Category Archives: Questions from Readers
Question: Can I sue someone for impersonating someone on the Internet?
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.
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.
Question: Something I posted on Scribd was removed, am I liable?
I know I have not been writing much lately. I have actually been busy doing things like, oh… practicing law. I did get this question the other day, which I think is worth writing about
Dear Ask a Cyber Lawyer,
I posted a service manual for an old Honda lawnmower (around 1983) I own on scribd; it was my first upload there. A few weeks later I received an email from scribd indicating it had been removed at someone’s request. A little digging found it was some law firm. I had in fact poked around scribd looking for similar material (i.e. service manuals for mowers, tractors, etc) before posting. There are plenty of similar manuals with copyright notices on their pages so I figured it was OK.Will it most likely end here or am I going to get sued by someone now?
Will it end there? Most likely. As long as you weren’t making any profit from the posting, and as long as Honda was not losing money because of the posting, there is not much financially they can go after you for. It would definitely cost Honda more to go after you for liability then they would ever receive in return. So this will probably end here, and you won’t get sued. Now, if you decided to put the entire Harry Potter collection on Scribd, that would be a different story.
Question: Can a Potential Employer Request My Facebook Password?
A loyal reader sent this via email:
Dear Cyber Lawyer,
I recently had an interview at an electrical engineering firm in *redacted*. During the interview, the HR manager asked me a few questions about internet usage, since most of my work would be on a computer connected to the network. She then asked me for my facebook username and password as part of their “background check”. I told her that I did not want to do that as I felt it was an invasion of my privacy, and quietly left the interview a few minutes later. Can an employer really ask for that kind of information during an interview?
This area of law is somewhat gray. Some states are starting to pass privacy legislation that would prevent potential employers from asking that for that kind of information during an interview. However, absent this sort of legislation, the answer is probably “Yes”. I know, it really sucks but it is true. There are generally two types of questions that cannot be asked during an interview, first would be questions dealing with a protected class, such as race and gender related questions. The second type are questions where the interviewee has a reasonable expectation of privacy. What is a reasonable expectation of privacy? It is a legal term of art meaning where the public would not normally have access to this information, bank accounts for example. In criminal law, a person has a reasonable expectation of privacy on what goes on inside the home with the shades down, but not in what goes on in the yard. Does an individual have a reasonable expectation of privacy in what they post on facebook? Well actually, probably not. When a person posts information on facebook they are actually making that information available to the public in a limited form. Even though a person may have their privacy levels set to the highest levels, this does not negate the fact that they are acting with the intent to make that information available at least to certain members of the public.
Do you have to give them the answer? No, but then again, you probably would not get the job if you refused. I probably would think twice about working for an employer who asks that sort of question in a job interview.
QUESTION: Is having a fake facebook page cyberstalking?
A Reader via email asks:
My daughter has had a “fake” Facebook page the past few years – not her real name, to stay anonymous but interact with people who like the same music she did. The fans are more than a little strange and she was only 19 at the time. She interacted with a young man on facebook and email approx 5 months who wanted a relationship with her, without ever divulging her real name/address/phone. She decided against it and ended contact with him a few weeks ago. Now he’s claiming my daughter was stalking him, impersonating someone she wasn’t and that he’s going to sue her for “anything my lawyers can think of.” I’m wondering what she might have done that could be considered illegal. I’m seriously concerned if this guy can actually hunt her down to our actual address with this threat of legal action.
Ok, here is the deal in plain terms. With the limited information I have, the only trouble your daughter probably caused was a violation of facebook’s terms of service. Facebook requires that users must be real persons and do not allow for any sort of pseudo-persons as users of their site.
The only way she could have stirred up some legal troubles is if she impersonated a real person, particularly a celebrity. This would possibly fall under the tort of invasion of privacy- appropriating a false identity. It doesn’t seem to be the case here.
As far as cyberstalking is concerned, the definition differs from jurisdiction to jurisdiction, but in general it is the unwanted and repeated intrusion into another person’s real-life vis-a-vis the internet. It does not look like she has done this, however, her accuser may be liable for cyberstalking himself. False victimization, or wrongly accusing others of cyberstalking is a form of cyberstalking in and of itself. Contacting her through the internet after she has made it clear that she does not want to be contacted is another, more obvious form of cyberstalking. If I were in your daughter’s situation I would make sure that he has no way of accessing her personal information.
Disclaimer: 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.
Question: Copyright Infringement as applied to Cyber Law?
A college buddy of mine, who is now a Scientist/Mathematician out in California, asked me this question:
I’m curious how liability is transmitted through software licenses. Suppose that A writes some code and submits under a two-clause BSD license. (For the benefit of other readers, that means the author gives users permission to do whatever they want with the code, and disclaims all responsibility for whatever happens when running the code.) Then B makes a derivative work from A’s code and releases it under modified BSD, and C does the same with B’s code. Now suppose that A’s original code release was itself a derivative work of software under a restrictive license not compatible with the modified BSD release. Clearly A was negligent. What about B or C?
With regards to cyber law, while most of the particulars have not been worked out, the general principals still apply. This is true especially with intellectual property issues and negligence. In this case, even though B and C did not know of, or were party to the infringement, by the mere fact that the original owners intellectual property rights were violated by the actions of B and C would make them liable. A’s negligence does not absolve B and C from the effects of A’s negligence in that they too have violated the original programmer’s intellectual property rights. However and this is important, B and C may not have to pay any damages. When it comes to determining fault, the court will weigh how much fault should be applied to B and C, and the affect A’s actions have on the culpability of B and C. Most likely, the overwhelming negligence of A would preclude the original owner from getting damages from B and C.
