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Earlier this month and last month, the National Security Commission on Artificial Intelligence, the Reiss Center on Law and Security at NYU School of Law, the Berkman Klein Center for Internet & Society at Harvard University, and Just Security convened a three-part virtual symposium of experts to debate critical legal issues around the growing use and influence of artificial intelligence (AI). Titled Security, Privacy and Innovation: Reshaping Law for the AI Era, the symposium comprised three sessions convening leading scholars, practitioners, and thought leaders on some of the most difficult and urgent facets of the AI era. In case you missed the event, this recap describes highlights from each panel. Further details of the symposium can be accessed here. These descriptions and observations are our own and are not necessarily shared by each of the panelists.

Jonathan Zittrain, Faculty Director of the Berkman Klein Center for Internet & Society, moderated the first panel. The panel featured Olufunmilayo Arewa, Murray H. Shusterman Professor of Transactional and Business Law at Temple Universitys Beasley School of Law; Chinmayi Arun, Resident Fellow at Yale Law School; Ronald Deibert, Director of the Citizen Lab at University of Torontos Munk School of Global Affairs & Public Policy; and Ambassador Eileen Donahoe, Executive Director of Stanford Universitys Global Digital Policy Incubator.

The panelists focused on multiple, interconnected areas of concern, including the quick development of AI technologies paired with the inapt legal safeguards of the past, the use of AI technologies to perpetuate human rights abuses, and the global nature of these issues. As Deibert put it, we all live in this new kind of global ether of data that is connected to but separate from us. Each panelist drew out unique angles of the potential harms of AI. Arewa highlighted the potential for abuse due to concentration of power in technology companies like Facebook and Google. Arun spoke about how datafication of people can lead to erasure of certain groups, giving the example of how datafying people as male or female erases those who do not identify along the gender binary. She also spoke about how, when dealing with cross border questions, international law offers us powerful norm setting, but largely does not create accountability for powerful technology companies.

Ambassador Donahoe narrowed in on AI technologies deployed by authoritarian regimes to shape citizen motivation and behavior, like Chinas social credit system. She noted that such technologies not only violate privacy and civil liberties, but they really undermine human agency and go to the heart of human dignity. Her biggest concern was the threat of digital authoritarianism as a governance model, especially as it spreads across the world and competes with democracy.

The panelists also provided guidance on how civil society and governments in democratic states can tackle the harmful effects of AI on multiple levels. In the international arena, Ambassador Donahoe argued that on the democratic side, we have basically failed to provide a compelling alternative to the digital authoritarian regime. She laid out a three-part geopolitical framework, which she subsequently elaborated on here. The three components were: develop a democratic governance model for digital society, invest in values-based international leadership, and win the technological innovation battle to keep power in democratic states. Deibert suggested building momentum in countering abusive despotism as a service practices by enhancing domestic oversight of surveillance companies and technologies, starting with agencies such as the U.S. National Security Agency (NSA) and Canadas Communications Security Establishment (CSE).

Arewa articulated a framework for regulating private actors based on both transparency and liability, but she also acknowledged the obstacle of regulatory capture, even in countries that respected the rule of law. On the transparency side, she gave the example of how Apples app tracking transparency led to many fewer users opting to be tracked. On the liability side, she pointed out that although Mark Zuckerberg relies on the liability limitations embedded in corporate law, that may not be appropriate for someone like him who serves as a companys controlling shareholder and CEO and also sits on the board.

Arun favored an approach that followed computer scientists research to understand how accountability can be hardwired into the building of these systems. In addition to anticipating harms, she advocated for monitoring each use of AI and creating mechanisms to walk back any harmful effects.

The panelists concluded by articulating hopes for a future where democratic values are infused into AI technology.

Julie Owono, the Executive Director of Internet Sans Frontires (Internet Without Borders), a member of the Facebook Oversight Board who is also affiliated with the Berkman Klein Center on Internet & Society, moderated the second panel. The panel featured Glenn Gerstell, a senior advisor on international security with the Center for Strategic & International Studies and the former general counsel for NSA; Aziz Z. Huq, the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School; and Riana Pfefferkorn, a Research Scholar at the Stanford Internet Observatory.

The conversation focused broadly on how the American constitutional system is challenged by many emergent problems with the use, development, and deployment of AI. As a starting point, Gerstell described AI tools as critical, pervasive, and problematic.

The panelists discussed how foreign adversaries like China have invested heavily in AI technologies to closely surveil their own populaces, gain a competitive edge in the global marketplace, and quickly sort through intelligence. In order to keep up with technological innovation and protect important national security interests, the United States must continue to develop and rely on AI. But the panelists emphasized that existing legal parameters do not sufficiently protect the privacy interests of everyday Americans or provide adequate protections and remedies for bad actions by governments or private companies.

As for the existing legal structure, the panelists focused on the limited protections offered by the Fourth and Fourteenth Amendments. They agreed that the Fourth Amendment provides a limited guardrail around the use of AI technologies by national security institutions and acknowledged that important questions still exist about whether AI can give rise to probable cause for a warrant. Gerstell pointed out that the most relevant case about the limits of government surveillance under the Fourth Amendment, Carpenter v. United States, provides little on-point guidance about the limits on data the government can collect.

Huq asserted that the Fourteenth Amendment was unable to address the most pressing concerns about government use of AI, such as disproportionately high false positives that negatively impact racial minorities and women. While the Equal Protection Clause prohibits governmental actions based on racially discriminatory intent, AI technologies, he argued, are rarely designed with the intent to discriminate; instead they incorporate biases through negligence or inattention.

