Accident SafetyBallisticsFilm IndustryFirearmsWorkplace Safety

Firearm Safety: Crime Lab Ballistics Expert Weighs In On Rust Film Prop Mishap

on January 12, 2022

On October 21st, 2021, filming his latest movie, Rust, Alec Baldwin fired a prop gun containing live ammunition, unbeknownst to him, which ended Director of Photography Halyna Hutchins’s life and injured Director Joel Souza. A Santa Fe Sheriff’s Office spokesperson claimed a search warrant was issued, and the investigation is ongoing. On the day of the event, Balwin published a statement expressing his grief and disbelief over the situation. Although fully cooperating with the police, on December 2nd, 2021, he revealed in an interview with ABC News’ George Stephanopoulos, “Someone is responsible for what happened, and I can’t say who that is, but I know it’s not me.” Considering how identical incidents have occurred in the past, like the passing of Bruce Lee’s son, Brandon Lee, this devastating accident raises questions about firearm safety protocols within the entertainment industry and perhaps more suitable working conditions for members of the International Alliance of Theatrical Stage Employees (IATSE). This blog post will address these issues with insight from Expert.com Member and Crime Lab Ballistics Expert, Mr. Francis T. “Jay” Jarvis.

The sequence of events leading up to the accidental death of Halyna Hutchins involved three people. According to Fox News, “Armorer Hannah Gutierrez Reed placed the prop gun outside of the church set location on a cart with other prop guns due to the coronavirus restrictions. The next person to handle it was assistant Director Dave Halls, who handed it off to Baldwin, announcing that it was a “cold gun,” a term used to indicate to those on-set that the firearm was not loaded and therefore safe to handle.” The article also highlighted how Director Joel Souza was confused about the presence of ammunition on set in the first place. According to Mr. Jarvis, “An armorer or a movie production would be responsible to make sure no live ammunition is permitted on-set, only blanks. It should be very easy to tell the difference between the two types of ammunition.” Unfortunately, there were existing gun safety problems for the Rust crew even before the fatal tragedy.

(Photo Credit: ABC News)

According to the LA Times, safety regulations were not thoroughly enforced on set. Before the significant incident resulting in Hutchins’ death, Baldwin’s stunt-double fired two rounds by mistake after being notified the gun lacked bullets. A witness told the Times, “There should have been an investigation into what happened. There were no safety meetings. There was no assurance that it wouldn’t happen again. All they wanted to do was rush, rush, rush.” Another event that occurred prior to Baldwin’s misfire involved a cinematographer and various camera crew members protesting against their working conditions by walking off the set. “The camera operators and their assistants were frustrated by the conditions surrounding the low-budget film, including complaints about long hours, long commutes, and waiting for their paychecks….,” a statement from the Times. Rust Movie Productions reassured the public that safety is the utmost priority. Although they were unaware of formal complaints, internal investigations with the Santa Fe Police Department have already begun, according to upper management.

On December 16th, 2021, Detective Alexandria Hancock obtained a warrant to search Baldwin’s cellphone. Three weeks have passed, and Baldwin has yet to comply, inconsistent with his original promise to cooperate with Santa Fe Police. According to New York Times, he filmed a video of himself and posted it on Instagram on January 8th, 2022, stating, “Someone from another state can’t come to you and say, ‘Give me your phone. They can’t just go through your phone and take, you know, your photos or your love letters to your wife or what have you.’” His legal team speculates two reasons for Baldwin’s lack of cooperation. He may be worried about possible incriminating evidence, or he wants his conversations to stay private (New York Post). The Santa Fe Police Department is now working with the Suffolk County Sheriff’s Office in New York to retrieve Baldwin’s cellphone from his residence.

Mr. Jarvis explains the root of this preventable tragedy stems from inadequate safety measures for crew members and cast. He adds, “It sounds like a training issue, not a budget issue. There is no cost involved in following the number one safety rule as it applies to firearms. No live ammunition on the set. Teach people the difference between live ammunition and blanks. Teach people how to check a firearm to see if it is loaded.” As the investigation continues, only time will tell who is responsible for this tragedy. What is certain is the production company must ensure suitable working conditions for all cast and crew members, including the armorer, whose job is to manage all gun props diligently. However, the number one safety rule Jarvis references, the measure that would have prevented protests, injuries, and the loss of an innocent person’s life, is to “NEVER point a gun at anyone unless you intend to shoot them. Even if the gun is safe, you should NEVER do this.”

Emergency ResponseExpert WitnessSecurity

Astroworld Festival: Major Event Security & Law Enforcement Expert Provides Insights

on November 16, 2021

How did the Astroworld Festival go from lively and jubilant to mass casualty event? We reached out to a security expert witness to help us understand security issues for concerts and other major events.

Last week, I began preparing to write this post involving nine individuals who attended the Astroworld Festival and lost their lives in the crush of a surging wave of festival-goers. It is not an easy topic to write about, as I want to be cognizant of the loss of life and resulting trauma experienced by family and friends. Sadly, this morning, we learned of a tenth death related to the disaster. CNN reports that a 9 year old boy, who suffered injuries at the festival, passed away in the hospital yesterday.

In writing about a tragedy of this magnitude, I have to clarify that I only do so with publicly available information that has been reported in the news. The facts may change as more information becomes available. To that end, those to whom I conduct a question and answer style blog post are also limited to publicly reported information.

Astroworld Festival Background:

According to Wikipedia, the Astroworld Festival “is an annual music festival run by American rapper Travis Scott, held in Houston, Texas, at NRG Park, near the former site of Six Flags AstroWorld. The festival was first held in November 2018.”

The festival this year was held on Friday, November 5th, 2021, at NRG Park in Houston, Texas. It has been alleged that approximately 50,000 people attended the event on November 5th, though there may have been more as the venue, NRG Park, is said to be able to house up to 200,000 attendees according to Vulture, who has done a really good job of explaining how the event unfolded.

There were indications the crowd was going to be problematic from early in the day. One ABC reporter, Mycah Hatfield, said that there was a stampede of people who burst through the gates and trampled the VIP entrance at 2:00pm.

Once Travis Scott took the stage, as Vulture describes, “all hell broke loose.” One attendee was quoted saying, “All of what is to be 50,000 people ran to the front, compressing everyone together with the little air available.” This is what I understand to be a crowd surge.

The crowd surge, compression of individuals, and trampling, all appear to have led to the result of dozens injured and now ten people deceased. As this is going to result in significant litigation, with some lawsuits already filed, I decided to get some insights on how a concert could go awry by reach out to one of our law enforcement and security experts with experience and knowledge in major event security.

Law Enforcement, Security & Premises Liability Expert Witness:

Joseph “Paul” Manley, WVTS, CCIS, Principal at Risk Mitigation Technologies, LLC, is Board Certified Workplace Violence & Threat Specialist (WVTS), a Certified Crisis Intervention Specialist (CCIS), and a Board Certified Homeland Protection Professional (CHPP).

Prior to forming Risk Mitigation Technologies, LLC, Mr. Manley served a distinguished career in law enforcement and public safety. He has over 30 years of experience in Security Management and Law Enforcement and Security consulting, including physical security, security operations, regulatory compliance, and security training. He is currently a retired Lieutenant and Executive Officer for a Massachusetts Police Department. You can learn more about his practice at: riskmitigationtechnologiesllc.com.

I asked some questions and Paul Manley provided some excellent and thorough answers to these questions. Please see our conversation below.

Nick Rishwain: We understand, from reporting, that the Astroworld investigation is highly active. How does law enforcement investigate a mass casualty event? Can you tell us a little about the processes involved in such an investigation?

