Category Archives: Ask a Cyber Lawyer
Be sure to look at it on or around June 3, 2013. www.nakeddc.com
Sorry I haven’t been posting lately. Will get back to it!
Before becoming a lawyer, I worked as a political consultant. As a result I am a political junky, mostly in areas that affect the legal profession and internet freedom. I saw commentary on Politico this morning by Grover Norquist, (the man who’s organization is famous for its “tax pledge” most often signed by conservative politicians) and Laura Murphy of the American Civil Liberties Union (strange bedfellows indeed), concerning internet privacy and the Electronic Communications Privacy Act (1986), an issue I have previously addressed on this blog. Norquist is a philosophically a libertarian, so along with tax issues, issues related to protection of privacy rights from government intrusion are important to him. Currently under the now 27 year old ECPA, any email over 180 days old is considered “abandoned”, and for a government agency to have access to those emails, all that is needed is a written statement that the emails are somehow “relevant” to a government investigation. No warrant necessary. I am of the opinion that such broad government power is a violation of 4th Amendment protections against unreasonable searches and seizures. It would be akin to government being able to read your diary entrees that are over 180 days old. Norquist and Murphy address this issue in the article and proposes a solution.
Technology has changed dramatically since 1986. With free, unlimited email storage and high-speed broadband service widely available, we no longer have to download email onto our hard drives. Instead, we indefinitely store our email and other personal effects — private reflections, financial records, photographs and love letters — in the “cloud,” where the power and flexibility of massive servers are available for free or at very low cost….
Our proposal is simple: All private communications and documents stored online with service providers should have the same protections from unreasonable search and seizure as material locally stored. If government agencies want to read emails, they should go to court, show probable cause to believe a crime is being committed and obtain a search warrant just as they would for postal mail and telephone calls.
January and February were arduous months both personally and professionally. Sometimes when life gets busy, it gets very busy. I am back and of course I am always fielding questions on Internet Law, and now other areas of law as well. I am also going to continue doing my editorial content for this blog. So if you have any questions, or would like to contribute, feel free to let me know. Also visit Skyles Law Group’s website at http://www.skyleslaw.com if you have a legal need that needs to be addressed.
Hey, I got a question I need answered! Luckily I decent number of followers on twitter, and friends on facebook. So I’ll just go ahead and put it out there and see if someone can answer. Usually it is something like “I am going to Vegas, what should I do while I am there” (keeping in mind that it will either stay in Vegas or end up on youtube). Or I might be hungry and ask the internet “Should I get Pizza or Mexican”. A bit more risky question would be “What should I wear for Halloween?”. Usually I will get a decent answer that meets my needs. This is an example of an appropriate use of crowdsourcing.
The following use posted on “The Atlantic Wire” is an example of an inappropriate use of crowdsourcing:
Just when you thought Reddit couldn’t become more powerful, Rep. Zoe Lofgren has enlisted the power of the crowd to help her write a new Internet law. It’s right up Reddit’s alley, too. Lofgren’s law will legislate how domain name seizures are handled in the United States, specifically in the cases of copyright infringement, accusations of libel and obscenity.
The new law would apply to cases like that of Kim Dotcom and Megaupload, not to mention the hundreds of cases that the U.S. Department of Justice has pursed with two separate sting operations against suspected violators. Redditors do not like it when the government seizes domain names, which is exactly why Lofgren, a California Democrat, says she wants their help with her new law
For those who really don’t know what Reddit is, it is sort of the Occupy Wall Street of the internet. Not that it blocks traffic, defecates on police cars, and smells like a open sewer hatch. Reddit is the Occupy Wall Street of the internet in the way it conducts its business through a series of up-twinkles and down-twinkles that show which ideas are to dominate the forum. Fairly democratic, but usually the most radical voices are the ones most likely to be heard. It is generally good for discussions on Star Wars, atheism, scientific development, and generally nerd stuff. However, they are not legislators, and while they are very much up on internet related issues, the view point is very narrow as it is not a very diverse demographic. Think of it this way, it is your High School AV club.
Luckily, there weren’t enough up-twinkles for this bid, so it never received a whole lot of traction on Reddit.
Rep. Lofgren should consider the needs of her district, and the population as a whole before she goes and let “the internet” decide what should and should not be a part of legislation that impacts us all.