Pfefferkorn further explained the numerous challenges posed by AI in a criminal justice context, where prosecutors may be unable to fully explain AI technologies used to collect or analyze evidence against defendants. This may be because the technology is opaque even to its inventors, or because contractual or national security obligations prevent the vendors from disclosing how the tools operate.

The panelists further pointed out that the threat posed by the use of AI comes not only from the government but from companies that are not bound by constitutional limitations. The power and value of AI technologies require gathering vast amounts of data about individuals, and this data often comes from these companies consumers. Accordingly, the panelists contended that a rights-focused framework is inadequate in the context of the threats posed by AI.

The panelists stressed the urgent need for legislation that more clearly delineates privacy rights for Americans, defines who can collect their data in public spaces and what that data can be used for, and bans some AI applications in particularly sensitive areas. Pfefferkorn pointed out that privacy legislation and doctrine from the 1960s and 1970s are far behind the current technological capabilities today, and that changing technology may correspond to a change in the definition of reasonable expectation of privacy. Huq advocated for a federal agency similar to the FDA or CDC with administrative authority to regulate the AI industry; however, he cautioned that political will for such an agency does not exist.

Ruth Okediji, Jeremiah Smith, Jr. Professor of Law at Harvard Law School, moderated the first panel, which featured Paul Michel, former Chief Judge of the Federal Circuit; Andrei Iancu, former Undersecretary of Commerce for Intellectual Property and former Director of the U.S. Patent and Trademark Office (USPTO); and David Jones, Executive Director of the High Tech Inventors Alliance.

Okediji introduced the topic of patent eligibility reform, and noted the National Security Commission on Artificial Intelligences final report was released in March 2021. That report includes a non-exhaustive list of 10 intellectual property-related considerations for the United States to assess as part of its national security strategy. One of those considerations is patent eligibility reform.

Judge Michel provided critical background on the issue. Patent eligibility is one of the threshold requirements for a patent to be granted or for an issued patent to be upheld when challenged in litigation. Under Section 101 of the Patent Act, four broad categories of inventions are patent-eligible: processes, machines, manufactures, and compositions of matter. According to Judge Michel, the Supreme Courts decisions in Mayo v. Prometheus (2012) and Alice Corp. v. CLS Bank International (2014) changed the patent eligibility landscape. These decisions expanded the scope of three judicial exceptions laws of nature, products or phenomena of nature, and abstract ideas to the four statutory patent-eligible categories mentioned above. Judge Michel opined that, prior to 2012, the U.S. patent eligibility regime was clear and consistent, and challenges to eligibility were rare, but eligibility challenges have become commonplace since Mayo and Alice. Meanwhile, 27 European countries and many Asian countries have significantly broadened their patent eligibility criteria, and hundreds of patents deemed ineligible in the United States have been deemed eligible elsewhere. Judge Michel concluded his remarks by calling for congressional reform of the U.S. patent eligibility regime. Reform efforts in 2019 stalled, but some discussions on Capitol Hill are currently underway again.

Iancu and Jones then engaged in a spirited debate. Iancu generally agreed with Judge Michel that the law of patent eligibility is in a state of unpredictability. He argued that the private sector will require greater clarity and certainty from the patent system in order to feel incentivized to innovate and invest in new, disruptive technologies, such as AI. AI-related inventions have often been rejected by the current patent regime, which frequently views them as mathematical formulas and abstract ideas. According to Iancu, the procedure for defining abstract ideas and determining whether a particular invention should be patent-eligible or not is still unclear. He highlighted new guidelines that the USPTO issued in 2019 to synthesize court decisions and provide an analytical framework for patent eligibility evaluation. But this alone isnt sufficient, he acknowledged, calling on Congress to reform the eligibility statute itself, which was written in 1790, when technologies such as blockchain, AI, and quantum computing could not have been fathomed.

Jones, on the other hand, argued that the current regime is working well and spurring innovation. He cited, for example, an empirical study that demonstrated that companies increased their research and development (R&D) investments after Alice because they could not simply rely on patents for technologies that were no longer eligible for protection. Limiting the scope of eligibility is helpful, he suggested; patent applicants should not be able to merely add the magic words, on a computer and claim an abstract idea to be patentable. Jones also argued that the post-Mayo/Alice regime has been fairly predictable, and that patent applicants have adapted very quickly to changes in the jurisprudence.

The panelists also discussed U.S. patent eligibility specifically in the context of national competitiveness. Jones explained that under the TRIPS agreement which has been described by the WTO as the most comprehensive multilateral agreement on intellectual property the signatory countries (which comprise most of the world) are obligated to treat foreign inventors and domestic inventors in the same manner. Thus, companies will not necessarily migrate their R&D efforts away from the United States (if they are seeking U.S. patents), Jones argued. On the other hand, Judge Michel warned that capital is fleeing the United States and fleeing hard technology for less risky investments. Iancu said that the United States needs to do more to incentivize startups, small-and-medium enterprises, and venture capital firms to invest in disruptive technologies here at home in order to match competition and innovation from China. He argued that providing adequate protections for patents is a way of creating those incentives. Jones countered that some studies show there has been an increase, not a decrease, in startups access to venture capital investment in the aftermath of Alice.

Okediji concluded the first panel by noting the importance of discussing these issues for national competitiveness and considerations of what can be done with patent levers.

