Category Archives: News
Reforming Electronic Privacy Laws
Laura Murphy and Grover Norquist
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.
In the Wake of a National Tragedy…
Before I was a licensed attorney, I worked in journalism, not as a reporter, but as an analyst. I am very well aware of the ethical standards that “should” apply to the media profession, but often doesn’t. Today we are in mourning for innocent lives lost in Connecticut, but in the rush to get a story, the media botched items up big time. In attempting to identify the shooter, the media identified and broadcasted the name and image of the wrong man. Fox News, CNN and CBS named the shooter as “Ryan Lanza”, when in reality it may have been this man’s younger brother “Adam Lanza”.
This man is not a murderer. He is a victim of a press without scruples.
Apparently, according to Business Insider, Mr. Lanza took to his facebook account to vent his frustration.
This man may have lost his father, his mother, and his brother today, along with the feeling of being associated with one of the worst cases of mass murder in history. His name has been broadcast as the perpetrator of a horrible crime at the same time. Above everything, he needs to have our sympathy and prayers. The media really screwed up big time today. There are several causes of action Mr. Lanza could have against the agencies that reported this blatantly irresponsible information. Among them, invasion of privacy- false light, and defamation. Mr. Lanza did not ask to be thrusted into the situation. He was put there by grossly negligent actions of several large news agencies.
While I can never feel what he’s going through I can sympathize. A few years ago, a friend of mine had a sibling (who I had only met once), who was involved in a mass school shooting. The press was not sympathetic to her either, but at least they didn’t accuse her.
If Mr. Lanza reads this, I am more than willing to take on the case, free of charge, and I will work as hard as possible to see that he receives a just and fair result.
Patraeus Scandal and the Outdated Nature of Internet Law
We live in a world fueled by sensationalism, and a media that is obsessed with a washed up former child star, and a woman with physical features out of a 90′s west coat gangsta rap, made famous by a sex tape. Unfortunately, I work and write in a field where there sensational headlines are few and far between. So when there is a scandal where my line of work, which can be analyzed from a cyber law point of view, I must take advantage of it.
So it is with the David Patraeus love pentagon, yes it ironically is a love pentagon. The entire scandal blew up because of emails. You thought there was some expectation of privacy in emails, you were dead wrong.
The reason why the FBI was able to get such easy access to the emails is because under the grossly outdated Electronic Communications Privacy act of 1986, yes its been 26 years since comprehensive electronic privacy litigation has been drafted, emails under 6 months old can accessed with just a subpoena. No warrant necessary. Because the emails in question were less than 6 months old, the FBI was able to gain access to them without a warrant. Guess what? The same can happen to you.
The 1986 law was drafted in an era when the only people using email were government employees, the military, and some very highly sophisticated businesses. The only access most people had to the internet was through ancient modem based programs like Prodigy. Because of the limited nature of email communication, the law made sense at the time. It does not do so now.
What was they government proposed solution? According the rumors last week there was a proposal last week by Senator Patrick Leahy, to make any and all emails accessible by subpoena. A rather draconian answer to what should be a simple question. The answer is to extend the legal expectation privacy to all emails, including those less than 6 months old, in order to ensure that people’s 4th amendment rights are not violated. In circumstances such as the Patraeus scandal, access would be grained to those emails by a warrant on showing of probable cause.
On a related note, laws concerning the breach of internet privacy are equally outdated. Companies (and especially government bodies) which do not adequately protect personal information, often avoid consequences because federal laws offer almost no individual protection, and state laws often offer little individual protection. The burden of proof in showing negligence on the part of plaintiffs is costly and often insurmountable. In the days where cyber attacks are becoming more and more common, and firewalls become weaker and weaker, greater incentive needs to be placed on the part of government and private industry in order to protect individual privacy.
Congresswoman Crowdsources Legislation on Reddit
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.
Privacy in California, Online and on your Phone
Interesting developments on internet related privacy law in California. First, Governor Jerry Brown signed a bill which makes it illegal for employers to require individuals to turn over their password to their email and social media network accounts. Second, Governor Brown vetoes a bill which would require police to obtain a warrant before using cell phone or tablet computer tracking information to find an individual’s location.
Both issues involve an individuals expectation of privacy, and whether or not the information which is made available electronically diminishes that expectation. In my opinion, the reasonable divider between expectation of privacy is built on whether or not the information is made available to someone for commercial or other use.
On the issue of email and social network accounts. I would tend to look at those issues as being two separate items. In general, individuals do have a reasonable expectation of privacy in their own personal email accounts, not so with their work accounts. The content of emails is private, and no one other than the individual who has access to the account has access to that information. It is not used for tracking individuals webviewing or buying habits. The content is not analyzed for commercial use, and individuals are not shown advertisement based on the content of their emails. In otherwords, no one other than the user, uses that information. It is completely private.
In general, social networks are different, even under the strictest privacy settings, information posted on facebook and twitter is made available to (guess who), facebook and twitter. Even under their own privacy rules, social networks can and do use the information you post for commercial use. Often it is for targeting advertising, demographic studies, and other means made available to marketers for targeting and trend analysis purposes. With the signing of this bill, it appears that privacy rights with regards to employers, has been extended to include social networks. However, it has not extended the legal notion of “reasonable expectation of privacy” with regards to the governments ability to track information on social networks, or use it in establishing probable cause.
