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Law Firm Information Rights Management & Electronic Signatures

Information Rights Management and Electronic Signatures
Protecting Email Signatures

Can my email signature be forged? How about using an electronic signature on legally recognized documents? Both issues were recently presented to me by our senior equity partner at the law firm. My answers, yes & yes, but let me explain. It boils down to understanding Information Rights Management (IRM) and meeting the statutory requirements for using a legally recognized electronic signature.

Issue #1 Information Rights Management

When it comes to preventing email signatures from being altered, copied, or forwarded without authorization, an IRM policy must be implemented. Assuming we’re using an email client such as Outlook 2010 or newer, additional third party Microsoft credentials are required. Here’s how it works.

Information Rights Management (IRM) allows you to specify access permissions to email messages. IRM helps prevent sensitive information from being read, printed, forwarded, or copied by unauthorized people. After permission for a message is restricted by using IRM, the access and usage restrictions are enforced regardless of where the message goes, because the permissions to access an email message are stored in the message file itself.

IRM is generally implemented at the server level using Microsoft Exchange software. Alternatively, IRM is hosted on Microsoft servers by Microsoft for free, but requires a Microsoft Live ID (@hotmail.com email) to use. In order to utilize IRM internally, for example, a law firm would need one of the following: (1) running their own Microsoft Exchange server and managing it in-house, or (2) use a new or existing Microsoft Live ID (@hotmail.com ID) in conjunction with a firms existing hosted email to take advantage of IRM hosted for free on Microsoft servers. Clearly the latter is the most cost effective; however it would require several additional steps in sending an IRM equipped email.

Information rights management and electronic signatures
Legally Recognized Electronic Signatures

Issue #2 Using Electronic Signature

Here in Arizona, under Arizona Revised Statutes, an electronic signature is defined as an electronic process that is attached to or logically associated with a record that is executed or adopted by an individual with the intent to sign the record. A.R.S § 44-7002
Furthermore, a signature is considered secure if, at the time it was made, and applied through a security procedure it is; (1) unique to the person using it, (2) capable of verification (3) under the sole control of the person using it, and (4) linked to the electronic record to which it relates in such a manner that if the record were changed the electronic signature would be invalidated. A.R.S § 44-7003

Generally speaking, an electronic signature can be any electronic means of indicating that a person adopts the contents of an electronic message. However, under A.R.S. § 44-7003, to qualify as a secure electronic signature, the operative requirement is element (4), the necessity to have ones identity validated through a third-party security certificate service. Such services are seemingly analogous to credit reporting agencies however solely for electronic identity. Currently, there are seven credentialing services customarily used throughout the industry. Those seven services include ARX CoSign, Avoco secure2trust, ChosenSecurity, Comodo, GlobalSign, My Credential, and VeriSign.

If your firm decides to implement a secure electronic signature digital ID, it is recommended you use a platform you may already be using. For instance, at our firm, we use Norton for anti-virus protection. It just so happens Norton is who issues VeriSign electronic signatures. A yearly subscription is required however, with a digital ID, a possessor would not only be able to securely sign electronic documents, but also send digitally signed emails which, in and of itself, constitutes a secure verified document. The process is fairly simple; a YouTube video explaining the process can be viewed here.

Conclusion

In conclusion, to protect email signatures from alteration, unauthorized copying and forwarding, a law firm has the option to implement Microsoft IRM services through the use of Microsoft Live ID accounts in lieu of costly in-house Exchange server management. Furthermore, secure electronic signatures pursuant to A.R.S § 44-7031, can be achieved through the use of digital ID’s validated through third-party security certificate services.

 

Understanding Civil Forfeiture Laws

Understanding Civil Forfeiture Laws
Understanding Civil Forfeiture Laws

Has your personal property been naughty lately? If so, it could be sued by federal, state, and municipal governments resulting in a good ole bona fide Fourth Amendment seizure. Also known as civil forfeiture, the practice has been around for decades. Although once generally limited to suspected drug dealers, with increasing bureaucratic budget shortfalls, its’ becoming widely used by government agencies as a source of department revenue across the nation.

