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Is murder in Washington, DC pardonable by the President? In most cases murder is a state crime. However, Washington, DC is not covered within any state's jurisdiction. My question is whether the President can pardon someone for committing murder if the crime took place within the geographical boundaries of DC. | The Department of Justice's Office of the Pardon attorney says yes: Under the Constitution, only federal criminal convictions, such as those adjudicated in the United States District Courts, may be pardoned by the President. In addition, the President's pardon power extends to convictions adjudicated in the Superior Court of the District of Columbia and military court-martial proceedings. Like other felonies committed in the District, murder charges are adjudicated by federal prosecutors in the Superior Court, so they would fall within the scope of the presidential pardon power, as interpreted by the DOJ. | You can be prosecuted for the crime in the U.S., both at the federal level and at the U.S. state level (or both), completely without regard to what happened in the criminal justice process elsewhere. This is true in all of the scenarios you pose, for any offense, and with or without an extradition treaty (of course, unless the treaty had some anomalous provision to the contrary or deprived the U.S. of jurisdiction by statute rather than constitutionally of this crime). The U.S. Supreme Court determined in Heath v. Alabama, 474 U.S. 82 (1985) that the double jeopardy clause of the U.S. Constitution is applied separately with regard to each sovereign involved and that each state and the federal government count as separate sovereigns. In the pertinent part, it states: The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." United States v. Lanza, 260 U. S. 377, 260 U. S. 382 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 55 U. S. 19 (1852), "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punishable." Id. at 55 U. S. 20. In practice, the U.S. Justice Department and most state and local prosecutors are disinclined to prosecute a crime that has already been handled by another jurisdiction and often have official, but non-binding, policies to that effect. In part, this is because an acquittal in one jurisdiction makes it likely that it is a weak case, while a conviction in one jurisdiction often constitutes sufficient punishment. There could be an issue under the 8th Amendment to the U.S. Constitution (cruel and unusual punishment) over whether a punishment imposed in a U.S. conviction for a crime needs to consider the already severe punishment imposed in another jurisdiction for the same crime in order to prevent the cumulative punishment from being cruel and unusual. But, I am not aware of authoritative case law that resolves that constitutional question. Certainly, evidence of a prior punishment for the same offense could be presented at a sentencing hearing following a conviction in mitigation of the punishment that should be imposed. Indeed, in some states time served pursuant to a conviction for the same crime in another jurisdiction might statutorily count as "time served" for which the defendant is legally entitled to credit at sentencing. | The closest the Supreme Court has gotten to criminal liability for official acts seems to be Nixon v. Fitzgerald, 457 U.S. 731 (1982). There it addressed civil liability and held that the U.S. President "is entitled to absolute immunity from damages liability predicated on his official acts." It's unclear how the Justices would decide criminal liability for official acts. (Though some might argue that non-precedential logic in Fitzgerald suggests the Court could extend immunity to the criminal context as well.) As to homicide, murder and manslaughter are federal crimes. See 18 U.S.C. §§ 1111–1112. The latter involves the commission "of a lawful act which might produce death" "without due caution and circumspection." | All Four of them! Double Jeopardy is not in play if a jurisdiction can lay claim to your criminal action, so if you stand on the Four Corners and shoot a man in any of the four states, each state has a right to charge murder. In addition, the Federal Government can have a go at you because you crossed state lines while in comission of a crime. Plus the Navajo Nation, which controls the reservation land the border is on. So that six separate charges. That said, the state the dead body occupied at time of Murder would have the best case for action and the other three would likely let that state try you first. The Feds would only step in if each of the four states failed to convict, though they can step in whenever they want (they are just watching to see if you'll serve time first). Not sure at which point Tribal jurisdiction applies, but given that this is a fairly common Jurisdiction issue, I'm sure it's been worked out. | No Section 2, Clause 1 says: ... and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. Impeachment is explicitly carved out from the President's power to pardon. | This is technically an open question, but there is a general consensus that Consovoy's argument is unprecedented and unsupportable. If the president can be dragged into civil litigation over private matters in the middle of his presidency, Clinton v. Jones, 520 U.S. 681 (1997), it seems unlikely that the courts would give him a pass on prosecution for a midterm murderous rampage. If Consovoy is right, though, the answer would have to be that yes, Trump could avoid prosecution. Posing the question that way sort of helps to highlight the problem with Consovoy's theory. As I understand it, Consovoy's argument is that impeachment is the only remedy for crimes committed by a president. But if the president can just kill of Congress, there's no one left to impeach him, leaving the country with no way to remove him. So again, the answer is almost certainly no. | 18 USC 1752: (a) Whoever— (1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so; [...] shall be punished as provided in subsection (b). (b) The punishment for a violation of subsection (a) is— (1) a fine under this title or imprisonment for not more than 10 years, or both, if— (A) the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm; or (B) the offense results in significant bodily injury as defined by section 2118(e)(3); and (2) a fine under this title or imprisonment for not more than one year, or both, in any other case. (c) In this section— (1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area— (A) of the White House or its grounds, or the Vice President’s official residence or its grounds; [...] An ex-president does not have "lawful authority" to occupy the building. They may be not only removed, but also arrested and criminally prosecuted. "Squatter's rights" or other eviction protections would come from the District of Columbia's local laws, over which federal law takes precedence. So they would not apply here. | where does the prosecution occur? Prosecutions generally occur where a crime is committed. The area where a crime or other wrongdoing is committed is considered the proper "forum" for adjudicating the case. With respect to the law you cited, you should take note of the statutory limitations imposed upon the Attorney General in pursuing such a case (called a § 1119 prosecution). When considering the limitations, it is unlikely a trial of an American who killed an American in Canada would be tried in the United States. Those limitations begin with a prosecutor seeking written permission by the AG. This permission cannot be granted if the other country has already prosecuted the individual for the same conduct. Also, the AG can only give that permission if, after consulting the Secretary of State, he or she determines that the killing occurred in a jurisdiction where the suspect is "no longer present" and that the country is unable to "lawfully secure the person's return." and I'm wondering what that process actually looks like. This would be a consultation between Justice Department attorneys and the Assistant Secretary(ies) of State whose portfolio contains the foreign country in question. From the DOJ in particular, the Assistant AG for the Criminal Division is in charge of considering the above criteria and granting approvals. The Human Rights and Special Prosecutions Section handles these issues within the Criminal Division. Does the Attorney General have to petition the other government for permission to prosecute them in the home country? No. The statutory limitations listed above necessitate that the suspect has already left that country and part of the AG's determination must be that it is unlikely that country will be able to secure the person's return. That said, might that country petition the United States that it wants the suspect to be returned to stand trial there? Potentially. Does it make a difference if the key witnesses are also all Americans, therefore arguing that chances of conviction are more likely if tried within the U.S. where all participants reside and are available to testify? This is, of course, a general consideration when determining which jurisdiction should handle a matter. It isn't clear to what degree it comes into consideration in this type of prosecution. does anyone know any famous/well known examples of this happening? Famous/well-known? I can't be sure, but see, e.g., United States v White, 51 F. Supp. 2d 1008 (E.D. Cal. 1997), United States v. Nipper, 198 F. Supp. 2d 818 (W.D. La. 2002), United States v. Wharton, 320 F.3d 526 (5th Cir. 2003), and United States v. Brimager, 123 F.Supp.3d 1246 (S.D. Cal 2015). Interestingly, the statute gets substantial discussion and review in this Department of Justice White Paper entitled, Legality of a Lethal Operation by the Central Intelligene Agency Against a U.S. Citizen, in the context of whether the CIA could kill an American citizen in Yemen who has been reasonably determined to be a senior leader of al-Qaida. |
Consequences of contradicting one's sworn testimony in separate cases? If a person makes a statement to police and 2 years later in a courtroom, under oath but not the same case, they make a statement that directly contradicts their witness statement does the defense have an obligation to inform the prosecution of that fact or can they use it in court to discredit the witness on the stand? (Assume that the contradiction will greatly benefit the defense and the witness is an important part of the prosecution's case.) | The defence in a criminal case has no obligation to inform the prosecution of anything. The onus is on the prosecution to provide the evidence to convict and the defence doesn't have to and indeed shouldn't help them do it. The defence can and probably would use conflicting statements by a prosecution witness to discredit that witness in the eyes of the jury. These do not have to be material to the case: just showing the witness is inconsistent in general is helpful. | Your main misunderstanding is that opposing counsel cannot testify. He can ask a question, such as "Did you say ...?", which provides Einstein an opportunity to answer in a way that maintains the credibility of his testimony, but consel cannot just enter his own testimony into the record. In addition, counsel on "his side" has the opportunity to pose appropriate clarifying questions, e.g. could ask "Did you repudiate that idea 88 years ago?", though there is a problem that the attorney may not have the technical expertise to recognize the subject-matter question that they should ask. Expert testimony does not attempt to determine the state of scholarship in an area, it attempts to resolve a specific factual matter. The two are not the same thing. Einstein would not testify as to what his general and special theories of relativity say, except in a bizarre universe where some person is accused of the crime of denying the theory of relativity. Instead, he might be testifying for the defense, where the defendant is accused of an act that (it turns out) is physically impossible in light of the theory of relativity. If Einstein had been in the habit of posing random mutually-contradictory conjectures on a weekly basis, opposing counsel's question could be relevant to establishing that the witness's testimony is not reliable. Theoretically, counsel could "hint" that the witness is scientifically flighty, so Einstein would have to have a credible explanation for changing his position. It is easy to demonstrate that scientists in general do change their positions as knowledge expands, so Einstein's burden would not be very substantial. | You will most likely be instructed to not share or even use your own translation of the testimony. In California, the instruction on translations is: Some testimony may be given in [insert name or description of language other than English]. An interpreter will provide a translation for you at the time that the testimony is given. You must rely on the translation provided by the interpreter, even if you understand the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note and giving it to the (clerk/bailiff). In People v. Cabrera 230 Cal.App.3d 300, it was ruled that supplying a competing translation is juror misconduct, see also People v. Marshall, 50 Cal. 3d 907 (it is misconduct for a juror to inject expertise into the deliberations, referring to the fact that a juror "informed the jury ... [that he had a] background in law enforcement, and that the lack of evidence did not mean the defendant has no criminal background, because juvenile records are automatically sealed at 18 years of age." Florida has a similar instruction: The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know (language used), it is important that all jurors consider the same evidence. Therefore, you must accept the English [interpretation] [translation]. You must disregard any different meaning. If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation. | One wouldn't be able to make a claim about a driving record without it being testimony. Testimony will be challenged during cross examination. The prosecutor won't be able to bring up prior bad acts (such as previous speeding tickets) but will most certainly be allowed to rebut any claim of no prior bad acts made by a defendant. When the defendant claims a spotless driving record the defendant is introducing character or a character trait into the trial. Once introduced by the defendant the prosecutor will be allowed to challenge the credibility of that statement and, therefore, the credibility of the witness. Imagine the following interaction: Defendant: I have a spotless driving record. Prosecutor: Are you saying you've never been issued a traffic ticket? Defendant: Um, Uh, well... When a defendant goes to court they are facing a specific charge. The prosecutor will present evidence that supports that charge and it is up to the defendant and his attorneys to sow reasonable doubt within the jury, or at least one juror. By presenting character, the defendant may appear to be saying either, "Hey, it was my first time let me off," or, "I've never done it before so I couldn't have done it this time." Either way, it probably won't create reasonable doubt in the juror's mind about the specific charge they're weighing and it has the potential to open a can of worms that would be unfavorable to the defendant. | There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake. | I have not found a case directly on point, but there is a case in the right neighborhood. In Flordia v. Carter 364 So. 2d 1249, Carter was charged with perjury for making a false statement under oath. He recanted his testimony in a letter to the defense attorney the next day. Subsequently he was charged with perjury: the trial judge dismissed the case based on his having recanted (which is a defense to perjury). The judge said (quoted in the appeal below and citing a relevant precedent Brannen v. Florida 114 So. 429) It matters not whether Carter knew his original testimony was false or whether he was merely mistaken. "The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony." The lower appeals court rejected the trial court's dismissal, saying Recantation is a defense to an allegation of perjury only where there is an acknowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth. That court basically felt it was based on the threat of being discovered, and felt that a particular state statute had taken away the recantation defense, so they reinstated the charge. The appeal to the Florida Supreme Court, Carter v. Florida 384 So. 2d 1255 basically declared that the appeals court was wrong about the statute (they officially held that recantation is a defense to perjury). They concluded that Carter gained nothing by recanting (that was a distinguishing feature in a precedent that the lower court favored). The dissent in this decision opined that It may be that the false deposition testimony by Dr. Carter was inadvertent and without criminal intent.... These, however, are factual issues and should be resolved by a jury rather than by the trial court on a motion to dismiss. What unifies all opinions on the matter is that a false statement made under oath must be recanted. The reason why Carter was not convicted was that he (possibly) was unaware that his testimony was false and he did recant when he became aware of the facts. | There are instances when the testimony may still be admitted. For example, a deposition may be admitted at trial either for impeaching or when a witness cannot attend, which involves the circumstance of death (FRCP 32(a)(4)(a)). Additionally, regarding hearsay, there are numerous exceptions. My Evidence professor said in class "If you cannot find a way to get evidence around a hearsay objection, you are not trying hard enough." One such hearsay exception states in the committee notes: Accordingly, the committee has amended rule 803(8) to refer to the provision of [proposed] rule 804(b)(5) [deleted], which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process. | I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking. |
What to do after a car reported stolen is found by the owner? I heard that repossessing a stolen property without going through police can be considered theft on its own, so how can the owner of a car that was stolen and reported to police as stolen can legally take possession of the car if it is found by the owner abandoned or parked somewhere else? Besides reporting to police that the car was recovered (thus avoiding getting pulled over on a felony stop and get arrested for it), is it absolutely necessary to have the car recovered through the police? | No. Your evidence of registration of the car would suffice to show that you are not receiving stolen property, although you are correct that not informing the police that it has been recovered could get you pulled over if the car has been reported as stolen. Given the circumstances of the question, I don't address the means by which the car is repossessed. Not every use of force would be justified to secure the return of the stolen car. Reporting the theft and recover to the police would also make it easier for you to make an insurance claim. Repossession of a car stolen by fraud (tricking you into signing over the car title to them in exchange for Monopoly money in an envelope that you don't check until after they are gone, or for a forged check), which is then sold to a bona fide third party individual for value, however, might constitute car theft. | It may be legal, depending on surrounding circumstances. Under MCL 257.904b(1) When a person is convicted of an offense punishable under section 904(1)(b) or (c) or a local ordinance substantially corresponding to section 904(1)(b) or (c) for operating a motor vehicle while his or her license to operate a motor vehicle is suspended, revoked, or denied, the court shall order the motor vehicle, if it is owned in whole or in part or leased by that person, impounded for not less than a period the court orders but not more than 120 days from the date of judgment Under the assumption that there was a violation of the law, a conviction and license suspension (for the relevant crime), then the vehicle shall be impounded. It would not be legal for the police to spontaneously decide to impound the vehicle without a court order (which the court must issue). The statute does require that the vehicle be owned or leased at least in part by the person who violated the law. You might then argue that this does not allow impoundment for a vehicle borrowed with permission, and if the judge rejects that argument you could try to argue it up to the Michigan Supreme Court. | Under Florida law (316.0083), an officer can view the infraction and issue a notification of infraction "to the registered owner of the motor vehicle involved in the violation". Thereupon, the owner has the right to remedies under §318.14, which include arguing that the owner did not commit the infraction. The camera evidence may sufficiently prove that an infraction was committed, but not necessarily that the vehicle owner committed the infraction. This is a civil matter, so the official who disposes of the appeal must determine whether it is more likely than not that the owner committed the infraction. That effectively means that in the face of evidence that the owner committed an infraction, some evidence is needed to show that the owner did not commit the infraction. Thus proof that he was not driving (I suppose witnesses to his whereabouts in Timbuktu on the day in question) would suffice, and there is no requirement that the owner prove someone else did the deed. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | There is no intention to commit theft, so there is no criminal act on the part of the customer. Even if there was a criminal act, the ability of the restaurant to detain the cusomer (citizen's arrest) is very limited in most jurisdictions. The restaurant can ask the customer for his name and address, but there is no legal obligation on the customer to provide this. Refusal to do so, however, might be evidence of intention to avoid paying and at that point the restaurant might call the police. The customer can leave, and the restaurant can pursue the debt through the civil courts if they have means to do so - they may have CCTV of the customer and his car registration which can be traced. Petrol stations, where people often fill up and then realise they can't pay, usually have established "promise to pay" procedures where they take the customer's details and the customer has 48 hours to pay before police or civil enforcement action is taken. | This is common law Larceny While some jurisdictions may have statutorily redefined larceny; it is a very old common-law crime. For example, the common-law definition is still in use in new-south-wales (even though the punishment is statutorily specified in the Crimes Act 1900) and the first element of the crime is that "the property must belong to someone other than the accused". The suggested jury direction from the Criminal Trial Courts Bench Book says: The law differentiates in a number of contexts between possession, control and ownership. Each of those concepts can become quite involved and complex. Fortunately, in the circumstances of the present case, it is neither necessary for me to seek to explain all their refinements to you, nor for you to understand all of those refinements. However, to give you but the broadest of examples: if you were to buy, say, an expensive diamond from a jeweller, assuming that it was legally [his/hers] to sell to you in the first place, then, the moment you took physical delivery of it you would own it, have the control of it, and be in possession of it. If, however, you proceeded to place it in a bank security box for safe keeping, you would, for some legal purposes anyway, cease to possess it, although you would still own it and be in control of it. If a robber broke into the bank and took your diamond, the robber would then be in possession of it, even though you would, in law, continue to be its owner. When I direct you that the property must belong to someone other than the accused, all that is required is that, at the time of the taking, it must be owned, controlled or possessed by someone other than the accused. Thus in this context, the law uses the concept of belonging in the widest possible sense. The overzealous shopper both controls and possesses the toilet rolls even though they are owned by the supermarket. | There is a form, which both parties to the sale sign. Note that it does entail paying sales tax. There are other aspects to the sale which reinforce the "It's not my car anymore" message, such as returning the plates and getting a receipt for the plates. Even doing the sale in a DMV lot would not help you. | I'm not sure there would be any need - or any ability to bring - any civil action. Forgery would appear to count as a Category D felony under Section 205.090 and, "In addition to any other penalty, the court shall order the person to pay restitution.", so person "a"'s damages should have been met under the process of the criminal prosecution of person "b" for forgery, with nothing further to claim. Person "c" will have stolen a car. Whether that car was legitimately owned by person "a" may only be relevant if person "c" is using their belief that it belonged to person "b" as mitigation (for example recovery of a debt - though it won't help much as this should have been done through proper channels), which again would be a criminal proceeding. |
Swedish Government and GDPR Given that the nordics are one of the most transparent societies, is there any scope that these governments may be in breach of GDPR, for example with respect to default disclosure positions on things like; Public tax report disclosure. Automatically updating one's address with registered corporates who have access to the personal ID number system. Purchasing property and national public register. It seems to me that this kind of information is personal and digital. In addition does this open to door to anyone collecting and storing data on my person, e.g. my address, by citing the fact that the information is actually freely available on nationally disclosed registers? | The examples you cite are all based on national law in Sweden and other Nordic countries. If you check GDPR Article 7(1)(e), you will see that processing is lawful if: processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; Further down in the same article, you'll see that not only Union law, but also: Member State law to which the controller is subject apply. GDPR Article 7(1)(e) is controversial and there is also a note that The Union or the Member State law shall meet an objective of public interest and be proportionate to the legitimate aim pursued. There has been attempts by privacy advocates to stop some of these transparency practices (in particular public tax report disclosure) by arguing that they do not meet this criterion, but so far these challenges have been unsuccessful. | The GDPR has a fairly broad concept of personal data: any information that relates to an identifiable person. This is far more than directly identifiable information! The concept of identifiability is further explained in Recital 26: To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. So indirectly linkable information can still be personal data. In your example, that ID can be easily re-identified with a particular person if you know who the secretary was between 2012 and 2014. It is quite likely that there are members in the club with this knowledge, or that this information can be gained from public sources like newspaper reports. Thus, you should assume that your member IDs are at most pseudonyms, but not anonymous. They are likely still personal data. However, it doesn't necessarily follow that you would have to erase everything. Art 17 comes with lots of caveats and exceptions. For example, if you are processing this personal data under a legitimate interest, and someone requests erasure, you might have overriding grounds to continue processing anyway. E.g. such a legitimate interest could involve security or auditability purposes. There might also be such a legitimate interest for keeping some history for the club, but there would have to be a decision based on the individual circumstances. Furthermore, you can of course retain data e.g. due to a legal obligation, or when this information is necessary for the establishment of or defence against legal claims. I understand your desire to keep some data around. Instead of asking “do I have to delete this?” it might be more productive to consider “under which legal basis can I keep this?”. I think you might have a legitimate interest, but you'd have to carry out a balancing test between the various interests and rights. A really problematic approach would be to hold on to de-identified data in the belief that it no longer were personal data. Such a belief is usually mistaken. True anonymization that meets the GDPR's definition is really hard, in particular because you would also have to prevent indirect identification, also by other actors than yourself. There are theoretical models that can help with anonymization, e.g. with k-anonymization methods you'd ensure that there are no unique records in the DB. But this can be tricky to apply correctly, so I'd recommend to only treat aggregate statistics as truly anonymous. In 2012, the ICO has published an anonymization code of practice (PDF). It is no longer up to date with the current legal environment (in particular since the GDPR has expanded the concept of identifiability), but it provides a good overview of both the difficulties of preventing re-identification and an overview of potential solutions. | The GDPR does not outlaw such processing of personal data. It merely regulates how and for what purposes you can process personal data. In general, you can conduct any processing activity as long as it has a clear purpose and a legal basis. Here, the purpose would likely be something like “conducting business with my clients” and the legal basis would be a “legitimate interest”. A legitimate interest always requires a balancing test that weighs your interests against the interests and rights of the affected persons. For example, can the affected persons reasonably expect such processing activities? In a professional setting, it can probably expected that business partners keep notes about contact persons so your intended processing could be fine. The GDPR does impose some general constraints. There are general principles like data minimization and storage limitation – you should only collect data that is necessary for your purpose, and shouldn't store it for longer than necessary. You should think about appropriate technical and organizational measures (TOMs) to protect the processing activity, for example about how your CRM is hosted, how backups are made and how security updates are installed, who has access to the personal data, and how the people with access to the personal data can be trained. For example, such training might inform your employees that they can only use the data in the CRM for business purposes, but absolutely not for personal purposes like asking Gina from reception out for a date. | In Germany it's not so clear: https://www.lfd.niedersachsen.de/themen/datenschutz_im_kfz/kfz-und-datenschutz-148981.html The situation is different with regard to personal data collected in connection with the vehicle. Data is personal if it relates to a "specific person" or at least to an "identifiable person". A person is "identifiable" if, for example, he or she can be identified via the vehicle identification number or other additional knowledge. The Federal Data Protection Act (BDSG) therefore applies in these cases. The BDSG in turn contains a clear statement: the data "belong" to the data subject. Related to the motor vehicle: The data "belong" to the driver or owner of the vehicle. | Apparently, Yes In the ECJ's Breyer decision the final conclusion reads: Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. It is true that in this case the decision was actually under Directive 95/46/EC, not the GDPR, but the GDPR took its definition of personal Data directly from Directive 95/46/EC, so that should make no difference. It is also true that in this case the website in question was operated by the German Federal government, an not by a private individual, or by a private business. A government might have "legal means" to link an IP address with an individual that a private actor does not. However in point 23 of the decision, the Court refered to the IP addresses as: ... stored by the Federal Republic of Germany, acting in its capacity as an online media services provider, ... which seems to indicate that the same ruels were being applied to it as would have been to a private entity. Point 44 of the decision says that: The fact that the additional data necessary to identify the user of a website are held not by the online media services provider, but by that user’s internet service provider does not appear to be such as to exclude that dynamic IP addresses registered by the online media services provider constitute personal data within the meaning of Article 2(a) of Directive 95/46. In point 47, the court says that: ... in the event of cyber attacks legal channels exist so that the online media services provider is able to contact the competent authority, so that the latter can take the steps necessary to obtain that information from the internet service provider and to bring criminal proceedings. This leads the court to point 49, where it says that; Having regard to all the foregoing considerations, ... Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. Nothing in the decision indicates that any particular governmental authority was considered to provide the "legal means" to get an ISP to link an IP used at a particular time to an individual. In this page from Intersoft consulting it is said that: Since the definition includes “any information,” one must assume that the term “personal data” should be as broadly interpreted as possible. ... The same also applies to IP addresses. If the controller has the legal option to oblige the provider to hand over additional information which enable him to identify the user behind the IP address, this is also personal data. In this page from eugdprcompliant.com it is said that: A much discussed topic is the IP address. The GDPR states that IP addresses should be considered personal data as it enters the scope of ‘online identifiers’. Of course, in the case of a dynamic IP address – which is changed every time a person connects to a network – there has been some legitimate debate going on as to whether it can truly lead to the identification of a person or not. The conclusion is that the GDPR does consider it as such. The logic behind this decision is relatively simple. The internet service provider (ISP) has a record of the temporary dynamic IP address and knows to whom it has been assigned. A website provider has a record of the web pages accessed by a dynamic IP address (but no other data that would lead to the identification of the person). If the two pieces information would be combined, the website provider could find the identity of the person behind a certain dynamic IP address. However, the chances of this happening are small, as the ISP has to meet certain legal obligations before it can hand the data to a website provider. The conclusion is, all IP addresses should be treated as personal data, in order to be GDPR compliant. Finally the european Commission says, on this official page: Personal data is any information that relates to an identified or identifiable living individual. Different pieces of information, which collected together can lead to the identification of a particular person, also constitute personal data. ... Examples of personal data ... an Internet Protocol (IP) address; While the case law is scanty on the point, it appears that the consensus is that IP addresses, even dynamic IP addresses, will be considered to be Personal Data under the GDPR. > | The obligation to notify the supervisory authority (CNIL in your case) no longer exists. It was part of the previous regulatory framework, but it is not part of GDPR (which takes affect tomorrow). If you use CCTV that may monitor employees (i.e. they sometimes enter the HQ to consult with the owner), your obligations under the GDPR is basically to inform the employees that the CCTV cameras are there. I.e. Data subjects are entitled to understand when their personal data is being processed, covering the transparency aspect of processing. The use of CCTV must be communicated via signage which indicates the areas covered and instructions for further information. | There is nothing extraterritorial about these laws. If a company sells a good or provides a service to individuals based in the EU, then this good or service has to comply with EU laws. This concept is self-evident for physical goods that are produced anywhere in the world and then sold in the EU and the GDPR just applies this concept to services provided over the internet. The same legal concept also holds in all other major jurisdictions. The only thing that makes this more complicated for the GDPR is the actual enforcability of these laws but that is a technical issue not a legal one. | In the question, you write: The GDPR requires consent of the subject for collection or storage of personal data (in this case, IP addresses in a log file). No, it does not. To quote Miss Infogeek: GDPR DOES NOT MAKE CONSENT A MANDATORY REQUIREMENT FOR ALL PROCESSING OF PERSONAL DATA. Consent (Article 6 (1)a) is indeed one of conditions that can be used to comply with the GDPR requirement that processing must be lawful, but it is not the only condition available to the controller to ensure lawful processing – there are alternatives (before the list of conditions it says that "at least one of the following" must be satisfied). All the conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. One of alternatives are Article 6 (1)f. It says says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) As noted in the question, logging IP addresses for the purpose of security is an extremely widespread practice. It is a legitimate interest to comply with standard security practices. It is the default, and most (all?) web-sites do this. I.e. it is legal to do this without consent (if this is not the case, I am pretty sure the outcry had been heard all over the Internet by now). |
Is "republication" a defense against libel? The New York Times published a story alleging that person A did X. You publish a piece that said, "The New York Times reported that A did X." Later, Person A sues the New York Times and wins. Can that person then sue you for republication of the New York Times libel and win? Or is your statement that "the New York Times reported..." factual enough to defeat the suit. Would the answer change if you published your statement after the commencement of the lawsuit? That is, would the lawsuit put you on "notice" that the New York Times' claim was disputed? | No, the truth of the statement is the defense. It is true that The New York Times reported that A did X, even if it is false that A did X. Your claim is about the NYT, not about A. If you just repeat the false allegation (republishing it), that is libel. | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | Calling someone an "asshole" is, at least in the US, an expression of opinion and so is not defamation. Saying that someone has committed a crime may be defamation, but not if that person has in fact already been convicted of that crime. In general if a statement is provably true, it is not defamation. If all that this hypothetical firm does is to post facts as found in court decisions, along with their unfavorable opinions of losing parties who they did not represent, it is hard to see any defamation case being valid. And I don't see any other obvious legal problem with doing this. It would probably anger other lawyers, and might make it harder to negotiate settlements or do other deals. If this firm announce that they refuse to accept as clients "cheats, crooks and similar people" and then make it public that they refused to represent some specific person, A, then A might claim that this portrayed him or her as a "cheat or crook" and was defamatory. The exact wording of their publicly announced policy, and of any announcements that they decline to represent A, would matter a good deal, as would the jurisdiction's exact law of defamation. In some places, codes of ethics promulgated by a Bar Association might be violated by such a policy, but such codes are usually not enforceable in the general case. I don't see any obvious grounds for disbarment proceedings. | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | (Assuming the jurisdiction is the US.) Your question I was wondering whether there are any limitations on using photos of private individuals on websites. is the least of your potential problems. Photos of the public taken in public are mostly legal to use and publish, and you own the copyright on the photo, and generally don't need a model release. But your plan of posting the photo with accompanying information about (alleged) fraud: There's a fraud conducting business in my state and I want to create a website that warns others of his fraudulent practices. is potentially legally problematic. As phoog indicates in his comment, you need to be aware of defamation, both at the federal level and among states, as some have criminalized defamation (Wikipedia). Libel is the publication of provably false facts by one person about another person. For a full outline of defamation (libel and slander, and including private and public figures), see Libel and Slander | Nolo.com. What you want to do is publish "facts" about this alleged fraud on the website with a photo of the individual, linking the fraud allegations to them. That is potentially libelous. The facts of the fraud may be provably true, or they may be provably false; that remains to be seen. But the facts don't matter when considering what actions the person can take against you if you publish such information on your website. If this business and the individual(s) feel they are not committing fraud, they can sue you for libel in civil court, alleging that you have damaged their reputation and impacted their business by publishing those facts on your website with the photo identifying the person and their business. If they take legal action, and you can prove the business and the individual(s) are committing fraud with provable facts - hard evidence of fraud, such as legal documents and court judgments - than you should (no guarantees) be able to successfully defend yourself in a libel suit brought against you by that person. Even if the business and the individual(s) are aware of facts that prove their fraud, and know they will probably not prevail in court, they can still take you to court, and it will cost you whatever time and money it takes to defend yourself. My responses above concern what legal actions the alleged could take against you if you published the website with the photo and information about the alleged fraud. No one here is advising you to put up the website with the photo and the "facts" as you see them, even if you have hard proof of the facts of the fraud; you should find legal representation before taking any action with the website. And, no one here is advising you to open any legal action against the person; that's your choice in terms of determining your case and if you can show actual harm that was caused by the alleged fraud by the individual, and you should find legal representation before taking any action. | Something labeled, and indeed intended, as satire can be defamation if people believe that the statements made are in fact true of the person concerned (the subject), or that the satire implies such statements about subject; and the statements about the subject made or implied in the satire are in fact false; and such statements tend to harm the reputation of the subject. Satire can be, and has been, used as a cover for pointed statements about the subject, and in some cases such statements can constitute libel (or slander). In the US a libel plaintiff would have the additional burdens of: showing actual damage, or else showing that the statements fell into one of the limited categories of libel per se; and If the plaintiff is a public official or public figure, showing actual malice under the rule of Times v Sullivan. Those burdens exist in every US libel or defamation action, whether a satire is used or not. That something is labeled as or treated as a satire may indicate that it is not to be believed. That might go to the intention of the person or entity making the statement. It might also go to whether it is reasonable for people to take the statements as factual. But satire can be used as a thin cover for a factual statement. If (in a given case) it is being so used, or if people might well believe that it is, it can be defamatory. | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | What legal options do I have here? I don't think I can sue for defamation of character since the email was sent to me only. Your rationale about defamation is accurate with respect to the establishment (henceforth "company"). But you may sue the person(s) who approached the company to falsely accuse you of that crime. Being banned certainly qualifies as special damage (that is, concrete damage), whence you have a viable claim of defamation per quod. If the crime that was falsely imputed to you is a felony or serious crime, then you additionally have a viable claim of defamation per se. I was thinking that I may have some legal recourse since the email clearly threatens to defame my character if I re-enter the establishment You have legal remedies, although not necessarily from this angle. The company can credibly argue that it sought to discourage you from contravening the "safety measure" it adopted in response to the accusations made about you. If it turns out that the company fabricated any false accusations it divulges, though, then you could sue the company for torts related to --and in addition to-- its defamatory falsehoods. So far the information you share here shows no signs of company's involvement in inventing the false accusations. What legal options do I have here? You need to ask the company for source and details of the information. In line with this comment, you should also ensure the company is aware of the mistaken identity. If the company declines to listen to you --and ideally see any proofs you have--, that could evidence some sort of tortious conduct on the company's part. Beware that in Florida a defamed person is required to demand a retraction of the false accusations prior to filing a defamation suit. Absent that request for retraction, it will be very easy for the sued defamer(s) to have your complaint dismissed. If the company refuses to disclose the source of the false information, then you need to seek injunctive relief in court. That means suing the company so as to (1) compel the company to identify the person(s) who accused you, and perhaps (2) strike the ban that the company put in place as a result of the false accusations. Even if you don't prevail in striking the ban, the court proceedings would give you the occasion to set the record straight and prevent the company from defaming you if you legitimately expose (to the public) the arbitrariness of its ban. To be clear, the company can always indulge in defaming you for the sake of justifying its ban, although that would be dumb in light of what you will have proved in court by then. In jurisdictions where a request for retraction is not mandatory, a plaintiff who does not know the identity of his defamer(s) may (1) file suit against "Doe defendants", (2) subpoena the non-party company so as to obtain records related to the false accusations (obviously ensuring that these reveal the authorship thereof), and (3) upon production of subpoena records and requesting the identified defamer for a retraction, amend the complaint to properly identify the defendant. This would be more efficient than filing two suits (one for injunctive relief against the company, and another against the defamers). However, I am uncertain of whether this would work in Florida, given its pre-suit requirement of request for retraction. |
Why cops, in this case, didn't simply seize the stereo? https://en.wikipedia.org/wiki/Arizona_v._Hicks I look at this case. A cop saw expensive stereo. The cop check the serial number and found that the stereo was stolen. The cop move the stereo a bit and get the serial number. The evidence is thrown out of court. However, I've heard cops can seize cash on even less suspicion. Basically many cops see cash, think it's from drug dealing, and seize it. The mere act of bringing cash is punishable by civil forfeiture without trial. By that logic, the cop that suspect the stereo is from a crime, should also be able to seize the stereo. Once the stereo is seized, it's easy to just look at the back and see the serial number. Another way to look at this: Why didn't the cop just use civil forfeiture laws to seize the stereo and then, after the stereo is on cops' hand, the cop can just see the serial number? Did the cop have a right to seize the stereo under civil forfeiture law? Can the cop see the stereo serial number after seizing the stereo? If the answer two both question is yes, then why bother getting a warrant to look behind? Also, what should have the cop done on that circumstances to capture the burglar? Nothing? | In the Hicks case, police entered the premise, reasonably, pursuant a bullet having been fired from Hicks' apartment into a person in the apartment below. There were expensive stereo components in plain sight, which raised a reasonable suspicion. But that reasonable suspicion did not justify a further search, which police nevertheless conducted: they turned the stereo to get the serial numbers. Having phoned in the numbers and learning that the items were stolen, they then had probable cause for a seizure. That cause was, however, obtained via an illegal search. Suppose that the serial numbers had been visible from the front: then because they would have been in plain view and since the police were there for a reasonable search related to the shooting, then could have legally seized the stereo, since no additional search was required. There is no distinction between search and seizure w.r.t. 4th Amendment protection ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"). Police could not confiscate the stereo without probable cause, nor could they confiscate cash, or any other thing, again, unless they had probable cause. And they could not search for evidence that would give them probable cause to take stuff. As SCOTUS said, regarding searches versus seizures, We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. | That is not a valid assumption. Many states have laws that let you presume someone is a threat to your life if they forcibly enter your house. Simple trespass on your land does not let you reasonably presume someone is a murderer. An autonomous killer drone is not a comparison you want to make: those may be illegal entirely, and are likely to seriously hurt any claim of justifiable force. “You forfeit your right to live when you set foot on my property” is not justifiable. If the dogs are trained to be a hazard to the community, that’s an argument in favor of having them confiscated and destroyed. Dogs are not people. Under normal circumstances, they cannot be protected under self-defense or the defense of others. Those doctrines only apply when a person is in danger. Deadly force is sometimes allowed to protect property, but this tends to be strictly limited. To start with, you can only ever use force to prevent illegal damage to property. If your concern is “this animal control officer will destroy my dogs within the scope of their duty,” that’s not protecting against an illegal use of force. Deadly force in defense of property is also normally limited to particular crimes that are inherently dangerous, like arson, robbery, or burglary. Even in Texas, simple theft only justifies deadly force during the nighttime. Deadly force is also not justifiable if there were reasonable other options. Shooting an animal control officer is unlikely to be the only way to temporarily stop them from destroying a dog. Threatening violence in order to influence a judge’s decision is terrorism. This hypothetical man is a terrorist. He may well find himself on death row for murder, but he’s also going to face separate charges for terrorism. | Civil forfeiture typically pits the government against property, not the government against an individual, and in the US (also anywhere else), only people have rights: property has no rights. The first relevant instance to reach the Supreme Court was an early case, The Palmyra (25 US 1), where a ship was confiscated because it had been used in privateering against the US. Although the owner had been convicted of nothing, the court still allowed the confiscation since The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing, and this whether the offense be malum prohibitum or malum in se The defendant here is the ship itself, not the owner of the ship (known as in rem proceeding). The case law is replete with cases like "US v. $500,000", and such forfeitures have long been part of the arsenal to be used against wrong-doing, a law authorizing this having been one of the first acts of the US Congress, especially applicable to ships and cargo involved in piracy. The courts have repeatedly allowed such confiscation, at least in certain circumstances. In one more recent case, Van Oster v. Kansas, 272 U.S. 465, the court stated that It has long been settled that statutory forfeitures of property intrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment followed by a huge list of citations. Because of the doctrine stare decisis (courts respect prior rulings in similar cases), once a pattern is deemed constitutionally acceptable, it is very hard change that interpretation of the law. It should be noted that J. Thomas recently hinted in a dissent that there is a Due Process problem with civil forfeiture, raising strict scrutiny type objections to civil forfeiture, specifically that forfeiture was typically more narrowly applied – limited to customs and piracy, and justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts also observing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts Essentially, the reason why civil forfeiture (in its current revenue-generating incarnation) hasn't been ruled unconstitutional is that a persuasive argument has not been made to that effect. The court can't just decide this on its own, and in the most recent case, the constitutional issue was only raised at the Supreme Court, not in the Texas appellate court where it should have been raised. The most significant problem is that it isn't clear what constitutes "due process of law". There is, in all jurisdictions, some kind of legal process (see this report for an overview of the kinds of process involved). The standard of proof that allows forfeiture is pretty low (being a civil case, it is not "beyond a reasonable doubt"), and there are various impediments discouraging anyone from suing to prevent forfeiture (which until 2000 included a substantial bond requirement and the threat of having to pay the government's attorney's fees if you lose). Since there is a process whereby forfeiture can be challenged, a more sophisticated argument is needed, based on Due Process. | Your confessions, to anyone, can be used against you. If A admits to B that A stole the car, B can testify to what A said. In fact, if B accuses A of a crime and A says nothing (and C witnesses this), C can testify as to what B and A said (or didn't say) – this is known as an adoptive admission, and it is up to the jury to decide if they think the silence is significant. Recordings are likewise admissible. All evidence is in principle defeasible, so if there is a video of "you" committing a crime, you can make the case that it wasn't really you, and the jury will weigh the evidence to see if they are firmly convinced that you did commit the crime (at least in New Jersey... long story about 'burden of proof'). | The legal system is set up to alleviate the problem or conundrum of intimidation by perpetrators. In the US criminal system, the State is the plaintiff, not the individual. In the extant described situation, very likely all you would have to do is sign an affidavit that the recovered phone is your phone, and that it was removed from your possession by unknown means on or about a certain date. From your description given here you don't know if it was stolen...you appear to have perhaps dropped it or left it somewhere, and someone picked it up/found it. Clearly it didn't belong to them, but this is more like "recovered lost property" rather than "received stolen property." The craigslist poster might be entirely un-chargeable with a crime, though they might have to give up the phone to you. | I think Dale M is essentially correct. Let me give more detail by quoting the Theft Act 1968: 1 Basic definition of theft (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. (2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit. 3 “Appropriates”. (1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. (2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property. You assume the rights of an owner by placing a notice offering it to other people. Therefore it is theft. I presume similar laws exist in other juristictions. | A court can have jurisdiction over property in rem without personal service upon all persons who may claim an interest in the property. Typically, this is done by providing some form of service (such as notice by mail) upon people who are known to have an interest in the property, and an alternative to service directed at an individual (such as notice by posting at the property, by publication of a notice in a public place, or by publication of a notice in a newspaper where the property is located). Civil forfeiture often involves this kind of indirect notice to unknown parties by publication. what would be the remedy where the Court ordered the property of the other persons to be sold, again without issuing service to said persons The ruling of the criminal court is not binding on people who were not served with process in the original action (either personally, if known, or by publication or some other similar means, if not known to the court) in another legal proceeding. But if a claim becomes moot, there may be not remedy available of a violation of one's rights. They could conceivably bring an action to quiet title, or the equivalent, or an action in replevin, which would not be bound by the Court's findings since the third-parties weren't a party to it, and an injunction on the sale could be sought in that case, if it wasn't too late. But, if the third-parties had actual notice of the pending criminal action, the better option would probably be to file a motion in the criminal action to intervene with respect to disposition of the property. Takings of property in the context of the criminal justice system are not "takings" in the 5th Amendment constitutional sense, for which an inverse condemnation action are available, although there is still a due process requirement, which isn't met without some effort to give potential known or unknown third-party claimants notice of the sale. If there was a court ordered sale, any claim would probably be against the proceeds of the sale, and not against a bona fide purchaser for value at a court ordered sale regularly conducted. Of course, this presumes that the property is not contraband (you can't make a legal claim to cocaine even if you own it). If the defendants did not give you notice of your ownership interest, and this resulted in you not being able to intervene in the criminal action, you could also sue the defendant for breaching duties owed to you as a fellow property owner of the property disposed of in the criminal action. Ultimately, this is not an enviable position to be in, and the likelihood of a court effectively destroying your property interest in the property subject to the criminal proceeding in a manner that there is no economically efficient remedy to address is significant. Some of the relevant case law is discussed at another answer I wrote on a related topic. See also this answer on civil forfeiture. One of the leading U.S. Constitutional law cases on the topic is Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable post-deprivation remedy.”). | In general in the US, anyone may photograph anyone else if they are all in a public place, although in some states such a photo may not be used commercially without permission, which must often be paid for and may be refused. It is unusual for police to photograph people on the street, but they might want to document who was present at a particular place and time. They can do so, but I am not at all sure that they can prevent a person from covering his or her face, or turning his or her back, or charge a person who does so with obstruction. I don't think so. Under some circumstances in the US police may ask a person for identification, and may charge a person who refuses to provide it. This varied from one state to another, and usually depends on the specific circumstances. (If a person is driving an automobile, police may demand to see a driver's license, for example.) Unless a police officer puts a person under arrest, the officer has no general right to control that person's actions, beyond instructing the person not to interfere with ongoing police work. I do not think an obstruction charge would hold up for covering one's face or turning away in the absence of an arrest. |
Using a company's logo for a simulated experience in a classroom As a teacher I often like to ask my students to complete projects that require them to role play an employee at a well-known company. For example, I've taught a class on gentrification before, and I had my students study different neighborhoods to decide where to best open up a new Starbucks franchise. To help create the simulation, I drafted a fake letter from a fake person who works for the Starbucks central office addressed to the students of my class. The letter essentially explained the assignment for the students from the perspective of the fake Starbucks executive. As a little ornamental touch, I used the Starbucks logo in the header of the letter. I'm wondering if this practice is lawful or not. I've read a little about Fair Use and how educators are given more leniency from copyright laws if certain requirements of the use are satisfied. If I work at a non-profit, public institution, with instruction taking place in-person, and with the clear understanding from students that the assignment is a simulated experience of working for a company, am I allowed to use a company's logo in designing my course materials? | I agree that you have a very strong copyright fair use case. Although the logo is creative and you're using the entire thing, your use is for a nonprofit educational purpose and does not affect the value of the work. The logo is also probably trademarked. But you aren't using the mark in commerce, so I don't think that will be a problem for you. | No. (Therefore no). Not necessarily. Yes. Is there a fair use for patents? No. "Fair use" is a affirmative defense for copyright infringement. The issue is that patents cover an design, idea or methodology, while copyright covers an "artistic" work. For example, if he were alive and working today, van Gogh would have copyright over his collection of paintings. If he developed a special paintbrush to make his distinctive style, he could patent the design for that brush. There is no obligation to make a patent available, much less at a "fair rate". And there is no obligation for a patent holder to make their patent available (so yes, they can block you directly or indirectly). There are various rationales for this. One is that a patent holder's historical reward for producing a new invention, a furtherance of common knowledge, is that that individual would receive an exclusive monopoly on the manufacture and sale of that invention. Often, this would serve as a way to recoup investment in new development and an incentive to experiment and expand the knowledge base of a country. This arrangement in the modern day is most closely represented by the exclusive license agreement, in which the licensor (in this case the patent holder) agrees to not only give the licensee the legal right to use the patent holder the legal ability to use their patent, but also agrees to limitations in what other people are granted that legal ability, in exchange for compensation. | You are absolutely allowed to discuss or describe or criticizes software (or books or other copyrighted or trademarked things) without any permission from the copyright holder or trademark holder. This includes teaching people how to use those things. You may not, however, copy protected software without permission. For example you could not include a CD with a copy of Windows 10 as part of a course you taught on using Windows 10, without permission from Microsoft. Also, you may not use a trademark in such a way as to imply that your course is approved or endorsed by the trade mark holder, or by the maker of the trademarked item. If reasonable people could think that your Windows course was approved by Microsoft, you are probably infringing their trademark. Use of screenshots is more of a grey area. Such use, for purposes of teaching or of commentary, is probably covered by fair use (in the US) or fair dealing (in any of several other countries). But that is always a case-by-case determination, and depends on the exact facts, such as how extensive the use is, and whether it in any way harms the market for the original. If in doubt consulting a lawyer experienced in IP issues is wise. But aside from the issues of screenshots, the makers or copyright or trademark holders of software have no right to grant or withhold permission to one who teaches about the softrware, nor to demand any fee from any such person. | No-ish, it is not. The relevant sticking point would be in their DMCA takedown notice, where they have to follow 17 USC 512(c)(3)(A) and include in their notice (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The key here is having a "good faith belief". There is a credible scenario where a company A could file multiple notices for the actually same material B posted by the exact same person C, where the person has the right to post that material, and do so in good faith. If A was not able to locate evidence of the permission to C, then they would shift the burden of proof to C – "good faith belief" doesn't mean that they have to be right, just that they have to actually think they are. If C also uses the name D, A would not be able to determine that the work was licensed to D based on the fact (once they know that) that it is licensed to C. DMCA abuse is not an permanently open escape hatch. 17 USC 512(4) states Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. See Automattic Inc. v. Steiner, 82 F. Supp. 3d 1011. The ruling judge found that "Defendant could not have reasonably believed that the Press Release he sent to Hotham was protected under copyright". The appeal court drew on precedent and dictionary to fill in gaps w.r.t. "good faith belief", that the person should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations In this case, the abuser was flagrantly abusing the takedown system, and there is some reason to believe that in the instant case, the abuser had actual knowledge of non-infringement. Rossi v. Motion Picture Association of America provides an alternative outcome. In this case, Rossi operated a website that appeared (note the word appear) to offer free downloads of movies, and the rights-holder MCAA filed a takedown notice. In fact, it did not offer any such downloads, but MCAA's investigation stopped prematurely. This court held that "good faith belief" is subjective, so Rossi did not prevail. It is no doubt crucial that Rossi actually counted on his customers thinking that you could get actual downloads of protected material. Whether or not a DMCA abuse suit would succeed would depend very much on the factual details of why the material is not infringing, and how easily the rights-holder could know that there was no infringement. | The audio book would probably be an infringing derivative work because the client could redistribute it once the client received it. It sounds very much like a product that is regularly sold by merchants relying on copyrights. Conceivably, simply reading a book aloud to a client in some sort of streaming context that could't be shared with others or replayed would merely be fair use, much like hiring a baby sitter to read a book aloud to your children would be clearly fair use. If there were an automatic text to sound converter as opposed to an individualized performance, it might not be considered infringing. There are people with programs that do this who haven't been sued, but the boundaries haven't been explored very thoroughly. Honestly, there isn't a lot of guidance in this area from statutory language, and the questions would often not be guided by much case law involving similar facts. Your intuition living in the modern world is probably almost as good as a lawyer's in this situation. | That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure. | Trademarks apply only to a limited field. If you follow the link, it reports that it applies to class 42, graphic art design. So you are free to use (and register "mama" for your food delivery service, for example. | In your example is the spare part the subject of a design patent? I assume it is not. When you combine the spare part to create a “different product” does the finished product resemble the drawings in the design patent? If, in its intended use, the final thing is close enough to the design patent to fall within its scope then you might by indirectly infringing by inducing people to infringe. The scope of a design patent is very difficult to determine reliably. This has nothing to do with how you got the components of your product, just how the completed thing looks. Copyright does not cover products (unless it is a model of a building or a statue or mold for a statue). |
What crime is killing a foetus without the mother's consent? According to US law, when a person approaches a woman who is pregnant in the third trimester, usee a knife and "takes the life of the unborn child" while the woman survives, is this crime a murder or a personal injury to the pregnant woman, or both? Does anything change depending on the month that the pregnancy had reached? | Murder is most often prosecuted by the states, not the US government, and each state greatly varies on the subject. Some states consider a fetus to be a person at any stage in its development; some require harsher punishments if the defendant knew the victim was pregnant; and some have no specific mentions of whether a fetus makes any difference in the law. You can see a great breakdown of the various laws and how they are applied to fetuses in this per-state table. Any federal crimes that are prosecuted by the US federal government are also subject to the Unborn Victims of Violence Act which recognizes a fetus as a victim if it is injured or killed while committing a list of federal crimes. | No, if, as you say we put aside the human rights questions surrounding the death penalty itself and assuming that the prisoners had been legitimately charged, convicted and had exhausted their appeals process. Once a person has been convicted, sentenced to death and has exhausted their appeals then the timing of the execution passes from the judicial branch to the executive branch of government. This is why governments can implement and remove moratoriums on executions at their discretion. Doubtless there are administrative rules and logistical issues involved in the actual timing of the execution but if these have all been correctly dealt with then they are essentially held at the pleasure of the person in the government charged with the decision. Was it legal? Probably. Was it ethical? ... | Your question is about "Would it be kidnapping if I was injured and someone took me to a hospital without my consent", so I don't understand these other answers which say "it depends on the situation". The key point is what you mean by "without my consent". Good Samaritan laws are also relevant, which offer defenses to people who do things that would otherwise be unlawful when they are doing it with good intentions to help someone who they believe is injured or would become injured without their intervention. The main things to consider are the degree of injury, which is a spectrum ranging from no injury at all to being dead, and whether the injured person is conscious. Are you so injured that you are unconscious? In most jurisdictions, being unconscious is considered as you consenting to any actions which are done with the intent of giving you medical assistance, which is on a spectrum of saying "hey are you ok?" or shaking you in order to wake you up, all the way up to treatment including major surgery. So by being unconscious it is usually automatically consent, but if you are awake and are refusing help or treatment, even if you could die if you didn't receive treatment, it would be easy to argue that you were not consenting and that any treatment/assistance etc was unlawful. This situation sometimes happens, and EMTs are often trained to wait until the person goes unconscious to then give them medical assistance/transport etc, but assisting someone before they go unconscious could still be argued as permissible, if the injured person was so distressed that they were unable to give/refuse consent, or at least if the assistor believed that to be the case. This is why if someone has a major medical problem and is unconscious, hospitals can resuscitate them and even perform surgery without them signing a consent form. By being unconscious, it is considered that they are consenting to any necessary surgery to help them, even including amputation or other negative consequences. Conversely, if someone has a valid Advance healthcare directive on file which forbids measures such as resuscitation, they will be considered not to consent, and will usually be left alone without life-saving assistance. Resuscitating/performing surgery on someone in this case can be cause for damages to the injured person, because it would have been clear that they did not consent to such assistance. | There was a case like that in 2010 in germany tl;dr synopsis of the German article: The police raided the private home of an alleged member of a criminal gang. This was performed as a no-knock raid. The police officers did not announce themselves as such when they started to break open the door. The suspect had reason to believe that a rival gang was planning an attempt on his life. So the suspect believed that the people trying to break into his home were actually members of said gang trying to murder him. The suspect used a firearm to shoot at the intruders through the door, lethally injuring a police officer. When the police officers then identified themselves as such, the suspect surrendered immediately. A court later ruled that killing the police officer was self-defense, because they were reasonably convinced that the defendant was unaware that he was dealing with police officers, believed to be in a situation where his life was in danger and where lethal violence was the only way to save his life. Here is the verdict. [In German, of course] | Doing something to a dead body that would kill it if it were a living person is not murder, manslaughter, or any form of homicide in any country that I know of. It may be a crime to mutilate a corpse, or some similar provision. It may also be attempted murder. For example, in the US state of Oklahoma, section §21-1161.1 provides: A. It is unlawful for any person to knowingly and willfully desecrate a human corpse for any purpose of: Tampering with the evidence of a crime; Camouflaging the death of human being; Disposing of a dead body; Impeding or prohibiting the detection, investigation or prosecution of a crime; Altering, inhibiting or concealing the identification of a dead body, a crime victim, or a criminal offender; or Disrupting, prohibiting or interfering with any law enforcement agency or the Office of the State Medical Examiner in detecting, investigating, examining, determining, identifying or processing a dead body, cause of death, the scene where a dead body is found, or any forensic examination or investigation relating to a dead body or a crime. B. Upon conviction, the violator of any provision of this section shall be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not more than seven (7) years, by a fine not exceeding Eight Thousand Dollars ($8,000.00), or by both such fine and imprisonment. In addition, if the person thought that the dead body was a living person, and tried to kill that person. There may be a charge of attempted murder on which a conviction might be possible. See "attempted murder" of a dead man? for details. In general, if property (such as a cell phone) has been stole from a person, that person my reclaim such property, and doing so is not theft. However, a person is not in most jurisdictions permitted to enter someone else's property, to break and enter, or to assault a suspected thief in order to recover property. A person who actually observes a theft (or other serious crime) is in many jurisdictions allowed to pursue the thief/criminal and use reasonable non-deadly force to stop and detain the thief pending the arrival of law enforcement, who should be promptly summoned. The details vary widely from place to place. The use of deadly force, such as a gun, is generally not permitted, except in proper self-defense, but again the details vary widely. | Self-Defense Law In A Nutshell Self-defense (or defense of others) with deadly force is generally authorized when a reasonable person would believe that the use of death force is necessary to prevent death or serious bodily harm to a person (i.e. there aren't non-deadly options that can accomplish this end) and a reasonable person would believe that the use of force will prevent death or serious bodily harm to a person, subject to exceptions that would not apply to a private individual using deadly force in a stampede situation. Incidentally, every state and every country absolves someone of liability for homicide when deadly force is used in self-defense, or in the defense of others (not necessarily family), although the exact details of when this is justified varies slightly. For example, in D.C. v. Heller, the right to self-defense is considered a natural or universal right. The analysis would be somewhat different if the shooter were in law enforcement, and would be different again in the case of a shooter who was in the military with more or less clear orders. But, that legal standard doesn't get you to an answer. The Complex Phenomena Called Stampedes The analysis would be extremely fact rich, in the sense of exactly who one would attempt to shoot, what that would be likely to accomplish, and what other alternatives would be available. And, to do that, you also need to understand the phenomena of deadly stampedes which are complex and often somewhat counter-intuitive phenomena. While there are circumstances where it could be legal self-defense or defense of others to shoot a stampeding individual to save someone's life, there are also many stampede circumstances where a use of force would not be justified. In practice, most stampedes, as a matter of physics, can only be stopped by removing a crush of bodies from the rear, where they do not know that they are causing a deadly stampede, while those at the front who end up directly harming others are frequently physically incapable of stopping. Essentially, in a typical stampede that causes death, the problem is an inability of the people at the front to communicate to the people at the back to slow down. And, when a stampede is caused by a genuine threat to the people at the back like a fire or a terrorist, there is nothing that would persuade the people at the back to slow down anyway. So, usually, shooting to kill someone at the front of a stampede would not achieve the intended result of protecting someone in its path. The person shot would either continue to surge forward while dead under the crush of bodies behind them, or would have their dead body trampled over by the next person in line who also has no physical ability to do anything other than to surge forward. So, usually, using deadly force to shoot someone at the front of a stampede will be futile and only cause an unnecessary death. Given that using deadly force in a stampede, if directly at people in the front, is almost always futile, the question for the judge or jury deciding the case becomes whether a reasonable person would know that at the time, which would have to be decided a case by case basis. Sometimes it is obvious from someone in a vantage point to shoot at the front of a stampede that this would be futile and sometimes it isn't. This question would be highly fact specific and depend a lot upon exactly what information about the situation was available to the person shooting a person in the stampede. The situation where deadly force might not be futile would be one in which there is no actual life threatening harm that people are fleeing in which the deadly force is directed at the people in the back who are driving the stampede (even though they don't know it), to shock them into ceasing to do so. But, in that situation, if the shooting is done by someone who understands the situation well enough to know that this is what is actually necessary, that person also may be capable of firing warning shots or shooting to injure with the same effect, so justification might also be in doubt. Protecting Targets of Mobs v. Protecting Targets of Stampedes A similar situation where the use of deadly force might be justified is something visually similar to a stampede, but quite different in what would work factually. This is a mob that is about to attack someone, possibly armed with pitchforks or knives or clubs or broken bottles or a noose. In the case of a mob, the use of deadly force to protect someone threatened by the mob would almost always be a justified use of force in self-defense or the defense of others, because shooting someone in the front is likely to be both necessary and effective. | This assumes there is a difference under the law between reckless and negligent homicide (which does not exist everywhere). In Washington state there is a distinction between 1st and 2nd degree manslaughter, per RCW 9A.32.060 and .070. What could be called reckless homicide is when (a) He or she recklessly causes the death of another person; or (b) He or she intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child. and 'negligent homicide' would be A person is guilty of manslaughter in the second degree when, with criminal negligence, he or she causes the death of another person. The distinction is laid out in RCW 9A.08.010, compare A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. and A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. However, it is important to know what "knows" means: (i) he or she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense. The fact that X has manufactured a nutty belief that killing a person doesn't lead to death does not override the fact that a reasonable person would know that stabbing a person in the heart will in fact kill them, and is murder. You could put that in contrast to the situation where he has a belief that stabbing a victim in the butt will cure him, and he is unaware that the victim's heart is freakishly in the wrong place, near his wallet – that would be negligence (being unaware). In general, you aren't given legal credit for having bizarre beliefs about how the universe works, unless it can be turned into an insanity defense. | Probably Or they could pass a law prohibiting bans. Since the provision of abortions is a commercial enterprise that affects interstate commerce, the Federal government probably has jurisdiction through the Commerce Clause. |
