change in the landscape of employer-employee relations in the technology sector.

II. Background

A. Overview: The Changing Landscape of Employer-Employee Relations

The general employer-employee dynamic is in flux due in large part to the Obama administration.  Recently, the White House proposed a rule modifying the Employee Retirement Income Security Act (ERISA) of 1974, designed to “crack down on irresponsible behavior in today’s market for financial advice by better aligning the rules between employer-based retirement savings plans and IRAs.”[3]  In 2009, the Employee Free Choice Act was introduced into both chambers of the U.S. Congress[4] in order to remove the present right of the employer to demand an additional, separate ballot when more than half of employees have already given their signature supporting the union.[5]  Many companies have expressed serious apprehension about the possible implications of these changes.  The Teamsters union has been seeking to organize many of these companies, such as FedEx and Facebook, and the changes would make it easier for them to do so.  In response, these companies have threatened to scale back drastically in order to compensate for potential losses.[6]

B. Uber & Lyft

For quite some time, tech companies and labor unions have clashed.[7]  Until recently, none of the major tech companies had unionized employees.[8]  Much of the tension between tech companies and unions is derived from what can be construed as an adversity to technology on the part of unions.[9]  Companies like Uber and Lyft, which use mobile applications to connect passengers and cab drivers, have been under siege due to labor disputes.[10]  Currently, two lawsuits brought forth by drivers of the companies are seeking reclassification so that they are protected as employees as opposed to independent contractors.[11]  Earlier this year, the judges overseeing these matters decided that the cases would have to be decided by juries following Uber and Lyft unsuccessfully arguing that their drivers are independent contractors.[12]  If the drivers succeed in the courts, Uber and Lyft may have to change their business models entirely.

Generally, startups are able to develop more affordably and with less bureaucratic resistance when they are free to hire and maintain independent contractors.  When Uber and Lyft developed, they did so relying on and budgeting for independent contractors.[13]  Classified as employees, the drivers will be far more expensive to maintain, thus likely cutting largely into the companies’ revenue streams.  Employers “must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wage-paid” full-time employees.[14]  Further, employees would be able to organize formally.  As of 2014, Southern California Uber drivers have unofficially aligned with a local Teamsters union.[15]

C. Tech Companies and Immigration Reform

Tech companies and startups alike rely not only on independent contractors, but on foreign labor as well.  The issue with outsourcing is one that continues to be at the forefront of political discourse.[16]  Still, tech companies value high-skilled foreign labor, especially foreign engineers, whom the tech industry has continually fought to make it easier to hire.[17]  Expectedly, unions have aggressively spoken out against such efforts.  In 2013, a legislative representative for the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) stated, “The tech industry is, frankly, being greedy.  They are … blatantly trying to roll back requirements that give high-skilled American workers a fair shot at getting a job.”[18]

Recently, the Obama administration announced a new rule that would allow work permits to be provided to qualified spouses of highly skilled immigrants who are in the United States on temporary visas.[19]  This rule has been sought out by tech companies and other businesses in general.[20]  The change will primarily affect temporary workers from India and China and represents an effort both to help create jobs and to reform what has been widely acknowledged as a dysfunctional immigration system.[21]

D. Opening the Gates to Unions

In November of 2014, shuttle bus drivers under the employ of Facebook joined with the Teamsters Local 853.[22]  The alignment came amidst the drivers’ complaints of being underpaid, overworked, and unfairly compensated for time on the job.[23]  In February, the two entities formulated a union contract that was unanimously agreed upon prior to proposal.[24]  In March, Facebook accepted the terms, which included an increase in average pay “from $18 an hour to $24.50 an hour.”[25]  Other benefits include “11 paid holidays, up to five weeks of paid vacation, paid bereavement leave, paid health care for full-time workers and their families, guaranteed overtime and more.”[26]  While Facebook has set an example, it is not the only major tech company implementing improved working conditions for its employees.  Apple and Google will also be providing increased hourly pay and benefits to its shuttle drivers.[27]  Compass Transportation employees who shuttle Apple, Yahoo, eBay, Zynga, Genentech, and Amtrak have unionized recently.[28]

III. Analysis

Perhaps the shifting labor and employment landscape in Silicon Valley is indicative of a future wherein unions play a larger role in tech companies’ affairs; however, questions remain as to whether labor unions would be a good idea for developed startups and who is likely to be unionized within these startups.  As of now, drivers have been successful in either pushing forth important lawsuits, as in Uber and Lyft’s cases, or they have executed union contracts, as with Facebook.  Whether engineers, for example, will be successful in yielding similar achievements or whether they even want to do so is uncertain.