Kristen Jakobsen Osenga, Austin E. Owen Research Scholar & Professor of Law at the University of Richmond School of Law, moderated the second panel. The panel featured Ryan Abbott, Professor of Law and Health Sciences, University of Surrey School of Law, and Adjunct Assistant Professor of Medicine at UCLAs David Geffen School of Medicine; Drew Hirshfield, who is currently performing the functions and duties of the Undersecretary of Commerce for Intellectual Property and Director of the USPTO; Hans Sauer, Deputy General Counsel and Vice President for IP at the Biotechnology Innovation Organization; and Laura Sheridan, Senior Patent Counsel and Head of Patent Policy at Google.

Osenga opened the discussion by noting that the panel would expand on the first panel and discuss some on-the-ground, practical implications of patent eligibility issues.

In their opening remarks, each panelist shared their initial observations on patent eligibility issues. Hirshfield called for greater predictability in patent eligibility laws, a more efficient process for evaluating patents, and a national strategy for protecting AI. Sheridan opined that the current patent eligibility regime is balanced and supportive of AI innovation. Any disruption of the balance would actually harm innovation and emerging technologies, not help it patenting in AI is actually flourishing, despite what the [National Security Commission on AI] report says, she argued. Sauer noted that countries around the world pay close attention to U.S. patent law, including any systematic divergences in outcomes in the United States versus elsewhere. We have lived with a disparate state of affairs, he said, referring to the biotech industrys challenges in obtaining patents in the United States compared to other countries. Abbott spoke to the differences between AIs disruptiveness and previous generations of technologies, particularly emphasizing AIs unique ability to generate its own art, music, and inventions. How the U.S. patent system treats AI-generated inventions (compared to traditional, human-invented IP), Abbot observed, will have important legal and economic ramifications in the years to come.

Commenting on the current landscape of patent applications, Hirshfield noted that 18 to 19 percent of applications to the USPTO now have some form of AI in them. Recognizing the trends, the USPTO is undertaking a range of initiatives related to AI, he said. He also spoke of the challenges emanating from a lack of clarity in patent eligibility jurisprudence and raised concerns about what that might mean for the AI innovations of tomorrow.

Sheridan added that Google has encouraged the USPTO to provide a robust technical training to its patent examiners, such that examiners can stay up-to-date on emerging technologies. She also mentioned that Googles decision on whether to keep an invention a trade secret is not based on patent eligibility law; rather, it is based on business and product-driven considerations, the nature of the technology, and whether Google is comfortable with disclosure.

Sauer suggested that U.S. patent law, as it stands, could potentially invite copyists given the lack of clear protections, and that certain biotech patents might be better protected in China. He also noted that the higher bar for patentability in the United States is leading the biotech industry particularly diagnostics companies to focus its investments more on technologies that can be kept confidential (i.e., trade secrets) or on tools used in the R&D process.

Abbott argued that the law, even as it stands today, should allow for patents to be awarded for AI-generated inventions. He acknowledged that there is currently a split on this question in jurisdictions across the globe. [T]he Patent Act was designed to encourage technological progress and generating socially valuable activities, and that this is exactly the sort of activity that patent law was meant to accommodate, and reading the law with that purpose in mind, there is no principled reason that an AI couldnt invent something and that someone couldnt get a patent on that sort of thing, he said.

In concluding, Sauer mused that we may someday witness a battle of AIs, with AI-generated IP being scrutinized by an AI-driven patent agency evaluation process.

Read the rest here:
Symposium Recap: Security, Privacy and Innovation Reshaping Law for the AI Era - Just Security

FORT WAYNE, Ind. (WANE) The City of Fort Wayne and the American Civil Liberties Union of Indiana have announced agreed principals to the original lawsuit stemming from the way police responded to local protests over Minneapolis police brutality of George Floyd in May of 2020.

The lawsuit between the two sides continues but the ACLU has agreed to withdraw a motion for a preliminary injunction. They could still end up in court over monetary damage claims if not resolved by a mutual agreement.

This was just sort of an understanding with them. So we worked with a neutral party, a mediator to come to an understanding about our policies, and that we have good policies, and that we will continue to respect peoples right to protest peacefully, said Fort Wayne City Attorney, Carol Helton.

Protesters believe the city was unreasonable in its use of tear gas without sufficient warning which prevented protesters from leaving and prevented peaceful protesters from gathering. The group of 13 individuals claimed their First and Fourth Amendment rights were violated and asked the court to prohibit the city from taking any future actions designed to stop protests, such as tear gas or rubber bullets. They also sought monetary damages. One plaintiff later withdrew from the lawsuit and the ACLU voluntarily dismissed Allen County Sheriff David Gladieux as a defendant.

I think the injunction was designed to get a formal order setting out certain standards, said Ken Falk, legal director for the ACLU of Indiana. I think these principles are not a court order. But they are a recognition by the city of how theyre going to view the constitutional rights of protesters in the future.

The city denied any wrongdoing and said the use of force by Fort Wayne Police officers was reasonable.

While the two parties continue to have disagreements about certain legal standards that apply to actions made by the City of Fort Wayne, they agree this new statement does not mean the city, police or individual officers admit to any wrongdoing.

Theres been no admission from the city that they did anything wrong, nor did we want admission at this point, Falk said. What we want at this point is to set it in place a framework so this does not happen again and as I said, I applaud the city in recognizing that we can go beyond finger-pointing and try and erect a structure that will prevent this from happening again.