Paul Manley: In an initial response to a mass casualty incident (MCI) where no criminal involvement is present, the Fire Department will have the initial Incident Command responsibility. The local fire departments are very proficient in the handling of Mass Casualty Incidents. Most fire departments hold continuous MCI drills and have extensive equipment and supplies to manage mass casualties.

There are four specific things that Law Enforcement can do to assist the fire department in their management of an MCI. These jobs in the MCI Protocol for Law Enforcement are:

  1. Crowd control
  2. Traffic control
  3. Contact coroner
  4. Criminal investigation

The initial critical decisions for the first responding law enforcement personnel at an MCI will be is this a criminal event? And are suspects still on scene?

Regardless of your first impressions of how the MCI was caused, officers should immediately begin a basic preliminary investigation during the first few minutes of the law-enforcement response.

Also, a law enforcement officer will immediately go to the Fire Command Post and accept law enforcement command duties in the Unified Command structure until relieved. This will ensure that the law enforcement Incident Commander is completely up to speed on the event if we later find out a criminal act has occurred.

The reality is mass casualty events pose unique challenges to law enforcement agencies such as securing the scene, investigating the crime, working with the media on a local and or national level, helping the victims and their families, responding to elected officials, securing critical infrastructure, and providing support to both their officers and to community members as they address the aftermath of a tragic event.

Nick Rishwain: On the security side, there appears to be an issue of the crowd surging towards the stage and trampling attendees. Is this a common concern for security at an event where there are tens of thousands of people?

Paul Manley: Crowd surges are common at large events, such as concerts or festivals. However, deadly crowd surges are not common.

Nick Rishwain: How does major event security prepare for and prevent crowd surges?

Paul Manley: Event security starts with a comprehensive threat assessment, analyzing the overall threat environments associated with the event, such as its host(s), the venue/environment, known or expected attendees, sponsors, historical events and political agendas.

Crowd surges are preventable, even at large events. It is about planning, managing, and separating the crowd, so it does not become too packed. That is what should have happened at Astroworld.

Crowd separation is crucial in preventing surges and crowd crush. Use barriers to create a channel that funnels fans smoothly into your check-in point. Place visible staff members at the start of your lines to yell directions to the crowd and ask them to have their tickets and identification ready. Venues must be organized in such a way as to prevent too many people from converging in one place. The bigger the crowd, the more likely it is that something can go wrong. Your staff needs to be comfortable with managing large groups and exerting authority when needed.

There must be enough security officers to manage the event. If it could be as simple as applying a city ordinance, state law or a defined security standard out of the ASIS Protection of Assets Manual, or even a retail crowd safety guideline from OSHA, this question would hardly be as popular of an issue. Presently there are no security standards defining the ratio of patrons to security staff. In most cases, while always blending security and safety, we should not exceed the crowd manager responsibility as per The National Fire Protection Association (NFPA 101), but should we assign 1-to-10 or 1-to-100? As with most security functions, an appropriate risk assessment is the most valid solution. The big-ticket items to consider are Crowd Control & Critical Coverage.

From news reports, we understand there were 1,283 security officers for a crowd of 50,000 people at the 2021 Astroworld Festival. They were overwhelmed at entrances earlier in the day according to the Vulture article you shared, and they were overwhelmed again when Travis Scott took the stage at around 9 p.m. The combination of overcrowding, lack of crowd separation, and not enough security officers (allegedly) had deadly consequences.

Also, crowd observers should be positioned around the perimeter of the crowd, high enough that they can spot surges or crush points. When a problem is identified, the observer alerts the performer. The performer should then pause the show until the situation is under control. The power and influence of a performer at a large venue cannot be ignored. They can help security and emergency personnel do their jobs by bringing awareness to the problem.

From a mitigation point of view, to lower the consequences of a crowd surge/rush, venue design measures could be implemented, such as the removal of obstacle and bottlenecks in crowd’s movements, which could give rise to slips, trips, and falls and, in the worst case, trampling or crowd collapses in an event space. Signage should be well visible, specifying emergency exits and general wayfinding within the event location. Also, event staff and law enforcement personnel should be highly visible to ensure they can be easily seen when giving instructions in crowed areas. Enhanced security and crowd management training should ensure staff is aware of directing spectators safely during an evacuation. (“Patron Management – Event Safety and Security Risk Update …”)

Nick Rishwain: According to this article from Vulture, it is claimed that a “mass-casualty incident” was initiated but it took 40 minutes to cancel the concert. How do security and law enforcement decide to cancel an event? Then what is the process?

Paul Manley: If a crowd is in distress, then there should be a procedure in place to immediately stop that event, at least temporarily. You should have a knowledgeable team of experts who know exactly what they are doing and can identify a crowd in distress. These stop teams are well trained, are in direct communication with the performer’s representative, lighting designer and the sound engineer who understand their role and responsibility in the event of an incident.

Nick Rishwain: We know there is an ongoing criminal investigation and lawsuits have been filed. On the civil side, is this a premises liability matter at its core?

Paul Manley: Sadly, yes, tragedies like this one do not just happen; They are preventable; they are often caused by negligence and poor planning.

Again, it has been alleged that rapper Travis Scott & Astroworld organizers ignored red flags. We also understand this is not the first time tragedy has struck an Astroworld event, nor is it the first time that Travis Scott has been involved in a performance or event that ended in violence.

From what we’ve read, this concert continued as people screamed for help. It appears some patrons even begged camera operators and security guards to stop the music to no avail. As reported, the police proclaimed a mass casualty event at 9:38 p.m. local time, just over 30 minutes after Scott started his set, but the performance did not stop until 10:15 p.m., nearly 40 minutes later. The situation appears to have gotten worse by the lack of preparation by the concert organizers. For example, allegedly there were a limited number of water stations, staggering overcrowding issues in the general admission areas, as well as the understaffed and under-resourced medical team.

If the reporting is accurate, these red flags and others that materialized earlier in the day as people stormed the security gates at the beginning of the festival, should have been enough of a warning sign that the venue either needed to improve their security coverage and response or have been canceled. However, these concerns, just like the pleas to stop the show as people were dying, appear to have been ignored.

With all of this said, I reserve the right to change my answers and analysis as more information about the tragedy is released. Also, I should say that I have not analyzed the police reports or any factual analysis on the ground which could also alter my analysis.

We thank Paul Manley for his analysis based on the publicly available information related to the Astroworld Festival. We may venture back into this matter at a later date as more of the facts are solidified and because there are such a large number of parties involved, we may require analysis from additional areas of expertise.

FraudHealthcareLitigationSecurities

Securities Fraud: The United States v. Elizabeth Holmes

on October 13, 2021

In 2018, Experts.com uploaded a blog post regarding the separate SEC charges against Theranos founder, Elizabeth Holmes, and Chief Operating Officer, Ramesh “Sunny” Balwani, for securities fraud and injunctive relief. The post offered predictions of the types of experts expected to provide their insight on the situation due to the case’s multifaceted nature. As the trial began on September 8th, 2021, this month’s blog post will cover the events that have transpired since the SEC charge in 2018, the opening statements made in the trial thus far, and insight from Experts.com Member, Mr. James (Jim) Ellis, to help explain the legalities from an Expert Witness perspective.