Civil Forfeiture on the Federal Level

Civil forfeiture is codified on the federal level by 18 U.S.C. § 981 (paralleling 18 U.S.C. § 982) and 21 U.S.C. § 881.[1] Essentially, the government initiates civil actions against the property itself, not the owner to remedy a harm, through the fiction of the property’s “guilt.”[2] The result, if your property has been naughty – I.e., involved in or an instrumentality to a crime – it may be seized by the government without its’ owner (you) ever being charged or convicted of a crime. With regards to the guilt or lack thereof of the property’s owner, the Supreme Court ruled that Due Process does not require pre-seizure notice or hearing, and that the innocence of the owner is not a general defense.[3] What’s worse, state and local governments have since jumped on the bandwagon implementing their own form of civil forfeiture laws punishing naughty property by seizing it, selling it for 100% profit, and then incorporating the funds into their general operating budget.

Understanding Civil Forfeiture Laws
State & Local Civil Forfeiture

Civil Forfeiture on State and Local Levels

Originally the law was designed to give the federal government the authority to seize drug kingpin property used in illegal drug trafficking. For instance, if a drug trafficker was using his private plane or boat to transport narcotics, under the; RICO, Criminal and Drug Forfeiture Acts, the Feds could legally confiscate those items in order to prevent further trafficking. However recently, state and local level civil forfeiture laws have given local police departments the authority to forfeit personal items such as a jewelry, cash, homes and essentially anything else that can be sold. As noted, though the property owners are never charged, local & state agencies can bring action against the item itself leading to nonsensical forfeiture case names such as State of Texas vs. One Gold Crucifix or South Dakota v. Fifteen Impounded Cats.[4]

Here, in State of Texas vs. One Gold Crucifix, the “police confiscated a simple gold cross that a woman wore around her neck after pulling her over for a minor traffic violation.” [5] Since the defendant in civil forfeiture cases is the property itself, the rights of the owner have no bearing on the outcome. As a result, many individuals whose property is confiscated simply choose not to fight due the high costs of legal fees.

Further, one jurisdiction in particular, Philadelphia, PA, engages in the most notorious and aggressive civil forfeiture tactics in the country. Specifically, in a recent case involving a couple whose son was caught selling $40 worth of narcotics outside their family home, Philadelphia authorities sought to confiscate the couple’s entire home, sell it at auction, then retain the profits. As a result, The Institute for Justice has taken on the couples – and others similarly situated – case(s) filing a class action lawsuit seeking an injunction against the City of Philadelphia to halt what it refers to as “violations of rights guaranteed by the Due Process Clause of the Fourteenth Amendment.”

Defenses to Civil Forfeitures

As noted, unless provided by statute, the innocence of the owner is generally not a defense to a civil forfeiture. Even where statutory defenses are available, they are narrowly construed by the courts. [6] For example, “courts may apply an objective standard to determine if the owner should have had knowledge of the property’s illegal use, rather than require proof of actual knowledge.”[7]

In certain situations, owners may be able to argue that if no crime occurred, the government lacks probable cause, “or that the property is not closely enough connected to the crime to be considered an instrumentality or proceeds.”[8] Even where the government is required to return the property seized, it is not liable for any further damages resulting from its confiscation, nor any interest ordinarily accrued on actual forfeited funds.

Proposed changes

On the national level there has been chatter on reforming federal civil forfeiture statutes however not much has been done. There is bi-partisan support for the proposed Civil Asset Forfeiture Reform Act proposed by Tim Walberg (R-Mich) however it faces an uphill battle in the Judiciary Committee.

Currently, North Carolina is the only state in the country that prohibits civil forfeiture unless the owner of the property has been convicted of a crime. A state lawmaker in Virginia, Delegate Mark Cole, is proposing legislation in the 2015 general assembly to curtail current civil forfeiture statutes.[9] Hopefully other lawmakers will catch on as this little known, seemingly secret process is being brought to light.

Understanding Civil Forfeiture Law
Now that Its Affecting Many more Americans than Originally Intended . . .

