Are you Required to show ID to Police?

McLovin ID 008 Are you Required to show ID to Police?
Are You required to Show ID to Police?

Are you Required to show ID to Police ? Depends. Generally, interactions between police and the general public fall into three categories: (1) consensual, (2) detention, or (3) arrests.

First, under consensual interactions between a citizen and the police, the individual approached is not required to identify himself or answer any other questions and generally is free to leave at any time. To determine if the interaction is consensual, start by asking the officer if you’re free to leave. Obviously, if the officer answers or acts in any manner contrary to the affirmative, this is not a consensual encounter and a more complex set of rules may apply under the detention or arrest category.

Secondly, circumstances where a reasonable person would not believe he or she is free to leave will constitute a detention. Under Terry v. Ohio, 392 U.S. 1 (1968), the police have the right to briefly detain an individual where a reasonable articulable suspicion exists that the person has, is, or is about to commit a crime. These are known as Terry Stops, and are generally limited to a pat-down to determine if a person is carrying a concealed weapon. However, many states, including Arizona have adopted “stop and identify” laws that require persons detained under Terry Stop like conditions to identify themselves by producing identification or supplying identifying information. We’ll touch on what is required below.

Lastly, while a detention only requires reasonable suspicion of criminal activity, an arrest requires probable cause that a person has actually committed a crime. You’ll likely know whether you’re under arrest when the officer says so, however sometimes a detention can morph into an arrest once the officer has secured probable cause to determine an individual had indeed committed a crime. At that point, the police may lawfully search an individual’s person; belongings and anything within his general “grab area.”

So . . . do I Have to Show My ID to The Police or Not?

States with Stop and Identify Laws Are you Required to show ID to Police?
States with Stop and Identify laws

It depends on which jurisdiction you live in, whether you are operating a motor vehicle, and whether they’ve adopted “stop and identify” statutes. Currently, there are about 24 states that have “Stop and Identify” laws in place, locate your state here. Under Arizona law, specifically, A.R.S §§ 28-1595, 28-3169 the operator of a motor vehicle is required by law to produce identification to a requesting officer during a traffic stop. If you’re driving a car on Arizona public roads you have constructively consented to supplying ID to police upon request. Failure to do so will result in a class 2 misdemeanor.

If You’re Not Driving a Car

Basically the requirement to show ID to the police upon request will always turn on whether the police have reasonable suspicion that you are involved in criminal activity. You can determine that by simply asking the officer if you are free to leave. If not, then most likely you’re required to show ID to the police upon request. The same applies whether you are a passenger in a car, or whether you are walking down the street. In the former, the police must reasonably suspect you are involved in either a traffic or a criminal violation to require you to show ID upon request. If you are walking down the street and the police reasonably suspect you have committed either a criminal or municipal violation they may lawfully require you to show ID to police upon request.

Here, Arizona ID requirements, under A.R.S § 13-2412, stipulates that by refusing to provide a truthful name when lawfully detained will constitute a class 2 misdemeanor. Be aware that you are only required to give your name and/or ID, and are not compelled to answer any other questions by an officer.

The Bottom Line

Bottom line, there are two ways to determine whether you are required to show ID to the police; (1) if you’re operating a motor vehicle, the answer is always yes, and (2) if you’re reasonably suspected of committing a traffic, municipal, or criminal violation the answer is yes. Again, the most simple way of determining this is by simply asking the officer politely “am I free to leave?” even if you are a passenger in a car. So the next time you question whether you are required to show ID to the police, determine whether the encounter is consensual, a detention, or an arrest before refusing to do so in order to mitigate further trouble. Check out this great clip provided by FlexYourRights.org that recaps our discussion.

Note – the aforementioned article, rules, and laws are in no way presented to constitute legal advice. Nor are they meant to apply to any set of specific facts pertaining to your circumstances.

Who Really Owns that Picture You Don’t Want Anyone to See?

selfie Who Really Owns that Picture You Don’t Want Anyone to See?
Who Really Owns that Picture You Don’t Want Anyone to See

Who Really Owns that Picture You Don’t Want Anyone to See? In the wake of the recent iCloud private celebrity pictures posted on 4chan, an image-based bulletin board, let us discuss the true ownership and recourse of posting pictures you don’t want anyone to see. Generally, under United States Copy Right law, the owner of a photograph is classified as the person who took the picture. Along with that ownership, comes certain rights to the photograph. Specifically, under U.S Copyright Act at 17 U.S.C 106, the owner has the right to (1) reproduce the photograph, (2) prevent any derivative works based on the photograph, (3) distribute copies to the public by sale, lease or lending, and (4) display the image to public.

So if the picture you don’t want anyone to see is the result of a “selfie” then you have the sole right to prevent any unauthorized distribution, public viewing and display of your work. However, on the other hand, if a third party took the picture, even with your camera, technically they would be considered the true owner of the picture you don’t want anyone to see. As a result, they could potentially release, transfer, lend, or display to the public the picture you don’t want anyone to see.

If You took the Picture You Don’t Want Anyone to See

Under the Digital Millennium Copyright Act (DCMA), enacted in 1998, there exists what’s called a “Safe Harbor” provision. The “safe harbor” provision allows the owner (you) of pictures you don’t want anyone to see, the ability to issue a takedown notice to digital content platforms such as Reddit, YouTube, FaceBook, etc. to remove the content you’d like to prevent anyone else from viewing. A digital content provider could be found contributorily liable for copyright infringement if they do not quickly adhere to your takedown notice.

If You Didn’t Take the Picture You Don’t Want Anyone to See

Paparazzi Who Really Owns that Picture You Don’t Want Anyone to See?

Well, unfortunately, you fall under the distinct legal category of S.O.L, and I’m not talking about statute of limitations. There may be some alternative legal recourse such as intentional infliction of emotional distress, or invasion of privacy, however strong affirmative defenses exist to these claims lending to costly litigation. Bottom line; know who you’re engaging with when it comes to sensitive photographic subject matter. Not everyone will have your best interest at heart when things turn for the worse. If you must take pictures you don’t want anyone to see, enjoy the pictures for the time being, then destroy them would be the best advice I could give.