Are American "no promo homo" laws enforced? Seven US states have laws that limit the discussion of homosexuality in public schools. Two other states previously had such laws. How frequently, if at all, are these laws enforced or have previously been enforced, whether by forcing changes in schools or by punishing violators? I'm skeptical the laws are ever enforced because (a) I can't readily find news reports of anybody being prosecuted, and (b) several of the laws require teachers to tell students that gay sex is illegal, although it is actually legal throughout the US since Lawrence v. Texas (2003). | School districts / states do generally have the power to set the curriculum including the viewpoint that will be officially conveyed. One well-known major restriction on such viewpoint restrictions is that the schools cannot restrict the free exercise of a religion, and cannot take a position on a religion. Apart from the religion third-rail, schools have pretty free reign in setting the curriculum, see Evans-Marshall v. Tipp City for one instantiation. In this case, the teacher assigned various books, including Heather Has Two Mommies, one of the books that prompted an outcry. The upshot of that case is that a teacher cannot invoke the First Amendment to override policy. This article (draft version, easier to handle) (published version, annoying footnote structure) reviews the topic, and section III covers prior cases. It notes that the cases of Lawrence, Windsor, Obergefell do not address the constitutionality of these education laws, though the reasoning in the prior cases might be applicable if there were a suit over curriculum. There is an implication that some of these rules have been enforced in the past, but most of the evidence is in the form of news stories (Beall v. London City School BOE is not available in the open). The article does engage in a somewhat deeper study of enforcement in Utah, where it was enforced (until it was repealed). Enforcement is necessarily indirect. The law require school districts to have a particular curriculum; violation would come when an individual teacher taught contrary to the prescribed curriculum. Those laws do not contain any provision like "a teacher who violates these rules gets fired", instead, punishment is via the general rule that you have to teach what is in the state-mandated curriculum. Rather than officially terminating a teacher for violating this curricular guideline, districts use vague reasons for non-renewal such as "due to problems with communication and teamwork" (from Evans-Marshall). | There is no such law in the US, although there many laws prohibiting specific forms of harm, for example laws against murder, theft, assault, arson. All laws are predicated on the idea that an illegal act causes harm, but I don't get to deem, for example, that you are harming society by opposing Satan. There are no laws prohibiting any belief in the US, and such a law would be unconstitutional (in violation of the First Amendment). So being a Satanist could not possibly be illegal. | Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired.. | Anyone has a right to report illegal activities that it is aware of to the authorities. This is in fact where 99.9% of police investigations start. In addition, students of a school (or, more generally, members of any organisation) are eligible to be investigated/disciplined by the school in accordance with the rules of the school providing that the investigation and punishment are in accordance with the law. This would normally permit (require?) notification of any child's parent or guardian. In loco parentis does not arise - the school is acting as a responsible citizen; not as a substitute for the children's parents. | First of all, even if it is not allowed to test them, you can also refuse to service someone untested - and that is not illegal discrimination, as "untested for COVID 19" is not a protected class. Public Schools however are not companies in the normal way, and the CDC can only advise in the rulemaking of local legislators and executives. And in the current health crisis, the school board and health authorities can order things for the protection of others and this can be enough justification to exclude individuals or several people from groups. After all, being teste or not is clearly not a protected class under the Civil Rights Act, and neither is easily regarded as a form of first amendment speech - unlike a black armband (Tinker v. Des Moines Independent Community). Being untested is much more akin to being a person on a ship and then attempting to disembark in a quarantine zone - which was decided in Compagnie Francaise & Lousiana Board of Health (there are two of those btw). The majority opinion in the SCOTUS case (1902) writes (emphasis mine): 24 True it is that, in some of the cases relied on in the argument, it was held that a state law absolutely prohibiting the introduction, under all circumstances, of objects actually affected with [a contagious] disease, was valid because such objects were not legitimate commerce. But this implies no limitation on the power to regulate by health laws the subjects of legitimate commerce. 34 [A]ssuming that all the treaties relied on are applicable, we think it clearly results from their context that they were not intended to, and did not, deprive the government of the United States of those powers necessarily inhering in it and essential to the health and safety of its people. Using a similar vein as in Compagnie Francaise, the public health interest might be enough for even a public school to only allow presence in the building with a test and otherwise demand online or remote learning (which isn't always an option) or even just suspend people that are not tested until such a time their presence is deemed safe. A private school is vastly more free in rulemaking, and as even a public school can muster strict scrutiny regarding presence teaching, a private school surely will get away with it. But nothing can force a private school to suspend teaching, switching to online classes or demand to test, unless they like to or their accreditation hinges on it - and here religious schools come in: There are religious groups that to an extent of not allowing medical procedures on their members, including COVID-testing. Those schools could ban people from attending that are tested. Endnote Public Health Interest is a hammer that can be rather heavy. It can't be used to discriminate against HIV, as that doesn't spread from touch and sneeze, but it can be used to ban people from buildings that have Communicable Diseases. While nobody classed COVID 19 as such yet, having such an illness [Plague, Cholera, Botulism, and others] allows the government to isolate you under strict scrutiny or even has been used to quarantine whole areas in the past (see the Compagnie Francaise case). And as you see in the current pandemic, legislative bodies globally do dish out rules for schools and public places in short order, some of which include testing strategies, and ways to overwrite consent via a state order. Some are struck down: some of them on procedural grounds (e.g. wrong body), others on grounds of equality (e.g. religious bias). | What discrimination? As explained in Conflict between a religious belief that accounts for the existence of transgender people vs. one that doesn't the Constitutional protection of the Free Exercise Clause applies to the exercise of a deeply held belief (religious or not). So, let's accept that a person believes that certain sexual practices or gender identity is morally repugnant for whatever reason and that belief triggers the Constitutional protections. That means, that the person cannot be forced to engage in those sexual practices or adopt a different gender identity. It does not mean that they have a licence to discriminate against people who do in a work or public environment - they can, of course, choose to avoid such people in their private life. Alternatively, if the person believes that they are required by their faith to discriminate on the basis of those characteristics then such a belief does not get Constitutional protection as it is now affecting the rights of others. In the same way that someone who believed in human sacrifice would not get Constitutional protection. | States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts). | Ignorantia juris non excusat You can say I didn't know: it won't keep you out of jail. Rather than delving into the specifics of your question, I will keep my answer general. If you break the law, you break the law. It doesn't matter if: you don't know what the law is, you didn't think the law applied to you, you thought what you were doing was in accordance with the law. "Break the law" is an objective fact - there is no subjectivity involved. The state of mind of the person is, in most jurisdictions, irrelevant; the common law doctrine of mens rea or "the guilty mind" has almost universally been done away with. Now specific offences have specific defences. Generally, in underage sex cases genuine ignorance of the age of the person is one such defence. A court may decide that ignorance that the person was underage under US law may qualify for this defence. |
I have multiple Gift Cards for a retailer but they refuse to let me apply more than one per order. Is this legal? We were recently given a couple dozen gift cards from multiple web sites, but as far as I can tell the same parent company (website design is the same, about us page is the same etc.). I've already determined they're actually just a scam (each gift card for each website is almost exactly the cost of the item on that site, but shipping is exorbitantly high; e.g., $16 for a single bath towel). My question is the following: These were given to me specifically labeled in multiple locations as "Gift Cards", with codes on each card labeled "Gift Card Number: ". However, when I try to apply multiple gift cards to my account, it's not allowed. I could understand if these were marketed to me as promotions or discounts or something else, but they go out of their way in the package to explain how these are "gift cards" and have already been "paid in full". Are there specific terms that define what is and isn't a "gift card"? My assumption was that if I have two $50 gift cards to a company, these are considered $50-same-as-cash -- however, the company insists these are ineligible to both be applied to the same order. How legal is this? Quick Note: The terms on the back do say they can't be combined or used for shipping costs. But I'm just curious if these sorts of terms are legal in conjunction with what's considered and labeled as a "gift card". | It would depend on the terms and conditions of the gift card. If the gift card is a present of the shop owner, then they can set (within reason) the terms and conditions they like. If I buy a gift card for a shop to give to someone as a birthday present, I wouldn't expect any restrictions. If there were restrictions, I'd likely not buy that gift card. If the restrictions are hidden in the small print, consumer protection laws might make the restrictions illegal. | If the situation described is accurate, then maybe First, let's deal with the implicit assumption that sales tax is not payable on gifts. Whether that is true or not depends on the law in your jurisdiction. For example, in australia there is no Goods and Services Tax (GST) payable on a gift because a gift is not a "supply" under the law. Technically, a value-added tax like the GST is not a sales tax but close enough. However, exchanging a "gift" for something of value (airline points, for example) is not a gift. Of course, Australian States and Territories levy Stamp Duty on the transfer of a vehicle's registration, and this is calculated on the sale price or the market price whichever is the greater. Also, technically, that's not a sales tax either. If it's a tax avoidance scheme, then no and it's a crime Assuming that there is no sales tax payable on a gift; if John and David entered into this arrangement (not a contract because of its illegal purpose) to avoid tax, then tax is payable and they are now criminals. If the relevant tax authority learns what happened and decides to investigate, then John and David might have some explaining to do. If David can show that he has routinely given John large cash gifts on John's birthday, then they may convince the authority not to prosecute. If they can't, then they get to try to convince a judge. It is not atypical for tax law to reverse the onus of proof: the government doesn't have to prove tax is payable, John and Dave have to prove it isn't. | If you were an adult, the risk would be a lot higher. You can get away with things when you are 13. And since you are not an adult, the purchase contract is voidable so your parents can void your purchase. Don't do this ever again. It's not a "prank". You say you have no money and your parents have no money. The money on that card could be the last bit of money that the card owner had. Worst case someone has become homeless, had a bit of money in his card account, and you took the last of their savings. Does that make you feel bad? It should. | This would probably be legally considered "gambling' Gam,bling is prohibited in many US states and a good many non-US jurisdictions. It is significantly regulated in most US jurisdictions where it is legal, often requiring a specific license. Analyzing laws on this subject in all 50 US states would be beyond the scope of an answer here. This is definitional the sort of thing where consulting a local lawyer, experienced in this area of law, would be wise. Maryland law As an example I will cite the specific laws which I think woulds apply to the situation described n the question in teh US state oof Maryland. The Maryland criminal code Section 12-201 provides that: In this subtitle, "lottery device" means a policy, certificate, or other thing by which a person promises or guarantees that a number, character, ticket, or certificate will, when an event or contingency occurs, entitle the purchaser or holder to receive money, property, or evidence of debt. Thus an entry or ticket issues by such an app, would be "lottery device" if winners were paid in money or things exchangeable for money or property, which would include gift cards. Section 12-203 provides that: (a) Prohibited.- A person may not: (a) (1) hold a lottery in this State; or (a) (2) sell a lottery device in the State for a lottery drawn in this State or elsewhere. Section 12-205 provides that: (b) Prohibited.- A person may not: (b)(1) bring a lottery device into the State; or (b)(2) possess a book, list, slip, or record of: (b)(2)(i) the numbers drawn in a lottery in this State or another state or country; (b)(2)(ii) a lottery device; or (b)(2)(iii) money received or to be received from the sale of a lottery device. Section 12-206 provides that: b) Prohibited.- A person may not print, write, or publish an account of a lottery that describes: (b)(1) when or where the lottery is to be drawn; (b)(2) any prize available in the lottery; (b)(3) the price of a lottery ticket or share of a lottery ticket; or (b)(4) where a lottery ticket may be obtained. Most plausible ways to advertise an app as described in the question would seem to violate this section. Section 12-208 provides that: A court shall interpret §§ 12-201 through 12-207 of this subtitle liberally to treat as a lottery ticket any ticket, part of a ticket, or lottery device by which money is paid or another item is delivered when, in the nature of a lottery, an event or contingency occurs. So if it is arguably a lottery, the court will treat it as one. Section 12-209 provides that: A grant, bargain, or transfer of real estate, goods, a right of action, or personal property is void if it occurs while engaging in, or aiding or assisting in a lottery. So winners cannot lawfully collect prizes. In short any such app would seem to viol;ate several sections of Maryland law if it is used of promoted in Maryland | In Australia, the overall representations of the website must not be misleading or deceptive when it comes to the provision of goods or services, in order to comply with Australian Consumer Law. The length of the terms matters. In a very recent case against a homeopathy website, it was noted that (at [47]): The terms and conditions were exceedingly lengthy and it was highly unlikely that any visitor would trawl through them merely to access another part of the Website for free. In this case the significance of the length was not specifically tested. The position of the terms also matters. In another case against a major retailer, it was noted (at [37]) that the conditions visible: a user accessed a link at the bottom of each page of the HN Website titled “Website Terms and Conditions”, such that it was unlikely either condition would be found by a normal reader reading the HN Catalogue or viewing the HN Website This specific matter related to a very specific claim made by the retailer, and so I can't say whether it applies in general to website terms and conditions. Apart from the above cases, I can't find any good examples where the exact form of a website's terms have been considered in determining a case. There are some United States cases referred to in the Wikipedia article for browse wrap. These seem to have been judged in favour of the website operator only when the terms are conspicuous, and/or when the user has had repeated exposure to them (or a link to them), for example over a number of pages. Even where the terms are linked at the bottom of the website, and a user is not required to scroll to the bottom to use the site, terms have been found unenforceable. As far as I know, there's no statutory requirements - in Australia, at least, and quite likely anywhere else - that specify the manner and form that disclaimers may take. | The contract between you and the company is for the supply of the goods. How they get them to you is irrelevant; they may have them in stock, or they may order them and ship them on, or they may send an order to the factory to ship them directly to you. There is nothing saying that they have to be in stock anywhere. The law you refer to says that they must ship within 30 days unless they provide a specific date. In effect "shipped within 30 days" is an implicit term in the contract. If after 30 days they have not shipped the goods then you are entitled to rescind the contract (i.e. get your money back). Where things get interesting is if they took your money knowing that they would not be able to ship within 30 days, or at least being reckless (i.e. not caring) about it. It does rather sound like this may be the case. If so then it may rise to the level of fraud, and the FTC or state authorities may take action. Try writing to the FTC. A single event won't get any action, but if they get lots of complaints then they might. | Who in the fraternity would be prosecuted if this became an issue? A lot of people could be held liable for this, including people who are not even in the fraternity. Anyone who has knowledge of the machine or the fact that it was possible for minors to access alcohol through it could technically be held liable if a prosecutor wanted to make that case. Presumably the building is owned by someone else and just leased out to fraternity members, and they very well could be held liable for sale to minors also. Would the machine be safer if it just accepted cash (so that no electronic paper trail was created), with a big warning sign WINK WINK that anyone under the age of 21 was strictly prohibited from purchasing from it? No. Payment method is irrelevant here. There are a number of states that legally allow vending machines to sell alcohol, but vendors are required to verify the age of any person accessing them and ensure that those cards aren't being used by people not authorized. What you describe is an extremely relaxed environment where admittedly no one is attempting to verify identities. The "accepting cash" scenario is no different than a liquor store selling alcohol to anyone that comes in just because they're willing to pay with cash instead of a credit card. Sales to minors laws are not "as long as you warn them, you're safe" laws. They require vendors to actively check IDs and ensure that alcohol is not landing in the hands of minors. Accepting cash just to erase the evidence doesn't meet that burden. There are a lot of legal troubles with the situation that could get a lot of people charged with multiple offenses. That you have underage fraternity members living there suggests you should not have alcohol readily accessible in the house at all, as most state laws expressly forbid providing access to alcohol, not just serving or selling. Them being there provides access to it, even if it's just a case in the fridge with a note on it. Not to mention, you technically cannot sell alcohol, as I highly doubt your fraternity has a liquor license to be able to do so. There's a big difference between asking everyone to pitch in to buy the case versus actively selling individual cans through a vending machine. The vending machine itself is violating liquor laws in your state merely by existing. | This would not be "legal jeopardy" per-se, really the only remedy that Stack Exchange would have in a case like this would be to ban both accounts. It would be different if you caused SE some kind of monetary/reputation damages to the site itself. From SE's Acceptable Use Policy: Identity Theft and Privacy. Users that misleadingly appropriate the identity of another person are not permitted. It seems your described scheme would violate that term. But this isn't a legal problem, just an operational one. You aren't violating any law (unless there are local laws against this) by paying somebody to "be you" on SE. The most that this would earn you and your cohort would be a ban and probably removal of the contributions. |
How can a court avoid creating precedent? There are a number of ways in which a judge may avoid following precedent – overturning or distinguishing a previous ruling, for instance. However, is there any way for a court (particularly a superior court) to avoid creating a binding precedent, particularly in cases where it may not be desirable to do so? For instance, if judges were required to rule in a certain manner due to (perhaps outdated) legislation, but they did not want their decision to be binding on subordinate courts, perhaps because statutes prevented them from ruling in favour some case where marriage equality rights would be upheld, but they did not wish to set that precedent. While it is true that judgments based on statutes will be binding only while the relevant parts of that statute is in force, I suppose my question deals with the scenario where judges would prefer to rule in a certain way, however are unable to do so because of statutes that haven't been amended to reflect changing community values, and they do not want to set a precedent in the meantime. | It is the lower courts' interpretation of a senior court's judgment—specifically the ratio—that determines what is the precedent. If a court doesn't want its opinion to bind lower courts, it can be clear in its judgment that this is not what was intended. For example, a court could say that this judgment turns on the particular facts of this case, and should be interpreted narrowly by lower courts. Alternatively, a previous precedent could be narrowed by a later judgment of a senior court if it was later felt that the ratio was being applied too widely. (I have read examples of the explicitly narrow ratio, but haven't been able to find any today) | Appellate judges make holdings on matters of law, and generally defer to the fact-finder in a given case (the jury, or sometimes the judge) on factual matters relevant to a case. So in a case that involved certain mathematical arguments, they would generally leave it to the jury to decide whether those arguments were reliable. Put simply, Appeals courts don't make binding decisions on issues of fact, only issues of law. | The Supreme Court does not handle hypotheticals. The court has interpreted Article III Section 2 Clause 1 of the Constitution, the Case or Controversy Clause as a limit on the powers of the judicial branch. The courts have jurisdiction over various types of cases and controversies but only those listed in the Constitution. This limits courts to hearing actual cases and prevents them from issuing advisory opinions. Additionally, in order to bring a case, the plaintiff must have standing to bring the suit. You can't sue the government just because you don't like a law (well, you can, your suit will just be dismissed because it lacks standing). You have to show That you have been, or will imminently be, injured (injury-in-fact) That there is a direct correlation between that injury and the law (causation) And that a favorable court decision will redress the injury (redressability) As a practical matter, the courts are already overwhelmed by the number of actual cases that come up and the Supreme Court can only hear a tiny fraction of the cases they are asked to hear. If they added the ability to hear hypothetical cases as well, the court could easily be overwhelmed by Senators and Representatives asking them to weigh in on every remotely controversial bill or amendment before Congress or interest groups bringing cases for speculative grievances. | Yes, one should not publish evidence until a verdict is reached. This includes any possible appeals. In common law, doing so has long been one of the contempt of court offences called sub judice, or "publishing information that interferes with a fair trial". The main point is that the jury should not be influenced by any information other than what they hear in the courtroom. In New Zealand, the offence was recently codified. | The question is oddly phrased: The law does not give allowances for its violation. Many laws have exceptions. E.g., the law against killing endangered animals contains an exception for defensive killings. Perhaps you are thinking of safe harbors? For example, there are general provisions in the law like "exigent circumstances" that allow police to proceed with actions that, absent those provisions, would constitute violations of law. "Permission" to violate a right can be granted explicitly in the form of a warrant, which allows law enforcement to "violate" specific property and freedom rights. Finally, one might consider an executive pardon or jury-nullification to be ex post "permission to break the law." | How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a "he said she said" situation, for how can someone prove refusal to engage? You can prove the opposite if there are children born to both parents, but how can one prove a negative? Or is the statement by the divorce initiator considered sufficient for the judge? Testimony under oath is evidence. Judges resolve "he said she said" situations every day on a routine basis with witness testimony alone by judging the credibility of each witness before them. See also an answer by @Jen about the subject of how things are proved in court in general. In the appropriate case, testimony under oath with no other corroborating evidence can even support a murder conviction as proof beyond a reasonable doubt. It can certainly suffice to prove marital fault in a civil lawsuit for a divorce. If the judge finds that witness testimony under oath between more than one witness is irreconcilably different, and each witness is equally credible, and that it is impossible to tell which person is telling the truth, then the person seeking relief from the court has failed to meet their burden of proof to obtain relief from the court. But, this is rare. Usually, when witnesses are both testifying under oath and disagree about what happened, the judge will find that one witness is more credible than the other. And, in truth, while people certainly do lie in open court under oath, and probably are more likely to lie in that situation than when speaking to someone not under oath outside of a courtroom, most of the time, people don't lie and the testimony of all of the witnesses are consistent with each other subject to limitations based upon what they could perceive from their perspective and the limitations of imperfect memories. This could come down to demeanor in court, hesitation in answering, "tells", inconsistencies in their testimony, corroboration from other evidence and other witnesses (e.g. what someone said to a friend or wrote in a diary at the time), evidence that a witness has been convicted of a crime of deceit in the past, use of language that suggests coaching about their testimony, or common sense judgments about whose story seems more plausible under the circumstances of the parties in front of the judge. | The custom is that the person who brings the case is named first. This will be the plaintiff in a civil case. But when the plaintiff wins, and the defendant appeals, the case in the appeals court may have that person (often referred to in older cases as the "defendant appellant") named first. More recent practice is to keep the name of the case the same. But it used to be considered a separate case with a separate name in some jurisdictions. In any event, this is merely a custom, and not a law. The court has discretion to name cases as it chooses in its judgements, and if a court chooses for whatever reason to follows a practice that differs from the usual one, that is the name of that particular case. Without a full citation or a link, so that the actual opinion could be consulted, three is no way to know what reason, if any, there was for the order of parties in the particular case mentioned in the question. A quick Google search did not turn up the case. | Short Answer Yes, Supreme Court decisions apply everywhere right away. (Unless the decision says it doesn't.) No, we do not have to wait until new laws are passed. Explanation Judicial Review Marbury v. Madison (1803) established the principle of judicial review under Article III of the U.S. Constitution. This allows the court[s] to interpret laws passed by legislatures. And this is the basis for applying the ruling everywhere (in the U.S.) immediately. From Marbury at 178: if a law be in opposition to the Constitution [...] the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. [...] the Constitution of the United States confirms [...] that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. Judicial Restraint (Nominally) courts either interpret or invalidate existing law. In the former case, the law will persist (with the new clarity added by the decision). In the latter, the law will be struck as unconstitutional and, therefore, no longer exist. |
Requirements to file an Amicus Curiae brief What are the requirements or preconditions that must be met in order for someone to file an Amicus Curiae "friend of the court" brief? What form can the brief take? | Some United States Supreme Court rules are helpful, though these rules are not stated as applying to any other court. Timeframe The brief must be submitted within a certain time period, depending on the case at hand: An amicus curiae brief in support of a petitioner or appellant shall be filed within 30 days after the case is placed on the docket or a response is called for by the Court, whichever is later, and that time will not be extended. An amicus curiae brief in support of a motion of a plaintiff for leave to file a bill of complaint in an original action shall be filed within 60 days after the case is placed on the docket, and that time will not be extended. An amicus curiae brief in support of a respondent, an appellee, or a defendant shall be submitted within the time allowed for filing a brief in opposition or a motion to dismiss or affirm. An amicus curiae shall ensure that the counsel of record for all parties receive notice of its intention to file an amicus curiae brief at least 10 days prior to the due date for the amicus curiae brief, unless the amicus curiae brief is filed earlier than 10 days before the due date. Format The brief must be submitted electronically and in print: An electronic version of every amicus curiae brief in a case before the Court for oral argument shall be transmitted to the Clerk of Court and to counsel for the parties at the time the brief is filed in accordance with guidelines established by the Clerk. The electronic transmission requirement is in addition to the requirement that booklet-format briefs be timely filed. Wikipedia claims that the brief must be submitted as a printed book in forty copies, but I can not substantiate that within the Supreme Court rules - which is the document cited! Other briefs are required to be submitted in print in forty copies, so such a requirement would not be overly surprising, but I don't know if this is true. This states more requirements for general courts: 1) if the amicus curiae is a corporation, a disclosure statement like that required of parties by Rule 26.1; (2) a table of contents, with page references; (3) a table of authorities—cases (alphabetically arranged), statutes and other authorities—with references to the pages of the brief where they are cited; (4) a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file; (5) unless the amicus curiae is one listed in the first sentence of Rule 29(a), a statement that indicates whether: (A) a party's counsel authored the brief in whole or in part; (B) a party or party's counsel contributed money that was intended to fund preparing or submitting the brief; and (C) a person—other than the amicus curiae, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person; (6) an argument, which may be preceded by a summary and which need not include a statement of the applicable standard of review; and (7) a certificate of compliance, if required by Rule 32(a)(7). Length There is a length limit: Except by the court's permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party's principal brief. If the court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief. Timeframe There is also a slightly different timeframe: An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant's or petitioner's principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer. In addition to all of this, a guide to filing amicus curiae briefs can be found here. It should, of course, only be used as a basic introduction to the briefs. | I supposed the five year requirement you referred to follows from U.S.C. § 1052(f): The Director may accept as prima facie evidence that the mark has become distinctive, as used on or in connection with the applicant’s goods in commerce, proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made. It only relates the "five years" requirement to "accept[ing] as prima facie evideice." It does not say that dictinctiveness cannot be acquired before a trademark has been used for less than five years. | That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., "The defendant refused to waive his Sixth Amendment right to a speedy trial." In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this. | There is no requirement in California to file a prenuptial agreement before obtaining a license. There is a requirement for disclosure of property and finances, 7 days minimum to review the agreement and being represented by a lawyer or waiving representation, specifically: The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed. It is possible for a couple to write their own agreement without hiring separate lawyers, but the law is written so as to presume that if not advised by independent counsel, the agreement is unenforceable. The presumption can be overcome by carefully following the requirements of §1615, for example, the party against whom the agreement is to be enforced was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information. | As many parties as have standing. The First Amendment protects the right to petition for redress of grievances, so any limitation on that right would be highly disfavored. When there's a rush of cases like this, though, there are a few option for dealing with them. For instance, a plaintiff may seek class certification, permitting him to stand in for similarly situated parties so they don't need to litigate themselves, or a court may consolidate the cases if they are sufficiently similar. | These offer letters typically state explicitly that the offer is contingent on approval by the relevant governing board. This is sufficient to thwart promissory estoppel. Such highest-level overturning are frequent enough in the US that a reasonable person would know that the principal (for instance) does not have final authority to make a contract. There is no requirement that the board justify their decision to you. If you file a lawsuit alleging racial or religious discrimination, and if you can make a prima facie case for discrimination,you might survive the motion for dismissal, and the board might be required to say why they didn't hire you. | This would require a constitutional amendment (overriding the First Amendment), which can be done in two ways. Congress can write an amendment and submit it to the states; or the states can call for a convention. None of these methods can be implemented by any number of courts. | Yes, you may call a defendant as a witness and compel the defendant to testify in a civil case. If you need this testimony to prove your case, you should have the clerk issue a subpoena for trial to the defendant and have that subpoena personally served by a process server upon that defendant (sometimes a witness fee, a mileage allowance, and a copy of the relevant statute must also be included in the package). There should be a standard court form available to do this. The subpoena to appear and testify at trial must be delivered to the defendant by the process server a certain amount of time in advance (usually two days, but court rules vary). Also, when you call a defendant as a witness you may generally examine the witness with leading questions, which is something that you are not usually allowed to do with witnesses that you call in your own case. Forcing a defendant to testify to the indisputable facts is a good way to meet your burden of proof towards establishing those facts. But, when you call a defendant as a witness, you should limit your questions to those you know the answer to and can ideally prove with other evidence if the defendant lies. Don't try to tell the entire story of the case with the defendant, just the undisputed facts. The one narrow exception to this would be a criminal contempt of court proceeding (i.e. one seeking the remedy of throwing the offending party in jail where there is no way to obtain relief by taking the action requested) prosecuted by a party within a civil case, to which 5th Amendment protections would apply. But, this would not apply to the kind of case described in the original post. |
Private Website and copyright/GDPR Similar questions have been asked before but I still could not find answers that made me understand it. I created a website and would like to know which laws affect me. The website does not have any ads and I do not sell any data in fact the entire thing is open source and free to use for everybody but I have the feeling that this does not matter at all. The website is some kind of "proof of concept" and I made it to demonstrate some new techniques. To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | That GDPR Disclaimer is no protection in some jurisdictions: the applicable laws to that situation in germany for example don't care about the GDPR: Cold calling, mailing, or e-mailing private people to advertise services all is handled by the same law: Without the consent it is expressly illegal under §7 of the law against unfair competition (Gesetz gegen unlauteren Wettbewerb UWG) and such cases are rather Slam-Dunk if the origin can be made out. The punishment can be a 300.000 € fine. The fact that to email someone you need their e-mail address and that e-mail addresses and private addresses are by default considered personally identifiable information is making it worse for the advertizer: Without either an exception (there is none available to cold-emailing) or special allowance of the person the data belongs to, you violate §4 of the federal data protection law (Bundesdatenschutzgesetzes BDSG) just by handling their e-mail address. That's a separate crime from the UWG one, adding up to another 300.000 € fine under §43 BDSG - or even up to 2 years in prison under §44 BDSG! Oh, and if the email does not contain a proper sender's address, that's another chance for a huge fine under the UWG... So, GDPR is your least trouble, if you violate the marketing laws of a country, or their own data privacy laws. A disclaimer means nothing as the act of sending the mail, even to an unintended addressee, is what is illegal and the law as written does not give a damn about 'I didn't want to advertise to that person' when in fact you sent them unwanted advertisements. Oh, and the very repository you suggest? It would violate the very same §4 BDSG and be illegal for processing private data if it was not actively asked to do that by the end user. As a result, that database is useless: It does kick back all people not in its database. Its database is incomplete because only few people give their address to that database as people not aware of the database never add their data on their own. So it regularly violates §4 BDSG with every German citizen's e-mail address it gets and kicks back, and claiming those addresses would be OK, it throws the company trying to check the database under the bus because they rely on data that is impossible to be reliable. tl;dr Don't do cold-(e)-mail marketing. You throw yourself into boiling oil with a lit torch in hand. further reading Other laws banning such behavior I had listed here, and I quote myself: The US has the CAN-SPAM-Act, which illegalizes sending unsocialised advertisements. You may NOT send a mail if any of the following is true: it has no opt-out the email was gained by 'harvesting' contains a header not matching the text contains less than one sentence the adressee does not have any relation to you In fact, you are liable for a 5-digit fine per infringing e-mail in the US. The FTC itself suggests to never buy e-mail lists - as E-mail harvesting or generating any possible e-mail adress itself is illegal. | Great question - I work for a London based company who use a large amount of location data. The process for deletion of data is not as simple as it first sounds. We recently had a deep dive with our legal team and as a result actually created a product to process deletions. Personal data from users/customer is carried for lots of reasons, not just marketing. What if you're asked to delete data that is needed to bill customers, information that may be relevant to a legal case or information that needs by law to be retained for the purposes of audit? GDPR does not make it illegal to carry personal information, it simply needs you to justify why you are keeping the information - inform the named person about this and provide them with a timescale for deletion. For example if you are required by law to store a record of emails to document the work done, but the user asks you to delete that information. You would be entitled to keep that information but only for the purposes of maintaining that audit trail. You would delete all associated customer data that was unnecessary such as CRM info, payment details etc.. but could keep the audit trail. The proper way to respond to the user's deletion request would be "your data will be kept in a secure server for the purposes of maintaining an audit trail for x amount of time. Once this time has elapsed it will be deleted. If you are unhappy with our use of this data please contact our data officer". GDPR isn't designed to catch you out - if you have a legitimate reason to keep that information then you are entitled to. The law was designed to stop marketers and advertisers hoarding huge amounts of information, as well as undermine Google/Facebook's duopoly on our personal information. | Yes, GDPR applies: you are a data controller established/living in the UK or are offering services to people in the UK you fall under the material scope of the GDPR. The Art 2(2)(c) exemption for “purely personal or household activity” does not apply since you're offering the service to the public. You must consider GDPR compliance here. This is especially important as you are showing personal data to the public. Don't do that unless you have a very good reason, appropriate safeguards, and are clear to users how their information will be shown. On a high level, GDPR compliance involves working on the following questions: For what purpose are you processing personal data? Context: purpose limitation principle per GDPR Art 5(1)(b) What is the legal basis for processing? GDPR Art 6(1) lists the available legal bases. Here, consent, necessity for performance of a contract, or a legitimate interest could be a legal basis. They may have further obligations attached. A legitimate interest requires a balancing test that considers the data subject's rights and freedoms. Consent must fulfil the conditions per Art 7 in order to be valid. What is the minimal data necessary to achieve the purpose? Per the Art 5(1)(c) data minimisation principle, it is illegal to process personal data beyond what is necessary and adequate. You must provide data protection by design and by default per Art 25. Special categories of data per Art 9 such as health data are illegal to process outside of narrow exemptions. You must delete data once it is no longer necessary. What appropriate safeguards and security measures should you apply? Per Art 24 and 25, you are responsible for determining and implementing appropriate measures. This depends a lot on your specific context, so there's no checklist you can apply. Per Art 25(1) you must pseudonymize the processed information if that is compatible with the processing purpose. What further compliance measures do you have to consider? There are additional GDPR and non-GDPR compliance measures. From the GDPR side: Use the answers to these questions to write a privacy policy, including the information that you must provide to data subjects per Art 13. Consider whether you have to maintain a Records of Processing document per Art 30, or if you have to make a Data Protection Impact Assessment per Art 35. If you use third party services, figure out whether they are a joint controller or data processor and apply appropriate safeguards. If you have data processors, ensure that you have a contract in place that covers the items from Art 28(3). If you share data with other controllers (not processors) you need a legal basis for doing so. If you transfer data into a non-EU/EEA country (after 2020: non-UK country) you need a legal basis per Art 44 and have to cover additional items in your privacy policy. Ideally, the target country is covered by an EC adequacy decision per Art 45. For US-based companies, this is the case only when they have self-certified under the Privacy Shield framework. Non-GDPR compliance steps could include cookie consent banners, or showing a VAT ID. How can you prepare for data subject requests? Data subjects have various rights per Arts 15–23, subject to the modalities in Art 12. For example, a data subject could request that their information is erased from your website. The exact rights also depend on the legal basis you selected. You should figure out in advance how to deal with such requests. | The Google terms of service do not prohibit using their translate programs to create something that you sell. TOS for using their API would be irrelevant, since that isn't what you're doing. There is no clear copyright issue: as far as I can tell, there is not yet any case law suggesting that the output of a program can be owned by the copyright-holder of the program. (Copyright must be held by a legal person, i.e. an actual person or a corporation, and a program cannot yet be a legal person). A human-performed translation is subject to copyright protection since what is protected is that which is created by the (translating) author, and a program lacks that creative element. A translation owes its existence to the program-user using a particular tool to create the work, be it a pen or a translation program. What is unclear at present is whether a person using machine translation in a permitted fashion to create a derivative work thereby gains copyright to that derived work. | Any processing of personal data needs a legal basis, for example necessity for some contract or legitimate interest. If no other legal basis allows the processing, you need to acquire consent. Consent must be freely given. If something is gated behind consent without that consent being really necessary, this might coerce users and they would not be able to consent freely. The GDPR does not have a hard ban on this, but it explicitly calls out that this case must be considered when determining whether consent is valid. So what your company is trying to do is in a dark grey area. Not necessarily wrong, but likely so. Consent could be made free if users have an actual choice. For example, some online newspaper sites had success with a “pay or consent” wall. (Success in the sense that some data protection authorities allowed this). In your case, this could mean that users either consent to extra data collection, or that they buy some reasonably priced premium mode. But none of this is for you to decide. You can voice your doubts that the software would be compliant. You could also ask if the Data Protection Impact Assessment document for this proposed processing is available (creating such an assessment is likely mandatory in this case). But in the end, it is the company's obligation to be compliant, and this responsibility is largely shouldered by the company's data protection officer (to whom you can turn with further questions). | Update: On 1 October 2019 the CJEU ruled in Case C‑673/17 (Verbraucherzentrale Bundesverband vs. Planet49 GmbH) that cookies require explicit consent regardless of personal data is being processed. (Where the exceptions don't apply). (paragraphs 68-70 of the ruling). That does probably invalidate my answer below. However, because I have based my answer on information provided by the Dutch DPA, I will not update my answer until that DPA has responded on this. Basically, your thoughts are all correct. The Dutch DPA (Autoriteit Persoonsgegevens) has written a manual how to use Google Analytics compliant with the GDPR without having to ask for consent. But unfortunately it is not available in English. Based on Art. 28 GDPR, you need a Data Processing Amendment with google. Open the settings menu from Google Analytics Go to Admin Choose Account Settings Scroll down to the data processing amendment Open it Accept it Click Save Anonymize your visitors IP Address. A full IP address is considered personal data. It is possible to remove the last octet before it is processed by google. Add { ‘anonymize_ip’: true } to the tracking code on your website Create a screenshot of the change, so you can prove later at which date you made this change. Disable Data Sharing with google. By default Google uses the data for 5 different purposes. Each of them would require consent from the visitor of your website. So you need to switch that off. Open the settings menu from Google Analytics Go to Admin Choose Account Settings Scroll down to the data sharing settings Uncheck all checkboxes (Google producs & services, Benchmarking, Technical support, Account specialists and access for sales experts) Click Save Disable Data Collection for Advertising. This has to be disabled at a different location, for the same reason as the previous step. Open the settings menu from Google Analytics Choose Property settings Choose Tracking info Choose Data collection Turn off these two options (remarketing and advertising reporting) Click Save Disable the User-ID feature. This is probably turned off by default. But it is important to keep it turned off. So you need to verify this. Open the settings menu from Google Analytics Choose Property settings Choose Trackinginfo Choose User-ID Disable it Click Save Even though you don't need consent to use Google Analytics, you still need to inform your users, for example by adding a few lines to your privacy policy explaining: You are using Google Analytics cookies. You have a data processing agreement with google. You have enabled IP anonymization/masking. You have disabled data sharing. You are not using any other google services in combination with Google Analytics. The Autoriteit Persoonsgegevens still recommends to offer an opt-out for Google Analytics, but it would not be required. As the Autoriteit Persoonsgegevens is a DPA as defined in chapter 6 of the GDPR, you have to assume their advice really is GDPR complaint. In the past they also had performed other investigations to the privacy policies of google. | If the image is protected by copyright (as most modern images are), the uploading it as a profile picture or using it on a web site is copyright infringement unless one has permission from the copyright owner, or an exception to copyright applies. If copyright infringement occurs, the owner can sue for damages, or issue a takedown notice, or both, but does not have to do either. In the vast majority of cases, no one will do anything about such infringements if the owner (or the owner's authorized agent) does not. All the above is true in all of Europe and North America, ad in most other countries as well. Permission can be granted directly by the copyright owner to a user, or granted by the owner releasing the image (or other wrk) under a license. Google's general developer TOS Document](https://policies.google.com/terms#toc-content) reads (in relevant part): Google content Some of our services include content that belongs to Google — for example, many of the visual illustrations you see in Google Maps. You may use Google’s content as allowed by these terms and any service-specific additional terms, but we retain any intellectual property rights that we have in our content. Don’t remove, obscure, or alter any of our branding, logos, or legal notices. If you want to use our branding or logos, please see the Google Brand Permissions page. Other content Finally, some of our services give you access to content that belongs to other people or organizations — for example, a store owner’s description of their own business, or a newspaper article displayed in Google News. You may not use this content without that person or organization’s permission, or as otherwise allowed by law. The views expressed in other people or organizations’ content are theirs, and don’t necessarily reflect Google’s views. It would seem that each Google service has its own terms which indicate in what ways one may use Google content. It would further seem that content originally obtained from others and distributed by Google will have some set of permissions granted by the uploader. These must be checked for each image, I would think. There is no single one-rule-fits-all answer. I gather that the APIs will have methods for determining which images are from Google itself, and which from others, and some method for indicating the permissions that accompany an image. A user of these APIs must learn how to extract ownership and permissions metadata for an image obtained via the API, and how to use it (or not use it) in accordance with the available permissions. Now let us look at exceptions to copyright. These vary by country. Several European countries have an exception for "personal use" which might cover the profile pictures, but probably will not cover general use on a web site. There are exceptions for "news reporting" which might cover images illustrating recent news events. Some have exceptions for educational or instructional use. The UK (and several othe countries) have the concept of fair dealing which bundles several exceptions together. This might cover an image used in a personal profile, use of images in news reports, and limited educational use, but will probably not cover general use on a website. The US has the concept of fair use which is rather complex, but does not specifically include a "personal use" exception. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and other threads here tagged with fair-use for more on this. It is somewhat unlikely that any of these exceptions will cover general use on a web site of images obtained via Google APIs and used beyond the permissions listed in the metadata accompanying the image. But it will very much depend on the specifics of the case. If the image fetching is doe not by you in building a site or an app, but by your app's users who may then use them improperly, strictly speaking that is each user's own responsibility, you cannot effectively police what your users do, and have no duty to try. It will be a good practice if you include text explaining to your users that not all images are free for general use. You might want to link to the Google TOS. If the API returns metadata indicating the permissions status of each image fetched, yo0u might well want to provide this metadata in a useful form to your users. You might even want to allow a user to filter images obtained by permission status. But whether this is practical or useful to users will depend on the purpose and design of an app. |
What does Recital 13 in GDPR make exempt? I read through Recital 13 in GDPR and it states To take account of the specific situation of micro, small and medium-sized enterprises, this Regulation includes a derogation for organisations with fewer than 250 employees with regard to record-keeping. However, I couldn't find an official definition of "record-keeping" pertaining to GDPR. I'm aware of what record-keeping is in a general sense, but I'm not sure how far the term goes in this context. I'm assuming it includes such instances as a record of who accessed the data and when and what the data was/is used for. But I was hoping for a legal definition I could point to as proof. For reference: https://gdpr-info.eu/recitals/no-13/ | See Article 30, Records of processing activities: Each controller and, where applicable, the controller’s representative, shall maintain a record of processing activities under its responsibility. ... Each processor and, where applicable, the processor’s representative shall maintain a record of all categories of processing activities carried out on behalf of a controller, containing: ... ... The obligations referred to in paragraphs 1 and 2 shall not apply to an enterprise or an organisation employing fewer than 250 persons unless the processing it carries out is likely to result in a risk to the rights and freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data as referred to in Article 9(1) or personal data relating to criminal convictions and offences referred to in Article 10. Suitable Recitals (13) Taking account of micro, small and medium-sized enterprises (82) Record of processing activities | Under GDPR, can I request to be forgotten and re-register for a trail? No (unless they are stupid.) The "right to be forgotten" does not mean they have to delete your data. They can keep personal data about if they have "legitimate interests" to keep these data. Stopping clients from abusing their "free trial" system is a legitimate interest. | An app(lication program) is software run on the end-users machine. That does not fall under the GDPR. Any processing (including storage) you do on user data has to be compliant with the GDPR. Allows a user to authenticate via e.g. Facebook and stores some basic data (optional) Authentication via Facebook leaves GDPR compliance to Facebook (AFAIK). It would be a good idea to provide alternative authentication methods, such as Google and an "own account" user name and password so that the user doesn't have to share information with a multinational company in order to use your service. The "basic data" will need to be processed according to the GDPR. As long as the "optional" part is "opt in" (i.e. the user needs to at least click on something) then this means you have permission to process that data. Providing this "basic data" as a JSON or CSV file should meet data portability requirements. Allows a user to upload a GPX file (a route or some other activity) Stores the above file to Google's database Allows the user to analyze that file. Since the user is actively choosing to upload each file you have permission to do this. You should make it clear in your privacy policy that the data will be held by Google. Doing so should not be a problem as Google has set up the legal framework to do this under the GDPR. You don't have to store the information encrypted, but you should use encryption (e.g. HTTPS) for any data transmission. Allowing the user to analyse the file is not an issue; either the user is doing it on their own machine (GDPR irrelevant) or you are doing it under user instruction (meaning you have consent). Since the user has uploaded GPX files they already have data portability on those files. You should tell your users that while you will employ best endeavours you don't promise to keep their files accessible and they should maintain their own private copies. That way if your entire database gets corrupted they can't blame you for loss of data. Finally, make sure there is a "Close my account and delete all my data" option. | According to my knowledge I am not allowed to share other people's full name nor phone number nor email address without their permission. That is not correct. According to GDPR Article 2: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. This Regulation does not apply to the processing of personal data ... ... (c) by a natural person in the course of a purely personal or household activity; GDPR Recital 18 states in relevant part: (2) Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. Personal data that is not processed by "automated means", for example data which is transmitted verbally, by hand writing, or by manually sent email, is not covered by the GDPR. Data which is used by a natural person for "personal activities" is also not covered. Consulting one's personal lawyer might well be a personal activity unless it is a business matter. Even if such a transfer of data were in scope for the GDPR, consent of the data subject (DS) is not the only available lawful basis. GDPR article 6 permits any of several possible lawful bases to be used, particularly paragraph 1 point (f) which reads: (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Also possibly relevant is point (c) which reads: processing is necessary for compliance with a legal obligation to which the controller is subject; In short, providing one's personal lawyer with the names and addresses of relevant people in connection with a legal issue is not at all likely to be prohibited by the GDPR, nor to require the consent of the people whose names and contact info are provided. However, a comment by user PMF reads: The Data Protection laws are mostly for companies, not for individuals. This is an overstatement. The laws do apply to natural persons as DCs, although enforcement is largely targeted at businesses, particularly large, for-profit businesses. | That GDPR Disclaimer is no protection in some jurisdictions: the applicable laws to that situation in germany for example don't care about the GDPR: Cold calling, mailing, or e-mailing private people to advertise services all is handled by the same law: Without the consent it is expressly illegal under §7 of the law against unfair competition (Gesetz gegen unlauteren Wettbewerb UWG) and such cases are rather Slam-Dunk if the origin can be made out. The punishment can be a 300.000 € fine. The fact that to email someone you need their e-mail address and that e-mail addresses and private addresses are by default considered personally identifiable information is making it worse for the advertizer: Without either an exception (there is none available to cold-emailing) or special allowance of the person the data belongs to, you violate §4 of the federal data protection law (Bundesdatenschutzgesetzes BDSG) just by handling their e-mail address. That's a separate crime from the UWG one, adding up to another 300.000 € fine under §43 BDSG - or even up to 2 years in prison under §44 BDSG! Oh, and if the email does not contain a proper sender's address, that's another chance for a huge fine under the UWG... So, GDPR is your least trouble, if you violate the marketing laws of a country, or their own data privacy laws. A disclaimer means nothing as the act of sending the mail, even to an unintended addressee, is what is illegal and the law as written does not give a damn about 'I didn't want to advertise to that person' when in fact you sent them unwanted advertisements. Oh, and the very repository you suggest? It would violate the very same §4 BDSG and be illegal for processing private data if it was not actively asked to do that by the end user. As a result, that database is useless: It does kick back all people not in its database. Its database is incomplete because only few people give their address to that database as people not aware of the database never add their data on their own. So it regularly violates §4 BDSG with every German citizen's e-mail address it gets and kicks back, and claiming those addresses would be OK, it throws the company trying to check the database under the bus because they rely on data that is impossible to be reliable. tl;dr Don't do cold-(e)-mail marketing. You throw yourself into boiling oil with a lit torch in hand. further reading Other laws banning such behavior I had listed here, and I quote myself: The US has the CAN-SPAM-Act, which illegalizes sending unsocialised advertisements. You may NOT send a mail if any of the following is true: it has no opt-out the email was gained by 'harvesting' contains a header not matching the text contains less than one sentence the adressee does not have any relation to you In fact, you are liable for a 5-digit fine per infringing e-mail in the US. The FTC itself suggests to never buy e-mail lists - as E-mail harvesting or generating any possible e-mail adress itself is illegal. | The GDPR has an exemption for purely personal or household activity. Creating a family tree seems purely personal as long as you don't publish it. You're also allowed to freely share the tree as long as it stays within that purely personal scope. Your proposed restriction of only showing data of blood relatives seems excessively strict. But assuming that this exemption wouldn't apply, there'd probably still be no problem. The GDPR does not require you to always obtain consent. It requires that the purposes for which you process personal data are covered by some legal basis. Consent is one such legal basis, but legitimate interest is another. You can likely argue that you have a legitimate interest to create a tree of your (extended) family. The legitimate interest must be weighed against the rights and freedoms of the affected persons. For example, contact information could be used for stalking. The balance of the legitimate interest check can be changed if you adopt suitable safeguards. Your idea of only sharing data with close relatives would be such a safeguard, but it might not be necessary. When you rely on legitimate interest, the affected person can object to further processing, furthermore they can request to be erased from your records. A request for erasure can be denied if there are overriding grounds to keep the data. E.g maybe only contact information has to be deleted but names, dates, and relations might be kept. You should notify persons when they are included into your records. It is your obligation as the data controller to make these decisions. If someone disagrees they can sue you or lodge a complaint with a supervision authority. Note that dead persons are not natural persons in the sense of the GDPR, and have no privacy. However, national laws may provide such protections. | Yes. Art 13 requires you to provide “the identity and the contact details of the controller”. You are the data controller. Your name and address are necessary to establish your identity. Using AdSense means you're offering an internet society service commercially. In that case, there's also probably some EU fair competition directive that was implemented in your countries national law and will provide equivalent requirements. For example, my country Germany has a far-reaching Impressumspflicht. Not sure if this is the most relevant EU law, but Art 22 of Directive 2006/123 requires that your country passed laws to ensure that you make available “the name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means”. I think you would be in scope of this directive since you're acting commercially. This legally mandated self-doxxing is unfortunate for private bloggers, but it's also essential for making it possible to enforce data subject rights: if you were to violate someone's privacy rights, how could they sue you if they don't know where to serve you with a lawsuit? However, all things are a balancing act. These requirements are not intended to limit freedom of expression. If you're just trying to communicate something to the public without jeopardizing your anonymity, then paradoxically social media services can be more attractive. | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. |