2018 to the Present (Timeline by CNN)

As mentioned, the SEC has pressed separate charges against Holmes and Balwani for securities fraud in March 2018. Before these charges, Theranos had advertised how it could drastically change the healthcare industry by providing the world’s first portable, needle-free, and affordable blood analyzer sold in stores like Walgreens and Safeway. Essentially, people can test for various diseases and get results from a prick of a finger. Theranos would be a pioneer in modernizing blood tests without large vials with the help of their Edison blood analyzer machines. Investors were sold on this dream and the company was able to garner a net worth of $9 billion. Due to this seemingly revolutionary invention, she was heralded as the “next Steve Jobs” by multiple news outlets.

Since 2015, suspicions have been raised by various media and medical groups including the Wall Street Journal, Journal of the American Medical Association, Food and Drug Administration, Central for Medicare and Medical Services, and various investors, as the technology of Theranos’ product proved to be faulty. Holmes and Balwani not only denied any wrongdoings when criticized by skeptics, but they continuously reassured customers and investors that their blood analyzer was sure to be the next life-altering invention for the healthcare industry. As time went on, Theranos failed to execute its mission technologically, ethically, and by medical guidelines. Investors sued for fraud in 2016. The amount of money misappropriated by Theranos totaled approximately $700 million. 

This led to the eventual indictment of both Holmes and Balwani despite having separate SEC charges. According to ABC News, Holmes agreed to pay a $500,000 fine, relinquish her role as CEO of Theranos and any other publicly traded company for the next decade, and give back her $18.9 million in stocks. As for Balwani, it remains to be seen whether he will decide to settle with the Securities and Exchange Commission. ABC News also highlighted Balwani’s attorney, Jeffrey Coopersmith, stating his client, “accurately represented Theranos to investors to the best of his ability.” He will, however, still be tried in court after Holmes.

Since the settlement, the rise and fall of Theranos have been the subject of various documentaries like HBO’s “The Inventor: Out For Blood in Silicon Valley,” (2019) and ABC’s podcast “The Dropout: Elizabeth Holmes on Trial,” (2019). Holmes’ trial date was set to occur in 2020, but due to the pandemic and her pregnancy, the trial was delayed and set for 2021. 

The Trial (CNN Business)

On September 8th, 2021, the long-overdue trial between Elizabeth Holmes and the U.S. Government began. As this trial is ongoing, there is a limited amount of information. In his opening statement, Robert Leach, Assistant U.S. Attorney and lead prosecutor for the case stated, “This is a case about fraud, about lying and cheating to get money… Out of time and out of money, the defendant decided to mislead…. The defendant’s fraudulent scheme made her a billionaire. The scheme brought her fame, it brought her honor, and it brought her adoration.”

Holmes’ attorney, Lance Wade, shot back in an opening statement for the defense with, “Elizabeth Holmes did not go to work every day intending to lie, cheat and steal. The government would have you believe her company, her entire life, is a fraud. That is wrong… In the end, Theranos failed, and Ms. Holmes walked away with nothing. But failure is not a crime. Trying your hardest and coming up short is not a crime.”

There have been some predictions about what strategies Holmes’ legal team may use in court. In 2020, CNN reported the relationship between Holmes and Balwani was more than just business partners. As the two were romantically involved in the past, and according to recently unsealed court documents, Holmes may admit to experiencing emotional, psychological, and sexual abuse. Whether Holmes testifies regarding these claims remains to be seen. Balwani has vehemently denied the abuse allegations, and since his trial commences after Holmes’, only time will tell if this topic will be discussed in court.

(photo credit: New York Post)

Insight from Our Members

Considering the charges of the trial, Experts.com Member and Private Investigation Expert Witness, Mr. James (Jim) Ellis, sheds light on the elements that constitute wire fraud and the situations for which the federal charge is used. According to Mr. Ellis, “Wire fraud, and mail fraud as well, are generally federal statutes that can be used against fraud schemes where no other federal statutes apply.” Since the statute is extensive, federal prosecutors use this to charge the varying types of fraud. Four characteristics constitute wire fraud (941. 18 U.S.C. 1343, United States Department of Justice Archives):

  1. The defendant was part of a scheme to defraud another person, such as obtaining money or something else of value through false pretenses.
  2. The defendant acted knowingly with the intent to defraud.
  3. The defendant made or caused to be made false representations that were material to the scheme to defraud.
  4. The defendant transmitted a material misrepresentation by wire, radio, or television communications in interstate or foreign commerce.

Mr. Ellis adds how the courts also include electronic communication in their interpretation of the statute due to the emergence of the internet and cellular devices in recent decades. This increases the odds of Ponzi schemes, phishing, catfishing, online shopping scams, and other duplicitous actions taking place. Most of these cases would not be considered wire fraud scams unless the dollar amount lost equals or surpasses $1 million. Anything less does not warrant federal attention. Although this is unrelated to the Theranos v. United States Government trial, Mr. Ellis mentioned, “According to the FBI, over $600 million was stolen from unsuspecting people in 2020 through online romance scams.” 

From the elements of the statute and the multitude of avenues wire fraud can be committed nowadays, it can be inferred that wire fraud cannot be an accidental crime. Due to the second element of wire fraud, federal prosecutors who use this charge must provide evidence of the defendant having the intent to scam individuals, knowingly providing promises under false pretenses, and doing so to acquire monetary gain from their victims.

To play devil’s advocate regarding Elizabeth Holmes’ trial, it is possible her intention at the beginning of building her business was not to scam investors and patients. From her interviews on various media channels, her belief in Theranos and its mission never wavered. Mr. Ellis imparts, “However… if the same person began to realize their company wasn’t sustainable or even profitable, or if their product wasn’t turning out as they thought it would; and they knowingly made misrepresentations about their company or product in the hope they could eventually turn it around; then they quite possibly have committed wire fraud.” Because it is difficult to distinguish a failed attempt from a duplicitous sale, law enforcement must be meticulous in looking for the elements of fraud (listed in the statute above) before starting an investigation.

This case is interesting not only because of the nature of Theranos’ inventive endeavor, but because we see two corporate executives being sued for wire fraud. Mr. Ellis mentioned, “Often the federal government will use civil statutes to target the corporate entity itself. The wire fraud statute is normally used against the employees of a corporation who is committing fraud.” Those who hold corporate positions, especially people that lead the corporations, tend to be entrepreneurs. Why is this important? Because those with an entrepreneurial spirit are most likely to find themselves in legal matters like Elizabeth Holmes if they are not careful enough. “These people who start new ventures, even with the best of intentions, could easily fall into a trap of telling a ‘white lie’ to not let a dream die,” Mr. Ellis added. The question of how often corporate executives find themselves in civil or criminal fraud lawsuits remains unanswered, but what is salient is the undesirable consequence of committing wire fraud, an outcome Elizabeth Holmes and Sunny Balwani are currently facing. 

It remains to be seen how this will all play out in the courtroom but investors, clients, and the general public are on the edge of their seats to learn the fate of these two infamous entrepreneurs.

Update:

On Monday, February 21st, 2022, Elizabeth Holmes was found guilty on four of eleven counts of conspiracy to commit wire fraud and wire fraud. The four counts are (WSJ):

  • Conspiracy to commit wire fraud against Theranos investors.
  • Wire fraud against Theranos investors: wire transfer of $38,336,632 from PMF Healthcare Master
  • Wire fraud against Theranos investors: wire transfer of $99,999,984 from Lakeshore Capital Management LLP
  • Wire fraud against Theranos investors: wire transfer of $5,999,997 from Mosley Family Holdings LLC

According to New York Times, Ms. Holmes “faces a maximum sentence of 20 years in prison for each count.” Her sentence will be finalized and announced on September 26th, 2022. Sunny Balwani’s trial commenced on March 23rd, 2022, so the verdict is yet to be determined.