Conclusion

If your property has been naughty or even has the inclination of naughtiness, have a sit down with it and explain the ramifications of its behavior. If that sounds ludicrous, so does the governments rationale for seizing it! My theory is that since this practice was primarily directed at inner-city “drug dealers” many Americans simply didn’t care. Once its pervasiveness started sprawling into suburban America, it now has become a problem that needs reform. It’ll be interesting to see how much government the limited government folks will tolerate once their loved ones and neighbors are affected.

 

 

[1] Forfeiture | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute, , http://www.law.cornell.edu/wex/forfeiture (last visited Nov 6, 2014).

[2] Id.

[3] Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).

[4] Civil forfeiture perverts justice – Technician: Opinion, , http://www.technicianonline.com/opinion/article_f07018ae-5a60-11e4-a320-0017a43b2370.html (last visited Nov 6, 2014).

[5] Id.

[6] Forfeiture | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute, supra note1.

[7] Id.

[8] Id.

[9] State lawmaker targets civil forfeiture | Alexandria Times, , http://alextimes.com/2014/10/state-lawmaker-targets-civil-forfeiture/ (last visited Nov 6, 2014).

Break Your Lease Without Breaking the Law

How to break a lease

We’ve all been there before, when life’s circumstances simply don’t align with your existing contractual obligations. Whether it’s a cell phone or gym membership contract there can be stiff penalties for early termination. However, if it’s an actual rental agreement, knowing how to break your lease without breaking the law will leave you with more options than taking a financial hit over the head like a cell phone plan or gym membership.

Generally, a rental agreement is defined as any agreement, either oral or in writing, between a lessor (owner) and lessee (renter) which gives the lessee exclusive use of the premises for an agreed upon time for an agreed upon price. Simply put, it’s the long packet of documents you initialed and signed when you leased your apartment. However, note that even oral rental agreements are valid if the length of the rental agreement is for less than one year.

How to break a lease
Read, then Re-Read Your Lease Agreement

Steps to Take When Breaking Your Lease

As Nicole Schreck pointed out, there are generally three steps you should take when you plan to break a lease. First and foremost, you should thoroughly read through your rental agreement. Many apartments, property managers and landlords alike use generic rental agreements which usually contain similarly generic language. Included in that language is what’s called an “opt-out clause.” Opt-out clauses specifically stipulate what is required to break a lease, what you’ll be responsible for and how much notice should be given to the owner or property manager. Some opt-out clauses require that you give up to two months’ notice to the landlord, owner, or property manager.

Secondly, and the most important step after becoming aware of your changed circumstances and the contractual requirements of the lease is to talk to your landlord and/or property manager. Depending on the relationship you have with your landlord and the exclusivity of the property, they may be willing to work with you in getting the premises re-leased. Often times, where we anticipate a large legal fall-out, good-ole-fashion interpersonal communication can easily resolve a matter. Since the ultimate goal is replacing you as a tenant, communicate with your landlord your willingness in helping to find an alternative renter or sub-lessor.

Lastly, find a new tenant. In many jurisdictions a landlord is responsible for mitigating any financial losses before legally pursuing damages from you as a tenant. Simply put, the landlord cannot let the premises sit vacant while the unpaid rent accumulates then go after you for the unpaid rent. By personally finding a new tenant, you ensure there is minimal vacancy, which in turn, reduces the chances of any adverse action against you as a former tenant. Alternatively, if the landlord is left to finding a replacement tenant, he or she may lease the premises for a lower rate than you leased it for thus allowing the landlord to seek damages for the difference between your original lease price versus the new leased price.

Break your lease
Find a New Tenant

Special Circumstances in Breaking a Lease

There are special circumstances where a lessee can legally break a lease without any legal consequences. Those include (1) inhabitable living conditions, (2) military deployment, and (3) death or incapacity. Hopefully, it’s not for the latter! It should be noted that some leases procured through a real estate agent will allow the lessee the option to place the premises back on the MLS. However, the lessee is still responsible for rent throughout the listing and showing period in addition to the remaining commission owed to the agent which is usually around 6% of the monthly lease rate for the remainder of the lease.

So if life has dealt you some incongruent circumstances that simply aren’t compatible with your contractual obligations, namely the lease you signed, relax, there are options. If you’re fretting over how to break a lease without breaking the law, knowing all your options before making any decisions is key to avoiding unnecessary headaches. Read, then re-read the agreement you signed. Speak candidly to your landlord; explain your circumstances along with your willingness to help avoid any disruption in tenancy. Then personally make an effort to find a replacement tenant.

