Legal Advice for Days!

Legal Advice for Days!

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How Microsoft, Uber and WhatsApp may all be Connected in their Rulings

Web_2If you were to quick answer what Microsoft, Uber and WhatsApp all have in common a partially right answer would be they all have legal actions against them. Many of the actions are from municipal and federal agencies. If you look closer at each of the cases you can see that the triad of cases is getting ready to define an influence for precedent when it comes to virtual business and information management. You want to pay attention to all of this closely as more of our working and personal worlds move online there will be similar cases across the board.

What is at issue is how real the Internet is
What is real and not real on the Internet is something that we are only just starting to understand as a society. With WhatsApp the issue can be privacy violations and harassment. Uber is facing the problem of defining when an Internet based business goes beyond using contractors and is creating an employee. Microsoft leads them all with their struggle to prove the validity of their choice to maintain cloud servers overseas. All of the above have to do with creating structures that evade current regulations that are based upon brick and mortar existence. This isn’t just about business issues; this is a legal examination on the reality of digital life.

Forget the robots, look to the avatars
While there is a lot of news surrounding the personhood of AI intelligent devices, don’t miss the boat in seeing the real issue at hand. An avatar is a digital representation of a person. It not only represents the person online and can act for them, it can also be used criminally to harm the person. An avatar can be as simple as a digital photograph of the person, or as complex as a team hired to interact online in a person’s name through a social media network. The role of these avatars, and their legal repercussion on the real-time entity they represent, is what lies beneath all of the cases at hand.

What the governments worry about
As with Microsoft’s move to keep cloud servers offshore the main concern is how digital life can allow for persons to evade legal responsibilities. The Federal government is struggling to define their limits and jurisdiction in a digital world. The judicial system doesn’t even have the language, let alone the precedent to really begin to make decisions. More and more it is becoming a case bandaiding concerns when they come up. This is leading to a FDA style approach to regulation where the problem has to cause damage before it is investigated. Given that the three cases mention all tie to established real-life concerns, that isn’t going to go over well or last long.

Setting Precedent for Overseas Information Storage

Image of a computer hard drive.

Microsoft has won another small round in its fight with regulators about its practice of storing information in offshore data banks. This is a reflection of how times have changed and truly proves that the adage “knowledge is power” has become a fact of life. Where 30 years ago a company as large as Microsoft may have faced court challenges on where they banked their profits, now they are facing challenges about where they store their information.

The cloud does have a real time location
When people talk about “the cloud” the popular misconception is that all of their data is stored someplace in the ether with no geographic location. That is not true. As the unfolding case with Microsoft has revealed the cloud very much has a street address. The issue at hand is the choice of this American company to keep their data in cloud servers overseas. There is much tied up in this decision that you may not be aware of.

Why does location matter?
The location of the server determines the legal jurisdiction that governs it. Just as online casinos pioneered the use of IP and server locations to help them get around online gambling restrictions, information companies are now taking a page from the casino playbook. It isn’t about cost, but about security. The question the court is raising is security from whom? By keeping their information in offshore server locations Microsoft can evade Federal requests for information by claiming they have no jurisdiction to order a release of information.

Why this is good and bad
As with all things in the legal system there is a plus and a minus to this action. On the one hand it serves to protect customers’ information from warrantless search and surveillance. This has become a priority in the post Wikileaks world. On the other hand it also prevents surveillance of potential activity online that may signal upcoming terrorist attacks too. There is no clean cut answer as to which approach is better. The Federal government is years away from being able to regulate where servers are kept and public sentiment is still weighing in more on the side of privacy and security. As the public currently sees it, the one they need protection from are the investigators – not the criminals – when it comes to securing their data. The challenge is going to shape part of the request for information rules that people and corporations face in the age of Information and Surveillance.

The Benefits of Bringing Mentally Ill Youth to Adult Trial

slenderman_by_ucrackerr-d9r3sewThe Slenderman case continues to redefine how juvenile offenders with mental illness are handled within the system. In a move that shocked many advocates, both girls were remanded to adult courts to face charges. This seemed in direct opposition to the findings that were publicized that determined both have severe mental illness. What many advocates outside of the legal system are not aware of is that this move may serve to protect both girls more than if they remained in the juvenile court system.

Why the move may be better
No matter what the crime, juvenile offenders who are convicted and have mitigating circumstances of serious mental illness are released upon reaching legal age. The case in Florida of the sister and brother being released upon reaching legal age, but not having been determined to be mentally fit is an example of how juvenile sentencing can be a disservice to the ill individual. In adult sentencing, the defendant can be placed in care until the care environment determines they are stable enough to be released.

For two girls, this may be the best way to get help
As anyone with any experience can tell you the juvenile justice system does not have the resources that the adult system has for dealing with serious mental illness. Much of this is due to the imposed age deadline. With two offenders who are already near the legal age of release this can setup a promise to fail when it comes to recovery and rehabilitation. It can be more advantageous to move the defendant to the adult system to gain fuller treatment.

