Supreme Court Overturns Conviction Related to Facebook Threats

In Elonis v. United States, U.S. Supreme Court, Case No. 13-983 (2015), petitioner sought relief from a conviction related to his Facebook posts that were deemed to be in violation of 18 U.S.C. §875(c), the transmission in interstate commerce of “communication containing any threat . . . to injure the person of another.”Petitioner argued the jury was provided with inappropriate instructions that required only a reasonable person standard, without any showing of subjective criminal intent, to determine whether his statements on Facebook would be regarded as a threat.

Back in 2010, after petitioner’s wife left him and he lost his job, he began to post rap lyrics on Facebook that contained violent language and imagery concerning his wife, former co-workers, the police force, and local schools. Petitioner’s former employer informed the FBI who began monitoring his Facebook activity and eventually arrested him for violation of §875(c). 

In 2012, when issuing jury instructions, the U.S. District Court for the Eastern District of Pennsylvania followed the decision in United States v. Kosma, 951 F.2d 549, 557 (3d Cir. 1991) related to §875(c), and held that a statement is a true threat when a reasonable person would foresee the statement would be interpreted as a threat. Following those instructions, the jury convicted petitioner and he was sentenced to 44 months in jail.

In 2013, on appeal to the Third Circuit, petitioner unsuccessfully argued that the jury instruction should have required the Government to prove that petitioner intended to communicate a ”true threat.”

On June 1, 2015, the U.S. Supreme Court reversed the Third Circuit and held that requiring only negligence with respect to the communication of a threat is not sufficient to support a conviction under §875(c) and remanded the case for further proceedings to determine whether recklessness suffices for criminal liability under§875(c). As stated by the U.S. Supreme Court, although a reasonable person standard is a feature of civil liability in tort law, the Court “ha[s] long been reluctant to infer that a negligence standard was intended in criminal statutes.” Rogers v. United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring).

Internet Tax Gets One Step Closer To Reality

This is a follow up post for new updates on Internet Sales Tax collection. 

As noted by USA Today - http://m.usatoday.com/article/news/2139003 - the Senate has passed the Marketplace Fairness Act and it now awaits a vote in the house, which if passed will then go to President Obama for signature into law. 

The high level details suggest there is minimal to no impact to small shops. However, if you do over 1 million in sales each year, you will have to start collecting sales tax, as applicable to each customer in the various states they reside. 

The amount of infrastructure and development necessary may be difficult to justify for smaller vendors that rely on thin margins to survive. 

More information and an analysis of the law will be completed if passed and signed into law In the coming weeks.  

IRS May Want to Peak at Your E-mail

In a recent CNET article, it was noted that the IRS believes that during a tax investigation, it should have warrantless access to your e-mails. The IRS appears to think that there is generally no privacy right with respect to e-mail. Despite a 2010 Federal Case ruling in U.S. v. Warshak that requires warrants to access e-mails, the IRS still appears to hold its position.

In addition to case law, legislation is currently being discussed in Congress to specifically require warrants to access e-mails. Accordingly, the general consensus is the same and the IRS should take note...

CISPA Passes House Committee Vote

Cybersecurity bills and laws are on the rise. As noted in a recent article from TheHill.com, Congress is on the move to try to enact some legislation that impacts the Internet and your privacy.

CISPA - the Cyber Intelligence Sharing and Protection Act - is not new. It was introduced last year and never cleared the Senate and was threatened to be vetoed by the White House if it did. Privacy advocates fought hard against it.

In this new version, there have been several amendments to try to appease companies and privacy advocates. For instance, one amendment extends liability protection from legal action to any company that complies with the law to share threat data with the government. Another amendment requires the government to strip any data of personally identifiable information. This would help to alleviate some privacy concerns and goes a step forward from the last version which initially required companies to strip that information before providing such data to the government.

Although privacy advocates have not fully supported this bill as of yet, it appears as though a few more tweaks may get them on board, or at least a chance of a vote in Congress that could lead to approval at the White House.

27 Year Old Law Regulating Electronic Communications Needs Updating

The Electronic Communications Privacy Act (ECPA) (18 U.S.C. §§ 2510–2522) was drafted in 1986, well before the iPhone and widespread usage of e-mail. So, it's encouraging that Congress has finally started to discuss updates to the ECPA to modernize its usage.