Thursdays joint release also included eight points of agreement derived in part by a neutral mediator:

Going forward, there were learning things that we took away that we could do better that are consistent with our current policies but theyre within our consistent policy, said Sgt. Jeremy Webb, a spokesperson for the FWPD. Things are constantly evolving, our policies change and adapt as tactics and equipment change and adapt, and we try to stay on the cutting edge of that.

Since the protests, the department has made the decision to invest in equipment to increase communication during tense situations. They plan on investing in loudspeakers as well as use drones to make announcements. However, Webb said they stand by how they handled the situation.

Everything that we did, we currently do, was found to be pretty, pretty effective and within state and federal law, Webb said. If they dont like our policies, they need to look at the law of the land. Thats what dictates our policies. Our policies dont dictate law.

As of now, the lawsuit will continue in the Hoosier courts, but the ACLU sees the injunction withdrawal as progress.

I think the plaintiffs are very happy to have this resolved with taking some of the law and negotiation to get this far, said Falk. We may disagree as to where the fault lies, but anything that everyone can do to make sure this doesnt happen, again, is a real plus.

CORRECTION: An earlier version reported this agreement was a settlement to the lawsuit. The two sides have only announced agreed principles and the withdrawal of a preliminary injunction by the ACLU.

Read more:
ACLU and Fort Wayne announce agreed principles in lawsuit on George Floyd protests - WANE

ARGUMENT ANALYSIS ByHoward M. Wasserman on Oct 13, 2021 at 5:58 pm

Mythological creatures and French literary heroes appeared during argument in Thompson v. Clark Tuesday, as the justices sought to define favorable termination in certain Fourth Amendment claims under 42 U.S.C. 1983.

Under Section 1983, an individual who is accused of a crime and believes his constitutional rights were violated can sue government actors for civil damages. But the individual must show that the criminal proceeding was terminated in her favor. Thompson involves a Fourth Amendment unreasonable-seizure-through-legal-process claim, and the question is whether the plaintiff must show that the criminal proceeding ended in a way that affirmatively indicates innocence or only that it formally ended in a manner not inconsistent with innocence.

Larry Thompson was charged with resisting arrest and obstructing a government investigation when he attempted to stop police from entering his apartment in response to a false call about child abuse. The prosecution dismissed the charges. Thompsons claim before the Supreme Court is against one responding officer, Pagiel Clark, who signed a criminal complaint during Thompsons initial post-arrest detention.

Amir Ali argued for Thompson. He defined favorable termination as a prosecution that ends without a conviction, including by dismissal of the charges. The favorable-termination rule seeks to avoid parallel civil and criminal proceedings, to avoid inconsistent judgments, and to prevent individuals from using civil litigation to collaterally attack convictions. None of those interests are threatened when a civil case is brought following dismissal of criminal charges, Ali argued.

The justices pushed Ali to define the nature of Thompsons civil claim, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh pushing on the elements of that claim, the timing of the seizure, and whether the court should decide these antecedent issues rather than the question presented. Ali insisted that Thompson was pursuing the claim for unreasonable seizure through legal process described in Manuel v. City of Joliet. He identified two seizures: the almost 40 hours Thompson was held in custody, during which period Clark filed the allegedly false criminal complaint, and the period between his release on his own recognizance and the dismissal of the charges. Ali resisted multiple suggestions that Thompson was bringing a stand-alone malicious-prosecution claim under the Fourth Amendment or that favorable termination attached to the Fourth Amendment as opposed to Section 1983. He also urged the court to avoid numerous issues about the scope and elements of the claim because Clark had not raised them below.

Justice Stephen Breyer introduced Jean Valjean, the protagonist sent to prison for stealing a loaf of bread to feed his family in Victor Hugos Les Miserables. Breyer wondered whether Valjean could bring a claim if the prosecution had dismissed the theft charges as an act of mercy. Breyer and Chief Justice John Roberts questioned whether a dismissal of criminal proceedings should be a favorable termination, given the many reasons that prosecutors might dismiss charges as part of a cooperation agreement, as an act of mercy, or out of prosecutorial caseload concerns. Ali responded that the reason for dismissal affects the success of the Fourth Amendment claim, including whether the plaintiff can prove lack of probable cause and overcome qualified immunity. Ali acknowledged in response to later questions from Alito and Kavanaugh that causation may be difficult to prove in this case, as Thompson must show that he would have been released from custody sooner but for the allegedly false criminal complaint. Those elements lack of probable cause, qualified immunity, and lack of causation weed out weak claims. Favorable termination serves a different purpose preserving the finality of the criminal judgment.

Jonathan Ellis, assistant to the solicitor general, argued for the United States in support of Thompson. The U.S. agreed with Thompson about the claim but identified one actionable seizure the period in custody caused by the unfounded and unwarranted criminal complaint while rejecting the period during the pendency of ordinary criminal charges as an actionable seizure. The U.S. also agreed about the purposes and scope of favorable termination and that it did not require indications of innocence.

Thomas, Gorsuch, and Justice Elena Kagan returned Ellis to the nature of the right, the elements of the claim, and whether the court could assume antecedent issues to focus on the later favorable-termination issue. Ellis argued that Clark had waived many of these issues, but the courts of appeals could benefit from resolution of others. And, he emphasized, favorable termination is easily satisfied here.