Labor unions are typically brought in to assist in improving working conditions for laborers, but startup companies are generally known for taking great care of their employees.  Google and Facebook both made Forbes’ “20 Best Places to Work in 2015” list and it is no wonder.[29]  These companies not only innovate the products of tomorrow, but they also have a hand in innovating the work environment.[30]  They are able to recruit attractive talent through “[c]ushy salaries, luxurious dining amenities, and decentralized management structures.”[31]

Even for less elite and renowned companies, labor unions could harm a natural flow that exists within the tech industry.  Specifically, there has been a longstanding reliance on freelance-type workers, especially in the development process.[32]  While this preference may signal a potentially exploitative nature on the management side of relations, it is one that has been beneficial to laborers as well.  As the tension between unions and tech companies began to crystalize as far back as 2001, Alvin Bost, a freelance web designer, told CNET that he thought “unionization would ruin the free spirit and innovation in the high-tech industry,” and went on further to note that it would be terrible for people like him.[33]  Designers, engineers, and other contract workers enjoy a level of agency that allows them, as the term “freelance” itself suggests, to move freely from company to company, thus emphasizing an important and characterizing feature of the industry: choice. Tim Colson, a software engineer, noted of working conditions that “about the only detriment [can be] the long hours” but laborers are usually “compensated in some way for the effort,” and “if a particular environment isn’t acceptable, you can simply move on.”[34]  An employment attorney in Palo Alto, Victor Schachter, said over a decade ago that “employees are going to be very reluctant (to organize) when they see the obligation of dues and the possibility of strikes and the realities of what collective bargaining is … in the end, very few, if any, of these companies will find that they have union-represented employees.”[35]  To this day, his prediction seems to hold true.

On the other hand, labor unions may be able to find a foothold with service-level workers, such as janitorial staff, who are not able to share in the wealth, prosperity, and growth of the tech industry[36] and expand from there.  As of now, there is evidence to suggest that booms in the industry benefit engineers and investors primarily, with very little trickling down to workers not at the top of the wage pyramid.[37]  Drivers, for example, seek collective bargaining for the purpose of keeping up with the rising cost of living in the Bay Area.[38]  One of Facebook’s shuttle bus drivers, Jimmy Maerina, illustrated this when he stated that he is happy to be able to live where he wants and to also “be able to put some food on the table.”[39]

IV. Conclusion

The tech industry as a whole presents a very unique platform for labor and employment relations.  This platform has paved the way for various innovations from work environment modernization to comprehensive immigration policy reform.  Still, what makes the industry particularly unique is its relationship—or lack thereof—with labor unions.  For decades, Silicon Valley has thrived with minimal union influence.  However, as the labor and employment field continues to make notable shifts, unions may be able to reformulate their tactics and develop an effective strategy for gaining a foothold in the industry through service employees.  The need for companies to provide for and maintain their service workers is acknowledged by both the workers, like drivers for Uber, Lyft, and Facebook, and management, like Facebook, Google, and Amazon.  With a greater occupation within the tech sphere, unions may be able to expand their influence, thus potentially changing not only the procedural characteristics of the industry, but perhaps entire business models as well.

 


*J.D., University of Illinois College of Law, expected 2017. B.A., English and Political Science, University of Massachusetts-Amherst, 2012. I would like to thank the board of the Journal of Law, Technology, and Policy for giving me the opportunity to contribute this piece. Special thanks are given to Andrew Lewis and Iman Naim for all of their advice that went into writing this piece. I also would like to thank my mentors for their ongoing and invaluable guidance: Allison Maue and Professor Paul Healey. Finally, a huge thank you always to my parents, Chrissalee and Lesly, and my sister, Victoria, for their constant encouragement.

[1] Gregory Ferenstein, Why Labor Unions And Silicon Valley Aren’t Friends, In 2 Charts, TECH CRUNCH (Jul. 29, 2013), http://techcrunch.com/2013/07/29/why-labor-unions-and-silicon-valley-arent-friends-in-2-charts.