GDPR - first party analytics cookies Does the first-party issued cookie, under control of, and only accessible by the first party requires visitor consent? Given the conditions bellow: Cookie is used to uniquely identify anonymous visitor (random visitor ID); Cookie is persisted for the duration of the session; Cookie can not (easily) directly be linked to a user (e.g. there is another technical session cookie that stores user ID for authentication purposes, but the two are issued by separate systems, and have no relation except that they are stored in the same browser); Cookie is used to track and relate behavior of the visitor (pages visited, buttons clicked, general behavior stuff. etc.). The most sensitive information I can imagine stored using this identifier would be resolved Country/City, tops (no IP stored). The rest is just usage information related to the website. Data stored with the identifier held by the cookie never leaves first-parties control, it is stored on servers controlled by the site owner. Clearly this all needs to be written down in privacy policy, but do I need explicit consent for such a cookie also? In theory, someone having access to both session cookie and "analytics cookie" could relate the two, but that is highly non-trivial. | The GDPR only require explicit (hard) consent if you use the cookie to store personal data. Given the conditions you cite, the data you store is not personal data, so this cookie does not require consent. In theory, someone having access to both session cookie and "analytics cookie" could relate the two, but that is highly non-trivial. You may have to do DPIA to demonstrate that this is non-trivial, or that you have mitigation in place to mitigate staff abusing such access. But provided things are as you say, the "analytics" cookie does not require consent. | The GDPR does not mandate specific features, but that any processing is lawful and transparent etc. So what would be the purpose of storing a revision history? Once that is clear you can work out an appropriate legal basis (e.g. a legitimate interest) and then figure out which data subject rights apply. For example, let's assume that there is a security interest in keeping a revision history, so that (a) mistaken edits can be rolled back, and (b) the user can be notified of possibly unauthorized changes. This would be a legitimate interest primarily of the account holder, secondarily of you as the system operator. Of course, such security requirements have to be proportional, but I'd see that as given when there's a payment method on file. You are required to apply appropriate safety measures and to apply the data minimization principle. E.g. is it necessary to store this revision history for all eternity? No, one or two months will likely be sufficient. Who should have access to this data? If the purpose is to defend against unauthorized access, it could make sense to only give out this data on request, and otherwise only make it available to support and security staff. Now we can discuss how this interfaces with rectification or deletion. That the user is able to rectify their data themselves is very good. However, that doesn't imply a prohibition on keeping a revision history: the revision history indicates what data was stored at what point in time, and is by definition correct. This assumes that you are not using the revision history for any other purposes. When the legal basis is a legitimate interest, a request for erasure has to be preceded by (or implies) an objection (opt-out) to further processing. The objection must weighed against the legitimate interest: the objection can be denied when there are overriding grounds to continue processing. This might be the case for a security purpose: if someone with unauthorized access can just erase their traces, the purpose cannot be achieved. But perhaps the user could opt out when they create their account? Or opt-out later, but with some delay to still achieve the security purpose at the time of opt-out? In any case, erasure is required when the data is no longer necessary for its purpose – this ties back to picking an appropriate retention period, as discussed above. So it's not really possible to provide a general answer, and it really depends on the specific purpose you are trying to achieve. | From the GDPR's definitions: ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; This blurred image would be "information relating to an identified ... natural person (‘data subject’)." It does not matter whether the person can be identified using the information in question. Therefore, the answer to your question Under GDPR, does blurhash of a profile picture count as personal data is yes. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | The ePrivacy Directive Cookies are governed in the EU by the ePrivacy Directive which was first passed in 2002, and revised in 2009. However, if a site places a cookie, and later reads the cookie and stores an indication of the cookie content, this may be personal information and thus also subject to GDPR rules. (Other privacy laws, such as the CCPA, may also impose requirements on cookie use, when they apply.) Note that the so-called "EU cookie law" is a directive and not a regulation. This means that it is up to the various EU countries to implement it in their national legislation, and different countries may implement it in different ways. It would be the actual laws in individual EU countries that would be binding on website operators, and I am not going to try to find and analyze all the various laws on the topic. Paragraph 25 of the directive (linked above) reads: However, such devices, for instance so-called "cookies", can be a legitimate and useful tool, for example, in analysing the effectiveness of website design and advertising, and in verifying the identity of users engaged in on-line transactions. Where such devices, for instance cookies, are intended for a legitimate purpose, such as to facilitate the provision of information society services, their use should be allowed on condition that users are provided with clear and precise information in accordance with Directive 95/46/EC about the purposes of cookies or similar devices so as to ensure that users are made aware of information being placed on the terminal equipment they are using. Users should have the opportunity to refuse to have a cookie or similar device stored on their terminal equipment. This is particularly important where users other than the original user have access to the terminal equipment and thereby to any data containing privacy-sensitive information stored on such equipment. Information and the right to refuse may be offered once for the use of various devices to be installed on the user's terminal equipment during the same connection and also covering any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or requesting consent should be made as user-friendly as possible. Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose. This should mean, if implemented straightforwardly, that cookies, beyond those absolutely essential to the operation of a site, can only be placed if a user is notified of the intention to place them, and freely consents. This can be done once per user, on an initial session. Users are supposed to be provided with provided with "clear and precise information". I do not think a simple statement that the site uses cookies fulfills this. At the very least the purposes for which cookies will be used should be provided. The directive does not make clear what level of detail about individual cookies such a notice must provide. The notice described in the question neither describes the purpose of cookie placement, nor does it offer any meaningful choice to accept or reject them. As such, I do not think it would be compliant with the directive. If cookies are read back (which is after all pretty much the point of having them) and can be potentially identified with an individual, then under the GDPR (article 6) there must be a lawful basis for processing them, and the interaction above would not be enough to establish consent as a lawful basis. There might be some other basis that does not require consent, however. Interpretations from others This page from cookiebot explains some of the history of the directive, and how it contrasts with the GDPR (which is a regulation, and so is directly applicable without the action of national legislatures). This page from The Verge discusses recent changes in the directive and the guidelines for applying it, and criticizes how it has been complied with, and ignored, by many sites. Cookies and the GDPR This page, "GDPR, and the ePrivacy Directive", from GDPR.EU says: ... cookies, insofar as they are used to identify users, qualify as personal data and are therefore subject to the GDPR. Companies do have a right to process their users’ data as long as they receive consent or if they have a legitimate interest. Passed in the 2002 and amended in 2009, the ePrivacy Directive (EPD) has become known as the “cookie law” since its most notable effect was the proliferation of cookie consent pop-ups after it was passed. It supplements (and in some cases, overrides) the GDPR, addressing crucial aspects about the confidentiality of electronic communications and the tracking of Internet users more broadly. To comply with the regulations governing cookies under the GDPR and the ePrivacy Directive you must: Receive users’ consent before you use any cookies except strictly necessary cookies. Provide accurate and specific information about the data each cookie tracks and its purpose in plain language before consent is received. Document and store consent received from users. Allow users to access your service even if they refuse to allow the use of certain cookies Make it as easy for users to withdraw their consent as it was for them to give their consent in the first place. That page also describes the proposed ePrivacy Regulation which, if passed, will replace the current directive, and links to drafts of it. Conclusion The site described in the question probably does not comply with legislation implementing the ePrivacy directive. Depending on where it is hosted and targeted, and what it does with cookies that it sets, it may fail to comply with the GDPR as well. There has been very little enforcement of the directive so far. This may change in the future, particularly if it is replaced by a regulation, as has been proposed. | I don't think you would be responsible for whether your software is used in a GDPR-compliant manner. For GDPR compliance, it is important who the data controller is. The data controller is whoever determines the purposes and means of a personal data processing activity, i.e. the why and how. The data controller alone is responsible for their GDPR compliance. When a data controller wants to run some software, it's the data controller's responsibility to ensure that this software is used in a GDPR-compliant manner (or possibly not at all). Determining purposes and means of processing When someone other than the developer runs a software, the question is who might be a controller: you as the developer, they as the operator, or neither, or both? The operator is clearly a controller: they determine a purpose for data processing (e.g. to manage staff) and have determined means to perform that processing (e.g. to use the software). The developer may or may not be a controller. Clearly, the developer has made choices about how the processing of personal data will be performed, i.e. has determined some means of processing. E.g. the developer has developed a particular architecture, chosen a way to store personal data, and has implemented some security measures. But determining some means is not sufficient to be a data controller, see discussion below. Has the developer participated in determining the purposes of processing? I think this will depend on the specific functionality provided by the software in question. If the software just does what it says and processes the data for the operator's purposes, everything should be fine. If the software also processes data for the developer's purposes, that developer might be a controller. For example, if analytics or crash reports are collected by the developer, that would be a clear indication that the developer would be a (joint) controller. So depending on specific factors, the operator might be the sole controller, or the operator and developer might be joint controllers. Essential vs non-essential means What about the developer determining some means? When does this make the developer a joint controller? The EDPB has created a theory of essential vs non-essential means: 40. As regards the determination of means, a distinction can be made between essential and non-essential means. “Essential means” are traditionally and inherently reserved to the controller. While non-essential means can also be determined by the processor, essential means are to be determined by the controller. “Essential means” are means that are closely linked to the purpose and the scope of the processing, such as the type of personal data which are processed (“which data shall be processed?”), the duration of the processing (“for how long shall they be processed?”), the categories of recipients (“who shall have access to them?”) and the categories of data subjects (“whose personal data are being processed?”). Together with the purpose of processing, the essential means are also closely linked to the question of whether the processing is lawful, necessary and proportionate. “Non-essential means” concern more practical aspects of implementation, such as the choice for a particular type of hard- or software or the detailed security measures which may be left to the processor to decide on. – EDPB guidelines 07/2020 on the concepts of controller and processor in the GDPR, added formatting for legibility Looking through that list of essential means, some might be determined by a software's developer, but I wouldn't expect this to be the case for this kind of open source software. types of personal data: the software certainly sets a framework for processing specific kinds of personal data, e.g. by providing database fields for names, contact details, and schedules. But ultimately, the developer does not control which data is actually collected and filled into those fields – the developer does not cause specific kinds of personal data to be processed with the system. duration of processing: unless the software is programmed with a fixed retention schedule, it should be impossible to argue that the developer has determined the duration of processing. Even then, it would also be the operator who has determined this duration to be appropriate, rather than editing the open-source software to change the duration. But typically, no such retention schedule is enforced, and retention would depend solely on the operator (who can use an admin interface or a database console to erase old records). categories of recipients: typically, the developer does not determine to whom the data in the system will be given. But if the system sends data to third parties by itself, this might change. For example, if the system is pre-configured to store data in an existing cloud database instance, or to a specific analytics server, the developer might be acting as a controller. Here, good software engineering and legal risk minimization coincide. Best practices for web apps state that account credentials and connection strings shouldn't be hardcoded or committed to a repository, and should instead be provided externally (e.g. via environment variables). categories of data subjects: this depends solely on how the software is used. The developer has no way to determine whose data the operator will enter into the system. If the developer isn't a controller, might they be a data processor instead? In a GDPR context, a data processor is whoever processes personal data on behalf of a controller. The developer is clearly not a processor in this scenario because both the “processing” and “on behalf” criteria fail. The developer has no access to the data in the operator's instance, so cannot process the personal data. There is no direct relationship between the developer and the operator. The operator has not delegated authority to the developer so that the developer would be acting “on behalf” of the operator. There is a legal relationship between the two roles (the developer has licensed the software to the operator) but that is entirely irrelevant in a data protection context. The GDPR isn't directly about cookies While the GDPR does cover how personal data can be processed with cookies, the famous “cookie law” is actually separate: those cookie consent requirements stem from EU member state's implementations of the ePrivacy directive. Instead of talking about “controllers”, ePrivacy has concepts such as the “provider of an information society service”. While this role fits perfectly to an operator/provider who runs a web app in a publicly accessible manner, it does not fit a developer who merely makes some source code available. Is the developer even subject to the GDPR? The GDPR can only apply to data controllers and processor who process personal data. As discussed above, the developer is probably not processing personal data at all. Even if the developer were processing personal data, it is questionable if GDPR would apply assuming the developer has no “establishment” in the EU (e.g. an office). Then, the question would be whether those processing activities are either related to offering goods or services to data subjects in Europe, or whether the processing activities involve monitoring the behavior of people who are physically in Europe. Unless the developer is actively targeting European businesses with marketing for this software, the answer is very likely “no”. Could the operator sue the developer for providing software that isn't GDPR-compliant? The operator can sue anyone for any reason, but is probably not going to win. As discussed, the operator is a data controller. They are responsible for ensuring that their purposes and means are GDPR-compliant. That involves selecting suitable software. The data controller would be neglecting their own responsibilities if they just download some random software and start feeding personal data into it. Things might be different if the operator specifically advertises GDPR compliance features but you're not going to do that. It's also worth noting that common open source licenses like the Apache License 2.0 include a warranty and liability disclaimer. To which degree they protect the developer ultimately depends on national laws, but they make it difficult for the operator to make a legal argument that they're entitled to a GDPR-compliant product. See also the related question: Do warranty disclaimers in software licenses carry any legal weight? What can you do? First, don't worry too much. Given how much bad software there is on the internet, surprisingly few developer get into legal trouble for writing source code that's buggy or missing some features. Second, consider choosing a license for your project that includes a reasonable warranty/liability disclaimer. Third, make the state of your project clear in your README file. If someone knows that this is alpha-quality software and that no compliance features were implemented, it's their own fault if they actually use that software. | Yes, you can use such eye tracking if you obtain consent in a suitable manner. But obtaining consent is going to be very difficult for you. The processing activity in question occurs within the context of an EU establishment of the data controller. Thus, GDPR applies regardless of where the data subjects are located. Under GDPR, any processing activity needs a clear purpose and a legal basis. Typical legal bases are necessity for performing a contract with the data subject, legal obligations, a legitimate interest, or consent. Conditions for consent are listed in Art 7 GDPR. Once your have a purpose that is covered by a legal basis, you can collect the minimum data necessary to achieve the purpose. For example, let's assume that the purpose is a scientific study for which gaze tracking is necessary. The study's subjects can be informed about the context of the study, about how the data will be used, and can then be asked for consent for proceeding. Of course, participation in the study is only possible when consent is given. This is perfectly fine as far as the GDPR is concerned. But things might be more difficult when data is used for a different purpose, for example in order to track user interests in a web shop. You do have a legitimate interest in optimizing the website, but this interest likely doesn't outweigh the user's privacy interests. Legitimate interest always requires a careful balancing test. If the user cannot reasonably expect the data collection to happen, that is an indication that consent would be a better legal basis than legitimate interest. Accessing a camera feed means accessing information stored on the end user's device. Per the ePrivacy directive, this requires consent regardless of whether the information in question is personal data. Cookies, mouse pointer tracking, or eye tracking with a camera are all equivalent in this regard. Consent must be specific, informed, and freely given. It is an unambiguous indication of the data subject's wishes, and must involve some clear statement or affirmative action. Prior to starting the eye tracking, you must provide sufficient information about what is happening, and must make it possible to easily decline consent. You cannot bundle unrelated consent together (e.g. eye tracking consent + cookie consent). You cannot make access to a service conditional on unrelated consent. E.g. a web shop does not need camera access, but an augmented reality does. Still, consent must be specific so consent for AR purposes can probably not be used to authorize eye tracking, which might need separate consent. Browsers do not grant camera access by default, and instead show a permission dialogue where the user can allow access or block further requests. This permission dialogue cannot replace your compliance obligations such as providing the necessary information so that the user can make an informed choice. Since GDPR requires that consent is freely given and can be declined, you might find it difficult to convince anyone to give consent to this fairly invasive tracking procedure. You might be able to incentivize consent e.g. with small discounts on a web shop, but the incentive must remain small enough that there really is a free choice between giving or declining consent. The EDPB has issued guidelines that are relevant to your scenario. These guidelines are not law, but are well-reasoned official interpretations that are frequently cited by courts. Guidelines 05/2020 on consent Guidelines 3/2019 on processing of personal data through video devices Practically speaking, I doubt you will find eye tracking to be useful. First, you can likely achieve your purposes through less invasive means. Recall that the GDPR only allows you to process the minimum data necessary to achieve a purpose. Second, eye tracking is difficult for technical reasons. Bad lighting and weird angles make it difficult to obtain a useful feed. Cameras might be in different positions relative to the browser window, so that the eye tracking would have to be calibrated before acquiring data. Eye tracking typically involves processing the video feed on the user's device, but this is computationally expensive that will make the website unusable on lower-end devices, in particular mobile devices. And of course, many PCs don't have a camera in the first place. | This depends on the context – GDPR rarely restricts the use of specific kinds of data (see Art 9) but instead regulates the processing of this data, and the purposes for which it is processed. Personal data is any information relating to an identifiable person (Art 4(1)). So to show that some information is not personal data, you must show either that it doesn't relate to the identifiable person, or that it's not possible to identify the person. Whether a person is identifiable depends on the means of identification that are reasonably likely to be used, taking into account the cost and effort of these means (Recital 26). This recital also mentions that singling out a person is a kind of identification. If you have lots of birthdays so that there are no unique birthdays, or if the birthdays are stored without contextual information that would allow identification, this can indicate that it's not personal data. Some examples to illustrate my views: Scenario 1: you are collecting statistical data in a shopping mall and are collecting birthdays from passer-bys, without any additional information. This information is anonymous and not personal data, since you have no reasonable means to identify the persons. Scenario 2: in an office, there's a publicly visible calendar on the wall with the birthdays of all staff members. However, the calendar doesn't say whose birthday it is. This information is likely personal data, since it's reasonably possible to infer the correct person based on contextual information. At least HR would also have the birthday for all staff members on file, so that the company clearly has the means to identify anyone. (This doesn't mean such a public calendar is illegal, just that there must be a legal basis.) It is more difficult to determine whether information also relates to an identifiable person, i.e. whether this information is about that person. This depends not just on what the information is, but how the information is used. AFAIK there has yet to be EU-wide guidance by the EDBP, but the ICO has listed some hints. I think that a birthday of an identifiable person will almost always relate to that person. |
How do organizations with BYOD policy handle code theft? Some corporations have a Bring Your Own Device (BYOD) policy, and some may allow their employees to take their laptops home for usage. What if an employee takes the code and develops something outside of their employment scope? An organization may be able to file a patent infringement lawsuit if their code is used, but what if a malicious employees steals non patented or patent pending code and sell it to someone else? How do the organizations handle these cases? EDIT: I agree with the copyright answer. I will search it further on the law Stack exchange site as suggested in the answer and the comments. This is different from the other question because there they OP is asking about ways to protect the source code. I am interested in impact of code theft and ways to handle it. | Patents are not that relevant in this case. Software patents are unenforceable in most parts of the world anyway. What matters here is copyright. Every work contract has a clause that everything an employee creates as part of their employment is copyrighted by the company. So using company-owned code to build an own project would be a copyright violation. There are also other legal tools in some jurisdiction which can be used against employees trying to misuse intellectual company property. But that's a topic for Law Stackexchange. Also, this isn't really related to a BYOD policy. Being able to bring your own device to work and then back home might make data theft more convenient, but isn't required. There are many other ways to steal sourcecode, like USB drives or uploading them to the internet. To prevent the first you would have to design your software development offices like a supermax prison facility with meter-high walls (so nobody can throw a device over it) and strip searches on everyone leaving the building. This is neither feasible nor reasonable for anything below matters of national security. To prevent the second, you would have to completely prevent internet access from developer workstations, which would greatly impede the productivity of any software developer. So most companies do not even try to physically prevent employees from stealing sourcecode. They rather rely on the legal safeguards and on maintaining a mutual trust relationship with their employees. It might seem counter-intuitive to some, but when you do not treat your employees like potential criminals they are in fact less likely to betray you. | I'll ignore whether a recipe is actually a good example, but I assume you're asking how a person who owns the exclusive rights to copy a thing (copyright) or to use a thing (patent) can allow multiple other entities to copy or use the thing. This is possible by granting each a non-exclusive licence. In the case that the piece of knowledge is not protected by any intellectual property regime, the holder of the information could just treat it as a secret. The information holder could enter into contracts to sell that information to various entities, each promising in return not to further disclose that information. This is the case for lots of sports data. | Intentional sabotage of a TSA computer system is almost certainly a serious crime and would also almost surely give rise to civil liability, although you might avoid both if you warned the TSA that the phone was set up to intentionally break their system, in which case it might be confiscated as contraband. If the product had a "feature" unknown to you and that you had no reasonable reason to know of that caused the harm, you would ultimately have no criminal or civil liability, although the manufacturer might be strictly liable to the TSA under a product liability theory, and you would probably be detained as a witness to figure out what happened. If the product had a "feature" that broke the TSA computer that could be de-activated and that you meant to de-active but carelessly failed to, you would have negligence liability to the government and might or might not have criminal liability (I'm not enough of an expert in the relevant statutes to know). You might be liable for a strict liability Federal Communications Commission offense for having a device that is in violation of their regulations. | Assuming that the police have a warrant to seize your cell phone, the scope of what can be seized is specified in the warrant. It is not automatic that seizing a phone entails seizure of some or all online accounts (e.g. automatic backups, collections of passwords in a Google account) and it does not automatically "freeze" or block a person's access to their accounts including phone accounts. It's not that it is impossible to seize an account, it's that it is not automatic: it has to be in the scope of the warrant. Here is a collection of petition templates, asking the court to allow the seizure of various things for various reasons (mostly electronic), including access to bank accounts. If the police suspect that information might be available online after it has been deleted from a phone, they would need to include online accounts in the scope of the petition(s). There is even a template for "give me everything", called "Frankenstein". | No. Only the company owns the copyright, not its shareholders. A company is a separate legal entity with its own capacity to own property. Copyright is property, not infection that can be spread onto whoever is close enough. Pretty much like shareholders can't just share the use of the company's tangible assets, they can't wet their beaks in the copyright. As a shareholder, what you could do is to appoint a director/CEO that will give you license to copy (or even transfer the copyright) — if you have enough shares to fire the current CEO and put yours. The CEO will get into legal trouble with other shareholders/creditors, but you'll still enjoy your right to copy. | This is similar to giving a hammer and needing to state to one is not responsible if the taker uses it to hit their head with. I believe this is the wrong analogy to use here. It would be more like giving somebody a hammer and saying you are not responsible if the head flies off and injures you. There is a concept in "things" you obtain called "fitness for purpose", so if you download open-source software like a registry cleaner, and it deletes your entire registry, the "WTFPL" doesn't absolve the authors of liability. Explicitly denying any kind of "fitness for purpose" or warranty helps shield the author from legal claims (even if they are meritless) because it kills it out of the gate. It's possible that the WTFPL license granter/author could still be sued and have to defend themselves in court because it isn't explicitly stated that there is no warranty or fitness for purpose. Open source does not mean that it's "use at your own risk", which is why there are so many types of licenses and disclaimers. From comments: Thank you for this very clear answer. Does the fact that someone willingly retrieves free code with no control of the provider changes anything? (vs a software vendor which provides code suitable for A and B, in exchange for money) I think closer to your hammer analogy where I would sue the producer of hammer XXX, a hammer I found on the street or which was given to me without involvement of vendor XXX. No, this doesn't change anything. The software vendor here is the person who writes the code, even if they don't charge for it. They are the ones who license the software and they are the ones who take some level of responsibility for it. In this case, the software author is the "hammer producer" that you would sue... If you buy "Registry Cleaner XL" from Best Buy and it bricks your computer, you don't sue Best Buy, you sue the person who authored the software. In pretty much every case, the author is the responsible party, not the vendor, and it is the author who licenses it, not the vendor (the vendor just acts as an intermediary). | It is illegal to make copies of copyrighted materials without license. In the case of software, obviously it will be illegal to make copies by copying and installing the software without a license, but we are not talking about that. If I have a legitimate license of say Photoshop, and I start the application, parts or all of the code will be loaded into the RAM of my computer, which is a copy. According to copyright law, it is legal for me to make that copy. You are allowed to copy legitimately owned software into RAM to execute it. If your copy of Photoshop is illegal, and you start the application, the copy that is made into RAM is again copyright infringement. Having read the software license for the software that you get when you buy a Mac, it seems that if you steal my computer and just start the operating system, you are committing copyright infringement, and it seems that if you buy such a stolen computer and just start the operating system, you are committing copyright infringement as well, because the license that I received when I purchased the computer covers anyone using it with my permission, and covers anyone who legally buys the computer from me, but doesn't cover a thief. Now does this affect the work that you did? No, you have the full copyright on your work. Copyright law doesn't require that your tools are all used legitimately. | You would have to look at your contract with the company or the company's rules. Some companies have clauses that say they own things you develop while working for them and some don't. Without knowing your specific company's policy, it is impossible to say. |
What is a Kangaroo Court? What is a Kangaroo Court? A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as "a mock court in which the principles of law and justice are disregarded or perverted". The term may also apply to a court held by a legitimate judicial authority who intentionally disregards the court's legal or ethical obligations. A kangaroo court is often held to give the appearance of a fair and just trial, even though the verdict has in reality already been decided before the trial has begun. Such courts are typically run by authoritarian governments, and can also be found in rural areas where legitimate law enforcement may be limited. I took that quote from Wikipedia that helps to define the term but characteristics help identify a Kangaroo court as opposed to a legitimate court system? By this definition there are quite a few courts that I am sure do not belong as the categorization of this as such but based on this definition would seem to apply. Most notably the Supreme Court of the United states at times has made rulings that were completely contrary to the existing laws and the constitution. Similarly the US Federal Circuits have also had several rulings that even though superior courts agreed the court stepped outside the law in its decision have chosen not to overturn the decisions or have written decisions that have become defacto laws. Why would these not be considered Kangaroo courts. What is it that I am missing from this definition that would make the courts of Saddam Hussien or Edi Amine Kangaroo courts? | The answer is in the quote. When people talk about a kangaroo court, what they mean is that the legal process is for show; the actual decision is made on non-legal principles. A kangaroo court may look just like any other court; the only exception might be that before the trial, the government meets with the judge or the jury and informs them that their verdict will be "guilty." Of course, some kangaroo courts tip the scales in more obvious ways, but all that's necessary is that it not follow the law in a way that prejudices the defendant. | The legal term for what you're talking about is "prejudice." When a lawsuit (or a claim, or a party) is dismissed by a court "with prejudice," that means that the same cause of action cannot be brought again by the same plaintiff against the same defendant. It is also possible to dismiss a claim "without prejudice," meaning the same claim can be brought at a later date. When, exactly, a civil case can be dismissed with or without prejudice will depend on the jurisdiction where you're litigating. However, the general rule is that once the suit is underway, most dismissals are with prejudice. For example, in U.S. federal court, the plaintiff has the right to dismiss the suit without prejudice only up until the defendant responds to the complaint (see Fed. R. Civ. P. 41(a)(1)), unless all of the defendants agree to be sued again later (this does happen, sometimes, but normally only as part of a broader settlement). So, yes; you can lose your substantive legal rights if you refuse to follow the court's procedural rules. Most courts, especially in federal court, where there is a fairly permissive standard of pleading, will give plenty of leeway to pro se litigants, but in the end they have to follow the rules. In my own experience, when pro se claims are dismissed, it's generally on the merits. If cases are dismissed for procedural reasons, it's almost always a case of a pro se litigant refusing to listen to the judge's clear instructions for what they need to do (or, more often, not do). | It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question. | Contempt This is not contempt of court, which happens only in the physical presence of a judge, or in relation to a court order known by the person to be held in contempt to exist and related to that person in some way. Potential Criminal Liability Criminal liability is an offense which can only be brought by the prosecutor's office in Arizona, for which the punishment is incarceration and/or a fine payable to the state and/or restitution for narrowly defined strictly economic losses to victims of a crime and court costs. It appears from your reference to A.R.S. that you are referring to the Arizona Revised Statutes, although it could conceivably be another state whose name starts with an "A". It would generally only be perjury if it was made "under penalty of perjury" or under an oath, or following an affirmation to tell the truth administered by someone who can administer oaths. The best way to determine if this was perjury would be to look at the fine print near the signature line of any form completed by them. The perjury statute in Arizona states: 13-2702. Perjury; classification A. A person commits perjury by making either: A false sworn statement in regard to a material issue, believing it to be false. A false unsworn declaration, certificate, verification or statement in regard to a material issue that the person subscribes as true under penalty of perjury, believing it to be false. B. Perjury is a class 4 felony. It might be a fraudulent scheme: 13-2311. Fraudulent schemes and practices; wilful concealment; classification A. Notwithstanding any provision of the law to the contrary, in any matter related to the business conducted by any department or agency of this state or any political subdivision thereof, any person who, pursuant to a scheme or artifice to defraud or deceive, knowingly falsifies, conceals or covers up a material fact by any trick, scheme or device or makes or uses any false writing or document knowing such writing or document contains any false, fictitious or fraudulent statement or entry is guilty of a class 5 felony. B. For the purposes of this section, "agency" includes a public agency as defined by section 38-502, paragraph 6. A different kind of fraudulent scheme is less likely to apply: 13-2310. Fraudulent schemes and artifices; classification; definition A. Any person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony. B. Reliance on the part of any person shall not be a necessary element of the offense described in subsection A of this section. C. A person who is convicted of a violation of this section that involved a benefit with a value of one hundred thousand dollars or more or the manufacture, sale or marketing of opioids is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted. D. This state shall apply the aggregation prescribed by section 13-1801, subsection B to violations of this section in determining the applicable punishment. E. For the purposes of this section, "scheme or artifice to defraud" includes a scheme or artifice to deprive a person of the intangible right of honest services. It is a crime in almost every U.S. state to provide a false report to a government medical examiner, although most likely a misdemeanor rather than a more serious felony offense like perjury, and the exact name of that offense would vary quite a bit. One possible offense in Arizona might be "Tampering With a Public Record" 13-2407. Tampering with a public record; classification A. A person commits tampering with a public record if, with the intent to defraud or deceive, such person knowingly: Makes or completes a written instrument, knowing that it has been falsely made, which purports to be a public record or true copy thereof or alters or makes a false entry in a written instrument which is a public record or a true copy of a public record; or Presents or uses a written instrument which is or purports to be a public record or a copy of such public record, knowing that it has been falsely made, completed or altered or that a false entry has been made, with intent that it be taken as genuine; or Records, registers or files or offers for recordation, registration or filing in a governmental office or agency a written statement which has been falsely made, completed or altered or in which a false entry has been made or which contains a false statement or false information; or Destroys, mutilates, conceals, removes or otherwise impairs the availability of any public record; or Refuses to deliver a public record in such person's possession upon proper request of a public servant entitled to receive such record for examination or other purposes. B. In this section "public record" means all official books, papers, written instruments or records created, issued, received or kept by any governmental office or agency or required by law to be kept by others for the information of the government. C. Tampering with a public record is a class 6 felony. It might also constitute making a false unsworn statement: 13-2704. Unsworn falsification; classification A. A person commits unsworn falsification by knowingly: Making any statement that he believes to be false, in regard to a material issue, to a public servant in connection with an application for any benefit, privilege or license. Making any statement that he believes to be false in regard to a material issue to a public servant in connection with any official proceeding as defined in section 13-2801. B. Unsworn falsification pursuant to paragraph 1, subsection A, is a class 2 misdemeanor. Unsworn falsification pursuant to subsection A, paragraph 2 is a class 1 misdemeanor. An official proceeding is defined as: 13-2801. Definitions In this chapter, unless the context otherwise requires: "Juror" means any person who is a member of any impaneled jury or grand jury, and includes any person who has been drawn or summoned to attend as a prospective juror. "Official proceeding" means a proceeding heard before any legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath. "Physical evidence" means any article, object, document, record or other thing of physical substance. "Testimony" means oral or written statements, documents or any other material that may be offered by a witness in an official proceeding. "Threat" means a threat proscribed by section 13-1804, subsection A. Medical examiners are capable of conducting official proceedings (called "inquests"), but it isn't clear if the report made to the medical examiner was testimony in an official proceeding or not. Whether or not there was any criminal liability for making a false report to the funeral director would depend mostly upon whether funeral directors have some official duties to the state to report information to one or more government offices, in which case, this might be a misdemeanor offense of providing a false report. But, if the funeral director is just a privately owned business and the information is provided to the funeral director solely to allow the funeral director to provide a private sector service, it would probably not be a crime to lie to the funeral director. While it isn't entirely inconceivable that their conduct could constitute desecration of a corpse under a broadly worded statute (usually a misdemeanor or very minor felony), it is much more likely that it would not. Arizona does not have an offense of this type. Civil Liability Civil liability is something that one person can sue another person for with the end result being that the defendants is ordered to pay a prevailing plaintiff money damages in an amount determined by a judge or jury. Collection of these money damages is at the expense of the person suing through means like garnishments, liens on real property, and seizures of personal property. Awards for unintentional wrongs can usually be discharged in bankruptcy. Awards for intentional wrongs usually cannot be discharged in bankruptcy if a timely objection to discharge is made in a bankruptcy court. They concealed he committed suicide, had him cremated and a private service for him and would not allow any publication[.] These acts, that far, would probably not be actionable or criminal, because the motive to protect his reputation by not disclosing the suicide would ordinarily be deemed an acceptable one. So would not informing you directly. But, hiding this information from the children and excluding them from having a say in the disposition of their father's body through fraud would be problematic and would be the acts that might give rise to civil liability. The Funeral Director/Funeral Home In the absence of something that really should have tipped off the funeral director, the funeral director normally wouldn't have civil liability to anyone for anything that happened before the funeral director had any reason to know what happened, but might have civil liability to the children for negligence if the funeral director mishandled the situation after discovering it (probably a close call legally). Damages would probably be limited to emotional distress damages and nominal damages. Even a colorable claim against the funeral director expressed in a demand letter would probably produce a swift settlement if the demand was not outrageous in exchange for confidentiality regarding the situation and non-disparagement of the funeral home, because this kind of thing could be devastating to the reputation of the funeral home. This is not a claim for which the children could have their attorneys' fees awarded to them. None of the misrepresentations to the funeral director harmed the funeral director, so their acts wouldn't be simple fraud (either criminal or civil). The Late Husband's Other Relatives Their civil liability for a misrepresentation to the medical examiner would be pretty much limited to economic harm to the children arising from that misrepresentation, possibly including the value of time and legal fees incurred to correct the false information provided. And, even then, it might be hard to find a suitable cause of action to enforce that liability. It would not be simple fraud because the misrepresentation wasn't made directly to them. The strongest civil claim of the children would probably be to have a civil claim against them for "outrageous conduct"/"intentional infliction of emotional distress" for which emotional distress damages and punitive damages could be awarded. These are not claims for which the children could have their attorneys' fees awarded to them. Conclusion It is not possible to narrow down this laundry list of possibilities without much more precise and detailed information. But, if that information was provided in this forum, it would probably push this question into one asking for specific legal advice which is off topic. So, you need to evaluate the detailed facts in light of this information and come to your own conclusion over whether further action in the form of making a report to the police or a district attorney, or contacting a private lawyer makes sense in this case. | All precedents are made in court judgements Courts exist in a hierarchy which means there are two kinds of precedent: binding and persuasive. A binding precedent is one set in the same hierarchy by a higher level court. A persuasive precedent is one set at the same or lower level in the hierarchy or in a completely different hierarchy. For example, a precedent set in the Supreme Court of New South Wales sitting as the Court of Appeal is binding on the Supreme Court of NSW in general session, the District Court and the Magistrates Court (lower courts), persuasive on the Supreme Court of New South Wales sitting as the Court of Appeal and all courts in Victoria and Queensland (different hierarchies) and is not a precedent for the High Court of Australia (higher up). In general, while a lower level court can, in theory, set a precedent, such cases are rarely reported so nobody knows about them and, in any event, they would only have limited applicability. Therefore most precedents come from higher level courts which means, they are usually set in appeals rather than trials of first instance. In addition it is only the ratio decidendi that sets binding precedent. Anything in the judgement that is obiter dicta is merely persuasive. Bear in mind that the overwhelming majority of cases do not create precedent - they follow it. Or, if they don’t follow it, the judge was wrong. It is also a legal fiction (i.e. something pretending to be true that everyone knows isn’t) that judges do not create law by precedent - they merely find the law that was already there. Since the role of judges in common law jurisdictions is to only decide cases, they cannot and do not offer opinions on what the law is outside of that. This is a long-standing tradition in English law and the first Chief Justice of the US Supreme Court confirmed that the Constitution did not change this. Therefore, the only way to test the validity of a new law is to have a trial that uses it. That said, governments have lawyers review legislation and regulations before they are promulgated to check for things like legality and workability but these are only professional opinions and are not binding. Furthermore, sometimes legislation is drafted quickly for political reasons. One hopes that legislatures take proper care when drafting legislation that it is legal, is workable and actually makes sense: one is often disappointed in that hope. | The Constitution does not state your opinion of SCOTUS's job, instead it just says that there shall be one supreme court with judicial power, and it says what kind of cases are within the jurisdiction of that court. Thus The Constitution does not mandate whether rulings will adhere to the doctrine of stare decisis, will be based only on a narrowly literal interpretation of The Constitution, or will be based on a general sense of justice. The Constitution also does not say anything about the rules of that Supreme Court, therefore the court is free to set its own rules, and to allow or to not allow amicus briefs. Many points raised in amicus briefs fall on deaf ears, sometimes because they are based on non-shared legal assumptions. You can read a very brief summary of the over 140 amicus briefs in this case here. If you read various SCOTUS opinions over the past 225+ years, you will see that the court does make reference to fact, not just statements of the law and constitution. This brings it well within the scope of "potentially relevant" to determine some fact. The lawyers get to argue how facts relate to legal conclusions, but the basic fodder for any legal decision is some set of facts. The specific briefs you mentioned are: Pro-Life Obstetricians and College of Obstetricians. The latter's argument is self-summarized as Amici’s position is that laws regulating abortion should be evidence-based, supported by a valid medical or scientific justification, and designed to improve—not harm—women’s health Pro-Life Obsetricians' position is self-summarized as support for a law that rationally furthers Mississippi’s interest in protecting women’s health from risks posed by later- term abortions, which are now well established in the literature These statements refer to interpretive doctrines previously established by SCOTUS, but not literally expressed in The Constitution. In US v. Carolene Products Company, 304 U.S. 144 introduced concepts of constitutionality (not literally stated in The Constitution) whereby cases could be reviewed either with "strict scrutiny" for protection of Constitutional rights or else discernment of a "rational interest" in government taking a certain action. Either of these kinds of judicial review require a comparison of law to "the facts". Hence "the facts" can be legally relevant. | This determination is largely a facts and circumstances specific test to be evaluated with little additional legal guidance by the judge or jury faced with evaluating the question (usually a judge in the way that the issue usually presents itself). Like many fairly vague legal standards, it leaves open the possibility that there will be inconsistent rulings on this question in circumstances presenting similar facts. | So my understanding is that the phrase "common law" can refer to either the concept of laws established by court precedent or it can refer to a specific body of laws that have been established that way. Yes. Should I just be inferring that from context? Yes. Is there a single body of "common law"? No. Are there distinct bodies of "U.K. common law" and "U.S. common law" for example? Yes, furthermore there is different common law in England/Wales, Northern Ireland & Scotland and each state of the US. Further, Scotland and Louisiana are not straightforward common law jurisdictions but rather a blend of common and civil law. If so, how are they related? They are related in that they all: have a common source, middle English common law evolve in the same way - judges interpreting the current common law and the statutes of the legislature follow an appeals system through higher levels of courts. They do not all go in the same direction though. Do judges in common law countries cite court decisions in other common law countries? Sometimes; it depends on the "distance" of the other jurisdiction. A judge in New South Wales is quite likely to consider how judges in Queensland and Victoria have considered similar laws, less likely to look at the UK and Canada and extremely unlikely to look at the USA. This has a lot to do with how far back it is since the "last common ancestor" of the law; the longer the corpus of law has been separated the more likely that the principles have diverged, partly this is cultural drift but mostly this is differences in statutes that actively modify the common law. Usually, jurisdictions within the same country are quite close to each other; partly due to common culture but often because of a genuine effort to "harmonise" laws across borders. There are occasions, however, where legislatures "steal" laws from other jurisdictions, in which case they often look to each other for early development of common law on those laws. For example, the Alberta (Canada) Builder's Lien Act 2000 and the NSW (Australia) Building and Construction Industry Security of Payment Act 1999 both address the same "wrong" and both had a common and parallel genesis pre-enactment; early cases in each jurisdiction were watched by the other. |
Waiver of liability: can I be required to waive an institution from liability from its negligence? A certain University in New Jersey is holding a conference and organising an afternoon of excursions and leisure activities. It requires that participants sign a waiver containing the clause (emphasis mine): In exchange for {UNIVERSITY}’s grant of permission for Participant to participate as a registered Conference Participant in an excursion or activity, for himself or herself, his or her parents, guardians, heirs, assigns, agents, and all those in privity with Participant, do hereby release, waive, discharge, and covenant not to sue {UNIVERSITY}, its trustees, officers, employees, and agents from liability from any and all claims, including negligence, personal injury, accidents, assaults, kidnappings, or illnesses (including death) and property or economic loss related to or arising from, but not limited to, participation in the Seminar[sic]. and also: I have read this waiver of liability and assumption of risk agreement, fully understand its terms, and understand that I am giving up substantial rights, including releasing the University from all liability related to or arising out of the Conference excursion or activity. I acknowledge that I was provided this document with sufficient time to consider its provisions, ask questions and to seek review of it counsel[sic]. I am signing the agreement fully and voluntarily, and intend by my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law. It isn't realistic for me to seek professional legal advice on a waiver for an afternoon's excursion. To what extent does NJ law allow an institution to demand a waiver from the negligence of itself or its agents? | The University is probably entitled to put a term like this in its contract. In general, one can waive in advance, liability for negligence, but not gross negligence, willful and wanton misconduct, reckless conduct, or intentional conduct, from the person seeking the waiver. The New Jersey Supreme Court upheld the validity of these clauses in the case of Gina Stelluti v. Casapenn Enterprises LLC (August 5, 2010), which involved a negligence waiver in a contract with a private gym. Also, since this is conditions on an afternoon of fun activities, rather than something mandatory or necessary, this waiver does not appear to be conditioned on giving up a substantial thing to which you are otherwise entitled. If the waiver were conditions upon something which you had an unconditional right to (e.g. a public high school education), it might not be valid because it would not be supported by valid consideration. In contrast, here, you get the right to participate in something fun, which you did not have an unconditional right to have, in exchange for the liability waiver. | There is, in general, a rule that all matters connected with a single transaction or event should be included in a single legal case. Different jurisdictions apply this diffidently, and I haven't yet researched this in Maryland specifically. Also, if you agree to pay a part of what the landlord claims, you will quite likely be asked to sign a settlement agreement as part of the transaction. This is likely to include a release of all claims connected with your tenancy at the apartment. If it does, and you sign the agreement, you will be giving up any claim you might otherwise have because of the failure to properly notify you. You may want to consult a lawyer about this. A one-time consultation might not be very expensive. If you sued the landlord, you could do so in small claims court, where legal costs are significantly lower than in other courts. | You could bring a motion to compel for failing to respond substantively to a motion to admit which is objected to, just as you could for an interrogatory. The process is the same. Normally, a request to admit would not be deemed admitted if a substantive objection was filed by the deadline, even if there was no express admission or denial. Only if the objection were completely and utterly meritless would a judge be likely to order that the request to admit would be deemed admitted in that case since the response was a de facto non-answer and the objection was a mere sham. @Iñaki Viggers states in his answer: the purpose of a request for admissions is [to attempt] to stipulate --rather than to discover-- the facts on which plaintiff and defendant agree. This is not really true. A request to admit is a discovery tool to prevent you from having to prove up what should be non-controversial facts that might nonetheless take time or documentation to prove at trial and to gather evidence for in advance of trial. The questions in a request to admit are typically ones that the other side would not willingly stipulate to (for example, because they'd like to be able to offer testimony to explain a seemingly unfavorable fact) but may not be able to deny. If a party denies a request to admit and then offers nothing to support the denial in discovery practice or at trial, that party risks court sanctions for the groundless denial. Good litigation practice is also always to include some requests to admit that are effectively outcome determinative to give the opposing party a chance to screw up and essentially default the case by not responding on time. | Because the law of negligence has developed to include a duty of care between physicians and patients and the standard of care encompasses the things you describe. The common law conceives of the doctor and patient in such a close relationship of neighbor-ness that it makes sense to impose such a duty. The harm that flows from breach of that duty is often reasonably foreseeable. Another distinction is that you come to a physician with an illness and expect care and they purport to deliver it. Their care and advice is often not a product/service that you might have the option of not buying. There is no competing legal duty that pulls the physician in any other direction than to meet the standard of care. There is no corresponding duty of care between an instructor and student to instruct any particular syllabus content. It would be a novel addition to the common law if this were to be recongized. There is no standard of care dictating the content of the syllabus. Any obligation to deliver a particular syllabus would be placed on the professor by the university (perhaps further dicated by professional accrediting bodies). I do not foresee the common law developing to include such a duty of care between professor and student. The value of academic freedom weighs against the law imposing a strict duty on syllabus content and the kind of harm that might flow from presenting out-of-date information is vague and not often reasonably foreseeable. Such a duty could give rise to a spectre of of indeterminate liability. And it isn't clear that the interest in presenting the latest and current theories always outweighs the interest in presenting a historical perspective. These are all reasons why I highly doubt the common law would ever evolve to recognize the duty you're proposing. | I like easy questions: you can’t. You can limit but not eliminate liability with people you have a contract with. You can’t limit liability with third parties. You need to consult a lawyer and buy insurance. | If I may paraphrase the scenario: The customer has a contract with the insurer The customer is contemplating undergoing a certain procedure and is unsure if it is covered under the contract The customer calls the insurer to ask this specific question The insurer says "yes" The customer undergoes the procedure The insurer refuses to pay on the ground that it is not covered under the contract. Let's put aside issues of evidence and what can be proved and assume these facts are not in dispute. There is no question that the contract has been renegotiated; it hasn't. This avoids the necessity of considering if the insurer's employee has the authority to do this or it the customer can rely that they do even if they don't. There are two possibilities: The procedure is covered and the insurer must pay under contract The procedure isn't covered and the insurer must pay under the tort of negligent misstatement. The insurer is vicariously liable for the actions of its employee. The insurer owes a duty of care to a customer who asks such a question to answer it correctly. It is foreseeable that the customer would act on the insurer's advice and incur costs that they may have avoided if the correct advice had been given. Nothing is ever certain in the law but this is as close as you can get. | No, you are not obligated to provide the requested information. You're out of trial court and into the court of appeals, where the civil discovery rules have basically no effect. If the case gets kicked back to the trial court, you would likely be required to respond truthfully. To cover your bases and look responsible, the most proper thing to do would probably be to respond to the discovery requests, but answer with nothing but an objection to the requests on the basis that the Rules of Civil Procedure do not apply after the case has been dismissed. At that point, the burden is on the other party to make a motion to compel, which he probably won't do. And if he does, I'd expect the court to deny it summarily based on the dismissal. | Probably Not In general, the law gives a school significant discretion on how to run its courses and grade its exams. And it is unlikely that getting into a lawsuit over a grade will be a good way to proceed. You could explain more fully to your instructor why you feel unfairly treated, and if not satisfied by the response, go to the department chair or other higher authority as the structure of the school may provide. I would suppose that the instructor had permission to require the 3rd party software, or that school policy gives an instructor that option. It might be worth confirming that, however. For future tests you might be able to shutdown or suspend all popups to avoid the problem happening again. A "game mode" sometimes will do that. |
Why do Acts of the UK Parliament still start with a lengthy bombastic sentence? Source: Rebecca Gowers. Plain Words (2014 ed). p. 76 Top. Can't the hackneyed sentence (in bold, below) be shortened? Why not something less pompous? The first affects only the official. It is tempting to cling too long to outworn words and phrases. The British Constitution, as everyone knows, has been shaped by retaining old forms and putting them to new uses. Among the old forms that we are reluctant to abandon are those found in State documents. Every Bill begins with the words: 'Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows...'. It ends its career as a Bill and becomes an Act when the Clerk of the Parliaments is authorised by the Queen to declare 'La Reine le veult'. That is all very well, because no one ever reads these traditional phrases; they are no longer intended to convey thought from one brain to another. And none of us would much like the official to say, 'That's OK by Her Majesty'. But officials, living in this atmosphere, and properly proud of the ancient traditions of their service, sometimes allow their own style of writing to be affected by it—adverting and acquainting and causing to be informed of same. There may even be produced in the minds of some officials the feeling that a common word lacks the dignity that they are bound to maintain. | From Wikipedia: An enacting clause, or enacting formula, is a short phrase that introduces the main provisions of a law enacted by a legislature. It usually declares the source from which the law claims to derive its authority. In many countries, an enacting formula is not considered necessary and is simply omitted. The simplest enacting clauses merely cite the legislature by which the law has been adopted; for example the enacting clause used in Australia since 1990 is "The Parliament of Australia enacts". Alternatively an enacting clause may invoke the ultimate sovereign. For example, California, based on the principle of popular sovereignty, has the following enacting clause: "The People of the State of California do enact as follows." For example, Acts of the US Congress begin with words not unlike those of Acts of Parliament: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled UK statutory instruments go further, stating not only who made the order, but also which legislation provided the power to make this order. To take a recent example at random: The Secretary of State for Education makes the following Order in exercise of the powers conferred by section 129(1) of the Education Reform Act 1988 From these, one might surmise that the purpose of these sentences is to convince the reader that the person or body issuing the legislation has the power to do so. For most statutory instruments, the power to make them comes from Acts of Parliament, and so the specific section(s) of the those Acts are stated. For Acts of Parliament themselves, it is taken as read that the Queen, Lords and Commons acting together (or more formally, the Queen-in-Parliament) have the power to legislate, so it is sufficient to merely state that is they who have done so - and similarly for the US Congress and other legislatures. In response to edits in the question: Can't the hackneyed sentence ... be shortened? Yes it could, as evidenced by the fact that not all countries use an enacting clause at all, and some of those that do have shorter, simpler ones. Why not something less pompous? Why should they? One shouldn't underestimate the role of tradition in the UK constitution - indeed it's held together in part by unwritten conventions whose long use has solidified them into something like law. As mentioned in the question, bills don't become acts until they've been assented to by a hereditary monarch, which is indicated by a clerk uttering a statement in Norman French. Compared to that, what's wrong with acts starting with a grandiose statement? Incidentally, if you thank that's pompous, then you'll enjoy the enacting clause which appears at the top of UK Finance Acts: Most Gracious Sovereign WE, Your Majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom in Parliament assembled, towards raising the necessary supplies to defray Your Majesty’s public expenses, and making an addition to the public revenue, have freely and voluntarily resolved to give and to grant unto Your Majesty the several duties hereinafter mentioned; and do therefore most humbly beseech Your Majesty that it may be enacted, and be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— Finally, context is everything. I would strongly recommend watching a recording of the State Opening of Parliament. In addition to all the pomp and circumstance, the main event where is the Queen - wearing a priceless bejewelled crown, sitting on a golden throne under a golden canopy, watched by Peers of the Realm dressed in ermine robes - reads a speech prepared by the government, in the chamber of the House of Lords, with its golden ceiling, intricate carvings, statues and stained-glass windows. Compared to that, a few extra words at the start of an Act seems kind of modest, don't you think? | The comments have basically covered this, but: It's a slightly weird parallel structure ("who shall not be at least 25, and been a citizen for 7 years, and who shall not be a resident"). The Constitution is not written in fluid 21st-century English. But the obviously correct way to parse the sentence is that no one can be a representative who isn't a 25-year-old or older who's been a citizen for at least 7 years; furthermore, no one can be a representative who wasn't a resident of the state they represent when they were elected. With some parts of the Constitution (like the Second Amendment), the drafting results in actual disputes about the intended meaning. With other parts (like here), only one reading makes any sense. It's the same with the requirements to be President. The Constitution says "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President," which could be read as "you're not eligible unless, when the Constitution was adopted, you were either a citizen of the US or a natural-born citizen." But that's a silly reading, so "at the time of the Adoption" is read as only applying to "a Citizen of the United States:" natural-born citizens are eligible period, and people who were born before the US was a thing but were citizens by the time the Constitution was adopted were grandfathered in. | The Law Commission already does this, including: repealing legislation that no longer serves any practical purpose creating consolidation bills, which merge multiple acts (or parts of act) into a single one. Because Law Commission bills do not create or change the law, they typically have an expedited passage through Parliament. | In both common law countries and in civil law countries, words are given their plain meaning for legal purposes, unless there is an express definition to the contrary is provided. And, in Europe, the plain meaning is unambiguous and is what the plain language that you quote says. (The meaning would be ambiguous in the Korean language, or regarding a horse, in contrast.) While there are times when there are age groupings that aren't the plain meaning (e.g. eligibility for youth sports league divisions, school enrollment), it isn't usually stated so plainly. For example, a sports team might have a U10 division which has a defined meaning, but is unlikely to say "for children under age 10" when it really means "for children under age 10 as of the first day of the season". | It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted. | First, if by "they say" you literally mean they use spoken words, and not a printed advertisement, or an advertisement on the internet that you can print out, then you may have a hard time proving what they said. If you can prove what they said that would be very helpful, a seller may be in trouble if their contract is not the same as what they promised. If things go to court, then a judge will first figure out what the contract is (let's say both sides have a copy of the contract - but the words are different, then a jury decides). That's not what we have here. Then the judge decides what the words in the contract mean. If the words are ambiguous, then the judge interprets the words in favour of the person who didn't write the contract. | In broad terms, in a three pillar democracy, the job of the legislature is to make the law, the job of the executive is to enforce the law and the job of the courts is to interpret the law. The courts may find that a piece of legislation is invalid, either in whole or in part for any number of reasons. The legislature can respond by: Repealing the legislation Changing the legislation to remove the invalidity Doing nothing. Your first question is why would they go for option 3? I can, off the cuff, think of several reasons: Time pressures, a legislature can only deal with so many pieces of legislation per year - it may not be a worthwhile investment of time to "tidy up" the statute books. Possibility of appeal, the precedent may be open to appeal or having an alternative ruling in a higher court. Precedent, unless and until the decision reaches the Supreme Court or equivalent then the decision is only binding on lower courts. Possibility of change to superordinate legislation, in the particular circumstance you cite, the local authority may leave the law on the books in the hope or expectation that the state law may be repealed or overturned - the local law would then be valid. For your second question, the judge is supposed to know. That said, judges make mistakes so a wise plaintiff/defendant will draw the judge's attention to the current state of the law. It would certainly look bad for them on appeal if it emerged that they did know and allowed the judge to make a mistake. Firstly, they are officers of the court and secondly, justice is blind but justices may remember you made them look like a fool! For your third question ... maybe. However, such a claim would be limited to what you actually lost through your lawyer's malpractice. It can't be the case because you couldn't win it anyway - the law was against you! You may be able to argue that the lawyer should be responsible for some of the costs or losses that arose from you failing to settle earlier. Good luck with that. | (I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.) Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will. So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law. Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9. There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963. (I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.) |
