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).

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.

Direct to Consumer Online Sales Limitation in India

If you are an online enterprise in the United States that sells goods directly to consumers and are looking for a new market, you may need to skip India for the time being. Based on current regulations, as noted in a recent article on ZDnet, any foreign company and/or local Indian company with foreign investment that advertises goods for sale cannot sell directly to the consumer. Instead, the foreign company will need to direct users to local Indian establishments and/or other online sites that are operated by an Indian entity (without foreign investment) that sells such goods.

Although Amazon.com and possibly other organizations are working with the Indian government to change those laws, it may be a long while before there is any movement. With good reason to protect local businesses and their competitive edge, it would not make sense to allow foreign companies to sell goods directly to consumers online.

The lack of any physical presence for an online retailer results in low overhead and lower costs to be overly competitive and possibly detrimental to smaller local businesses. However, given the size of most online retailers going global, it is typical that they build large distribution centers and create many jobs overseas. So, if there are required offsets to account for the possible detriment, there may be some leverage that could make everyone happy.

Cell Phone Unlocking

If your cell phone contract just expired and you are now month to month and 'free' to switch to another provider, it may be as easy as a phone call to your current provider to request your phone to be unlocked. If you are not out of contract but want to switch providers OR are travelling internationally and intend to use the phone on a different carrier network for a period of time, beware of possible copyright infringement liability if you try to unlock the phone yourself.

As a result of inaction by the Library of Congress to extend an exemption, as of January 26, 2013, unlocking a phone on your own is illegal. However, on March 4, 2013, the White House issued a statement that they have taken note of this inconvenience and is asking Congress to take action for the benefit of cell phone users nationwide. The FCC may also issue some regulatory action to preserve the prior exemption until new laws are in place.

Although cell phone providers indicate it should not be difficult for a user to contact them and ask for an unlock, as most consumers know, the wait times for customer support and/or endless transfers from one representative to another is time consuming. Furthermore, not all physical store locations are convenient, nor are the available when travelling internationally. The convenience factor is huge and should not impose any hardship on the cell phone provider, except for the chance to talk to you to change your mind - if you are leaving their service.

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.