What Happens to Your Facebook Page Upon Death?

February 7, 2014Technology, UncategorizedDigital Estate, Facebook and deathadmin

WHAT HAPPENS TO YOUR FACEBOOK ACCOUNT WHEN YOU DIE?

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]

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.

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.

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 21^st 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

January 23, 2014Technologyadmin

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?

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?

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

January 3, 2014Uncategorizedadmin

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.

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.

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

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.

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.

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!

December 23, 2013Uncategorizedadmin

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.

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.

Got Any [Bit]Coins to Spare?

November 27, 2013Technologyadmin

GOT ANY SPARE (BIT) COINS

By now, if you’re still one of those folks asking, “what the hell is a Bitcoin?” Don’t worry, you’re not alone. Introduced in 2008 by a group of programmers under the name Satoshi Nakamoto, Bitcoin is defined as peer-to-peer technology that operates outside of central authority or banks. Bitcoins, which exists solely in software, uses cryptography to control transactions and prevent the re-use of spent currency. When a payment has been validated, it becomes public record once recorded in a public ledger known as the blockchain. Payments are then processed by a network of private servers owned and operated by “miners” who benefit from transaction fees and newly minted Bitcoins. Currently, there are roughly 12 million Bitcoins in circulation trading at about $965 each as of today.

In early 2012, when Bitcoins popularity began to catch the eye of mainstream financial insiders such as The Economist, it was initially charecterised as currency for online black market traders like the infamous Silk Road. Internet black markets, such as Silk Road were described as havens for all things illegal including; drugs, guns, pirated software, and pornography due to the untraceable nature of Bitcoins. However, that was so 1-year ago, and a lot has changed since the relatively unknown currency emerged on the scene. As of today, Bitcoins are increasingly being used as payments for legally legitimate services and products. Both online and brick & mortar merchants have begun accepting the digital currency due to its attractive low transaction fees. Typically, a credit card processing company charges up to 3% per transaction whereas Bitcoin transactions can be below 1%.

Laws Governing the Use of Bitcoins

In a recent federal case surrounding a Bitcoin Ponzi scheme, SEC prosecutors contended that Bitcoins were considered “security,” defined as; “any note, stock, treasury stock, security future, security-based swap, bond…[or]investment contract” according to U.S statute 15 U.S.C. § 77b. Federal Judge Amos L. Mazzant agreed, ruling that it was clear that Bitcoins can be used as currency and the “only limitation of Bitcoin is that it is limited to those places that accept it as currency.”

Currently, like many other forms of technology, there is no specific law governing its use. Initially, deemed “experimental currency” in a high-risk environment, U.S. government officials sought clarification of its legal use. After extensive testimony before the U.S Senate’s Homeland Security and Governmental Affairs Committee, the U.S. Justice Department described Bitcoin currency as a “legal means of exchange.” Bloomberg Business reported that “government agencies from the U.S. Secret Service to the Financial Crimes Enforcement Network have weighed in to say that the virtual currency that’s designed to be difficult to trace has potential benefits, as well as risks.”

Future of Bitcoins

So what does that all mean?

Essentially, Bitcoins, as of now, are considered a legal form of currency capable of being exchanged in the U.S. and worldwide markets. So long as retailers, service providers, and online merchants who accept Bitcoins continues to grow, expect Bitcoins to remain legal. On average, there are currently about 30 Bitcoin transactions per minute, however that number is expected to grow exponentially, estimated a report published earlier this month. Bitcoin trading has increased nearly 500 times over the past year, and steadily increasing at rates predicted by industry economist. Moreover, since Bitcoins are created by miners operationg powerful servers capable of completing robust software algorithms embedded within the currency itself, expect Bitcoins volume to increase, both as miners and computing power increases.

How Can You Benefit from Bitcoins?

Bloomberg business news reports that savvy U.S investors have begun allocating more and more of their investments to Bitcoin currency in order to diversify their portfolios. Further, many Wall Street investment firms have begun offering investors options to buy Bitcoins for individual retirement accounts (IRA’s). Bitcoin Investment trusts have also cropped up creating more than $15 million in funds. Simply put, if you’re interested in spreading your profits and losses out, Bitcoin investments may be a viable option.

Conclusion

While Bitcoins have been given the green light by U.S. treasury officials, it’s still a relatively new trading platform and should be approached with caution. Consequently, according to Bitstamp, in the time it took to compose this post, Bitcoins value increased by nearly a dollar! However, Bitcoin trading volatility has been influx due to recent Senate inquires and the subsequent validation by U.S officials as an authentic currency. Therefore, once all the dust settles, and you get all the facts, maybe you’ll have a few (Bit)Coins to spare!