I received this question via email from a reader:
Dear Ask a Cyber Lawyer:
My boyfriend is stationed over seas in the Air Force, and we usually use the internet to communicate. It turns out that his ex-wife has been using an old account of his, and pretending to be him. I just found out that while I thought I have been chatting with him, I was really chatting with his ex. This has caused me a lot of emotional anguish. Is there any way I can sue her?
My response is this. With out knowing anything else about the case, it is possible that there could be several causes of action that could be brought against her by both you and your boyfriend.
First, in some jurisdictions it is actually a crime to impersonate someone on the internet. So it might be worth while to involve the police.
Second, there are civil causes of actions you can bring up. One is the tort of Intentional Infliction of Emotional Distress, or IIED. Intentional Infliction of Emotional Distress occurs when the Defendant intentionally or recklessly commits extreme and outrageous conduct which causes the plaintiff to suffer emotional distress (in some jurisdictions this action must be done in public). If you were induced by this person to commit some sort of act, such as send money, there are fraud actions which may be available as well.
Your boyfriend may also have causes of action available. First, anything she said while impersonating him is likely actionable as defamation. Likewise he may also have an invasion of privacy claim for portraying him in a false light.
My advice is call my firm, or an attorney in your area and make an appointment to discuss the specifics in this matter.
Disclaimer: This blog post contains no actual legal advice. It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
Since I started this blog, the focus has always been on internet related legal issues. This will remain so. After all, this is the concentration of my legal practice. However, most of the questions I receive from readers are about other, more general areas of the law. So while the news and opinion articles contained on this site will still stay focused on Cyber Law, I have decided to include articles answering questions from readers on more general areas of law.
So, if you have any legal questions in a general area, be it, real estate, estate planning, or personal injury, ask away!
When I purchased my first internet law casebook, it was the lightest casebook I ever bought. The subject matter was so new, there was not nearly enough material to fill the book. At the time, the focus of the cases were creating means to use existing “terrestrial” law and apply it to online activity. The debate has turned to whether or not there needs to be a separate set of laws to govern activity on the internet.
Such a debate is now playing out in California, home of Silicon Valley, and Facebook. Governor Jerry Brown has signed a bill into law directing the L.A County Sheriff and the Alemeda County district attorney to monitor the internet to help determine whether or not California needs a new set of state laws to deal with Internet-related crimes. Specifically, they are directed to compile statistics related to identity theft, stalking, child molestation, and other internet related crimes for a period of one year. law From the L.A. Times.
“One of the most effective weapons in the fight against cyber-crime is accurate data and information,” said Evan Westrup, a spokesman for the governor.
State Sen. Ellen Corbett (D-San Leandro) introduced the measure a year after Facebook, Google, Twitter and other companies successfully lobbied to kill legislation she promoted that would have allowed parents to restrict their children’s personal information on social networking sites and limit disclosure of information about adults.
It seems that this bill was largely designed to create a justification for Corbett’s original bill, in order to bolster support and counter act the actions of social media and search engines who worked to kill the bill. It is much easier to build a support base for restrictive legislation if you can show evidence that such a restriction is necessary. In other words, this is a first step towards state governed internet restrictions.
I am proud to announce the new website for Skyles Law Group, LLC, the law firm which runs Ask a Cyber Lawyer. Please take a look!
I founded Ask a Cyber Lawyer to help people with their internet law needs. Now I am pleased to offer you all of my firm’s legal services. If you have a legal issue that needs to be addressed, please contact me. Note that all of the pages inside the site have a contact form. My firm is here to provide professional legal services to the public. Do not hesitate to call or email me!
I usually do not blog on political issues, or issues as related to law outside the realm of digital media law or cyber law. I had actually planned to write an interesting article about e-discovery today, but I have been requested by friends to address today’s ruling on the Affordable Health Care for America Act, as decided in today’s decision of National Federation of Independent Businesses v. Sebelius, No. 11-292 (S.C.O.T.U.S., June 28, 2012).
All politics aside, my first feelings foremost are that courts should rule on issues as a matter of law, not politics. As Robert Bolt, under the character of Thomas More, wrote in the play A Man for All Seasons, “Men must rule themselves by their wits, this court must rule according to the law” (Act 2, Scene 9). The most important part in my opinion is not that the law was upheld under the tax and spending provisions under the constitutions, it is that the Court has limited the use of the Commerce Clause, stating specifically that it cannot be used to force individuals to make purchases in the stream of commerce. More importantly, the Supreme Court has limited the power of the federal government to bully the states into enacting state laws that bend to their desires.