It can also be the best plea agreement around
When it comes to crafting a plea bargain the agreement to transfer juvenile cases to the adult system when mental illness is at play can also be in the defendant’s best interest. With a relaxing of the time served requirements less of a mandatory sentence can be arrived at under the guarantee the needed treatment could exceed the sentencing limitations. This can help to resolve things quickly, assuage both sides and keep the best interests of the defendant in mind. While that may seem counter intuitive when looking at it from the point of view of the victim, when mental illness comes in to play you have to realize there are victims all around.

How Accountable are Parents for the Actions of Minors?

divorce-156444_960_720In local arenas there has been a widespread popular adoption of charging parents for providing alcohol or other substances to minors, but a recent case is taking this to a new level. In Pennsylvania a father was recently charged with involuntary manslaughter for allowing his 15 year old daughter to drive an SUV that resulted in an accident with 3 fatalities. The prosecutor showed that the parent in question had a history of allowing the child to drive the car on intrastate trips and locally. There is a sense of shock in the community that is two-fold. For one, it is the permission the father gave that he didn’t not seem aware of carried such risk, the other is the awareness that he allowed her to drive in “safe” areas such as vacation places and on highways in what appears to be a dismissal of the value of local lives.

Re-defining involuntary manslaughter
What is so striking about the ruling is not just how it is elevating accountability of parents and guardians for the action of minors, but that it also holds a subtle redefinition of involuntary manslaughter. In toto, involuntary manslaughter has required the person to be present or to have taken a direct action that then resulted in death. In this case, it was the permission of the father for the teen to drive that has garnered him a guilty verdict of contributing to the cause of the three other teens deaths. Criticism has been levied on the ruling as it is seen to be punitive of poor judgement on the father’s part, but that his actions were too far removed to warrant the charge.

The problem it may create
This can transform the charges from contributing to the corruption of a minor in under legal age drinking that some parents who condone alcohol parties in their home have faced and opens up the door for more serious charges to be levied against them. Given public sentiment, it is not a short step of the imagination to see charges escalating from involuntary to voluntary if the actors are perceived as being below the age of knowledgeable consent. The question is, how do you protect a parent in these circumstances?

Managing the Public Eye
Michael Ware is suffering from a very long and public history of entitled behavior he allowed his daughter and disregard for the welfare of others. If you want to protect a client from a trial by public favor, then you need to understand the mechanics of news influence. Parents who were presented as more concerned that their children remain safe at home if they drank have fared better in the press and courtroom than those presented as having joined in the fun. Public sentiment influences judicial rulings, of that there is no doubt. How you handle your press and sentiment is a tool you have to develop and it will always stand you well.

Taking the Sting out of the Stingray

hqdefaultA recent ACLU suit resulted in a first ever ruling of its kind over the use of the Stingray cell phone intercept towers by Federal law enforcement. These towers can intercept phone calls and enhance tracking capabilities without detection by the cell phone users. They have been growing in popularity and many State enforcement units have begun to use them as well. The American Civil Liberties Union charged that use of the towers without a warrant infringed on the rights of those under investigation. The court ruling supported their claim, but added their own twist.

What the court said about the use of the Stingray
The court ruled that all Federal enforcement agencies must seek a warrant for the use of a Stingray in any investigative case. They also said that there are exceptions to this rule. If the nature of the investigation is deemed to be of immediate or expedient nature then use without a warrant is permitted.

What the court did not say about the Stingray
The court did not return a finding on the use of a Stingray, with or without warrant, in any instance by State and local law enforcement agencies. The ruling requiring a warrant or guidelines for exceptions is only applicable to agencies under Federal jurisdiction. Since the Stingrays are expensive to mount and run this distinction is very interesting from a legal standpoint. Who owns the investigation can then be who determines whether or not the ruling applies.

Just because the Feds are involved doesn’t mean it’s their case
In a reversal of decades of law enforcement culture, this may now mean that Federal agencies may court state and local law enforcement agencies to access their warrantless use of a Stingray. This leaves it up to the defendant to prove who had real jurisdiction over the investigation in order to disallow evidence gathered through the use of the Stingray. That can be tricky. The lines are only simple if there is intrastate activity, when it comes to any other type of criminal activity there is more of a challenge presented. Your best tactic is to look at the precedence for jurisdiction to decide whether or not a claim of circumvention is in order.

Proving circumvention
It won’t be enough to claim that the investigation was spearheaded by Federal agencies, you have to prove circumvention. This is tricky ground as you will have to prove that in all other instances before the ruling the Federal agencies would have used the Stingray without local assistance. As most local agencies can’t afford to place a Stingray, this can be difficult. It may be to your benefit to untangle the connections before you have a live case so that you can be better prepared.

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