Attorney Fees, First Step in Preventing Prosecutorial Misconduct

Awarding attorney fees for criminal acquittals would be a first step in preventing prosecutorial misconduct. For instance, in a the State of Washington, there exists little known statutory and case law stipulating that if a person is unsuccessfully prosecuted by the state, where a claim of self-defense is asserted, the state must reimburse the defendant for reasonable cost incurred.

Specially, the Revised Code of Washington statute 9A.16.110 states that ; when a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. RCW 9A.16.110 Furthermore, case law interpreting the statute held that “when a jury acquits a defendant and finds that the defendant acted in self-defense, the State must pay for post-acquittal fees and costs reasonably incurred in the trial or appellate courts.” STATE v. DUGAN, July 1999 96 Wn. App. 346

attorney fees Attorney Fees, First Step in Preventing Prosecutorial Misconduct

Given the abundance of wrongful convictions; based on new evidence, DNA testing, and even prosecutorial misconduct, Washington State’s obscure rules raise interesting questions on why this isn’t allowed in all general criminal cases. Well settled civil recourse allows a prevailing defendant in frivolous civil litigation the right to sue the opposing party for legal fees. Consequently, however, no such remedies exist in criminal cases. Generally, prosecutors enjoy free range with unlimited immunity when prosecuting criminal cases. So much so, only once in the history of the criminal justice system has a prosecutor ever been convicted of wrongful prosecution. Even there, convicted prosecutor Ken Anderson, who wrongfully prosecuted the case of Michael Morton by hiding exculpatory evidence, was only sentenced to 10 days in jail. Though in addition, he was required to relinquish his license to practice law, Anderson was 61 years old, well on his way to retirement. Hardly analogous to the punishment Mr. Morton received who served over 20 years in prison before being exonerated. With so little motive for deterrence, coupled with career aspirational goals of high prosecution rates, many prosecutors proceed with cases knowing full well they would have little chance of a jury conviction aware that 97 percent of federal cases and 94 percent of state cases end in plea bargains.

tumblr lyq70qxcJ51qg31ik Attorney Fees, First Step in Preventing Prosecutorial Misconduct

To be clear, prosecutorial misconduct is defined as “an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment.” Take Brooklyn, New York for example, where USA Today reported that in just six months of observation, seven people were exonerated after prosecutorial misconduct was discovered. The California Innocence Project reported that in wrongful conviction cases, “prosecutorial misconduct was a factor in from 36% to 42% of the convictions.” Since prosecutors have little or no fear of consequences, many continue to prosecute criminal cases at their own discretion, having only their conscious as a benchmark for integrity. However, there are steps we can take to remedy the seemingly “too big to fix” criminal justice system.

prosecutorial misconduct angela corey Attorney Fees, First Step in Preventing Prosecutorial Misconduct

REMEDIES

There needs to be some form of consequential repercussions for irresponsible prosecutors. Legislation is the only tool that can reign in rampant prosecutorial misconduct. First, a good start would be expanding cases where the state would be liable for attorney fees where a defendant is acquitted. Modeling legislation after Washington States self-defense laws, a number of jurisdictions can at the very least give innocent defendants one less reason to plea. Second, increasing the likelihood of criminal prosecution for prosecutorial misconduct would be a deterrent. As noted above, the 10-day sentence of convicted prosecutor Ken Anderson, certainly would not strike fear into the heart of an over-zealous prosecutor, however it would make him or her think twice.

In addition to statutory fee reimbursement and prosecutorial convictions, jurisdictions would be well served by establishing special conviction review units such as the one expanded in Brooklyn. “The practice of naming a special unit dates back to 2007 when Dallas County, Texas District Attorney Craig Watkins started his Conviction Integrity Unit. Since then, the unit has reviewed more than 1,000 cases and exonerated 33 people. Watkins said 90 percent of the exonerations his office has done involved witness misidentification using a photo lineup.” Even a 3 percent wrongful conviction rate is excessive. The government should always have a higher duty of care when potentially infringing upon a citizens liberty interests. Simply put, more needs to be done to address the community’s distrust of law enforcement and the ubiquitous sentiment that innocent people going to jail is a natural consequence of our flawed criminal justice system.

CONCLUSION

Dred Scott Case Attorney Fees, First Step in Preventing Prosecutorial Misconduct

In conclusion, more needs to be done to change the attitude of both law enforcement and the general public. If ten guilty people must go free to avoid the incarceration of just one innocent person, then so be it. This country was founded upon the substratum that its citizens shall enjoy freedom, liberty and justice for all. However, given the fact that so much prosecutorial misconduct errs against minorities it would seemingly appear the majority opinion in, Dred Scott v. Sandford, 60 U.S. 393 (1857), stating that people of color “had no rights that the white man was bound to respect” may still ring true till this day.

Digital Estate Planning in a Digital Age

Digital Estate Planning in a Digital Age

digital assets Digital Estate Planning in a Digital Age
Don’t get locked out of digital assets

In more recent history, a news story circulated through social-media spheres involving a lawsuit by Bruce Willis against Apple Inc. involving his right to transfer ownership of his vast iTunes collection to his heirs. Though the story was debunked by his representatives, it raised an interesting dilemma surrounding the ownership of digital assets and the transferability of those assets posthumously. Digital estate planning in a digital age has become increasingly relevant.

In our increasingly digital world there is a greater need to protect the digital assets we increasingly amass over time. Digital content is referred to “any information that is published or distributed in a digital form, including text, data, sound recordings, photographs and images, motion pictures, and software.” [1] Digital assets include such digital content as one’s online persona, passwords to the likes of Facebook, Twitter, Linked In, and blogs. [2] Currently, there are only five states that have laws governing digital estate planning. [3] As a result, an overwhelming majority of jurisdictions lack statutory guidelines governing digital asset bequeathment leaving loved ones lacking legal recourse. Traditional estate planning plays a major role in protecting both tangible and intangible assets alike, however has been slow to evolve with emerging technology.