[2] Queenie Wong, Facebook Approves Union Contract for Shuttle Bus Drivers, SILICON BEAT (Mar. 12, 2015, 4:28 PM), http://www.siliconbeat.com/2015/03/12/facebook-approves-union-contract-for-shuttle-drivers.

[3] Press Release, White House: Office of the Press Secretary, FACT SHEET: Middle Class Economics: Strengthening Retirement Security by Cracking Down on Backdoor Payments and Hidden Fees, WHITE HOUSE (Feb. 23, 2015), available at https://www.whitehouse.gov/the-press-office/2015/02/23/fact-sheet-middle-class-economics-strengthening-retirement-security-crac.

[4] Steven Greenhouse, Fierce Lobbying Greets Bill to Help Workers Unionize, NY TIMES (Mar. 10, 2009), http://www.nytimes.com/2009/03/11/business/11labor.html?ref=business.

[5] Christopher Beam, Uncivil Union: Does Card Check Kill the Secret Ballot or Not?, SLATE (Mar. 10, 2009, 7:09 PM), http://www.slate.com/articles/news_and_politics/politics/2009/03/uncivil_union.html.

[6] Alex Roth, FedEx Threatens to Cancel Jet Orders: Package-Delivery Company Puts Boeing Order in Question over Bill to Make Unionizing Easier, WALL ST. J., http://www.wsj.com/articles/SB123791678454427343 (last updated Mar. 25, 2009, 12:01 AM).

[7] Ferenstein, supra note 1.

[8] Id.

[9] Id.

[10] Maya Kosoff, How Two Lawsuits Could Destroy Uber and Lyft’s Business Models – and Set a Precedent for the Rest of the Sharing Economy, BUS. INSIDER (Mar. 12, 2015, 10:12 AM), http://www.businessinsider.com/uber-lyft-business-models-and-lawsuits-2015-3.

[11] Id.

[12] Id.

[13] Id.

[14] Independent Contractor (Self-Employed) or Employee?, IRS, http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee (last updated Oct. 2, 2014).

[15] Press Release, Int’Press Release, Intr, UBER Drivers In Southern California Form Association with Teamsters Local 986 (Aug. 27, 2014), available at http://www.noodls.com/view/C19CF63DBBE3AF02F6046DB0DF9A25636FFE7946?9043xxx1409176202.

[16] Chris Isidore, Rick Perry: ‘Unemployment Rate Is a Sham’, CNNMONEY (Feb. 27, 2015, 4:37 PM), http://money.cnn.com/2015/02/27/news/economy/perry-unemployment-rate-sham.

[17] Gregory Ferenstein, Major Union Calls Tech Industry news/eco for Wanting to End Hiring Wait Period for Immigrants, TECH CRUNCH (May 17, 2013), http://techcrunch.com/2013/05/17/union-tech-industry-is-greedy-for-wanting-to-end-hiring-wait-period-for-immigrants.

[18] Id.

[19] Julia Preston, Rule Change Sought by Tech Firms Will Allow Some Spouses of Immigrants to Work, NY TIMES (Feb. 24, 2015), http://www.nytimes.com/2015/02/25/us/rule-change-sought-by-tech-firms-will-allow-some-spouses-of-immigrants-to-work.html?_r=0.

[20] Id.

[21] Id.

[22] Kristen V. Brown, Facebook Bus Drivers Unanimously OK Union Contract, SFGATE (Feb. 23, 2015, 6:31 PM), http://www.sfgate.com/business/article/Facebook-bus-drivers-unanimously-OK-union-contract-6097483.php.

[23] Id.

[24] Id.

[25] Id.

[26] Wong, supra note 2.

[27] Id.

[28] Id.

[29] Kathryn Hill, The Best Places to Work in 2015, FORBES (Dec. 10, 2014, 10:43 AM), http://www.forbes.com/sites/kathryndill/2014/12/10/the-best-places-to-work-in-2015.

[30] Mariana Simoes, Why Everyone Wants to Work at Big Tech Companies, BUS. INSIDER (Feb. 7, 2013, 4:12 PM), http://www.businessinsider.com/everyone-wants-to-work-at-tech-companies-2013-1.

[31] Ferenstein, supra note 1.

[32] Id.

[33] Troy Wolverton, High Technology Discovers Unions, ZD NET (Jan. 18, 2001), http://www.zdnet.com/article/high-technology-discovers-unions.

[34] Id.

[35] Id.