From a Constitutional Law perspective, the Commerce Clause is the bane of every law student’s existence. It has been used to expand the powers of government, for good and for evil. In Civil Rights law it was used to end laws discriminating against African Americans, who wanted to eat at lunch counters. During the Great Depression, it was (and is still being) used to regulate crop production, even when the crops are for personal use. It is currently the reason why Amazon Taxes are probably unconstitutional. In general the Commerce Clause has been used to increase federal government power, and decrease the ability of the states to exercise powers left to them in the Constitution. By stating that the Commerce Clause cannot be used to force individuals to purchase health insurance, this is the first time, at least that I have seen, that the Supreme Court has limited the power of the federal government under the Commerce Clause.
Likewise with the Necessary and Proper clause, likewise, has been a source of almost limitless power of the Federal Government. This too has been limited in stating that the Federal Government cannot use this power as a means to force individuals to purchase health insurance.
The only measure that survives is the Tax and Spending clause, which the Constitution states explicitly, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (U.S. Const. art. 1, § 8, cl. 1.). By doing so, the provision which forces the individual to pay a fine if they do not purchase health insurance is now qualified as a tax. As a matter of practicality, when an individual refuses to purchase insurance, that act triggers an extra payment to the IRS on their tax return. So the court concluded under the tax and spending clause, such a payment would qualify as a tax.
The other significant portion of the Act, dealt with state mandated medicare payments. This, in my opinion, is a really big one. As we know from history, the federal government from time to time will threaten to withhold funding to the states to finance federally mandated programs if they do not comply with some aspect of federal law. The most common example was when the federal government threatened to withhold federal highway funds to the states, if the states did not raise their drinking age to 21. In this case, the Federal government threatened to withhold all medicaid funding if they did not raise their eligibility to everyone whose income was within 133% of the federal poverty guidelines. The court said emphatically, that the federal government could not do that, describing the matter not as encouragement but as a “gun to the head” of the states. This again, limits the ability of the federal government to coerce the states into acting at their behest.
Lets look at the tally.
Commerce clause can enforce individual mandate No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Necessary and Proper clause can enforce individual mandate: No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Tax and Spending clause can enforce individual mandate: No: Scalia, Alito, Thomas, Kennedy
Yes: Roberts Ginsburg, Kagan, Sotomayor, Breyer
Federal Government can coerce states to change Medicaid laws: No: Roberts, Scalia, Alito, Thomas, Kennedy, Kagan, Breyer
Yes: Ginsburg, Sotomayor
So, in other words, this court limited the power of the federal government in three key ways, while still receiving the adulation of the President who’s mission it has been to increase the power of the federal government. It may seem genius, but I don’t think that is how the Chief Justice intended for this to happen. I think he was aiming for a 6-3 vote to avoid a split 5-4 opinion, and it backfired. When the Supreme Court goes into conference after oral arguments, the Chief Justice is always the first to speak and the first to vote. I think he was trying to do so in a way to entice Justice Kennedy to side with him and make it an all around 6-3 decision at least on the tax and spend clause, to make the court appear less partisan. It didn’t work because Justice Kennedy decided to support the more conservative block.
The Chief Justice is an intelligent man, who I agree with philosophically on the nature of the law. It is not up to the Courts to determine whether or not a law is wise, that is the purview of the congress and the people. It is merely the court’s responsibility to determine whether the laws are constitutional. In this, I think he is the least activist, and least partisan member of the court. He approaches the law, not with a result in mind, but with a strong mind and strong legal reasoning. He has here, as he has in the past, left it to congress to determine the laws by which we the people will be governed. I think we have a better means to predict how the court will rule in future occasions.
A few days ago I wrote about the case of Andre Walker, who is being sued for defamation by Georgia Democratic Party Political Director, Ali Rashad Richey. In the post I mentioned how the causes of action were pretty much moot from the beginning, and how the purpose of the lawsuit was not to win, but merely to silence Walker.
Today, Ask a Cyber Lawyer received a copy of a letter from Walker’s attorney to Richey’s attorney, which both responds to the claims made, and demand to withdraw the complaint, or else Walker will proceed with a claim under the Geogia Abusive Litigation Act. O.G.G.A. §51-7-80 et seq. The full text of the letter is below:
When you are threatened by a corporate entity, a political party, or a government body, for items posted on your blog. Do not panic. Contact an attorney (preferably Skyles Law Group) and you will be taken care of. Make sure that they not only lose, but that they are hurt in the process. Andre has not backed down. He is continuing to voice his opinion. His work can be seen at Georgia Unfiltered.