In June of 2004, the North Carolina Supreme Court decided Howerton v. Arai Helmet, Ltd., which interpreted the standard for admitting expert testimony under Rule 702 of the North Carolina Rules of Evidence. The issue before the court was whether a North Carolina trial court's gatekeeping responsibility under Rule 702 is the same as that imposed on the federal courts by the Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which requires an independent preliminary assessment of whether the proffered expert testimony is both reliable and relevant. The answer was an unequivocal "no."

In concept, the admissibility of expert testimony boils down to a single question: How do you know that? Historically, there have been two approaches to this question: the guild approach and the independent scrutiny approach. Under the former (the so-called Frye5standard), experts are allowed to constitute themselves as a guild and declare that their approach is "generally accepted" among its members. The latter, or Daubert standard, requires the trial court to go past the affirmations of guild members and determine on its own whether the expert's evidence is reliable.

Cite as 6 N.C. J.L. & Tech. 289 (2005) | Download PDF

For the past several years, controversy existed in North Carolina as to the standard for determining the admission of expert testimony. The North Carolina Supreme Court recently put this controversy to rest in Howerton v. Arai Helmet, Ltd. In Howerton, the court flatly rejected the gatekeeping test adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. Instead, the court reiterated its previous three part test: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?”

Cite as 6 N.C. J.L. & Tech. 307 (2005) | Download PDF

One of the most controversial provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”) allows the government to track the books people check out of the library. The critics of this provision argue that allowing the government to monitor what books people read is an unprecedented invasion of privacy that will erode civil liberties and chill free speech. These critics may be surprised to learn that rapid advances in Radio Frequency technology put the private sector, not the government, on the verge of what can be described as a massive bugging program. The culprit is a tiny microchip called a Radio Frequency Identification (“RFID”) tag that can be inserted into everyday household items, thus allowing the government, or, for that matter, virtually anybody with a scanner to track the physical location of every carton of milk, every child’s toy, and every pair of socks that consumers buy. Compared to the potential privacy threats stemming from the unrestricted use of these tags, the much feared “sneak-and-peak” provisions of the USA PATRIOT Act look like child’s play.

This Recent Development seeks to accomplish four main objectives. First, it describes the nature of RFID technology, and the risks that RFID technology poses to our privacy by greatly enhancing location-tracking capabilities of the government, the companies that use the technology and ordinary criminals that may abuse it. Second, this Recent Development examines the precise nature of the privacy rights threatened by RFID technology by discussing the concept of location privacy—a new understanding of privacy as freedom of an individual from having his or her movements monitored without their consent. Third, this Recent Development demonstrates that existing constitutional and legislative frameworks are not designed to protect location privacy from unauthorized privacy violations. Finally, this Recent Development proposes legislative solutions, including incorporating the concept of location privacy into the Electronic Communications Privacy Act, regulating RFID technology through the Federal Communications Commission pursuant to its authority over public airwaves, and requiring encryption mechanisms in the RFID tags themselves.

Cite as 6 N.C. J.L. & Tech. 325 (2005) | Download PDF

In the small town of Truro, Massachusetts, three years had passed and the police could still not find the killer of freelance fashion writer Christa Worthington. Christa was found stabbed to death with her two year old daughter “clinging to her body.” Local police found semen on Worthington’s body, providing a DNA sample, an important clue to help solve the case. As has occurred on other occasions in the United States and abroad, investigators deployed a so-called “DNA Dragnet” of all 790 males in the town. Police asked men in Truro to provide investigators with a DNA sample in order to check it against the DNA found on Worthington. While the program was voluntary, investigators indicated that those who were unwilling to provide a sample would be viewed with suspicion by the police. Sergeant David Perry of the Truro Police Department stated, “[w]e’re trying to find that person who has something to hide.” In addition, the analysis becomes more common in society, it has the potential to open the door to prevalent, unchecked use of DNA sampling in the absence of the protections provided either by an alternative legal standard or statutory privacy protections.

This Recent Development proposes that Fourth Amendment rights are inadequately protected in the face of rampant technological change fueled by scientific developments which were not present in the arenas of prior Fourth Amendment jurisprudence. Fourth Amendment privacy-protecting safeguards cannot sufficiently protect against a drift into a future in which the intimate secrets of one’s body are unlocked and held by the government for any future use. Therefore, this Recent Development argues that prophylactic measures are necessary to strike the proper balance between the legitimate state interest in collecting accurate and sufficient information about the criminals and the individual’s interest in adequate protection for the vast personal and private information contained within DNA. With appropriate limits on what information the government may glean from DNA samples, DNA testing and analysis on a wide scale can balance privacy interests with the important governmental interest of accurate law enforcement.

Cite as 6 N.C. J.L. & Tech. 343 (2005) | Download PDF

The rising speculation in intangible assets by patent trolls may indicate that patents are ready to evolve to the next level. Just as air space rights and carbon emissions before them, patents could be traded on stock exchanges. This evolution could take the form of a Patent Investment Trust, modeled on the popular Real Estate Investment Trust (“REIT”). By authorizing a Patent Investment Trust (“PIT”), the United States Congress could help create a public market based on patents and patent licensing, harnessing market power to provide capital for inventors and stabilizing speculation through more accurate patent prices and licensing fees.

Cite as 6 N.C. J.L. & Tech. 367 (2005) | Download PDF

In an era where businesses, industry, and postsecondary institutions recognize the value of and utilize online learning, online education for North Carolina’s public schools may be inevitable. Increasingly, virtual education is seen as “a model for the development of the 21st-century learning skills of working and collaborating with others at a distance.” If North Carolina’s public schools are to educate students so that they will be competitive in a marketplace that values online learning and virtual interaction, the state will need to ensure that its schools at the very least have a virtual component.

This comment examines the possibility and legality of cyber-charters in North Carolina under the state’s current charter school legislation and proposes that North Carolina amend and/or supplement its charter school legislation prior to granting any cyber-charters. This comment: (1) provides a brief history of the development of charter school legislation in the United States and in North Carolina; (2) describes the subsequent national development of cyber-charters and illustrates some of the problems that have arisen when they are opened under “regular” charter school legislation; (3) offers a recent history of online learning developments and considerations in North Carolina; and (4) provides an introductory analysis of North Carolina’s current charter school legislation as applied to cyber-charters, examining how the Charter Schools Act could be amended or supplemented in order to better address the unique nature of cyber-charters.

Cite as 6 N.C. J.L. & Tech. 395 (2005) | Download PDF

In United States v. Councilman, the First Circuit Court of Appeals addressed the complex issue of when the Wiretap Act protects electronic communication. In a split decision, the First Circuit upheld the district court ruling, holding that an Internet service provider (“ISP”) does not violate criminal wiretap laws when it copies and reads customers’ email messages without their consent. The First Circuit reasoned that the intercept provisions of the Wiretap Act did not apply due to the fact that the messages were held in electronic storage. As of October 5, 2004, a majority of the First Circuit judges voted to withdraw and vacate their prior judgment and rehear the case en banc. This Comment examines the First Circuit’s decision in Councilman and argues that the court incorrectly interpreted and applied settled law to the unique facts of the case, thereby impermissibly allowing electronic communications that are characterized simultaneously as “in transit” and “in storage” to be acquired by ISPs without violating either the Wiretap Act or the SCA. This Comment proposes that in rehearing the case, the court should avoid a narrow construction of the Wiretap Act because such an interpretation leads to outcomes that are contrary to public policy. Furthermore, in rehearing the case, the court should construe the ECPA as a whole statute, not as two separate titles.

Cite as 6 N.C. J.L. & Tech. 437 (2005) | Download PDF