[36] Amy B. Dean, A Rising Silicon Valley Doesn’t Lift All Boats, AL JAZEERA (Mar. 9, 2015, 1:45 AM), http://america.aljazeera.com/opinions/2015/3/does-a-rising-silicon-valley-lift-all-boats.html.

[37] Id.

[38] Wong, supra note 2.

[39] Id.

Surrendering Your Smartphone at the Courthouse Door: Addressing the Rise of Technology-Related Juror Misconduct

Surrendering Your Smartphone at the Courthouse Door: Addressing the Rise of Technology-Related Juror Misconduct

By Rebecca Myhr Szajna*

 

I.  INTRODUCTION

“[S]o Johnathan, what did you do today?  Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

-Tweet sent by an Arkansas juror regarding his jury’s verdict in a 2009 civil lawsuit.[1]

 

Technology and juries just do not mix.  At least in the way that the current American legal system is structured.  The advent of new technologies that have created instant access to information and communication pose a serious threat to the current jury system.  One of the foundations of the American legal system is the right to a jury trial: “a jury composed of competent, fair, and impartial individuals, unbiased and free from outside influence.”[2]

A fundamental tenet of this system is that the evidence presented by the parties at trial is the only evidence allowed to be considered by the jury.  As Justice Oliver Wendell Holmes stated at the turn of the last century: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”[3]  Before modern technologies, this rule was relatively easy to follow; however, with the invention of smartphones, iPads, and Facebook, this rule is facing serious challenges from today’s jurors.  Jurors can now access information about litigants, case facts, legal terms, and solicit feedback from “friends” with the touch of a button.

II.  HOW NEW TECHNOLOGIES THREATEN JUROR IMPARTIALITY

Over half of all Americans own a smartphone.[4]  As of 2010, seventy-four percent of American adults used the Internet.[5]  The number of Facebook users is over 1.1 billion per month.[6]  Apple sold three million iPads in the first eighty days of release, the fastest-selling electronic in history.[7]  Cities across the country provide free wireless Internet access to their communities.[8]  Everywhere we turn, people are talking, texting, or reading from a smartphone or tablet.  This proliferation of new technology has changed the fundamental ways by which we communicate and access information.

Our current adversary system is structured to provide two opposing sides the opportunity to argue that its side should win the case based on the evidence presented at trial; jurors are expected to decide a case based on: (1) what they learn from the two opposing arguments and (2) the deliberations of the group of jurors.  With the advent of new technologies, however, jurors can now do their own research, find their own evidence, and solicit feedback from others outside of the jury box.  Before these technologies, there were instances of misconduct where jurors visited crime scenes or went home and looked up the definition of a legal term in the dictionary.[9]  However, new technologies have made it easier than ever to access information that undermines what happens inside the courtroom with information from outside the courtroom.

Moreover, in conjunction with the rise of new technologies, which has created greater access to information and communication, is our reliance on the instant access they provide.  When we want to know the answer to something, we google it.  We expect to be able to find the answer to a question or post a Facebook status update at our whim.  For many, leaving home without their phone is unimaginable.  Internet addiction has even become a treated psychological disorder.[10]  Therefore, it is not surprising that the instances of jurors going beyond the courtroom to engage in Internet-related misconduct are on the rise.

Since 1999, at least ninety verdicts have been challenged because of alleged Internet-related juror misconduct, and more than half of them were between 2008 and 2010.[11]  Since this information was published in late 2010, one can only imagine how the numbers have grown in the last three years.

III.  EXAMPLES OF INTERNET-RELATED JUROR MISCONDUCT

There are many examples of Internet-related juror misconduct, where jurors have conducted factual and legal Internet research, blogged or tweeted about the juror experience, or engaged in improper contact with people involved in the case.

A.  Factual Research

As just one of many examples, jurors have attempted to look up a defendant’s prior criminal history.[12]  Whether such evidence is presented at trial is typically determined after the parties have filed motions in limine, argued over the merits, and the judge has decided the issue based on the law.  If jurors choose to look up a defendant’s prior convictions, then this important legal process has been subverted by the independent research conducted by the juror, which is outside of the controls established by the system.