FDAPharmaceutical

Pharmaceutical Medicine: Pfizer Vaccine Granted FDA Approval

on September 15, 2021

On Monday, August 23, 2021, the Pfizer-BioNTech COVID-19 vaccine was granted approval by the Food and Drug Administration (FDA) for individuals 16 and older. Due to its newly approved status, what was known as the Pfizer-BioNTech COVID-19 vaccine will now be advertised as Comirnaty (koe-mir’-na-ty). According to the BBC, “The approval ultimately came less than four months after the Pfizer-BioNTech filed for licensing in early May – the fastest vaccine approval in the FDA’s more than 100 year history.” The abrupt onset of the Coronavirus last year served as the impetus for a necessary response by medical professionals to reduce spread, infections, and deaths. Even though the vaccine has been distributed since December 11th, 2020, Acting FDA Commissioner, Janet Woodcock, M.D., hopes the FDA approval will cement certainty for concerned individuals to get vaccinated. With insight from FDA Expert Witness, Mr. Alan Schwartz of mdi Consultants, Inc., this blog post will examine the approval process for vaccines before and during COVID-19 as well as enlighten readers about reasons behind Comirnaty’s FDA approval.

Alan Schwartz is a seasoned expert in FDA protocols. He has over 50 years of experience in the field . When asked about the FDA’s general approval process, he states, “The process is NORMALLY very extensive. It could take years from the start of development through laboratory bench testing, animal safety studies, then human safety, and finally efficacy studies.” Mr. Schwartz also noted the avergage costs companies pay for these trials can reach up to $100 million, which these companies were able to actualize due to the Emergency Use Authorization (EUA). “The FDA under the EUA gave the companies a BULLET TRAIN path to get these through the emergency use approval,” he stated. In an ideal situation, the FDA would contact the clinical study participants throughout the duration of a year after receiving a vaccine. However, because of COVID-19, the vaccine has been officially approved after it has been administered to approxiamtely 100 million people. This was most likely due to political pressure and, more importantly, ensuring the well-being of citizens around the globe. In this situation, the long-term follow up was missing in the approval process. Nevertheless, the fact that roughly 100 million people received the Pfizer-BioNTech vaccine before its approval provided the necessary data on its efficacy and safety in real time. “So, did the FDA expedite the approval or did they have more data to use in their decision making process… we hope that they used good science to get this through the approval process since it was already being used for a year,” Mr. Schwartz mentioned.

Some concerns from those expressing doubt include whether the Pfizer vaccine was changed or modified for the purpose of an expedited approval process. Schwartz reassured there was an absence of changes regarding the production and formula of both the EUA and approved vaccinations. “This was all new to the FDA and in the industry… Normally when a vaccine or a drug is under FDA review there are many questions and back and forth that take a lot of time. I don’t think this was necessary under these conditions.” However, since Pfizer is currently manufacturing and advertising Comirnaty, the pharmaceutical company is allowed to continue using the EUA vaccine. The EUA is considered an experimental drug, but as soon as Comirnaty is ready for vaccine administration, Pfizer will be held liable if any problems arise.

A New York Times article stated, “Regulators are still reviewing Moderna’s application for full approval of its vaccine.” Since both Pfizer-BioNTech and Moderna vaccines are based on similar mRNA technology and both had emergency use authorization, there are questions regarding when the public can expect or not expect Moderna’s approval by the FDA. “I would be very surprised if we did not see Moderna approved,” Mr. Schwartz commented. Moderna has submitted their application for full FDA approval which is currently pending review. Announcements about its approval should occur in the near future (NPR).

The FDA has stated that the immunization will continue to be available for children aged 12-15 under Emergency Use Authorization (EUA). It remains uncertain when Comirnaty will be FDA approved for younger people, as the CDC recently announced its vaccine recommendation for said demographic back in May. Although there is not an official timeline, Mr. Schwartz predicts, “It may take until next year to obtain all required safety and efficacy data for pediatric indication.” The lack of data amid clinical trials is the primary reason as to why Comirnaty has not received approval for young people. However, this is not an obstacle for the Los Angeles Board of Education, the second-largest school district, who recently voted on September 9th to require students 12 and older to get vaccinated.

Current protocols include a mask mandate during in-person classes and frequent COVID-19 testing as a precaution against the virus. According to U.S. News, “Under LA Unified’s plan, all students age 12 and up will be fully vaccinated by the time they return to class following winter break on Jan.11. Those who are participating in sports and other activities need to receive a first dose of vaccine by Oct. 3 and a second dose by Oct. 31, while other students need to get their first dose by Nov. 21 and a second dose no later than Dec. 19.” Board members believe the implementation of this plan is the best course of action to responsibly protect children under the age of 12, the demographic not yet eligible for vaccinations. There are some parents who agree with the Los Angeles Board of Education’s vote, as it is similar to other immunizations students are required to receive such as chickenpox, polio, and measles to name a few. Other parents not only think the vote was rushed, but also believe the choice for their child receiving COVID-19 vaccine or not should be a parental decision.

So, we continue on this journey of uncertainty with COVID-19, the vaccines, and their aftereffects. It is only a matter of time before future vaccine mandates are implemented in school districts and businesses across the country. A special thanks to Mr. Alan Schwartz for his insight on the FDA approval process of the Pfizer-BioNTech produced Comirnaty vaccine.

EvidenceExpert WitnessExpert Witness Testimony

Cancer Verdict Overturned: Trial Court did not follow Daubert Expert Witness Standard

on July 26, 2021

$117 million talcum powder Mesothelioma verdict overturned by failure of the trial court to follow their gate-keeping role.

In an article today from Husch Blackwell, they highlight a case in which a significant verdict for the plaintiffs was recently overturned by the appellate court for failures to conduct a proper Daubert analysis.

As most of our members are aware, a “Daubert hearing” or “Daubert review” is the standard used by the trial court for admitting expert witness testimony. It is the federal standard for admitting expert witness testimony, but the standard has been adopted by a majority of US states.

For your brief review, I’ve decided to add the elements of the Daubert test below, from Cornell Law School:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

There have been a wide variety of mesothelioma lawsuits against manufacturers and distributors of baby powder products. Generally speaking, the issue arises from long-term talcum powder use allegedly exposing plaintiffs to asbestos in the talcum powder which causes mesothelioma.

In my 11 years in the expert witness field, there have only been a couple toxic tort matters where the science has been as fiercely contested as it is in the talcum powder cases. The only other cases in recent memory where the science is hotly debated involves lymphoma resulting from the herbicide Round-Up. The Round-Up lawsuits resulted in an $11B settlement between plaintiffs and defendants.

This talcum powder case out of New Jersey, was very similar to the other talcum powder cases. The plaintiffs, Stephen Lanzo III and his wife sued a variety of defendants including one Johnson & Johnson subsidiary, claiming Mr. Lanzo’s long-term use of baby powder caused him to contract mesothelioma.

The trial judge permitted testimony from two of plaintiffs’ expert witnesses, Dr. James S. Webber, Ph.D. and Jacqueline Moline, M.D. On appeal, the 3-judge panel overturned the verdict because they didn’t think the trial court applied a proper Daubert standard in permitting the testimony from doctors Webber and Moline.

According to the article from Husch Blackwell attorney Brittany Lomax, the appellate court basically found that three prongs of the Daubert test were not met, “Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform ‘its required gatekeeping function’ by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.”

As a result, the appellate court remanded to the trial court and ordered new trials for two of the defendants.