Is brute forcing the password of an encrypted file legal? A person I know sent me an encrypted .zip archive and I do not know what data is inside. Is it legal to break the password and open the archive, for example, by using a brute force algorithm? The algorithm may need a long time, but it will reveal the password that was used for the encryption. The file was sent directly to me and I know that I am meant to be the recipient. I assume that the file was protected by accident. Would the answer be different if I am not the intended recipient and someone sent me the file by accident? We both live in Germany. | If you aren’t the intended recipient of the password-protected file: StGB § 202a makes it illegal to access this file StGB § 202c makes it illegal to obtain (e.g., by brute forcing) the password for this file, if you intend to access the file that way (in the sense of § 202a) (this is the so-called hacker paragraph) If you are the intended recipient, this law doesn’t seem to apply, and it shouldn’t be illegal to brute-force the password. | It's not illegal to ask. Whether they can give it to you, and under what circumstances, is another, much more complicated matter. For instance, if the database contains health information covered by HIPAA in the United States, or personal information covered by laws like GDPR or CCPA, the customer's ability to share the database may be restricted, either requiring additional confidentiality obligations/use restrictions, or preventing sharing entirely. | It would be illegal because only you are allowed to view the comic you purchased. Creating a copy of your comic (e.g photcopying, scanning etc) is not allowed, and showing others a copy of your comic is also not allowed | It's possibe to cover auto-starting apps and cookies under the definition. I'm not convinced and could argue against that but I don't think it matters. The tiny extract you linked isn't a law. It is a definition. It does not say "these things are illegal". For that, we have to zoom out a little. Section 43 includes the offense in question (emphasis mine): If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network... introduces or causes to be introduced any computer contaminant or computer virus... So back to the question. Could Steam be considered a virus? Maybe. Is it illegal? No. On the other hand, if I were to gain access to your computer and download Steam, yes that could be an example of breaking that law. | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | I realize it has been eight months, but I believe I can offer an opinion. Given the nature of the question, please keep in mind that I am not a lawyer and my opinion is no substitute for professional legal counsel. [Preparing this post has been an educational experience and my opinion should in no way be interpreted as expert opinion] Assuming you have not infringed on any patents, the relevant legal challenges Valve could try include breach of contract, copyright infringement, and trade dress infringement. Breach of Contract The potential breach of contract occurs because the Steam client setup application requires you to accept a contract of adhesion (The License) before the software can be installed. I could not find a copy of The License online in plain text (this is separate from the Steam Subscriber Agreement, which you also agree to by accepting The License), but you can read it any time by running the Steam client setup application which is available at [redacted due to low rep - the Steam website]. These so-called "shrink wrap licenses" are of questionable legal value, depending on how the licensee assents to the contract. People often bring up Specht v. Netscape Communications Corp. In that case, the only reference to a license was on the download webpage, and it was only visible if the user scrolled down past the download button - Netscape argued unsuccessfully that clicking the download button indicated assent to the terms of the license. The Steam client setup application has a prominent dialogue box showing the terms of The License and requiring your explicit assent before installation can continue. A more relevant case may be ProCD, Inc. v. Zeidenberg, where the Seventh Circuit ruled that a license agreement was valid where the licensee had to click on a dialogue box assenting acceptance to the agreement. In short, you may be required to defend yourself under the terms of The License. If the licenses are thrown out as unenforceable, the prosecution would probably move towards copyright infringement. Section 1 Paragraph C of The License states (emphasis added): Except as expressly set forth elsewhere in this License Agreement, you may not, in whole or in part: copy, photocopy, reproduce, translate, reverse engineer (with the exception of specific circumstances where such act is permitted by law), derive source code from, modify, disassemble, decompile, or create derivative works based on the Program. Now you assert that there has been no reverse engineering, that you made yours "completely from scratch using completely different styling and images (even different website inside the client that is mine)". You may be challenged on these claims in court, for example comparison of source codes could rule out reverse engineering. I will touch on derivative work status later. Note that under Section 5, the provisions of Section 1 Paragraph C do not apply after you have uninstalled the Steam client software. This means in the case that you [can prove you had] uninstalled the Steam client software before making your own client, you would have a defense to breach of contract under Section 1 Paragraph C. However... The License also includes the terms of the "Steam Agreement", viewable online at http://www.steampowered.com/agreement. The Steam Agreement takes effect when you register for your Steam account. Section 2 Paragraph G of the Steam Agreement echoes the above referenced Section 1 Paragraph C of The License, and even survives termination of the Steam Agreement (your steam account being cancelled). Now assuming you can provide defense against reverse engineering, you may need a defense against the charge that your work is a derivative work. Your case may be pretty strong if you can show that your client was indeed written from the ground up - which rules out the possibility of deriving your program code from Steam's code as literary copyrights go. The prosecution could try saying you have copied the audiovisuals of their program, but your program was written "from scratch using completely different styling and images". Eventually prosecution may have to move into trade dress infringement. Copyright Infringement In a case of alleged copyright infringement, the first order of business is to prove there is a copyrighted work to begin with. The work in question is the Steam client by Valve Corporation. Again, I am not an expert but I could not find any copyright registration for the Steam client (http://www.copyright.gov/records/ -> Post-1978 Records -> Search by Name "Valve Corporation"). Copyright registration is required before infringement suits can be filed. Valve can register after infringement occurs but they will be limited to actual damages and profits. Nevertheless Valve does claim copyright over its product. A notice is posted on The License and Steam Agreement, and from the client itself the Help menu contains a command "Legal Info" which opens a webpage containing a copyright notice. Since 1979 it has not been necessary to post a copyright notice, but a notice helps break a defense of innocent infringement. You imply that you copied elements of the Steam client "to give customers a similar feel to what they are used to [the Steam client]". In your specific case innocent infringement may not be a valid defense. It seems you are most concerned about copyright infringement over the menus. An extremely relevant case is Lotus Development Corp. v. Borland International, Inc. In that case the First Circuit held that the menu heirarchy for Lotus 1-2-3 (the progenitor of virtually all menu heirarchies today) was uncopyrightable as a "method of operation" under U.S.C. 17 Section 102(b). We think that "method of operation," as that term is used in [U.S.C. 17 Section] 102(b), refers to the means by which a person operates something, whether it be a car, a food processor, or a computer. Thus a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words. Similarly, if a new method of operation is used rather than described, other people would still be free to employ or describe that method. We hold that the Lotus menu command hierarchy is an uncopyrightable "method of operation." The Lotus menu command hierarchy provides the means by which users control and operate Lotus 1-2-3. If users wish to copy material, for example, they use the "Copy" command. If users wish to print material, they use the "Print" command. Users must use the command terms to tell the computer what to do. Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3's functional capabilities. If specific words are essential to operating something, then they are part of a "method of operation" and, as such, are unprotectable. This is so whether they must be highlighted, typed in, or even spoken, as computer programs no doubt will soon be controlled by spoken words. The Supreme Court affirmed the decision with an even court (Judge Stevens recusing), so no national precedent was set. Nevertheless the ruling has not been overturned - the First Circuit goes into great detail explaining their decision, and I do recommend reading the ruling. We have already discussed derivative works and reverse engineering with contracts, and the same defense would apply under copyright law: source code comparison. Trade Dress Normally things like design and layout are left to patent law. A desperate prosecution, however, may claim that by copying their "look and feel" you infringe on their trade dress. The relevant text is part of U.S.C. 15 Section 1125(a) (emphasis added): (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which- (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. (2) As used in this subsection, the term "any person" includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. (3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. Defense against such a claim would be showing that the elements of Steam's "look and feel" were adapted because of functional reasons - see example rationale in the previously mentioned Lotus v. Borland. Overall, so long as you did write the program from scratch and there are no patent violations, you have in my opinion a strong case. There may be moral questions about unfair competition (why should you be allowed to capitalize off Valve's work put into the Steam client?), to which I would point out that your product does not appear to be in direct competition with the Steam client. Without direct competition or confidence in evidence of IP infringement it is quite unlikely Valve will file suit against you. If you would rather avoid even the possibility of legal action, you could always contact Valve directly and ask for a license. | Copying is illegal, creating an identical work by coincidence isn't. If it is not a criminal case, then a court decides whether it is more likely that the identical work was created by copying or by coincidence. Creating an identical work through a random process isn't going to happen, claiming this would be an awful defense. On the other hand, it is quite possible that two software developers using very stylized code adhering to struct coding conventions can produce quite large bits of identical code. Your links titled "metadata" and "hash" don't actually link to a description of metadata, or the description of a hash, but to a description of torrent files, which is something totally different. Systematically distributing files whose only purpose is the illegal duplication of copyrighted works should not be done without consulting a lawyer, as has been said on other threads (whether posting links to copyrighted files is legal). The chances that a random process will generate a file identical to an existing copyrighted file of say over 100 bytes are virtually zero. If there is an illegal copy of a copyrighted file, and you claim that you created it through a random process and coincidence, you will lose, and deservedly so. | In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret. For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws. In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it. |
What is the likelihood that you would win a case of defamation if you cannot prove who sent it? For example, if I were to have a scorned friend who is seeking my demise and he/she calls my employer and calls me a rapist or accuses me of sexual harassment, would it be effective to sue? Even if these claims are false, even if my employer does not believe what is going on, let's assume I get fired because the firm does not want to take a risk either way. Additionally, let's say I know that my friend did this but I have no proof (they reached out to my employer pretending to be someone else, or they used a burner phone) and subpoenaing their ISP wouldn't do much good, do I have much of a case in suing them? Does circumstantial evidence count (i.e.: they have engaged in similar conduct with another person in the past)? Also, what kind of damages would I be looking for? Would this be a claim in small claims court? Also, suppose my salary is $100k | If you sue a person for a tort X, one of the things you have to prove is that the defendant did do X. A baseless belief that it must have been so-and-so will do you no good. You do not have to have iron-clad evidence of your allegations, for a civil suit, but you have to show with a preponderance of evidence that the claim is true. A combination of "hates me" and "provably did this a number of times in the past" could well suffice. As for damages, it depends on what harm you actually suffered. If you get fired and you show that it was because of a false allegation, you would probably have to take this to the big court, since small claims court handles amounts in the $5,000 range (jurisdiction-specific). | There are two common defenses to defamation (there are others): That what you said is true. That what you said cannot be reasonably interpreted as a factual claim. If after examining the totality of the circumstances, a fact-finder (judge or jury) sees your statement to be an expression of opinion rather than a factual claim about the subject, you would not be found to have defamed the subject. The opinion defence doesn't have a bright line rule. In your example, I think it is clearly on the side of opinion. However, if you were to say something like "Douglas Dunce, Apple's Chief Engineer, has an IQ of 76", that would be almost certainly be deemed a factual claim. The leading case here is Milkovich v. Lorain Journal Co. The court held that "statements that cannot reasonably be interpreted as stating actual facts about an individual are protected". Other summaries of this defence: http://www.defamationlawblog.com/2009/01/fact-vs-opinion-setting-the-record-straight/ http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2011/opinion-defense-remains-str | Yes a company can be sued (since anyone can sue anyone). But in order to win a lawsuit, you have to have damages as a result of some action, AND you must prove that the action was done with intent to harm or was otherwise negligent. So following your website example, a lot of things would have to happen: The website would have to be hacked. If the passwords are encrypted instead of hashed (which still qualifies as "plain-text" once they email it to you), the hacker would have to figure out how to decrypt the passwords. (Which a good hacker could probably do.) The hacker would have to take those passwords and do something with them that causes damage to their owners. Even if all of those things happened, you would still also have to prove negligence on their part which would be pretty difficult to do because the flaw that was hacked would be the focus of negligence discussions moreso than what was stolen. That being said, if your goal is simply to get them to fix the problem, rather than receive monetary damages, then you could still sue for an action to be taken. You'd have to pay by the hour for the attorney since they wouldn't have a chance of winning monetary damages. But in all likelihood the website owner, upon seeing the lawsuit, would fix the problem before it gets to court, so I could see that having the desired effect. That is if you think it's worth the cost of filing the lawsuit in the first place. Perhaps you could save yourself the cost of an attorney and just threaten to sue if they don't fix the problem. | Literal Answer: Anyone can file a lawsuit for anything, doesn't mean you will win or that the judge will let it go as far as trial, but you can certainly file a lawsuit. Deeper answer: Yes they can file a lawsuit assuming they have been given authority to represent the copyright holders. The problem with succeeding in such a lawsuit is proving who is liable. This is contractual, but as the ISP customer it's possible that you signed that you would be responsible for the traffic going to your ISP. If this is not the case, it can be hard to prove who is responsible. There is also the issue of did the movie actually download? Just because you clicked a link to download, does not mean a download happened and that could be hard to for the other side to prove. Then there is the question of what is the intent of the letters? Do they want people to be aware that they will be caught and stop pirating or do they really want 4,500 X 25,000 Swedish Krona? Whether they sue the non-payers or not likely comes down to how many people send in the money but in any case it is in their best interest to make the public at large believe that they will be sued. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | If 'literally 300' attorneys declined your case on the basis of a phone call, without looking into the details, I can see three options: You are unable to communicate the nature of your case clearly. In this posting, you mentioned complaints against a company, a municipality, and a landlord, plus being evicted. Focus on explaining one case. If you think you 'know for a fact' that you have several big payouts coming, there is the first problem. Nobody knows what a jury will decide. An attorney might hesitate to work for a client who does not understand this. Litigation is always a risk. All your cases actually lack merit, a lawyer sees this and you do not. Not knowing the cases, I cannot tell. (And no, you should not explain them in detail on the web. If they do have merit, posting your strategy hurts the cases.) Your state has a vexatious litigant list and you are on it. That would not prevent an attorney from taking your case, but it might make them hesitate. | You can be fired in Canada for criticizing the employer, or even complaining about the weather. There is a distinction between Termination Without Cause and Termination With Cause. In the latter case, which requires a serious reason related to the employee's conduct, you can be fired without advance notice and with no severance pay. If the employees actions are fundamentally inconsistent with their obligation to the employer or are substantially prejudicial to the business in a way that damages employer's business or reputation, they may be terminated with cause. Examples of cause would include insubordination, theft, or abusing customers. If you want to fire a person without cause (and assuming that this is an indefinite employment contract as opposed to a fixed-term contract), you have to give "reasonable notice". There is a statutory minimum, but the courts usually apply a higher common law standard which means that you need to hire a labor lawyer to know what that period is, though 24 months is apparently a relatively safe figure (not always safe). The factors entering into that decision are described here (kind of job, length of service, age, availability of similar jobs; plus, how the termination was handled). You may also owe severance or termination pay, related to length of service and wages. Here is a calculator for Ontario. This article covers some instances in Québec where social media criticism did result in successful suspension, indicating that the employee's duty of loyalty is not entirely null when it comes to social media. In the BC case of Kim v. ITU, the court found that the dismissal over social media posts critical of the company was not for cause. However, part of the company's failure in this case was that they failed to respond immediately to what they saw as inappropriate behavior (boorish Twitter behavior). Assuming that the statements made are accurate and expressed respectfully, the prospects for Termination With Cause are significantly diminished. The prospects for some disciplinary action (suspension for a period of time) remains high -- multiple terminations were modified to long suspensions. | You can always complain to the county. It is not obvious from your description that you have a legal case. One reading of the circumstances is that you did not have a job offer, you went there on the assumption that you might get an official offer after being "oriented" and interviewed. The interview did not go well, so they did not give you the job. Time and travel expenses are often borne by the job candidate. The alternative interpretation is that you had an actual job offer, and you traveled to the site as part of your employment (involving some training). In that first session, things went bad, and you got fired. If that is the case, then (a) you would be owed wages for that day and (b) there is a slim chance that the firing was not legal (there could be restrictions on firing employees in government jobs, in whatever jurisdiction this is). Your attorney will guide you (after you giving a more detailed explanation of the circumstances) in understanding whether you were fired, or not hired. |
How many felonies does Santa Claus commit? According to legend, Santa Claus engages in certain behavior every Christmas eve. How many felonies does he commit? He sees you when you're sleeping ... Peeping Tom He knows when you're awake ... Stalking He comes down your chimney ... Breaking and Entering He knows if you've been bad or good Invasion of privacy Harassment He operates a factory Kyoto Protocols? Clean Air Regulations? Operating a business without a license He makes toys Trademark infringement Patent infringement He makes books and music Copyright infringement He makes elves work for him for no pay ... Labor law violations He operates a flying sleigh: Numerous FAA regulations violations Numerous breeches of sovereign airspace When the sleigh is on the ground: Speeding Lack of proper licenses, insurance and registration He transports valuable cargo internationally: Crossing international borders without a passport Tariff evasion He doesn't file tax returns Failure to pay gift taxes Failure to file a tax return Tax evasion This is just a partial list. Jurisdiction: Worldwide | There appears to also be bribery of local officials as well. Not to mention, He operates with impugnity out of "The North Pole" which is I believe a TRADEMARK of a certain (now aging) USA male porn actor. I'm SO guessing that Santa is gonna appear out of nowhere, when the arctic oil drilling rights are being carved out among the abutter nations...and he's going to sit his fat tuchie all over those rights. Yaw, biotches! SANTA be in da hous! EDIT: it's almost certain that if Santa delivered a "My Little Pony" doll to little Elise in Akron, Ohio, USA...he violated a bevvy of Bern convention laws around intellectual property. Come to think of it..."Santa" is somewhat of a MODEL for "China" when it comes to IP law... | The FTC has myriad regulations (depending on site/content/ etc.) that must be complied with - this is especially true if children will be interacting with others. Ideally, you should have the assistance of an intellectual property attorney or a regulatory specialist if this is something you expect to be wide reaching and/or geared toward children. All of that being said, the following link offers much information regarding compliance with COPPA for small entities. If you plan on doing the compliance work yourself, there is also a liaison, or virtual "help desk" run by the FTC. Depending on what you're doing and your ability to interpret complex regulatory frameworks, you could accomplish this yourself. I'd recommend that you start here, where you'll find links to other regulations that may be applicable and easily found, and then decide if you need a specialist based on the breadth of your work product and what you find that may apply. Or, at a minimum, you may be able to narrow the scope of your question after reviewing this help section, if you find you need help analyzing a certain section. https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions Good luck! | UK-based answer here: The crux of your question revolves around whether the buyer(B) had committed an illegal act by withholding information that would have prevented the seller(A) from selling the good at the price he did. The act that B would seemingly be guilty of would be fraudulent misrepresentation A misrepresentation is a false statement of fact or law which induces the representee to enter a contract. The important thing here is if there is a "false statement". In your scenario, there was no false statement made, let alone one which induced A into selling his stamp to B. So there is no fraudulent misrepresentation, or misrepresentation of any kind. Looking at the law of fraud: s3 Fraud Act 2006: A person commits fraud by failing to disclose information when => The defendant: failed to disclose information to another person when he was under a legal duty to disclose that information dishonestly intending, by that failure, to make a gain or cause a loss. With regards to the scenario you've given, no fraud would have been committed because the buyer was under no legal duty to disclose such information | It may depend on what offences are suspected of being committed. One example is: In the united-states under 18 U.S. Code § 2258A an Electronic Service Provider (ESP) is required to report apparent violations of sections: 2251 [Sexual exploitation of children] 2251A [Selling or buying of children] 2252 [material involving the sexual exploitation of minors] 2252A [material constituting or containing child pornography] 2252B [Misleading domain names with intent] 2260 [sexually explicit depictions of a minor etc] The report is made to the National Center for Missing & Exploited Children (NCMEC) who in turn forward the information to the relevant domestic or foreign law enforcement agency. The ESP is protected from commiting distribution or related offences when making the report by virtue of subsection (g)(4): Permitted disclosure by a provider.— A provider that submits a report under subsection (a)(1) may disclose by mail, electronic transmission, or other reasonable means, information, including visual depictions contained in the report, in a manner consistent with permitted disclosures under paragraphs (3) through (8) of section 2702(b) only to a law enforcement agency described in subparagraph (A), (B), or (C) of paragraph (3), to NCMEC, or as necessary to respond to legal process. | While it seems like a simple question, the answer is somewhat complicated. As is frequently the case for "white collar" misconduct, There are several civil and criminal legal theories that could be applied, depending upon the nature of the offense, at both the federal and state levels (e.g. how was it done and what is the relationship of the offender to the victim). The penalty will generally be specific to the legal theory under which punishment or compensation is sought. One of the more obvious ones (if the stolen files are legitimately classified as trade secrets) is violation of the state's trade secret law: If a court finds that a defendant has unlawfully taken a plaintiff's trade secret(s), it may impose the following penalties and remedies: Criminal Penalties: Unlawfully taking a trade secret (defined above) constitutes the crime of larceny in Massachusetts and is punishable by up to five years imprisonment, or by a fine of up to $25,000 and up to two years imprisonment. See Mass. Gen. Laws ch. 266, § 30. Damages: A court can make a defendant pay money damages to the plaintiff in an amount up to twice its actual damages. See Mass. Gen. Laws ch. 93, § 42 Injunctive Relief: Massachusetts law gives a court the power to restrain the defendant from "taking, receiving, concealing, assigning, transferring, leasing, pledging, copying or otherwise using or disposing of a trade secret, regardless of value." See Mass. Gen. Laws ch. 93, § 42A. It appears that a court could order you not to publish a trade secret if it found that you had unlawfully taken it from the plaintiff. The First Amendment to the U.S. Constitution may limit the court's authority to do so, however. Another would be a civil action for conversion of intellectual or intangible property, or a criminal action for theft or sale of stolen goods. Depending upon the means by which the files were obtained, it might implicate common law fraud and criminal fraud offenses (including wire and mail fraud), and state and federal laws involving computer crimes. Another legal theory could be tortious interference with contract or tortious interference with business prospects. Less aggressively a common law constructive trust could probably be imposed on the digital files and the proceeds from them, and the person receiving the proceeds of the stolen files could be sued for unjust enrichments/restitution. In many cases, it would be a civil and criminal federal copyright law violation (if the victim owns the copyright and the files are copyrightable material). The proper offenses and hence the available remedies, would depend to a significant extent both legally and from a practical and litigation tactics perspective, on the means by which the digital files were obtained. | Firs, at law, all of the things you name are "something of value", the ability to go places and do things you normally couldn't go or do is valuable. However it doesn't matter. The actual crime is 18 U.S. Code § 912 - Officer or employee of the United States: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both. Simply acting as an officer or employee is enough. | You cannot stop the claim. But the good news is that claims of jurisdiction by many countries are routinely ignored by many other countries. So enforcement attempts might fall short. I've written things here that might get me into real trouble with the authorities of North Korea if I ever traveled there and if they were able to match my real-world identity with this account. But I don't plan to travel there. Likewise, before I went to Turkey I should probably review what I've written about their government, and then wonder if it is worth the risk. Probably yes, it wasn't very incendiary. But my home country and those I tend to visit (if there is no pandemic ongoing) would not extradite me for what I wrote. | depending on the Jurisdiction, you actually were in violation of law! In germany it is a misdemeanor to drive with the high beams on in such a fashion that it blinds or dazzles other road traffic, such as traffic from the front. It is also a traffic violation to drive with front lights that don't properly illuminate the street - such as a broken one. In the worst case, improper illumination voids the validity of the safety certificate (TÜV) and thus you may not drive the car at all on public streets until you have repaired the defect. Not having a valid TÜV can mean you are also not insured! In the US: YES, a stop is most likely legal In the united-states, Terry v Ohio is the governing case. It prescribes that, to initiate contact with a car and detain it on the street curb, reasonable suspicion is enough. What could be reasonable suspicion for the police? In the case presented, 'The high beams are on constantly to hide non-functioning/sufficient normal light' would be the very first thing that comes to my mind, so there very likely is reasonable suspicion to initiate the stop. Ot of course 'The high beams are suitable to dazzle me for a split second, and thus the driver endangered traffic'. Endangering traffic can actually be a felony in some cases. Or just 'They shone their brights into my eyes and violated the High Beam statute' - which is actually the most likely case. As a result, while a broken headlight is not reasonable suspicion to search a car, them and high beams might qualify to make a stop reasonable, especially if at first just a verbal warning not to dazzle oncoming drivers was intended by police. Only if the local law is worded in a peculiarity, that might invalidate a stop. And you might be in violation of law here too! california High Beams can be a traffic violation within 500 feet of oncoming traffic and 300 when trailing another car, if they are not so aimed that the glaring rays are not projected into the eyes of the oncoming driver. florida Under Florida Law, it is also a noncriminal traffic infraction to drive with the high lights on in such a way that it blinds traffic within 500 feet of them oncoming and 300 if you are behind them. Again, the test is that the beams are only ok if they are so aimed that the glaring rays are not projected into the eyes of the oncoming driver. new-jersey Here comes a possible source for your quote: New Jersey has a similar high beams law, but also a recent case. The judgment from the New Jersey Surpreme Court is only valid in New Jersey. According to it a high beam violation has to be witnessed by the officer themselves to justify a "terry stop". If you dazzle a moving police cruiser they may stop you. If you dazzle the moving car in front of them, they may stop you. But if you beam your high beams at a stopped car or no car at all, then the police can't stop you. HELD:The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A.39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court s suppression of the evidence is affirmed. Had the officer, in that case, operated the car while being on the same road, the stop would have been constitutional. But he was on foot in a crossing street. texas Wait, actually the quote stems from Texas. However, it has nothing to do with high beams but additional lights such as "Angel Eyes". Texas too has a High Beam Statute, which just like other states, bans blinding oncoming traffic: (c) A person who operates a vehicle on a roadway or shoulder shall select a distribution of light or composite beam that is aimed and emits light sufficient to reveal a person or vehicle at a safe distance ahead of the vehicle, except that: (1) an operator approaching an oncoming vehicle within 500 feet shall select: (B) a distribution aimed so that no part of the high-intensity portion of the lamp projects into the eyes of an approaching vehicle operator; and Even in Texas, blinding the police cruiser would thus be enough to stop the car, at least for a verbal warning and lecture. Common courtesy While it might not be against the law to dazzle someone everywhere, it actually does impact the other drivers: there have been crashes induced by traffic running high beams and blinding oncoming traffic, which then ran off the road or into other cars. In some countries, if they catch you for causing a crash that way, you are in for negligence. As a result, it actually is common courtesy in Europe to dim off your high beams when you notice oncoming traffic, and, if you don't run high beams yourself but notice high beams oncoming to flash them up for a brief moment so you get noticed. |
GDPR + git history Is name, surname and email in the Git commit history a personal information according to the coming GDPR (General Data Protection Regulation) and is there any special treatment required? Git is a distributed system and therefore it is probably impossible to have a complete control of it - especially for opensource projects. EDIT: It is also probably impossible to delete any information from the Git history. If the Git history contains any personal information, is it OK not being able to erase the information on request? | I believe in this regard there is a legitimate interest to not delete this information. You would have to perform a legitimate interest assessment, but for us (with private repositories) the reason would be to ensure that if in the future any malicious or illegal code was found that was knowingly committed to a repository there is trail and a way of understanding who did it. | The "right to be forgotten" is not absolute. It is subject (Art. 17) to certain conditions, in particular the absence of "overriding legitimate grounds for the processing" (1(c)). 3(b) explicitly exempts data controllers from the erasure where needed "for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject". I can even imagine a former employee first claiming his right to be forgotten, and then - a week after getting the confirmation - claiming his right to receive a resumee (a right in existense in Germany), which a company would not be able to fulfill as it hasnt got any data to base the resumee on. If the "right to receive a resumee" indeed exists in Germany and employers need to comply with it, that would be perfectly legitimate ground to only partially fulfil the request to be forgotten — forget everything but the resume. Is it against the law to document these cases? If you document "On 27 February 2020 John Smith requested to be forgotten so we deleted or anonymised all his records", you will effectively NOT forget him. If you actually had to forget him, it will therefore be against the law to document your forgetting that way. | Names clearly are personal data and so a good question to ask for GDPR compliance is: Do you need to do what you want to do in order to offer your product or service? For your scenario a common answer seems to be that websites ask for the users first and last name during account creation. The reason is that they need this information to confirm the identity of the account creator. But the public profile only displays a user name that the user can pick freely. In general there is no good reason to publically show the legal names of users so websites don't do it. So for your website ask yourself, why do you want to publically show the names of your users? If you have a good reason to do that specify it in the user terms and go ahead. If you don't have a good reason don't do it. | I think there are a couple of different ways to look at this. Deduplication is a technical detail that's irrelevant here While the data may be deduplicated on a technical level, the files remain logically distinct. If users 1 and 2 upload identical files, and then one user edits or deletes their file, this will not affect the other user's data. Users cannot tell whether their files are duplicates of someone else. From the user's perspective, it makes no difference whether or not the storage uses deduplication, except perhaps via the cost of the service. Because there is no user-perceptible difference, it would be difficult to interpret some GDPR significance into this scenario. Whose personal data is it anyway? Personal data is any information that relates to an identifiable data subject. The files here are likely to be their uploader's personal data. Thus, the uploaders would also have a right to have their uploaded files erased. In case of deduplicated storage, this would affect their logical copy. The contents of the uploaded files might also be personal data relating to a third party. Then that third party might have a right to get the file contents erased. But this right must be invoked with the data controller for that processing activity, which might be company A, company B, or the uploaders, depending on context. Which leads us to the next aspect: Company A is not responsible for handling erasures From your description, it sounds like company A is a data processor providing services on behalf of company B. In turn, B might be a processor acting on behalf of the uploaders. In any case, it seems that A would not be the data controller for these processing activities. Data subject rights like erasure must be invoked against the controller, as only the controller can understand whether such a request should be granted. The right to erasure is not absolute, and depends a lot on why that data is being processed. In particular: Personal data need not be erased if it is still necessary For example, a person might very well be the data subject of some of these files, and might then ask for erasure. But if the files are being stored because they are going to be needed as evidence in legal proceedings, the data subject can't use this GDPR right to destroy evidence. The data controller would be allowed to refuse a request in such cases. It could now happen that two different users of this deduplicated storage are storing the same file, but for entirely different purposes. Blanket deletion of all copies of a file could be quite problematic. Note that deletion is also a "processing activity" and needs a legal basis under the GDPR. Unexpected data loss could be a data breach. One user's erasure could be another user's reportable data breach incident. Thus, I would strongly expect such requests to be handled on a logical file level, not on the deduplicated storage level. Caveat: public access and cloned files If the (logical) file is made available to the public who can then clone or copy this file, and if the "original" is taken down due to an erasure request (or copyright takedown notice), it might be appropriate to remove logical clones as well. Again, this might not involve deleting the contents on the deduplicated storage level, but it might affect other users' copies. In a GDPR context, the grounds for this would be the Art 17(2) right to be forgotten: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. But this depends crucially on who those other controllers are. If A is the sole controller, the logical files could probably be deleted directly. If B or the end users are controllers, it could be more appropriate to forward the erasure request to them. | As I understand it, the GDPR does not permit sending of personal information (which includes the IP address) without prior consent by the user. That's not exactly true, consent is merely one of six possible legal basis for processing (article 6). For example, processing of personal data can also be lawful if it necessary to perform a contract, legally mandatory, or in the public interest. The court decision acknowledges that but rules out another basis in this case because it considers that it is possible to serve fonts without relying on a third-party ([…] der Einsatz der Schriftarten auch möglich ist, ohne dass eine Verbindung von Besuchern zu externen Servern hergestellt werden muss). Confusingly, it only refers to article 6(1)(f) when it seems to me that (b) would also be plausible but maybe this wasn't raised during the proceedings? If the data controller cannot invoke any other basis for the lawfulness of the processing then yes, the only thing left is asking for consent, i.e. invoking article 6(1)(a). But that doesn't mean that you should expect to be asked for consent each and every time your personal information is being used. The consent form on the site also implicitly assumes consent, which I thought was also a violation. Yes, implying consent doesn't really make sense under the GDPR definition (article 4, see also article 7): ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action European data protection authorities have issued guidelines that detail what that means and clearly reject “bundling” different data processing. The regulation also makes it clear that data subjects should be able to withdraw consent at any time, which does not seem possible with the fonts on golem.de My reading of all this is that assuming consent because you are using a service (or even created an account or checked a box at some point) simply isn't valid consent. Either you don't need consent at all in the first place or what you need is freely given, specific consent and “implying” consent or bundling it with a registration process achieves exactly nothing. But this is still extremely common and it might take some time before enforcement and case law definitively settle this question. Smart data controllers trying to avoid collecting consent (like Meta) have abandoned any claim that signing up to the their services would constitute consent (because that's transparently not the case) and try to bypass the issue entirely using another basis like contractual necessity. This is also being litigated. I know that a EU regulation can be implemented and interpreted differently from country to country, and that a single court ruling in Germany doesn't even mean that the national law was correctly applied. From what I've read, I get the impression that this particular ruling was not unlikely to be overturned by a higher instance, if it came down to it. So my question probably both pertains to German law specifically and the EU regulation itself. That sounds more like the way EU directives work. Regulations are supposed to be immediately applicable (no implementation in national law necessary) with minimal differences between countries (except when they explicitely provide for that). Of course, enforcement would still mostly be in the hands of national court systems and (in Germany) provincial data protection authorities but there are mechanisms to ensure consistency (the European Data Protection Board, prejudicial questions to the CJEU, infringement proceedings from the European Commission…). | Keeping logs of chats would not necessarily be against the GDPR as you have suggested. For the IRC service provider/operator: these chats/logs would be within scope if EU-based users are involved and this means the data controller/processors would have legal obligations to comply with GDPR. The IRC service provider/operator would be the data controller and would be held ultimately responsible for the data stored/processed through the IRC service, including backups and logs kept etc, and this would mean any sub-processors they select (such as hosting provider) would also have to be GDPR compliant. Due to the nature of IRC chats being entirely public in the same way forum board posts and comments are public, the contract terms between the IRC service provider and the IRC users would need to be very clear that this is the case, and the IRC users would need to give consent for this processing (this is more complicated for children, see Article 8 regarding consent from the holder of parental responsibility). For IRC users (personal use): If you wish to keep the chat records for personal use only (i.e. not in connection with a business or your employment at a business), then an exemption applies: This Regulation does not apply to the processing of personal data: ... (c) by a natural person in the course of a purely personal or household activity; ... (GDPR, Article 2: Material Scope, Paragraph 2(c), p.32) For IRC users (commercial/business use): In this case I don't think you would have any legal basis to store/process these chats/logs if they contain personal data without a legal agreement with the data controller which would require you to put in place the same protections they have to under GDPR but then allow your business to access the data for specific purposes. While the information may be published or considered to be in the 'public domain', for you to take a copy of it without permission and use it for a purpose they haven't consented to would not be allowed under GDPR. Additionally, to go through the process of removing personal data from the chats/logs would in itself be considered 'processing' under GDPR and therefore would be unauthorised without a legal agreement with the data controller. Practically therefore, your best options under this circumstance would be if: The IRC service provider implemented a 'favourites' feature to save within their own system the chat conversations you wish to retain and refer back to in future. Since they hold the data and you already have a user agreement with them there is no further complications (this is probably the best option); The IRC service provider implemented a feature to download an anonymized copy of a chat conversation (not ideal as there are no guaruntees a user will not include personal data in their messages, though the user agreement could state that message content will be considered to exclude personal data, in a similar way to how StackExchange do for this website, see the paragraph titled "Information You Choose to Display Publicly on the Network" on the StackExchange Privacy Policy). Your business considered an alternative communications solution, such as hosting its own real-time chat system or forum boards system, in which case your business would be the data controller, and while subject to GDPR you could then define the purposes for which the data will be used in your own user agreement. | First of all, in a GDPR contest, the process described is not strong anonymization. It may be hard for an outsider to go from the stored record to any PII, it is much easier for an outsider to "single out" an individual. This means that given a known individual, one can determine whether that person is among those listed in the records, or can determine this to a significant degree of probability. For this only the algorithm and the rotating salts are needed, one need not break the hash. Note also that the GDPR specifies that if a person can be singled out with the assistance of the site operator the data is not considered anonymized. Thus this data needs a lawful basis under the GDPR, and the various other GDPR requirement all apply. However, even if the data were totally anonymized, and say just added to a count of users with this or that User Agent, the process of reading local data (including but not limited to cookies) itself requires informed consent, and so a cookie banner or other interaction with similar info under the e-Privacy directive (EPD). The EPD, being a directive and not a regulation, must be implemented by national laws, and the exact provisions in those laws may differ somewhat from country to country. But I believe that all of them require consent before any local data is read. | It doesn’t make you exempt from the GDPR if that’s what you’re asking The hash you produce is linked to one (or a small number) of computers and it therefore serves as an ID number. Because that ID number is linked to the owner of the computer it is personal information and if you are collecting it, you must comply with the requirements of the GDPR - valid legal reason, deletion when no longer required, deletion on request, data security etc. |
Can I disobey a police order if I have reason to believe that to obey would put my life in imminent danger? Suppose I am detained by a police officer and ordered to remain in the exact spot. However, the officer doesn't notice that I am three seconds away from potentially being impaled by someone or something. Or, the officer knows and still refuses to allow me to move. Am I legally free to ignore the order to stay? | California law has a general defense of necessity. It appears that it's not in statute, but rather comes from common law. It's described in what appears to be the official jury instructions at CALCRIM 3403. The defendant is not guilty of (insert crime[s]) if (he/she) acted because of legal necessity. In order to establish this defense, the defendant must prove that: (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); (He/She) had no adequate legal alternative; The defendant’s acts did not create a greater danger than the one avoided; When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; A reasonable person would also have believed that the act was necessary under the circumstances; AND The defendant did not substantially contribute to the emergency. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true. It seems like all six requirements would apply in your hypothetical case, so if you could prove them, you'd be off the hook for a violation of Cal. Penal 148(a)(1) as cited by user6726. | If you comply without protest, this will be taken as consent to a search, and make anything found admissible. One can verbally object. The ACLU suggests the form "I do not consent to searches" to any request to search your car, your house, your person or any other property of yours or under your control. There is no need to give any reason for your refusal. However, one is required to follow any "lawful orders" given by police officer during a traffic or pedestrian stop.[1] Failure to follow lawful orders may well be a separate crime. Even if the lawfulness is suspect, it is usually better to comply and challenge the order later, in court. One might make a second objection, such as "I don't see that you have probable cause for a search, and I do not give consent. Are you ordering me to permit a search?" If the officer clearly orders you to open the trunk, one might place the keys in reach of the officer, while not opening the trunk oneself. That might help establish that there was no consent to the search, and require probable cause to be established before anything found could be used in a trial. One might also repeat, as the officer opens the trunk "I am not consenting to any search." If it is possible for any person present to record video without obstructing the officer(s) that might hrlp to establish the absence of consent and other relevant facts, later. People in general have a right to make such recordings, but not to obstruct or interfere with police activity. Duty to Obey The Washington Post in an opinion article dated July 23, 2015 "Sandra Bland and the ‘lawful order’ problem" wrote: The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter. The first problem is knowing what counts as an “order.” If an officer approaches you and asks you to do something, that’s normally just a request and not an order. But if there’s a law on the books saying that you have to comply with the officer’s request, then the request is treated as an order. You can’t know what is an “order” unless you study the law first, which you’re unlikely to have done before the officer approached you. In the case of Oregon v Rose Mary ILLIG-RENN, 42 P.3d 62 (2006) The Supreme Court of Oregon held that ORS 162.247(1)(b), a statute that makes it a crime to "refuse[] to obey a lawful order by [a] peace officer." is constructional against challenges under the Oregon and US Federal constitutions. Sources [1]: Virginia Code section 18.2-464. Failure to obey order of conservator of the peace Virginia Code Section § 18.2-463. Refusal to aid officer in execution of his office. Florida Statutes 316.072(3) "*OBEDIENCE TO POLICE AND FIRE DEPARTMENT OFFICIALS.—It is unlawful and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer, traffic crash investigation officer as described in s. 316.640, traffic infraction enforcement officer as described in s. 316.640, or member of the fire department at the scene of a fire, rescue operation, or other emergency. *" (Oregon) ORS 162.247(1)(b) Interfering with a peace officer or parole and probation officer A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer ... Refuses to obey a lawful order by the peace officer or parole and probation officer. California Vehicle Code - VEH § 2800 (a) It is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, when that peace officer is in uniform and is performing duties pursuant to any of the provisions of this code, or to refuse to submit to a lawful inspection pursuant to this code. North Carolina § 20-114.1. Willful failure to obey law-enforcement or traffic-control officer (a) No person shall willfully fail or refuse to comply with any lawful order or direction of any law-enforcement officer or traffic-control officer invested by law with authority to direct, control or regulate traffic, which order or direction related to the control of traffic. | Now after 4 years I still can't get it off my mind and it's consuming me thinking that I was fooled into believing that the rule of law was the norm in this country (not the jungle law) and the beautiful constitution we have is not there just to look pretty, but something we can rely on. So, at this point, do I need legal help? Or mental help or some kind of miracle pill to help me cope with the situation (?) I know that 6' under we can have peace, but can I live a peaceful (bully free) life here too? We do have rule of law as a powerful norm in this country. But, we also live in a very complex society and the exact content of the law will always be the subject of fierce dispute. The solution is, pretty much, to lower your expectations. The vast majority of the time the law works. Your beliefs about exactly how far you are allowed to disobey an order from a law enforcement officer as a matter of practical reality, were miscalibrated. But, you did get out of jail the next day and the punishment you received was very survivable. In much of the world, this wouldn't be true. The rule of law doesn't mean that everyone perfectly obeys the law. It means that when the law is seriously broken in a manner that has big consequences that there is usually a way to legally mitigate the harm or to obtain a remedy. Pushing the limits of the freedoms the law gives you is rarely wise. But, that is no reason to refuse to live your life. It is one thing to learn from experience. But, sometimes, you can overlearn from experience and need to recognize that your anecdotal experience on a single occasion is not all that there is the law. | Jurisdiction? washington. RCW 9A.16.020 says when force is lawful. (1) Whenever necessarily used by ...a person assisting the officer and acting under the officer's direction Not apparently applicable in this case. (2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody Looks promising, except RCW 9A.52.070 says "(2) Criminal trespass in the first degree is a gross misdemeanor". For the record, (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary but you didn't describe malicious trespass (which incidentally is not statutorily defined in Washington). Our last hope is: (4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public For example, you can detain a person for a few seconds to ask what he's doing there and to get whatever answer you are going to get. It does not extend to "detain the trespasser until you are satisfied that he has truthfully identified himself", or "until the police show up". | There is pretty much never a right to retaliate against harm to oneself, even blatantly unlawful harm. There is a right to defend oneself and others. One can use force to stop someone from inflicting unlawful or unjustified harm, or to prevent someone from inflicting such harm when the harm is imminent. One is not permitted to use more force than is "reasonably required" under the actual circumstances. This is true in pretty much every jurisdiction that i know of. The details on how much force will be considered "reasonable" will vary. In some jurisdictions there is, under some circumstances, a s"duty to retreat". This generally means that if a person attacked can avoid the harm by fleeing with reasonable safety, that person must do so rather than using force in self-defense. In some jurisdictions this "duty to retreat" applies id the victim is attacked in public, but not in the victim's own home. The right to self defense does not apply when the "attacker" is an agent of the state acting lawfully. For example, a prison guard taking a condemned prisoner to a death sentence cannot be attacked on the grounds that the prisoner is engaging in self defense. In theory a police officer engaging an excessive force, particularly unjustified deadly force, may be resisted in self-defense. But courts are quite reluctant to find such resistance justified in practice. There generally must be very clear evidence of egregious misconduct for the court to rule for the non-police person in such a case. Note that "self" defense can equally be defense of another person. Pretty much all the same rules apply. Self defense applies no matter who the attacker is, but that force is reasonable may vary depending on the attacker. Only such force as is reasonably required to stop or prevent the harm may be used with a justification of self-defense. | There will be a local rule regarding what police have to do with a person in custody. Here are the rules for Seattle. The main relevant rule is that they must take reasonable steps to ensure the safety of the detainee. They must use seat belts, unless the vehicle does not have seat belts in the detainee area. Additionally, they are not to respond to routine calls while transporting a detainee, but they may may respond to a threat to life safety. Typically, high speed response indicates a threat and not a noisy dog complaint. There is no obligation to refrain from responding, nor is there a requirement to release detainees. I don't think there is a clear and bright line: it comes down to what an officer would (in light of department instructions) judge to be reasonable. The officer may be wrong and the department may be wrong in what is legally "reasonable", and this could come out as a result of lawsuits and Dept. of Justice investigations. You can file a complaint with the Civil Rights division of the DoJ, see here. | It's not an interrogation Nothing makes Mr. Hansen a police investigator. He is a private person talking with another private person. His testimony or the recording of the interview might or might not be admissible in trial, that's for the court to decide. But Miranda warnings are only needed when you are under arrest or when you are in a custodial interrogation. Hansen, agent of the police? There's arguments that Hansen might or might not have acted as an agent of the police, and in one case he was deputized. However, that does not change that for Miranda you need an arrest or custodial interrogation (e.g. where one is not free to leave). As far as I am aware, none of the people interviewed was in such a situation and technically free to go at any time - making Miranda not required. | 2201.4 Upon a roadway so designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by official traffic control devices. I'm failing to see the "... except when pulling over for the police" subclause. Equally there is no "... unless you think you should" subclause. If you choose to have a hearing the evidence will show unambiguously that you drove the wrong way in a one way street and you will testify as to your reasons for doing so. For you to avoid the violation you would need to convince the examiner that a) you are telling the truth and b) that your mindset is in any way relevant. Unless the officer clearly directed you to pull into that spot, the decision to do so appears to be yours. I'd pay the fine if it was me. |
Can a person appear in court pro se with counsel? I already know about the possible folly for doing this, so my question is not how wise would this be, but rather: In some criminal trials, defendants have multiple attorneys working the case. In OJ Simpson's I believe at one time it was 7 with 5 on the table (not sure). Is it possible to be pro se and represent yourself at trial with the ability to, for instance, raise objections at trial, and also be represented by one or more attorneys? Would the defendant also need to "register as counsel" as attorneys do prior? | This is not possible, simply as a matter of definitions and legal terminology. Someone who is "represented by one or more attorneys" is by definition not pro se which means representing yourself without an attorney. There are very rare instances in criminal trials involving serious consequences in which a pro se defendant is allowed to have an attorney advisor who does not represent them in court in an agency capacity, but, first, people who do that almost always lose and are almost always mentally ill (although not necessarily eligible for an insanity defense), and second, because courts generally don't allow this in any other circumstance (at least in court). The concept of getting advice from an attorney without having full fledged representation is called a "limited representation" and the law regarding limited representations more generally varies greatly from jurisdiction to jurisdiction and even between different courts in the same place. For example, Colorado's state courts and Colorado's federal courts have different rules for limited representations. | Yes Usually, whoever got their hands on the defendant first would have first crack at it. The second jurisdiction would commonly not prosecute provided that justice was done in the first but they can - double jeopardy is not in play as a bar as they are different legal systems but courts usually apply the spirit that a person shouldn’t be punished twice for the same act. | It depends on the situation In a criminal case When the government is prosecuting a criminal case, they are represented by a prosecutor. For a federal case, that prosecutor would be a United States Attorney or Assistant United States Attorney (AUSA). For a state case, they'd be a District Attorney, Deputy District Attorney, or Assistant District Attorney. In civil cases Generally, the Federal government would be represented in civil cases by lawyers with no special title. In many cases, these would be lawyers working for the Civil Division of the Department of Justice, but other agencies also have lawyers to represent them in more specialized litigation—for example, the IRS Chief Counsel's Office. A state government would be represented in civil cases by lawyers from the state Attorney General's office (here is California's, for instance). Before the Supreme Court When the Federal government is before the Supreme Court, they are represented by lawyers from the Office of the Solicitor General. That could be the Solicitor General themself, a Deputy Solicitor General, or an Assistant to the Solicitor General. In cases where the government is not a party, the office may be asked for its input on a case by the Supreme Court via a Call for the Views of the Solicitor General. | So I'm fascinated with the OJ trial and I've read a ton about it. I'll try to answer your question both accepting your premise as true, and then also going into what actually happened. First of all, jury nullification cannot be overturned in the US. The double jeopardy clause forbids it. This is such a powerful tool, in fact, that there are strict rules that prevent defense lawyers from mentioning or even hinting at jury nullification, in front of the jury, in almost all circumstances. It doesn't mean D is safe from all legal liability. OJ, obviously, was found liable in the civil trial. Sometimes other jurisdictions can prosecute. For example, after the officers in the Rodney King beating were acquitted in state court, the federal government got them for violating federal hate crime statutes. Second, looking at your premise. If jurors think D is guilty, but also being framed, that's not necessarily jury nullification. Remember, a criminal defendant must be proved guilty beyond a reasonable doubt. That means that 'probably guilty' means 'not guilty.' That said, there may be times when a jury is convinced beyond a reasonable doubt of a defendant's guilt, but is so disgusted by the police tactics used in the case that they acquit. This would be jury nullification. What actually happened in the OJ case: Mark Fuhrman perjured himself on the stand. He lied and said he'd never said the N word, and the defense produced tapes of him saying it a ton. The defense recalled him to the stand. Because perjury is a serious crime, this time he came in with his own defense lawyer, and did nothing but take the fifth on the stand. In a genius move, OJ's defense team asked him whether he planted any evidence in the OJ case. He didn't deny it, instead he took the fifth (again, as he was doing to every question). This was enough to sow reasonable doubt about OJ's guilt based on the evidence in that trial (there's obviously no actual doubt, in real life, that he's guilty). So, what actually happened wasn't jury nullification. | As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury. | If you're in the United States, another lawyer in a firm you've hired may or may not be your attorney, but it would not be uncommon for him to have some involvement in the case, and he would be expected to treat you as a client in terms of privilege and conflicts of interest. Just the same, this is something you need to be very direct on. "Are you my attorney?" or "Have we established an attorney-client relationship?" are going to be your best options. | The prosecutor always has an advocate The prosecutor in a criminal matter is the State. Since the State is an artificial entity it has to act through agent(s) who advocate for it. In Commonwealth countries the State is synonymous with the Crown - I suppose HRH Queen Elizabeth II could prosecute every case personally but she’s a very old lady with a lot of other things to do (this is a joke - the person is not the office). | Laws criminalizing perjury are not about being mistaken or less believable in your testimony. The crime is, very narrowly, stating something which you do not believe to be true, while under oath. If you make a statement that happens to be untrue but you believe it is true (you are mistaken), that is not perjury. In the US, moreover, you have to assert something literally untrue, not simply say something that could be interpreted as being untrue. Rental arbitration hearings are nothing special, except that witnesses may or may not be sworn under the particular state's laws. If a witness is sworn and unambiguously asserts "Jones gave Smith $1,000 at that time", and another sworn witness asserts "Jones did not give Smith any money at that time", that might suggest that one witness testified as to something that they did not believe to be true. It might also show that they were standing in different places. Even if the circumstances show that the two witnesses observed the same facts, you would have to prove beyond a reasonable doubt that one party knew at the time that their statement was false. It is also possible that one witness made mis-remembered or misinterpreted what they saw. They might say or write something else (under oath, or elsewhere) that establishes that they knew better. An example is US v. DeZarn, which clearly established that the defendant could not have believed the statement that he testified to. With no official record of what a party testified to, it may not possible to establish beyond a reasonable doubt that a party committed perjury, since it can be reasonable to doubt claims of what he actually testified to. The defendant's attorney may, however, have to create such a doubt. Some answers could be perjurous if the question and answer are short enough, for example "Did you cash the check?" "No", if witnesses to the hearing testify convincingly that this exchange took place. |
Is sewage in Maryland, USA a utility and what protections come with that? The title of this question might need some work, because my question is really two-fold. I live in a rented Townhouse in Maryland, USA. Water and Sewage costs are separated because the county provides well water for free, but not sewage. A few days ago I received a bill from a sewage company "NWP". The bill is a single charge with no details. Just "Sewage Fee ". The number seemed shockingly high for what I have paid for water plus sewage in the past, so I called the company and discovered that I am being billed for the usage of the entire "community" split based on the number of residents in the Townhouse (just my wife and I). The company also told me that it was impossible for them to even tell me how much my unit is using because there are no meters installed. So my first question is whether or not this is even legal. I'm not sure if sewage is considered a utility like water and is subject to the legal protections, and I also don't know where I would find those protections (I just recently moved here from a different state). My gut tells me this shouldn't be allowed because it discourages conservation. I can't conserve usage because when the bill comes, I'll have no idea what I actually used. But this is just a gut feeling and I'd like to know section and paragraph if I'm going to do anything serious with this. My second concern is that this isn't mentioned anywhere in my lease. The only time the lease ever mentions sewage at all is one time at the top with the line: Tenant Pays For: TENANT PAYS FOR GAS AND ELECTRIC, AND SEWAGE The "Utilities" section does not mention Sewage in any way and it is absent from the rest of the document. I was told during the tour and today at the office that I only pay for my own usage. Unfortunately this was verbal and is not in the lease. After I escalated at the office to the manager, the manager admitted that this is a lie, but since it's not in writing, I think they know they're safe. If I had known that I was on the hook for my neighbor's heavy water usage, I would not have signed, and the lease completely hid this information from me. Do I have any case for breach of lease terms or something like that? I feel like socializing sewage costs is important enough to have been noted in the lease, and it would have affected my decision. In summary: Is it legal to socialize sewage where I am not provided with my own usage? If not, how should I proceed? Is there anything I can do with the fact that this was not mentioned in the lease terms? Thank you. | Your sewage provider is a “Public service company” under Maryland law: (x) (1) “Public service company” means a common carrier company, electric company, gas company, sewage disposal company, telegraph company, telephone company, water company, or any combination of public service companies. (ee) “Sewage disposal company” means a privately owned public service company that owns or maintains facilities for the disposal of sewage. The Public Services Commission sets the rates: The Commission shall have the power to set a just and reasonable rate of a public service company, as a maximum rate, minimum rate, or both. The utilities code paraphrases this in other provisions: In accordance with the provisions of this article, a public service company shall charge just and reasonable rates for the regulated services that it renders. There is no legal process involved in your situation, since it is a political matter what constitutes a just and reasonable rate. You can write letters of protest, but the commission has the power to set the rates. You can, however, investigate whether the charges were actually approved. You do, however, have to contact the utility before filing a complaint with the commission. The landlord has zero control over rates set by the government, so they cannot reasonably be expected to contractually commit to any particular rates. However, if they overtly lied to you about the terms of the lease, you might sue to get out of the lease, but the chances that you would prevail in such a suit are negligible. | user662852 has a good point -- whoever own the property has the right to make the rules. Is the property, land+construction in fact your's or does it belong to the HOA who just grant you access as a lease holder? Different states has different rules, but in my state it is illegal to maroon a property and there must be a access to public streets even when this necessitate passing over somebody else land. However that is irrelevant if the HOA owns the land your house is build on. I think you will have to look at your HOA agreement and see what it says. | Once your rental contract starts, your landlord must give you access to the rented flat. If he doesn't do so he is in breach of contract. You could sue him, but that would be a bad start for a longer term contractual agreement. It might be less time and effort to look for a new flat. And do you really want to be in a long term contract with someone who breaches contract right from the start based on arbitrary reasons? In any case, you can and you should cut the rent proportionally for every day without access to the flat. Your landlord has by no means a right to check your luggage. Even if there would be such a regulation in the contract, it would be void, because of invasion of privacy. It looks to me that you are in for some bad times with such a landlord. I can assure you that most landlords are not like this. Another reason to probably look for a new flat. Legally you are right, but what does that help you if your landlord is trouble? | I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios. As a starting point, one needs to bear in mind that: a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing. Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms & conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)). The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues: Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about & accepted that condition. Does the house provide alternatives for lawful & informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause". Is the house owner realistically able to prove that use of the walkway by lawful & informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))? Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit & loans? These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided. Lastly, as a side note, the presumption that a person reading the poster and walking in the intended area does not thereby receive consideration is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed. | No, there is no general publicly accessible directory of lawsuits against private individuals, even if it concerns yourself. The complaint must identify you as the defendant indicating a ladungsfähige Anschrift, § 253 Ⅱ, Ⅳ, 130 ZPO. Commencing an action requires service of process, § 253 Ⅰ ZPO. I presume you are not a De-Mail user. So you will get a hardcopy. You may not know that, but such mail in Germany is usually sent in yellow envelopes. The mailman will carefully compare the mailbox label and in case of a match record the date and time of successful delivery on the envelope as well as a slip of paper returned to the sender, the court in this case. Now this will obviously fail in your case (unless the landlord maliciously attached a corresponding label to a mailbox). In a civil action the court “pretends” to be dumb regarding facts. The landlord must try to track you down. Evidently he knew your email address, so he had some contact details. If he was evil, the next option would be to ask the court for an öffentliche Zustellung, § 185 ZPO. If the court agreed, this means there will be, for instance, in the city hall a paper on a bulletin board “To the attention of Coala, last known address …: There is mail for you to pick up at my office.” Two weeks later the letter is automatically considered to be delivered.Some cities (example: Cologne, NRW) also publish these documents on the internet, but due to GDPR considerations delete them after a certain period now. If there was a lawsuit, there will have been a default judgment by now, i.e. you will have lost just by being a no‑show. However, you said you have never received the bill. This means the landlord must have produced false evidence, claim to have sent the bill and a subsequent warning notice, but there was none. But this is an entirely different issue. | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | To get an answer tailored to your problem, you need to get a lawyer. The general answer is that the water bill goes with the property, not the person using the water. The unpaid bill can become a lien on the property, and the house can be taken and sold to satisfy the lien. There are other factors / questions. Under Florida law (180.135), if the debt arises from a renter who incurred the debt directly with the utility, a lien cannot be placed against the property. Any lien must be perfected (filed with the courts), and the point of a title search is to find such liens – assuming that a title search was done. There is a limit to how long you can wait to collect on a debt (7 years). | Anyone who uses a credit report or another type of consumer report to deny your application for credit, insurance, or employment – or to take another adverse action against you – must tell you, and must give you the name, address, and phone number of the agency that provided the information. Summary of Your Rights Under the Fair Credit Reporting Act Read some more of that document. It tells you that you have a right to see your file. It also tells you who to contact. Promissory estoppel is not something that is violated. It's a legal doctrine which can help enforce a promise made in the absence of a contract. Without more facts it's impossible to predict if promissory estoppel can help your friend. And if there aren't more facts it's unlikely that PE will help as this appears to be a routine job offer contingent on a background check. Now, the action based on a background check might be interesting especially if your friend is a member of a protected class. You can read more about this in the document I linked to. |