What Happens to Your Facebook Page Upon Death?

WHAT HAPPENS TO YOUR FACEBOOK ACCOUNT WHEN YOU DIE?

Facebook-After-Death-New-Laws

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

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

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

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).

Private Prisons, Fleecing American Tax-Payers

prisons-usa

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

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

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

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

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

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!

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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.

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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.

 

High Stakes at High Noon, Patent Litigation Showdown

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     One gentleman in particular can arguably be credited for the way most of us use the Internet today! Michael Jones, a patent holder, and also the source of numerous legal battles which have resulted in hundreds of lawsuits and millions of dollars in settlements.  The patent Jones holds is based on an encryption algorithm invented in 1987 well before the Internet became available.

Essentially, many commerce and communication sites use what’s called Secure Sockets Layer (SSL) protocol to communicate securely over the Internet. Specifically, a SSL session encrypts data flowing between two parties, usually the end-user (yourself), and the content provider (think Amazon, GoDaddy, etc.) Internet content providers that utilize SSL protocol encryption includes everything from email providers, Internet faxing, IM’ing, to voice over IP (VoIP) vendors.

However, Mr. Jones patent, US Patent No. 5,412,730, which was originally granted in 1989, predates the internet all together. One may ask, how can a patent before the internet, control internet content providers today? Apparently his original patent application was written broadly enough to justify “suing hundreds of websites yet narrow enough that the case shouldn’t be dismissed as irrelevant over the encryption that existed at the time,” Joe Mullin reported for arteschnica.com. To date, Mr. Jones has received confidential settlements from over 120 web content providers for SSL protocol use.

One particular company however, decided it would not pay Mr. Jones licensing fees for a patent that was issued before the technology being used was created. Newegg, an online digital retailer, decided to forgo any talks of settlement and take its patent claim defense to the court of law. Specifically, New Egg’s top attorney, Lee Chang, has determinately decided not to pay any settlements to Mr. Jones or his holding company associated with the patent. Mr. Lee basically summarized Mr. Jones and his subsequent holding company as a “Patent Troll,” as he and his legal team prepares for court.

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A Patent Troll is defined as “a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question.” Simply put, it’s loosely analogous to cyber-squatters, those who pre-purchase popular website domains in hopes of cashing in from anyone wishing to purchase that domain later. The White House conducted a study and discovered that patent-troll related lawsuits were up 400% since 2005, and victims of patent trolls paid nearly $29 billion in 2011 alone.

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The reason this court battle is so significant is because most corporations who are hit with a patent challenge simply weigh the cost of patent litigation against paying licensing fee’s then usually opt for the less expensive latter. The result of this cost benefit analysis usually leaves patent holders like Mr. Jones with a nice portfolio of royalty paying clients. Mr. Lee’s decision to fight back is being held as courageous among many industry insiders.  Principally, a court victory for Newegg, an any subsequent precedent that is set by the court’s outcome would affect all potential SSL protocol users both past and present.  Corporations currently paying licensing fees for Mr. Jone’s preexisting technology include heavyweights like; Verizon, Lowe’s, CVS, Sprint, Amway, State Farm and Aflac.

Newegg and Mr. Jones’ holding company, TQP Development, will face off in federal court in Marshall, Texas. This particular venue has long been held as a favorite among patent litigators because of its seemingly speedy litigation processing. Although TQP’s patent expired in May 2013, the law provides patent holders to seek retro-active claims up to six years prior. We’ll continue to monitor this one and report on the outcome!

 

Arizona Supreme Court v. Arizona State Legislature

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This week the Arizona Supreme Court heard oral arguments from a Maricopa County deputy attorney Susan Luder, arguing for the right to charge Arizona drivers who have ingested marijuana – in some cases months prior to driving – with a DUI.

