Welcome back for another week of What's Next, where we report on the intersection of law and technology. Dykema's Jesse Halfon kicks us off this week on the laws attempting to keep pace with the dockless scooters and micromobility vehicles zipping around U.S. cities. Plus, lawyers respond to a precedential ruling that might hold Amazon accountable for faulty products. And the FCC proposes a new rule that aims to limit the number of calls you get about free cruises. Don't be a stranger: Email me at [email protected] and follow me on Twitter at @a_lancaster3.


Jesse Halfon, an attorney for Dykema in Ann Arbor, Michigan.

Scooting Around Micro Vehicle Laws

I'll go on record to say that I thought the future of transportation would look a bit sleeker than adults riding lime green scooters. Alas, electric, dockless scooters have arrived and are in more than 100 cities worldwide. After downloading an app and signing a fairly wide sweeping waiver of liability, users can pluck one of these vehicles off the ground and take off for their destination. As a native New Yorker, Jesse Halfon has always been interested in alternative transit. The automotive and products liability attorney for Dykema in Ann Arbor, Michigan, says that laws have not quite caught up with the 15 mph micromobility option. The growth of this transit method, he says, depends on a willingness to adapt to shared mobility and tap into big data.

➤➤ What kind of laws are you seeing pop up in response to dockless scooters such as Lime and Bird?  Most scooter bills typically define proper usage, age and speed limits. The vast majority of cities that have enacted laws have required that they be ridden on the road or in bike paths, and they're typically prohibited on sidewalks. A few require that they only be ridden on the sidewalk. That's what makes this area of the law fascinating, because there's no real standard. Each city is playing it by ear and watching what other cities do.

➤➤ Have you seen cities try to enforce helmet usage? The main area of enforcement for municipalities has not been safety, but the parking issue. Because they're dockless, they can be left in the middle of the street where people can trip on them. In particular, it's an issue for people who are disabled. That's the No. 1 area where cities have flexed their muscles. They'll pick up the scooters and impound them if they're not handled properly.

I think cities are concerned that the more hands-on they are, the more they'll be on the hook for liability. There's an advantage to cities to take a hands-off approach, where they grant a permit but don't direct the businesses in any way.

➤➤ In an article you wrote for CityLab, you mention that the Los Angeles Department of Transportation created a platform to analyze data from mobility-as-a-service companies. What do they want to do with that data? To develop policy for dockless scooters, cities like Los Angeles want to know how privately rented scooters can supplement transit infrastructure. In order to inform decisions over transportation policies, they would like to collect the data that scooter companies use to monitor high-traffic locations, average speeds and peak times of day. Big Data comes with big responsibility and potential liability. So, the fight I think we're going to see develop is what data the cities are going to be allowed to collect and how that's going to be used and protected. The rideshare companies like Uber and Lyft say cities should not have absolute access to their data, and to the extent that they have any data, it should be aggregated and subject to certain protections.

➤➤ What could signal the future of how this area of the law will take shape? I will be following how cities in general think about shared mobility as opposed to privately owned mobility options, and how creative and risky they're willing to be—whether that means creating laws, flexing enforcement or forcing operators to modify liability clauses or post bonds in cases of injury. When you're dealing with car ownership, cities have a good handle on how to deal with that through taxation and licensing. I think the conflict here is that those traditional ways of regulating mobility don't seem to work as well with shared mobility.

Amazon On the Hook for Product Liability

When asked if he found anything surprising about last week's appellate opinion ruling that Amazon could be held liable for shady products and vendors on its site,David Wilk, a partner with Lepley, Engelman Yaw & Wilk, who is lead counsel for the plaintiff, said, “You mean besides it coming down in my favor?” The United States Court of Appeals for the Third Circuit's opinion in Heather Oberdorf v. Amazon.com Inc. marks the first time Amazon was classified as a seller in its marketplace.

“If the decision stands, it will certainly change the way Amazon is going to have to do business with third-party vendors in Pennsylvania, and I expect, in states with a similar product liability scheme,” Wilk said. “They just can't just wash their hands and say they have nothing to do with the product.”

The 2-1 decision reversed a ruling from the U.S. District Court for the Middle District of Pennsylvania, and creates a split with the Fourth and Sixth circuits, which maintained Amazon could not be liable as a seller.

In this case, Heather Oberdorf bought a dog collar in 2014. When the collar snapped mid-walk, the retractable leash reared back, blinding her in one eye. Wilk said he thinks the opinion has a lot to do with the vendor, The Furry Gang, which virtually vanished. “The fact that Amazon really makes no effort to make sure that a vendor can be located in case something like this happens—the court really spent a lot of time on that,” he said.

And it did. Senior Judge Jane Richards Roth, who wrote the majority opinion, said consumers are particularly vulnerable when vendors go MIA, and that “had there been an incentive for Amazon to keep track of its third-party vendors, it might have done so.”

Here's what others in the law community had to say:

Snuffing Out Robocall Spoofers

Federal Communications Commissioner Ajit Pai proposed a new rule Monday to limit international robocalls and harmful text message spoofing, which is when someone impersonates a person or an entity by modifying short message service (SMS) information.

“Scammers often robocall us from overseas, and when they do, they typically spoof their numbers to try and trick consumers,” Pai said in a statement. “Call center fraudsters often pretend to be calling from trusted organizations and use pressure tactics to steal from Americans. We must attack this problem with every tool we have.”

The rule would begin to enforce a law Congress passed in May making it illegal to send misleading or fraudulent text messages and international calls. The legislation also upped fines for robocallers and empowered regulators like the FCC to go after scammers with more time and resources.

In 2018, cheesed off phone owners filed 232,000 complaints with the FCC regarding robocalls and telemarking, according to a report from CBS News, and the Federal Trade Commission received 3.7 million Do Not Call Registry complaints last year.

Pai said the new rules will help “close the loopholes that hamstring law enforcement” when it comes to these issues.

The Commission is set to vote on the new rule on Aug. 1.

Trump Banned From Blocking Twitter Followers In the Trump era, a block from the president on Twitter has become a badge of honor in some circles. However, a U.S. appeals court ruled President Donald Trump's blocking of Twitter users is discriminatory and against the First Amendment. Upholding a lower court ruling, a three-judge panel of the U.S. Court of Appeals for the Second Circuit said the president cannot selectively exclude people he disagrees with from following his Twitter account, especially since it's an account he uses to communicate about his administration. Read more from Mike Scarcella and Nate Robson here.

How Anonymous is De-Identified Data More advanced algorithm-coded technology and a lawsuit against Google and the University of Chicago over medical record privacy has kicked up a debate about the efficacy of de-identified data as a security measure. If de-identified data can be cross-listed against other information, it could invoke the European Union's General Data Protection Regulation or California's data privacy law. Read more from Victoria Hudgins here.

Taking Counterfeit Law Cues from China Last year, China passed legislation that held e-commerce sites liable for counterfeit activity on their platforms. Some experts expect the United States will import similar policies targeting online retailers. Read more from Frank Ready here.

Mark Your Calendars The Senate Judiciary Committee's Subcommittee on the Constitution has scheduled a hearing titled “Google and Censorship through Search Engines” for next week. Twitter and Facebook appeared earlier this year before the subcommittee, where they said they don't censor conservative speech. The issue has been a hot-button item among conservatives, especially going into an election year. You can tune in Tuesday, July 16 at 2:30 p.m. EST here.