It is worth noting, this is a major win for defendants in these talcum powder cases. It appears the appeals courts, at least in New Jersey, are going to review scientific evidence with exceptional rigor.

Emergency MedicineExpert Witness

Emergency Medicine: Medical Malpractice Lawsuits During COVID-19

on June 16, 2021

According to the U.S. National Library of Medicine, “Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” Medical malpractice is a component of tort law, which addresses professional negligence and offers reparations for civil offense. Some common examples of medical malpractice include misdiagnosis / delayed diagnosis, prescription drug errors, surgical / procedural errors, and failure to treat. However, until the recent COVID-19 outbreak, medical malpractice suits related to a pandemic have rarely been discussed. In this blog post, Experts.com aims to shed light on the topic with insight from Emergency Medicine Members, Sajid R. Khan, MD, and Vipul Kella, MD, MBA FACEP.

The COVID-19 pandemic brought about a plethora of problems for citizens, businesses, and industries all over the globe. According to Dr. Kella, “The pandemic placed enormous strain on our health systems: hospitals were operating at maximum capacity, supply shortages were well-publicized, and healthcare providers were scarce and overworked.” To add, during the pandemic, medical professionals had to simultaneously learn about the nature of the virus, its symptoms, and how it affected people of all ages. Despite the circumstances, essential workers in the medical field have abided by their ethical duty to commit no harm and to save their patients to the best of their ability. With the mystery of an unprecedented illness, and the learning curve associated with it, should the medical community be held to the same medical malpractice standard for COVID-19 as for other illnesses?

To his knowledge, Dr. Khan is unaware of any COVID-related malpractice lawsuits. However, to make a medical malpractice claim in most states, deviation from the standard of care must be demonstrated. Dr. Khan confirmed that the standard of care has frequently changed throughout COVID-19 due to the oddity of the situation. “Therapeutic recommendations change from month to month, making establishment of medical malpractice that more challenging,” he added. During the pandemic’s inception, healthcare professionals had to care for patients and prioritize their own physical well-being. Especially in populated areas like New York City, the medical community faced a scarcity of supplies. Dr. Khan, and many other Emergency Medicine professionals, have participated in a multitude of discussions about how to best select the patients who had the strongest chance of surviving. This of course is not the preferred method of treatment, but desperate times call for desperate measures. He stated, “It would be irresponsible to hold providers responsible for failing to provide optimal care to patients with such an illness.” Through the news and social media, the whole world has seen the medical community in action to help minimize the spread of COVID-19. Has the United States government taken any action to minimize the legal ramifications towards the healthcare industry? What measures can healthcare providers take to reduce the risk of medical malpractice involvement?

According to Dr. Kella, there have been a few acts passed by the federal government to alleviate the stress of the medical community. He mentions the Public Read and Emergency Preparedness (PREP) Act and the Coronavirus Aid Relief and Economic Security (CARES) Act. The PREP Act, amended by the US Department of Health and Human Services, provides legal protections to medical providers, whereas the CARES Act protects healthcare providers offering volunteer services during the pandemic against liability. “These regulations were good news for physicians as they allowed more leeway for trying to deliver care during difficult circumstances that were often out of their direct control,” Dr. Kella mentioned. Although there is protective legislation, this does not mean the medical community should not maximize efforts to minimize medical malpractice lawsuits. COVID-19 is known to advance a patients’ pre-existing or chronic disease. For instance, the standard of care has altered throughout the pandemic and, as such, Dr. Kella has suggested healthcare providers to meticulously check the documentation and routines of their patients to avoid negligence.

As the United States produces and administers vaccinations, the medical community’s knowledge of COVID-19 expands. Medical malpractice may not have played a large role throughout the beginning of the pandemic. As the days pass and perhaps more litigation arises, holding COVID-19 medical professionals to a strict standard of care, unless it is an egregious departure, could have a chilling effect on the medical community. As was apparent in the middle of the outbreak, the last outcome our country needs is fewer doctors and nurses.

ElectronicsExpert WitnessLitigation

Apple v. Epic Games Trial: What You Need To Know

on May 19, 2021

Introduction

Technology giants like Amazon, Facebook, and Google face legal battles yearly. Recently, another behemoth has followed suit (pun intended). On August 13th, 2020, Apple found itself involved in an antitrust lawsuit against Fortnite video game creator, Epic Games. The trial began on May 3rd, 2021 and is ongoing, so this blog post will not have all the answers. As it unfolds, this post will delve into the perspectives of both businesses, describe the nature of the trial, introduce opening statements from the first day of the trial, and explain possible outcomes for both Epic Games and Apple.

Epic Games

Epic Games has filed an antitrust lawsuit against Apple Inc. in response to the removal of its most popular game, Fortnite, from the iPhone App Store. This prohibited 116 million of its 350 million users from updating the game and new consumers from downloading the app (this does not affect the remaining players using other smartphones or gaming consoles). Fortnite’s eradication from iOS App Stores has caused players from around the world to unite in a social media campaign called #FreeFortnite. Epic Games accused the tech giant of monopolizing purchasing options for apps by restricting other methods of conducting transactions. Due to Apple’s renowned international success, Epic Games has filed lawsuits against Apple in Australian, United Kingdom, and European courts. Epic Games not only wants Fortnite back on the iOS App Store, but it also wants to launch a rival App Store on all Apple devices so users can purchase Epic Games products through non-Apple means.

Apple

The catalyst for Fortnite’s removal from Apple’s App Store was the release of a new update by Epic Games which included the implementation of an in-game purchasing currency called “V-Bucks.” This currency allows players to buy items through non-App Store channels. Users who purchase Fortnite items such as outfits, pickaxes, and the latest season’s Battle Pass get to enjoy a 20% discount, which incentivizes players to continue using V-Bucks. Since these purchases are not made through the App Store, V-Bucks circumvents Apple’s chances of receiving its 30% share of any transaction, hence its removal from the App Store and the foundation of #FreeFortnite. In response to Epic Games’ claim of Apple becoming a monopoly, Apple explains the fairness in its decision to remove the game from its App Store. According to Apple, Epic Games violated its agreement by installing V-Bucks without Apple’s permission. If Apple wins the trial, this contract violation could keep Fortnite and all other apps made by Epic Games, or apps run by its game engine, Unreal Engine, from the App Store (The Verge).

The Trial

The trial began on Monday, May 3rd, 2021 in federal court in Oakland, California. This proceeding is a bench trial; thus, the judge will be making the final ruling with no jury. The trial will be held in person and the press and public are prohibited from entering the courtroom. The presiding judge for the United States trial is Judge Yvonne Gonzalez Rogers. Pending trial, she declined Epic Games’ request for Apple to host Fortnite on iOS devices. Trial dates for the international lawsuits against Apple are unknown. However, Epic Games has recently filed lawsuits in November 2020 (Australia), January 2021 (United Kingdom), and February 2021 (Europe).

Opening Statements and Trial Arguments (photo credits from The Verge)

In its opening statement, Epic Games compares Apple’s restrictive policies to a “Walled Garden.” Its argument is based on the unfairness of Apple’s control over purchasing options. Two expert witnesses testified on behalf of Epic Games. University of Chicago economist, Dr. David Evans, told the court, “Apple’s rules unfairly prevent developers from letting consumers know if their prices for in-app purchases take into account the iPhone maker’s 30% commission or that consumers may be able to get better deals elsewhere,” (Wall Street Journal). To add, Susan Athey, an Economics of Technology professor at the Stanford Graduate School of Business, explained Apple’s stronghold over consumers is due to their prohibitive iOS mobile operating system. In the case of this trial, if a consumer wanted to access Fortnite an iPhone, the user would need to switch to a different smartphone brand and repurchase all the apps originally purchased from iOS devices. Since the internet is needed to play Fortnite, Evans highlights how gaming consoles could never replace smartphones, as it lacks cellular data for users who want to play the game from anywhere.