Disclaimer: 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.
QUESTION: Three Questions on Illegal Downloading
A Reader from Colorado writes via email:
Dear Ask a Cyber Lawyer:
I have three questions on illegal downloading.
Q1: How do prosecutors prove illegally downloaded files are actually what their name says they are? For example, couldn’t BEATLESSONGNAME.MP3 be a garbage file? In which case no infringement occurred…
Q2: HOW do they know you downloaded? If they share to you, aren’t they also sharing?
Q3: If you only have part of a file, is it still illegal? If so, why?
Q1) Digital forensics rarely uses filenames as far as evidence is concerned aside of making it “human readable” for consumption by juries. If they have access to the file, they can simply play it. In file sharing cases, there is nothing preventing law enforcement or the RIAA (and friends) from accessing what you offer for download and playing it themselves.What is typical done with digital evidence is creating what is called a “cryptographic hash” of the file. This basically uses a complex mathematical formula to create a unique string of letters and numbers that shows the content of the file is unchanged. The mathematical formula is designed so that very small changes create very big differences in the hash value. Using this method, you can have a high-degree of confidence of what contents of a file (assuming you have a table) without having to worry about the filename. For instance, child pornography is usually archived by hash values by federal law enforcement and authorities can usually pinpoint a given picture to not only the victim, but the time and place of the assault.
Q2) The typical pattern of file sharing prosecutions or civil litigation is not to do “entrapment” (i.e. setting up a sharing site of their own and nailing everyone who downloads), but to find a hub of file sharing and see who is using it. This can be done a variety of ways from standard discovery or a wiretap order. If they have a wiretap order, they can simply see who connects to the fileshare, identify them, and go after them. If I worked for the RIAA (and I never will), wiretapping would be the primary tool I would use. (Under the provisions of the Patriot Act, a wiretap order is fairly easy to obtain)
Q3) That depends. It’s analogous to having “part” of a book. There is no bright-line between how much of a book you can use where fair-use becomes copyright infringement. I would imagine if you created 20-30 second cuts of a music file to distribute as ring tones (especially if you charged), then you could be liable for infringement. If you download a couple of random “blocks” of a music file that is unusable, I’m not sure that’s infringement. The two biggest things that get someone into trouble with copyright infringement is distribution and trying to “sell” content. If you aren’t doing one of those two things, you are “probably” ok. (I concur with this generally as a rule of thumb, that this would fall under fair use, just make sure that the clip is only a small portion of the entire song, especially if the track is short. The Beatles “Her Majesty” is only 23 seconds, so a 30 second clip would be the whole song and then some. This would not fall under fair use. However, no matter how long the song is, don’t use more than 30 seconds)
Disclaimer: 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.
Question: Can I blog about something I read in a book?
A reader from Illinois asks via facebook:
Dear Ask a Cyber Lawyer,
Is it legal to write blog postings about something I was reading in a book, if I say its from that book?
One of the services I provide through Skyles Law Group, LLC is training for journalists and bloggers on basic copyright law, so I am very familiar with copyright issues involving using outside sources.
In general, you can quote all you want from articles, as long as you cite where it is from somewhere in the article. If you are quoting from something you find online, it is a courtesy to link back to that webpage. Copyright is a tricky issue because technically, the use of copyrighted material is a violation of the owners copyright. The law has created a large amount of defenses to copyright violations, most prominently “fair use”, which allows for many exceptions where copyrighted sources can be used. Here are a few rules to follow.
1) If you block quote from an article, do not make it more than a few paragraphs.
2) In each blog post, make sure the original content is greater than the quoted content. This ads weight to the argument that the piece is an original work.
3) Again, if you cite an online source, always link back. They will appreciate the increase in SEO and traffic to their site.
4) Do not quote from Reuters or AP as a source. Reuters and AP are wire services that share articles only with sources that subscribe to their service. They are very trigger happy, and under the DCMA, it is shoot first, ask questions later. Once you get a DCMA takedown notice, you MUST COMPLY within 24 hours.
Other than that, have fun blogging!
Disclaimer: 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.
QUESTION: Can I access my former employers server?
I received this email question from a loyal reader.
Dear Ask a Cyber Lawyer:
I recently left my job with my former employer. To smooth out the transition, I was given oral permission to access their email accounts and server. Is it OK for me to access the company email and server if they requested orally to do so? Is there any liability?
If you have oral permission to access the company email and servers, then there is no problem with you accessing the servers. However, the problem with oral agreements is that it is difficult to maintain evidence of that agreement. To solve this, here are a few suggestions.
1. Get an email from the person who gave you the permission merely stating that you have permission to access the email and the servers for the limited purpose of smoothing the transition.
2. Every time you log in to the email and the servers, send an email to the person who gave you permission stating what exactly what you accessed.
3. When you email the person who gave you permission, include the phrase “per your permission”, or something to that effect in the communications to be sure that both you and the other party know that you are doing this with authorization from the company.
The bottom line is, you have permission. The main purpose of the emails is to show “evidence” of that permission. Other than that, you should have nothing to worry about.
Disclaimer: 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.
James Skyles