Alito then released the centaur. He compared ignoring whether the Fourth Amendment claim exists to asking a medical expert whether a centaur, the mythological creature with the upper body of a human and lower body and legs of a horse, would contract lung cancer from smoking five packs of cigarettes a day; the court cannot define or analyze the claim if the claim is fanciful. Ellis argued that Thompson brought the claim recognized in Manuel and that Fourth Amendment malicious prosecution was not the focus of this case. Favorable termination serves important values independent of other elements of the tort and thus should be retained.

Clarks attorney, John Moore, argued that the U.S. Court of Appeals for the 2nd Circuit got it right in defining favorable termination to mean criminal charges terminated in favor of the criminal defendant in a way reflecting on the merits of those charges. The rule, he said, has strong support in common law and exists for good reason. But he urged the court to resolve the case on the foundational issue that Thompson brought a claim for malicious prosecution that is not cognizable under the Fourth Amendment.

Breyer and Kavanaugh pushed Moore on how this definition of favorable termination fits with the criminal-justice process and how plaintiffs can meet that requirement. Kavanaugh called it an upside down rule those falsely accused whose claims are dismissed early cannot sue unless they can dig into the prosecutors mindset, while those who go to trial can sue. Breyer suggested that actual practice runs contrary to Clarks position, because normal proceedings do not affirmatively indicate innocence; prosecutors dismiss cases, and the accused does not object to dismissal. Moore cited statistics from an NAACP amicus brief showing that 85% to 90% of dismissals are for reasons wholly independent of the merits. But because the prosecutor decides whether to dismiss criminal charges and the police officer is the defendant in the Section 1983 action, an indication of innocence connects the elements to the officers conduct.

Moore had lengthy exchanges with Roberts, Justice Sonia Sotomayor, and Kagan about whether the court can and should resolve the downstream issues of favorable termination without resolving the upstream issues of identifying the precise claim, the constitutional source for the claim, and the elements of the claim. Moore argued that the court cannot define the scope and meaning of favorable termination without determining the existence and elements of the claim, which in turn depend on the constitutional source of the right. A Fourth Amendment claim challenging an unreasonable seizure does not impugn convictions or criminal proceedings, so the reasons for a favorable-termination requirement are absent. Those reasons were present in the courts prior favorable-termination cases, which considered due process claims. Moore conceded in response to a question from Justice Amy Coney Barrett that his arguments are stronger on the upstream issues than on the downstream issue in the question presented.

Ali argued that the court could resolve the case in three sentences; two, if you like semi-colons.

He urged the court to write that the 2nd Circuit decided that the favorable-termination requirement for some Section 1983 claims requires indications of innocence, but it does not; a criminal proceeding terminates in favor of the accused when it ends without a conviction.

Read the original:
Centaurs, Jean Valjean, and a proposed three-sentence ruling on the meaning of favorable termination - SCOTUSblog

Fourth Amendment to Loan and Security Agreement

This Fourth Amendment to Loan and Security Agreement (the "Amendment") is made and entered into by and between SUMMIT FINANCIAL RESOURCES, LLC, a Delaware limited liability company and the successor in interest to SUMMIT FINANCIAL RESOURCES, L.P., a Hawaii limited partnership ("Lender"), and ALLIED HEALTHCARE PRODUCTS, INC., a Delaware corporation ("Borrower").

Recitals

A. Lender's predecessor in interest and Borrower have entered into a Loan and Security Agreement dated February 27, 2017 (together with any and all exhibits, schedules, addenda or riders hereto, as amended, modified, supplemented, substituted, extended or renewed from time to time, the "Loan and Security Agreement").

B. Lender and Borrower have agreed to further amend the Loan and Security Agreement to increase the dollar sublimit amount with respect to Inventory Advances.

Amendment

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Borrower agree as follows:

1. Definitions. Except as otherwise expressly provided herein, terms assigned defined meanings in the Loan and Security Agreement shall have the same defined meanings in this Amendment. The term "Amendment," as defined in the preamble to this Amendment, is incorporated by reference into the Loan and Security Agreement

2. Modification and Amendment of Loan and Security Agreement. Effective as of the date of this Amendment, the Loan and Security Agreement is amended and modified as follows:

The first paragraph of subsection (b) (Inventory Advances) of Section 2.6 (Inventory Advances) of the Loan and Security Agreement is hereby amended to increase the dollar sublimit as follows:

"b. Inventory Advances. Notwithstanding anything to the contrary in the Loan Documents, no Inventory Advances shall be made on the Loan if, after making the requested Inventory Advance, the total, aggregate principal amount of all Inventory Advances will exceed the lowest of: (i) the total cost of Eligible Inventory (as determined by Lender in its sole discretion) multiplied by the Inventory Advance Rate; (ii) one hundred percent (100%) of the amount of outstanding Account Advances; (iii) Two Million Dollars ($2,000,000); and (iv) together with the aggregate amount of all outstanding Account Advances, the Maximum Loan Amount."

In consideration of Lender's agreement to increase the dollar sublimit on Inventory Advances, Borrower agrees to pay to the Lender a modification fee of Five Thousand Dollars ($5,000) (the "Modification Fee") on the date hereof. The Modification Fee shall include the legal fees of Lender's in-house counsel to prepare this Amendment.

3. Representations and Warranties. Borrower affirms and again makes the representations and warranties set forth in Section 6 (Representations and Warranties) of the Loan and Security Agreement as of the date of this Amendment.