Same goes for tracking systems on cell phones. Every company you give permission to track your location on your mobile device, uses that information for some commercial purpose. So when you give goolgle maps “permission” to use your location, you may be allowing them to find out where you go and when in order to figure out your habits. This again may be used for targeting purposes.
So guess what, if you give access to a company information for their own use, even though you may think it is private, you have voluntarily dimished your own reasonable expectation of privacy. And, so if companies can use the information, in general that means the government can too.
Skyles Law Group Website Launch
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!
My Analysis of Today’s Supreme Court Ruling on the Affordable Health Care for America Act
The current Justices of the Supreme Court of the United States
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.
There was really a law against lying on the Internet?
This morning, I came across an article on Fox News about the Rhode Island legislature repealing a law that made it a crime to lie on the internet. The law, which was passed in the prodigy dominated internet era back in 1989, made lying on the internet punishable by up to a $500 fine and 1 year in prison. Criminal lawyers know this type of punishment as the highest punishment you can get with a crime that is just a misdemeanor.
In 1989 this might have made a little sense since the only people using the internet for anything other than looking at an encyclopedia and maybe some shopping, were government officials and the military. It may have at one time been necessary to enforce honesty in internet communications. However, I don’t think it was ever really enforced because there is no way the law would pass first amendment scrutiny in the courts. Still, this is a law that I am sure everyone in America broken. Here is a list of things that would qualify as a crime under this law.
- Posting an older picture of yourself on facebook, claiming it was new.
- Shedding 10lbs off your weight in a dating profile
- Claiming to have worked with Mario van Peebles on a TV show when you were just an extra (actually that would probably be O.K.)
- Photoshopping yourself in your profile picture
- Every single World of Warcraft avatar
- Being a politician who’s political speech just happened to have been posted online
- Posting a picture of your cat talking in broken English (Cat’s don’t talk… really they don’t)
- Saying you’re in corporate management, when you work the night shift at 7-11
You see how this can get a little hairy? So what “crimes” do you think people routinely commit on the internet?
Missouri Supreme Court strikes down part of Cyber-bullying law
In general I am opposed to setting aside separate laws for “cyber-bullying”. Bullying is bullying, and while it is easier to do it anonymously online, it should be treated the same as if it were through any other medium, such as random phone calls, and anonymous letters. The problem is, they are usually extremely broad and vague, such as the Tennessee version I have blogged about in the past.
This is exactly what happened here. The law was partially struck down because portions were “void for vagueness”, and therefor violated due process clause the 14th amendment of the United States Constitution. The Missouri cyber-bullying law came about from a bizarre case five years ago when a teenager committed suicide after being humiliated by a classmate’s mother who was posing as a teenage boy she developed a relationship with.
This case dealt with criminal charges against defendant Danny Vaughn, who was charged with criminal burglary and harassment in 2010. According to the Washington Post, Vaughn entered into the residence of his former wife, and repeatedly made unwanted and harassing phone calls to her, which triggered the cyber-bullying portion of the statute.
Under the applicable portion of the statute(Section 565.090.1, RSMo Supp. 2008) harassment occurs when an individual.
(5) Knowingly makes repeated unwanted communication to another person; or
(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person’s response to the act is one of a person of average sensibilities considering the age of such person.
The court ruled that both these portions are unconstitutional because they can be used to criminalize constitutionally protected free speech, specifically with the terms, “frighten”, and “intimidate”. They also opined that “Knowingly makes repeated unwanted communications” was both to broad, and could also be used to criminalize protected speech, especially political speech.
In my opinion though, even in its reduced form, the law could still have been used to prosecute that mother who harassed the teenage girl into committing suicide, so its original purpose remains intact. I do agree with the court that the constitutionally vague portions of the law must be addressed in the legislature.
Judge subpoenas “Anonymous” blogger to appear
I put this in my “scratch my head” and go “hmmm…” category, just because I have never seen this before.
A judge in New York as subpoenaed an anonymous blogger who goes by the pseudonym “Alfred Little“. A Chinese consumer products company has sued “Alfred Little” for defamation an for blog posts he has written accusing Deer Consumer Products of fraudulent transactions, which resulted in a drop in share prices. Deer is seeking damages amounting to $100 million for lost in trade revenue, according to the Chicago Tribune.
What makes this case interesting is the fact that the blogger is anonymous. In most cases, the most difficult part of going after an anonymous defendant is finding the defendant. Most of the time it involves hiring forensic investigators to search IP addresses to find the defendant. This can be expensive and time consuming. The plaintiff would have to spend a lot of money merely to find out who they are actually suing. Unless you have the means to actually find the defendant, you cannot subpoena him.
In this case, the defendant hired counsel, which means they established contact with the court system. This means that through his attorney, “Alfred Little” is a known entity, and can be subpoenaed through his attorney. That may be his downfall, however, there is still grounds for appeal. The trick is, if he actually answers his subpoena and appears, his cover is blown. If he does not appear, “Little” can be fined and put in jail for contempt… that is, if someone can actually find him. His actual identity is still covered under attorney-client privilege, and it appears his attorney is the only person who actually knows who “Alfred Little” really is.
James Skyles