Traditional Estate Planning

traditional estate planning Digital Estate Planning in a Digital Age
Digital & Traditional Estate Planning

Essentially, one’s estate amounts to anything a person owns, tangible or intangible. Traditional estates are defined as a person’s interest in land or other property. [4] Generally, a person’s estate consists of traditional assets defined as items that are owned and have value. [5] Accordingly, traditional estate planning primarily involves the posthumous disposition of property typically involving a three step process. [6] First, there is a consultation to consider an individual’s present and lifetime needs. [7] Second, and most importantly, a thorough plan designed around meeting those needs during the client’s lifetime. [8] Last but not least, traditional estate planning involves the creation of a unified estate plan, which balances the client’s needs during his/her lifetime with the needs of his estate after death. [9] Nonetheless, our increasingly digital world has created a whole new class of assets that traditional estate-planning tools may not be equipped to handle, including the ability to legally transfer a decedent’s ownership of digital assets. As such, digital estate planning in a digital age is evermore important.

Digital Estate Planning

 Digital Estate Planning in a Digital Age
Digital assets include online persona’s

Digital estate planning not only promotes alienability of ownership, but it also:

  • Makes life easier for the estate’s executor and family members.
  • Impedes identify theft.
  • Protects decedent’s intellectual property interest.
  • Preserves a decedents digital legacy [10]

Currently, there is no standard to bequeath ones digital estate, however digital estate planning can be something as simple as executory guidelines constituting a letter to one’s executor listing important URLs, usernames, passwords, security codes, and other information needed to access online accounts. [11] Since one of the most common forms of digital assets is licenses which are fully transferable within a trust, author Joseph M. Metrek suggests providing clients with a “Digital Asset Revocable Trust” (DART). [12] Essentially, the DART, like a traditional trust, will retain ownership of digital assets beyond the life of the grantor. Therefore, a trustee would have the authority to manage and transfer authorizing licensing agreements to a client’s heirs based on the needs established when the estate was created.

In addition, an executor or fiduciary can mitigate the amount of personal hardship and grievance associated with digital estate planning by following a simple set of guidelines. [13] Experts recommend fiduciaries implement the following crucial steps when administering a decedent’s digital estate:

  • Seek the assistance of technical help if necessary.
  • Work on consolidating virtual assets to as few “platforms” as possible (e.g. have multiple e-mail accounts set to forward to a single e-mail account.
  • Obtain statements (or data) of the prior twelve months of the decedent‘s important financial accounts.
  • Consider notifying the individual [sic] in the decedent‘s e-mail contact list and other social media contacts.
  • Change passwords to those that the fiduciary can control (and remember).
  • Keep all accounts open for at least a period of time to make sure all relevant or valuable information has been saved and all vendors or other business contacts have been appropriately notified, and so all payables can be paid and accounts receivable have been collected.
  • Remove all private and/or personal data from online shopping accounts (or close them as soon as reasonably possible).
  • The fiduciary should plan on archiving important electronic data for the full duration of the relevant statutes of limitations. [14]
digital assets Digital Estate Planning in a Digital Age
Digital Estate Planning in a Digital Age

Conclusion

Sadly, many will not implement traditional or digital estate plans, leaving their loved ones to sort out unfinished details of their lives. Estate planning traditionally has been a service primarily utilized by the elderly, however increasing awareness among tech savvy clients can reduce the ambivalence towards estate planning. Essentially, digital content owners face two distinct issues; (1) do they really own their online digital content and if so, (2) how can they pass that ownership or the use of that content on to their loved ones. One thing is for certain however, without digital estate mechanisms, such as DART’s or executory guidelines, even the likes of Bruce Willis would not be able to ensure his loved ones were legally entitled to his vast collection of Rob Zombie albums. Digital estate planning in a digital age is essential to pass on one’s legacy.

 

  1. What Happens When We Die: Estate Planning of Digital Assets, http://commlaw.cua.edu/res/docs/21-1/Perrone.pdf (last visited Aug 20, 2014).
  2. Michael Walker & Victoria D. Blachly, Virtual Assets, ST003 A.L.I –A.B.A 177 (2011)
  3. Alissa Skelton, Facebook After Death: What Should the Law Say?, MASHABLE (Jan. 26, 2012), http://commcns.org/10BZYRX. Oklahoma, Idaho, Rhode Island, Indiana and Connecticut have all enacted laws regarding digital estate planning.
  4. BLACK‘S LAW DICTIONARY 626 (9th ed. 2009).
  5. Id. at 134.
  6. Jerome Solkoff, Scott Solkoff, What is elder law—Estate planning -.14 Fla. Prac., Elder Law § 1:3 (2011-12 ed.), FLA. PRAC., ELDER LAW, § 1:3.
  7. Id.
  8. Id.
  9. Id.
  10. Planning for digital assets, http://www.southsidetrust.com/ckfinder/userfiles/files/Planning%20for%20digital%20assets.pdf (last visited Aug 20, 2014).
  11. Joseph M. Mentrek, Estate Planning in a Digital World. 19 Ohio Prob. L.J. 195 (2009).
  12. Id.
  13. Walker & Blachly, supra note 2, at 182-85.
  14. See generally id. at 184-85

 

Preventing Another Ferguson Begins with Greater Law Enforcement Oversight

Since the recent tragic events in Ferguson, MO unfolded, there has been an unrelenting supply of Monday morning quarterbacking from political pundits and social activist alike. Throughout the onslaught of commentary, one overarching theme has been constant, the scaling back of over-militarized local police forces along with calls for greater law enforcement oversight. Although the militarization of local police does pose a threat to law enforcement and community relations, here we focus on the latter. Preventing another Ferguson begins with greater law enforcement oversight.

CAIR Who is policing the police sign Preventing Another Ferguson Begins with Greater Law Enforcement Oversight
Preventing another Ferguson begins with law enforcement oversight

Civilian Police Complaint Review Panels.

Greater law enforcement oversight can manifest in several different ways. For instance, civilian oversight panels with subpoena power to review law enforcement use of force. For example, the city of Houston, by way of executive order by Mayor Annise Parker, implemented a new Independent Police Oversight Board (IPOB) consisting of 29 appointed members reflecting the demographic of the city with unfettered access to all records and police department data. Likewise, the implementation of a Police Ombudsman, defined as “an official appointed to investigate individuals’ complaints against maladministration, especially that of public authorities,” would be ideal in smaller municipalities. Citizen review panels are not only beneficial to the communities to which they serve, but also to law enforcement entities by demonstrating its willingness to address concerns of misconduct at large.