Apple’s opening statement was a defensive response to Epic Games’ claims. According to The Wall Street Journal, Apple hired University of Pennsylvania Wharton School professor, Lorin Hitt, to discuss in-app purchases. Hitt claims, “anticompetitive measures tend to result in reduced quality, yet that hasn’t happened with iPhone and iPads apps, as developers have seen their revenue increase over time.” Essentially, consumers notice the value in the offers proposed by Apple. As noted by the graph below, Mr. Hitt also denounced Epic Games’ claim about Apple’s monopoly-like practices. Users switch devices frequently because people like the products acquired for different reasons. If this were not the case, Play Station and XBOX would not generate over 50% of Fortnite’s revenue for the last two years. This also infers that most Fortnite users are not on iOS devices, which is surprising considering there are 1.5 billion active Apple devices. In addition, Apple insists the iPhone offers multiple avenues for financial transactions. Although difficult to decipher, the second picture provided by Apple indicates that the iPhone, compared to its competitors and subsidiaries, offers three types of digital game transactions options: The App Store, Web Applications, and Purchasing on Other Platforms to play on iOS. Ultimately, Apple is arguing that its practices are not prohibitive nor remotely resemble a “Walled Garden.”

Possible Outcomes

The outcome of the trial between Epic Games and Apple Inc. can end in multiple ways. One hypothetical is the verdict will resume the current situation: users could not access Fortnite on iOS devices, but other games produced by Unreal Engine will remain on Apple’s App Store. If the judge rules in favor of Epic Games, it may be able to create and launch its own App Store on iOS devices.

Legislation

In addition to the trial, a new state bill that recently passed the House 31-29 may negatively impact Apple’s case. According to The Verge, Arizona’s House Bill 2005, “prevents app store operators from forcing a developer based in the state to use a preferred payment system…,” which would ultimately force Apple to provide various payment methods on iOS. This development could be beneficial for Epic Games.

ConsultantsNonprofitNonprofitUncategorized

The Bill & Melinda Gates Foundation: Will Divorce Impact the Nonprofit?

on May 11, 2021

News media and tabloids have been focused on the high-profile divorce. We were interested in how divorce impacts a family foundation.

Last week, the tech and media worlds were abuzz with news of the Bill & Melinda Gates divorce. After 27 years of marriage, one of the richest couples in the world decided to call it quits. This was a shock to many outsiders looking in. Their long-term marriage, despite all the trappings of wealth and influence, seemed like it would stand the test of time. The New York Times, in this article, described the two parties as having “reshaped philanthropy and public health,” with the fortune acquired by the couple as a result of Mr. Gates being a co-founder, and past CEO, of Microsoft.

Certainly, when I think of philanthropy, I think of the Bill & Melinda Gates Foundation. A well-funded operation run by the couple, in a fight against global health crises. Last year, when COVID-19 invaded every aspect of our lives, Bill Gates was seen on TV and in articles providing guidance on dealing with the pandemic. Through his work at the foundation he had gained significant insight and had been warning of pandemic threats for many years. Bill played such an instrumental role in the process that many people now associate the foundation with public health.

On the home page of the Bill & Melinda Gates Foundation, the first thing a visitor sees is the following text: “We are a nonprofit fighting poverty, disease, and inequity around the world.” Much of their philanthropic work takes place in the form of grants. In 2019 alone, the Gates Foundation provided more than $2.7 billion in grants according to their own reporting. The foundation has made grants in the following areas: gender equality, global development, global health and more.

Now that the Gates’ are calling it quits, how will that impact the operations of this massive nonprofit?

Nonprofit attorney and consultant insights

Having little or no experience with nonprofits (more specifically a family foundation) myself, except for my annual contributions, I reached out to one of our consultants, Jess Birken, Esq. Ms. Birken is the owner of the Birken Law Office, located in Minneapolis, Minnesota. She is a lawyer who helps nonprofits solve problems so they can focus on what really matters… their mission. Her practice specializes in nonprofit organizations. Before becoming a private practice attorney, Ms. Birken spent four years inside a national nonprofit organization, Pheasants Forever. In that role she managed about $50M in state and federal government grants and worked on hundreds of conservation real estate deals.

In essence, Ms. Birken had the expertise I was seeking. She could answer the questions I had about nonprofit operations in the face of familial separation. For purposes of attribution, I had developed some of my questions from this article by Vox. Ms. Birken used this New York Times article for some of the information about the organizations.

Below, you’ll find my questions and Ms. Birken’s answers:

Nick Rishwain: This matter involves a family foundation. How is a family foundation different from other types of nonprofits?

Jess Birken: Generally, a “family foundation” is completely or mostly funded by one family. The term family foundation isn’t a legal term though, it’s just a way to describe a private foundation with that characteristic. Private foundations in general are different from the nonprofits most people think about when they hear the term “nonprofit.” Most people hear nonprofit, and they are picturing a public charity (like your local church or pet rescue).

Both public charities and private foundations get tax-exempt status and are labeled as 501(c)(3) organizations by the IRS. Both types are established for a charitable purpose and have a mission. Both types can use the word “Foundation” in their title. It can all be a little confusing.  The major difference between a private foundation, like The Bill and Melinda Gates Foundation, and a public charity, like the Make-A-Wish Foundation, is where they get their financial support. Public charities raise money from the general public, but a private foundation usually has one source of funding, typically an individual, family, or corporation.

Another key distinction is that private foundations also often differ in their activities. They typically don’t run programs directly – like, say, a soup kitchen serving people experiencing homelessness. Instead, private foundations often make grants to other organizations. A private foundation might make grants to many homeless shelters running many soup kitchens. Other differences between the two include the fact that the board of a private foundation is not required to be diverse (often the board is made up of only family members, etc.); that they are required to make charitable distributions throughout the tax year; and that they must pay a nominal excise tax on their net investment income.

Nick Rishwain: We know divorce can have impacts on businesses and real property, in respect to division of assets. Are nonprofits incorporated in a similar way which would cause a division?

Jess Birken: Generally, no single person owns a nonprofit. Nonprofits do not have shareholders or issue stock and private individuals can’t benefit from them. So, they aren’t an asset that can be split up in a divorce.

Nick Rishwain: In the Vox article, the foundation said, “that the philanthropy did not anticipate changes to its work.” What changes might a divorce cause to a nonprofit?

Jess Birken: Theoretically none. Even a family foundation has a board of directors. These directors have fiduciary duties to carry out the mission and take actions in the best interest of the nonprofit – regardless of any individual board members’ personal life situation.

In the case of a family foundation, however, where the primary funder is the family, then it could be the case that the donations to the foundation that are directly from the family will decrease temporarily (or long term) as the assets of the donor family are apportioned through a divorce proceeding. Whether this happens may be revealed through the upcoming IRS Form 990 filings that show revenue and contributions by donor as part of Schedule B in the years ahead. So, a temporary reduction in activity or some kind of holding pattern (versus expansion) could happen. In the case of the Bill and Melinda Gates Foundation, the foundation has net assets forming an endowment of about $50 billion. So, any flux in family contributions is likely to be a minor hiccup for this foundation.