One hot topic that needs updating is the ability for government investigators to access your e-mail messages. According to the ECPA, as it currently reads, email messages in the gmail, yahoo mail, hotmail, and/or other third party e-mail service you use could be turned over by your service provider in response to a subpoena.

The threshold to obtain a subpoena does not typically involve a judge. Accordingly, it is relatively easy to obtain. However, in an effort to protect users, e-mail service providers have started to push back on responding to subpoenas that are seeking their users' e-mail messages.  As a result, lawmakers are now discussing with Google, the Justice Department, and others about this procedure.

The key issue is the different procedure required for physical documents in your office and/or electronic documents on the hard drive of your computer versus your e-mail messages. The documents require a search warrant, not just a subpoena. In accordance with the 4th Amendment, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Accordingly, search warrants have a much higher threshold than a subpoena, which does not require probable cause.

With privacy advocates in favor of the more stringent requirements and Congress focusing in on the issue, we may see changes and updates this year to finally come in line with the 21st century.

Copyright Alert System - Six Strikes System

If you are notorious for downloading movies, music, games, books . . . your ISP may be contacting you soon. As this is not as threatening as receiving a cease and desist letter, or even a lawsuit, from a major studio or publisher, this may be a good thing.

In an effort to decrease litigation and increase education, certain ISPs look to give users several chances to understand and correct any possible illegal behavior, before possibly being sued.

As noted in the Verge article, once a copyright owner identifies an IP Address of a user that is hosting content without permission, they will alert the ISP. It will then be up to the ISP to determine how to proceed with alerting the user, at the IP Address provided, to educate them on the possible inappropriate behavior and/or impair their services for a period of time.

If the ISP is contacted about a specific IP Address six times, thus the 'six strike system,' the ISP may forgo further alerts and may warn the user that a content owner may pursue legal action and that the ISP may be forced to reveal the user's contact information.

To the extent a user does reach the 'six strike' mark, the content owner will be in a much better position to suggest to the court that the user was well aware of their activity and failed to correct their behavior. Accordingly, if it gets to that stage, the user may have a tougher time to defend themselves by saying 'they didn't know what was going on.'

Overall, the education angle should help reduce any inappropriate behavior and hopefully save a lot of legal fees.

Gambling Online in the U.S.

Currently, it may not be practical to develop a website based solely in the U.S. to take bets from users in foreign countries, nor base a website overseas and take bets from all U.S. patrons. However, in the past year, certain states, such as Delaware and Nevada, have moved forward with their own online gambling proposals for users within their own state.

As this provides opportunity for Zynga and other online gambling websites based within those states, to keep gambling within those borders, there is a new opportunity for individuals to gamble legally from within their own homes - in those particular states. Also, it permits new tax revenue for the states that implement the rules and regulations needed to permit such gambling.

Federal law does not permit cross border transactions for gambling within the U.S. at this time, however, certain states have taken a 2011 ruling from the Justice Department in to move forward with online gambling within its own border. Accordingly, it may be a while before we see anyone making a legal wager from a bungalow in Hawaii.

For now, the opportunities are near for the launch of the first legal gambling website online and it may not be a surprise that 2013 turns out to be the year. For some users in Delaware or Nevada, as well as state budgets and possibly several other states following close behind, they may be hitting the jackpot soon!

App Privacy on Mobile Smart Phones

At what point do you realize that you have become a global company? Most likely when you start to get complaints, inquiries, and/or investigations from international users and/or governments.

In WhatsApp's case, as noted at MercuryNews.com, Canadian and Dutch authorities are investigating this Santa Clara based company's privacy practices, as it relates to the use of their app on smart phones.

Specifically, the authorities are questioning WhatsApp's ability to extract all contact information from a client's phone, regardless of whether the contact is a user of the WhatsApp product or not.

WhatsApp appears to have taken steps towards a manual addition of contacts, rather than an automated full extraction of all contacts on a phone, as well as enhancing its encryption of data stored by its app.

There does not appear any final 'findings', however, the authorities continue their investigation.

In general, to the extent you do have any data related to a user or non-user of your product, you should make sure you follow your privacy policy with respect to how you collect, store and maintain such information.