Current Issue

Volume 20, Number 1 – The Privacy, Probability, and Political Pitfalls of Universal DNA Collection

Meghan J. Ryan
20 SMU Sci. & Tech. L. Rev. 3

Watson and Crick’s discovery of the structure of DNA (deoxyribonucleic acid) in 1953 launched a truth-finding mission not only in science but also in the law. Just thirty years later–after the science had evolved–DNA evidence was being introduced in criminal courts. Today, DNA evidence is heavily relied on in criminal and related cases. It is routinely introduced in murder and rape cases as evidence of guilt; DNA databases have grown as even arrestees have been required to surrender DNA samples; and this evidence has been used to exonerate hundreds of convicted individuals. DNA evidence is generally revered as the “gold standard” in criminal cases because, unlike eyewitness testimony, bite-mark evidence, hair analysis, and the like, it is considered nearly infallible. This potency of DNA evidence has led to suggestions that we, as a nation, should magnify the power of DNA by increasing the size of DNA databases. Several of these proposals have gone so far as to propose that we should collect DNA from every single American–that there should be universal collection of DNA. This article explains that, while the universal collection of DNA may be alluring, it imposes greater privacy burdens than typically suggested and may be less useful than one might imagine. Depending on whether individuals’ DNA profiles or samples are stored, and how they are analyzed, this may potentially provide the government–and other actors–with an unprecedented amount of private information about ordinary Americans. Further, because we live in a system with limited resources, investing in the universal collection of DNA will likely result in scaling down law enforcement resources elsewhere, such as by reducing the number of professional crime scene investigators or police officers on the street. These accompanying events will likely detract from any anticipated increase in crime-solving resulting from the universal collection of DNA and will likely overcome any progress made on that front.

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Lost ESI Under the Federal Rules of Civil Procedure

Jeffrey A. Parness
20 SMU Sci. & Tech. L. Rev. 25

In 2006, Federal Rule of Civil Procedure (FRCP) 37(e) came into effect, declaring that lost electronically stored information (ESI) could not prompt “sanctions … on a party” absent “exceptional circumstances.” Sanctions were limited to where the loss resulted from “the routine, good-faith operation of an electronic information system.” Effective December 1, 2015, Rule 37(e) now contemplates limited “measures … to cure the prejudice” caused by lost and irreplaceable ESI arising from a party’s failure “to take reasonable steps to preserve,” where the lost ESI “should have been preserved in the anticipation or conduct of litigation.” For more culpable conduct, the new rule contemplates possible sanctions. The rule was amended in 2015 because the 2006 norm had “not adequately addressed the serious problems resulting from the continued exponential growth in the volume” of ESI and because it had prompted in the federal circuits “significantly different standards for imposing sanctions or curative measures on parties who fail to preserve” ESI. The 2015 rule incorporated only some of the 2013 recommended amendments to FRCP 37(e). This article will first review the basic features of the old and new FRCP 37(e), as well as their place amongst other FRCP and judicial precedents on information preservation in anticipation of and during federal civil litigation. It will then comment on some likely challenges posed to those utilizing or affected by the new federal rule on lost ESI.
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De-Clawing Katz: Emerging Technology and the Exclusionary Rule

Samuel C. Cole
18 SMU Sci. & Tech. L. Rev. 47

As technology changes, however, so do our reasonable expectations of privacy. Under Kyllo v. United States, 533 U.S. 27 (2001), courts—and, by extension, police officers—should interpret Fourth Amendment jurisprudence related to emerging technology broadly when the courts expand Fourth Amendment protections. A logical corollary to this rule is that courts and police officers should interpret Fourth Amendment jurisprudence related to emerging technology narrowly when the courts limit the scope of Fourth Amendment protections. Nonetheless, the Fourth Circuit’s holding in United States v. Stephens, 764 F.3d 327 (4th Cir. 2014), allows police officers or other federal agents to interpret binding Fourth Amendment jurisprudence too broadly—even when it relates to the ever-changing world of technology. Under the rule set forth by the Stephens court, there is nothing to deter federal officers from broadly interpreting precedent which limits Fourth Amendment protection, thereby de-clawing the Fourth Amendment and leaving our right to privacy at the mercy of advances in technology.
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The “Reasonable Certainty” Standard for Patent Claim Definiteness: The Standard’s Backdrop and its Effect on the Balance of Power in Patent Infringement Actions

Ekaterina G. Long
18 SMU Sci. & Tech. L. Rev. 59

In Nautilus v. Biosig Instruments, 134 S. Ct. 2120 (2014), the United States Supreme Court found that the Federal Circuit’s “insolubly ambiguous” standard for evaluating a patent’s definiteness was inadequate because it failed to comport with the competing concerns underlying section 112. The Court instead opted for a “reasonable certainty” standard, which provides that patent claims must be “viewed in light of the specification and prosecution history . . . [so as to] inform those skilled in the art about the scope of the invention with reasonable certainty.” The addition of the reasonableness inquiry into the analysis means that indefiniteness will move away from a pure question of law and into a factual inquiry. Whether a disputed claim term is indefinite has traditionally been seen as part of claim construction but, following Nautilus, has the potential of being shifted to a question for trial.

News & Events

Fall 2016 Food Law Symposium

This fall, the SMU Science & Technology Law Review is proud to co-host a Food Law Forum with Strasburger & Price, LLP and Michigan State University. The Forum will be held on the SMU Dedman School of Law campus on Friday, September 9th. The event will feature panel discussions from prominent lawyers and legal scholars from both the DFW legal community and nationwide. The discussions will cover two current and complex issues in Food Law. The first is the recent developments concerning the labeling of Genetically Modified Organism (GMO) products that have taken shape since the Supreme Court’s decision in Sorrell v. IMS. The second is the complex regulation of food manufacturing, and will feature panels outlining the prevention, liability, and legal enforcement in the event of manufacturing irregularities, such as the recent listeria concerns surrounding Blue Bell. This Forum will be a thorough and current examination of fascinating legal topics that have a direct impact on the daily life of consumers and the constitutional liberties inherent in marketplace competition.

Register Now for the Fall 2015 Cyber Security Symposium

Registration for the Fall 2015 Cyber Security Symposium, which will take place on October 23, is now open. The Symposium will cover cyber security privacy and rights, the global threat of cyber crime, and issues in cyber security and healthcare.

For more information, click here.

Congratulations to the Students Selected for Publication!

Three student works were published in the Volume 20, Spring 2017 edition of the Journal.

Congratulations to our new 2017-2018 Staff Editors!

We thank everyone who participated in the write-on competition and we are excited to welcome all of our incoming staff editors!

The Journal is proud to announce the Fall 2015 Cyber Security Symposium

The Fall 2015 Symposium will be centered around Cyber Security primarily focusing on cyber security, the global threat of cyber crime, and privacy issues. Any professors, judges, attorneys, or any other legal scholars interested in presenting or attending are welcome to contact the Journal at scitech@smu.edu.

Congratulations to the 2017-2018 Executive Board!

We are excited to welcome the 2015-2016 editorial board!