Traditionally, a police department’s internal affairs division is tasked with investigating police misconduct and overreach. However, nationwide, citizen filed complaints alleging everything from civil rights violations to police brutality are substantiated only 8% of the time by internal affairs departments. Specifically, in New Jersey for instance, the Courier News and Home News Tribune revealed that “[j]ust 1 percent of all excessive force complaints were sustained by internal affairs units in Central Jersey, the review found. That’s less than the national average of 8 percent, according to a federal Bureau of Justice Statistics report released in 2007.” Consequently, community faith in the police policing themselves has waned to an all-time low.

Civilian oversight does not have to be limited to complaint review. It can also include recommendations of proactive policy and procedures designed to eliminate distrust in local law enforcement while encouraging mediation wherever tempers would ordinarily be flared. Law enforcement can also expand public awareness concerning proper police protocol and rules of engagement. Civilian oversight should not be deemed as an end-all measure in repairing community relations; however it should be another tool among many in increasing law enforcement oversight, all of which can help achieve the goal of community orientated policing. In addition to civilian oversight, additional measures of supervision and personal accountability can be implemented as well.

Screen Shot 2014 05 08 at 12.44.46 PM Preventing Another Ferguson Begins with Greater Law Enforcement Oversight

 Increasing Law Enforcement Oversight and Safety by the Use of Electronic Body Cameras.

An increasing number of law enforcement departments are implementing the use of wearable cameras that digitally record what an officer sees during the course of their shift. The use of cameras has statistically proven to reduce the amount of citizen complaints and incidents involving use of force. Comparatively, the city of Rialto, California saw its citizen complaints decrease from 24 to just 3 in the first year of use. Moreover, police use-of-force incidents dropped an astoundingly 60% over the course of that same year. The Wall Street Journal reported – by way of the Police Executive Forum –that a quarter of the 254 U.S. Police departments surveyed have begun implementing body camera use. Here in Arizona, the Mesa PD conducted its own internal side-by-side study involving 50 officers equipped with body cameras as opposed to 50 without. The results were positively astonishing, culminating in only 8 complaints involving officers appareled with body cameras versus 23 complaints against those without. However, many municipalities remain in opposition to such measures citing cost and potential witch hunts of officer misconduct. Next, we look at the most cited factors in determining the implementation of body cameras on police officers.

How+to+make+them+behave 51ccdd 4796724 Preventing Another Ferguson Begins with Greater Law Enforcement Oversight
Implementing use of Body Cams greatly reduces use of force incidents
  • Equipment and Cost Considerations

There is a legitimate concern of the cost of data storage associated with recording an officer’s entire shift. Typically, body camera’s range anywhere from $200 to $600 with data storage costs in the range of an additional $600. However, contrastingly, there is an estimated $2 billion spent each year resolving civilian claims which seemingly pales in comparison of the upfront costs of cameras and data storage.

  • Engaging Recordings

Many ask, what prevents an officer from just disengaging his recording device during undesirable civilian exchanges? Clearly it would be ideal to record an entire shift; however, concerns of privacy during breaks from duty and interactions with informants and victims must be taken into consideration. One thing is for certain however, reducing officer discretion of when and what is recorded is absolutely necessary. Nonetheless, the lack of bright line rules of digital engagement would result in creative editing of filmed events. That said, determining policy surrounding when to initiate recordings is best left to municipality council and law enforcement administration in accordance with industry standards.

  • Retaining Data

Considering the length of time video data is retained is crucial to both costs and the ability to effectively investigate alleged incidents. Ideally, retention would remain analogous with existing policy for cruiser dash cams and detention facilities cameras. A recent study by the ACLU, entitled “Police Body-Mounted Cameras: With Right Policies in Place, a Win For All,” suggest that the time frame for retaining data should be limited to the length of time needed to conduct investigations. Despite whatever length of retention is deemed appropriate, public access to the data is paramount.

  •  Privacy

As noted, there are, of course, certain interpersonal and discrete professional interactions which should avoid being recorded. A prospective governing panel, in deciding comprehensive policy guiding camera use, should take into consideration a variety of privacy concerns balanced against the publics need access recorded data. Accordingly, members of the general public should have the right to know that their interactions with police are being recorded. Specifically, under Arizona law A.R.S §. 13-3005, one party recording is permitted so long as whomever recording is a party to the communication and present during the conversation. That said, it would still be helpful to notify the general public of recordings in attempts, at the very least, to positively alter a citizens behavior.

The aforementioned ACLU study also suggests implementing policy that (1) Limits recordings to uniformed officers and marked vehicles, with an exception for SWAT raids or similar planned uses of force involving non-uniformed officers, and (2) Officers should be required, wherever practicable, to notify people that they are being recorded. Furthermore, suggested policy requiring officers to wear easily identifiable conspicuous labels indicating police body camera in use comes highly recommended.

  • Public Access to Recorded Data

In addition to internal agency use, outside entities such as citizen review panels, police ombudsman an anyone else generally entitled access to law enforcement documents and material should be made available. Further, access through such means as the Freedom of Information Act (FOIA) should also be granted to access recorded data in aiding external investigations. One thing is for certain, access to recorded body camera data should be streamlined and readily accessible to prevent cumbersome investigations. In addition, proper chain of custody procedures should be fully implemented to preserve the integrity of recorded evidence.

fort worth pd cams Preventing Another Ferguson Begins with Greater Law Enforcement Oversight
Body camera’s range anywhere from $200 to $600 with data storage costs in the range of an additional $600.

 CONCLUSION

In conclusion, the overarching frustration with inappropriate police/civilian engagement has become glaring. Addressing these issues in a universally communal fashion is a must and can be adequately done so in favor of both; the law enforcement and in the civilian community’s favor. Law enforcement is at its highest authority when acting in accordance with the community in which it serves. Therefore, it would prove abundantly productive to implement accountability measures such as civilian review panels and the implementation of body cameras to solidify the level of trust required in exorcising that authority.

What Happens to Your Facebook Page Upon Death?

WHAT HAPPENS TO YOUR FACEBOOK ACCOUNT WHEN YOU DIE?

Facebook After Death New Laws What Happens to Your Facebook Page Upon Death?

Recently, Facebook announced a cool new feature that provides video of your most popular activity since joining the site. It’s actually a pretty cool way to see your accomplishments, life events, and most popular posts in a quick 62 second slideshow. However, for John Berlin and his family, this cool new feature only seemed to exacerbate their existing grief over the passing of their son in 2012. After viewing his own look-back video on Facebook, Mr. Berlin immediately thought of his deceased son and what his look-back video may pay tribute to. However, sadly, Mr. Berlin did not have access to his sons Facebook account, nor his password in order to do so.