4. Payment of Expenses and Attorneys' Fees. Borrower shall pay all reasonable expenses of Lender related to the negotiation, drafting of documents, and documentation of this Amendment, including, without limitation, the Modification Fee (which shall include all reasonable attorneys' fees and legal expenses, including allocated fees of in-house counsel, in connection with the drafting and revising this Amendment). Lender is authorized and directed to disburse a sufficient amount of funds under the Loan to pay these expenses in full.

Allied Healthcare - Fourth Amendment to Loan and Security Agreement

5. Loan Documents Remain in Full Force and Effect. Except as expressly amended or modified by this Amendment, the Loan Documents remain in full force and effect. Borrower confirms that the security interests granted by the Loan Documents also secure the Loan and Security Agreement as amended by this Amendment.

6. Borrower Covenants. Borrower covenants with Lender that Borrower shall execute, deliver, and provide to Lender such additional agreements, documents, and instruments as reasonably required by Lender to effectuate the intent of this Amendment.

7. Release. Borrower and its successors and assigns hereby fully, finally, and forever release and discharge Lender and its successors, assigns, directors, officers, employees, agents, and representatives from any and all actions, causes of action, claims, debts, demands, liabilities, obligations, and suits of whatever kind or nature, in law or in equity, that Borrower has or in the future may have, whether known or unknown, in respect of the Loan Documents, the Loan, or the actions or omissions of Lender in respect to the Loan Documents or the Loan and arising from events occurring prior to the date hereof.

8. Authorization. Borrower represents and warrants that the execution, delivery, and performance by Borrower of this Amendment, and all agreements, documents, obligations, and transactions herein contemplated, have been duly authorized by all necessary corporate action on the part of Borrower and are not inconsistent with Borrower's organizational documents or any resolution of the board of directors, members, managers, or other governing body of Borrower and do not and will not contravene any provision of, or constitute a default under, any indenture, mortgage, contract, or other instrument to which Borrower is a party or by which it is bound, and that upon execution and delivery hereof and thereof, this Amendment will constitute legal, valid, and binding agreements and obligations of Borrower, enforceable in accordance with its respective terms.

9. Integrated Agreement; Amendment. This Amendment, together with the Loan and Security Agreement and the other Loan Documents, constitute the entire agreement and understanding between the parties hereto and supersede all other prior and contemporaneous agreements. This Amendment and the Loan and Security Agreement shall be read and interpreted together as one agreement and shall be governed by and construed in accordance with the laws of the State of Utah without regard to its conflict of laws principles. This Amendment shall be deemed to have been executed by the parties hereto in the State of Utah and may not be altered or amended except by written agreement signed by Lender and Borrower. All other prior and contemporaneous agreements, arrangements, and understandings between the parties hereto as to the subject matter hereof are, except as otherwise expressly provided herein, rescinded.

Borrower acknowledges and agrees that this Amendment is a final expression of the agreement between Lender and Borrower and this Amendment may not be contradicted by evidence of any alleged oral agreement.

[Signatures on Next Page]

Allied Healthcare - Fourth Amendment to Loan and Security Agreement

Dated: October 7, 2021.

Allied Healthcare - Fourth Amendment to Loan and Security Agreement

Disclaimer

Allied Healthcare Products Inc. published this content on 13 October 2021 and is solely responsible for the information contained therein. Distributed by Public, unedited and unaltered, on 13 October 2021 21:21:19 UTC.

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Allied Healthcare Products : Fourth Amendment to Loan and Security Agreement - Form 8-K - Marketscreener.com

Congressional authority to request user data from communications service providers is in the spotlight once again thanks to recent requests made by the Houses select committee on the Jan. 6 attack on the Capitol for providers to preserve the data of individuals believed to be connected to the attack. Requests for user dataranging from basic subscriber information and metadata to location information and the contents of communicationshave become standard congressional practice in recent years, as Congress has begun to use its Article I authorities to engage in what I have called congressional surveillance. These requests raise serious questions about the legal boundaries and normative implications of this congressional authority.

Congress has long enjoyed the authority to compel evidence from third parties using its Article I subpoena power. The Supreme Court reaffirmed that power in its Mazars decision last year. But only recently have congressional committees leveraged their subpoena authority to collect electronic evidence in ways that implicate the surveillance power of the digital world.

At first blush, it would seem that surveillance by government authorities has been studied and discussed at length. In reality, however, only executive surveillance authority has received any significant attention. Congressional surveillancethat is, Congresss ability to use its broad subpoena authority as a form of electronic surveillanceremains largely unexplored, and the corresponding limits on that authority are not well understood.

This is unfortunate. Congressional surveillance exhibits hybrid features of both government surveillance and congressional political power, and as a result, challenges traditional thinking about government surveillance. This duality has several important implications, in terms of both what the limits on congressional surveillance are and what they should be.

The Limits on Congressional Surveillance

As I have argued elsewhere, congressional surveillance derives from Congresss Article I subpoena authority, and it is therefore shaped by the interaction of three kinds of limits on congressional power: external limits, meaning sources of law that constrain otherwise valid exercises of congressional surveillance; internal limits, meaning the inherent boundaries of Congresss surveillance authority; and process limits, meaning the procedural and political constraints on how Congress may choose to exercise its surveillance authority. Each of these limits varies from the limits on other, more common forms of government surveillance, and as a whole, they reflect an uneasy convergence of individual privacy with the separation of powers.

