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).

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.

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!

Online Merchants May Collect Personal Information for Credit Card Transactions

When going through the check out line with your online shopping cart full of downloadable products, you may find yourself revealing more than just the numbers and information on the face of your credit card.

In Apple, Inc. v. Superior Court, Case No. S199384 (Cal. Feb. 4, 2013), Apple successfully argued that it was necessary to obtain the address and phone number for any user using a credit card to purchase a downloadable product from iTunes.

Although this case does not address purchases of physical goods / non-downloadable products, it has a large impact on a user's daily interaction with online merchants.

Privacy advocates may argue that there is no difference between a brick and mortar business and an online business and that both businesses should be subject to the same restrictions on collecting personally identifiable information ("PII"). Specifically, under the Song-Beverly Credit Card Act of 1971, Cal. Civ. Code § 1747.08, brick and mortar businesses may not collect PII during a credit card transaction (e.g. Zip Codes - see Pineda v. Williams-. Sonoma Stores, Inc., 51 Cal. 4th 524 (2011)).

Accordingly, given this discrepancy, the court, and possibly the public, may call upon state lawmakers to fix the loophole and uphold the privacy rights of individuals in online stores, as well as offline, without exceptions.