Increasing Access to Legal Services begins with Lowering Law School Tuition

November 22, 2013Law Schoolacccess to legal services, affordable tuitionadmin

INCREASING ACCESS TO LEGAL SERVICES

I recently ran across a post on a fairly well circulated legal blog where the author advocated for allowing Unlicensed Practice of Law commonly known as UPL, to reduce the cost of legal services. In other words, allowing individuals who have not been licensed by any state bar association such as; document preparers, paralegals, and law students to administer legal advice.

Unfortunately, while the author’s heart is in the right place – addressing inadequate access to legal services – the solution he proposes is fatally flawed. To suggest, allowing those without law licenses, such as paralegals, to practice law is unsound and suggests one’s life, liberty and well-being wouldn’t be outcome dependent. Using the authors logic, those who cannot afford health care would be diagnosed and treated to by unlicensed doctors and practitioners. Can’t afford the high cost of surgery? Maybe a surgeon who isn’t licensed by the medical board can help out.

The author, however, makes some legitimate points. For example, requiring a law license for simple matters such as document preparation is indeed overkill, as evidenced by the emergence of self-service legal services. (Think LegalZoom) However, the author also regrettably adds that by allowing non-lawyer investors to purchase and run law firms, it would result in more efficient legal services and lower costs. Unfortunately, the last I checked, deregulation has done little to improve quality and provide long-term sustainable lower costs to consumers in any market.

The author’s overall analysis was incomplete. Although he briefly touched on the pink elephant in the room – acknowledging that “free legal services are limited to certain legal issues,”- he leaves out an entire segment of the U.S. legal system in need of adequate legal services, Criminal Defendants. According to the Administrative office of the U.S. Courts , in Federal courts alone, there has been “a 70% jump in the number of pending federal criminal cases in the past decade.” At the same rate, civil federal litigation has been held up at an alarming rate due to the influx of criminal cases.

But criminals are entitled to an attorney if they cannot afford one, right? Yes, federally through the Sixth Amendment and later applied to the states via the Fourteenth Amendment in Gideon v. Wainwright. However, that does not always amount to adequate representation. Justice Anthony Kennedy recently opined on how 97 percent of all federal cases and 94 percent of all state cases end in plea bargains, leaving serious questions as to the efficiency of criminal legal representation.

WELL WHAT’S YOUR BRIGHT IDEA?

I don’t think allowing UPL by non-lawyers is the key to increasing access to and improving the limited legal representation that exists. In my opinion, lowering the overall cost of a legal education would be a good start to increasing access to affordable legal representation. The ABA Journal reports that the average cost of a legal education with living expenses is around $216,406 for the year 2013! Simply put, on a ten year repayment plan, the monthly cost to repay that amount is over $2500 month, or nearly $16 per hour, per forty-hour work week for the next ten years. On top of that, factor in that attorneys generally earn between $40-65,000 a year before taxes, which amounts to $20-32 per hour in salary. With half, or nearly a third of your salary accounted for in student loan debt, how could anyone afford to provide affordable legal services?

Lowering the cost of legal education

Programs do currently exist that promise to vastly reduce, or even eliminate a young lawyers student loan debt if they work in the public sector for at least ten (10) consecutive years. However, the long term effect of these programs remains to be seen. Mark Kantrowitz, a higher education expert, suggests that law students loan “costs are so out of sync with their employment rates and their incomes that whatever comes later on with other [graduate] programs will probably happen first with law schools.” Simply put, law school tuition is the most grossly over-adjusted post-graduate tuition rates that exist, and if they can fix our problem, they can fix any graduate program with similar issues.

None of this helps us reduce the cost of attending law school; it only reduces the amount students have to pay back. However, schools do exist with reasonable debt to income ratios. Take for instance, Brigham Young University Law School, where the average student debt load was $56,000 and the median starting salary was a healthier $86,000. Usnews.com reported the ten best law schools where debt to income for the cost of education were the most modest in the nation. What possibly could these schools be doing that other schools aren’t? For starters, they aren’t privately ran institutions charging whatever they wish for tuition. Though unranked schools weren’t included, the emergence of private schools has arguably increased the overall cost of attendance for many newly minted JD’s.

Private law school tuition, on average, is $40,585 per year compared to just $23,590 for public law schools. However, all cannot be blamed on greedy private law school investors. A recent U.S. News & World Reports study show that while private law school tuition increased four (4) percent year over year, public law school has increased six (6) percent. Either way, the cost of law school tuition has outpaced the rise of inflation by 3 to 1. Nowhere on earth would this business model make sense and it’s all being financed on the backs of aspiring attorney’s, many of which, myself included, went to law school to help people. With the crushing debt loads students are taking on, it’s increasingly difficult to help anyone who cannot afford to pay the cost of being a lawyer.

