April 17th, 2013
Business travelers and vacationers typically send work-related emails while on the road. It also is not unusual to share files (or access to files) while traveling. But can that lead to jurisdiction over you in a wayward state?
According to Swanky Apps LLC v. Daren Horning and Roony Invest & Finance, S.A., the answer is “no.”
A dispute arose between the parties and suit was filed in Miami. The Defendant filed a Motion to Dismiss, raising the lack of personal jurisdiction.
The facts involve the Plaintiff, while temporarily in Florida, making a phone call to Defendant in New York. While Plaintiff was in Miami, the parties also exchanged emails and Defendant was permitted to remotely access Plaintiff’s computer to download or edit files. The court repeatedly referenced that the Plaintiff was in Miami “temporarily” which sounds like a business trip or vacation. The parties have no other Florida contacts.
Bottom line: receiving calls from Miami Beach and exchanging emails and files with someone “temporarily” in Miami, without more, does not create jurisdiction.
March 28th, 2013
In the aftermath of the Sandy Hook and Gabrielle Giffords’ shooting stories (and hundreds others), the National Rifle Association and other gun proponents have argued that video games are a contributing factor — if not the reason — for gun violence in the United States. It was suggested by the NRA that the Center for Disease Control undertake a study to detect a connection.
We have, however, a long history of blaming entertainment for societal ills… even to the point of Congressional hearings on the comic book.
Moreover, as a legal issue, we’ve been down this road quite recently — the 2011 US Supreme Court decision of Brown v. Entertainment, which discussed these very issues at length as well as the “evidence” surrounding a connection between games and guns.
The article, Don’t Bring a Video Game to a Gun Fight, discusses these issues in the March 2013 Palm Beach Bar Bulletin.
The discussion continues and we could probably clean up much of society in a number of ways to fix gun violence. Re-read Brown and see how you feel about spending time and money on video games (and whether laws regulating video games are worth the effort).
March 22nd, 2013
In Timothy Ryan O’Leary v. State of Florida, the First District held that Defendant’s threat of bodily harm posted to his Facebook page was “sent” under Florida Statute 836.10 (“Written Threats to Kill or Do Bodily Harm”) because it was viewed by Defendant’s Facebook friend who was a family member of the victim.
The court held that the statute is violated when (1) a person writes or composes a threat to kill or do bodily harm, (2) the person sends the communication, and (3) the threat is to the recipient or a member of his family.
Here, Defendant went on a rant about a relative, posting on Facebook that he was “gonna fuck you up and bury your bitch ass. [...] I’ll tear up the concrete with your face and drag you back to your doorstep.” The entire post is set forth in footnote two of the opinion.
Without comment, the court deemed this post to be a threat to kill or do bodily harm.
The court held that the post was “sent” since the statute was amended in 2010 to include “electronic communication” and that, by the very nature of Facebook, “it is reasonable to presume that the [Defendant] wished to communicate the information to all his Facebook friends.”
Finally, the Defendant had previously sent a Facebook friend request to one of his relatives, Michael. At the time the post was made, Michael had accepted the request and was a Facebook friend of the Defendant. Michael showed the post to another relative, who then showed it to the victim (it appears all persons were related). The court concluded that Michael was the recipient and the threat was directed at a member of Michael’s family.
Both the trial and appellate court made note of the fact that Defendant’s Facebook page was public at the time the post was made. It appears the trial court relied in part on the public status of the Facebook page when it ruled on whether the post was “sent.” In what appears to be dicta, the First District notes that “electronic communications” on the Internet are frequently not direct communications but sent to groups on social media sites. Thus, this opinion may leave to future cases the specific question as to whether a public post on a social media site is “sent” to a victim.
February 22nd, 2013
A bit off topic of Internet law, the discovery by the Associated Press of an Al Qaida memorandum on how to avoid detection/death from American drones is a technology story worth discussing. The news coverage on this has been bleak.
On the other hand, there has been plenty of coverage of the U.S. memo entitled the Lawfulness of a Lethal Operation Directed Against U.S. Citizen Who Is A Senior Operational Leader of Al-Qa’ida or an Associated Force.
So now you can read both memos, back-to-back.
The Al Qaida memo has seemingly not hit the news yet – google “Al Qaida memo drones” and only one story appears in Fast Company, Terrorists May Know How to Avoid Drones, Memo Says.
If you thought that Al Qaida had a lack of technical experience, this memo enumerates 21 ways to avoid drone detection (starting with hiding from under a tree and then it moves towards jamming frequencies). There is even a discussion of the “War of the Drones” and how, according to Al Qaida, the US moved from F-16 fighters to less expensive drones. Shockingly, it discusses using a $3,000 system called Skygrabber which you can buy off the internet at Skygrabber.com. There is a YouTube video showing how Skygrabber can intercept (or at least in 2009) Drone communications.
For context of the US memo, Michael Isakoff’s (NBC) article on the revelation of that report is here.
Special thanks to Gizmodo, which brought the Al Qaida story to our attention (their article includes both the original Arabic as well as link to the English translation, if you are so minded to check that out).
February 19th, 2013
Special thanks to the Palm Beach County Bar Association for hosting the CLE, 2013 Florida E-Discovery Seminar.
This seminar discusses:
1. Top Ten Things to Know About E-Discovery (from Chin to Zublake, Litigation Hold Letters to Predictive Coding)
2. New Florida E-Discovery Rules (SC11-1542)
3. Sample Litigation Hold, Responses, Internal Letters
4. Social Media Discovery
The Powerpoint for the seminar is here. The sample letters are here. Also on the right column of this site under Materials.