What did Colorado say in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission that Kennedy found to be "neither tolerant or respectful"? In today's decision by the Supreme Court in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission Justice Kennedy said the treatment of the baker was "neither tolerant or respectful". In the opinion on page 2 it says: As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. What exactly did the Commission (or their representatives) say and was it really that bad? I'm looking for sources outside of the opinion, ideally verbatim quotes from the commission or their own (public) records. | See section II B of the opinion. On page 13: On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. The analysis of whether it was really that bad follows, ending on page 16. The first paragraph of that analysis describes the reasoning quite well, however: To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation. The analysis also considers that the Commission's reasoning in this case was inconsistent with its reasoning in "the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission." Those cases concerned bakers refusing orders for "cakes depicting anti-gay marriage symbolism." It then says that the ruling of the Colorado Court of Appeals, which upheld the Commission's ruling as permissible "because of the offensive nature of the requested message," was improper because "it is not, as the [Supreme] Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive." | From Roberts' dissenting opinion: Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. (The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.) In my opinion, this quote speaks as much to the second question as the first. Assume (hypothetically) for a moment that question one was not at issue. If a state defined marriage as only between opposite sexes, and the right to make a state change its definition of marriage is not in the Supreme Court's purview (in our hypo), then the state is as free to reject the validity of marriages abhorrent to its laws, performed elsewhere, as it is to deny the right to marry under its theory of marriage. | Both Title VII of Title VII of the Civil Rights Act of 1964 (as amended), and the Americans with Disabilities Act(ADA) as amended, provide that employer mandates are subject to "reasonable accommodations" for "sincere religious beliefs". If any mandate was based on or subject to either of those laws, requests for accommodation would need to be addressed on a case-by-case basis. The belief does not have to be a tenant of any church or organized religious group, but may be purely individual. State laws granting religious exemptions might also apply. However, in Prince v. Massachusetts, 321 U.S. 158 (1944) the US Supreme court wrote: Thus, he [a parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. Prince was a case of a child labor law (selling religious pamphlets in the streets) not an actual vaccination case, so the above statement was not strictly binding precedent. Whether it would now be considered good law I cannot say unless it coems up oin a current case. To the best of my knowledge, no major religion or denomination objects to vaccines as such, although some do object to vaccines developed using fetal stem cells. I believe that at one time the Jehovah's Witnesses did so object (one of them was the appellant in Prince) but they no longer hold that view. At least some individuals have expressed such objections, but most expressed objections to vaccines or vaccine mandates have not been on religious grounds. | Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent. | The interpretation of state rules of civil procedure is a matter purely for state courts. Whether a state procedural rule (or even substantive approaches to jurisdiction) violates federal law, including the U.S. Constitution, is a question of federal law, but state courts are still competent to answer such questions that arise in the process of state litigation, subject only to precedent from the Supreme Court of the United States. I may be starting to just repeat things now, but even if the legal issue you're interested in (the extent to which trial courts are divested of jurisdiction during non-frivilous interlocutory appeals in matters controlled by the FAA) is substantive or jurisdictional rather than procedural, Federal circuits do not bind state courts. However, the Supreme Court of the United States can provide binding prcedent on federal law that state courts must apply. I could see the reasons in Coinbase being written broadly enough to apply to both state and federal proceedings. | There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake. | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | The explanation in the decision (fn 1) is that That announcement does not moot this case. We have said that such voluntary cessation of a challenged practice does not moot a case unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” [citations] The Department has not carried the “heavy burden” of making “absolutely clear” that it could not revert to its policy of excluding religious organizations... “there is no clearly effective barrier that would prevent the [Department] from reinstating [its] policy in the future” |
Why are pro se litigants allowed to practice law? I see a lot about why people aren't allowed to practice law on behalf of another person, but I do not see any positive justification for allowing a pro se litigant to practice law on behalf of himself. Is there a court case that decided pro se's are allowed to practice law on behalf of themselves? Because I would like to see the exact reasoning. I wonder if it is constitutional or based in common law or what exactly. | A summary is here: see for example Section 35 of the Judiciary Act of 1789: 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel'. In the same vein, Adams v. United States ex rel. McCann, 317 U. S. 269 held that "an accused, in the exercise of a free and intelligent choice and with the considered approval of the court, may waive trial by jury, and so, likewise, may waive his constitutional right to the assistance of counsel". In Faretta v. California, 422 U.S. 806 it is held that this extends (via the 14th) to state courts. As to the expression "practice law", maybe the meaning of this expression is taken to be self-evident, though clearly it is not. Statutes that prohibit that act for non-lawyers generally specify things such as "for another person" or "holds himself out as entitled to practice law". | Passing the bar exam allows one to get a license to practice law. It is to some extent like a certification exam. It is in all US states a crime to practice law without a license. Exactly how "practice law" is defined varies a bit, but holding yourself out as a lawyer, opening a law office, or taking money for representing people in court is petty much always included. Other related things are often included also. Even if one has passed law school and thus earned a law degree, it is a crime to practice law without a license, and one cannot obtain a license without passing the bar exam. In some states it is possible, but hard, to pass the bar without a law degree, in some a degree is required. so the main thing a law student cannot (legally) do that one who has passed the bar exam can is practice law. Legal Sources I found this definition of the practice of law on an official Maryland web page: The “practice of law” is defined in the Maryland Code as follows: (1) “Practice law” means to engage in any of the following activities: (1) (i) giving legal advice; (1) (ii) representing another person before a unit of the state > (1) > > > (1) (iii) performing any other service that the Court of Appeals defines as practicing law. (2) “Practice law” includes: (2) (i) advising in the administration of probate of estates of decedents in an orphans court of the state; (2) (ii) preparing an instrument that affects title to real estate; (2) (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (2) (iv) giving advice about a case that is or may be filed in a court Md. Code Ann. Bus. Occ. & Prof. § 10-101(h). The Court of Appeals has interpreted the practice of law to include “utilizing legal education, training, and experience [to apply] the special analysis of the profession to a client’s problem.” Kennedy v. Bar Ass’n of Montgomery County, Inc., 316 Md. 646, 662 (1989). In addition, meeting with potential clients may constitute the practice of law. Id. at 666. The practice of law is “ ‘a term of art connoting much more than merely working with legally related matters.’” Attorney Grievance Commission v. Shaw, 354 Md. 636, 649 (1999) (citations omitted). “ ‘Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.” Id. Therefore, the Court of Appeals ruled that a bar applicant who had served as a hearing examiner for the Maryland Department of Employment & Training was not engaged in the practice of law, and therefore not eligible to take the attorney’s examination. In re Application of Mark W., 303 Md. 1, 4-6 (1985). “The hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client’s legal affairs.” In re Application of R.G.S., 312 Md. 626, 632 (1988). Also relevant is RULE 19-305.5. UNAUTHORIZED PRACTICE OF LAW; Law Students Under Supervision Some comment mentioned assistance in pro bono work by law students. I found Maryland Rule of Professional Conduct 19-220 - Legal Assistance by Law Students which provides in pertinant part, omitting the definitions of terms: (b) Eligibility. A law student enrolled in a clinical program or externship is eligible to engage in the practice of law as provided in this Rule if the student: (b) (1) is enrolled in a law school; (b) (2) has read and is familiar with the Maryland Attorneys' Rules of Professional Conduct and the relevant Maryland Rules of Procedure; and (b) (3) has been certified in accordance with section (c) of this Rule. (c) ... The certification shall state that the student is in good academic standing and has successfully completed legal studies in the law school amounting to the equivalent of at least one-third of the total credit hours required to complete the law school program. ... (d) Practice. In connection with a clinical program or externship, a law student for whom a certification is in effect may appear in any trial court or the Court of Special Appeals, or before any administrative agency, and may otherwise engage in the practice of law in Maryland, provided that the supervising attorney (1) is satisfied that the student is competent to perform the duties assigned, (2) assumes responsibility for the quality of the student's work, (3) directs and assists the student to the extent necessary, in the supervising attorney's professional judgment, to ensure that the student's participation is effective on behalf of the client the student represents, and (4) accompanies the student when the student appears in court or before an administrative agency. The law student shall neither ask for nor receive personal compensation of any kind for service rendered under this Rule, but may receive academic credit pursuant to the clinical program or externship. This page about the Univeristy of Maryland School of Law's public Servie program describes the program as: "one of the region’s largest public interest law firms" and states: Working alongside faculty, students provide 75,000 hours of free legal service annually to Maryland citizens in need[.] This is obviously a widely recognized and approved activity. | In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures. | No The general common law rule is that a lawsuit requires an actual dispute. This is a contrived dispute with no real-world relevance. With apparent (or even actual) authority to act on behalf of A, you assisted B with making copies. The moment you contrived this scheme and set it into motion, you consented on behalf of A to allow B to use the materials. It is like paying someone to slip and "fall" on your sidewalk so they can sue you. There is no actual dispute, and volunti fit non injuria. | An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to. | There are a lot more differences than this, but if your teacher sums up what he/she means by that sentence. Here, specifically, in Civil Law, the decision of the courts must comply with the laws as enacted, which means there are specific statutes required to make something illegal. Common Law features Stare Decisis which basically means that if Case A is decided in one way, and Case B is a similar Case to Case B, Case B must yield the same decision for all cases in that jurisdiction and lower courts below that court. This means that while statutes (laws) can be made by a legislature, the courts can "make law" by deciding cases. For example, some States in the United States and England and Wales only recently (within the past 30 years) adopted an actual law that made murder illegal? Prior to that murder was illegal under Common Law Murder that had been based on precedence from bazillion cases before that said it's illegal. Nobody bothered to write it down in an actual law. There are several other big differences such as Inquisitorial vs. Adversarial nature of courts, how and when punishments are decided (The famous "Just following Orders" Defense was given in part because of this difference and a lack of understanding over it.), who is the trier of fact vs. who is the trier of law, but as far as what is "Law" this is a good single summation of the difference in a single sentence. But it really shouldn't be condensed to a single sentence. | Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can "plead the 5th". There is a tiny exception for civil cases, where they can do so there too. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. |
Is there such a thing as "indirect" defamation? A says to B, "You are a lousy drug dealer." They are overheard by a bystander, C, with consequent damage to B, who really isn't a drug dealer. My understanding is that "defamation" does not exist for conversations between two parties, but does occur when one or more third parties become involved. So the issue here is, at what point does C become a third party. I'll use two cases for illustration: 1) A, B, and C are together in the same room. A addressed B but not C. 2) A and B are inside a building, C walks by at the "right" moment and overhears A's remarks through an open window. He also sees A and B. Do either or both of these cases constitute defamation of B by A to C? | The answer is likely "yes" in both scenarios, because defamation can be either intentional or negligent. This is what the Restatement says: (1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed. . . . COMMENTS & ILLUSTRATIONS Comment: a. Manner of making publication. A publication of the defamatory matter is essential to liability. (See § 558). Any act by which the defamatory matter is intentionally or negligently communicated to a third person is a publication. . . . . . . k. Intentional or negligent publication. There is an intent to publish defamatory matter when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated. (See § 8A). It is not necessary, however, that the communication to a third person be intentional. If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication. A negligent communication amounts to a publication just as effectively as an intentional communication. Illustrations: A and B engage in an altercation on the street where there are a number of pedestrians. During the course of the quarrel, A in a loud voice accuses B of larceny, the accusation being overheard by a number of passers-by. A has published a slander. Restatement (Second) of Torts § 577 (1979). | was there a good way to publicly shame Bob, and prevent him from getting his next job, without breaking Carol’s confidence? Apparently not. The conclusion that Bob's violations of company policy are short of breaking any laws leaves little to no reason for publicly shaming him. Details on the company policy, the facts, and the statements might make a difference, but your description is generic in that regard and would require us to speculate on what they could be. Could there have been grounds for a lawsuit? It largely depends on the terms of the publications, their veracity & import, and --if false or unfounded-- their effect on Bob's prospects and/or whether the statements are defamatory per se. Would a truth defense for a statement such as, “We completed an investigation of Bob for professional misconduct,” require disclosing the investigation? Yes. A defendant has the burden to prove the [affirmative] defense(s) on which he intends to premise his position. Note that the statement “We completed an investigation of Bob for professional misconduct” in and of itself is not really a truth defense because it is inconclusive as to whether Bob was found to have incurred misconduct. The sole fact that Bob was investigated does not justify imputing to him disreputable conduct. Would a defense that the investigation gave them legitimate reasons to believe that the insinuation they made is true require them to disclose it? Yes. Bob is entitled to gather from the defendant the bases for the latter's allegations. Otherwise defamers would systematically elude their liability by sticking to generic allegations only. Are there other good defenses that could have gotten the lawsuit dismissed as frivolous? That requires us to speculate because we are given no details about the underlying events, Bob's pleadings, the evidence obtained during discovery, and so forth. That being said, a prevailing defense does not imply that the lawsuit is frivolous. Would the identities of the witnesses have been redacted? No. The fact that Bob did not break any laws suggests that the matter does not warrant measures akin to witness protection. Nor does your description reflect that the communications are protected by some privilege. Is it credible that Ethan had a good legal reason to keep this “in the family” for Carol’s sake? That is unanswerable because, inter alia, it is not about the law, it is unclear what exactly "Carol's sake" entails, and the substance of the company's other scandals as well as Ethan's reason(s) are unspecified. Ethan's "good legal reason" does not necessarily have to protect or advance "Carol's sake". | This depends on the nature of the "ban" ---i.e., who issued it, what legal power they have, and what it actually requires you to refrain from doing. You say it is "their ban" so I am going to assume that this is just a decision that the store has made not to allow you entry. If it is indeed the store itself that has "banned" you, this would not prevent you from calling them to apologise for whatever you did. Calling a business on the phone cannot generally be considered a trespass --- at most, if you were to repeatedly call and harass a business over and over again, it might give rise to a nuisance suit. Unless you have extremely strange laws in your jurisdiction, it is almost certainly not against the law for you to call a business that has banned you, a fortiori if this phone call is made for the purposes of apologising for whatever you did that led to the ban. Although it does not appear to be the situation in this case, if this ban was an actual restraining order of some kind issued by a Court, then it might indeed prevent you from contacting the business (in which case breaching it would lead to an action for contempt of court, not trespass). If a Court were to issue you with an injunction or restraining order of some kind to ban you from a business, then that instrument would specify what you are prevented from doing. You would then need to be very careful to comply with that order. In short: there is a great deal of difference between a "ban" made by a store as the owner of property, and a ban issued by a court through an injunction or restraining order. | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | I am not knowledgeable about UK law, but since almost everywhere in the U.S. employment is at-will by default, in all three scenarios Company B is entitled to terminate the employee very easily. The assumption that the employee was accurately found guilty of harassment elsewhere precludes more interesting analyses where matters such as defamation and public policy are involved. If the contract between the employee and Company B establishes that termination will be for good cause, the employee has only a mild chance of not being terminated for what he did in Company A. However, I say "mild chance" because in most cases Company B can reasonably argue that it seeks to protect its other employees and/or customers from the possibility that the employee's misconduct may occur in the current workplace. A very detailed analysis of the factual circumstances might be required for discerning whether Company B's decision to terminate the employee is merited. Additionally, in cases where The Employee is a publicly visible figure and a figure of authority having a management role there could be a concern that the employee's misconduct elsewhere may harm the image of Company B. | Your attorney can file a lawsuit against the other driver, and legal liability can be determined in court. Your want to let an attorney do this, because the one thing that keeps you from being (expensively) counter-sued for defamation is that you didn't name the driver and insurance company. It is extremely unlikely that the other driver accused you of liability ("liable" is a legal conclusion, not a fact). Instead, there is a dispute over the facts. During the trial, both sides get to present their evidence and the judge will determine who is actually liable. If you are found liable, your insurance company may have to pay up. If the other guy is found liable, his company will have to pay up. Or, fault can be split 50-50 (in which case you will be out of luck because you don't have collision insurance to cover your losses). If the insurance company believes that the facts support their client and that you will lose in court, they are not going to volunteer to pay your losses. If they believe that the facts support you, or are closer to 50-50 w.r.t. fault, they are unlikely to volunteer to give you money. If the driver makes a material plainly false statement to his insurance company, they might have recourse against him. Lying under oath is perjury which is a criminal offense. But mis-remembering facts or having incorrect beliefs is not a crime and won't lead to any legal problems for the driver. The belief that you are not at fault is not a lie. If the facts are as cut and dried as you make them out to be, the matter will be easily sorted out in court. | Just below the section you quoted it says: (3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section. There is no stated provision for the case you mention. I suspect that the law would apply. Whether the authorities would choose to prosecute in such a case is a very different question. There might be caselaw of this subject. I wouldn't know. If this is more than hypothetical, i would urge consulting a lawyer with local knowledge of criminal practice. | Bob should certainly expect to be impeached by whichever side his testimony injures. Their attorney will confront him with the transcript of his previous testimony, and likely read it out loud for the jury to hear, and force him to acknowledge that he said something different before. This is pretty standard trial tactics. Bob would not be treated as formally admitting that he committed perjury, though I think it's fair to say that he has effectively made that admission. One side will treat him as having lied the first time; the other will treat him as lying now. It's possible that he will have some explanation for the discrepancy -- he was high, he has memory problems, he misunderstood the question -- but in your hypothetical, the explanation would have to be pretty amazing to justify such a complete reversal. |
Must a natural spring be disclosed when buying a house? I purchased a home last fall just to discover, come spring, that it was on a natural spring. It turned out that the spring is water table dependent and as such was not present during the time of the home inspection as water levels were lower. Upon tearing up the carpet I had discovered cracks in the floor that were patched over and that the water was taking said path and, when breaking open that path, the contractors had discovered that the area around the path was hollowed out by the water. The only thing indicated on the sellers disclosure was that they had sump pumps that ran no structural or foundation issues were indicated, however I am unsure if a spring is required to be disclosed in PA Note: When I say there is a natural spring I mean 4000+ gallons an hour from 1 of the pumps alone. And city has tested the water disowning it as definitely ground water | The general rule in the sale of a "used" house is "buyer beware", but the seller of a "used" house must disclose latent defects of which the seller is aware. (Different rules apply to the first buyer of a newly built house.) While a natural spring would not always be a defect, one that causes structural or foundation problems is clearly a defect. So, the two key questions are (1) whether the defect is one that could be discovered with a reasonable inspection, or whether it was instead "latent", and (2) whether the seller had knowledge of the defect. If the defect couldn't have been discovered with a reasonable inspection, and the seller was aware of it, but didn't sufficiently disclose it, then the seller has liability to you if you bring suit within the statute of limitations, equal to the damages you have suffered from the non-disclosure of the latent defect. Under the circumstances that you describe, where the evidence of the defect was hidden by a carpet, it seems plausible that this was a latent defect. So, the big question at this point is whether the seller was aware of the natural spring causing foundation/structure damage in the basement. This would depend upon facts and circumstances which you question does not provide an answer to, so the question can't be finally resolved. | I can't see anything to say this is a state-wide ban. Do they have to give an opportunity to return unused fireworks for a refund? The ban imposed by Portland Fire and Rescue appears to relate to the use, not possession, of fireworks so I assume that the stores' / State's regular refund policies would apply. Due to unusually hot temperatures and dry conditions, PF&R is announcing an immediate ban on the use of all legal and illegal fireworks... | What would be the most reasonable thing to do? Live with it. Oh, and stop breaking the law with your automated emails. Illegality on their part does not justify illegality on your part. Also, it’s likely that this activity has caused your email address to be blocked automatically which may explain why they aren’t contacting you. From a legal point of view, that’s the only reasonable option. You do have valid grounds for a lawsuit for the value of the watermelon but the cost of filing will be a couple of orders of magnitude greater than the value of the melon so doing so isn’t “reasonable”. If you want to vent, the internet offers a wide variety of social media platforms for which that seems to be their primary focus. But that’s got nothing to do with the law. | Sure, you can sue; but who are you going to sue? You have to prove someone knew about the fact that one condo resident was going to be paying for the other condo's hot water. Mixed up plumbing and electrical systems are fairly common in apartment and condo complexes, especially ones that have been converted. Chances are high it's a mistake and was not done on purpose. If you can find the original general contractor, he's going to say it wasn't him, talk to the plumbing contractor. Who will say I didn't do it, and my work is only guaranteed for five years, so talk to the plumbing inspector. He'll say he didn't see it, and besides, all those inspection records were thrown out ten years ago. The condo association may or may not have had oversight of the construction. Can you prove the neighbor knew about it and didn't tell the condo association? Can you prove the realtor who your dad bought through knew about it? Was there a home/condo inspection done - paid for by your dad or the seller - before the sale that might have spotted it? The police aren't going to care; technically, it is a crime, in a way, but it's not like someone tapped into someone's cable TV or electrical power meter last week. This is a problem from years ago, more than likely from the original construction; so who is really responsible? The police aren't going to run that down. And, what are the damages? A few months of part of a power bill? Is it really worth a lawsuit and a lawyer? Against who? I can't see a lawyer jumping into it. If you want to do something for whatever comes next, yes, collect evidence. Tell the neighbor he/she's on your hot water. Take photos and get a licensed plumber to take a look at it and give you an estimate for separating the water systems. That will document that the two systems are not separate. (Either call your own plumber or ask the condo association for the name of someone). Then, start with the condo association. They may be responsible for the inspections before the sale. At very least, the condo association may have to check off on the repairs. And, they may know more about it (oh, yes, we've heard about that in a few other condos...) You could bring it to everyone's attention at a meeting; it may be a common issue in the complex, and other residents may not know about it. If, in fact, the neighbor doesn't have their own water heater, they may be more on the hook for expensive repairs than your dad. They may have more of a case against the condo association than your dad. | No crime is committed if a person performs a service and ineptly describes the service. To change the context a bit, I might contract with a guy to build a wall and he says he will charge me for installing a "Swedish drain" when in fact what he will install is called a "French drain". If he installs the thing, it does not matter (legally) whether he calls it by the conventional name. I am not relying on the distinction between French and "Swedish" drains, and that is not material. However: he may specify that the drain will use 18 inches of 1.5" drain rock, but he uses (and intends to use) 18 mm of 3/8" crushed rock, and that is a material fact. In the latter case, he has committed fraud. The same considerations go into dealing with "unnecessary" service, which however is more about "what he said". Let's assume that you come in with a flat tire and the mechanic offers to overhaul the engine. If you agree to this service, that is not fraud, because he did not say something false that you depended on. If, however, you ask "Why would overhauling the engine be necessary" and he says, I dunno, "Because by law, I can't repair a tire without first overhauling the engine", or "Because you flat was caused by astral radiation from a poorly-tuned engine", then that would be fraud – the statements are false, and you relied to their truth, in agreeing to the service. On the third hand, reasonable statements like "it might help", "it could work" are not deceptive, even if it turns out they are not true. Fraud is not about statements that "turn out not to be supported by the facts", it is about statements that you know to be false. | You will need to sue them for the money. You may decide that the cost and stress of doing so is not worth it, and just write off the cost. In future you should require a deposit (if you don't already), and not return it until you have checked that the final utility bills have been paid. (I am assuming there was no deposit, or that you have returned it already; if not, you can pay the electricity company out of that deposit.) | Short Answer Not really. Your first step should probably be to hire a private investigator to do an asset search for you. Longer Answer Real property records in the United States are maintained on a county by county basis and there are roughly 3000 counties in the United States (in Louisiana, a county is called a "parish"). There is not even a centralized state level governmental database of real estate ownership. And, many smaller rural counties don't make their real property records available over the internet. Moreover, in New England, lots of key records are maintained at the town level (all property in New England is part of some New England town of which there would be many in each county, and county government mostly handles the court system rather than other rural services). Also, contrary to the suggestion of BlueDogRanch in the comments, a Will would frequently not contain a list of the real estate owned by the decedent, although the lawyer who drafted the Will may have taken notes indicating the real property owned by that person at the time it was drawn up. More commonly, a Will will set forth a formula for dealing with property. And as you indicate in the comments, there may be no will to find in any case. You should also ask if there is a trust in place, however, as some people set up a trust and dispense with a will. Businesses are usually registered with a state secretary of state. These records reveal a registered agent and sometimes managers or directors of businesses, but not the ownership of businesses. It is possible to set a business up so that it has no obvious ties to an individual. Searching by the decedent's business and home addresses and the names of spouses and business associates and lawyers for the decedent, can sometimes reveal businesses that don't have the decedent's name attached to them. Another public database that can be searched (at a price and with some technical expertise) is the personal property lien database also known as a "UCC Search" for the Uniform Commercial Code that requires that personal property liens be disclosed in this central filing place. Furthermore, there is no central registry of financial accounts. Incidentally, there is also no central database of divorce records in the United States. The court clerk of each court with jurisdiction to grant a divorce maintains these records separately. Keep in mind, however, that unless a divorce decree said otherwise, usually a man has no obligation to leave his children anything at his death as an inheritance if he has a Will in every U.S. jurisdiction (unlike many European inheritance laws that require that a parent make bequests of some amount to children in the absence of special circumstances). Strategies for Asset Searches A variety of approaches are available to locate assets, although some of these are less viable when there is a widow who is the executrix of the estate who is in control of the situation. Ask for an inventory and accounting of the estate and any trusts. Normally, the person who administers an estate must prepare an inventory of assets owned at death and an accounting of the disposition of assets at death. A copy of the Will must also be provided. You can also file a demand to receive notice of all proceedings in a probate estate. Often these documents only need to be provided upon a written request. This is an incomplete record. It doesn't cover transfers by gift prior to death, nor does it cover assets that are in joint ownership with a right of survivorship, nor does it cover assets with a beneficiary designation or a transfer on death instruction. If he had a trust and you had any interest in the trust, the trustee is obligated to provide inventory and accounting information and a copy of the pertinent portions of the trust to you upon request. Ask if he filed any estate tax returns (Form 706) or gift tax returns (Form 709) during his life. If he had an estate of about $5 million or more at his death, he would have had to file an estate tax return (Form 706), even if no estate tax was actually due. This is due nine months after the date of death. Unlike a probate inventory, a Form 706 captures both assets that pass via a Will (called probate assets) and assets that pass by a joint ownership or beneficiary designation or trust (called non-probate assets). If he made large gifts to anyone other than his spouse during life, they would have had to be reported on a gift tax return (Form 709). This is due on April 15, of the year following the year in which the gift is made unless an extension of time to file is obtained. This would reveal large transfers to trusts that he made during life. If he was wealthy but got around having to file a Form 706 by making lots of big lifetime gifts, there would be filings of Form 709 that would disclose those gifts. Review the decedent's personal financial records. These are usually kept at a home or office. Statements and records for various investments are often kept there. Also, bank statements can often be clues that can reveal other assets. For example, usually collectible items like art or gold coins would be purchased with a credit card or checking account and the purchases could clue you into the need to look for those assets. Of course, getting access to these records could be hard if you are not in control of the estate. Determine if there is a safety deposit box or safe, and if so, review the contents. Often deeds to real estate, certificates of title, stock certificates for closely held companies, coupon savings bonds, and other important documents are kept there. Loan application forms can also be a great resource as they require a full disclosure of assets and there is an incentive not to omit assets in filling one out. Of course, getting access to this could be hard if you are not in control of the estate. Collect the decedent's mail over the course of a year. Almost all real estate gives rise to a property tax bill at least once a year and more often twice a year, and financial accounts issue statements at least once a year in most cases and often monthly or quarterly. Of course, getting access to this could be hard if you are not in control of the estate. Pull a credit report, then repeat about a year later. Credit reports reveal who the decedent had accounts with, which can be a one stop shopping list for bank statements to obtain and review. They also capture accounts that the decedent won't get in the mail because there is a bad address. By a year out from the date of death, any big business creditor that isn't sending mail (e.g. because the creditor is sending bills to an email address you aren't aware of or don't have access to) will show up as delinquent in a credit report. Substantial credit is usually only granted to people with lots of wealth. If there is no debt or only little debt on a credit report, this tends to corroborate the idea that there is little wealth. In particular, credit reports reveal outstanding real property mortgages and personal property secured loans with financial institutions that are outstanding, which can be used to locate assets. You may need a private investigator's assistance to access credit records if you are not administering the estate. Look at the decedent's most recent income tax return or two. If the decedent didn't keep them, a transcript can be obtained from the IRS. Of course, getting access to this could be hard if you are not in control of the estate. But, you could always ask. Investment income lines will reveal any financial accounts that generate interest or dividends or capital gains (although it won't capture "coupon bonds" that only generate income when redeemed, like U.S. savings bonds or no interest checking accounts or closely held C corporation stock that doesn't pay dividends). There will be a "Schedule K" contribution to the tax return of income and expense items from any S-corporations and any closely held partnerships, LLCs or business trusts that had income or losses in that year. Residential real estate will normally give rise to property tax and mortgage interest deductions (unless there is no mortgage or the mortgage is small, in which case the Standard Deduction for personal deductible expenses will be claimed). Investment real estate may have generated rental income, depreciation deductions, and/or mortgage interest deductions (even if the decedent did not otherwise itemize deductions) and at a minimum there ought to be property tax payment deductions. Contact the attorney who drafted the Will, if known. While a Will rarely contains a detailed list of assets, the attorney drafting it usually prepares a list of the major assets that someone owned at the time it was drafted and keeps a set of those notes in the file. This may not be useful if the Will was drafted many decades ago (many people draft their first Will when they join the military or get married or first have kids and never change it). But, it may be helpful if it was drafted recently. An attorney may decline to speak with you on the basis of attorney-client privilege, however, if there is an executrix in place already managing the estate. Obviously, this doesn't work if he did no estate planning and plenty of people die without a will. Less than half of deaths even give rise to a probate proceeding at all, because lots of people die poor or don't have any probate assets at death. Hire a private detective. Private detectives live less glamorous lives than you'd think. One of the most common jobs that a private detective is hired to do is to locate assets for a creditor or for a probate estate. They have access to proprietary databases that are not available to the general public. But, they aren't cheap. In your case, this may be the only really viable solution, and while they aren't cheap, they know what they are doing and would probably be more efficient and more complete in their search than you would be. You can learn a lot with a few thousand dollars. Also, if the PI's investigation reveals substantial U.S. assets, you will probably be able to hire a lawyer who will accept payment when concealed assets are secured from the probate estate (perhaps with interest or on a contingent basis). So, hiring the PI is probably a higher priority than hiring the lawyer as a first step. Hire a lawyer A lawyer can efficiently demand information from the widow who is the executrix through formal channels. More importantly, if your PI discovers that assets have been concealed, your lawyer could arrange to have the widow removed from the job of administering the estate and have one of your family members, or a neutral third party professional, appointed to administer the estate correctly. And, an estate administrator can use the tools discussed above to do a more complete and accurate search for assets than a PI could. | Since this seems to have been viewed a lot, an update/answer. I can't comment on the normalcy of such clauses since this has been my only experience. But the Estate Agent immediately struck the clause without any fight, so it seems like it was just there "in case I let it slide". It turned out to be a great decision, since I ended up finding my own buyer in the same week that the agent acquired a suitable offer, which I would then have been liable to pay the fees for. |
Overturning a presidential pardon and double jeopardy President Trump pardoned Joe Arpaio of any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged. This question asks about overruling a pardon and it seems things are messy since the President potentially has unchecked power. My question is after President Trump leaves office, can a new president overrule the pardon? My understanding is if the pardon is issued during a the trial the trial would be halted. If the pardon was later overruled the individual would need to be tried again, but double jeopardy would probably get in the way. This might also extend to if the pardon is issued after the charges were filed but prior to the trial. Double jeopardy may also prevent overruling a pardon after a conviction since it would require a new conviction to punish the individual. In the case of pardoning an individual prior to charges being filed (and possibly prior to the crimes being committed) can a later president overrule the earlier president and hence allow a trial to take place? | The US Constitution Article II, Section 2 grants sayt that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". It does not anywhere say that a pardon can be rescinded. Until a constitutional amendment is added giving the president the power to rescind a pardon (zero chance of that happening), a pardon is permanent. For reference, Ex Parte Grossman, 267 U.S. 87 addresses the question of limiting the presidential pardon power, where the losing side argued that criminal contempt is not an "offense against the United States", and the Supreme Court held that criminal contempt is such an offense. Nothing has legally changed since then. | The question of double jeopardy is not for a jury to consider. It is a question of law that is decided by the judge. In this case, Rittenhouse is charged, among other counts, with first-degree reckless homicide. If he is found guilty on a lesser charge, he will have been acquitted of first-degree reckless homicide, and he will not be able to be retried on that charge by the state of Wisconsin. (If the trial is invalidated to the extent that jeopardy never "attached," for example if it is found that the judge had been bribed to prevent conviction, then a new trial could be brought.) Once jeopardy attaches, there can be no additional trials for the same crime, and any subsequent attempts at prosecution should be dismissed by the court long before a jury is selected. By contrast, if a court determines that a trial does not constitute double jeopardy and a jury is seated, the jury will not consider the possible existence of double jeopardy; the only way to challenge a trial judge's decision on that question would be through the appeals process. If the trial jury in the original trial cannot decide unanimously to acquit on a particular charge then it is a hung jury,and indeed that may result in a mistrial on only those counts on which the jury has deadlocked. From Wikipedia, quoting the Federal Rules of Criminal Procedure: If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree. States, however, may approach this slightly differently. | The 25th amendment §3 says Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Nothing in the Constitution deprives the Vice President of his powers / duties when he is also Acting President. Alternatively, the VP can become acting President under §4, without presidential cooperation, by declaration of the VP and a majority of the cabinet. Then either the President asserts that there is no inability, or Congress decides there is. But: unless the president dies or resigns, or is impeached, the VP is Acting President and actual Vice President, and therefore breaks ties in the Senate. Note that under §4, the VP plus cabinet must declare POTUS unable, and must do it again if POTUS denies the inability. That means that there must still be a VP, who along with the cabinet re-affirms the disability. | Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud United States) Here the indictment's introduction alleges that Trump perpetrated: A conspiracy to to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371. temporary link to indictment pdf pending finding a better version: https://d3i6fh83elv35t.cloudfront.net/static/2023/08/trump-indictment.pdf 18 U.S.C. § 371 (Cornell Law School Legal Information Institute): If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. | Are there any legal constraints on the number of times that a defendant can be retried following mistrials due to hung juries? No. A fairly recent case in Louisiana, for example, involved someone who had been tried perhaps half a dozen times resulting in a mix of hung juries and reversals of convictions on appeal. Or is the only practical constraint the willingness of the prosecutor to expend government resources (and perhaps political capital) pursuing a conviction? Yes. This is the only practical limitation. | Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law? No. Judges and prosecutors have absolute immunity from civil liability for their actions in the course of their duties in connection with the court process. Prosecutors have effectively absolute discretion in their charging decisions and in their decisions to reduce the charges sought against a defendant (prior to jeopardy attaching when a jury is sworn in). Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights Yes. or that his rights were taken away by unwarranted modification of the charges? No. Incidentally, there is no federal constitutional right to a jury trial in a case where six months or less of incarceration is sought as a penalty, and there is no federal constitutional right to counsel unless incarceration is a possible penalty. The Utah State Constitution distinguishes between criminal matters and non-criminal matters in several respects mostly found in the state's bill of Rights (Article I of the State Constitution) in Sections 8, 10, 12, 13, and 19. But, it is fundamentally the right of the state through its prosecutors to decide what charges to press against someone, and they are well within their rights to change their minds. Often, this will be in your favor because reducing an offense to a civil infraction rather than a misdemeanor will have far fewer collateral consequences related to having a criminal record. | Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies? Yes. if Trump's defense team argues that the law that elevates the misdemeanor charges to felony charges does not apply in this case, because the elevation option does not include federal laws, then since this is a matter of law and not a matter of fact, Judge Mercan (rather than the jury) will decide whether or not to dismiss the felony charges? Yes. Does Judge Mercan have the option of dismissing the felony enhancement but allowing the misdemeanor charges to proceed, or would Mercan have to dismiss all charges against Trump? Judge Mercan could probably choose either option if he found that the original charges were not supported by the law. There is law regarding how this decision is made but I personally don't know that area of law well. One of the reason that I am unfamiliar with it is that it is exceedingly rare for a judge to conclude that the prosecutor's charges are not supported by the law. I would be very surprised if that judge reached that conclusion in this case, in particular, because both federal election law violations and state and federal tax law violations are implicated by the indictment. The DA no doubt legally researched this issue exhaustively before presenting the charges to the grand jury and has made out a prima facie case for a felony under the applicable New York State law. If Trump is brought to trial, then would it be possible for a jury to return a verdict that Trump was guilty of the misdemeanor offenses of falsifying business records but innocent of doing so with an intent to commit another crime? If so, then could Trump still be found guilty of the misdemeanors, or would he be fully acquitted, since the jury ruled that he was not guilty of the exact charges that DA Bragg filed? Whether a jury is presented with a lesser included offense charge at the request of the defense, is partially a matter of the prosecution's election to make that option available or not, and partially a matter of the judge's decision on how to handle it. The body of law involved in how this decision is handled on a case by case basis is quite involved. Most of the case law involves homicide cases, assault cases, and property crime cases where there are charges with are identical except for aggravating factors for the most serious charges. But, lesser charges generally aren't presented if based upon the evidence presented at trial, either the more serious charge is established or no charge is proven. For example, if the defendant presents an alibi defense, and a witness whose credibility is disputed places the defendant at the scene intentionally committing a crime, a lesser included offense charge would not be appropriate. But, if the defendant admits hitting a pedestrian and causing the pedestrian's death, but claims that the pedestrian was at fault in the accident for jay walking, while the prosecution alleges that the pedestrian was intentionally struck as part of a mafia hit, multiple lesser included offenses would probably be charged involving different levels of intent of premeditated intent/aggravated circumstances killing (first degree murder), to a knowing killing (second degree murder), to a reckless killing (manslaughter), to a criminally negligent homicide or vehicular homicide charge. Typically, the decision on this point would not be made until all evidence was received and the judge in a hearing away from the jury but in the presence of the prosecutors and defense counsel crafted jury instructions based upon the evidence presented at trial and the arguments raised by counsel at trial. | Separation of powers means that the judiciary can't pass laws or executive orders. It doesn't mean that the judiciary can't interfere with their passage and enforcement. Quite the opposite -- the checks and balances inherent in the system ensure that the judiciary can interfere in some cases. One of the checks is the concept of judicial review: the courts' power to review each branch's actions for compliance with the constitution -- and more importantly, to strike down actions that are unconstitutional. When a court strikes down part of a law, though, they aren't writing a new law, or even repealing a law. They are overturning parts of the existing law -- basically declaring the unconstitutional parts of it void, to be treated as if they didn't exist. In India's constitution, Article 13 provides the main basis for this power. Article 13.(2) (in Part III) states: (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. This article, aside from making it clear that laws passed by the State can be void, also gives the Supreme Court the inroads it needs to do the overturning. The catch is, the Court can not overturn most laws passed by Parliament, just the ones that Part III can be construed to prohibit. (While the judiciary is not explicitly named, it's the only branch that can officially say whether or not a law is constitutional. It'd be a conflict of interest anyway for Parliament to do it. Parliament, in passing the law, presumably wanted it to be enforced, and thus has an interest in avoiding too much scrutiny.) So the Court can already declare an unconstitutional law void, because it already is...and that's before we even get to Article 142. Let's take a look at the article anyway: (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. Note that (2) explicitly grants the power to issue subpoenas, contempt citations, etc. So we can't claim that's what (1) was intended for, and have to ask what it means. The Court decided that the article gives it the power to order the government not to violate your rights, as such an order is "necessary for doing complete justice". And as the final arbiter of the meaning of the very text that defines it into existence, it has that prerogative. And due process is one of the rights protected. Article 21 (also in Part III): No person shall be deprived of his life or personal liberty except according to procedure established by law. "Procedure established by law" is a much weaker phrase than "due process", and technically meant that anything that the government scribbled into law was good enough. But case law has all but removed the distinction. (See Maneka Gandhi vs Union Of India.) Basically, any procedure for depriving someone of life or liberty must be just, fair, and reasonable. (Otherwise a law declaring you a criminal, to be arrested on sight, would be constitutional.) "Someone filed a complaint" simply wasn't gonna fly. |
In the US, at what age can a child refuse to attend a religious service mandated by their parent? If a child has determined that they don't want to attend religious services with their parent, at what age can they no longer be compelled to do so? Given: A parent is stating to their child that they must go with them. A child (of unstated but still minor age) doesn't want to go. Occurring within United States (Michigan if it matters to that level) (area of the world where the UN Convention on the Rights of the Child is not ratified) Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? My comment regarding abuse is purposefully vague. When is it abuse? Is it only physical? If a child claims one religious affiliation (or alternately none at all), is it abuse to force indoctrination? If so, at what age can a child be considered "old enough" to decide that this is some method of verbal abuse? Are there other abuses that can be (or have been successfully) claimed? Please don't assume I only limit the "de facto situations" to abuse. Consider if there are other items that would affect this activity. | Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? This is a hard question to answer that doesn't have a neat resolution. Very little pertaining to the authority of a parent over a child is codified in statutory law and there is not a clear cut age at which a child has "freedom of conscience" vis-a-vis a parent. Most of the law related to children concerns allocation of parenting time and parental decision making between divorced, separated or unmarried parents; abuse and neglect; and juvenile delinquency. There is also usually a snippet of criminal law stating that certain kinds of uses of force to discipline children do not constitute crimes. But, part of why it doesn't come up very much is that older children are usually socialized in a manner that causes them to show a certain amount of respect for the wishes of their parents. It also doesn't come up much for children who aren't in their late teens, because the complete economic dependence of children on their parents or guardians gives the parents considerable power of their children that doesn't require the exercise of physical force. Also, it is quite dependent upon how the issue presents itself. No law enforcement agency is going to aid a parent in forcibly dragging a kid to church against their will. But, no social services agency is going to remove a kid from a home because his birthday party will be cancelled if he doesn't go to the church of his parents' choice the Sunday before his birthday. There are also some subtle but important distinctions between states on the issue of emancipation. In Colorado, emancipation is a statement about the empirical reality. If a child is self-supporting and lives apart from parents or guardians then the child is an emancipated minor. It is not a status granted by a court, it is a status acknowledged by courts when evaluating other issues. In California, a child is not emancipated unless a court grants a child that status and a child who is de facto emancipated without the leave of a court is guilty of a "status offense" (the New York State term for someone in this state is PINS for "person in need of supervision"). Basically, if a parent can force a child to go to church by means that don't constitute abuse or neglect and don't exceed the level of force authorize for child discipline in the criminal code, then they can do it, and if they can't manage that, then they can't do it. Many states have a "status offense" that allows government intervention with the cooperation of a parent or guardian in cases where an "uncontrollable" child is defiant and simply will not give any heed to the parent or guardian's instructions. In practice, the older a child is, the less likely someone viewing a parent's conduct forcing a child to do something is to be viewed as acceptable or legally justified. The legal rights of children in a school setting are also age dependent under the case law, although not always in a really well defined way. Controls on student expression that would be uncontroversial for elementary school students may be looked upon by the law with disfavor for high school students and clearly prohibited for adults. Perhaps one useful way to conceptualize it is that trying to make a child attend a particular kind of religious service is not considered an improper purposes for a parent of any minor to utilize the resources available to the parent to do so, but the range of resources available to a parent with regard to an adult child is much narrower. | The only religious matter I'm aware of that are inadmissible are for special circumstances where one's religious beliefs may be compromised if asked in court. The classic example tends to be clergymen/women being subpeonaed for information against a defendant in court. Conversation with clergy is protected in the United States and is one of a few times cops are not allowed to listen to your one phone call or visit. The typical invocation of this would be a criminal, who confesses his sins to a Catholic priest, and may confess to a crime while receiving the Sacrament of Penance. Since Catholic Priests are bound by the "Seal of Confession" to not speak about the identity of the sinner or nature of the sin. The Priest can be excommunicated if he does this. However, if the religion of the witness is relevant to the case (say a discrimination case) it might be prudent to inquire into the witness's religious beliefs. Suppose a major employer has a special menu in their cafeterias for Hala and Kosher observers but does not offer a fish or non-meat option for meals on Fridays in Lent, then a Catholic's belief in this practice might be called into question. | Testimonial Privilege There is a tradition, embodied in law in many jurisdictions, that a religious confession, is not subject to compelled disclosure in court or to other legal process. This arose from the Catholic practice of confession, but has been long sine extended to the similar practices of other religious organizations. Note that in most jurisdictions this applies only to confessions that a person makes about his or her own actions. It does not apply when a person reports some other person's actions to a religious authority. It also usually applies only to a formal, religiously mandated or authorized communication, not to an informal chat or counseling session. In the US this is usually a matter of state law. Let's look at the relevant law in California, which is tagged as the relevant jurisdiction. (Laws in other US states are usually similar on this subject.) Such a privilege usually applies only to actual testimony under oath, in a court or as part of court proceedings such as a deposition. The law concerning an initial report of possible child abuse is different. According to the California Evidence Code, Sections 1030-1034: Subject to Section 912, a penitent, whether or not a party,has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege. Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege. This means that neither the clergy-person, nor the person disclosing information to the clergy-person (the "penitent") can be required to provide court testimony about the content of the confession. (Note that this is part of the evidence code which governs what evidence is admissible in court.) Also, the penitent may forbid such testimony from the clergy-person. Note that the privilege must be explicitly invoked, it is not automatic. Questions may be asked about the confession, and only if the penitent or the clergy-person objects and invokes the privilege does it apply. The previous three sections (included in the linked page) limit the privilege somewhat. Section 1030 states that: a "member of the clergy" means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization. Section 1031 states that: "penitent" means a person who has made a penitential communication to a member of the clergy. Section 1032 states that: "penitential communication" means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret. So the privilege only applies when the communication or confession was made one-to-one, with no other person present, is part of the regular religious practice of the church or group involved, and the clergy-person has a religious duty to keep the communication secret. All this is normally true of Catholic confessions. It may or may not be true of confessions or communications in other religious organizations, depending on their traditions and practices. Also code section 912(a) provides that: the right of any person to claim a privilege ... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege Mandated Reporting In recent decades laws have bee passed requiring people in various positions of trust, or positions where such people are likely encounter evidence of child abuse, to report to law enforcement when they know or reasonably suspect such abuse. Such people are called "mandated reporters". A failure by a mandated reporter to make such a report when the mandated reporter has knowledge or reasonable suspicion of abuse is a crime. Note that, in most jurisdictions, mandated reporting applies to all forms of child abuse, not just sexual abuse, but also physical and emotional abuse and neglect. Therefore in this answer "abuse" is not limited to sexual abuse. In the US, this is a matter of state law. What positions carry mandated reporter status, what circumstances trigger a mandated report, an what the penalties are for failing to make a report all vary significantly from state to state. Mandated reporter (MR) status is separate from the testimonial privilege described above in this answer. However, circumstances that would trigger the testimonial privilege may also trigger an exception from mandated reporting. Mandated Reporting in California In California Penal code section 11165.7 (a) (32) and (a) (33) list clergy members (defined as " priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.") and "any custodian of records of a clergy member" as mandated reporters (MRs). However section 11166 (d) (1) provides an exception. Knowledge or suspicion acquired "during a penitential communication" need not be reported. For this purpose a "penitential communication" is defined as: a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of the clergy member’s church, denomination, or organization, has a duty to keep those communications secret. Note that only if the "church, denomination, or organization" imposes on the clergy member a duty to keep the communication secret is the communication a "penitential communication". If there is no such duty, the exception does not apply. Normally, a "penitential communication" concerns the actions of the person making the communication, not of some other person. However in the course of a communication about him- or herself, a person may mention the actions of another person. That mention would, as I understand this law, be part of the penitential communication and thus subject to the exception in section 11166 (d) (1). When is a Report Mandated? Section 11166 (a) provides that: (a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in the mandated reporter’s professional capacity or within the scope of the mandated reporter’s employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. ... [The paragraph goes on to define the time and manner of reports.] Section 11166 (a) (1) defines "reasonable suspicion": For purposes of this article, “reasonable suspicion” means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on the person’s training and experience, to suspect child abuse or neglect. “Reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient. For purposes of this article, the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse. 11166 (a) mentions a MR's knowledge of or observation of the possibly abused child. It is not clear to me if a discussion with a third party, such as another adult, would be sufficient to raise a "reasonable suspicion" such that a MR would be required to file a report, if there is nothing that the MR has personally observed that would raise or tend to confirm such a suspicion. However section 11166 (g) provides that: Any other person who has knowledge of or observes a child whom the person knows or reasonably suspects has been a victim of child abuse or neglect may report the known or suspected instance of child abuse or neglect to an agency specified in Section 11165.9. For purposes of this section, “any other person” includes a mandated reporter who acts in the person’s private capacity and not in the person’s professional capacity or within the scope of the person’s employment. {Emphasis added.} Thus the person who makes a penitential communication to a clergy member may (but need not) report directly to Law Enforcement, and the clergy member may urge such a person to do so. Note that 11166 (i) (1) provides that: (i) (1) The reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established provided that they are not inconsistent with this article. An internal policy shall not direct an employee to allow the employee’s supervisor to file or process a mandated report under any circumstances. Note that 11166 (i) (3) provides that: (i) (3) Reporting the information regarding a case of possible child abuse or neglect to an employer, supervisor, school principal, school counselor, coworker, or other person shall not be a substitute for making a mandated report to an agency specified in Section 11165.9. Specified Scenario In a comment on an earlier version of this answer, the original poster of the question (OP) asks: So if there was a situation where church member X tells to a religious leader L (no other persons present) that church member Y has abused a child, then the legal responsibility for the leader to inform authorities depends primarily on state law and secondarily on what the religious traditions of that religious org state? Would this be correct? Yes, the responsibility of L in that situation depends on both the state law of the state where this occurs, and on the rules and traditions of the the church or other religious organization are. There are several questionable points in that scenario under California law: When X tells L about the abusive actions by Y, is that a "penitential communication" under the traditions of the relevant religious organization? For instance, in Catholic practice, a confession is about oneself, and any mention of the misdeeds of others is not confidential unless it would reveal the contents of the actual confession. Does religious law, tradition or practice impose a duty of secrecy on L? If not, the exception does not apply and a report is mandated if the other conditions for a report apply. My understanding (not confirmed) is that the Catholic church, for example, has in recent years changed its canon law so that a persistent course of action, showing no indication of repentance nor effort to stop the sinful action where there is a likelihood of future harm to others relives a priest from the duty of secrecy. When there is no religious duty of secrecy, the exception does not apply. Does the report by X give L "knowledge" or "reasonable suspicion" of abuse? If not, no report is mandated. If there is not at least corroboration through direct observation of the child in question, then the wording of 11166 seems to me to imply that no report is mandated, but I have not found case law confirming or opposing that conclusion. Also, under 11166 (a) (1) suspicion must be "objectively reasonable" to trigger a mandated report. If X is known for making unfounded accusations, X's report might not be grounds for "reasonable suspicion". Thus the detailed facts about the situation, and about the rules or traditions of the church or religious organization will matter. | There was no actual child who was caused to view the material, so there was no offense under that provision. By contrast, inciting a child under 13 to engage in sexual activity is an inchoate offense, so it is not necessary for any harm to an actual victim to have occurred. Note that the relevant section of the Sexual Offenses Act 2003 concerns "causing or inciting," and that the charge was "inciting." The section concerning watching a sexual act, by contrast, only inludes "causing." | In germany, a child below the age of 14 cannot be guilty of a crime. However, a family court may order measures regarding the welfare of the child. In a case like the one you describe, or even somewhat less extreme ones, this might be taking the child out of the family and into a care home where the child would be locked up for his or her own good. | One relevant US law is Title 18 Chapter 110. Using real children in porn is against the law, as is most anything connected to it (permitting children to do it, distributing, buying...). Under the definitions (18 USC 2256(1)) “minor” means any person under the age of eighteen years. The possible hook for cartoons is via the definition of “child pornography” which is any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where— ... (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. My guess is that hentai doesn't satisfy this definition, since I hear that the characters in a cartoon don't actually look like real people. However: there are also general laws against obscenity in some jurisdictions, and in US v. Whorley, it was held that you can still be convicted of receiving obscene material (Japanese child porn cartoons) – SCOTUS refused to hear an appeal. Most cases that are prosecuted also involve real child porn, or plea bargaining. In light of Whorley, it hasn't been definitively determined that hentai is against the law, but the first step has been taken. | U.S. law does not forbid 15 year olds from joining dating websites. Direct U.S. regulation of Internet communications mostly via the Children's Online Privacy Protection Act (COPPA) has a cutoff age of 13 years old. This said, nothing obligates websites to allow minors to join their dating app, and they may be reluctant to do so for fear that if you are mistreated by someone as a result of the app that they could be held responsible. In particular, amendments to the Communications Decency Act (CDA) called FOSTA-SESTA for the "Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and "Stop Enabling Sex Traffickers Act (SESTA)" which took effect April 11, 2018, limited the prior near total protection from liability under Section 230 of the CDA. The amendments maked it illegal to knowingly assist, facilitate, or support sex trafficking, and amended the Communications Decency Act's section 230 safe harbors (which make online services immune from civil liability for their users' actions) to exclude enforcement of federal or state sex trafficking laws from immunity. Federal sex trafficking laws largely apply to commercial sex by people under the age of 18, which an online dating app could facilitate, if used by someone inclined to use it in that manner. The two main federal sex trafficking laws are as follows: Section 1591 now provides in part the following: “Whoever knowingly in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion ... , or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act,” shall be imprisoned not less than 15 years (not less than 10 years, if the victim is 14 years of age or older and the offender is less than 18 years of age). The Mann Act outlaws prostitution and unlawful sexual activities that involve interstate or foreign travel. It consists of three principal substantive sections. Section 2421 proscribes the interstate or foreign transportation of someone for purposes of prostitution or unlawful sexual activity; misconduct which is punishable by imprisonment for not more than 10 years. Section 2422 condemns coercing or enticing another person to travel in interstate or foreign commerce to engage in prostitution or unlawful sexual activity, or using interstate communications to coerce or entice a child to engage in such conduct. The communications offense is punishable by imprisonment for not less than 10 years; the travel offense by imprisonment for not more than 20 years. Section 2423 outlaws four distinct offenses: (1) §2423(a) - transportation of a child in interstate or foreign commerce for purposes of prostitution or unlawful sexual purposes; (2) §2423(b)—interstate or foreign travel for purposes of unlawful sexual abuse of a child; (3) §2423(c)—foreign travel and subsequent unlawful sexual abuse of a child; and (4) §2423(d)— arranging, for profit, the travel outlawed in any of these offenses. The first is punishable by imprisonment for not less than 10 years, each of the others by imprisonment for not more than 30 years. So, the reluctance of a dating app to allow minors to use their services is understandable. They either need to aggressively police a low cost or free except for ad support service with considerable employee expense to do so, to avoid the risk of FOSTA-SESTA authorized liability, or they can not offer the service at all. In a nutshell, the app providers consider you to be jail-bait and don't want to face the associated risks. | The legal question is whether there is a religion-specific exception to mandatory vaccination laws, and if so where does it come from? These are state-specific laws, so one would have to look at a specific state to answer the question. In Washington, this is implemented in the exemptions section, RCW 28A.210.090 (1)(b) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the religious beliefs of the signator are contrary to the required immunization measures; or (c) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the signator has either a philosophical or personal objection to the immunization of the child.... (2)(c) Any parent or legal guardian of the child or any adult in loco parentis to the child who exempts the child due to religious beliefs pursuant to subsection (1)(b) of this section is not required to have the form provided for in (a) of this subsection signed by a health care practitioner if the parent or legal guardian demonstrates membership in a religious body or a church in which the religious beliefs or teachings of the church preclude a health care practitioner from providing medical treatment to the child. In other words, you have to just say you object for one of these reasons, or you have to show that you are a member of a sect that is known to object. The law does not, however, provide a central registry of churches whose teachings preclude immunization, not is there any investigation of the claim allowed under the law. In Nevada, NRS 392.437 does not expressly include the personal-or-philosophical exception contained in Washington law: A public school shall not refuse to enroll a child as a pupil because the child has not been immunized pursuant to NRS 392.435 if the parents or guardian of the child has submitted to the board of trustees of the school district or the governing body of a charter school in which the child has been accepted for enrollment a written statement indicating that their religious belief prohibits immunization of such child. However, there is, likewise, no further vetting of the claim for exemption where the state determines if the religion claim is real. Nevertheless, under a Nevada-type law, one would have to make the claim that the belief was religious in nature, in order to claim the Free-Exercise exemption. California has no such exemptions – they eliminated an existing exemption – and predictable they were sued (Brown v. Smith). The state district court rejected a free exercise argument, though one based on the California constitution (the court however cited various free exercise rulings in the US). That court points to case law saying that "the state’s wish to prevent the spread of communicable diseases clearly constitutes a compelling interest", suggesting that such a law might pass strict scrutiny (the First Amendment has limited exceptions). The ultimate legal source of such exceptions is the First Amendment, specifically the "Free Exercise Clause". In a nutshell, that says that the government cannot prohibit a person from exercising their religious beliefs. If that means you must pray at noon, you must be allowed to pray at noon; if that means that you cannot eat lettuce, you cannot be forced to eat lettuce. Because "Congress shall make no law respecting an establishment of religion", the government also may not get into the business of approving or disapproving religions. The courts have indicated that a personal or subjective belief does not enjoy Free Exercise protection. In Wisconsin v. Yoder 406 U.S. 205 the court commented that Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses. Somewhat contradictorily, in US v. Seeger, the court held that "The test of religious belief within the meaning of the exemption in § 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption", but "The exemption does not cover those who oppose war from a merely personal moral code, nor those who decide that war is wrong on the basis of essentially political, sociological or economic considerations, rather than religious belief", and "There is no issue here of atheistic beliefs, and, accordingly, the decision does not deal with that question" (that is, the court did not rule on atheistic religious beliefs). Under the premise that one claims a religious exemption, there is no further investigation as to how compelling the claim is. On the other hand, if one makes a claim that merely looks like slapping the religion label on a personal objection, one might well run afoul of the state law, and then the courts might be forced to judge that very delicate question. This could arise, for instance, in the context of the Islamic distinction between haram and makruh acts, where the former are absolutely forbidden and the latter are "recommended against". |
