The Law Developer

     A Maryland man, Anthony Graber, decided to drive his motorcycle at reckless speeds down public streets and, in a stroke of genius, decided to record his antics from his helmet camera for later viewing on YouTube. Fortunately for the other drivers of Maryland, a police officer caught Mr. Graber and arrested him. And, thanks to Mr. Graber’s helmet camera, we can watch it all on YouTube.

     Happy ending, right? Unfortunately, no. Mr. Graber had his computer confiscated and is now being charged with violating Maryland’s wiretapping law for recording the conversation between him and the police officer. Here is the relevant section of the statute:

§ 10-402.

(a) Except as otherwise specifically provided in this subtitle it is unlawful for any person to:

(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle;

     Based on a plain reading of the statute, it appears as though Mr. Graber violated the law, but a plain reading of the statute would most likely violate the First Amendment. A Maryland appellate court, however, has determined that the “oral communication” portion of the statute requires “factual finding[s] of reasonable expectations of privacy.” In other words, if there is no expectation of privacy in the communication, there is no violation of the statute when applied to oral communications.

     Let’s take a step back and discuss Miranda warnings. Miranda warnings are required to be given to a person who has been taken into custody by the police. Yet, courts have held that when a person is in the custody of police officer during a traffic stop, the police do not have to read the Miranda warnings. This was decided in the case Berkemer v. McCarty, in which the U.S. Supreme Court held that people pulled over during a traffic stop are in temporary police custody, but because (among other reasons) the stop occurs in public view, Miranda warnings are not necessary. The Court believes that because the public is viewing the stop, the police cannot be as coercive as they would be during a normal custodial interrogation.

      Most of you know where I’m going with this. If Miranda warnings are not necessary during a traffic stop because it occurs in the public view, the police officer who pulled over Mr. Graber could not have had a reasonable expectation of privacy during this traffic stop. The police want it both ways. Traffic stops are in the public view when the question is whether or not to read Miranda warnings, but the police expect privacy during the traffic stop when it comes to detainees taping their actions. Leave it to the cops to take any good will they earned by arresting a self-centered jerk who threatens the lives of everyone on the street and throw it away by going overboard and violating the guy’s First Amendment rights. Hopefully, this guy will have the charges dropped and maybe even win some money in a civil rights suit against the police.

     One last thing before I wrap this up, the article tries to paint the officer who pulled over Mr. Graber as reckless and overzealous. I just don’t see it. The officer did pull his gun, but practiced excellent muzzle control. Given the circumstances, pulling a gun doesn’t seem that out of line. The writer also tries to fault the officer for waiting a few seconds to announce himself as an officer (he was a plain clothes officer). Watching the video, the officer secured the situation and then announced himself. I am as critical of the police as anybody, but I just don’t see an issue here. The officer acted the way that I would expect an officer to act under the circumstances.

     This whole thing puts me in a weird position. I have to defend the first arresting officer because the article writer tries to fault him in the situation. Then I have to defend the attention-seeking jerk because other police officers violate his First Amendment rights. Defending a police officer and a narcissist all in the same post makes me feel dirty. I guess if I want to be a lawyer I better get used to that dirty feeling.

via TechDirt

Stephen Burch

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     With State budgets coming up short, legislators in many states are looking for more tax revenue. North Carolina is no exception. After passing a law that forced Amazon to either end its affiliate program or pay state taxes, Amazon cut off any of its ties to the state. This ingenious act of forethought cut off a revenue stream for many people – people who pay taxes, live, and vote in the state. Not to fear, North Carolina has another plan to squeeze more money out of its constituents.

     This plan involves demanding that Amazon provide the name and address of all customers residing in North Carolina along with the items that they purchased. What is the point of all of this? To collect sales tax money from Amazon customers who paid no state sales tax when they purchased the goods from Amazon. What could possibly go wrong? Well, for starters, it very likely violates the law. The article points to two court cases that have held that a person’s book purchases are both private and protected by the First Amendment. It also points to the Video Privacy Protection Act which makes disclosing people’s video purchases illegal.

     Amazon is holding firm that it does not have to release this data. While Amazon does sell more than just books and movies, I hope that this case makes it far enough to declare that everybody’s purchases, regardless of the type of product, are to remain private information. In any event, this is overshadowed by a bigger issue – why are the constituents of North Carolina allowing their elected officials to violate their privacy? Worst of all, this type of behavior isn’t just isolated to North Carolina. People from all over the United States allow their elected officials to do things that negatively affect them. North Carolina has already cost its citizens money by forcing Amazon to discontinue the affiliate program in the state. Now it wants Amazon to reveal purchase information for all of North Carolina. No one would ever expect this type of disclosure from a brick and mortar store. In fact, those types of stores don’t even collect or store that kind of information. Amazon shouldn’t be forced to violate its customer’s privacy just so tax collectors can then use that information to harass its customers. Then again, they are tax collectors. Violating privacy and shaking people people down for money seems to be their M.O.

