Vol. 6 (2010)

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Julie Elizabeth Myers, The Moment of Truth for fMRI:  Will Deception Detection Pass Admissibility Hurdles in Oklahoma?, 6 OKLA. J.L. & TECH. 47 (2010)

"Functional magnetic resonance imaging, or fMRI, as a lie-detector is especially promising,   despite the fact that other forms of lie detection technology have been held inadmissible for over eighty years.   Although there is some debate over the exact accuracy of fMRI, to date, this technology has even demonstrated the ability to recognize a specific item - such as a screwdriver or a window - that a person is thinking of merely by reading the computerized images of that person’s brain activity.   Proponents claim the ability of fMRI technology to discern truth from deception will soon be absolute.  Case law on these advanced deception detection technologies is sparse at best, but the Oklahoma Court of Criminal Appeals has had one of the few unique opportunities to  confront the early use of neuro-lie-detection evidence.   Because the Oklahoma Evidence Code parallels the Federal Rules of Evidence regarding expert testimony, an understanding of federal interpretation concerning novel science will be significant for fMRI evidence in Oklahoma.  In fact, early cases of neuro scanning evidence in Oklahoma may have great influence on the outcome of the battle over fMRI admissibility in many jurisdictions.  This comment will discuss fMRI and its chances at admissibility in Oklahoma courts and in the Tenth Circuit, which both follow the Daubert decision when evaluating novel scientific evidence, and propose an explanation of why it should be admitted as reliable."

Amanda Higgins, Not So Fast:  Quon v. Arch Wireless Is Not Employees' License to Text the Workday Away, 6 OKLA. J.L. & TECH. 48 (2010)

"Last year, the Ninth Circuit Court of Appeals decided Quon v. Arch Wireless,  a case that had privacy advocates jumping for joy, but only because they were jumping the gun.  Many thought it was the beginning of a new level of privacy for employees in the workplace.  One CNET blogger insisted that the Quon decision meant that “employees’ text messages are now safe from their bosses’ prying eyes.”   Similarly, a newspaper headline shouted “Prying Bosses Get the Message,” going on to claim that the ruling would affect “all employers who contract with an outside provider for messages.”   “Bosses Can’t Read Employees’ Messages, Court Says” proclaimed a headline from Entrepreneur Information Management Journal in the Fall of 2008.    The same article goes on to quote from Newsweek in its conclusion that the Ninth Circuit’s ruling “means that Quon’s texts—and by proxy, millions of other messages from millions of other users—are protected from ‘employers prying eyes.’”   So many were eager to report that every employee was now free to message away at any time, without their boss reading those messages.  But these articles, in general, overstate the effect of the Quon decision, with some reactions in those early days being just plain wrong."

Wes Deweese, Fracturing Misconceptions:  A History of Effective State Regulation, Groundwater Protection, and the Ill-Conceived FRAC Act, 6 OKLA. J.L. & TECH. 49 (2010)

"The hydraulic fracturing process is effectively regulated by states, but there are efforts being made in the U.S. Congress to bring its regulation under the purview of the Safe Drinking Water Act.   By attempting to regulate hydraulic fracturing under this Act, the federal government will only serve to impose costly regulatory hurdles that will inhibit the development of the United States’ vast reserves of natural gas trapped in shale and tight sand formations throughout the country.  This proposed regulation is a one-size-fits-all approach, unnecessarily transferring to the federal government the regulation of an industry practice that has been effectively regulated by states.  Each state has a vested interest in the protection of its natural environment.  To that end, they have been effectively regulating the oil and gas industry since the early twentieth century.  The additional hurdle proposed before Congress is unnecessary and lacks an understanding of the technology and regulation concerning the development of the nation’s indigenous hydrocarbon resources.  Further, in a hearing before the Senate Committee on Environmental and Public Works, representatives from the Environmental Protection Agency testified that they had not heard of one case of ground water contamination due to hydraulic fracturing.   Imposing unnecessary federal regulations on a process that has a sixty-year history of effective state regulation would cause much of the domestic energy supply to remain unproduced, further increasing U.S. dependence on foreign sources of oil and natural gas.  As US gas is developed, LNG and pipeline imports will decline."

Todd E, Saucedo, The Quandary of Being Interactive:  The Impact of Arista Records v. Launch Media on the Viability of Webcasting Services, 6 OKLA. J.L. & TECH. 50 (2010)

"The advent of the Internet helped spawn an age of user based interactivity that brought forth a new venue for the public performance of sound recordings, and with it a whole new set of complexities and questions for the recording industry and the holders of copyrights. Adding a further layer to the query, various methods and means came into use that allowed the transfer and streaming of music in ways that had been unimaginable to both the recording industry and to lawmakers just a decade prior. . . . Beyond mere peer to peer file sharing, another concern that caught the attention of the record industry was that of “streaming audio,” or “webcasting.” Streaming allows an Internet user to listen to music via the web without having to download and permanently store audio files onto their computers, essentially giving the listener access to whatever is playing on that station at that moment.  A basic summation of webcasting is that “audio is transmitted over the Internet bit by bit, but never as a complete file,” thus preventing a “listener from record[ing] or sav[ing] a copy of the audio file.”  The recording industry became increasingly concerned that the traditional balance that had existed between radio broadcasters and themselves would be disturbed, and that consumers would find alternative avenues to purchase music or at least find ways to circumvent the entire process of purchasing that would extract the recording industry’s products and “thus erode sales of recorded music.”  Webcast streaming has evolved in different stages, resulting in several attempts by Congress, through multiple amendments to the Copyright Act of 1976, to categorize and more narrowly define the limitations of web streaming and its applications to copyright law."

Kristin Decker, Looking for Lagniappe:  Publicity as a Culprit to Social Networking Websites, 6 OKLA. J.L. & TECH. 51 (2010)

"Yath v. Fairview Clinics exemplifies a situation of concern for both a MySpace user who posted another’s private information on the internet and Minnesota courts, which are in debate over the proper way to apply the publicity element in an invasion of privacy claim.  Courts routinely analyze publicity by first designating a medium of communication as either private or public.  Though suitable for earlier approaches to mass communication, this approach is much too broad for assessment of the internet, and more specifically, networking sites. In the past, mass communication was essentially an exclusive monopoly dominated by professional news sources, like the New Yorker and the Times-Picayune.  However, networking sites are allowing the general public to effortlessly access an infinite amount of people without possessing the awareness of possible legal consequences, a quality alternatively inherent in specialty news sources.  To designate all networking sites as strictly public mediums of communication would be to ignore the intrinsic features of a networking site availing to its users the ability to determine the extent of information released into cyberspace. Moreover, a purely private characterization of networking sites would overlook the immeasurable impact of a website void of restrictive safeguards."