Mr. Berlin, after having zero luck with Facebook tech support, desperate and resourceful at the same time, took to YouTube to personally plead to Facebook personnel to let his family have access to their son’s timeline. After the video went viral, Berlin said he got a call from Facebook. “They’re going to send us the video, they’re going to make one themselves and not only that, but take a look at things a bit differently and see how they can help families with lost loved ones,” he told the website BuzzFeed.

While Mr. Berlin and his family succeeded at their request for access to their deceased sons’ digital content, millions of other users do not share the same luck. It has been a growing problem as the growth of social media continues to outpace the laws that enforce its use. Not every family has the ability to generate millions of views and viral shares which seemed necessary to catch the attention of digital content providers in assisting them with accessing their deceased family members online content. Below, we’ll delve into the problems and possible solutions to the digital roadblocks many families face when attempting to retrieve their loved one’s digital assets.

The Evolution of Social Media

The omnipresence of digital content in today’s society is unparalleled. As a result, author Melissa Dolin notes, “[s]ocial media is luring even more people to the internet.” [1] “Social media is a term that encompasses several different types of communication tools. For example, social media can be further broken down into six distinct categories: collaborative projects, blogs, content communities, social networking sites, virtual game worlds, and virtual social worlds.”[2] As early as 2009, social networking sites such as Twitter saw its users increase to over 14 million users while Facebook had achieved over 200 million  users across the globe. [3] A new generation of social media is beginning to change the way the public views information.  With the amount of ever-increasing social media outlets, individual interpersonal online activity has greatly increased. [4] Simply put, more and more people interact with social media and digital content for interpersonal communication reasons as opposed to entertainment.  As Bojorquez & Damien put it, “Facebook is a perfect example of a social media website because it allows users to put up and share content like photos, videos, notes, blogs, web links, and news stories, but it is also an excellent example of a social networking site because users can link to other users, or “friends,” send friends messages, and keep friends updated on the user’s status by updating the user’s profile.”[5] Social interaction through social media is increasingly becoming a large part of individual lives. As author Maria Montagnani highlights, “user-generated content sites such as Facebook are becoming phenomenons [sic] both on the internet and in people’s everyday lives”.[6] She goes on to point out that “[f] rom the perspective of the business model, social networks’ members are both “content providers” and “customers” of the website since their exposure to advertising, while using the platform, produces revenue for the firm.”[7] Basically, social media sites rely on user generated content to survive. Since social media interaction is a mutually beneficial platform it seems natural that a mutual agreement on what happens with that content once a user passes would be beneficial.

Adrienne Garber noted, the internet adds nearly 7.3 million unique pages per day.[8] It is estimated that “Internet users will access, download, and share the information equivalent of the entire Library of Congress more than 64,000 times over, every day.[9]
“Social media is quickly becoming the medium of choice for communication.”[10] As author Jeremy Gelms notes, “[t]hree out of four Americans use social media and millions more are members of social networking sites.”[11] The internet and social media has become as prevalent as any other form of communication.[12] It would then seem natural that as the way people communicate changes, that governmental laws and regulations evolve as well.[13]

iStock socialmedia lives What Happens to Your Facebook Page Upon Death?

The Impact of Social Media on Our Lives

It is becoming increasingly evident that social media affects the personal lives of millions of users.“A recent Nielsen report showed that overall; users spend a quarter of their online time using social media applications.”[14] It is estimated that Facebook alone is fast approaching a billion users.[15] With astounding numbers like those one can easily see how interaction with the internet is becoming synonymous with everyday life for many people not only in the United States, but around the globe. It is inevitable that personal lives will be affected in one form or another by social media; however, increasingly, professional lives are being affected by constant interaction with social media outlets as well.[16]

As a result many individuals have a significant portion of their lives documented online creating a “timeline” if you will of their lives. It would only seem natural that loved ones both in life and in death would want that timeline memorialized.For instance, when Loren Williams from Oregon attending college in Arizona suddenly died in a motorcycle accident his mother Karen, looking for support, tried to access her son’s online account but without his password was unable to.[17]  When she was finally able to access his account after one of her son’s friends found his password she expressed how, “comforting [it was] to read that other people appreciated him and missed him,” she said. She went on to say, “this was an aspect of his life that we didn’t know a whole lot about[.]“[18]

Sadly, even if a loved one has the password, Facebook maintains, “[f]or privacy reasons, [they] do not allow others to access a deceased user’s account.”[19] This sort of resistance only compounds the grief an individual may be going through. In sum, technology has changed the way people live their lives. It has changed the way people interact with one another and has ushered in a new social dynamic never seen before.

Pre Litigation Asset Search What Happens to Your Facebook Page Upon Death?

Solving These Dilemma’s Without Costly Litigation

Our increasingly digital world has created a whole new class of assets that traditional estate-planning tools may not be equipped to handle. “Many people today have multiple e-mail accounts, online bank and brokerage accounts, digital photo galleries and music collections, online document storage services, blogs, Web sites, and profiles on social networking sites, such as Facebook and LinkedIn.”[20] With new technology there needs to be innovative solutions that bridge the gap between legacy asset preservation and new ways of doing things. The law has a lot of catching up to do with technology. Unfortunately, it is unlikely that digital content providers will simply allow access to deceased accounts because it is the right thing to do. There must be a system in place that facilitates the secure transfer of ownership or licenses to a user’s heirs.

Absent a uniform system for the transfer of ownership or licensing rights to digital content, preventative measures would include legislation that clearly defines exactly what digital assets are and who owns them. With statutory language defining who has rights to what, digital content providers would be obliged to comply with the law wherever they do business.  Often a loved one is required to obtain a court order to get access to online content which only compounds the already painful grief process. Additionally, as Conner noted, “there is no legislation and [with] little case law, estate planners are left without any real advice to give their current clients and without a compass to guide them when this issue arises in their daily practice.”[21]

State and federal legislatures can eliminate this step by clearly defining property right definitions and guidelines. For instance, model legislation enacted that would extend power of attorney rights to digital online content and access to it. This way, executors could distribute whatever online digital assets that have accrued to appropriate devisees. Moreover, state or even federal legislation could be drafted making it mandatory for all digital content providers or repositories to have provisions to designate an alternative authority in case of a user’s demise. Since there remains a lack of clarity, Congress should ultimately intervene and establish guidelines for digital content providers to abide by individual state probate laws.