B.  Legal Research

When jurors choose to conduct their own research into the legal issues disputed in a case, there can be severe consequences when the jurors either misunderstand the legal research, find erroneous information, or use the information in an improper way.  A particularly problematic example is when  jurors look up sentencing ranges, where the knowledge of the sentence then impacts the jury’s decision on guilt.[13]

C.  Sharing the Juror Experience

At first blush, sharing one’s experience as a juror seems the least harmful Internet-related juror behavior.  However, the fact that jury deliberations take place in secret is one of the fundamental aspects of the jury system.  If juror deliberations were made public, then they could be subject to undue external influence.  The secrecy of the jury room protects the sanctity of the decision-making process.  By blogging or tweeting about one’s experience, it opens up the jury room to outside influences and makes the decision-making vulnerable to public pressure.[14]

D.  Improper Contact with Case-Related Individuals

People v. Rios is a recent and prime example of how a simple Facebook “friend request” can possibly influence the outcome of a trial and, at the very least, call into question the validity of a criminal jury verdict.[15]  In that case, a juror “friend requested” through Facebook one of the witnesses who appeared in a wrongful death criminal case.  When the witness realized that it may be improper, he alerted the court to the friend request.  The court was then forced to engage in an investigation as to whether the actions of the juror caused unfairness to the defendant and whether a mistrial should be declared.  The time, effort, and cost associated with such an investigation harms not only the litigants in that case, but also the system as a whole.

IV.  WHY JURORS ENGAGE IN MISCONDUCT

In many instances of internet-related “misconduct,” the jurors are actually well-intentioned.  Most jurors who conduct factual or legal research do so because they feel that they need better or more information than was provided to them at trial.  Additionally, the drive and, some may argue, compulsion to be connected to others through social media has become natural.  When people update their Facebook status more than once a day, it is hardly surprising that they would want to share a rather atypical experience in their life, like jury duty.  The desire to engage in this kind of behavior, which has the impact of undermining the entire trial process, is not ill-intentioned, but rather misplaced.  Therefore, it is imperative that the proposed solutions to technology-related behavior by jurors take into account the “why” of Internet juror misconduct as much as the “how.”

V.  PROPOSED SOLUTIONS

So how do modern-day courts handle the problem of modern-day juror misconduct?  There have been many proposed solutions to the rise of Internet-related juror misconduct; one thing is clear, however: a holistic, multi-faceted approach is required in order to combat the potential of juror misconduct in this modern technological era.  A one-step approach will not suffice, where each proposed solution will not fix the problem alone.  Only a variety of solutions used in conjunction with one another will combat the effects of technology on juror behavior.  Because investigating juror misconduct after the verdict is so difficult, the focus needs to be on preventing the harm before it occurs.[16]

A.  Voir Dire

Many attorneys have begun to question potential jurors about their Internet activity before they become jurors.[17]  While this makes sense and seems to be good lawyering, it begs the questions: Is digging into a potential juror’s online presence a violation of privacy rights, and, moreover, once it has been established that a potential juror is someone who has a high online presence, what do the litigants do with that information?  Given the unease and uncertainty of conducting extensive voir dire on jurors’ Internet presence and usage, this may be a somewhat helpful, but rather limited solution to the problem.

B.  Jury Instructions

Jury instructions need to be better-written, easier to understand, more explicit, and provide explanation for the prohibition against case-related Internet usage.  Instructions alone will never be able to quench jurors’ curiousity or eliminate the desire of some jurors to disregard them, but they are certainly another piece of the puzzle.[18]  The key is that the instructions must not only explain in layperson terms what is prohibited, but also must educate the jurors and explain why the prohibition is necessary.  Providing an explanation as to how external research or improper Internet use can damage the entire trial process will be more effective in combatting the misconduct.

C.  Penalties for Violating Jury Instructions (As Well as Alerting Jurors to the Penalties)

Many argue that a stronger approach is necessary to combat the serious threat of improper Internet usage by jurors in the form of stronger enforcement processes, such as penalties or fines for jurors who violate their oaths by improperly using new technology while serving as jurors.  Holding jurors in contempt and punishing them or fining them for misconduct can act as a deterrent to jurors and decrease the likelihood that jurors may risk such punishments by engaging in misconduct.  One scholar suggests using sequestration as a stick, threatening jurors with the possibility of sequestration if they cannot be trusted on their own to abide by the rules.[19]  While providing stiff penalties and enforcement tools to combat Internet-related misconduct is important, it is most useful to make those punishments known and understood in the context of explaining why Internet misconduct can be so harmful.  Jury instructions should make clear both the reasons why Internet usage is prohibited and then the subsquent punishments if those rules are violated.