January 19th, 2013
A New York court has held that, based on a “survey of social media case,” that there is a two prong test for production of Facebook content which includes developing facts before conducting certain discovery. The court notes that Facebook production is “tantamount to a costly, time consuming fishing expedition…” Moreover, the decision discusses privacy rights in the context of Facebook posts.
Assuming this opinion accurately cites to New York procedural rules, they are markedly different than federal (or Florida) standards.
Some issues with the decision:
The court’s “survey” of social media cases… was three cases. THIS
is a survey of social media cases. Not merely three cases.
That two prong test (supposedly arising from those three cases) prioritizes some forms of discovery over others and turns a blind eye to the wide discovery that’s permitted in business context.
Facebook production is not costly, nor time consuming. It’s free and easy. See the 4 steps here
If there is a case finding Facebook posts to have privacy protections, it’s an outlier. Most cases hold, like the one New York case, that a post is akin to yelling out the window.
Here in Florida, even a private diary is discoverable. Suggesting that there has to be some “predicate” before paper discovery puts a magical wall around social media which a party can construct by downplaying or denying what’s inside.
January 11th, 2013
This article discusses the Patreaus affair from the standpoint of practical email privacy tips for lawyers, law firms, their clients, and families.
A brief explanation is provided how emails (or even fake email addresses) are traceable with free software and what data exists on the person’s computer to show what sites have been viewed.
This article appeared in the January 2013 edition of the Palm Beach Bar Association Bulletin.
January 5th, 2013
Want to know how to find (or hide) on a computer what websites were visited, what images were viewed, and what files were deleted? Even if you are not a computer forensic specialist, you can find this information using basic steps and free software on the Internet. This is helpful for inhouse counsel, lawyers, and even parents.
Surprisingly, these steps are considered so easy, that Judge Posner of the Seventh Circuit stopped short of claming, “even a judge could do this.” Instead, he notes that “despite the availability of software for obliterating or concealing incriminating computer files, the use of such software is surprisingly rare.” Well, maybe. CCleaner remains a frequently-sought program at Download.com. The case is United States v. Seiver.
Learn computer steps and evidence standards in the November 2012 article from the Palm Beach Bar Association, What Does a Child Pornography Case Tell You About Computer Evidence?
December 17th, 2012
There has been criticism that the all-too-familiar cell phone bars on your iPhone are not entirely accurate. There is a (reversible) trick to show reception in decibels, not bars.
This gives you a number (sadly, for me, usually ranging between -100 and -80) which is a more precise measure of signal strength. The closer you get to zero, the stronger the signal. Between -50 and -75 is considered excellent. Because of how decibels work, movement from, say, -95 to -90 is a bigger move than -85 to -80 (study up on decibels here or just trust me, closer to zero is better). You can always tap on the decibels and it will revert back to bars.
1. Go into Phone and, as if you were dialing a phone number, hit *3001#12345#*
2. It will go into a field test mode. Tap the decibels/bars in the upper left corner and you can see it switch between them.
3. Hold down the power button (top of iphone) until the “slide to power off” appears.
4. Don’t power off. Now hold down the Home button (circle) until it drops you back to your main home screen.
5. You can now flip between decibels and bars.
December 14th, 2012
The federal Stored Communications Act (SCA) does not protect text messages, photos, and video on a cell phone since the phone is not a “facility” nor an “electronic communication service” as defined in the federal statute. An employee had her phone taken from her work locker and inspected for potential violations of policy. She was fired. She claimed, among other things, a violation of the SCA but lost on summary judgment.
The Fifth Circuit affirmed finding that the (undefined) term of “facility” did not include personal computers or cell phones and are more often the ISP or cell provider. The personal devices enabled the use of the “electronic communication service” (ECS) and not what the ECS providers use to store and maintain data. Likewise, the data on the phone was not “electronic storage.”
The case is Garcia v. City of Laredo et al.
A comprehensive background on the SCA is Orin S. Kee, A User’s Guide to the Stored Communications Act and a Legislator’s Guide to Amending It.
November 30th, 2012
A husband discovered that his wife had accessed his email account and, according to him, she also threatened to shoot him. So he sought a domestic violence injunction. Ultimately, it appears that there was no evidence that the wife made the threat about the gun however, at the hearing, she admits to accessing the email account, making copies of some emails, and filing some of the information with the court. The trial court likened the admitted behavior to cyberstalking and entered the domestic violence injunction.
But is accessing an email account the same as domestic violence? In Florida, an injunction against domestic violence has to be premised upon some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. The First District concluded that the wife engaged in “improper behavior” but that it did not constitute domestic violence. More specifically, the single episode of accessing a spouse’s email account did not meet the standards for harassment, stalking or even cyberstalking.
The First District’s opinion in Cheryl Young v. Michael Young is here.
For further examination of the issue, the only brief filed in the case is here.
November 28th, 2012
Both the ABA and the Am Law have come out with recent surveys confirming that nearly half of the lawyers using a smartphone choose iPhone and over 90% of tablet-lawyers are using an iPad. No surprise. But are they using their iDevices correctly?
Check out this one-page guide for lawyers on some easy tricks, tools, and techniques for maximizing the value of your iDevice.
Thanks to the Palm Beach Bar Association for permitting the re-print from this December 2012 Bar Bulletin.
Article is here.