Consequently, there remains the uncertainty of whether the use of someone else’s password without acknowledgement constitutes fraud under current laws. Clearly, the law has not caught up with the pace of technology, however with streamline language and regulations promulgating the needs of individuals and content providers alike these issues can be solved. However, as Tara Hogan pointed out in her 2006 article titled, “Now That the Floodgates Have Been Opened, Why Haven’t Banks Rushed Into The Certification Authority Business,” “[e]ven though states are responding to the sudden emergence of digital technology by enacting  legislation, this state-by-state approach is more difficult and cumbersome[.]”[22]

Basically, changing state statutory language one state at a time is ineffective and insufficient to address the widespread issue. Legislation needs to be enacted on the federal level to address it; however, without a general consensus from the high court or a majority of states, it is unlikely it will be changed in the near future.

facebook headstone What Happens to Your Facebook Page Upon Death?

Why Facebook Should Resolve these Issues on Their Own Behalf

As evidenced by Mr. Berlin and his family’s story, the advantages of providing loved ones access to a deceased user’s digital content are abundant. They include closure for grieving loved ones, memorialization of their legacy, a chance for mourners to voice their support, and provide an overall therapeutic process for grieving. On Facebook for example, often a deceased user’s account provides a much needed medium for loved ones and friends to post supportive messages and kind words. Social media not only allows us to communicate with the living, but gives us a place to express our thoughts for the deceased. For digital content providers such as Facebook and Twitter, this only adds to the user generated content, and brings even more visitors to decedents pages to pay tribute. The additional traffic, add revenue, and general good will associated with the seemingly increased compassion would be a win-win situation for most digital content providers.

However, with every pro, there is a con. In this case, the need to affirmatively identify whether a user is legitimately deceased is clear. Without such measures in place content providers risk jeopardizing security and privacy measures. Additional privacy concerns include; the ability for someone to falsely gain access to a user’s content by disguising themselves as grieving loved one. With nearly a billion users, digital content providers such as Facebook could potentially run into issues where access to the wrong account could be given.  Unfortunately, helping grieving loved ones would have to be reconciled with existing antiquated federal privacy laws.

Conclusion

To summarize, newly created problems that affect society as a whole require new outcome orientated solutions. These new 21st century problems requires approaches that are equally outside the mainstream. Creative problem solving techniques under the therapeutic justice approach brings new and modified ideas to existing and new dilemmas. Not only users, but digital content providers alike, have a shared goal of improving ones online experience. It would make sense then that since both have a vested stake in its outcome to require both sides to maximize its creative problem solving potential.

 

 


[1] Melissa Dolin, Joint Authorship and Collaborative Artwork Created Through Social Media, 39 AIPLA Q.J. 535, 537 (2011).

[2] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249, 264 (2012).

[3] Id.

[4] Id.

[5] Alan J. Bojorquez & Damien Shores, Open Government and the Net: Bringing Social Media into the Light, 11 Tex. Tech Admin. L.J. 45 (2009).

[6] Maria Lillia Montagnani, A New Interface Between Copyright Law and Technology: How User-Generated Content Will Shape the Future of Online Distribution, 26 Cardozo Arts & Ent. L.J. 719, 766 (2009).

[7] Id.

[8] Adrienne A. Garber, E-Commerce: A Catalyst for Change in Intellectual Property Law, 6 Duq. Bus. L.J. 157, 160 (2004).

[9] Id.

[10] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249, 264 (2012), supra note 17

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Jeff Nolan, OMG, LOL, AND WAY TMI — SOCIAL MEDIA IN THE HIRING PROCESS – 15 No. 10 Vt. Emp. L. Letter 1, (2010).

[16] Carolyn Elefant, The “Power” of Social Media: Legal Issues & Best Practices for Utilities Engaging Social Media, 32 Energy L.J. 1, 4 (2011), supra note 37

[17] What happens to your Facebook account when you die? – wave3.com-Louisville News, Weather & Sports, , http://www.wave3.com/story/18115416/what-happens-to-your-facebook-account-when-you-die (last visited Nov 16, 2012).

[18] Id.

[19] Id.

[20] Joseph M. Mentrek, ESTATE PLANNING IN A DIGITAL WORLD. 19 Ohio Prob. L.J. 195 (2009).

[21] John Conner, DIGITAL LIFE AFTER DEATH: THE ISSUE OF PLANNING FOR A PERSON’S DIGITAL ASSETS AFTER DEATH, 3 Est. Plan. & Community Prop. L.J. 301, 302 (2011), supra note 93

[22] Tara C. Hogan, NOW THAT THE FLOODGATES HAVE BEEN OPENED, WHY HAVEN’T BANKS RUSHED INTO THE CERTIFICATION AUTHORITY BUSINESS?, 4 N.C. Banking Inst. 417, 439 (2000).

Net Neutrality and What it Means to You

net neutrality Net Neutrality and What it Means to You

     The use of the Internet has grown by leaps and bounds since its pubic and commercial inception in 1995. Since then, nearly 79 percent of the population in North America uses the Internet on a regular basis. Currently, the top three Internet Service Providers (ISP’s) in the United States, AT&T, Verizon, and Century Link, control nearly 40% of the overall market.

     As a result of this shrinking market-share, the Federal Communications Commission (FCC) adopted what is known as “Net Neutrality standards”, which gave the agency regulatory power to protect the free flow of information over the Internet. The possibility of regulations designed to mandate the neutrality of the Internet has been subject to fierce debate, especially in the United States. In 2005, the FCC issued a Broadband Policy Statement, which lists four principles of open Internet summarized as “any lawful content, any lawful application, any lawful device, and any provider”.