Stephen Burch

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     Enemies of the United States use a myriad of techniques when it comes to attacking us. These attacks range from low-tech suicide bombings to high-tech cyber attacks. To combat the latter, the Pentagon has created a U.S. Cyber Command to coordinate all of the military’s online activities. The threat from cyber attacks is real and with an increasing dependence on the Internet, even for government and military uses, the need for a dedicated team to defend the U.S. from cyber attacks is long overdue.

     What I fear from all of this, however, is the over-expansion of the role of the Cyber Command and definition of cyber attack. To illustrate my point, look at this article from Revere, MA. A man running for city council had an unknown person threaten to post pornography on a website baring the candidates name if the candidate didn’t pay him money. This is a simple case of extortion, but the headline from the article: ‘Revere candidate target of cyber attack’. Despite their ubiquity in modern life, computers and the Internet are still like magic to many people. When the Government and news outlets start drumming up fear of cyber attacks, it causes people to get very skittish. Skittish and fearful people look for a protector and the Government is all too happy to expand its role to ‘protect’ the people. With this new increase in power, comes new laws and decreases in privacy and freedom.

     When Paul Revere made his famous ride warning the people of the invasion of the British, he did so to increase the liberty of the people and remove the chains of an oppressive government. Now, when the Government warns of impending invasions, it is to increase government power and decrease liberty. Don’t let new technology and new technical terms scare you. Be wary of a government that uses fear to increase its power. In my Internet Law class, one of the reoccurring themes is that existing laws are more than adequate in dealing with legal issues (criminal, tort, property, contracts, etc.) that occur on the Internet. In the Revere article, existing extortion laws can adequately handle the issue. But there have been some attempts to create new laws to handle online activity, e.g. Lori Drew (who was eventually acquitted) and a horde of cyberbullying laws. These laws aim to limit First Amendment rights while trying to solve a problem already addressed by existing law. These laws have traction because they play off of fear. Don’t let your lizard brain succumb to these fears. Remember, the only things we have to fear are spiders, snakes, werewolves, sharks, dying alone, zombies, clowns, heights, big dogs, robots with human brains, Johnson’s wife, and fear itself! (link)

Stephen Burch

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     This story involves a guy (don’t want to mention his name, but it is in the article) who purchased a clock from a lawyer, Elliot Miller, on eBay. After finding that the clock did not match the advertisement, he left the following comment: “Bad seller; he has the ethics of a used car salesman.” Elliot Miller responded by doing the only logical thing – sued the man for defamation. (And people wonder why no one likes lawyers.)

     Defamation on the Internet is no different than defamation anywhere else. The same defenses apply. Two that seem relevant here are truth and opinion. Truth is the ultimate defense to defamation. If the statement is true, then there was no defamation. The feedback on eBay reflects the buyer’s experience with the seller. If the buyer can show that in his experience the statement is true, he would win. If I were on the jury, I would buy the truth defense. Opinion is also a defense. Feedback on eBay is viewed as and meant to be the buyer’s personal opinion. Opinions are not subject to liability. People have a First Amendment right to voice their opinion, regardless of how it makes the object of their opinion feel. Again, if I were on the jury, I would buy the opinion defense as well.

     The other necessary requirement for defamation is damages. After this buyer’s negative feedback, there was another negative feedback left from a separate buyer. This left Elliot Miller with a feedback rating of 98.8%. Elliot Miller would need to show that this particular buyer’s negative feedback caused him real damages, and that people refused to buy from him because of this rating. I doubt he can prove any actual damages, let alone the $15,000 he is alleging.

     So what is the problem here? Why the big deal? The buyer should win in court. Unfortunately, he started without a lawyer, got in over his head, hired a lawyer, spent $7,000 in attorney’s fees, ran out of money, lost his attorney, and is still in the midst of legal proceedings. All over a $44 time clock. There is a type of lawsuit known as SLAPP. These are lawsuits meant to prevent people from exercising their First Amendment rights by filing a lawsuit that will ultimately lose, but that will force the defendant into expensive litigation. Hmmm, that sounds familiar. Some states, such as California, have very strong anti-SLAPP statutes that ensure preliminary hearings to determine the validity of the claim and allow for attorney’s fees for victims of bad faith claims. Florida, where this case is being heard, has only narrow SLAPP protection and it doesn’t apply here. So this poor purchaser is stuck defending his opinions from a thin-skinned lawyer.

     Based on Elliot Miller’s actions, I would never buy anything from him (emiller1313) on eBay. And I most definitely wouldn’t purchase his legal services. If someone asks for my opinion, it would be to never do any business with Elliot Miller. I hope that the publicity of this action will lead many to see how Elliot Miller conducts business (see the Streisand Effect) and that they, too, chose to not do business with Elliot Miller. The Internet doesn’t forget. Five years from now, people searching for a lawyer will see that Elliot Miller sued a man for a bad eBay rating. This will make them think long and hard about hiring Elliot Miller for legal services. I know I wouldn’t hire someone like Elliot Miller who sues their customer for negative feedback. (It makes me wonder what he would do to a difficult client?!)

Stephen Burch

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