High Stakes at High Noon, Patent Litigation Showdown

November 20, 2013Technology, UncategorizedIntellectual Property, patent litigation, Patent Trolladmin

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.

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.

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!

Texas Prosecutor Finally Convicted for Wrongful Conviction

November 11, 2013Criminal Justice, Societycrooked prosecutor, DNA evidence, innocence project, innocent man, Prosecutorial misconduct, wrongful convictionsadmin

TEXAS PROSECUTOR CONVICTED FOR WRONGFUL CONVICTION

For the first time in American history, a Texas Prosecutor Finally Convicted for Wrongful Conviction.Ken Anderson, former prosecutor, was criminally charged, convicted, and sentenced for his role in intentionally withholding exculpatory evidence from then Defendant, Michael Morton, who was charged with murder in 1986. Mr. Morton was subsequently sentenced to life in prison in 1987 and served over twenty-years before being released. Mr. Morton was eventually exonerated of all charges in 2011 after DNA evidence cleared him from the possibility of beating and killing his wife in 1986. Michael Morton was present at Mr. Anderson’s sentencing but refrained to comment.

Ken Anderson, 61, served as district attorney when he withheld evidence from Mr. Morton’s defense team. He eventually went on to serve as Judge in Williamson County Texas for over eleven (11) years before resigning this September in light of allegations. Perhaps what’s most ironic is that Mr. Anderson’s plea agreement precludes Mr. Morton from pursuing any further civil actions against the former district attorney. As a result of Mr. Anderson’s conviction, he will be disbarred and must serve five-hundred (500) hours of community service. Additionally, Mr. Anderson will serve ten (10) days in the Williamson County Jail.

Mr. Anderson initially responded in 2011, while proclaiming his own innocence, offered a flagrantly hypocritical apology, stating that “it’s inconceivable that this happened.” For his role, Mr. Anderson plead No-Contest to the 1987 criminal contempt of court charge and voluntarily agreed to surrender his law license.

Mr. Anderson, though now a convicted criminal, got off extremely light! Ten-days in the County Jail hardly compares to the twenty-four years Mr. Morton served in prison. Moreover, 500 hours of community service pales in comparison to the lost memories, productivity, and opportunities that Mr. Morton missed out on. Mr. Anderson’s sentence isn’t even analogous to a slap on the wrist compared to what Mr. Morton endured. Though Mr. Anderson also lost his license to practice law, at 61 years old, it will hardly have as significant of an impact as portrayed. Yes, while a law license equates to a lawyers livelihood, and without it, our professional skills would be insignificant, at 61 years of age, Mr. Anderson was nearing retirement anyway.

SHOT ACROSS THE BOW

While I’m grateful, for the first time in history, a prosecutor has been prosecuted and convicted for his criminally negligent conduct, I certainly hope it won’t’ be the last. The Innocence Project reports that since DNA evidence has been used, there have been over three-hundred elven (311) post-conviction DNA exoneration’s in the United States. Of those exonerated, eighteen (18) of which were sentenced to death, an additional sixteen (16) were sentenced for capital murder. The average prison stay for a wrongly convicted innocent person is nearly fourteen (14) years before exoneration. In Arizona alone, the AZ Justice Project reports there have been eleven (11) wrongful convictions overturned, and over forty-five (45) cases in court or under the supervision of a review team.

Though, Mr. Morton was white, race undoubtedly plays a factor in wrongful convictions. Of the 311 post-conviction DNA exoneration in the United States since 1989, 193 were Black. Simply put, 62% of all exonerated convictions were Black men, though Black men roughly comprise 40% of the US prison population and only 6% of the American population, according to the US Bureau of Justice Statistics (BJS). That said, more needs to be done! Hopefully, more will be the literal translation of an Independent Review being established in Williamson County to audit every case Mr. Anderson has ever prosecuted.

Given the grave statistics, absent any state statutory recourse, there should be federal legislation requiring prosecutorial audits wherever wrongful convictions are overturned. We cannot continue to rely on individual municipalities to simply “do the right thing.” There needs to be systematic checks and balances that are mechanically triggered wherever prosecutorial misconduct is found. Here, lies a perfect example and opportunity to do so! That said, at a minimum, I hope this serves as a shot across the bow to all over-zealous prosecutors blinded by the tunnel-vision their professional aspirations create. I sincerely hope those who cut seemingly insignificant corners in pursuit of justice are put on notice by Mr. Anderson’s conviction.

Arizona Supreme Court v. Arizona State Legislature

November 7, 2013Uncategorizedadmin

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!

Hello world!

October 3, 2013Uncategorizedadmin

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.