So What Exactly is Net Neutrality Again?

net neutrality for dummies Net Neutrality and What it Means to You

     Essentially, Net Neutrality means that all content on the Internet must be treated equally. That is, one particular digital content provider can’t strike a deal with an ISP for its content to be loaded faster than another digital content provider. If that were to happen, sites like Amazon, with far greater resources than say TMZ, would have its content loaded lightning fast while TMZ’s content would have noticeably longer loading times.  The FCC’s goal was to prevent ISP’s from impeding or “unreasonably discriminating” against digital content providers or applications. In its attempt to regulate equal access to all digital content providers, the FCC created the Net Neutrality Standards discussed above. Many feel that in 2014, equal access to digital content over the Internet should be considered a human right and not be subject to pre-negotiated contracts between ISP’s and digital content providers.

     However, unsurprisingly, one of the nation’s largest ISP’s, Verizon, brought suit in the federal court of appeals challenging the FCC’s authority to regulate the flow of information over the net. Ultimately, in an eighty-one page ruling, the federal appeals court sided with Verizon over the way the FCC’s new rules were drafted. The court determinately pointed out that the FCC is assigned with regulating essential utilities like telecommunication services and electricity, and consequently, the Internet isn’t considered to be one of those utilities under current law. Specifically, the court found that the FCC could not regulate broadband under common carrier rules as it had argued, because it had not classified the service as a telecommunications service. The court relied on antiquated regulations that primarily regulated old modem dial-up connections as opposed to newer fiber optic backbone transmissions that are in use today.

So What Does this Mean to You and Me?

netneutralitydead Net Neutrality and What it Means to You

     As of now, nothing. The major ISP players all issued statements on the court of appeals ruling saying they don’t have plans to change anything based on the court’s decision. The FCC has not ruled out appealing the court of appeals decision to the Supreme Court, or alternatively, rewriting its antiquated rules regulating Internet use.  ISP’s such as Verizon, claim the FCC’s rules are overly broad and violate free-enterprise, essentially arguing that since they provide a service to consumers, they and they alone should be able to dictate how those services are administered. Net Neutrality proponents fear that ISP’s will create two-tiers of Internet, a faster tier for paid content, versus a slower tier for all the rest. They also point out consumers will ultimately bear the brunt of the costs as digital content providers  undoubtedly pass those associated fees down to their consumers.

     The Internet, much like cable television, and air travel has increasingly seen its market-share dwindle over recent years with consolidation, take-overs, and buy-outs. Without regulation, in my opinion, it’s only a matter of time before only a few large ISP’s will remain. It’s American capitalism 101, companies will undoubtedly get larger and seek to continue to maximize profits for their shareholders. In the end, the American consumers will be left holding a bag full of commercial content bought and paid for by the highest bidder.

     Eventually, Congress will need to step in and set a standard of regulation for U.S. Internet Service Providers. Unfortunately, members of Congress understand little about advancing technology and heavily rely on the steady supply of talking points and “research” provided to them by lobbyist. Until we can rid ourselves of the current “do-nothing” Congress, expect little movement on this by our legislative branch of government. Consequently, relying on the Judiciary, armed with antiquated laws, to set standards for existing and future technology that has far surpassed the laws that govern it.  Needless to say, we’ll be keeping a close eye on this evolving contemporary issue as both technology and public sentiment grows.

Private Prisons, Fleecing American Tax-Payers

prisons usa Private Prisons, Fleecing American Tax Payers

PRIVATE PRISONS COSTS US ALL

Here in the United States, we have the largest prison population in the entire world. Although prison populations have increased throughout civilized nations, the U.S. outpaces all other industrialized countries incarceration rates by nearly 5 to 1! Simply put, the natural incarceration rate among other modern nations similar to the U.S. trends at 100 prisoners per 100,000 residents, however, here in the United States, the rate is over 500 prisoners per 100,000 residents which equates to 1.6 million prisoners according to data from the Bureau of Justice Statistics (BJS).

What may be even more troubling are the disparities among ethnic minorities and racial classifications. Black men are incarcerated at rates of 3,074 per 100,000 residents, and Latinos at rates of 1,258 per 100,000, compared to white men who are incarcerated at just 459 per 100,000 residents. Invariably, young black men (ages 18-34) are at least six times more likely to be incarcerated than young white men, according to a recent analysis by Becky Pettit, a University of Washington sociologist.

It is no question that people of color are disproportionately affected by mass incarceration in the United States. However, all Americans bear the brunt of the crippling costs associated with increasing prison populations that saddles both federal and state government budgets across the nation. Many government agencies have turned to the private prison industry for relief from rising costs.

prison timeline Private Prisons, Fleecing American Tax Payers

Privatization to the Rescue

The privatization of U.S. prisons has become a booming private enterprise. Gaining popularity since the early 1980’s, coincidentally, coinciding with the increase of the war on drugs. The U.S. Department of Justice own reports, show U.S. private prison populations have grown 37 percent from 2002 to 2009 alone. At the heart of it all, private prison industry lobbying, has grown exponentially by 165 percent.

chart private prison pop ed 2218960 Private Prisons, Fleecing American Tax Payers

As ThinkProgress reported, private prisons haven’t just expanded their political influence by expending lobbying dollars, they’ve also been remarkably apt at placing friendly lawyers and lobbyists in the offices of major decision-makers like Gov. Jan Brewer (R-AZ), famous for executing the now infamous Senate Bill, SB1070, a harsh anti-immigrant law designed to increase prison populations.

The number of private prisons operating in the U.S. has increased from 5 in 1998 to 100 by 2008. Leading the pack, Corrections Corporation of America (CCA), the nation’s largest private prison corporation, has seen over 500 percent profit growth over the last twenty years. As reported, in 2010, the two largest private prison corporations alone received nearly $3 billion in revenue, while their top executives each received annual compensation packages worth well over $3 million.

As Brave New Foundation’s Jesse Lava puts it, the privatization of federal and state prisons “illustrates how greed has become a major driver of mass incarceration—and how the system is more vast [sic] than most citizens imagine.”

States Must Promise to Keep Occupancy Rates at 90% or Above

The Nation reported that CCA officials sent letters to forty-eight governors, offering to take their prison systems off state hands in exchange for a guarantee that their states would keep their facilities up to ninety percent full—regardless of crime rates. Essentially, states in keeping up with their promises, demand higher conviction rates from state and local prosecutors, judges and lawmakers.  Even where criminal activity has diminished, and prison populations reduced, private prison corporations continue to demand bed guarantee provisions in their contracts. These types of guarantee’s made by state officials only serve to exacerbate the already existing inequalities in the U.S. justice system

3356692941 b36655e310 Private Prisons, Fleecing American Tax Payers

But Less Government Oversight Increases Efficiency, Right?