Nick Rishwain: Are nonprofit organizations, such as the Bill & Melinda Gates foundation usually funded year-to-year?

Jess Birken: For accounting purposes the nonprofit accounts for contributions it receives during its accounting year. How frequently donations are made by a family will depend on the family and their philanthropic vision and tax planning needs. I’m not an estate planning expert but it’s probably fair to say that in general donations to family foundations are likely to be calculated annually based on each year’s tax planning situation.

Nick Rishwain: In the above article, Vox indicates the Bill & Melinda Gates divorce might impact their nonprofit foundation. Could a private divorce impact the work or funding of such a large nonprofit organization?

Jess Birken: From the perspective that both parties to the divorce are on the board of directors, that’s certainly possible. As I mentioned before, the assets of the family will be getting a shakeup through the divorce. It’s possible that either Bill or Melinda – once they have completely separate households – will make their own contributions based on their own philanthropic interests.

In this instance, however, it seems their public commitment to the core foundation work is aligned and, in my opinion, probably true. The foundation itself has an endowment of $50 billion to work with – the divorce won’t affect that core fund. So, the interpersonal aspects are more important in this case. Warren Buffet was recently added to the board of directors as a Trustee and is also a contributor. This will likely have a stabilizing effect and may have even been planned for that reason – I’m speculating but it makes sense.

As far as interpersonal problems between the couple causing issues around pushing for one charitable interest over another, this has already been addressed. Each member of the couple already has a fully formed enterprise where they can pursue their individual agendas and those have been in place for some time. Bill Gates has Gates Ventures a company first formed after he stepped down from full time work at Microsoft in 2008. His enterprise focuses on clean energy, climate change, education, and health. Melinda French Gates formed her Pivotal Ventures company in 2015 which works on gender equality and social progress. So, each has an outlet for pursuing their individual goals which likely insulates the foundation’s work even more.

Well there you have it! My questions were answered. If you have more questions about nonprofits and charitable organizations, reach out to Jess Birken at here website: birkenlaw.com. For more information, you may also want to check out her podcast: charitytherapy.show.

Audio ForensicsComputer ForensicsCrisis ManagementOnline Reputation ManagementSocial Media

Deepfake: Its Role in Law, Perception, and Crisis Management (Part 2)

on April 14, 2021

Welcome to Part 2 of Experts.com’s Deepfake Blog Series! In case you missed it, check out Part 1. The focus for Part 2 is to delve into the legal ramifications and perceptive dangers of deepfake videos, along with solutions for individuals and organizations who have been negatively affected by deceptive content. Continued insight from Audio, Video, and Photo Clarification and Tampering Expert, Bryan Neumeister, and new knowledge from fellow Experts.com Member and Online Reputation Management Expert, Shannon Wilkinson, will be included in this post.

Due to the relatively new concept and technology of deepfake content, the legal ramifications are not concrete. In fact, admitting deepfake content as evidence in some criminal and civil court cases can be a precarious endeavor because of metadata. According to the Oxford Dictionary, metadata is “information that describes other information.” Think of metadata as information found on a book. Listed is the author’s name, summary of the author, synopsis of the book, the name and location of the publishing company, etc. Metadata answers the same inquiries about videos and photographs on the internet. It has even been used to solve crimes. For example, in 2012, law enforcement found John McAfee, a man who ran from criminal prosecution for the alleged murder of his neighbor, using the metadata from a photo VICE Media, LLC released in an interview with the suspect (NPR). “The problem with metadata is when you upload any video to YouTube or Facebook, the metadata is washed because the user gives up the right to the video,” a statement by Bryan Neumeister. Reasons vary as to why metadata is removed. Some platforms have policies to disregard metadata to expedite the download time for such images and videos. However, it raises concern for those interested in preserving intellectual property (Network World). In addition to the numerous reposts a photo or video acquires, finding the original author of a post on major social media platforms poses a problem for litigants.

Entering evidence into court becomes a Chain of Custody issue (702, 902) through the Daubert Standard, which is a set of criteria used to determine the admissibility of expert witness testimony. Part of Mr. Neumeister’s expertise is to sift through the components (time stamp, camera, exposure, type of lens, etc.) of digital evidence via computer software systems to determine its authenticity or modification. One of the many techniques he uses is to look at the hash value of digital evidence. According to Mr. Neumeister, “Hash values are referred to in Daubert 702 as a way to authenticate. Think about a hash value as a digital fingerprint.” Without this set of numerical data, the most vital piece of proof needed to discern an original from a fake photograph or video, the digital evidence should be ruled as inadmissible by Daubert standards, as there is no chain of custody to a foundational original. Because deepfakes are difficult to track, and perpetrators are mainly anonymous underground individuals with limited assets, prosecuting these cases is a long-term investment without the return. From a moral perspective, justice should be served. With little or no recourse, the frustration is overwhelming for people whose character and financial future have been put in jeopardy.

Deepfakes may be complicated in the legal arena, but in the world of public perception, its role is much more forthright. In recent years, perception has become reality, and this notion rings resoundingly true regarding deepfake content. People who create and publish deceitful content have three main goals: to tarnish a person or company’s reputation, change a narrative, and ultimately influence the public. “Deepfakes are not usually done by big corporations. There is too much at stake. They are usually done by groups that have an intent to cause misdirection,” a direct quote by Mr. Neumeister. The truth about events regarding politicians, or any other public figure, has now become subjective. Like most viral posts, once a deepfake video is released, unless a user participates in research and finds other sources that confirms or denies deceptive material, people will believe what is shown on social media. There are two reasons for this: 1) it confirms an already ingrained bias, and 2) some people would rather trust the information instead of actively looking for sources that contradict the deepfake due to lack of will or information overload. Studies have shown it takes just a few seconds to convince people who are leaning the way a deepfake video is portraying a situation to believe the content. Even if there is a source that has been fact-checked and proves the contrary, the damage to a public figure’s perception has already been done.

For instance, one of the most popular types of deepfakes are centered around pornography. As discussed in Part 1, the General Adversarial Network (GANs) generated deepfake videos have a specific algorithmic structure that accumulates multitudes of any footage and mimics the desired output data. However, its blatantly realistic and high-quality footage is too exaggerated to be an authentic video. To further augment the illusion, people use techniques such as adding background noise, changing the frame rate, and editing footage out of context to make the video more “realistic.” According to Mr. Neumeister, “The more you dirty it up, the harder it is to tell … and then you’ve got enough to make something convincing that a lot of people won’t fact check.” This unfortunate reality, the emergence of different types of deepfake content can ruin the reputations of individuals and businesses across the board. Fortunately, there are methods to managing public perception.

A positive public image is one of the driving forces for success, trust, revenue, and a growing client base. For this reason, malicious and manipulative material found on the internet is threatening. The internet allows everyone to become an author, which gives users the power to post a variety of content ranging from true stories to false narratives. When businesses and organizations find themselves in a fraudulent crisis, “it can impact shareholder value, damage an organization’s reputation and credibility in the eye of consumers and customers, and result in the dismissal or stepping down of a CEO, board members, and/or other key leaders,” stated by Shannon Wilkinson, an Online Reputation Management Expert. Individuals who have less of a digital presence than organizations are more at risk for facing defamatory content. It begs the question, what types of crisis management strategies can business and individuals use to defend themselves against deepfake content?