D.  Limit Internet Access of Jurors

Many courts have begun prohibiting use or possession of cell phones in the courtroom or even the courthouse.[20]  While sequestration, where jurors are monitored 24/7, would be the best way to prohibit improper Internet use, the cost and burden of sequestration makes this a viable option in only the most extreme of cases, such as the trials of O. J. Simpson, George Zimmerman, and Casey Anthony.  Taking away the use of smartphones, iPads, and laptops while jurors are in the courthouse makes sense and can eliminate the temptation to use technology inappropriately during proceedings.  However, it will not work alone, as jurors can certainly look up anything on the Internet after they leave the courthouse.  Additionally, the anxiety created by such a measure could leave many technology-addicted jurors in shambles and have negative consequences on the juror decision-making process.[21]

E.  Implement Jury Reforms

Many of the reasons jurors engage in misconduct can be reduced or eliminated by implementing some of the reforms that have long been suggested to improve the jury system.[22]  While these reforms were not recommended as a solution to technology-related juror misconduct, new technologies may be the impetus to push forward some of the jury reforms that have long been suggested.  These reforms include: allowing jurors to ask questions, take notes, and deliberate with each other throughout trial.[23]  New technologies have created more active jurors; thus, allowing jurors to become more involved in the trial process can address the juror activity that has emerged through Internet misconduct.[24]  If jurors have other options to fill the needs that they are currently using the Internet to fill (i.e. to educate themselves about the case and connect with others), then these reforms could decrease the desire of jurors to go outside of the jury box.

F.  Better Lawyering

As with many problems related to juries and the work they do in deciding cases, many of these problems can be addressed through better lawyering.  Yes, improved jury instructions and court-implemented juror reforms are necessary, but rather than leaving it up to the court to fix the problem, lawyers should take it upon themselves to make it less tempting for jurors to go beyond the walls of the courtroom to engage in improper behavior.  If lawyers do their job in anticipating and answering juror questions, then jurors may not feel as compelled to seek outside information or input.[25]

G.  An Additional Consideration: Juror Stress

The stressful impact of jury service on jurors is an emerging area of concern for the legal system.[26]  One unanticipated effect of new technologies on jurors can be seen in the form of juror stress.  Even if the previously discussed reforms are implemented, none of the proposed solutions address the negative impact of restricting juror access to the Internet.  Even if jurors are better instructed and educated about the need to refrain from engaging in improper Internet-related behavior, it does not necessarily make it easier to obey.  The need to be plugged-in and connected 24/7 can be an overpowering need for many.[27]  How will restricting Internet behavior affect jurors’ psyches and abilities to focus on the case at hand?[28]  In fashioning a response to the increase in juror misconduct resulting from new technologies, the response will be incomplete without addressing the anxiety caused by reducing technology use in jurors, if even for a day.  The system cannot ignore the notion of juror stress and how the restriction of Internet activities can impact juror well-being and, ultimately, their decision-making abilities.

VI.  CONCLUSION

A few things are clear when it comes to Internet-related juror misconduct.  One is that this is a multi-faceted problem that requires a multi-faceted solution.  And, two, the impact of restricting the natural, normal, and compelling Internet behavior of jurors may threaten not only the impartiality of jurors, but also their well-being and decision-making capabilities.  Given the ever-increasing use of new technology, this is an area that is in desperate need of empirical study.[29] And, with newer technologies on the horizon, the only way for the American legal system to continue to function as intended is by confronting these challenges head-on and by adapting the jury system to meet these technologies as they develop.

 


* Adjunct Professor, University of Illinois College of Law. Stanford Law School, J.D. 2002; The Illinois School of Professional Psychology, M.A. 2008; Arizona State University, B.S. 1999. Much thanks to Angelica Nizio and the rest of the editors of the the Journal of Law, Technology & Policy.

[1] Amanda McGee, Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and Its Effect on American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301, 308 (2010).

[2] Kate L. Dysart & Camalia M. Kimbrough, #Justice? Social Media’s Impact on the Jury System, A.B.A. (Aug. 22, 2013), http://apps.americanbar.org/litigation/committees/trialevidence/articles/summer2013-0813-justice-social-media-impact-us-jury-system.html.

[3] Patterson v. Colorado, 205 U.S. 454, 462 (1907).

[4] Dara Kerr, Over Half of American Adults Own Smartphones, CNET (June 6, 2013, 1:01 PM), http://www.cbsnews.com/8301-205_162-57588043/.