It all stems from a December 2010 traffic stop for speeding and an unsafe lane change by Mr. Shilgevorkyan, the Appellant, who was subsequently taken to a County Sheriff’s command post where he consented to a blood test. It should be noted Arizona utilizes a very strict implied consent law which essentially penalizes refusing a blood alcohol test with an automatic twelve (12) month driver’s license suspension. That said, Appellant’s blood test eventually revealed approximately eight (8) Nano grams of Carboxy-Tetrahydrocannabinol (Carboxy-THC) State ex rel. Montgomery v. Harris ex rel. Cnty. of Maricopa, 301 P.3d 580, 581 (Ariz. Ct. App. 2013).

The Appellant was subsequently charged with violating Arizona law, A.R.S §28-1381(A)(3), which essentially makes it ”unlawful for a person to drive or be in actual physical control of a vehicle in this state … [w]hile there is any drug defined in section 13–3401 or its metabolite in the person’s body.” Id.  Mr. Shilgevorkyan’s charges were later dismissed in Justice Court during an evidentiary hearing where the prosecution failed to convince the court the presence of marijuana metabolites could impair ones driving.

Later, the Maricopa County Superior court affirmed the Justice court’s ruling, where it determined the statute was ambiguous as to whether the term “metabolite” was meant to be plural or singular. In doing so, the court ruled that the “[s]tate had not shown “the legislature necessarily intended to include all possible derivatives of drugs—particularly inactive end products that no longer affect an individual.” Id.

The State could not let sleeping dogs lie where they lay and appealed the ruling to the Arizona Court of Appeals. The Court of Appeals stuck to the strict language of State v. Hammonds, citing Stave v. Phillips ,determining that  AZ’s strict DUI “statute created a flat ban on driving with any proscribed substance in the body, whether capable of causing impairment or not.” Id. at 582. The court even followed up with case-law allowing courts to construe statutory language plurally where it would “enable the court to carry out legislative intent.” Id at 583.

According to Capital Media Services Reporter, Howard Fischer, the deputy County Attorney was unable to dispute the County’s own expert witness who agreed with Appellant that the presence of marijuana metabolite would not indicate if someone is impaired or not.  The attorney for the Appellant, Michael Alarid, said that the ruling would essentially ban driving by anyone with trace amounts of Carboxy-THC in their blood, and noted it would be an “absurd result.”  The Supreme Court Justices gave no clear indication on which way they were leaning.

Arizona already, argubly, has some of the toughest DUI laws in the United States. There is no public policy need or conern to make them even tougher.  Arizona is known for its libertarian spirit, the notion that government should remain as least intrusive as possible. However, here, the law as applied, would make what you do in the privacy of your home weeks before entering the public doman, a concern of the State. This logic flies in the face of free spirit in Arizona.

This case involves two sides, the Arizona Legislature and the Arizona Supreme Court. The AZ legislature, in their infinite wisdom, left the language overly inclusive.  It is now up to the Supreme Court to narrow the broad net cast by Arizona Legislature’s oversight. We can only hope our states Supreme Justices can reign in some of the hypocrisy that has come out of Arizona the past few years which undoubtedly winds its way up to the United States Supreme Court docket. Think SB1070! Let’s all do our part in keeping Arizona out of the national news for more silliness. All eyes are on the Supreme Court!

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Hello world!

Welcome to the Prospectives of the The Cadillac Lawyer! First, let me start by saying that the term “Cadillac Lawyer”  is clearly a spin-off from the well-known novel and movie (with whathisface) by one of my favorite legal inspired authors. This unique and fun twist showcases both my passion for the law and my affinity for Cadillac’s.

My love of Cadillac’s started early in life, my grandfather’s long sleek luxurious land yacht would seamlessly pull into our driveway just missing the thirty foot oak at the foot of the driveway by inches before floating to a stop. Specifically, I remember the distinct crest and with ducks and birds and some other fascinating shiny objects that would awe a six year old. Eventually, my dad owned one, which he passed down to me as one of my first cars. Currently, I own one, which I will quite likely pass down to my sons as a  one of their first cars. Over the years I’ve come to cherish all ranges of American made luxury items from Cadillac’s to Brooks Brothers suits. Not for there status, but for what they represent, a symbol of American made quality!

Much like legal analysis, quality, and maintaining that level of quality should be a lawyer’s number one priority! Join me, as we analyze contemporary American legal issues from an urban intellectual prospective.

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