One of the reasons why crisis emerges for organizations and public figures is due to the lack of proactiveness. Luckily, Ms. Wilkinson has provided numerous tips on how to prioritize reputation management and crisis response to build a “powerful digital firewall.” For reputation management, Ms. Wilkinson recommends:

  • Understanding how one’s business and brand appears to the world.
    • “Each Google page has 10 entries, discounting ads…The fewer you ‘own’ – meaning ones you publish… – the less control you have over your online image,” according to Ms. Wilkinson.
  • Customizing LinkedIn and Twitter profiles.
  • Publishing substantive and high-quality content related to one’s field of expertise or organizations (white papers, blogs, articles, etc.).
  • Scheduling a professional photography session.
  • Creating a personal branding website (ex: http://www.yourname.com).

As for crisis response options, there are two key components businesses and individuals must consider before crafting a recovery plan:

  • Possessing an online monitoring system alerting when one’s brand is trending on social media (ex: Google Alerts and Meltwater)
  • Seeing conversations in real time to augment one’s social presence within those digital spaces.

Below are the recommendations regarding the actual response to a crisis:

  • Social media platforms like Facebook and Twitter seem to be the more popular spaces to respond to deepfake content.
  • Updating current and existing information is a vital strategy to counter attacks.
  • Avoid engaging with anonymous commentors and trolls.
  • “Video is an excellent tool for responding to situations that result in televised content. A well-crafted video response posted on YouTube will often be included in that coverage. This strategy is often used by major companies,” a direct quote from Ms. Wilkinson.

The why behind creating, manipulating, and posting deepfakes for the world to see seems to be a moral dilemma. The motives behind uploading such misleading content are different for those who participate but nefarious, nonetheless. Legally, it remains an area of law where justice is not always served. Thanks to our Experts.com Members, Bryan Neumeister and Shannon Wilkinson, the what, when, how, and where aspects of deepfake content have been explained by people who are well-versed in their respective fields. In the height of modern technology and the rampant spread of misinformation, our Experts advise all online users, entrepreneurs, public figures, and anyone with access to the internet adequately fact-check sources encountered on the web. Those associated with businesses or happen to be public figures should prioritize developing crisis management precautions. In Mr. Neumeister’s own words, “People can destroy a city with a bomb, but they can take down a country with a computer.”

Audio ForensicsComputer ForensicsExpert WitnessSocial Media

Deepfake: An Introduction (Part 1)

on March 17, 2021

Computer technology is one of the most pivotal inventions in modern history. Artificial Intelligence, smartphones, social media, and all related apparatus have significantly enhanced living conditions in an unprecedented manner and connected the world with a click of a button. It is used in various occupations: from business related fields to more creative professions. To say modern technology has been advantageous in recent decades is an understatement. However, every creation has its flaws. This multi-part blog series is intended to reveal one of those flaws, and a dangerous one at that, deepfake videos. This first post includes an introduction to deepfake videos, and the steps taken by federal and state governments to identify such duplicitous content. Special insight on the subject is provided by our Experts.com Member and Audio, Video, and Photo Clarification and Tampering Expert, Bryan Neumeister.

Editing footage and photos is normal practice in our selfie-addicted new normal, but creating distorted content is a whole new ballgame. According to CNBC, deepfakes are “falsified videos made by means of deep learning.” These videos, images, audios, or other digital forms of content are manipulated such that counterfeits pass as the real thing. What makes matters worse is the internet allows anyone and everyone to create, edit, and post deceptive content. It is one of many threats to cybersecurity strategists, police departments, politicians, and industries alike because the purpose of making them is to spread misinformation, tarnish reputation’s, exploit evidence, and to ultimately deceive an audience. The unfortunate reality is deepfake videos which display pornographic scenarios and manipulated political moment are the most common. For instance, a notable deepfake video was posted by Buzzfeed in 2018 depicting former United States president, Barack Obama, slandering another former United States president, Donald Trump. However, the voice behind Obama is none other than Jordan Peele. The video was intended as a moral lesson to explain how important it is to verify online sources, and to highlight the dangerous problem of trusting every post uploaded to the internet.

According to Mr. Neumeister, who specializes in this area of expertise, there are two types of artificial intelligence programs used to create deepfake videos: GANs and FUDs. He states, “GANs (Generative Adversarial Networks) are used by professionals, and FUDs (Fear, Uncertainty, and Doubt) are the homemade ones.” Although FUD videos garner more attention among internet users, the real menace to society are the videos made from GANs.

Videos made from Generative Adversarial Networks have an algorithmic framework designed to acquire input data and mimic the desired output data. One can visualize how GANs work through the viral Tom Cruise TikTok deepfake. According to NPR, the creator of the deepfake, Chris Ume, used a machine-learning algorithm to insert an accumulation of Tom Cruise footage. This allowed him to give a digital face transplant to the Tom Cruise lookalike actor he hired for the video. Ume input a plethora of videos to create a desired output of a realistic face swap. Neumeister also adds that the most realistic deepfakes correlate to the amount of footage a person can acquire. Specifically, “the more bits of video clip you have to put together, the more accurate you can make facial movements, ticks, etc.” From this logic, it can be inferred that Ume’s Tom Cruise deepfake looks more realistic than those that lack algorithmic programs.

Because viewers typically see deepfakes in politics and pornography, federal and state governments have recently implemented laws to counteract deepfake content creation and distribution. President Trump signed the first deepfake federal law near the end of 2019. This legislation is included in the National Defense Authorization Act for Fiscal Year 2020 (NDAA), which is a $738 billion defense policy bill passed by both Senate (86-8) and the House (377-48). The two provisions in the NDAA requires:
“(1) a comprehensive report on the foreign weaponization of deepfakes; (2) requires the government to notify Congress of foreign deepfake-disinformation activities targeting US elections,” (JD Supra). The NDAA also implemented a “Deepfakes Prize” competition to promote the investigation of deepfake-detection technologies. On a state level, there have been laws passed by multiple states that criminalize specific deepfake videos (JD Supra):

  • Virginia: first state to establish criminal penalties on the spread of nonconsensual deepfake pornography.
  • Texas: first state to ban creation and dissemination of deepfake videos aimed to alter elections or harm candidates for public office.
  • California: victims of nonconsensual deepfake pornography can sue for damages; candidates for public office can sue organizations and individuals that maliciously spread election-related deepfakes without warning labels near Election Day.

Although the Trump administration and various states established policies against deepfakes, it remains ubiquitous on almost all online platforms. How can users at home distinguish authentic content from deepfakes?

Mr. Neumeister provides a few tips and tricks for detecting a deepfake. One giveaway mentioned is mouth movement, otherwise known as phonemes and visemes. Mouths move a certain way when people speak. For instance, words like mama, baba, and papa start with a closed mouth. Words like father, and violin start with the front teeth pushing against the bottom lip. To add, consonants and vowels also sound a certain way when pronounced correctly. “Words with t, f, n, o, and wh, are pretty good for tells,” adds Mr. Neumeister. When analyzing video, the frames in which a person is speaking are broken down into approximately six to ten frames to determine if the way someone talks in other videos is the same as the video being analyzed. Another tip Mr. Neumeister suggests is to watch videos with context in mind. Viewers should pay attention to background noise, crowd ambiance, and the cadence in a speaker’s sentences. Authentic and original content would have, by nature, realistic frames. Users can detect a deepfake by sensing dissonance in, for instance, a speaker’s proximity to the microphone or a size of a room. For users at home or on-the-go, these tips are crucial for distinguishing verified sources from manipulated misinformation.

The emergence of deepfake content, its continuously improving technology, and the spread of disinformation is a multifaceted and complex problem. This blog post has only scratched the surface, so stay tuned for part 2 for a more in-depth read.

1 2 3 4 5 … 15