Is it legal to impersonate an abstract lawyer? I would like to request a copy of my contract from a previous employer, where most of the staff is juridically uneducated people. I'm afraid that if I introduce myself, HR would realize that I am a former employee and would decline to send the copy, stating that I should have my own version (which I have lost). There might be a legal debate, depending whether I signed a certain page where it says "overtime hours are not paid" or not. I know I can hire a lawyer who can demand the contract copy, but then if I really signed the page (it was a long time ago, I don't remember), the job of the lawyer is done and I still pay for their service. To save money I have considered this trick: Register a new email address with something like [email protected] Call the HR office and impersonate an abstract lawyer who is defending an interest of the former employee. Request a copy of the contract be sent to the aforementioned email address. Is any part of this plan illegal? | According to Florida law 454.23: Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. What you propose therefore seems to be a felony. And according to a 2015 survey from the American Bar Association, Florida had the highest budget in the nation for prosecuting unauthorized practice of law - $1.8 million. So this seems like a very bad idea. | This aspect (and many others) of contract law is applicable in the US and various countries of the EU. can they renege after the candidate has begun their journey, thus saddling the candidate with the travel cost? No. The company would incur breach of contract. There is no need for a formal contract. The candidate only needs to prove that the company agreed (in writing, orally or clearly through its conduct) to cover or reimburse those expenses and that this elicited a meeting of the minds. The agreement would be void if the candidate incurred the expenses despite knowing (via timely notice) that the company changed its mind. Likewise, if the candidate lied on his CV, the contract (here, the company's agreement to cover the expenses) would be voidable by the company, since the candidate's intentional misrepresentations preclude the aforementioned condition of meeting of the minds. --Edited on 1/18/2019 to add ...-- Per suggestion by @KRyan, the aspect of void or voidable contract is expanded. But first, two disclaimers are pertinent: We need to be mindful that many of the follow-up concerns are either premised on or inspired by the situation described in the underlying Workplace SE post. These are somewhat beyond the scope of this Law SE question but addressed nonetheless, given their relevance as well as the OP's & audience's interest. The follow-up hypotheticals [in this Law SE question] and clarifications thereto neither speculate nor pass judgment on the stranded candidate who asked on Workplace SE. The Workplace SE post reflects a company's breach of contract. The subsequent comments here about fraud hypotheticals are mostly derivative inquiries beyond what is described in Workplace SE. In particular, we do not assume whatsoever that the stranded candidate committed fraud. The_Sympathizer commented: can the contract be voided on the spot like that without first proving in court? As it seems like it grants a rather "vigilante" justice power that is open to abuse, since effectively the "punishment" (cancellation of the flight and thus inducing a rather serious physical situation) is administered before any due process has been afforded the one accused. Yes, it can be voided on the spot (aka sua sponte). "Vigilante" justice denotes a self-attribution of punitive powers that exclusively belong to the state/government/court, whereas a party's voiding of a contract is the act of foreclosing his losses/exposures with respect to a contract that de facto never existed (such as when that contract was induced by fraud). I agree that unfortunately that is open to abuse: As a pretext to actually incur breach of contract, a company might allege that the contract was void. That is why (if taken to court) it will be the company's burden to prove that (1) it reasonably relied upon a candidate's representations (2) which were significant and blatantly false (3) given the candidate's knowledge that his lies contravened the job's core requirements. That can be quite burdensome. For instance, is the company handing out airfares without first conducting some competent corroborations about the candidate's credentials/skills? If so, one can hardly concede the company's allegation of reasonable reliance. The resulting finding would be that the contract was not voidable by the company, and thus that it is liable for breach of contract. Also, belatedly "informing" the stranded candidate that the company "is going in a different direction" falls short of evidencing that the contract was voidable. That applies even if the candidate performed very poorly in the interview or screening process. Given the hardship imposed on a stranded candidate, a company has to be morally and legally very judicious about its method and timing for "going in a different direction". But absent any representations or [company's] bylaws to the contrary, a company generally does not have the obligation to afford due process to a candidate. The court is the entity with an obligation to enforce due process as provided by law (although many of us in the U.S. have repeatedly experienced the courts' disavowal of due process). --End of edit on 1/19/2019-- a binding agreement requires both sides to give something Here, the candidate's consideration is his time and effort to accommodate the company's interest in assessing the candidate's profile at a location that is convenient to the company. | This answer to a related question sums up the relevant concepts regarding work for hire. Since, according to your description of your relationship to A, you are not an employee (Commun. for Non-Violence (CCNV) v. Reid 490 U.S. 730), and you do not a written agreement, under US law, this would not be a work for hire: thus you hold copyright to something. I presume Company A gave you the source code and you are rewriting it to fit some technical requirement, so you have been given permission by the copyright holder to create a derivative work. You do not gain copyright to the original code: you only hold copyright to what you wrote. You would therefore need the permission of the copyright holder (of the original program) to sell copies of the modified program (currently A, company B in the future once the transfer is complete). There isn't a special "signing-over" ceremony for permission to copy, but the situation you describe is very messy. Even without a written agreement, you do understand that they intend to make multiple copies of the resulting program which includes your contribution, and you have received something of value in exchange for your contribution. So, one would argue, you have at least given permission to copy your stuff, even without a piece of signed paper -- in hiring you, you have given them an implied license to use what they paid you to create. The unclarity would be in whether you transferred your property rights, or simply licensed them to use it. Hence the recommendation to get an IP attorney. | One of the principles of contract law is that the offer and acceptance are evaluated based on the objectively ascertainable intentions as judged by a reasonable person. On the facts that you have provided - even if your friend claims that they filled it out wrong, there is no reason for someone to objectively think so, particularly given the fact that they went to the trouble of writing the information in. However, this will depend on what kind of legally binding document this is. If it is, in fact, a contract, then the employer must accept it before it becomes legally binding, and they must actually communicate this acceptance to your friend (the offeror). If this is a policy document, then it is only legally binding if another contract has said that it is legally binding - generally, (smart) employers will include a clause in their employment contract stating that you are to adhere to policies but that those policies do not form part of the contract. If that is the case, then your friend is legally bound by the terms of the policy and will breach their employment contract if they do not adhere to this policy. This is unlikely to be an issue of contract law in and of itself - your friend cannot unilaterally bind their employer to terms as he sees fit. More information - including the nature of the document and other agreements that were made - would be required to provide more useful information (and that's what you would give to a lawyer). | If you do not get anything from this "contract", and all it says is that you will pay someone a sum of money "on demand", it does not meet the basic requirements to form a contract, and in particular, there is no consideration being received by you. It would therefore not be a contract and would have zero legal force. If you do receive consideration, demonstrating that you signed the contract under duress will require specific legal advice, and you need a practicing lawyer in your jurisdiction. | Yes, your clause specifically limits you to only working for COMPANY, even in your off time. Canada does not have a law protecting your right to work secondary jobs (moonlighting) in your off-duty hours. This means that any contract clause specifically limiting you to work with the employer only is valid, and breaking it is cause for justified dismissal. Based on this, do I need to ask for explicit permission to work on such projects? Yes, you will need to disclose any potential "business or occupation whatsoever". You could play contract games by saying "it's only a hobby" or "it doesn't make any money", but you will be opening yourself up to issues. The best thing to do is to disclose your project to your employer and get in writing their permission to work on it with specific terms that you will not be using company time or resources in any way. See: Patterson V. Bank of Nova Scotia | It depends to a large degree on local employment laws. Depending on how the counteroffer was worded, it might have constituted anything from a binding legal contract for employment for some reasonable minimum term, or a totally non-binding suggestion that was worth less than the air breathed while pronouncing it. Some things to consider would include: What are local employment laws like? Do they require that termination be for cause? If so, what are causes for termination? Does termination require any kind of remediation beforehand? Note that in an at-will, right-to-work state in the US, odds are that the employee can be fired for any time and for any reason, supposing the employer hasn't accidentally entered into a contract by extending the counteroffer. What did the counteroffer say? Did it stipulate that the offer was not for a definite term and that the company reserved the right to terminate the employee for any reason, or no reason at all? Odds are any sufficiently serious business in an at- will, right-to-work state would use standard legal language in any offer or counteroffer to ensure that they are on the right side of this, so odds are the counteroffer was accepted with no obligations at all on the company. Does the termination affect eligibility for unemployment benefits? I would say most likely not, as the termination would probably be recorded as being for no reason legally speaking (if they admitted to terminating the employee for seeking other employment, interested government officials could take a dim view of the company's actions). You'd probably have at least some unemployment compensation coming your way. Some professional - not legal - advice. Never accept a counteroffer. Only get another offer in the first place if you are committed to leaving your current employer no matter what. If your company really insists, you should insist on a minimum definite term of employment written into a legal contract which is signed by an executive and notarized. No company will agree to this (unless the term is shorter than you'd want as a full-time W-2 anyway) but if they do, hey, you have some security (if the company agrees to this, have your own lawyer - whom you pay with your own money - review the document). Even then, I would be very, very careful about staying at a company after getting a counteroffer. Don't do it. Ever. Never accept a counteroffer. One comment asks why I recommend never accepting a counteroffer. There are at least two reasons: The reason you are looking for a new job should be that there is something about your current job that isn't completely satisfactory and that you haven't been able to fix. Either you have grown out of the position, don't like the work, feel you're underpaid, don't get along with somebody, etc. If you were unable or unwilling to fix any of these issues without having another job on the table, having another job on the table shouldn't be what makes you willing and able to fix them. Why work somewhere that you'd constantly need to go job hunting to address workplace issues? Unless the company makes firm agreements about how long they're going to keep you around, you have no guarantee that they'll keep you. Presumably, you didn't have one before, and you don't have one at the new job, but the fact that you are currently employed might support the assumption that your employment would be continued at your current employer and the offer might support the assumption the new employer plans to employ you indefinitely. When you put in your notice, it makes the company more aware of the fact that you could leave at any time; while a perfectly rational actor would realize that this doesn't change the situation at all, companies are run by people and people often act irrationally. Perhaps your manager is vindictive, perhaps your manager is scared that you will still leave after accepting the counteroffer. Maybe your manager knows there are layoffs coming but needs you for the busy season. Hiring replacements can be time-consuming and expensive - and employees who are getting offers of employment elsewhere and putting in notice might be seen as risks. I'm not saying that accepting a counteroffer has always turned out badly. Falling coconuts kill 150 people every year. Still, I am not going to add a coconut rider to my insurance policy and I am not going to accept a counteroffer. | Calling someone an "asshole" is, at least in the US, an expression of opinion and so is not defamation. Saying that someone has committed a crime may be defamation, but not if that person has in fact already been convicted of that crime. In general if a statement is provably true, it is not defamation. If all that this hypothetical firm does is to post facts as found in court decisions, along with their unfavorable opinions of losing parties who they did not represent, it is hard to see any defamation case being valid. And I don't see any other obvious legal problem with doing this. It would probably anger other lawyers, and might make it harder to negotiate settlements or do other deals. If this firm announce that they refuse to accept as clients "cheats, crooks and similar people" and then make it public that they refused to represent some specific person, A, then A might claim that this portrayed him or her as a "cheat or crook" and was defamatory. The exact wording of their publicly announced policy, and of any announcements that they decline to represent A, would matter a good deal, as would the jurisdiction's exact law of defamation. In some places, codes of ethics promulgated by a Bar Association might be violated by such a policy, but such codes are usually not enforceable in the general case. I don't see any obvious grounds for disbarment proceedings. |
Do data privacy requirements apply to watch lists and sanctions lists? There are different sanctions lists and watch lists all over the world maintained by governments & ministries, like well-known ones: OFAC lists, EU Consolidated Sanctions, CIA & FBI watch lists and many more. They often contain quite a lot of personal information about name variations, addresses, DOBs etc. which is usually considered as PII (as soon as it allows identifying a person) and should fall into a regulation of GDPR and similar. However, this data is openly accessed and even aggregated by projects like OpenSanctions. So here's the question -- is it a special exceptional case that data privacy rules do not apply to sanctioned person data, or is it a worldwide violation of data privacy rules (very unlikely)? In a former case, who is authorised to decide that this person's data can be accessed without a restriction? A more practical question would be, if let's say I want to collect some data about disqualified directors in the UK (https://beta.companieshouse.gov.uk) or another country, should I apply technical measures in line with the regulation (GRPR for instance) to protect this data in my system (e.g. encrypt it at rest)? Please advise if it's an off-topic & I should move this question to another hub. | There are a few different grounds under which PII can be handled. Perhaps the most discussed at the moment of GDRP introduction is consent, because of the wave of consent-seeking. But there are a number of other grounds. "Necessary for contract execution" is a trivial one, to deliver a pizza you'll need an address. The relevant ground for sanctions lists is also pretty obvious in hindsight, you may process PII in order to comply with legal obligations. Note that this is still an integral part of the GDPR, not an exception to the GDPR. That means you need to apply all the basic GDPR rules. You need to explicitly store where you got the PII from, for which purpose, and you need to document how you're using it. Note that this might be hard - why do you need to store this data? Why can't you just check the list as the moment it's relevant? The GDPR for a large part depends on you justifying your actions, not just in hindsight but already up front. | Does criticizing public figures constitute libel especially in a private group? It depends on the specifics, but a priori your description suggests that the defense of honest opinion would be applicable. This is regardless of whether the subject is a public figure and regardless of whether the statements were in private --albeit non-privileged-- communications. Case law surely provides guidelines or precedents on how the details and circumstances of the events would fare on the parties' legal position, but I am not knowledgeable of UK/English law. Does X have a counterclaim for illegally accessing the data? The matter seemingly depends on how the religious leader had or gained access to the data. Even if he gained access by stealing or hacking a device or account, X would not have standing to [counter-]sue unless the device or account belongs to X. Be mindful of the possibility that third party might have made the disclosure to the religious leader. In that case, actionability (if any) of the disclosure only encompasses the third party, not the religious leader. X's intent that his statements stay only among the participants does not necessarily imply that participants' disclosure elsewhere is unlawful. | Yes If you are in the EU, or your players are in the EU and your service is targeted at some part of (or all of) the EU, then this pretty clearly falls within the scope of the GDPR. Such a service would be collecting data associated with natural persons. At least some of it would be made public along with an online identifier, and other parts would be processed and stored, even if disclosed only in anonymized form. (By the way it is a non-trivial task to anonymize data well enough that it is no longer persona data under the GDPR. But let's suppose yoru methods are good enough.) Under GDPR Article 6 the DC must have a lawful basis for such processing. If the basis is "consent" then the consent must be freely given, whch means giving consent may not be a condition of using the service. Under GDPR Article 13 a notice must be sent to the Data Subject (DS) when the data is collected from the subject, including some 11 items or categories of information about the collection process, the Data Controller (DC), the purposes of processing, the legal basis of processing (which the DC must define), who will receive the data, the data retention period, and various rights of the DS. Such a service must be prepared to respond to data access and data erasure requests, under articles 15-17, and data restriction requests under article 18. It must provide a method for a DS to easily make such requests. Other GDPR provisions may well apply in addition to these, but that is enough to show that such service is very likely to be within the scope of the GDPR, unless none of the DSs are present in the EU or the related market area. | It would probably already be illegal based on national laws that comply with Directive 95/46/EC (of the European Parliament and of the Council of 24 October 1995). What's new with GDPR include: the sanctions that can be imposed the accountability i.e. you must be able to provide documented evidence on your practices even before something happens the obligation to report all data breaches. So you'd definitely have more concrete responsibility to follow good security practices under the GDPR. | The GDPR consists largely of principles instead of concrete rules. It's possible to reasonably believe that you are fully compliant, but then have a court rule against you. Thus, a company might mitigate risks by getting experienced compliance consultants, and by not toeing the line of what is and isn't allowed. But at some point, working to reduce the remaining risk is not worth the effort. This will depend very much on the business. E.g. an adtech business will likely want to tolerate more risk than a bank. As the interpretation of the GDPR evolves, compliance efforts must adapt. For example, the Schrems II judgement that invalidated the EU–US Privacy Shield shifted our understanding on the legality of international transfers. This judgement was not necessarily surprising for anyone who paid attention, so to some degree it was possible to prepare in advance. But that judgement was the kind of shift in jurisprudence where you can't fix your compliance by filling out one extra form, but rather have to rethink all international transfers of personal data – a blow to US SaaS providers and European SMEs that depend on them. Some parts of the GDPR are geared to assist with a compliance process. For example, larger data controllers must create a Records of Processing Activities (ROPA) register. This lists all processing activities and their legal basis, which helps spotting potential compliance gaps. Risky processing activities require an Impact Assessment (DPIA) where the controller has to weigh different factors against each other and determine appropriate safeguards. While the GDPR doesn't necessarily say whether something is allowed or not, it frequently provides factors that must be considered in an analysis. In addition to the GDPR itself, there's a lot of guidance available. Data protection authorities publish guidelines and can also be consulted directly. In fact, that's sometimes explicitly required. In the EDPB, the different authorities coordinate with each other and publish a series of EU-wide guidelines. Sometimes the subject is very specialized, sometimes the guidelines touch on a very general matter such as the concept of “consent”. These guidelines are an effectively–binding interpretation and thus bring welcome clarity to a compliance process. | In my opinion, this should be enough. The GDPR regulation is general - it does not attempt to address these issues directly, precisely for the reasons we see here: You can never predict how the technology will develop. When interpreting the GDPR, we must keep the intended goal in mind. What is the purpose of the "right to erasure"? To prevent anyone from further processing the personal data. If you "crypto-shred" it, it can't be processed anymore, not even theoretically. The encryptec file cannot be used to identify the subject, therefore it is not even personal data anymore. In case it can be decrypted in the future... Well, that is just a speculation. The courts can go to great lengths in interpreting what personal data is (dynamic IP address is considered personal data, since it can be linked to a person by the police with a court order), but i am pretty sure that "it can be theoretically possible in some distant future" is beyond the limit. As for the second question, I am not aware of any applicable case-law, but I guess that current security and technological standards will be used to assess the delay. You have a right to protect your data, the subject has a right to erase them. Those rights must be balanced, neither fully overrules the other. The delay should be short enough so the right to erasure is effective, and it should not extremely long compared to other (economically viable) backup solutions available, in line with current industrial standards. | This is less of a compliance question, and more of an infosec question. On one hand, you want to be able to restore access to an account to users who have lost their access. On the other hand, you must prevent unauthorized access e.g. from hackers. These factors must be balanced. Whether you'll fulfil a data subject access request will generally follow the same criteria as deciding whether you'll reset someone's access credentials, so I'll mostly discuss identity verification in general. Trying to validate names is generally pointless from a security perspective, since the name on the account might not be real, or because validation documents like scans from a passport can be easily forged. When a service has identity validation measures like requesting a copy of photo ID, or requesting a photo of you holding up a validation code written on paper, that doesn't actually help validating that the person requesting access is the account owner, but that the person requesting access appears to be a natural person, and now documents about their identity are on file. A lot of information like names, birthdates, or addresses is also not at all secret and could be easily guessed by a malicious actor. Most websites work by equating access with control over an email account. If you can receive a password reset code over email, you have access. In effect, this delegates the responsibility of account recovery to the email or OAuth provider. So the issue is what happens when someone loses their email account, which is not entirely uncommon for accounts that are multiple years old. One reasonable (and likely GDPR-compliant solution) is to deny access when someone loses their account. Quite a lot of services operate this way. A milder form of this is to email the old address that someone is trying to take over the account, and turn over the account only if you have other evidence of ownership and there has been no reply over multiple weeks. Since this is part of an identity verification measure, I don't think the GDPR's normal 1 month deadline would apply. However, this approach is very risky: an attack can succeed through the mere inaction of the true account holder, and it would arguably be a data breach if you give access to the wrong person – safer for erasure requests only. Also, emails like “click here or we'll delete your account” look a lot like spam (I get a lot of those about alleged problems with my Paypal account). A potentially more reasonable approach is to use questions about the account to verify ownership. When did they create the account? When did they last use it? Can they answer questions about non-public content of the account? (But don't let an attacker choose the questions!) You see some older sites that ask the user to select a “security question” for recovery purposes. But this isn't a best practice – they are frequently the weakest link in an authentication system. If the user answers truthfully, the answer may be easy to guess or discover for an attacker. E.g. the infamous “what is your mother's maiden name” question is horrendously insecure in the age of Facebook. If the user provides a more secure answer, that is essentially just another password that's even easier to lose than an email account. High-value accounts typically offer a secondary authentication method as a fallback. E.g. my bank can send me new access codes via physical mail. GitHub can optionally link a Facebook account for recovery purposes. But these measures would be overkill for most cases. Especially collecting a physical address for the sole purpose of offering account recovery would likely violate the GDPR's data minimization principle, though it may be fine when the user opts in with freely given consent. To summarize: what you're trying to do is extremely difficult, because you've need to balance different security aspects: keeping malicious actors out, and letting legitimate account owners in. Whereas I'd resolve that by denying any account recovery or subject access requests, other approaches exists with other risk profiles. The GDPR requires you to perform reasonable identity verification measures, but what is reasonable depends on the business context and is ultimately an infosec question. | Technically, yes, GDPR might apply. Filming other people does involve the processing of personal data, and GDPR will apply unless this is for “purely personal or household purposes”. But exactly that will be the case for most holiday snapshots or short clips for your personal social media. As far as I understand, you do not have to worry about purely personal activities. Even if GDPR would apply, this doesn't mean it would be illegal. It means you'd need a “legal basis”, such as a “legitimate interest”. If there are just a couple of people in the background of a video, it's possible that their rights might weigh less important than your interest in shooting the video – but that would need a case by case analysis. Your legitimate interest would almost certainly prevail if you need to record a crime to which you are victim. Regardless of GDPR concerns, note that this is just a small aspect of legal concerns. Instead, also consider personality rights copyright (if art or architectural works are visible) / freedom of panorama customs and reasonable expectations of other people These issues will depend largely on the specific country or area you are travelling to. Europe is not homogenous in its perception of privacy issues. For example, consider the issue of dashcams in a car. These are considered to be quite normal in some European countries, but effectively illegal in others. |
Can online business in one country deny access via terms of service to entities in another country? Can an American company state in their terms of service that if an entity is from a designated country they are not allowed to use the service? In other words would that be a legal and enforceable provision in the United States? | Yes, and this is very common - Cuba, North Korea and Iran are often excluded. Mind you, this is from a US perspective. The banned country may have other ideas about the legality of the ban under its laws. But if you weren't planning to do business with that country anyway, that's not exactly going to hurt you. | I'm not sure about USA law, it's probably similar to UK law. In the UK a trademark is registered for a particular business activity, and you can't just blanket register for "all" activities as that would be anti-competitive. I have a trademark "Dreamcraft" for dream interpretation and related activities. However, the name "Dreamcraft" is also a registered trademark for a company selling luxury yachts, and again for a company selling up-market craft materials. A website or organisation that is a gripe-site using the same name would not be in breach of any of these trademarks because it wouldn't be in direct competition with any of these companies. | No, it is not legal. Regardless of their location, the only legal options for companies serving to EU residents are to either deny access altogether or to make consent truly optional1 Recital 42 states (emphasis mine): Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement[...] Recital 43 states: Consent is presumed not to be freely given [...] or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. 1 Of course, remember that consent is only one of several means that allow them to process data. For example, if you were getting a trial account for a limited time, it would be considered a legitimate business need to ensure that you are not just opening new trial accounts when the old ones expire. So, if they wanted some data from you to ensure that you are not a previous user and you refused to provide it, then they could deny giving you that trial account without breaking the GDPR. | This is permitted so long as it doesn't violate a valid trademark or service mark (or a few equivalent rights in names that are comparable such as collective rights to market beef under the name "Waygu" only if it is produced in a certain area of Japan under Japanese law) that covers goods or services of the same type in the same economic market. A trademark arises either when a term acquires a "secondary meaning" associating its use in connection with a particular kind of good or services in a particular market with a particular provider of that good or that service, or by registration of the trademark or service mark. "Tresh" and "Cassiopeia" are not terms that inherently are related to software, so they are permissible to use as trademarks for software unless someone else already has established trademark protection for them. | Yes If you are in the EU, or your players are in the EU and your service is targeted at some part of (or all of) the EU, then this pretty clearly falls within the scope of the GDPR. Such a service would be collecting data associated with natural persons. At least some of it would be made public along with an online identifier, and other parts would be processed and stored, even if disclosed only in anonymized form. (By the way it is a non-trivial task to anonymize data well enough that it is no longer persona data under the GDPR. But let's suppose yoru methods are good enough.) Under GDPR Article 6 the DC must have a lawful basis for such processing. If the basis is "consent" then the consent must be freely given, whch means giving consent may not be a condition of using the service. Under GDPR Article 13 a notice must be sent to the Data Subject (DS) when the data is collected from the subject, including some 11 items or categories of information about the collection process, the Data Controller (DC), the purposes of processing, the legal basis of processing (which the DC must define), who will receive the data, the data retention period, and various rights of the DS. Such a service must be prepared to respond to data access and data erasure requests, under articles 15-17, and data restriction requests under article 18. It must provide a method for a DS to easily make such requests. Other GDPR provisions may well apply in addition to these, but that is enough to show that such service is very likely to be within the scope of the GDPR, unless none of the DSs are present in the EU or the related market area. | Yes. Contracts do not excuse a site from obeying the law, and the law requires sites to obey court orders. "It violates my contract with a third party" is not a valid reason to disobey a court, and disobeying a court order is contempt. On the other hand, contract law (at least in the U.S. and U.K.) says that contracts that violate the law or public policy are invalid, and so you could not win a breach of contract suit if the defendant could not legally comply with the contract. Now, a contract might require the company to attempt all possible legal ways to get the court to revoke its order, or to avoid the order in the first place (for instance, if Google does no business in China, a U.S. court might not excuse them from a contract because they capitulated to the Chinese government). However, when push comes to shove, private contracts are lower priority than court orders. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. | You can try, however, a US court when considering if it has jurisdiction will doubtless ask you to explain why a Canadian business wants to sue a Canadian company for an unpaid debt in Canadian dollars for services provided in Canada in a US court. If you can satisfy them that a US court is the appropriate venue (which I doubt) they will hear the case. |
Is it allowed to Psuedonym or Soft delete the User Records in a highly complex User centric Software under GDPR? I referred this question: Under the GDPR, should transaction data be deleted on account deletion or on user request? which deals specifically with the use-case of e-commerce site. But still, there is a need for a generalized view on the confusion regarding GDPR's "Right to be Forgotten". A complex business user-centric web application might have references of user throughout and a complete hard delete (completely deleting the user from database) might create lots of havoc by breaking the referential integrity in the database and thereby in the entire application. So, is soft deleting or pseudonymizing a user a correct approach meaning the user's record won't be removed from the database completely instead, his all personal information will be updated with a pseudonym (junk phrase) in the database. On UI/UX as well instead of all personally identifiable information, a pseudonym or a generic "Deleted User" or "User #234" (just as SO do) will show up. The general reference of the User's entry in database will not even be processed/used/displayed/transmitted/sold anywhere. Please note that I am aware that GDPR is about how the data is processed and does not hold restrictions on the technicalities and designs one follows but the actual implementation and adaptions of the same are causing several severe technical constraints and the complete refactoring of the database architecture and references which happens to complicate the business application and might even need a complete restart/reset. For instance, a Software Engineer would know that an Email can be used as identity and the entire app revolves around UserManager and the cookies. Moreover, many fields that are marked Required in database models on deletion may break the app completely. So what should be the correct approach, in context of GDPR, when a user revokes his consent in a complex architectured web application? | Can you anonymise people It is valid to anonymise the data of people, instead of deleting all of the records. The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes. Source As long as the person is not identifiable, then you do not need to treat the data as personal under the GDPR. You do have to inform a person once they are no longer identifiable, and be able to identify them if they provide the missing information: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification. Source The articles covered by this are: 15 - Right of Access 16 - Right to rectification 17 - Right to erasure 18 - Right to restrict processing 19 - Right to be informed 20 - Right to data portability | In principle, the data subject's right to access involves a copy of all personal data the controller holds on them. There are no time limits by default. Of course, the controller can ask a data subject to clarify their request, e.g. to focus on a particular time frame. There is an implied time limit though: personal data may only be processed/stored for as long as the data is necessary to achieve the purposes for which it was collected. Afterwards, it must be deleted. A controller with good data management will be able to limit their effort by having as short retention periods as possible for their different records. Furthermore, a lot of data is not personal data, or falls out of scope of the GDPR because it is not processed with automated means or forms part of a filing system. For example, if thousands of old invoices were archived in paper form in boxes that are only sorted by year, there might be an argument that this isn't a filing system in the sense of the GDPR and that a DSAR would not have to involve looking through all the archived invoices (compare also Art 11). In your scenario, there is a clear retention period of six years. You are asking for records about how that data might have been used further in the past. To the degree that such data is actually available, that could reasonably be personal data and should be included in a response to a DSAR. E.g. they might have information like this: “File #1234 was included in a data set that was sold to EvilCorp in 2007. The entries in File #1234 that are older than 2014 have been purged, so we do not know which entries were included in the data set. The current name on File #1234 is Dave.” This information about the sale would be personal data because it relates to you, and you are identifiable. Of course, the controller might not be set up to perform this search unless specifically asked. However, more unspecific information might not be personal data. For example: “About 70% of our files were included in a data set that was sold to EvilCorp in 2007. We no longer have records indicating whether your file was included.” Since there is no link between the sale and your personal data, I don't think it would have to be included in a DSAR response. The primary reason why you should be told about sales of personal data is that per Art 15(1)(c), you should be informed about “the recipients or categories of recipient to whom the personal data have been or will be disclosed” in a DSAR response. So when making a data subject access request, it could make sense to explicitly referencing this paragraph. So you would be interested in receiving a copy of your personal data as per Art 15 GDPR, and in particular any available information per Art 15(1)(c) GDPR about the recipients or categories of recipients to whom your personal data has been or may have been disclosed in the past. Quite likely the response will be underwhelming, e.g. by just giving a broad category such as “potential creditors who are contractually obligated to use the data only in accordance with our policies”. Whether such responses are compliant (I don't necessarily think so) will not be clear until there's a good precedent, and that would require that someone sorts this out in court. | Overview As described, only the last of these seems to be compliant ways of obtaining consent, and indeed even that is not fully compliant, although features not described might make it so. However, if there is a lawful basis for processing PI other than consent, under GDPR article 6, then there is no need to obtain consent at all, and doing so in an improper way is irrelevant. However storage of or access to local information (such as cookies) requires consent unless such storage or access is "strictly necessary" for providing a service which the user has requested. Relevant GDPR Provisions GDPR article 6 lists six possible lawful bases for processing personal data. These are, in summery: (a) consent; (b) processing is necessary for the performance of a contract or to takwe steps requested by the Data Subject; (c) necessary for compliance with a legal obligation; (d) to protect the vital interests of the data subject or another person (e) or the performance of a task carried out in the public interest (f) legitimate interests of the Controller The other provisions cited here apply only to PI for which the lawful basis is consent. GDPR article 7 reads: (2) If the data subject’s consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this Regulation shall not be binding. (3) The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. GDPR Recital 32 reads: Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. GDPR Recital 42 reads: ... in particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware of the fact that and the extent to which consent is given. In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment. GDPR Recital 43 reads: ... Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. Analysis I will review each of the scenarios in the question in turn. Scenario 1: not allowing [a user] to use the site until the user clicks Accept. No options, just an "Accept" button. This does not constitute freely given consent, because: The giving of consent is not "clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language" (Art 7(2)). There appears to be no way to withdraw consent (Art 7(3)). It appears that the provision of a service (use of the site) is conditional on consent not needed for that service (Art 7(3)). Consent is not informed and unambiguous (Recital 32). The use has not been informed of the extent to which consent is given (Recital 42). The subject has not been made aware of purposes of the processing (Recital 42). the data subject has no genuine or free choice (Recital 42). There is no provision for separate consent to be given to different personal data processing operations. (Recital 43). Scenario 2: A banner stating that "By browsing the site you accept the conditions". Just an "x" to close the banner. Using the site is allowed while the banner is displayed. This does not constitute freely given consent, because: Consent was not "given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data" (Art 7(2)). The giving of consent is not "clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language" (Art 7(2)). There appears to be no way to withdraw consent (Art 7(3)). Consent is not informed and unambiguous (Recital 32). The use has not been informed of the extent to which consent is given (Recital 42). The subject has not been made aware of purposes of the processing (Recital 42). the data subject has no genuine or free choice (Recital 42). There is no provision for separate consent to be given to different personal data processing operations. (Recital 43). Scenario 3: A banner with an "Accept" (and possibly "Reject") button. No other options. Site navigation is allowed while the banner is displaying. This does not constitute freely given consent, because: The giving of consent is not "clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language" (Art 7(2)). There appears to be no way to withdraw consent (Art 7(3)). Consent is not informed and unambiguous (Recital 32). The use has not been informed of the extent to which consent is given (Recital 42). The subject has not been made aware of purposes of the processing (Recital 42). There is no provision for separate consent to be given to different personal data processing operations. (Recital 43). Scenario 4: A banner with an "Accept", "Reject" and also a "Settings" options where the user can fine tune the way his data is being used by the site. This might constitute freely given consent, provided that: a document is displayed or linked to that describes the kinds of PI that will be processed, and the purposes of the processing; There is some easy and obvious manner to withdraw consent, and to change the individual choices on what to consent to, after the banner has closed, or on any subsequent visit to the site; The consent section of the settings dialog must be clearly distinguished from other sections that do not deal with consent; Just where the lines must be drawn between "different personal data processing operations" which each requires the possibility of separate consent is not yet fully clear. And again, if the site or service does not store or otherwise process PI, or has a lawful basis for doing so other than consent, and does not store or access local information, it need not obtain consent at all, and the question of what constitutes freely given consent becomes irrelevant. Of course many sites do depend on consent as the lawful basis for much of their activity. | There are no direct penalties per GDPR. The data controller must make sure that the person making the request is the data subject, or at least authorized by the data subject. If the controller has reasonable doubts about the identity, they should request additional information for identification purposes. The controller must find a middle ground between violating the GDPR by rejecting a potentially valid request and violating the GDPR by disclosing data to potentially unauthorized recipients. Having reasonable technical and organization measures that prevent unauthorized disclosure is part of the controller's responsibilities per Art 24. What the data controller can do is to block future requests from the alleged stalker. When a request is “manifestly unfounded or excessive, in particular because of their repetitive character”, then the controller can charge a reasonable fee or refuse to act on the request (Art 12(5) GDPR). But it's up to the controller to prove that the requests are unfounded or excessive, it is not possible to reject potentially valid requests on sight. Depending on what the alleged stalker does with the obtained data, they would fall within the scope of the GDPR themselves and would probably be violating it because there is no sufficient legal basis. Also, the alleged stalker, as a data controller, would be required to inform the data subject about subsequent processing of the data per Art 14 GDPR. Attempting to obtain another person's personal data through an access request would have to be punishable by other laws. For starters, such attempts would likely involve identity theft, and successfully obtaining the data would probably be a kind of fraud. | Yes, GDPR applies: you are a data controller established/living in the UK or are offering services to people in the UK you fall under the material scope of the GDPR. The Art 2(2)(c) exemption for “purely personal or household activity” does not apply since you're offering the service to the public. You must consider GDPR compliance here. This is especially important as you are showing personal data to the public. Don't do that unless you have a very good reason, appropriate safeguards, and are clear to users how their information will be shown. On a high level, GDPR compliance involves working on the following questions: For what purpose are you processing personal data? Context: purpose limitation principle per GDPR Art 5(1)(b) What is the legal basis for processing? GDPR Art 6(1) lists the available legal bases. Here, consent, necessity for performance of a contract, or a legitimate interest could be a legal basis. They may have further obligations attached. A legitimate interest requires a balancing test that considers the data subject's rights and freedoms. Consent must fulfil the conditions per Art 7 in order to be valid. What is the minimal data necessary to achieve the purpose? Per the Art 5(1)(c) data minimisation principle, it is illegal to process personal data beyond what is necessary and adequate. You must provide data protection by design and by default per Art 25. Special categories of data per Art 9 such as health data are illegal to process outside of narrow exemptions. You must delete data once it is no longer necessary. What appropriate safeguards and security measures should you apply? Per Art 24 and 25, you are responsible for determining and implementing appropriate measures. This depends a lot on your specific context, so there's no checklist you can apply. Per Art 25(1) you must pseudonymize the processed information if that is compatible with the processing purpose. What further compliance measures do you have to consider? There are additional GDPR and non-GDPR compliance measures. From the GDPR side: Use the answers to these questions to write a privacy policy, including the information that you must provide to data subjects per Art 13. Consider whether you have to maintain a Records of Processing document per Art 30, or if you have to make a Data Protection Impact Assessment per Art 35. If you use third party services, figure out whether they are a joint controller or data processor and apply appropriate safeguards. If you have data processors, ensure that you have a contract in place that covers the items from Art 28(3). If you share data with other controllers (not processors) you need a legal basis for doing so. If you transfer data into a non-EU/EEA country (after 2020: non-UK country) you need a legal basis per Art 44 and have to cover additional items in your privacy policy. Ideally, the target country is covered by an EC adequacy decision per Art 45. For US-based companies, this is the case only when they have self-certified under the Privacy Shield framework. Non-GDPR compliance steps could include cookie consent banners, or showing a VAT ID. How can you prepare for data subject requests? Data subjects have various rights per Arts 15–23, subject to the modalities in Art 12. For example, a data subject could request that their information is erased from your website. The exact rights also depend on the legal basis you selected. You should figure out in advance how to deal with such requests. | This is possibly but not necessarily fine. The data controller (the garage) is responsible for safeguarding your personal data. They must take appropriate safety measures, but this depends a lot on their own risk assessment. For example, to protect the data from being used by employees for their personal purposes, the controller might use organizational measures like a policy “you're not allowed to do that.” Many companies allow employees to use their personal devices for work purposes (BYOD). When the data controller allows this and takes appropriate safety measures, everything is perfectly fine. The company still has to make sure that the data is only processed for legal purses and deleted afterwards. Implementing a BYOD policy in a GDPR compliant manner is difficult but not impossible. A data breach has occurred when the security measures were insufficient and your data was deleted or disclosed without authorization. Your scenario would only be a breach if the company did not have a BYOD policy and the salesman used their personal phone, and arguably then only if that device is also breached. However, do not discount the alternatives: they do have a BYOD policy and the salesman is acting within their instructions the salesman was using a company-controlled device, not their personal phone If you have good reason to believe that your data was mishandled (and these alternatives do not apply), then the GDPR offers you the following remedies: You can of course complain to the data controller, especially if they have a dedicated data protection officer. You can lodge a complaint with a supervision authority, which is the ICO in the UK. They expect you to attempt to resolve your issue with the controller first. The ICO can then decide if they want to investigate the issue. You can sue them for compliance and for actual damages suffered (you have none, though). Note that all of these alternatives are more effort than they are likely worth. In particular, the garage can always correct the problem, e.g. by getting your contact info deleted from the personal device or by creating a retroactive BYOD policy. | You are processing the users IP address in order to carry out the translation to a physical location (see my comment for the technical issues with that) and an IP address is most certainly considered personal information, so yes under the GDPR you are going to need a published policy because you are both data controller and data processor. You need to inform the user of what you are doing, and you need to tell them of the legal basis for the processing (there are several under the GDPR, of which consent is only one - but in your case its going to be the easiest to justify). If you use a third party service for the location translation, you also need to inform the user of that and make available the third party services data processing policy. | The material scope of the GDPR (Article 2) is limited to the processing of personal data (including mere storage) by automated means or as part of a filing system. The question of whether your activity falls within this scope hinges on what you actually do with the data once you take possession of it. You have mentioned saving the contact information of people you have met at conferences, which could refer to simply retaining it for later use, or to the technological process of storing data in a computer. The former, if not done in any structured way (a filing system) would not fall within the scope of the GDPR. The latter, even if poorly executed, such as a photo stored on a business smartphone or a text document thrown onto your workstation's desktop, would always fall within scope as computerised data is processed "by automated means". When the contact information you receive identifies a specific person, as distinct from just a corporate switchboard number and company name for example, it is personal data. When you get that personal data from the person it identifies (data subject), and you're otherwise in scope, Article 13 is invoked, requiring you to provide a list of information, "at the time when personal data are obtained", unless "the data subject already has the information." This is known as the right to be informed. The requirements differ when personal data are not obtained directly from the data subject. I would argue it is unreasonable to be expected to provide the information to the data subject over a cup of coffee or in a quick business card exchange, but if you start entering it into a spreadsheet or your CRM, you need to provide the required information, which may be as simple as a follow-up email thanking them for their time and letting them know you'll keep their contact details on file, along with a link to your organisation's privacy policy, assuming it covers this use, or if not, a specific privacy notice. You will of course be required to comply with other requirements such as the principles of data minimisation and identify a lawful basis, maintain adequate security by implementing technical and organisational measures, hold contracts with any third parties who process personal data on your behalf, and have a process for upholding data subject rights and responding to requests to exercise them - among others - but you should already be doing that for your other processing activities unless exempt. Additional information Edits have been made as clarifications and questions were forthcoming. Email marketing You need to consider the applicable country's implementation of Directive 2002/58/EC as amended ("ePrivacy Directive"). For example, in the UK you could send such messages without consent to contacts at incorporated companies or public sector bodies, but would have required consent for sole traders, private individuals, or partners in an unincorporated partnership. In Ireland, you have an exemption to consent for existing customers who were offered the opportunity to opt out when their email address was collected, but must use the email address for marketing within 12 months. Each EU country will have a different implementation of the Directive. In the Netherlands, Article 17 of the Telecommunications Act implements Directive 2003/58/EC and thus provisions for direct marketing by email. Processing by automated means Processing by automated means refers to processing of personal data in electronic, rather than manual form. All electronic processing is within the material scope of the GDPR, while only manual processing that forms or is intended to form part of a filing system is. Recital 15: The protection of natural persons should apply to the processing of personal data by automated means, as well as to manual processing, if the personal data are contained or are intended to be contained in a filing system. Art. 4(2): ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means ICO guidance What is personal data?: The GDPR covers the processing of personal data in two ways: personal data processed wholly or partly by automated means (that is, information in electronic form); and personal data processed in a non-automated manner which forms part of, or is intended to form part of, a ‘filing system’ (that is, manual information in a filing system). |
Facebook blocked my account until I consent to their new privacy policy under GDPR. If I consent now, will I be able to withdraw my consent later? I am going to delete my Facebook account in a month, I can't do it now because I still use it for work. I live in the EU and Facebook has blocked access to my account unless I accept their privacy rules, which means giving up GDPR protections. I worry that if I accept their rules now, I won't be protected anymore by GDPR, and that even if I delete my Facebook account in the future, that I won't be able to request my data to be fully deleted with full protections of GDPR. In other words, I worry that agreeing to their privacy policy will override GDPR and that I won't be able request to delete the data they have about me anymore. Is my worry justified? | I live in the EU and Facebook has blocked access to my account unless I accept their privacy rules, which means giving up GDPR protections. Facebook operates in the EU and has EU data subjects, therefore Facebook is subject to GDPR. You should be able to withdraw your consent. Article 7(3) says: The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent. | The basic requirements for the effectiveness of valid legal consent are defined in Article 7 of the GDPR and specified further in Recital 32. There is no form requirement for the consent, so using a button is not a problem. However, I do not think the MailChimp-button you reproduce as an example is good enough. It asks for a blanket consent to stuff that is buried in MailChimp's “Anti-spam Policy & Terms of Use”. But according to the GDPR, what the data subject consent to can’t be buried in the ToU – it must spelled out in clear, plain language. Requests must be granular, asking for separate consent for separate types of processing. “When the processing has multiple purposes, consent should be given for all of them” (Recital 32). Blanket consent, as used by MailChimp, is not allowed. The other clear requirement from the GDPR is that opt-in is mandatory. Pre-ticked and opt-out buttons are explicitly banned: “Silence, pre-ticked boxes or inactivity should not therefore constitute consent” (Recital 32). ‘No’ must become your data default, but if the user chooses to opt-in by clicking a button, this is valid consent. The MailChimp-button complies witrh this. The GDPR also requires you to keep a records of the consents given (so make that part of the user profile), and to withdraw consent at any time – so you make make provisions for that as well in your implementation of consent. | Yes If you are in the EU, or your players are in the EU and your service is targeted at some part of (or all of) the EU, then this pretty clearly falls within the scope of the GDPR. Such a service would be collecting data associated with natural persons. At least some of it would be made public along with an online identifier, and other parts would be processed and stored, even if disclosed only in anonymized form. (By the way it is a non-trivial task to anonymize data well enough that it is no longer persona data under the GDPR. But let's suppose yoru methods are good enough.) Under GDPR Article 6 the DC must have a lawful basis for such processing. If the basis is "consent" then the consent must be freely given, whch means giving consent may not be a condition of using the service. Under GDPR Article 13 a notice must be sent to the Data Subject (DS) when the data is collected from the subject, including some 11 items or categories of information about the collection process, the Data Controller (DC), the purposes of processing, the legal basis of processing (which the DC must define), who will receive the data, the data retention period, and various rights of the DS. Such a service must be prepared to respond to data access and data erasure requests, under articles 15-17, and data restriction requests under article 18. It must provide a method for a DS to easily make such requests. Other GDPR provisions may well apply in addition to these, but that is enough to show that such service is very likely to be within the scope of the GDPR, unless none of the DSs are present in the EU or the related market area. | The GDPR's right to erasure is not absolute. Simplifying things a bit, you only have this right if the legal basis for processing was consent, because consent can be revoked freely; or the legal basis for processing was legitimate interest and the controller does not have an overwhelming legitimate interest in keeping the data. Legitimate interest always requires that the controller's legitimate interest and the data subject's rights and interests are balanced. A request for erasure shifts this balance but does not decide it. In practice, a request for erasure may be denied if the controller has legal obligations to keep this data, for example financial records; or the continued processing of this data is necessary for performance of a contract; or the controller has an overriding legitimate interest in continued process of the data. Note that contracts may have effects that survive termination of the contract. Note also that a contract might not involve the data subject as a party to the contract, the classic example being a postal delivery contract that necessarily requires processing of the recipient's personal data. In your specific example it seems that the legal basis was legitimate interest and that the data controller has an overwhelming legitimate interest to hold on to parts of your data for the purpose of fraud prevention. If you feel like the continued processing of the data is illegal, for example because the legitimate interest balancing was done incorrectly, or because the legal basis was consent, then you have the following remedies: You can lodge a complaint with the responsible supervisory authority. You can sue the controller before a responsible court for compliance, and for the (actual) damages that you suffered as a result from illegal processing. I'll point out that neither of these approaches is likely to work for you, because abuse/fraud prevention appears like a pretty standard case of overwhelming legitimate interest. | Well actually... I think you'll just need to wait a little more. I monitor the situation quite closely and I can tell you that it's just a matter of time. Microsoft was one of the first (if not the first) to communicate openly about the GDPR and the changes that follow. From the blog post: If your organization collects, hosts or analyzes personal data of EU residents, GDPR provisions require you to use third-party data processors who guarantee their ability to implement the technical and organizational requirements of the GDPR. To further earn your trust, we are making contractual commitments available to you that provide key GDPR-related assurances about our services. Our contractual commitments guarantee that you can: Respond to requests to correct, amend or delete personal data. Detect and report personal data breaches. Demonstrate your compliance with the GDPR. Microsoft is the first global cloud services provider to publicly offer you these contractual commitments. We believe privacy is a fundamental right. The GDPR is an important step forward to further clarify and enable individual privacy rights and look forward to sharing additional updates how we can help you comply with this new regulation and, in the process, advance personal privacy protections. Microsoft has set up an informational site on GDPR here. If your eyes are on any other provider, I think the only way to learn more is getting in touch and inquiring about their progress and process. Hope this helps. | I think that one cannot answer a question such as "Will the personal use exception in the GDPR apply to personal blogs?", because it is unclear if you refer to: personal information published on the blog pages personal information collected from the Website, by way of forms, cookies, server logs, strictly collected and processed for the purpose of operating the Website for your own personal purposes as a blogger (by yourself of through a subcontractor in the sense of GDPR) and not personal information collected from the Website's operation, transferred or provided to third parties for their own purposes (this would include cookies used to identify and track users across multiple domains) Regarding 1., a personal blog wanting to benefit from the exemption should not publish third party's personal information without their consent or another legal basis, and C-101/01 certainly applies here. About 2., if the information is strictly collected and used for the own personal purpose of the operation of the blog, I would tend to agree that it should benefit from the exemption. I feel that C-212/13 would not necessarily be an indication that because the blog is publicly accessible it is then "directed outwards from the private setting" in the sense of this ruling, and should not be considered as "purely ‘personal or household’ activity". C-212/13 case was relating to a camera installed by an individual on his family home for its own security purposes which was also monitoring a public space. The persons filmed on this public space had absolutely no direct connexion with the person collecting their images. In case of a blog, the visitors of the blog interact with the blog for fulfilling the own personal purpose of the operation of the blog of the publisher of the blog. Another argument is given by the Recital 18 which you quote: a personal blog can be viewed as a type of social networking or related online activity. Finally, about 3., there is no doubt for me that, in this case, the publisher of the blog is engaged in an activity which is not personal, since it willingly provides personal information to third parties which they use for their own purposes (and not as subcontractors in the sense of GDPR). There may be other approaches apart from these 3, but that's a start for your considerations. | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | Earlier this year, the Internet lawyer Arnoud Engelfriet wrote a blog post about exactly this topic. As it is written in Dutch, I will summarize it here: As you also said, deleting posts breaks the flow of the archived conversation and it makes your archive incomplete. This is a problem for the freedom of expression and information. But Art. 17(3) GDPR includes an exception to the right of erasure for this situation. So posts do not need to be deleted. However, profiles are not included in this exception. So they must be removed, but they can be pseudonymized. For example replace the username with user89432, and remove all details from the profile. If other posts contain the nick of the author of an anonymized post, that is considered an journalistic, academic artistic or literary expression, so Art. 85 GDPR would apply, so the right of erasure does not apply to that. Bottom line: you only have to pseudonymize the account, if that person wants to be removed from the forum. |