External Limits

In the traditional world of government surveillance, compulsory demands for user data tend to adhere to certain constitutional and statutory rules: The government must get a warrant for content and other data with heightened privacy interests and a court order or subpoena for anything less. But the sources of these external limitsmeaning legislative and constitutional constraintson government surveillance apply to Congress in profoundly different ways than they do to the executive. As a result, congressional surveillance is treated in a starkly different manner under key provisions of the SCA; it is also not clear that Congress is subject to the Fourth Amendments warrant requirement, at least not in the categorical sense.

The Stored Communications Act

At a very general level, the SCA (a) prohibits voluntary disclosures of user data to third parties and (b) provides a mechanism through which a governmental entity can compel the production of that data, notwithstanding these prohibitions. It is well established that the SCA applies to requests from the executive branch. As to Congress, however, it is less clear: Is Congresss subpoena power limited by the SCAs prohibitions?

As to some categories of data, this should be an easy question. Specifically, the SCA provides that non-content informationthat is, data that does not include the substance, purport, or meaning of a communication, such as basic subscriber information or other metadata, like session logsmay not be disclosed to any governmental entity. A governmental entity is defined as any department or agency of the United States or political subdivision thereof. But courts have held that this definition excludes Congress, including in the similarly worded Right to Financial Privacy Act, meaning that the SCA does not prohibit providers from voluntarily disclosing non-content information to Congress. Likewise, nothing in the SCA prohibits providers from responding to a congressional subpoena for that information.

Content datasuch as the text of an email or a direct messagepresents a thornier question. Some observers take the perspective that the prohibition on disclosure of content information is absolute, because the statute precludes disclosure to any person or entity. Is Congress an entity? Maybe so. But it may not be so straightforward.

This is because Congress treats itself differently when it legislates and avoids categorical limits on its own authority. It very rarely curtails its Article 1 subpoena power because that authority is so critical to its constitutional responsibilities. The Supreme Court recognized these principles as early as 1927 in McGrain v. Daugherty, saying that Congress cannot legislate wisely or effectively without access to relevant information held by others. The court held that some means of compulsion are essential because mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete. This sensibility has persisted over time: For example, the U.S. Court of Appeals for the D.C. Circuit has repeatedly held that the Federal Trade Commission could disclose confidential information in response to Congresss investigative demands, including through subpoenas, even though it was statutorily prohibited from disclosing that same information to the public.

So it cannot simply be assumed that congressional surveillance fares the same under the traditional external statutory limits that apply to government surveillance when it involves the executive branch. Because Congresss authorities come from a different source, the possibility that they may be constrained in different ways must be taken seriously.

The Fourth Amendment

Several cases in recent years have brought seeming clarity to whether the Fourth Amendments warrant requirement applies to the governments constructive searches of digital information. In Carpenter v. United States, the Supreme Court confirmed that compelled production of some provider-held location information may constitute a search for the purposes of the Fourth Amendment. And it held that law enforcement officers must obtain a warrant to compel the production of that data. In Warshak v. United States, the U.S. Court of Appeals for the Sixth Circuit held similarly as to the contents of emails.

But both cases (like much of the Fourth Amendment case law on digital searches) were limited to law enforcement requests, and the implications for congressional subpoenas are less clear. Traditionally, the Supreme Court has held that the Fourth Amendment requires that congressional subpoenas meet only a reasonableness standard. Under this approach, there is no categorical warrant requirement for Congress. That is, law enforcement must generally have a probable cause warrant, issued by a magistrate judge, before engaging in a searchconstructive or otherwiseto satisfy the Fourth Amendment. But a congressional subpoena need only be relevant to an authorized investigation and reasonably specify the materials to be produced; no magistrate judge, no probable cause, no suppression remedy.

It is certainly possible that a constructive search of digital information would merit heightened judicial scrutiny because of increased privacy interests. But this would require the recipient (or subject) of a subpoena to challenge the subpoena in courta possibility I discuss belowbecause there is no legal requirement for a congressional committee to seek authorization from a judge in advance.

It is also possible that, as a practical matter, the recipient of a congressional subpoena would negotiate restrictions on, say, segregating nonpertinent information or how long Congress can retain information in its records. But all these adjustmentsheightened judicial scrutiny in the event of a court challenge, or negotiated protocolswould supplement, not replace, the current regime, which is a permissive and highly context-dependent inquiry, and not an area of hard and fast rules.

Internal Limits

In the absence of external limits, Congress is free to exercise its surveillance authority as far as its internal limitsthat is, the inherent boundaries of congressional powerpermit. And there are few internal limits here. Based on McGrains rule that Congresss investigative authority is co-extensive with its expressed Article I powers, Congresss surveillance capacity extends in theory as far as its authority to legislate, conduct oversight, appropriate or impeach.

Indeed, courts have historically granted significant deference to Congresss legislative and investigative decisions. For example, the Supreme Court has generally avoided a requirement that Congressat the outset of an investigationidentify a legislative topic of interest, or even indicate that it intends to legislate. Instead, the court has tended to indulge a presumption that Congresss investigative demands are in pursuit of a legitimate purpose. Article Is Speech or Debate Clausewhich has been held to provide absolute immunity to members of Congress and their staff for legislative actsserves as a further cloak for Congresss investigative decisions, limiting a courts ability to peek behind the curtain of Congresss stated purpose. As a result, courts may not examine Congresss underlying motives.

There are also few limits on Congresss ability to disclose the information it obtains through its investigations. In fact, certain aspects of Congresss work necessitate the freedom to share information with the public. The informing function plays a valuable role in Congresss core legislative and oversight duties, among others. To fulfill those responsibilities, committees and members of Congress regularly publish investigative reports and legislative findings, issue press releases, engage with the media, and communicate with constituents. And under the Speech or Debate Clause, a court may not block disclosure to the public of information that is part of the legislative process.

