Legal Notes . . .
In continuation of our monthly service to our existing clients, below is a short synopsis on the legal status of electronic communications. It is our hope that you will find this informative. Please feel free to share this with family or friends who you think would be interested in the topic.
Charles M. Elsea, Esq., Stebelton, Aranda and Snider, L.P.A.
cmelsea@sas-lawfirm.com
The Law & Electronic Communications In The Twenty-First Century
The renowned former Supreme Court Justice Oliver Wendell Holmes is quoted in a 1934 speech, observing that: "It cannot be helped, it is as it should be, that the law is behind the times." Seventy-six years later, the skeptics have been silenced. In a digitized, hyper-connected, and ever-evolving technological world, the law is far behind the times.
And how could it be helped? As soon as the law could adapt to the widespread use of facsimile communications, electronic mail (email) took hold; as soon as email became common, instant messaging found itself ubiquitous; as soon as the law might recognize that, social networking, web-logs (blogs), Twitter, and texting, became the norm.
As this is written, cloud-computing and crowdsourcing are again revolutionizing information exchanges. For instance, think how "Wikipedia" has changed the concept of encyclopedias, as well as challenged the notion that people do not work for free and information itself is not free. This in turn is causing upheaval in the legal realm. Exhibit A? Wikileaks. The legal ramifications are fascinating, global, complex, and, as Justice Holmes observed, woefully unprepared to deal with something like Wikileaks.
How does this shape-shifting legal landscape impact you? It depends on your technological usage and needs. But the legal questions are voluminous and the answers rarely obvious, whether you publish a private, unlisted blog available only to subscribers-Who "owns" the written content on your blog? Do you have an expectation of privacy? Could publication on your blog implicate Ohio's new "false light invasion of privacy" tort?-or, on the other end of the spectrum, whether you operate a small or medium-sized business with integrated information-exchanges, email, and other forms of internal and external e-communication.
Leon Walker learned the hard way that old laws can create harsh results. According to the Detroit Free Press, he faces up to five years in prison for nothing more than accessing his wife's email account. Walker learned from her emails that she was having an affair, which would probably not have landed him in hot water alone, but he shared the emails with another gentleman.
The reason? The gentleman was the father of Walker's wife's child, and the affair was with a man who had previously been arrested for committing domestic violence in front of the child. In a word, Walker meant to warn the third-party (which worked: a custody petition was promptly filed by the father).
The Wall Street Journal reports that the charges have survived two attempts by Walker's attorneys to dismiss them. The prosecutors call Walker a "hacker," saying he had no right to break into his wife's personal account. Defense attorneys, meanwhile, are flabbergasted that a Michigan anti-hacking statute is being used this way. What is to stop this same line of reasoning from implicating parents who check on their children's Facebook accounts or instant message conversations? Either way, the law remains murky, and for Leon Walker, that is exposing him to criminal liability.
Federal law, too, lags far behind the times. Just in the last few weeks, the United States Court of Appeals for the Sixth Circuit, of which Ohio is a part, ruled a portion of the Stored Communications Act of 1986 ("SCA"), 18 U.S.C. §§ 2701 et seq., a statute that allows the government to obtain certain electronic communications without procuring a warrant, unconstitutional as it applies to certain email accounts.
That case, United States v. Warshak, established for the first time in the Sixth District a requirement for the government to obtain a warrant before procuring emails from internet service providers (ISPs). The Court found that individuals have a "reasonable expectation" to privacy in their emails, and that "[b]y obtaining access to someone's email, government agents gain the ability to peer deeply into his activities..."
If all of this sounds a bit obvious, this writer agrees. Consider the portrait painted of you by the thousands of emails stockpiled in servers thousands of miles away. Is it not slightly unnerving to know that until December 2010 the government could obtain those without a warrant? Even now, the holding in Warshak extends only to the boundaries of the Sixth Circuit. Where does this leave closed-account "tweets" on Twitter, or Facebook or LinkedIn messages? What about internet browsing history or online purchases?
The data available is virtually endless, and each time someone-whether you or your employee-opens an internet browser, whether on a computer, phone, or other device, new data is transmitted. New technologies are used; old laws are implicated.
Stebelton, Aranda, & Snider has already been at the forefront of these evolving legal questions. The teenage phenomenon known as "sexting" has already challenged laws originally designed to protect those now being accused. In domestic or custody cases, social networking and blog data can potentially be used as an asset or a liability. The firm's employment practice is well-equipped to facilitate the challenging and complex relationship between employment law and technology, just as the firm's litigation team has handled complicated e-discovery disputes.
The purpose of this Legal Note is neither to alarm you nor to offer concrete answers to any particular questions. Rather, it is to simply reinforce what you most likely already knew: the internet is a digital stranger to an analog legal framework.
Whether you are a business owner or individual, whether your legal needs involve domestic issues or criminal ones, employment questions or copyrights, e-communication is, in one way or another, likely involved. What 2011 will bring on these fronts is anyone's guess. What you can be sure of is that this firm will be aware of every twist and turn in the legal sphere.
At Stebelton, Aranda & Snider we pride ourselves on carefully identifying our clients' legal needs and efficiently and competently handling them. If you have questions concerning legal issues involving electronic communications, please do not hesitate to contact our office at (740) 654-4141 or 1-800-543-5297 or visit us at www.sas-lawfirm.com.