What defines animal cruelty? I just read this article on USAToday.com. To sum it up, a teacher fed a dying puppy to a snapping turtle and was charged with animal cruelty. Personally, I would never feed a dog to a turtle, as I consider it morally wrong. However, I started thinking, why is it illegal? Pet shops sell live animals for the purpose of feeding other animals. I have had many pets in my life and fed them live food. I have fed live shrimp to fish. I gave live fish to my snakes. I fed live insects to lizards. I gave rats and mice to my python. None of these are considered animal cruelty. So what makes feeding a dying dog to a turtle less legal than feeding a perfectly healthy rat to a snake? Both animals can be pets, so why is one animal cruelty and the other perfectly acceptable? The only thing I can think of is that Americans consider dogs to be cuter than rodents. Is this a law due to common morality? Or is there some other legal reason? | In general, the law is not based on the species, it is based on the use of the animal. This gives rise to the difference between food rabbits and pet rabbits, and so on. The definition or applicable offenses are spelled out in each state's criminal code. In Washington, Chapter 9.08 RCW covers "Crimes relating to animals", and 16.52 RCW covers "prevention of cruelty to animals". 9.08.065 defines a "pet animal" as a tamed or domesticated animal legally retained by a person and kept as a companion. "Pet animal" does not include livestock raised for commercial purposes and then makes it a crime to steal a pet animal (this is in addition to regular laws against theft that applies to any property). So if you steal someone's pet goat, that's two or more crimes, but if you steal a meat goat, that's one less crime. The main anti-cruelty laws are in 16.52. Distinctions may be made between between domestic animals and generic animals, or between livestock and others, or food animals and others, so it just depends on the action being forbidden. RCW 16.52.205 says you commit first degree animal cruelty if you intentionally (a) inflicts substantial pain on, (b) causes physical injury to, or (c) kills an animal by a means causing undue suffering or while manifesting an extreme indifference to life, or forces a minor to inflict unnecessary pain, injury, or death on an animal. There is no other provision allowing you to torture any animal, not even a backyard rat. It is generally illegal to poison animals, but RCW 16.52.190 allows euthanizing by poison, or pest-eradication by poison (insects are animals too). Thus it is legal to poison a pest rat but illegal to poison a pet rat. There is also a general exception, in 16.52.180, that No part of this chapter shall be deemed to interfere with any of the laws of this state known as the "game laws," nor be deemed to interfere with the right to destroy any venomous reptile or any known as dangerous to life, limb or property, or to interfere with the right to kill animals to be used for food or with any properly conducted scientific experiments or investigations, which experiments or investigations shall be performed only under the authority of the faculty of some regularly incorporated college or university of the state of Washington or a research facility registered with the United States department of agriculture and regulated by 7 U.S.C. Sec. 2131 et seq. This allows you to kill chickens for food, and might be construed as allowing you to feed rats to your snake (the law does not say "used as food for humans"). The definition of 1st degree cruelty also has an exception that "Nothing in this section may be considered to prohibit accepted animal husbandry practices" (however, keeping an animal as a pet or educational object does not constitute "animal husbandry" in the ordinary meaning of words). There is no clear statutory division in Washington between feeding rats to reptiles, and feeding dogs to reptiles, and if you were to feed kittens to your monitor lizard, you might well get arrested. Idaho animal cruelty law also forbids cruelty to any animal: Every person who is cruel to any animal, or who causes or procures any animal to be cruelly treated, or who, having the charge or custody of any animal either as owner or otherwise, subjects any animal to cruelty shall, upon conviction, be punished in accordance with section 25-3520A, Idaho Code. and cruel(ty) is (a) The intentional and malicious infliction of pain, physical suffering, injury or death upon an animal; (b) To maliciously kill, maim, wound, torment, deprive of necessary sustenance, drink or shelter, cruelly beat, mutilate or cruelly kill an animal; (c) To subject an animal to needless suffering or inflict unnecessary cruelty; (d) To knowingly abandon an animal; (e) To negligently confine an animal in unsanitary conditions or to negligently house an animal in inadequate facilities; to negligently fail to provide sustenance, water or shelter to an animal. Again, feeding a rat to a snake is not intrinsically malicious, nor is feeding a puppy to a turtle intrinsically malicious. A distinction can be made under the related law on torturing a companion animal (an extension of the original anti-cruelty law): A person is guilty of the offense of torturing a companion animal if he tortures a companion animal as defined in this chapter. where "companion animal" is defined as those animals solely kept as pets and not used as production animals, as defined in this section, including, but not limited to, domestic dogs, domestic cats, rabbits, companion birds, and other animals. This gives a basis for distinguishing feeder rats from feeder puppies. Torture is then defined as the intentional, knowing and willful infliction of unjustifiable and extreme or prolonged pain, mutilation or maiming done for the purpose of causing suffering. "Torture" shall not mean or include acts of omission or of neglect nor acts committed unintentionally or by accident. "Torture" also shall not mean or include normal or legal practices as provided in section 25-3514, Idaho Code. And thus it is not clear that feeding an animal to a turtle counts, since the purpose is to feed the turtle, not to cause suffering. The exceptions spelled out in 25-3514 might be applicable, but there are not clearly applicable. One exception is "The humane slaughter of any animal normally and commonly raised as food, for production of fiber or equines" – perhaps using an animal as feed for another animal can be "humane slaughter", perhaps rats are "normally and commonly" raised as food, unlike dogs. It is not currently against federal law to slaughter cats and dogs for meat, but there is a bill in Congress which would make it so. The bill has 245 sponsors in the House, so it is likely to pass. | The "Crabs" game can be legal if it is seen as a form of parody. That is one of the forms of "fair use" that allows copying (within limits). This is to allow the use of limited amounts of copying for critical or "mocking" pieces, which are considered a form of free speech. Two other issues come into play under "fair use." The first is whether or not this is "commercial" (yes) or non-commercial (e.g educational) use. That is mildly negative for "Crabs" but by no means dispositive. The second is the likely market impact, whether the new use tends to compete with the old use in its "home" market, or whether it is likely to open a new market of a very different, perhaps "opposite" audience that might later buy the original as a "crossover." The "Crabs" game seems to address the "green" or at least "pro animal" (PETA) market. If the defendant can show that the "Cards" market addresses e..g., your "inner Nazi," making it "opposite," that would be ideal. It would be less convincing if "Cards" were addressing e.g. human rights, because that might be seen to overlap with the green market in terms of social conscience. | The relevant guidance is here, at sections 3.4 and 3.6. It is surprisingly(?) confusing, the result of trying to account for exceptions both historical and otherwise motivated. The biscuit/cake distinction is not the one to focus on, because some biscuits are zero-rated (I think this category is basically the fairly plain biscuits like custard creams or bourbons) and some are standard-rated (those with chocolate, but also some others as far as I can tell). The following are supposed to be standard-rated: biscuits wholly or partly covered in chocolate (or some product similar in taste and appearance) any item of sweetened prepared food, other than cakes and non-chocolate biscuits, which is normally eaten with the fingers Later, in the 'zero-rated' column of a table of examples we have both Cakes including sponge cakes, pastries, eclairs, meringues, flapjacks, lebkuchen, marshmallow teacakes and Scottish snowballs and Biscuits coated with icing, caramel or some other product different in taste and appearance from chocolate There is some further clarification here: In most cases, the borderline between cakes and confectionery causes few problems, but there are products whose status as cakes is not self-evident. They will normally be marketed as cakes, through bakeries and supermarkets rather than through confectionery outlets, and will be displayed with cakes and biscuits rather than in the confectionery section. The style of packaging used will also normally follow the pattern for bakery products, with a number of individual portions boxed and cellophane wrapped so the contents are revealed. They are also usually eaten as part of a meal rather than between meals as confectionery. Later in that page they discuss flapjacks vs. cereal bars and admit that flapjacks are classed differently because flapjacks were around when VAT was introduced and cereal bars weren't. Based on this, I think fig rolls are likely classed as confectionery rather than cakes, so get standard-rated for tax. If they wanted to invest in the legal battle that Jaffa Cakes had, they might well win, but 'to the man on the street' they are a sweet product sold for eating between meals in its own packaging, and so they naturally fall into that intended category. EDIT: After all that, I found this wholesaler who states that fig rolls are zero-rated. Perhaps they do get classified as cakes or plain biscuits, then. | An example of where this is not allowed is Seattle, WA. Municipal code SMC 12A.06.025 states It is unlawful for any person to intentionally fight with another person in a public place and thereby create a substantial risk of: Injury to a person who is not actively participating in the fight; or Damage to the property of a person who is not actively participating in the fight. B. In any prosecution under subsection A of this Section 12A.06.025, it is an affirmative defense that: The fight was duly licensed or authorized by law; or The person was acting in self-defense. You can see from adjacent sections that "mutual combat" is not legal. I recognize that there is this meme about Seattle, but this is a distortion of an incident when the police turned a blind eye to a fight. We have police issues, no doubt: there is nothing legal about such fights. Of course, for a licensed event, you can "fight". Of course the potential legality depends on how mutual combat is defined. Illinois v. Austin 133 Ill.2d 118 and citations therein, subsequently Illinois v. Thompson, 821 NE 2d 664 define it thus: Mutual combat is a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. Similar death-definitions are found in Donaldson v. State, 289 SE 2d 242, Iowa v. Spates, 779 NW 2d 770. The law looks askance of such behavior. For the sake of clarity, a term other than "mutual combat" would be preferable. | Yes, it is legal to sell something that uses another product as one of its ingredients. And yes, you can include the name of the product in the ingredients list. That said, if you do it and are successful enough you will probably get a cease and desist letter! The Supreme Court held a long time ago in Prestonettes, Inc. v. Coty that a buyer can purchase a trademarked good, repackage it, and then resell it. The defendant of course by virtue of its ownership had a right to compound or change what it bought, to divide either the original or the modified product, and to sell it so divided. The court reminds us that trademarks are not copyrights; they not confer a right to prohibit the use of a word or words. ...unquestionably the defendant has a right to communicate... that the trade-marked product is a constituent in the article now offered as new and changed. In this case the name of the original product was included on the package in non-distinct lettering; stating that the original product was contained in the new product. I mention this because the ultimate decision is fact-specific.* So the Supreme Court tells us that we can repackage trademarked goods. The court also tells us a bit about the label - we cannot call out the trademarked name as this might confuse consumers: If the [trademarked name] were allowed to be printed in different letters from the rest of the inscription dictated by the District Court a casual purchaser might look no further and might be deceived. So, what about that FDA, what do we need on the label? You find this answer in 21 CFR 101.4(b)(2). (b) The name of an ingredient shall be a specific name and not a collective (generic) name, except that: (1) Spices, flavorings, colorings and chemical preservatives shall be declared according to the provisions of §101.22. (2) An ingredient which itself contains two or more ingredients and which has an established common or usual name, conforms to a standard established pursuant to the Meat Inspection or Poultry Products Inspection Acts by the U.S. Department of Agriculture, or conforms to a definition and standard of identity established pursuant to section 401 of the Federal Food, Drug, and Cosmetic Act, shall be designated in the statement of ingredients on the label of such food by either of the following alternatives: (i) By declaring the established common or usual name of the ingredient followed by a parenthetical listing of all ingredients contained therein in descending order of predominance except that, if the ingredient is a food subject to a definition and standard of identity established in subchapter B of this chapter that has specific labeling provisions for optional ingredients, optional ingredients may be declared within the parenthetical listing in accordance with those provisions. (ii) By incorporating into the statement of ingredients in descending order of predominance in the finished food, the common or usual name of every component of the ingredient without listing the ingredient itself. Here is an example of (i): But also note the picture of the box. That Hershey's Kisses trademarked image indicates that there is an agreement between the companies. So only use this image as an example of 21 CFR 101.4(b)(2)(i) ingredients labeling - the box cover is not an example of nominative use. *This is nominative fair use and has been discussed in other questions on this site. Court of Appeals for the Ninth Circuit in New Kids on the Block v. News America Publishing, Inc.: one party may use or refer to the trademark of another if 1) The product or service cannot be readily identified without using the trademark; 2) The user only uses as much of the mark as is necessary for the identification; 3) The user does nothing to suggest sponsorship or endorsement by the trademark holder. | It depends on the jurisdiction and particular facts. The long history of not counting marriage as prostitution under law because of its social and religious legitimacy makes the transaction-related aspects of marriage fall outside the definition of prostitution in most cases that are not the explicit sale of a person for consideration, which is obviously forbidden as slavery today and could probably also be charged as prostitution in most jurisdictions. In your particular example, the girl is also saying what things will influence how she feels, and no reasonable person would say that she gives up her ability to withhold consent after marriage based on any alleged contract. A contract to lose the ability to withhold consent would also be void as against public policy, regardless of whether prostitution is involved. Bitcoin is a form of virtual currency. It is regulated by money transmitter law and trading it to obtain goods or services that cannot legally be traded for is still illegal. It's not that there is a defined "limit." It's that some things will fit into the definition and others won't. It's about categories, not quantities. | You signed a contract where you agree to not have pets and the landlord agreed to let you live there. If you decide to not follow your end of the deal, the landlord might not either. In simple terms, you can get evicted. There is probably a clause in the contract to the effect of "you will get evicted if you don't follow these rules". Depending on contract and local law, you may also be fined, forced to remove the pet, or have your security deposit withheld. One reason landlords don't want pets is that pets leave odors and fur in the apartment, requiring costly cleaning. Not to mention some cats love tearing up the carpeting and otherwise destroying the property. Thus the deposit is used to "repair the damage" caused by the pet. Some landlords charge an additional pet fee for tenants with animals, so if you secretly keep a pet you are cheating them out of the fee as well. If you want the cat for several months or more, then you probably shouldn't try to hide it from the landlord. There is a big risk you will be discovered and suffer repercussions. The landlord may also refuse to renew your lease later. In theory, and depending on your tenant, you could claim that the cat was there for a day and it will be removed right away. But as I said, landlords are concerned more about the damage to their property than policing you, so once the landlord gets suspicious (probably already happened since you asked him about it) they could inspect the place and demand you pay for damage regardless of how long the cat was supposedly there. Well being of the cat is unlikely to create an exception to the contract. However, you could have some recourse by claiming that the cat is an emotional support animal and vital to your well being. I am not familiar with the process for this in Austria, but presumably it will involve paperwork from a psychologist verifying the fact. Simply saying you really like the cat and don't want to give it away will not be a sufficient reason - you initially agreed to not have pets, so it can be argued that you should not have taken one in to begin with. I love cats too, but you probably shouldn't do it if your landlord already told you no. You could end up in a situation where you are forced to put the cat in a shelter, which wouldn't be good for the cat. If your landlord won't budge, your best option is to move somewhere else. | This is a duck You can label it a chicken if you like but you won’t fool anyone who knows about ducks. A charitable donation comes with no expectation of a quid-pro-quo. Paying a school in return for them educating someone is not charity. |
Is Facebook's new cookie banner GDPR compliant? Today I visited Facebook from a Google search to find the following cookie banner at the top of the page: To personalize content, tailor and measure ads, and provide a safer experience, we use cookies. By tapping on the site, you agree to our use of cookies on and off Facebook. Learn more, including about controls: Cookies Policy. From what I understand the GDPR doesn't allow such implicit consent and also there needs to be a prominent way to opt out of this data collection. Has Facebook found a loophole to this requirement or is this approach illegal under the GDPR? | I'd say it's definitely illegal. Here's what the cookie notice says on Facebook at the time of writing this answer: By clicking on or navigating the site, you agree to allow us to collect information on and off Facebook through cookies. And here's what the GDPR define consent: ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; Also consider this, by the way: When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. Facebook's notice is a small blue bar at the top of its blue header, and you might not even notice it (at least on a desktop computer where I'm seeing it). I see no way to easily deny consent, for example there is no button saying "I don't accept". All you can do is click on the link to their cookie policy, and still that policy does not present a clear and easy way to deny consent in all different cases, it looks pretty complicated (among other things, it depends on whether you have a Facebook account or not). So denying consent looks pretty difficult, if at all possible. On the other hand, to give consent, you'd only have to click on any link. I tried this. I opened my browser in private/incognito mode, so it should not use any previous cookies. On Google, I searched for "facebook John Doe". Clicked on a result bringing me to a Facebook page with a list of profiles of people named John Doe. The cookie bar appears at the top, but let's pretend I did not notice it. Then I click on a profile, supposing I'm interested in a certain John Doe, and... I land on John Doe's profile on Facebook, now without the cookie notice! What happened is I gave consent by clicking on any link, that is, clicking on John Doe. I can't see any way this "consent" could ever be considered "freely given, specific, informed and unambiguous indication of the data subject's wishes". Why is Facebook not compliant? Well, they probably couldn't be compliant even if they wanted to, unless they wanted to go out of business. Lately I've been wondering what the purpose of Google Analytics would be if users were always given the option to freely refuse consent. Virtually every user would always be clicking on "I don't accept", every time everywhere, so lots of business models would be totally disrupted. By the way, as of now, the cookie bar of this community (stackexchange) does not comply with GDPR either. To tell you the truth, I'm afraid very few websites have a GDPR compliant cookie notice. | No. That is spelled out pretty clear in Article 11. In fact, if you want follow accepted data minimisation principles (and you should), you should not log anything about cookies at your or a third party's website. | Enforcement against non-EU entities is difficult, and especially digital services would be impossible to shut down. Ultimately, enforcement would depend on judicial assistance between the relevant EU member state and the jurisdictions where the data controller is established or has relevant assets. Your case involves physical goods and other regulations though, so that (some amount of) compliance by the data controller is necessary in order to have continued access to the EU single market. Which instruments for enforcement of fines are available depends on the EU member state, but could e.g. involve confiscation of products or payments. A non-EU B2B service provider would also have economic incentives to comply as EU data controllers cannot share personal data unless an adequate level of protection is ensured. In reality, it is fairly unlikely that non-EU data controllers will get fined anytime soon because data protection authorities tend to prioritize more clear cut cases, and tend to stay within their jurisdiction. Of course, non-EU data controllers are usually required to register an EU representative precisely to subject them to a particular authorities' jurisdiction, but a non-compliant controller is unlikely to do that. A note on the GDPR's territorial scope: it is far less extraterritorial than some people believe. Per GDPR Art 3(2) the regulation applies to non-EU data controllers, (a) to the extent of their processing activities that relate to offering of goods and services (also unpaid services) to data subjects in the EU, or (b) when they monitor/track behaviour of data subjects as far as the behaviour takes place in the EU. For example, a B2C company would have to comply with the GDPR regarding how they handle shipping addresses of their EU customers. The EDPB has issued in-depth analysis as part of their guidelines 3/2018 on the territorial scope. However, the ECJ has found that some of the GDPR's effects are confined to the EU. For example, Google has to hide some results from EU searches in order to comply with the GDPR's Right to Erasure, but cannot currently be forced to hide the results from non-EU searches. | The GDPR roughly applies in the following scenarios: Art 3(1): you have an establishment in Europe Art 3(2): you do not have an european establishment, but Art 3(2)(a): offer goods or services to persons in Europe Art 3(2)(b): monitor the behaviour of people who are in Europe (where Europe means EU/EEA/UK as appropriate). Art 3(1) does not seem to apply for you. Art 3(2)(a) does not apply, since you're not actively targeting people in Europe. At the point in time where you are offering the app to users, those users are in the US. Art 3(2)(b) could apply if you collect some kind of tracking data, in particular (but not limited to) location data. But if you temporarily shut down collection of new data for personalisation while the user is in Europe, that's probably going to be reasonably safe. It might not be necessary to disable ad personalisation if that personalisation is based on data collected outside of Europe. In practice, unless your app is specifically targeted at travellers, no one will care about what your app does outside of the US. For detailed guidelines on the territorial scope of the GDPR, consider reading EDPB guidelines 3/2018 (PDF). The document contains some relevant examples, but since it's official guidance they won't explicitly say that GDPR won't apply in a scenario like yours. The closest is Example 8: An Australian company offers a mobile news and video content service, based on users’ preferences and interest. Users can receive daily or weekly updates. The service is offered exclusively to users located in Australia, who must provide an Australian phone number when subscribing. An Australian subscriber of the service travels to Germany on holiday and continues using the service. Although the Australian subscriber will be using the service while in the EU, the service is not ‘targeting’ individuals in the Union, but targets only individuals in Australia, and so the processing of personal data by the Australian company does not fall within the scope of the GDPR. Also relevant is Example 10, which says that app downloads in the EU might not be subject to GDPR: A U.S. citizen is travelling through Europe during his holidays. While in Europe, he downloads and uses a news app that is offered by a U.S. company. The app is exclusively directed at the U.S. market, evident by the app terms of use and the indication of US Dollar as the sole currency available for payment. The collection of the U.S. tourist's personal data via the app by the U.S. company is not subject to the GDPR. | First of all, in a GDPR contest, the process described is not strong anonymization. It may be hard for an outsider to go from the stored record to any PII, it is much easier for an outsider to "single out" an individual. This means that given a known individual, one can determine whether that person is among those listed in the records, or can determine this to a significant degree of probability. For this only the algorithm and the rotating salts are needed, one need not break the hash. Note also that the GDPR specifies that if a person can be singled out with the assistance of the site operator the data is not considered anonymized. Thus this data needs a lawful basis under the GDPR, and the various other GDPR requirement all apply. However, even if the data were totally anonymized, and say just added to a count of users with this or that User Agent, the process of reading local data (including but not limited to cookies) itself requires informed consent, and so a cookie banner or other interaction with similar info under the e-Privacy directive (EPD). The EPD, being a directive and not a regulation, must be implemented by national laws, and the exact provisions in those laws may differ somewhat from country to country. But I believe that all of them require consent before any local data is read. | The GDPR gives controllers a lot of latitude. They must decide on the correct course of action taking into account the possible risks to data subjects. Specifically, no notification of the authority is necessary if “the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons.” In your scenario 1, you suggest that there is no breach because there is no evidence that the data was improperly accessed. This analysis is faulty: the controller is aware that the data was not properly secured, and cannot rule out that the data was improperly accessed. I would argue this fits the description of a “breach of security leading to the accidental or unlawful … unauthorised disclosure of … personal data” (compare the definition of a data breach in Art 4(12)). Thus, a data breach has happened. The question whether the supervisory authority has to be notified of that breach is more debatable. The controller must assess the likelihood of risks to the data subjects. Here, they can perhaps argue that the risk of disclosure is low. However, the nature of the breached data would also be relevant. If in doubt, the controller should make the notification. The goal of the GDPR is not to punish unlucky companies that suffer a breach, but to protect personal data. Thus, fixing mistakes and cooperating with the supervisory authorities is likely the best approach for most companies. In your second scenario, the data is sensitive – its disclosure has a high risk for data subjects. However, the risk of someone intercepting this data is debatable. Does the risk of interception balance out the sensitivity of the data? That's the data controller's call, but I don't think so. A notification would seem appropriate here. As a technical remark, simply offering HTTPS is not sufficient to prevent MitM attacks – users must be forced to use encrypted connections. If a controller sees MitM as a risk, they are required by Art 24 to take appropriate technical measures. Here HSTS and HSTS preload would prevent the connections from being downgraded to HTTP. Instead of offering insecure connections, the site would become inaccessible. A complementary strategy is to not serve content over HTTP, but have the HTTP server only issue a permanent redirect to the HTTPS URL. | The GDPR applies to such sites if they offer services in the EU/EEA. If they clearly wanted to avoid being subject to the GDPR, they should block visitors from the EEA. For the GDPR, only location matters. Other concerns like residence or citizenship are generally irrelevant. Personal data does not turn non-personal just because it was public. So the GDPR still applies when the data was collected from public sources. However, the data controller (who determines the purpose of processing) often has to balance your rights and interests against other interests (e.g. when using legitimate interest as a legal basis for some processing). For the purpose of publicly displaying your data, only showing data that was already public anyway makes it easier to argue that this is fine. But when the GDPR applies, you have data subject rights. Relevant rights include: a right to access, to see all the data they have about you a right to rectification, to correct wrong data they hold about you a right to restriction, effectively an opt-out a right to erasure (also known as the right to be forgotten) These rights apply both against the website and against Google Search (arguably, both are doing the exact same thing). Google correctly points out that they can't remove information from the Web, but they can hide information from search results. If you feel that your requests have not been resolved correctly, you can issue a complaint with your country's data protection authority. In theory you can also sue them. In practice, GDPR enforcement against overseas data controllers can be quite difficult and has not yet happened. | The intention of the GDPR is to minimize the amount of personally identifiable information (PII) you store. So the GDPR never tells you that you have to log certain events. The simplest way to make sure you comply with the GDPR is to simply not store any PII at all. But that might of course conflict with legitimate business interests and with other legal obligations you might have. So when you do store PII, then the GDPR regulates under which conditions you are allowed to store PII, for how long and what you are allowed to do with that PII. So when you receive a GDPR request from a customer to see their data, then you can say that you only have that one timestamp of their registration, because you didn't log their subsequent logins (assuming this is the truth). I hope your privacy policy says that you store all that PII on registration and that you have some good arguments why storing that information is a "legitimate interest" of your organization. |
Is there any legal mechanism for a citizen without resources, to be able to sue the state for infringing his/her constitutional rights? Is there any legal mechanism for a citizen without resources, to be able to sue the state for infringing his/her constitutional rights? In Argentina for example, I know there is a "defensor del pueblo" at national and provincial level, but as far as I know, he acts by his own and not by petitions besides they are a few for so many people. I don't know if here questions can be asked about how it is for more than one country, my interest is worldwide and more particularly Latin American countries, since certain types of freedom of speech/beliefs/equality under the law, fair trial, etc. abuses, and constitutional violations by part of international lobbys inserted and exercising its influence from inside of the states are seen across most western countries. | In the US, there are a number of non-government organizations which take on such cases, such as the ACLU or the Institute for Justice; individual law firms may also take such cases pro bono. There is no automatic right to free representation in case a constitutional issue is alleged, so if IJ doesn't like your case they won't take it. These are private organizations: there is no general government agency that one can call on, other than the Public Defender's office in case you are charged with a crime and can't afford legal defense. (A constitutional issue may arise in a case that a PD might handle, but you can't e.g. call on the public defender to sue the government for infringing your 2nd Amendment rights.) A state attorney general could file suit against the US government over a constitutional issue, as Washington's AG did in the case of the Trump travel executive order, where the underlying issues were constitutional. An individual might inspire a state AG to take on an issue, but the AG would be representing the interests of the state, broadly, and not individual interests. | Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000. | Yes The only accurate thing in the linked article is: "I am not a Constitutional lawyer." That could be taken further into "I have no real idea how our legal and political systems work." One of the tasks of the Massachusetts Supreme Judicial Court is to interpret the laws of Massachusetts including the Massachusetts Constitution. In Goodridge v. Department of Public Health the court decided that the Constitution provided for equal protection and due process and that if the state wished to discriminate against people on the basis of sex they needed a good reason. The reasons the state put forward were: providing a 'favorable setting for procreation'; ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and preserving scarce State and private financial resources. On 1. the court said marriage is irrelevant for procreation and vice-versa. On 2. they said Massachusetts law on child welfare dealt with the "best interests of the child" and that it is not in those interests for the state to deprive the child of benefits because it doesn't like the sexual orientation of the parents. On 3. they said equal protection means equal protection. In a common law legal system like Massachusetts where courts have the power to strike down legislation then that takes effect as soon as the decision is published. The law ceases to exist without the legislature or the executive doing anything. Now, the people of Massachusetts are free to amend their constitution to outlaw same-sex marriage or remove equal protection rights if they want. However, at the time and subsequently, the majority don't want. | This is a very straightforward point of constitutional law. Chapter and verse from the Constitution, art 224: (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. | It seems like a lot of "punishments" can be applied to a person without having to go to court. Yes, because everyone has the right and freedom to associate, or dissociate, with other people, and the freedom of contract, at least when the state does not decide to interfere. The state, owing to its monopoly of legitimate violence, has a duty towards everyone under its rule and the people in many countries decided that the state's power should be significantly limited with judicial supervision where individual rights and freedoms are implicated. Other individuals or legal persons do not in general owe a duty to be friend with you or to sign or continue a labour or rental contract with you. At the same time, the people and their government have also decided in certain situations there exists a power imbalance (e.g. between the landlord and the tenant, the employer and the employee, groups suffering from discrimination and stereotypes) where unlimited freedom of association and contract not only harms the individual's human dignity but also harms the society as a whole (e.g. homeless and unemployment, which may lead to increased crimes etc.). Thus, in some situations, the law prohibits discrimination and provides for legal rights generally for the more vulnerable. However, this is a decision that is undertaken by each jurisdiction. A court order is only required if the law says that you normally have a legal entitlement but the state or someone else wants to take it away or limit it, or if the law explicitly requires a procedure before the court. Since you tagged the question with canada... Can a person be fired ... without a court order? Yes. However, in Canada, all jurisdictions have labour laws that regulate dismissal of an employee. Dismissal without cause usually requires notice period and/or severances, depending on the length of employment. Dismissal for cause can be challenged in court and the employer has the burden of proof to justify the cause on a balance of probabilities (more probably than not) and the terminated employee will have the right to have them heard before the court and present their evidences. If the person occupied a unionized position, they may also be able to file grievances with the union before an arbitrator, depending on the text of the collective agreement. The collective agreements also often provide for procedural requirements before the dismissal of an employee in a unionized position. Violation of these procedural requirements may lead to the annul of dismissal or awards of damages. Can a person be banned ... without a court order? Yes. You have no general right to be on another person's property in Canada. Your rights end where others' property (or other) rights begin. Like said in the beginning, this is a societal decision and an act of balancing particular to each jurisdiction, for example, in some places, there exists a right to roam over certain publicly accessible lands. The property owner or another person otherwise legally authorized has the authority to decide who they want on their property (which means what is one's own), subject to certain narrow exceptions, under common law and provincial trespassing acts. Your neighbour cannot prevent you from crossing on their land if you have a valid easement and are not abusing it. But if you are abusing your easement, your neighbour may take you to court for an order. Here the property owner includes the state. However, like almost all decisions made by the state, in Canada and many other countries with the rule of law, can be judicially reviewed for their reasonableness, and sometimes correctness. Like all decisions made by the state, trespassing notices may be challenged if the decision is arbitrary or without legal basis. Can a person be evicted ... without a court order? No. In all jurisdictions in Canada, eviction, that is, the forced removal of tenant from a premise, can only be carried out by sheriffs or other legally authorized officers upon an order from a court or tribunal (often called Landlord and Tenant Board or similar), with exceptions for certain tenancies (e.g. where the landlord and the tenant share living area). Court order is not required for the termination of a tenancy; but the termination of tenancy can only be achieved if the tenant agrees or a tribunal or court orders so. Does Habeas corpus come into play in any of these situations No. Habeas corpus means "that you have the body", which is an order from a judicial official to command the state to bring someone in its custody before the court, so that the legality of their detention by the state may be determined. In Canada, habeas corpus only protects liberty interests of an individual. | Is this illegal? No, subject to some possible narrow exceptions discussed below. Do the social media companies have a duty under the First Amendment to not censor users? No. Indeed, usually, there is greater liability exposure for failing to censor content, for example, by failing to honor a "take down notice" under Title II of the Digital Millennium Copyright Act based upon an alleged copyright violation, or for failure to censor content related to potential sex trafficking. The First Amendment to the United State Constitution (which applies to state and local government via the 14th Amendment to the United States Constitution) is a limitation on the power of governmental actors only. This said, some state constitutions, such as California's, provide free speech protections not just from government action, but also in spaces that are privately owned, but are open to the public and constitute de facto public forums. The authority of California to expand its state constitutional protections to these private settings was confirmed by the U.S. Supreme Court in the case Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). It is conceivable that these doctrines could be expanded to public Internet forums in the case of California based social media companies (e.g., Facebook has its headquarters in Menlo Park, California; so does its sister platform Instagram; LinkedIn is based in Sunnyvale, California; and Google is based in Mountain View, California). There are also laws that limit how employers can regulate employee speech in a labor relations context, although most of them don't have constitutional dimensions. It is conceivable that these doctrines could limit social media platform's authority to limit some kinds of speech by their own employees, or in situations where the social media platform looked like it was acting as a mere agent of some other employer controlled by that employer for all practical purposes. There has also been litigation related to free speech on social media regarding the rights of governmental account holders to exercise the same kinds of account management that is available to other users, implicating the First Amendment right to petition the government. The social media platform operator is not itself the primary target in these cases, but if it simply implements its terms of service neutrally with respect to all account holders, it could be facilitating a constitutional violation by its governmental account holders and could conceivably be held liable for aiding and abetting that violation of the law by a governmental account holder (in the context of a lawsuit for money damages this is a special subtype of something called a civil conspiracy). | Without regards to the actual case and the particular countries involved, I am wondering how it is even possible that a court in one country orders the whole another country to do something, let alone when the two countries do not even formally have diplomatic relations. The main statute that is relevant in the U.S. is the Foreign Sovereign Immunities Act (FISA) of 1976. In general foreign states are immune from liability in U.S. courts (and most courts of the developed world) subject to certain exceptions, the most common of which are as follows: Foreign state waives its immunity explicitly or implicitly Commercial activities by foreign state in or directly affecting the United States Property taken in violation of international law is at issue Rights in U.S. property acquired by succession or gift or rights in immovable property situated in the United States are at issue Money damages are sought against a foreign state for personal injury, death or damage to or loss of property caused by its tortious act or omission, occurring in the United States Enforcement of an arbitration agreement made by the foreign state with or for a private party Money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or their support, if the foreign state is a designated sponsor of terrorism Admiralty lawsuit to enforce a maritime lien against a vessel or cargo of the foreign state, based on commercial activity The exception above in bold was probably the one applied in the North Korean case. The only countries to which that exception applies are North Korea, Syria, Sudan and Iran. (There are also separate similar rules related to countries with whom the U.S. is in a declared war.) There is sporadic ongoing constitutional separation of powers litigation in the U.S. over whether a FISA authorized lawsuit can proceed over the objections of the President as expressed by the U.S. State Department. The argument that FISA is unconstitutional in this context is that diplomacy and foreign policy is exclusively an executive branch power to the exclusion of Congress and the judiciary, but for the most part, this extreme position has been rejected in recent years. A conservative U.S. Supreme Court, however, could revisit this question (conservative judges tend to favor more absolute executive branch authority in foreign affairs). Once a party wins, however, the winner needs to identify foreign assets subject to the jurisdiction of the court from which to collect the judgment, such as gold deposits or U.S. governmental or corporate bonds or ships docked in U.S. ports, owned by the country. In strong contrast to the case above, the UK media recently overtly demonstrated disobedience of a New Zealand court name suppression order: a man arrested in NZ for allegedly committing an appalling crime was granted temporary name suppression, and that was ignored by the UK media. I am wondering if there is anything that would stop a New Zealand court to hold the UK to account just like the US court just did North Korea. In the New Zealand case, the remedy would be to bring suit against the particular newspapers or reporters involved, rather than the state. But, the U.K. might not enforce those judgments if those defendants lost, so enforcement might be limited to New Zealand based assets and persons, and then, only if the New Zealand court found that it had jurisdiction over the defendants under New Zealand law. So, this isn't really analogous. So, in general, are there any internationally recognised laws/treaties/protocols etc. that define if/when a court in one country can assert jurisdiction over the whole another country and hold it to account? Or is that completely up to the court and whatever extremes it dares to come up with? See above in the U.S. case. Most countries have similar statutes or case law to FISA which codified the case law applying customary international law at the time that it was adopted. One example that comes into my mind is the European Court of Human Rights: if a country signed the European Convention on Human Rights, it can be held to account by the court. But what conventions, if any, can be applied to the two cases above? The European Court of Human Rights case is one of consent to the jurisdiction of an international body by treaty. Countries like the UK and NZ have statutes or treaties governing when a foreign judgment (e.g. a judgment from a New Zealand court) will be recognized domestically. There are also usually laws governing when people present in one state will be extradited to another, usually in the form of a bilateral treaty between the affected states. | One does not lose legal rights by becoming a government official, so POTUS retains the right to sue for defamation, hold copyright, sue for trespass or breach of contract, and so on. The standards for defamation change when one becomes a "public figure" (you have to show "actual malice"), but this is much broader than being a government official. Anything that is a "work of the US government" is not protected by copyright, so presidential decrees, as government works, are not protected by copyright. I do not know of any state where one legally loses publicity rights as a function of being famous, or being an elected official. California Civil Code §3344 spells out the right of publicity in that state, which says that anyone who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent can get sued. However, there is a "fair use" escape clause: For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a). The law doesn't say exactly what constitutes a "political campaign" or "public affairs broadcast or account", but since politicians get caricatured in the papers all the time, with no requirement for consent, it is highly likely that the use you point to would be found to be part of a "political campaign" or "public affairs account". Additionally, under the First Amendment, you can criticize a government official, and that right is not limited to just critical words. It is obvious that the things on sale are basically criticism of POTUS, and you can't use the law to suppress such criticism. Accordingly, one could also criticize Tom Cruise (not a government official) using his likeness on such an object. However, one cannot exploit his image to sell perfume. |
Can the terms of service contain a clause that instructs a user to forfeit their rights under the GDPR? Suppose an American company wishes to do business with European parties. Could their terms of service say that as a user of their services the user forfeits any rights afforded to them by the GDPR and more importantly how would European Union courts and American Courts see this clause? Also can the Terms of Service say that if "You" are from any country in the European Union, do not continue using the services of the site? If this is done and someone from the European Union still uses the site, does that then legally negate the GDPR rights afforded to them? Just want to note that I think the GDPR good thing and I'm doing everything I can to comply with it, but I'm also structuring everything as defensively as possible. | It is not possible for someone to forfeit their rights because the GDPR is compulsory law. In the EU, laws can be regulatory or compulsory. In case of an agreement, regulatory laws can be set aside, if both parties agree on that. But compulsory laws cannot be set aside. Of course laws can also be partly compulsory. For example provisions which cannot be changed in disadvantage of a consumer. So there is freedom of contract, but it's freedom is reduced by law for the common good or for example to avoid misuse of bargaining power. In particular consumer related laws are often compulsory because it has little power against the other parties. Companies can have their negotiations done by lawyers, so they can make a well informed an well negotiated decision. As an extreme example, you cannot kill someone, even if that person has given you written permission. See also "Peremptory norm" on wikipedia for international law examples. | Alice's business sells database management software. Organisations buy or licence the software, deploy it on hardware they control and use the software to help store and, process and analyse 'personal data' within the meaning of GDPR. Alice's business has no access whatsoever to the personal data being stored and processed by those organisations. In respect of that personal data, GDPR is not engaged by Alice's business. The business is neither a 'controller' nor 'processor' of that personal data. Who does the data protection law apply to? - European Commission Who does the UK GDPR apply to? - Information Commissioner's Office | If the website's processing of your personal data is within the scope of the GDPR, then you have a qualified right to request the erasure of your personal data. It is relevant whether: the website operates within the EU; the website is operated by a company established in an EU country; the website aims to sell goods or services to people in the EU; or the website is routinely processing the personal data of people in the EU (including non-citizens). Furthermore, it is relevant whether your posts: contain one or more identifiers from which you could be personally identified, directly or indirectly, including by only the administrators or owners of the website; and by their content, directly reveal information relating to you. For example, let's say you posted on a forum saying that "I am a keen supporter of socialism", and your personal email address was used to sign up to the website, then you would have revealed information about your political beliefs, which by reference to a username, the website owners could use to uniquely identify you by your email address. You would not necessarily have to have used your name. If, for example, you posted something factual, like, "The Porsche 911 GT2 RS MR recorded the fastest lap time for a road-legal sports car on the Nürburgring," then it is only personal as long as it is associated with an identifier through which you could be identified. As such, the removal of the relationship could easily anonymise the post. A data controller has an obligation to provide means by which the data subject can exercise the rights guaranteed under Chapter 3 of the GDPR. Article 17 grants the right to "erasure of personal data concerning him or her without undue delay" where the grounds under Art. 17 lit. 1 (a) to (f) are met. It may be relevant what the lawful basis of processing personal data was in the first place, such as in determining whether you can withdraw consent (i.e. you cannot withdraw consent if consent was not given), or in determining whether there is a right to object under Article 21 lit. 1. Derogations permissible under local implementing laws may provide for other exemptions or requirements to the right to erasure, so it is also important to determine the country of jurisdiction. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. | These are only tangentially related to the GDPR A government entity processing data in accordance with a member state law is ipso facto in compliance with the GDPR. That’s because lawful government data processing is a legitimate reason for processing data under the GDPR. If Germany, for example, passes a law saying German police can record every phone call in Germany, then that would be a lawful basis for processing under the GDPR. There may be constitutional or other legal limitations on such a law but as far as the GDPR is concerned, they’re fine. | An app(lication program) is software run on the end-users machine. That does not fall under the GDPR. Any processing (including storage) you do on user data has to be compliant with the GDPR. Allows a user to authenticate via e.g. Facebook and stores some basic data (optional) Authentication via Facebook leaves GDPR compliance to Facebook (AFAIK). It would be a good idea to provide alternative authentication methods, such as Google and an "own account" user name and password so that the user doesn't have to share information with a multinational company in order to use your service. The "basic data" will need to be processed according to the GDPR. As long as the "optional" part is "opt in" (i.e. the user needs to at least click on something) then this means you have permission to process that data. Providing this "basic data" as a JSON or CSV file should meet data portability requirements. Allows a user to upload a GPX file (a route or some other activity) Stores the above file to Google's database Allows the user to analyze that file. Since the user is actively choosing to upload each file you have permission to do this. You should make it clear in your privacy policy that the data will be held by Google. Doing so should not be a problem as Google has set up the legal framework to do this under the GDPR. You don't have to store the information encrypted, but you should use encryption (e.g. HTTPS) for any data transmission. Allowing the user to analyse the file is not an issue; either the user is doing it on their own machine (GDPR irrelevant) or you are doing it under user instruction (meaning you have consent). Since the user has uploaded GPX files they already have data portability on those files. You should tell your users that while you will employ best endeavours you don't promise to keep their files accessible and they should maintain their own private copies. That way if your entire database gets corrupted they can't blame you for loss of data. Finally, make sure there is a "Close my account and delete all my data" option. | It's hard to prove a negative, and I'm not sure which specific part of the quoted Terms you object, to, but it specifically states that content access may be done to: Comply with the law Protect its customers; and Protect the security of its business; and Protect its business interests. It's unlikely that access of information to comply with the law is illegal. At least one EU directive, Directive 95/46/EC, sets limits on the collection and use of personal information. We're concerned with the first condition for lawful data processing, and the second principle of data quality. Data processing is only lawful if the data subject has unambiguously given his consent; or processing is necessary for the performance of a contract to which the data subject is party; or processing is necessary for compliance with a legal obligation to which the controller is subject; or processing is necessary to protect the vital interests of the data subject; or processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party; or processing is necessary for the purposes of the legitimate interest pursued by the controller or by the third party, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection. The principles of data quality, which must be implemented for all lawful data processing activities, are the following: personal data must be processed fairly and lawfully, and collected for specified, explicit and legitimate purposes. They must also be adequate, relevant and not excessive, accurate and, where necessary, kept up to date, must not be stored for longer than necessary and solely for the purposes for which they were collected; special categories of processing: it is forbidden to process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. This provision comes with certain qualifications concerning, for example, cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis. So, let's say that someone has given their consent. It'd be at least a little questionable whether the inspection of private information could mean that they access personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. I'm a bit less clear on US laws, but you'd probably look for laws around Personal Identifying Information, as that's where a lot of focus has been. | Probably not. There are potential problems on the levels of copyright, data protection, and the Youtube terms of service. You should assume that comments are typically covered by copyright. You do not have a license to these comments, only YouTube does. Therefore, YouTube can show the comments but you can't copy them – just like YouTube can stream your videos but others can't download them and host them on their own websites. To cover the copyright angle, you'd either need to obtain a license from the commenters, or get a sub-license from YouTube, or identify a suitable copyright exception. The comments are personal data within the meaning of the GDPR, so that your processing of these comments (including mere storage) would be subject to GDPR as well. You need a legal basis for processing personal data. Which legal basis is suitable would depend on the purpose of processing, and on your relationship with the commenters. Potentially applicable legal bases in this context: you have a contract with the commenters that requires you to show the comments on your website. For example, I could see such a contract if there were a “featured comment” perk for a Patreon subscription. But this is not going to fly with random commenters. you have a legitimate interest (LI) that allows the processing. A LI requires that you conduct a balancing test where you weigh this interest against the commenter's rights. This is very specific to the purposes for which you want to show the comments. However, a LI will generally only apply if you have an existing relationship with the commenters, making it possible for them to expect that this processing will occur – unlikely if you'll be scraping comments from YouTube. you have obtained consent from the data subject. Consent must be specific, informed, freely given, and unambiguous – you can't obtain consent by writing “by commenting under this video you consent to XXX” in the video description. Regardless of legal basis, you would have to inform the commenters under Art 14 GDPR when you scrape their comments from the platform. Finally, consider the platform terms of service. I have not read the YouTube ToS recently, so I don't know what their specific conditions are. But in general, such ToS will not allow you to scrape content from their platform in order to host it somewhere else. The ToS might allow certain actions like embedding a link/iframe to such videos on other sites, without allowing other actions such as copying other user's content to your site. |
Specificity of GDPR's right of erasure Article 17 of the GDPR states that: The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her [...] where one of the following grounds applies: [...] b. the data subject withdraws consent on which the processing is based [...] What I haven't understood is how specific one can be regarding the data to be erased in such cases. May one request the deletion of a single data-point or must it be of entire data categories? For instance, if I was friends with someone on Facebook, unfriended them, and for some reason wanted Facebook to erase its knowledge of our past friendship, is that permissible according to GDPR? As in, could I say I hereby withdraw my consent for you to process any data regarding my past friendship with John Doe (including its very existence) and therefore demand its deletion. Or, given that I haven't given Facebook consent to analyze each individual friendship but to analyze all my friendships, would the request have to be far broader: I hereby withdraw my consent for you to process any data regarding my friendships (including their very existence) and therefore demand its deletion. (which would be almost flipping a reset switch on my Facebook account)? | b. the data subject withdraws consent on which the processing is based [...] That refers to Article 6(1)(a): Processing shall be lawful only if and to the extent that at least one of the following applies: a. the data subject has given consent to the processing of his or her personal data for one or more specific purposes; Article 7 contains the conditions for consent. As far as I know, Facebook has never requested consent as specified in Article 7. You have accepted the Terms of Service, but that does not count as also explained in recital 43 Consent is presumed not to be freely given [...] if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. So because you have not given consent as defined in the GDPR, you cannot withdraw consent. But even if you can withdraw consent, it would only apply to data processing based on Article 6(1)(a). Facebook would not base the processing of data regarding friendships on Article 6.1a, because it looks to me that is a key feature of Facebook. Even regarding the past friendship with John Doe, processing would probably be based on Article 6.1f, for example because John Doe has interests in keeping that data. Only if for example the knowledge of that past friendship is used to display an ad, it would be possible to withdraw consent of that data processing, but that would not lead to deleting any data. Facebook would still know about that friendship, you would still see an ad, but which ad is shown, would not be based on that past friendship. | Yes, there would still be an obligation to comply with erasure requests – if the data subject can be identified, and if the GDPR applies. This is a case for Art 11 GDPR: processing which does not require identification. The pastebin site is not required to collect identifying info just in order to facilitate later deletion. If the site is unable to identify the data subjects, then the data subject rights (like access, rectification, erasure, restriction, or data portability) do not apply. Other rights like the right to be informed and the right to object do remain, though. But if the data subject provides sufficient additional information that makes it possible to identify their records, then the data subject rights apply again. In practice, this is likely going to mean that anyone with access to a paste will be able to request deletion, since the site would have no ability to verify the identity of the data subject beyond the information in the paste. None of this absolves the site from implementing appropriate technical and organizational measures to ensure the security of this data. Even though the pastes might not be directly identifying, they are personal data and are far from anonymous. Common practices like numbering pastes with a sequential ID or showing recent pastes on a homepage have to be viewed critically. My go-to recommendation is to assign a cryptographically random UUIDv4 ID to the post, so that it is practically impossible for anyone to find the paste unless they were given a link by the uploader. Your idea to delete pastes after a fairly short retention period is also good. This helps with security, and it is in line with the GDPR's data minimization and storage limitation principles: data may only be kept as long as necessary for its purpose. On the other hand, quick deletion might not be in line with the purpose of these pastes – it all depends on context. You mention that this is an US-based site. If so, there's a question whether GDPR would even apply. GDPR will apply per Art 3(2) if the data controller is offering its services to people who are in Europe. Here, “offering” does not mean mere availability of the website, but that the data controller intends the service to be used by such people, in particular if the service is somehow targeted or marketed to such people. | Term 1 isn't going to hold up, but that is not a GDPR matter. It's just a matter of basic consumer protection law in the EU. You can't offload responsibility for your mistakes. Looking at 2, Dale M. already pointer out that it's now how the GDPR works. You are the Data Controller. X,Y and Z are Data Processors. Article 28(1) of the GDPR is in direct conflict with your disclaimer. You accept zero responsibility, the GDPR says you are fully responsible. That's the exact opposite. | No, it is not legal. Regardless of their location, the only legal options for companies serving to EU residents are to either deny access altogether or to make consent truly optional1 Recital 42 states (emphasis mine): Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement[...] Recital 43 states: Consent is presumed not to be freely given [...] or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. 1 Of course, remember that consent is only one of several means that allow them to process data. For example, if you were getting a trial account for a limited time, it would be considered a legitimate business need to ensure that you are not just opening new trial accounts when the old ones expire. So, if they wanted some data from you to ensure that you are not a previous user and you refused to provide it, then they could deny giving you that trial account without breaking the GDPR. | This question shows a misconception of GDPR. GDPR creates an obligation not just towards the data subject but also towards the authorities of the relevant state(s). The data subject cannot waive your responsibility to safeguard data, document internal processes, etc. GDPR is not a blanket ban on the handling of personally identifying information (PII). Informed consent is one of the ways to get permission to process and store this data. If your data subjects are prepared to give your sweeping permissions, ask for consent (informed, revocable, etc.), document the consent, and go from there. The data subject does not get to decide what classification data falls under. If you collect, say, medical data, then you are subject to increased restrictions and safeguards. | This is a good question, as it raises an issue which places the controller's interest in providing a smoothly functioning customer sign up process against customers' right not to have their data leaked. Note that it is not necessary to consider "enumeration" here. Even just being able to check whether one person has a registered account raises the issue. The relevant provisions of the EU GDPR (or in the UK, the UK GDPR as defined in sections 3(1) and 205(4) of the Data Protection Act 2018) are (emphasis added): Article 4(2): 'processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction So, disclosure of the fact that a user has a registered account amounts to "processing". Article 6(1): Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Of these, only (a) and (f) are likely to be of any relevance: (a) is not too useful since it isn't feasible to design a sign-up system that depends on the user's consent (which they may not give). That leaves us with (f). As noted by the Information Commissioner's Office, "Legitimate interests is the most flexible lawful basis for processing, but you cannot assume it will always be the most appropriate. It is likely to be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing.". The legitimate interest here would be that you need a sign up system which prevents duplicate registrations. Remember though that the processing has to be "necessary" for the purposes of the legitimate interest. One might argue that it is not since you could design the system to give the appearance of accepting the duplicate registration followed by sending an email to the account holder to inform them. On the other hand this will result in a less user friendly experience which could itself be a legitimate interest. Ultimately this is a balancing exercise and it is hard to say whether you have struck the right balance until someone complains to the ICO or the court and a decision is issued. The fact that the practice is widespread among well-resourced and large companies would tend to indicate that it is lawful albeit this is not conclusive in the absence of a court decision. I'm not aware of any cases involving this particular issue but would be interested to hear from others on this point. If the processing is unlawful then Article 18 is applicable: The data subject shall have the right to obtain from the controller restriction of processing where one of the following applies: [...] (b) the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead Where processing has been restricted under paragraph 1, such personal data shall, with the exception of storage, only be processed with the data subject’s consent or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest of the Union or of a Member State. In other words, the data subject could ask you not to disclose their registration status via the sign up page, and you would be obliged to comply with the request. Separately from the above points, in order to be lawful you must provide the data subject with certain prescribed information at the time when the data is collected. Of particular relevance here are the following items: Article 13(1): Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information: [...] (c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing; (d) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party; So even if you conclude that the processing will be lawful you will have to give some consideration to the basis so that you can comply with the above provision. | The consent presented in the question is a text-book example on how to not secure consent under the GDPR. The GDPR requires concent to be explicit, specific, freely given, and informed. This particular privacy policy does not measure up to any of these requirements. The GDPR goes to great lengths to regulate consent. For instance, in Article 7 (2) is says: Any part of such a declaration [of consent] which constitutes an infringement of this Regulation shall not be binding. So if the consent obtained is not explicit, specific, freely given, and informed, and the company relies on consent to ensure lawfulness of processing, it is breaking the law (and may be fined under the GDPR). The big problem with this privacy policy is this sentence: Your continued access to or use of any of the Services shall be deemed your acceptance of the Privacy Policy. As you've noted, the GDPR requires consent to be explicit. What "explicit" means is spelled out in Recital 32, which (among other things) says: Silence, pre-ticked boxes or inactivity should not therefore constitute consent. And Recital 32 goes on state that consent must be specific: When the processing has multiple purposes, consent should be given for all of them. The full privacy policy lists 16 different purposes for which personal data is collected, but do not seek specific consent for any of them. Consent under GDPR must also be freely given. Recital 42 says (among other things): Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment. Here the company states that continued use of the service "shall be deemed your acceptance". The only way the data subject can refuse consent is to not use the service, which is to the detriment of the data subject. This also makes the consent invalid. Finally, the GDPR also requires consent to be informed. What this means is spelled out in Recital 42, which (among other things say): For consent to be informed, the data subject should be aware at least [...] the purposes of the processing for which the personal data are intended. Here the data subject is supposed to consent to some unknown, future change which may be to allow different purposes of the processing. This also invalidates the consent. | GDPR compliance is a matter between every customer and the business, not between different customers. How did you get the other customer's contact details? If they were provided or leaked by the business, that might be a failure of the business's obligation as a data controller to protect the personal data they are processing, possibly even a data breach in the sense of the GDPR. When you contacted the other person this was presumably a purely private or household activity, just like contacting any other personal acquaintance. In that case, the GDPR simply does not apply to any “processing” you may have done (compare Art 2(2)(c)). Things would be very different if you were promoting your own business, but that doesn't seem to have been the case. If the matter really is as plain as you described, then you can effectively ignore their references to the GDPR until you are contacted by your data protection authority, by their lawyer, or are served with court papers. None of these should happen: even if you were a “data controller” and your processing were subject to the GDPR – only the other customer and not the business would be the data subject, and only a data subject has a right for remedies like making complaints to the data protection agency and only the data subject would have standing to sue you in court for GDPR violations. |