Wrong! Facilities run by private prison corporations are not subjected to the same oversight as state and federal prisons. Lack of transparency, regulation and oversight has only led to deteriorating conditions which in turn, has led to a multitude of multi-million dollar lawsuits and government fines. All of which, invariably makes its way out of tax-payer’s pockets.  As Alex Friedmann, editor of Prison Legal News, who himself was once incarcerated at a private prison has pointed out, “the private prison industry operates in secrecy while being funded almost entirely with public taxpayer money.” In September Bloomberg reported that “the federal government provided almost 43 percent of [CCA’s] $1.76 billion of revenue in 2012, according to its annual report.”

According to the Nation, CCA, and Geo Group, the second largest private prison corporation, have become notorious for providing substandard and sometimes harrowing living conditions to their prisoners. State and federal regulation is necessary to equalize the vast disparities in dollar-for-dollar spending costs on public and privately ran prisons. However, lawmakers are slow to react, if not turning a blind eye all together. As the Arizona Republic’s editorial board pointed out, in a bill passed in 2012, Arizona’s overwhelmingly Republican Legislature effectively eliminated the statutory requirement for the Arizona Department of Corrections to do a cost comparison between public and private prisons. Furthermore, it eliminated the previous statutory requirement for regular comparisons of services provided by private and public prisons, including a hard look at servces such as; security, prisoner health and the safety of facilities. It was signed into law by Gov. Jan Brewer, who has long been a supporter of private prisons. Transparency will be the key element to shedding light on the billions of tax-payer dollars lining the pockets of wealthy investors and share-holders.

private prisons map Private Prisons, Fleecing American Tax Payers

Progress, Slow but Progress Nonetheless

While there remains much work to be done in reforming America’s love affair with the capitalization of bondage, some progress is being pursued. For instance, the Private Prison Information Act, legislation first introduced over nine years ago, has again garnered support for its reintroduction. Specifically, Texas Congressional Representative, Sheila Jackson Lee, has reintroduced the failed legislation attempt that would require anyone with a federal prison contract—to “make the same information available to the public that Federal prisons and correctional facilities are required to make available.”

In addition, baby steps have also been made by other federal agencies reigning in run-away profits off the prison industry. Pointedly, the Federal Communications Commission (FCC) has finally capped the seemingly unlimited astronomical rates charged by private telecommunications providers to inmates in order to communicate with loved ones on the outside world.

Moreover, Idaho’s Department of Corrections have recently announced that it will take back control of its privately ran prison industry citing over a decade of mismanagement and other problems at the facility including multiple lawsuits alleging rampant violence, under-staffing, gang activity and contract fraud by CCA.

1211 dagan teles article Private Prisons, Fleecing American Tax Payers

Conclusion

The Privatization of essential public functions, such as healthcare, incarceration, and rehabilitation have all had the polar opposite effects of their intentions, driving down costs. When you place profits above all else, undoubtedly, the cost of doing business will rise. Footing the bill for this privatization craze are the American tax-payers like you and me who end up paying far more for far less.

Many will attempt turn these debates into arguments over being “tough on crime,” or the inefficiency of government, however, those arguments have failed in the past and will continue to fail whenever we place profits above people. Those who stand to benefit from de-privatization are not just criminals, but the hard working American people who are seeing their tax dollars funneled into private bank accounts.

Who gives a Duck about the First Amendment!

1223 DuckDynasty620x468 Who gives a Duck about the First Amendment!

There has been a lot of social media chatter about the recent controversy surrounding the infamous star(s) of the Duck Dynasty franchise. Apparently, one of the main characters, Phil Robertson made some disparaging remarks in a GQ Magazine interview regarding his views on homosexuality and Jim Crow era race relations. As a result, Mr. Robertson was relieved of his contractual obligations with the A & E television network. Not soon after, every realm of social media became abuzz with outrage; many calling for his head, and others exclaiming constitutional free speech violations. Understandably so, the show has an enormous following, boasting the highest reality show ratings in A&E history with over 11.8 million viewers.

It has been interesting seeing post after post from non-legal-scholars proffering opinions on the constitutionality of various social issues such as this one. As Susan Milligan put it, “somewhere between the vitriolic, anonymous Internet comments and reality TV, we seem to have lost the idea of the true meaning of the First Amendment.” Before having the opportunity to attend law school, I probably would have been one of them.  However, while I’ve never seen the show in its entirety, I do know a thing or two about the Freedom of Speech. Specifically, as written, the First Amendment to the United States Constitution prohibits the making of any law abridging the freedom of speech. Period! It does not afford you the right to publicly express anything you want during the course of your employment exempt from contractual consequences taken by your private employer.

Just ask Justine Sacco, the high-ranking PR executive from the New York-based internet empire InterActive Corp, who was recently fired for a highly offensive Tweet directed at the entire continent of Africa.  Bottom line, the Freedom of Speech only protects statements suppressed by governmental entities such as state, local and federal agencies. The Freedom of Speech does not protect your comments from the repercussions of a private employer.  However, for those less versed in the law, there are exceptions, such as the State Actor Doctrine, where a person who is acting on behalf of a governmental body can be subject to regulation under the United States Bill of Rights. Here, however, last time I checked, A & E is not, nor has it ever been owned, operated by, or received any funding from a government entity.

Image FreeSpeech Who gives a Duck about the First Amendment!

But Sarah Palin said  . . . 

Unfortunately, Mrs. Palin is a prime example of selective constitutional self-preference. She recently tweeted, “[f]ree speech is endangered species; those ‘intolerants’ hatin’ [sic] & taking on Duck Dynasty patriarch for voicing personal opinion take on us all,” which begs the question; what the hell is she talking about? It would appear that legally unsophisticated individuals such as herself love to toss out the “Free Speech Card” whenever it suits their needs, however choose to remain unmindful as to the true meaning of it.

If you love this country as much as the red, white and blue camping chairs and window flags from Walmart suggests, I would advise taking the time to actually understand the constitutional rights and limitations this country has afforded us. Otherwise, respectfully, I would suggest keeping quiet when proclaiming constitutional rights that don’t exist.