Process Limits

Despite these surprisingly weak constraints on Congresss ability to direct its investigative powers toward surveillance, Congress has not (as an empirical matter) exercised its surveillance tools until recently. And when it has, Congress has generally (though perhaps not always) restrained the number and scope of its requests. This self-restraint arises from procedural rules that govern the issuance and enforcement of congressional subpoenas and political checks, or process limits. These process limits can offer meaningful, even if imperfect, constraints on congressional surveillance, compensating for the otherwise weak internal limits and supplementing the external limits discussed above.

Process limits on congressional surveillance derive in large part from the subpoena enforcement mechanism. In the world of government surveillance, voluntary disclosures are the exception rather than the rule, leading many providers to insist on a subpoena even if they intend to comply with a committees demand. But issuing and enforcing subpoenas against service providers creates significant transaction costs for committees, especially when requests push the envelope. These costs can arise in several ways.

First, there are procedural checks within Congress. Perhaps most importantly, there are significant transaction costs to pursuing a subpoena enforcement action, even before it ever reaches court. To enforce a subpoena in the Senate, a committee must approve and send a resolution to the floor, at which point it must secure a majority vote of the full chamber to authorize civil enforcement. The proof is in the pudding: Since 1979, the Senate has authorized civil enforcement only six times. In the House, the full chamber can authorize its committees to pursue enforcement actions even in the absence of an explicit enforcement statute, but until 2008, there had been some uncertainty as to whether federal courts would have jurisdiction to hear such a case.

Second, there are political checks on the periphery of the enforcement process. Views on government access to private data tend not to follow strict partisan lines, meaning that party control may not translate to party support. In addition, each party risks a tit-for-tat escalation when the chamber changes hands. Further, even once Congress authorizes a suit, it can still take months or years to resolve a case once it arrives in court, not to mention an extensive appeals process if the case has precedential value. Given time-sensitive political pressures and the real possibility that a chamber will change hands every two years, a committee may not be willing to tolerate this kind of delay. This suggests that procedural checks on congressional surveillance, especially with enforcement, are a crucial supplement to the traditional external limits.

Third, some process limits exist beyond the chamber and enforcement process. Congressional surveillance involves seeking information from a legally sophisticated entity that can create significant checks on government demands for data through a variety of actions, including public transparency, litigation, lobbying and technological mechanisms such as encryption. In addition, congressional subpoenas are not issued in secret, and Congress does not have the legal authority to gag providers from disclosing such requests, no matter how sensitive they may appear. By comparison, such nondisclosure orders are standard in the law enforcement context. As a result, providers are able to disclose a potentially overbroad or abusive request to the public, as well as the subject of the request. In theory, then, public opinion may have an effect on enforcement and create push back on overbroad or abusive demands.

The Duality of Congressional Surveillance

Congressional surveillance stands at the intersection of two areas of law: government surveillance and separation of powers. As to the first, congressional surveillance raises issues relating to how individual privacy interests should be balanced against Congresss interest in accessing information. As it stands, congressional surveillance is constrained by a balance of limits that differs from other areas of government surveillance, with a less prominent role played by the privacy-protecting SCA and Fourth Amendment and a more prominent role played by internal politics and procedure. Some observers might see this as a reason to impose new constraints.

Yet as to the separation of powers, congressional access to information depends instead on the relative interests and rights of two co-equal branches. From this second perspective, congressional surveillance represents an important way for Congress to compete for authority within the separation of powers, meaning that the usual approach under external limits shouldnt apply. That is, congressional surveillance can serve as a potent component of checks and balances, necessary to counter executive authority and maintain Congresss position as a co-equal branch. Some might see this as a reason to preserve congressional authority, not constrain it.

The framing matters, as illustrated by the Supreme Courts most recent and most robust evaluation of these issues in Mazars. There, confronted with congressional subpoenas to financial institutions for the presidents financial information, the court embraced a separation of powers model. That is, it weighed the committees interest in third-party data not against an individual privacy interest but, rather, against the competing interests of the executive. The Supreme Court cautioned that, absent new limits, Congress could declare open season on the Presidents information held by schools, archives, internet service providers, email clients, and financial institutions. The court then imposed a new balancing testnot one based on privacy considerations but, rather, one that reflects the weighty concerns regarding the separation of powers when congressional surveillance targets the president.

As a consequence, the Supreme Court rendered a decision that is ultimately indifferent to privacy considerations. The reasoning in Mazars protects only the presidents information. And the decision does not distinguish at all between differing levels of privacy interests in different categories of information.

How then to approach the limits on congressional surveillance? There are, to be sure, different ways (and institutions) to balance the many competing interests, from both privacy and separation of powers perspectives. Congress could regulate itself on these matters and take steps to mitigate potential abuses of its own surveillance authority, creating new rules at the chamber or committee level or perhaps passing clarifying legislation. Or, if providers choose to dispute Congresss authority in this area, the fate and scope of congressional authority could be decided (and potentially limited) by the judiciary. There could be a renewed emphasis on external limits with a more significant role for courts, or a refining of the process limits within each chamber or committee. Either way, this is likely just the start of a broader conversation about an important issue, with implications for both government surveillance and the separation of powers.

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What Are the Limits on Congressional Surveillance? - Lawfare