[5] Lee Rainie, Pew Research Ctr., Internet, Broadband, and Cell Phone Statistics 1 (2010), available at http://www.pewinternet.org/~/media//Files/Reports/2010/PIP_December09_update.pdf.

[6] Associated Press, Number of Active Users at Facebook over the Years, Yahoo News (May 1, 2013, 7:27 PM), http://news.yahoo.com/number-active-users-facebook-over-230449748.html.

[7] John Paczkowski, Who’s Your Daddy? IPad Rewriting Adoption Records, All Things Digital (Oct. 5, 2010, 4:50 AM), http://allthingsd.com/20101005/whos-your-daddy-ipad-rewriting-adoption-records/.

[8] Michael Springer, 57 Cities Now Have Free Wi-Fi, but They’re Not Thinking Big Enough, PolicyMic (Oct. 9, 2013), http://www.policymic.com/articles/66891/57-cities-now-have-free-wi-fi-but-they-re-not-thinking-big-enough.

[9] Caren Myers Morrison, Can the Jury Trial Survive Google?, Crim. Just., Winter 2011, at 5.

[10] McGee, supra note 1, at 309.

[11] Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track, Reuters (Dec. 8, 2010, 3:23 PM), http://www.reuters.com/article/2010/12/08/us-internet-jurors-idUSTRE6B74Z820101208.

[12] People v. Garcia, No. C049205, 2007 WL 29949, at *5 (Cal. Ct. App. Jan. 5, 2007); see also Nick Madigan, Juror’s Misconduct Leads to New Trial in Gang Killing, Balt. Sun (Sept. 12, 2010), http://articles.baltimoresun.com/2010-09-12/news/bs-md-marshall-newtrial-20100911_1_rival-gang-member-pasadena-denver-lanes-three-jurors (vacating a Baltimore gang member’s conviction after juror performed an Internet search on the defendant’s prior criminal record).

[13] Morrison, supra note 9, at 7.

[14] Timothy J. Fallon, Mistrial in 140 Characters or Less? How the Internet and Social Networking Are Undermining the American Jury System and What Can Be Done to Fix It, 38 Hofstra L. Rev. 935, 938–39 (2010); J. Paul Zimmerman, A Practical Guide to the Development of Jury Charges Regarding Social Media, 36 Am. J. Trial Advoc. 641, 645–49 (2013).

[15] People v. Rios, No. 1200/06, 2010 WL 625221, at *2 (N.Y. Sup. Ct. Feb. 23, 2010).  The case arose out of the deaths of two New York firefighters.

[16] Fallon, supra note 14, at 945–53.

[17] McGee, supra note 1, at 317–18.

[18] Fallon, supra note 14, at 954–67.

[19] Id. at 965–67.

[20] Ralph Artigliere, Sequestration for the Twenty-First Century: Disconnecting Jurors from the Internet During Trial, 59 Drake L. Rev. 621, 638 (2011).

[21] Id. at 639–40; see also Matt Richtel, Attached to Technology and Paying the Price, N.Y. Times (June 6, 2010), http://www.nytimes.com/2010/06/07/technology/07brain.html?pagewanted=all&_r=0.

[22] See, e.g., Akil Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169 (1995) (providing various suggestions for jury reform).

[23] Artigliere, supra note 20, at 632; Morrison, supra note 9, at 13.

[24] Nicole L. Waters & Paula Hannaford-Agor, Jurors 24/7: The Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System 2–3 (2012), available at http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/Jurors_%2024-7_REV011512.ashx.

[25] Artigliere, supra note 20, at 633–634.

[26] See, e.g., J. Chris Nordgren & Matthew W. Thelen, Helping Jurors Manage Stress: A Multilevel Approach, 82 Judicature 256, 259–62 (1999) (explaining ways for jurors to manage stress during the trial).

[27] See Richtel, supra note 21; Henry Wallop, People ‘Anxious’ When Cut Off from Internet, Telegraph (Oct. 13, 2009, 7:00 AM) http://www.telegraph.co.uk/technology/news/6307460/People-anxious-when-cut-off-from-internet.html (detailing the anxiety many people feel when cut off from technology).

[28] See Artigliere, supra note 20, at 627 (stating that taking away technology from people evokes unexpected reactions and concerns).

[29] Id. at 624–25.