How to report Airbnb income in tax return? We live in California, US. We lived in an apartment in a very bad school district. We only realized that this January when we had to register kindergarten for our son, and we had to move. However, at that time we still had 3 months in our contract, and the agent wanted us to pay 2 month-rent penalty for breaking the lease (although it was never written anywhere in the contract). We still rent a new apartment. To avoid paying penalty, instead of returning the previous apartment, we put it on Airbnb. That means we rented two apartments at the same time. What we earned from Airbnb is less than what we paid for the agent for the old apartment, let alone the bills for it. My question: Do I need to declare this income when filing my 2018 tax return? considering that I was actually losing money. If the answer is yes: How do I also declare the rent I paid to the agent, to show that I actually didn't earn anything. What tax form do I need? Airbnb issues W-9 form for US person, W-BECI for non-US person with TIN, and W-8BEN for non-US person without TIN. I'm not a US person. I have lived in the US for more than 3 years with a working visa, so I'm a resident for tax purpose (I also have EAD as my green card application is pending). I submitted a W-9 form to my employer so they can withhold the tax from my salary. I have SSN, so no TIN. | My question: Do I need to declare this income when filing my 2018 tax return? considering that I was actually losing money. Yes. If you would otherwise have to file income taxes if you didn't have this money losing venture, you need to report this income. If you otherwise wouldn't have to file an income tax return, you don't have to file an income tax return simply to report a loss from a money losing rental, but you would still want to do so, because reporting the loss in this year could reduce your income taxes in future years. When you lose more money than you earn from sources other than capital gains, you have what is called a "net operating loss" or "NOL" for short, that can be carried forward to future years to reduce your income for income tax purposes. An exception applies if a business or rental losses money year after year after year. In that case, the IRS considers the business or rental to be a hobby rather than something done with an intent to make money and the loss is disallowed. But, obviously, that exception does not apply to your case. If the answer is yes: How do I also declare the rent I paid to the agent, to show that I actually didn't earn anything. What tax form do I need? Usually, you would report the rents received as income on Schedule E to your primary tax form (probably a 1040NR) and list the money paid to the agent and any other expenses you incurred as expenses. This will generate a net loss and can be used to reduce your income subject to taxation from other sources. Under the tax law that takes effect in 2018, you can't deduct as many expenses related to the rental as you could in prior years. But, you can still certainly deduct the rent you paid for the property that you then leased to a third party in short term rentals. Airbnb issues W-9 form for US person, W-BECI for non-US person with TIN, and W-8BEN for non-US person without TIN. A Social Security Number (SSN) is one of several forms of Taxpayer Identification Numbers (TIN). So you would provide Airbnb with a W-BECI. Airbnb will then send a Form 1099 to you early next year, and will send another copy of that Form 1099 to the IRS. The fact that the IRS will learn about your gross rental income from short term rentals from Airbnb is one of the main practical reasons that you should file a tax return declaring that income. | I just put in for a transfer to another location my company has there and will transfer back to my original location when we move back. I don't believe I should have to go and change my state of residency, drivers license, car registration/plates, insurance etc) since I consider where I am now my permanent home. It's just a temporary relocation. While this arguably works for the common law concept of domicile, as a practical matter, if you live someplace for the majority of a year, and often more than 30 days, you are considered to reside there. You should change your driver's license, car registration/plates, insurance, voter's registration, etc., unless there is an extremely compelling reason to do otherwise, and not just different tax rates and more bureaucratic inconvenience. A planned three year stay doesn't cut it, especially, if you don't own a home or have a residential lease on a residence in the state you want to claim as your residence. The main exceptions would be someone who is in an institutional setting, such as attending college residentially for nine months a year while supported by their parents, in a prison, or in military service, where different conventions sometimes apply. Legally, could I leave everything as is since the apartment "technically?" isn't mine (I'd just be staying there with her? No. Residency and who owns or leases the place where you are living are two entirely different things. The many people who don't have a lease or own a home are still residents of the places where they live. For that matter, even if you are not a citizen of the U.S., you can still be a resident of a particular state or locality. I'd be filing my taxes as someone that commutes out of state to work and residing in their current home state etc. Nope. For state income tax purposes, you reside in the state where you sleep a majority of the nights in a year. There are sometimes more complicated rules that apply to apportion income between states, but that is the strong general rule. Is there anything I'm missing/not aware of that would make this a bad idea? Or is this a normal thing people do commonly and I'm overthinking it. This is a bad idea and not a normal thing that people do commonly. At a minimum, it will leave you with bureaucratic tangles and at risk of serious state tax audits (which, reading between the lines, seems like the most plausible reason you are thinking about this approach). At worst, you could be exposed to liability for having improper tax payments and car insurance in place, and potential criminal liability for misrepresenting your residence. It might not end up coming to a head and being a problem, but the probability that it will is significant. | Your tax advisor was legally correct, but perhaps not very savvy. Unfortunately, the best way to resolve this sort of situation is to avoid it: You should have insisted your employer stop withholding for PA as soon as you moved out of state. Once someone else has possession of your money the burden is on you to get it back, and the burden can be (practically) quite high before it runs afoul of any serious laws. The fact is that your filings are correct, and the PA Department of Revenue is being ridiculous. If they can't be satisfied with reasonable and adequate evidence backing your return you can file administrative appeals at little cost in hopes of reaching a more reasonable agent. However, if I were in this situation, since NC's tax rate is higher, I would just amend my NC return to claim a credit for taxes paid (even though erroneously) to another state. (This takes advantage of our federalist system and your state citizenship and puts the burden on NC to collect the "correct" difference from PA if they care enough. You also don't have to fight for the actual return of money with your new state because presumably you will owe them taxes again this year, and if they haven't returned what you claim you're owed then you just deduct it from what you owe this year.) | I assume you are already living there? No, you can't use that clause, specifically because the "previous renter" is the person(s) who occupied the apartment prior to your moving in (the "start date", or the first date that your lease is valid). That clause doesn't allow you to break the lease if one of the current renters vacates the apartment and leaves their stuff. This only means that if the apartment was not ready for you to occupy due to the previous tenant not vacating, that you are allowed to walk away from the lease without any payments (other than a credit verification fee). This pretty much requires you to not "move in" in the first place. If you've already moved in, you don't have a legal leg to stand on since you deemed the property fit to move in (and should have done a walk-through prior to accepting the condition of the apartment). If this is you "getting on" the lease, and the lease specifically says that you are being added and your "start date" is some date in the future that you intend to move in, you may have a leg to stand on since this is more like sub-letting individual rooms with a common area. It isn't clear to me if this is the case for you. Once the other person is off the lease they have basically abandoned their property and you may be able to dispose of it, or have the leasing company dispose of it. | There is a clear conflict of interest - or the potential for the appearance of a conflict of interest - here. On the one hand, you are supposed to be looking for a good deal for your employer - within reason, of course. On the other hand, you want to make as much money for yourself as you can by claiming as high a rental fee as is reasonable. Most employers have policies against this. This is like hiring your side company as a vendor. You should follow your employer's policies for making sure his is totally above board, or just stay elsewhere. | This is a well established model in the UK. One route is the umbrella company. Y here would be the umbrella company. A would then either be providing services to Y or be employed by Y. You may be wondering what use it is if A is employed by Y. The answer here is that whilst A may not benefit from the tax treatment, X does not bear the burden of running PAYE etc. Further, because of regulations such as IR35, it may be that there is a doubt as to whether employment tax apply even if there is a contract for service. Essentially disguised employment means taxes are levied on the employer as if an employment existed; however, in this situation X has the comfort that if this arises they will (normally) fall on Y rather than X. Another route is the service company, where normally A himself will own it (or it is owned between A and A's spouse), take a combination of salary and dividends out (using two allowances if owned between spouses), and he will bill X or Y; companies exist which will perform all the necessary paperwork to do this (in which case Y is called a managed service company), as opposed to a personal service company (if A sets it up himself). It's not clear where you are based, but if you are based outside the UK (and possibly if you are inside the UK) there are accountancy companies that specialise in setting all this up. | What the landlord is doing is forcing you to abide by the terms of your lease agreement. You most likely agreed to a 1 year lease on a signed document, which means you're pretty much screwed because if he wanted to, he could force you to fulfill the lease and pay him anyway. However, his remarks about when you can notify to terminate are wrong. See end of answer. About Terminating Your Lease Early However, there are a few loopholes you can exploit. The easiest one is to get him to increase your rent. Ask about it, tell him that you're considering staying but tell him you want to know if he's going to increase the rent by much. If he declares that he is going to increase the rent, perfect. Get him to send it to you in writing (which he is legally required to do). Just in case though, have him on speaker phone and record every conversation you have from now on without telling him. This is legal (see this answer) and is a powerful form of evidence, so exploit the hell out of it. If you can get him to tell you that he's going to increase your rent, then you can legally submit a notice to terminate tenancy on the grounds that you do not wish to pay the increase. In this case, the amount of notice that you have to give is capped to the day that the rent increase is to take place. If you try this, do everything you can to get it in writing. Don't feel proud of snaring him and immediately announce that you're leaving because of this as soon as he says it on the phone, because you're screwing yourself out of going through the proper channels to make sure you not only win, but you've made your case air tight. Also, feel free to let you landlord know that he owes you money. Landlords in Ontario have to repay you a capped interest rate on your last months' deposit every 12 months. This rate is decided annually and for 2015 is capped at 1.6%. If your landlord wants to be anal about the rules and stick the letter of the law to you, do it back. Becoming a pain your landlords ass is a great way to get them to either become more flexible, or make a mistake that will give you an out. Notice that if he does increase the rent, he can demand that you increase your last months deposit and force you to pay it. You could "accidently" make him aware of this right in a conversation where you are concerned about a rent increase immediately after letting him know that he owes you money for the interest. "I'm concerned about the rent increase because I have to increase my deposit by law too." This way, he'll hopefully have the thought "I can avoid having to give him any money by increasing his rent by the same interest rate, so he'll owe me what I owe him, therefore I owe nothing. I'm so smart!" Then he cheerfully gives you a notice to increase rent, at which time you invoke your right to terminate tenancy on short notice due to an increase in rent. Your Landlord Is Wrong All that aside, your landlord committed an illegal act when they refused your notice to terminate, because he's denying you your rights under the RTA. From the Residential Tenancies Act: A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. 2006, c. 17, s. 47 The details adjust a little bit depending on your circumstances, but the conditions in section 44 are basically to ensure the following: You are giving 60 days notice. You are not giving 60 days notice where the termination date you provide is less than the previously agreed term, except in special cases like the one I mention about increased rent. There is nothing in section 44 that can be confused to mean that you must wait until you have passed the end of your term before you can decide to leave. I suspect your landlord is deliberately interpreting the use of wording like "may terminate at the end of" to imply you have to wait to give your notice. A notice of termination is not a termination. It is a notice that in the future, you are going to terminate. Let's remove the confusion by replacing the word "terminate" with "vacating the premises and not paying another cent". That should remove any ambiguity that could be abused. So frankly you can simply go straight to the board, file the appropriate form with them and just pack up and leave when you've reached the date specified in the notice to terminate. Your final month is covered by your deposit. File the form immediately, let them know about the conversation you had with your landlord, then go to your bank and cancel the cheques you've already written (except for your deposit cheque) and simply ignore the landlord, carrying on with your moving plans. You should ask the Board if this illegal act has any ramifications. Perhaps because he has done this, this gives you an immediate out or something else. Call the Board and tell them what happened and ask them. They have an obligation to inform you correctly. Sources: Landlord Tenant Board of Ontario FAQ Final Note The Board is there to serve you, free of charge. They have a duty, as it is their explicit directive, to assist you in all matters regarding being a tenant. Phone them, talk to them at length, demand assistance. They are to inform you of your rights and guide you on the appropriate action, forms and procedure to assist you in resolving any issues you have. Note that I wrote the whole bit about getting out of your lease early legally before I refreshed my memory on the fact that you can/should give your 60 days notice before the end of your lease period. That makes the case much simpler as a I note in my answer. I left the information I already wrote however because it could be applicable or at least be of some help to others. Also note that if you're saying that the landlord came to get more cheques on the basis of his lie that he used to refuse your attempt to legally leave, then you'll need to cancel those cheques. That costs money. That alone is enough of a case to take him before the Tribunal and force him to repay the cost of those cancelled cheques. You may even successfully claim further damages or the Tribunal may voluntarily award you money for the actions your landlord is deliberately taking to deprive you of your rights. Talk to the Board. | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). |
Inverse condemnation case law in Virginia I'm trying to research in the subject of inverse condemnation laws in Virginia. The situation is that the city is building a highway improvement project but the property owner is having a sidewalk built along his property, not a road. This sidewalk touches upon partially to the building and the city is acquiring the entire tract/lot as per Virginia Code. Are there any case law where property owner challengage this? I'm interested in case law research and the outcome of such challenages/inverse condemenation results. I tried searching and cannot find a similar situation such as this. | The situation you describe is ordinary condemnation not inverse condemnation. If the government is actively taking legal/transactional effort to acquire the lot it is a condemnation. An inverse condemnation is when the government takes property without court process or trying to pay for it, and you sue for compensation for the property that was taken. If the government just bulldozed a sidewalk in someone's front yard without asking, and the owner sued the government for compensation, that would be an inverse condemnation case. The short answer is that the government has every right to condemn property adjacent to a highway for use as a sidewalk. This is a classic public purpose. Generally, the government must first attempt to acquire the property out of court by making an offer for the land, and, if it is unsuccessful in getting the owner to accept its offer, it will bring an eminent domain action to seize the land for public purposes. In the eminent domain case, the government will win on its right to condemn the land and to take immediate possession of it pending a determination of its value, because the government has the right to seize land to build sidewalks. Then, the rest of the eminent domain case will be over the fair market value of the land taken. | That is going to depend on the deed. In some cases a deed will include both surface rights and mineral rights. In other cases mineral rights are owned by some different entity, or by the state. If someone else owns the mineral rights, they can exploit those without the permission of the surface owner, and in some jurisdictions at lest they have a right to come onto the property and dig or drill there, even against the surface owner's wishes. In the US that varies by state, and also by the terms of the deed. If the surface owner also owners mineral rights, no one can dig ir drill from that land without permission, but I am not sure on the rules for 'slant digging". | Your question seems to be about abandoned property and whether Missouri’s statute on disposing of property after a tenant abandons his/her property applies. See Mo. Rev. State. Ann. § 441.065 (“Abandonment of premises, disposition of remaining property.”) Assuming there was no agreement (in writing or orally) for the 19 year-old to pay rent, he was most likely a guest and not a tenant. As a guest, landlord-tenant laws, would not apply to the property that that was left at the nice family’s house. The definitions section of Missouri’s landlord-tenant statutes (and common sense) support this analysis. See Mo. Rev. Stat. Ann. § 441.005. Therefore, the issue them becomes did the 19 year abandon his property? To that question, I think the answer is yes. Missouri Courts have defined the test for “abandoned property” in Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo. App. W. Dist. 1989), stating: Abandonment is the voluntary relinquishment of ownership so that the property ceases to be the property of any person and becomes the subject of appropriation by the first taker. Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Abandonment of property requires intent plus an act. Id. A sufficient act is one that manifests a conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession. Id. Intention to abandon may be inferred from strong and convincing evidence and may be shown by conduct clearly inconsistent with any intention to retain and continue the use or ownership of the property. Herron, 782 S.W.2d at 416. So to synthesize that passage from Herron, the court is saying that there is a 2 part test for determining if property is abandoned. Did the person intend to abandon the property? Did they commit some act to show this intention? If the answer is yes, to both, they the “first taker” or person that gets possession after the property is abandoned is the new owner. Here, it seems that the 19 year-old intended to abandon the property. He left without explaining why and stated that he would not unload the property if the nice family tried to return it (implying he would not accept the property back). Looking at the second part, him moving without giving notice, and telling the nice family that he won’t accept delivery of the property are both acts showing his intent to abandon the property. | The precise details (and citations) will vary with jurisdiction, so this answer deals only with principles. If you pick up and "take possession of" property belonging to somebody else, you are a thief. [Note that 'taking possession' rather than picking up to restore to the owner/correct place is what makes the difference, which is why in real life nobody who cannot prove your intention will take action; but your question explicitly concedes the point.] If the property does not belong to the supermarket, you are not stealing from them, but from the currently unidentified owner: this makes no legal difference. You might conceivably have a defence if you can prove that the owner has abandoned the property, whatever the definition of "abandoned" is in your jurisdiction (note that it is up to you to show this, and possibly that you knew it before you picked up the property). If it belongs to the supermarket, this cannot be true; if a box of matches has fallen out of someone's pocket, it might possibly be (whatever the laws are, it is very unlikely that they have ever been applied in such a trivial case, so there may be some uncertainty). in any case, the shop is undoubtedly allowed to throw you out, ban you from returning to their premises, and inform other shops and the police that they believe you to be a petty thief, based on their experience. | Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | The ordinance is not very specific about how notice is to be given: therefore, it need not be in writing, and it need not be sent by mail. It would not be surprising if the "notification" came in the form of a city person inspecting the reported obstruction, walking up to the house and knocking and finding nobody home (thus triggering the "In case the owner cannot be found" condition), whereupon the city removes the rocks. That clause does not mean "In case we do not know who the owner is", it almost certainly means "in case the owner cannot be contacted immediately". Article III is in general about obstructions on streets, which are not allowed, except by permit in section 78 under "Permit to Obstruct Traffic Lane". Assuming that no obstruction permit was obtained, what usually happens is that an officer is sent to tell the owner to remove the obstruction (more or less immediately), and if nobody is at the site whom they can tell, they probably won't go any further (e.g. asking neighbors where the owner is). There is no legal definition of "reasonable time", instead the law simply takes that to mean "the amount of time a reasonable person would require". It would thus depend particularly on the size of the obstruction and the volume of traffic. One measure would be how quickly the rocks were moved -- if it was a matter of days and there was no notice, written or otherwise, then there would not be the kind of urgency that might justify the "We knocked and nobody was home" version of notification. | It isn't that uncommon to do something similar to this, which is called a "test case". One of the more familiar examples of this kind of litigation conduct is the case of Plessy v. Ferguson. There have been test cases, for example, that involved important questions of E.U. jurisdiction in civil law countries as well. |
Can I ask for damages based on the financial risk I have to take to hire a lawyer? I spoke to a lawyer and got a consultation a while back because my apartment complex had me sign a 4 month lease which I read and agreed to, then on move in day they told me "you have to sign a 12 month lease or you cant move in." the lawyer reviewed my original lease and determined there was no such thing mentioned and I could sue the complex and recoup my legal fees if I win. But here's the thing: I'm low income and if I take that $2.5K risk to retain the lawyer and lose for any reason, that's really going to hurt. It seems to me that by forcing me into this situation where I need to put $2.5K at risk just to pursue justice, the complex is essentially causing damage in the form of serious financial risk. Could someone explain why I could or could not reasonably ask the court to award me damages, in addition to legal fees paid if I take this to court and win? I'm in Florida. | Because your legal fees and contract damages are not "in addition to" your risk; they are your risk. If you pay the retainer and lose, you don't lose anything more than the retainer and damages. If you pay the retainer and win, you don't win anything more than the retainer and damages. The only kind of argument I can see here is that you're incurring some kind of psychic cost by enduring the uncertainty surrounding the litigation, but I can't remember ever seeing a case -- in Florida or elsewhere -- in which the court recognized taking on risk as a compensable harm, especially in a contract case, where damages are much more limited than in other kinds of cases. Risk is just a necessary feature of an adversarial legal system. | It is almost certainly legal for the sitter to keep the money. She was ready to provide the service, and it is not her fault she couldn't (and she may have turned down other opportunities because she had this one). I think your fiance's claim would be against the firm providing the security service (they are the ones that frustrated the contract). I foresee the following problems: What are her losses? She was prepared to pay $315 (which she has paid), and the dog has been looked after. Where is the loss? (She may be able to argue that it was worth $315 to her, not to have to owe her mother a favour. I don't know if that will fly.) The contract with the security firm almost certainly waives liability for this sort of thing. She would have to convince the court that the contract terms were unreasonable/unconscionable (or whatever the term is in the local jurisdiction). There are two obvious options here: a) see if there is legal cover on her household insurance (or her pet insurance); b) forget it (it's only $175 all told). | You've signed a lease, which is legally binding, so you need to determine 1) what exactly was stated in the rental offer by the property manager and/or website about the available apartments, if a certain apartment was guaranteed, and if one could be substituted for another by the manager due to availability and other factors; and 2) you need to find out exactly what the lease says that you have signed, i.e. if there are terms that allow you to break the lease without penalty, such as misrepresentation by the landlord or property manager. If it turns out the manager did misrepresent the rental property, you may be able to break the lease. If the property manager stated at some point that the apartment represented by the photos may not be the actual property, you may be out of luck. Before confronting the property manager again, gather up all your emails, documents, photos and any other evidence - such as written descriptions of any phone calls and talks you had with the property manager before and after the move in - and talk to either a legal aid organization that specializes in rental aid (Google for your area in CO), or a lawyer who deals in leases and offers free initial consultations. Other than that, this site is not for specific legal advice, i.e. if you should sue the landlord to break the lease and move; that's your judgement and the advice of any legal representation. | As a lawsuit, it doesn't make sense in U.S. law unless you have suffered significant injuries. Your damages are likely to be, at most, nominal ($1) if you discovered it before you were hurt, so you'd only lose the money spent replacing the jar of peanut butter with a non-defective one and the nominal $1 damages. You would not generally have a right to any of your attorneys' fees and personal time spent on a lawsuit like that which would likely cost tens or hundreds of thousands of dollars on an hourly basis (no attorney would take a case like that on a contingency basis), and would take hundreds of hours of your own personal time. | You did not specify a country or the specific contracts that might rule your condominium. At least in some jurisdictions indeed the repair cost of private portions cannot be shared. Moreover, you may not be required to pay some costs for common portions if you refuse to do so and won't make use of them. Do I have to sue them to fix this issue? A lengthy law-suit is too costly for me. If I refuse to pay $2k and only pay 1.2k, will I be facing any legal troubles? You will probably manage to continue paying just 1.2k, and have them have to sue you if they want to collect that supposedly owned money from you. However, there might be some requirements about providing notification of your refusal in a certain way or before some time elapses. I would recommend you to consult a local lawyer, it will be well-spent money. Plus, that refusal is actually sent by your lawyer (rather than just telling you how/what to say), should make your "law-understanding neighbor" think twice about going forward with their attempt of having you pay for it. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. | The only avenue for tenant liability would be if the tenant is responsible for the damage. The courts have not assigned responsibility for damage resulting from other people's disagreement with a political expression to the person expressing the viewpoint. You are generally free to peacefully express yourself, and as a renter this would be part of your right of "quiet enjoyment of the premise". If there is a lease condition that says "no political signs", then maybe that's a violation of the contract, but that might also be an illegal term in your state or city (under landlord-tenant laws). Since you have the right to express your opinion, the courts must respect that right and not deem that engaging in political expression negates your other rights. In general, if someone commits a crime, the law does not say "but you take the blame if you express your political opinion". | The landlord is not free of liability risks. In California, everybody is responsible for injury brought about by lack of ordinary care or skill in management of his or her property or person. This applies to landlords, falling under Business Proprietor’s Liability for the Criminal Conduct of Others. Therefore the landlord must use reasonable care to protect tenants and guests from another person's harmful conduct on the property if the conduct can be can reasonably anticipated. The duty is towards anyone on tenants and guests alike. To figure out whether the landlord has breached his duty of care, the courts will "balance" the probability of harm to the tenant with the burden of the duty imposed on the landlord to prevent or mitigate the risk of harm, see Vasquez v. Residential Investments, Inc., 118 Cal. App. 4th 269. In that instance, the landlord failed to replace a missing pane of glass on the front door, contributing to the tenant's murder, for which the landlord was held liable (wrongful death). This ruling has extensive discussion of that balancing act. The crucial question is, how did the assault happen, and how do the landlords actions relate to the assault? The answer may be different in other jurisdictions. In the modified scenario, liability would hinge on scenario details (I'll continue to assume California). The factual question is whether in light of the background check, the assault was foreseeable, and to what extent it was preventable – what did the landlord do wrong? For instance, if the criminal history check revealed a number of arrests for assault in the state and the check was limited to CA (the new tenant moved to CA just a year ago), and if the assault was in old-tenant's room which had no lock due to landlord indifference, then the landlord is more likely to be held liable (he could have fixed the lock for a few dollars, or paid for a better criminal check). On the other hand, if a thorough criminal check reveals no arrests or complaints for anything, anywhere, and the assault happened in the common area while talking politics, there is no reasonable course of action that the landlord could have undertaken to prevent the assault (hiring 24 hour guards would not be reasonable, in this scenario). In Vasquez, the issue came down to the landlord's failure to implement a cheap fix on the front door. In a third version of your scenario, suppose that there was some evidence of past violent behavior, but the only fault that could be assigned to the landlord is the fact of renting to the new tenant. Does a landlord have a duty to deny housing to a person with a past record of violent behavior? It is legal in California to do background checks and deny a prospective tenant a lease based on existing criminal history, as long as the criteria are applied consistently (not discriminatorily), and not in a jurisdiction where criminal checks are illegal (Oakland). There is a non-fantasy scenario where that includes "the US", given a guidance from HUD, based on a disparate impact analysis. HUD says that a housing provider excluding applicants with arrest but no conviction "cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest". If there are convictions and there is a blanket no-convict policy, the provider must still be able to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A housing provider that imposes a blanket prohibition on any personw ith any conviction record –no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden If it is illegal to discriminate on the basis of past convictions, a landlord cannot be held liable for obeying the law. In short, "it depends (on minute details and whether the plaintiff's lawyer makes the necessary arguments): ask your attorney". |
What law were these counter-protestors in Vienna charged under? According to Vienna Police Charge 3 Men For Waving Israeli Flag at Rally, which cites a German-language article in Vice magazine, three people were charged for pro-Israel counter-protesting at a "Pro-Palestinian" rally. What law were they charged under, and has its validity been challenged either for its constitutionality or under human rights protections given by the European Union? | This is the cited article. Thankfully, the interviewee provided a scan of the police letter he received, so the rest of this question is relatively easy to answer. He was specifically charged with Störung der öffentlichen Ordnung (lit. Disturbance of the public order) persuant to § 81(1) of the Sicherheitspolizeigesetz, which reads (after putting it through Google Translate): Who by a behavior that is likely to arouse legitimate annoyance, disturbs public order, commits an administrative offense and is punishable by a fine of up to 500 euros, unless the behavior is justified, in particular by the use of a constitutionally guaranteed right , In the event of aggravating circumstances, instead of a fine, imprisonment can be imprisoned for up to one week, or up to two weeks for repeated offenses. This law is almost certainly constitutional as it specifically allows exercise of constitutional rights. Note this also includes human rights, as Austria has included the European Convention on Human Rights as part of its constitution. Given that, I'm guessing if the interviewee had wanted to, he would have had a decent shot at having this charge dismissed. | There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement. | Section 103 of the German criminal code states: (1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years. (2) If the offence was committed publicly, in a meeting or through the dissemination of written materials (section 11(3)) Section 200 shall apply. An application for publication of the conviction may also be filed by the prosecution service. According to section 104a, the German government has to approve the prosecution (which it did) Offences under this chapter shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the offence, a request to prosecute by the foreign government exists, and the Federal Government authorises the prosecution. There are a number of restrictions on speech, such as defaming the President (sect 90), insulting the state (sect. 90a), speaking against the continued existence of the Bundesrepublik, besmirching flags and state symbols of foreign states (104), disseminating writing that glorifies violence (131), etc. | I think that there won't be any trouble from Germany, but the US could be a problem if the girl reports the case to authorities. In that case, further details would depend on the state in question. As far as Germany is concerned, there are two sections in the penal code that could be relevant here: § 176 StGB - Sexual abuse of children § 182 StGB - Sexual abuse of juveniles To make things more complicated, we would also have to take into account juvenile penal law and whether Germany would have jurisdiction in the first place. 1) Jurisdiction: I'm not sure whether this case would fall into German jurisdiction under § 3 StGB as the case could be deemed to be committed in the US. However, in that case, Germany could still assume jurisdiction under § 5 item 8 StGB. 2) Since our guy was only 18, it would be at the discretion of the court to decide whether juvenile criminal law or regular criminal law is to be applied. In the former case, the sentence would be lower (if there is a sentence at all). But then we still have to figure out whether our guy broke a law in the first place. So first of all, let's take a look at § 176 StGB: “Section 176 Sexual abuse of children (1) Whoever performs sexual acts on a person under 14 years of age (child) or has the child perform sexual acts on them incurs a penalty of imprisonment for a term of between six months and 10 years. (2) Whoever causes a child to perform sexual acts on a third person or has a third person perform sexual acts on the child incurs the same penalty. (3) In especially serious cases, the penalty is imprisonment for a term of at least one year. (4) Whoever 1. performs sexual acts in the presence of a child, 2. causes the child to perform sexual acts, unless the act is subject to a penalty under subsection (1) or subsection (2), 3. influences a child by way of material (section 11 (3)) or information and communication technologies a) in order to cause the child to perform sexual acts on or in the presence of the offender or a third person or to have the offender or a third person perform sexual acts on the child or b) in order to commit an offence under section 184b (1) no. 3 or under section 184b (3) or 4. influences a child by showing pornographic images or depictions, by playing pornographic audio recordings, making pornographic content available by way of information and communication technologies or pornographic speech incurs a penalty of imprisonment for a term of between three months and five years. (5) Whoever offers or promises to supply a child for an offence under subsections (1) to (4) or who arranges with another to commit such an offence incurs a penalty of imprisonment for a term of between three months and five years. (6) The attempt is punishable; this does not apply to offences under subsection (4) nos. 3 and 4 and subsection (5).” Since the girl is 15 years old, this section is probably not relevant. However, to know for sure, we would need to know her exact age when contact started. If she was only 13 years and 11 months and contact lasted 1 year and 2 months, then § 176 might be relevant after all. That takes us to § 182. “Section 182 Sexual abuse of juveniles (1) Whoever abuses a person under 18 years of age by taking advantage of a predicament by 1. performing sexual acts on that person or having said person perform sexual acts on them or 2. causing the person to perform sexual acts on a third person or to have sexual acts performed on them by a third person incurs a penalty of imprisonment for a term not exceeding five years or a fine. (2) A person over 18 years of age who abuses a person under 18 years of age by performing sexual acts on that person or having that person perform sexual acts on them for a consideration incurs the same penalty. (3) A person over 21 years of age who abuses a person under 16 years of age by 1. performing sexual acts on that person or having that person perform sexual acts on them or 2. causing that person to perform sexual acts on a third person or to have a third person perform sexual acts on that person, and thereby exploits the victim’s lack of capacity for sexual self-determination, incurs a penalty of imprisonment for a term not exceeding three years or a fine. (4) The attempt is punishable. (5) In the cases under subsection (3), the offence is prosecuted only upon request, unless the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention. (6) In the cases under subsections (1) to (3), the court may dispense with imposing a penalty pursuant to these provisions if, having regard to the conduct of the person against whom the offence was committed, the wrongfulness of the act is minor.” § 182 para. 1 StGB applies only to cases where the offender takes advantage of a predicament. I seriously doubt there's a predicament involved here. § 182 para. 2 StGB only applies for sexual acts for consideration, i. e. when money is being paid. Since apparantly there was no payment involved in this case, no problem here and we can go on to para. 3. § 182 para. 3 StGB only applies to cases where the victim lacks the capacity for self-determination and the offender is at least 21 years old. Neither is the case here. Summary: As far as Germany is concerned, there's no trouble to be expected under § 182 StGB. § 176 StGB might cause problems but only if the girl was under 14 when contact began. (You stated that she's 15. This could mean that she just turned 15 but was 13 years and 11 months when contact began.) As far as German law is concerned, it looks like our guy was overly cautious and there was no need to cut contact. From the US perspective, however, things will probably be different. I'm not familiar with US law but we would probably need to know the state in question. | Can a state declare: "any violence against insert a group here shall not be prosecuted," which is pretty much what Nazis and Communists did, and then claim non-involvement in the violence that would ensue? This would be a violation of the Equal Protection Clause. https://www.justice.gov/crt/guidance-regarding-use-race-federal-law-enforcement-agencies goes into exhaustive detail on the topic of what may constitute an illegal abuse of selective enforcement. A key quote is highly relevant to your question: [T]he Constitution prohibits selective enforcement of the law based on considerations such as race. There is a lot of case law on this topic. This is frequently discussed in the context of race (especially profiling). | As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury. | None No law requires police to keep people apart when making statements. Doing so is good police practice. In some police organizations internal regulations or procedures may specify that officers should do so. But those are not laws. In some cases witnesses may have had a chance to confer and agree on a story before police arrive, the police cannot prevent that. The trier of fact can take into account that witnesses had a chanc to agree on a false story. | Everyone physically present in the US is protected by the US Federal constitution. (In some cases persons not physically in the US also have protection from the US constitution. When that applies is too complex for this answer.) Most of the rights protected by that constitution are available to anyone present, whether citizen, lawful immigrant, lawful visitor, or a person in the US without lawful authority. A few rights, such as the right to vote and to run for public office, are limited to citizens. If a person was arrested but not informed of his or her Miranda rights, then statements made to the arresting officers (or later interrogating officers) would not be admissible in court, unless an exception to the Miranda rules applies, which is unlikely. I can't say if this happened in the particular case mentioned in the question. In general, in the area of criminal procedure, there is no difference between citizens and others subject to US jurisdiction (accredited foreign diplomats normally have immunity). A few crimes can only be committed by citizens (or others owing allegiance to the US) such as treason. A few crimes, such as unlawful entry to the US, can't be committed by citizens, as citizens automatically have a right to enter. But criminal procedure and constitutional rights affecting criminal procedure, are the same for all in the US, citizen or not. (Oh, there are special laws for minors, but that isn't a matter of citizenship.) |
Is it still a contract even if it is described by a party as "not a contract" even if adhesion law applies between multiple parties? Suppose two parties have a relationship that might be a contract under U.S. law. Suppose one party is an individual and the other is not, so that if it's a contract it would be a contract of adhesion, thus with any ambiguities to be interpreted in favor of the individual. Suppose in all respects the relationship is a contract except for one possible issue, which is that the party who is not an individual says it's not a contract. Is it a contract? (I ask because I increasingly see in advertising or promotion that a company says that you can have their service without a contract and I'm dubious.) | You can have agreements that are not contracts As such, there are not legally enforceable as contracts but may be enforceable under non-contract law. Examples of such non-contractual agreements include social agreements, statutory duties, memorandums of understanding, agreements to distribute cocaine etc. However, that’s not what you have here “No contract” agreements for things like internet or phone services are contracts - the “no contract” terminology is advertising fluff to indicate that the contracts are one-off or short term and don’t lock the customer into a long-term contract. The term “contract” is being used in a generally understood way as meaning a long-term binding commitment not in a strict legal way where virtually every commercial transaction is a contract | TOS are a contract. If you have a contract through the App, you have incorporated the TOS as a term of your contract. Contracts mean what they say they do, what you are thinking of as "basic contract law" is actual just an ordinary and customary term that people in your industry usually make a part of the contract, not contract law itself. | The question reads: I see an NDA as a pseudo-public document, something you need to read in detail before you acknowledge and opt-in to limit rights (discussion of topic/tech). Unfortunately for this view, the law normally sees an NDA as a private contract, except when it is alleged that it violates public policy. If an NDA explicitly or implicitly includes itself in the list of things not to be disclosed, then posting it would be a violation of the contract. In such a case the party posting the agreement would be subject to whatever consequence the agreement specifies for violation, unless that person had a valid defense. The operator of a web site where the document might be posted would not normally ne a party to the agreement, and so would not be liable for hosting it, unless some other limitation applies, beyond the NDA itself. An NDA can indeed be a significant limitation on the signer's freedom to discuss certain topics, and a person would be wise to consider it in detail, and perhaps consult a lawyer, before signing one. But that does not mean that the person should post or distribute it publicly, nor that the person is automatically entitled to consult NDAs that others have signed. There are sufficient sample NDA forms available that a person can compare an offered NDA with other possibilities, and get an idea if an offered NDA goes beyond the usual terms. | The agreements are already binding Can a minor make a contract? John has a reasonable time after becoming an adult to void any ongoing contracts; if John continues to receive the benefit of or perform his obligations under any contracts he entered as a child after that reasonable time, they are no longer non-binding. Such an announcement as you describe would not prevent John from voiding voidable contracts in the future. The people who theoretically benefit from the announcement have not given John any consideration for it so they cannot hold him to this promise. | Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache. | Offer and Acceptance For a contract to be a contract there must be an intention on both parties to create legal relations - this is usually considered in terms of an offer and acceptance. When Website Co makes an offer to the world, you accept it by clicking the ToS acknowledgement and using the service. This is explicit acceptance of the offer. The ToS contain provisions that Website Co may amended or replace the ToS by giving you notice, when this happens the contract is still in force as the contract contemplattes its own variation: it doesn't need to be varied by another contract. They do allow you to opt out of the contract by no longer using the service but they are not obliged to do so. The ToS do not contain provisions allowing you to modify them. Therefore when you write to them you are making an offer to vary the contract. They can accept it explicitly or by conduct. They won't accept it explicitly. They aren't engaging in any conduct that is not already subject to the existing contract so they aren't accepting it by conduct. | You say the permission was "public", therefore I am going to assume that it cannot be argued that there was no agreement. There are two possibilities: If Company B has given consideration for the promise then there is a binding contract and Company A may be able to end it but could not seek redress for when it was in place. If there is no contract then the principle of promissory estoppel should have essentially the same effect. An agreement, including an IP licence, does not have to be in writing nor does it have to have any particular form. | If the party to whom the offer letter is issued fails to take any step towards fulfilling its end, can it be argued that there was no meaningful acceptance as for all intents and purposes, no part of the offer that was 'accepted' has been performed? There was acceptance — the successful bidder communicated its acceptance to the government body and therefore made a promise to pay the deposit. All the elements of a legally binding contract are met: 1. Offer The offer letter from the government body. 2. Acceptance Self-evident in your question. The successful bidder communicated that it had accepted the offer from the government body. 3. Consideration Ordinarily, this would be the deposit. In this case, since the deposit was never sent, the consideration is both the promise (from the bidder) to submit the deposit and the counter promise (from the government party) to give whatever the contract stipulates the bidder will get from the government party. 4. Intent to create legal relations Not evidenced in the question, but we can generally assume this based on the evidence that both sides are commercial parties. Therefore, can the government body 'rescind' the offer and argue that there was no contract to begin with because there was no 'acceptance'? No. The offer was accepted by the bidder so there was 'acceptance', and all the other elements of the contract stand too (there was consideration, etc.). Conclusion The bidder likely breached the terms of the contract. This could potentially be a repudiatory breach allowing the government body to choose to end the contract if they wanted (by "withdrawing"). At the very least, the government body would be entitled to sue the bidder for breaching the terms, but there is no legal position of "the contract doesn't exist" from my perspective. |
Is it legal for police to use their lights to go through a red light? Many of us have seen this. A police car stops at a red light and after ten seconds with no cross-traffic, they put their lights on only (no siren) drive across the intersection against the red light, then turns off their lights on the other side and drives slowly away. I assume that flashing their police lights is to avoid a fine in case they are caught by a red-light camera. Is it legal for police who don't have an urgent police reason to do this? | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | You are right, the entry and exit photos are only evidence that you were there. This is something they need to prove so the photos may only be for that. Their statement that you didn’t display a valid ticket/permit is, at present an unevidenced assertion. If you contest this, they will provide evidence that you didn’t (e.g. the actual records they refer to) and you would provide evidence that you did and, if it goes to court, the judge will decide what evidence they prefer. As this is not a criminal matter, they need to prove the offence on the balance of probabilities. However, there are almost certainly administrative remedies which will allow you to contest the fine without going to court. This would involve you sending them a copy of the permit and them assessing whether their belief that you didn’t display it is justified or not. | The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not – unless you hand them the keys without protesting – and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf | Looks like these cameras are legal: If a dash cam is installed (e. g. for the purpose of collecting evidence in case of an accident), it is important to ensure that this camera is not constantly recording traffic, as well as persons who are near a road. This source, page 10. I assume, "constantly" means you cannot leave it recording round the clock on a parked bicycle, and the records must be retained no longer than is needed for the specified purpose. | The critical consideration is that the permitted left turn must be onto a one-way roadway in that direction. One is not permitted to perform a left turn which involves crossing traffic from the left, which would also imply that it is not a one-way roadway. | Does the flashing red light eventually turn into a steady red light before it changes to green? Not really. Fail Mode For Regular Stoplights A flashing red light is usually a default mode of a traffic light system when the control system is broken, or the power grid is down. In these cases, it returns to its usual red-yellow-green mode when the system is back up and running. Visibility Enhancing Red Only Flashing Red Lights But, sometimes a permanently flashing red light with no other colors is deployed in addition to, or instead of, a stop sign, at intersections where stop sign visibility has been a problem. In these cases there is never a solid red light, or a light of any other color. It looks like this: or like this: (Obviously, none of these still images actually shows the flashing in action, you have to use your imagination.) | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | YES in germany §23 StVO (1a) Wer ein Fahrzeug führt, darf ein elektronisches Gerät, das der Kommunikation, Information oder Organisation dient oder zu dienen bestimmt ist, nur benutzen, wenn hierfür das Gerät weder aufgenommen noch gehalten wird und [...] (1a) Whoever is driving a vehicle may only use an electrical device that is serving communication, information, or organization or destined to be used for this if... 1. they don't pick the device up or hold it and [...] That is plenty clear: holding the device is banned in any way, and implies using it under German legal precedent. |
Are Michael Cohen's False Statements About the Law Grounds for Disbarrment? A recent NPR article revealed that in making a threat of a lawsuit, Michael Cohen materially misrepresented the law in claiming that one cannot rape their spouse. This strikes me, as a layperson, as rather unethical behavior. Is it grounds for action from the bar association that he's licensed under, whether that be disbarment, censure, or something else? | Cohen has ethical problems, but this is probably pretty far down the list. If he were lying about the law, though, that could be treated as a violation of Rule 4.1 of the New York Rules of Professional Conduct: In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person. It could also be a violation of Rule 8.4: A lawyer or law firm shall not ... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; Although these would be violations of his ethical obligations, they probably do not rise to the level of seriousness that would result in any meaningful punishment. Disbarment would be extremely unlikely, though a censure is conceivable. If someone reported the offense, I would actually expect that the state would decline to investigate at all. Of course, all of this assumes that he was deliberately lying about the state of the law, which I think overestimates his competence. More likely, he's just an idiot and didn't know that he was wrong. Importantly, being wrong about the law isn't unethical; it's a presumption at the foundation of our adversarial justice system. | must all interaction be through a lawyer after receiving the first letter? Consistent with others' answer, no, you don't need a lawyer. But your question in and of itself is indicative of the steep learning curve you would need to undergo in order to avoid "shooting yourself in the foot", as the saying goes. By this I am not encouraging you to get a lawyer (in fact, here on stackexchange and elsewhere I promote litigation in pro per). Instead, I encourage people to learn about the applicable statutes, procedural laws, how to conduct legal research, and to draft/present their arguments in court. Here are some suggestions regarding your response letter: Avoid sarcastic admissions such as "Right, for sure I am at fault for the employer's [fill_in_the_blanks]". If you ask for a clarification, clearly state that you expect reasonably sufficient detail as well as any and all records that substantiate the alleged damages. Although that won't strictly limit the allegations the employer can make in court proceedings, the attorney's reply might help evidencing the employer's vexatious approach later on. Avoid wording that may be misinterpreted as consciousness of guilt. Be assertive and truthful. Keep in mind the lawyer is gauging (1) how easily he can intimidate you, and (2) whether he can make additional claims to harass you via court proceedings. From now on, all your interactions with the attorney and the employer should be in writing (preferably email, given its reproducibility). When unethical individuals are aware that their position is devoid of merit, they are very tempted to indulge in false accusations (of threat, for example). Thus, communications in writing constitute objectively verifiable proof of who is acting unlawfully. Even if the attorney premises on your contract (or employment agreement/manual, or company's guidelines) the alleged damages, the clauses at issue might be illegal and therefore void. For instance, from 2007-2012 my former employer (an Indian IT intermediary) prohibited me --via contract-- to disclose my salary. The contract contained the typical lawyered babbling, but that doesn't mean that all of it was legal. In 2013 I realized that the prohibition violated Michigan law, and he had no option but to strike the entire clause. That being said, I didn't sue him for that, but for other more important matters which are currently pending review in the U.S. Supreme Court. Absent any further context in your inquiry, it is hard to make additional suggestions on how to proceed. | when is it a good idea to get a lawyer? Only when you are not confident that you can put enough dedication to the matter & learning curve, or when you are not confident of your ability to cope with the emotional/frustrating toll of judicial proceedings. I do not mean this in an ironic way or to challenge you. It is just important to avoid a false sense of confidence. However, if you decide to represent yourself in court, you will have much more control of your case than if you delegate it to some lawyer whose attention is split with many other unrelated cases. Also, never get intimidated by pedantic or wasted phrases such as "he who is his own lawyer has a fool for a client". In the XXI century, most urban people can read and write, Canadian laws are written in your own language, and the Internet provides many informative resources for free. Furthermore, even knowledgeable attorneys happen to be clearly wrong about the law, as I pointed out here. I feel like the bulk of the work is carefully detailing what happened which feels more like the job of a news paper editor. It involves more than that. A newspaper editor does not get entangled with subtleties of a story or of the law, and subtleties are often decisive in judicial proceedings. Litigation also involves intensive legal research so as to find case law (that is, binding court decisions) and statutes that support your position. The application of these laws to a particular case are often premised on subtleties. Hence my remark in the previous paragraph. A newspaper editor hardly ever knows what questions or evidence are required or would suffice for proving a case. This knowledge only comes through (self-)education and experience. What options exist if I don't want to pay a lawyer a bunch of money and am willing to do most of the work myself, for example would pro bono be a good option? Start by searching for "pro se" and "Canada" on the Internet. Some of the results might actually provide guidance on what procedural law(s) apply in your jurisdiction, the legislation, and so forth. As for searching case law, there should be a Canadian equivalent of http://www.leagle.com/leaglesearch (sorry I am not knowledgeable of the specifics of Canadian litigation/resources). Based on your other post, I presume you are or will be getting acquainted with the Tenancy Act. I recently addressed here a question about the Act, showcasing the combination of that legislation and contract law (interestingly, many tenants presume their issue with the landlord is strictly about landlord-tenant legislation when in fact it has to do with contract law). I am sure in a library will find plenty of useful books covering the basics of the legal system as well as the rules of civil procedure. Find out whether the public has access to case files in Canadian courts. If so, go to a courthouse and study those files. Get acquainted with the drafting and format of pleadings, motions, responses, briefs, and so forth (although in Small Claims court much of this would be unnecessary, for small claims proceedings are much more simple). This will show you the practice aspect of what you learn from books. When using a term that you consider essential to your case, be sure to consult its meaning in a legal dictionary (I do not know whether Black's Law Dictionary is applicable in Canadian litigation). The meaning of many words are much more specific in litigation compared to their common usage. Or would getting a real lawyer and spending only one hour of his time be better? I highly doubt it, especially if you have not gained any background in law. A lawyer will not explain things from scratch, let alone the intricacies you need to know. The most you could get from speaking with a lawyer for an hour would be notions which are too generic to be of any use at all. Moreover, I doubt that a lawyer in a phone interview will give you any legal references for you to verify on your own. In the very beginning of my litigation, I spoke with a law firm as assigned by a lawyer referral company. By then I already had some background in law and therefore I had specific questions. The guy from that law firm just kept babbling ambiguities very quickly. At the end of the phone call, I thought "nah, I will do this by myself". You might end up making that decision in your current or future matters. | A case for negligence or some other tort would likely never reach the stage where we could answer this question, as lawyers are generally immune from suit for their litigation conduct. I don't know of any case with facts likey you've described, but my understanding is that the litigation privilege precludes virtually any tort action based on a lawyer's statements in the course of the proceedings. Florida's Fifth District Court of Appeal, for instance, has specifically acknowledged that claims for defamation, extortion, fraud, perjury, forgery, slander of title, injurious falsehood are unavailable: The policy reasons for the privilege have often been repeated: In fulfilling their obligations to their client[s] and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989). | The explanation in the decision (fn 1) is that That announcement does not moot this case. We have said that such voluntary cessation of a challenged practice does not moot a case unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” [citations] The Department has not carried the “heavy burden” of making “absolutely clear” that it could not revert to its policy of excluding religious organizations... “there is no clearly effective barrier that would prevent the [Department] from reinstating [its] policy in the future” | united-states But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as "We believe we acted correctly, but this will be decided in court"? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? Legal Ethics Considerations There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity See Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - Colorado's rule is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version): (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Statements such as "We believe we acted correctly, but this will be decided in court" are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant. Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute. The Risk That A Statement Will Be Used Against You Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial. For example, this week former President Trump's public statement about his knowledge of classified documents, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.) In the civil rape-defamation case against him (as noted, for example, in this Law.SE answer), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office. It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated. Social media statements about pending cases by litigants routinely provide powerful evidence against them in trials. Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are "forces of nature" who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say "no comment" across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason. Avoiding Annoyance To Opposing Counsel, Parties, And Judges Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement). It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority. | Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? This is a hard question to answer that doesn't have a neat resolution. Very little pertaining to the authority of a parent over a child is codified in statutory law and there is not a clear cut age at which a child has "freedom of conscience" vis-a-vis a parent. Most of the law related to children concerns allocation of parenting time and parental decision making between divorced, separated or unmarried parents; abuse and neglect; and juvenile delinquency. There is also usually a snippet of criminal law stating that certain kinds of uses of force to discipline children do not constitute crimes. But, part of why it doesn't come up very much is that older children are usually socialized in a manner that causes them to show a certain amount of respect for the wishes of their parents. It also doesn't come up much for children who aren't in their late teens, because the complete economic dependence of children on their parents or guardians gives the parents considerable power of their children that doesn't require the exercise of physical force. Also, it is quite dependent upon how the issue presents itself. No law enforcement agency is going to aid a parent in forcibly dragging a kid to church against their will. But, no social services agency is going to remove a kid from a home because his birthday party will be cancelled if he doesn't go to the church of his parents' choice the Sunday before his birthday. There are also some subtle but important distinctions between states on the issue of emancipation. In Colorado, emancipation is a statement about the empirical reality. If a child is self-supporting and lives apart from parents or guardians then the child is an emancipated minor. It is not a status granted by a court, it is a status acknowledged by courts when evaluating other issues. In California, a child is not emancipated unless a court grants a child that status and a child who is de facto emancipated without the leave of a court is guilty of a "status offense" (the New York State term for someone in this state is PINS for "person in need of supervision"). Basically, if a parent can force a child to go to church by means that don't constitute abuse or neglect and don't exceed the level of force authorize for child discipline in the criminal code, then they can do it, and if they can't manage that, then they can't do it. Many states have a "status offense" that allows government intervention with the cooperation of a parent or guardian in cases where an "uncontrollable" child is defiant and simply will not give any heed to the parent or guardian's instructions. In practice, the older a child is, the less likely someone viewing a parent's conduct forcing a child to do something is to be viewed as acceptable or legally justified. The legal rights of children in a school setting are also age dependent under the case law, although not always in a really well defined way. Controls on student expression that would be uncontroversial for elementary school students may be looked upon by the law with disfavor for high school students and clearly prohibited for adults. Perhaps one useful way to conceptualize it is that trying to make a child attend a particular kind of religious service is not considered an improper purposes for a parent of any minor to utilize the resources available to the parent to do so, but the range of resources available to a parent with regard to an adult child is much narrower. | This is currently untested but the U.S. Supreme Court did leave the door open to allow someone to plead the 5th amendment in order to hide their identity. In Hiibel v. Nevada the U.S. Supreme Court held that the petitioner did not have a 5th amendment right to withhold his name from a questioning police officer. The Supreme Court held that Mr. Hiibel could be arrested for failing to identify himself because Nevada's statute requiring identification was narrowly tailored and was not vague. The police officer who stopped Mr. Hiibel had reasonable suspicion that a crime had occurred and Mr. Hiibel could have satisfied Nevada's statute by simply stating his name; there was no requirement to turn over any papers or other documentation. The final paragraph of the opinion speaks of the importance of the narrow scope of the disclosure requirement and then goes on and states: ...Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances...Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We do not resolve those questions here. While the court is leaving unanswered the question of whether there are circumstances where one may refuse to identify themselves, they are making it quite clear that such a situation would be very different than the case decided in Hiibel. There is a strong hint that they would uphold Fifth Amendment privilege in the situation you posit. |
Legal Alien Eligible for Medicare Without Working in US I am a 35 year old US citizen with a good job, company provided health care, benefits, etc... My wife is a 50 year old Japanese citizen registered as a legal permanent resident alien. We have been living in the U.S. for nearly 15 years. She prefers not to be granted U.S. citizenship, mostly because if something ever happened to me, she would much rather be living back at home in Japan rather than here in the U.S. In order for her to be a citizen of the U.S., she would have to relinquish her Japanese Citizenship. She has held a part time job waiting tables for about 5 years. The income is small, but honest, and is really a better mental break for her to "get out of the house," than it is as an income provider. We have recently found out the business she works at may be closing. This would not be a big deal financially, except: I was told by someone NOT in the legal profession that she needs to work in the U.S. for ten years in order to be eligible for Medicare when she turns 65. My company generally cuts dependents off the company health care plan when they become Medicare eligible. What I do not want to have happen is for her to turn 65, get cut off my company health insurance plan, and then find out she is ineligible for Medicare. I will be working for a considerable amount of time after she is Medicare eligible (age-wise), and would be comfortable knowing that when she turns 65, she can turn to Medicare. Should she lose her job as a result of her place of business closing, does she need to work for a few more years in order to become eligible for Medicare when she turns 65? Is Medicare granted for all aliens and citizens over 65, or just those who've worked for 10+ years? | Generally, yes, you do have to have 10 years of work for Medicare, though the formula is based on "credits" and is a bit more complicated. See https://www.ssa.gov/planners/credits.html#h1. It can in some cases be possible to "count" overseas work towards eligibility, due to agreements with certain countries. See https://www.ssa.gov/planners/retire/international.html. However, according to the Agreement Pamphlet for Japan: Although the agreement between the United States and Japan allows the Social Security Administration to count your Japanese credits to help you qualify for U.S. retirement, disability or survivor benefits, the agreement does not cover Medicare benefits. As a result, we cannot count your credits in Japan to establish entitlement to free Medicare hospital insurance. Note: I am also not in the legal profession, which is also the case for most people on this site. Even of those who are lawyers, they're not your lawyers, and nothing you see on this site is legal advice. | It's not a matter of funding, it's a matter of eligibility for asylum in the UK which appears to be highly unlikely according to reports where 45 recent applications from US citizens were rejected.1 One option is to apply for a Skilled Worker Visa for one of the eligible occupations. The Skilled Worker route enables you to live and work in the UK for up to five years. You can apply for Indefinite Leave to Remain, a form of settled status, after you have lived in the UK for five years under the Skilled Worker Visa. Source As for "Can he legally work such a job with or without permission?", working in the UK without "leave to remain" (i.e. permission) is an offence contrary to section 24B of the Immigration Act 1971 1That said, if the UK and USA governments did come to an arrangement whereby "at least for the short run, they allow his claim to start in the UK" it is impossible to foretell the future and say with any degree of certainty what conditions, requirements, liabilities and demands each side would impose. | Legal Services Society is a non-profit organization created by the BC Legislative Assembly through this act, created in order to serve the legal needs of certain classes of society, defined vaguely with reference to "a reasonable person of modest means". Accordingly, they have rules regarding who they can and cannot serve. and they are constrained financially. With vast demands on their resources and little by way of resources, prudent triage is called for. That is, when you show up, you shouldn't expect to talk to a senior attorney (or an attorney). From what I can determine, you cannot expect to get your problem solved right away. It is also not clear that your problem is within the scope of what they do (criminal, incarceration, serious family matters, immigration). "Giving legal advice" is something that only a few people are legally allowed to do – lawyers, who have you as their client. If the person were an attorney, they still couldn't give you legal advice until the appropriate relationship is created (and they have the relevant facts). The person you met with may be a paralegal or a law student. Under the law (sect. 8 of the act), you cannot sue them for damages because of their actions, except if carried out in bad faith. The waiver might be a bit redundant, but it is a wise idea to tell people that you can't sue them. If you want to know what you can expect from the lawyer, this publication will be helpful, though it is generic and not specific as to your particular issue. | Being outside of IR35 means one is considered a (self-employed) contractor, not an employee, and as such will not have income tax and national insurance contributions deducted under PAYE. HMRC require the NINO and Ltd Co details to cross-reference the payments declared in the public sector's accounts with the Ltd Co's accounts to ensure (a) they match, (b) the correct tax and NIC is paid by the relevant entities, and (c) to confirm the identity and/or status in the Ltd Co of the recipient of the payments. | Unfortunately, there are no EU visa’s for non-family members on the basis of a romantic partnership or relationship. The EU recognizes family members to be facilitated entry and residence as follows: Article 2 Definitions For the purposes of this Directive: 1. ‘Union citizen’ means any person having the nationality of a Member State; 2. ‘family member’ means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); 3. ‘host Member State’ means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence. Some Member States, potentially Italy included, recognize domestic partnerships as equivalent to marriages. Maybe you and her are able to come to peace with this idea that for a longer stay, you two would have to make deeper commitments. Maybe that is a non-question, and can work well if that is the case in Italy. Other than that merely on this basis, there is not much room to consider. If there are other facts that may be relevant, for e.g., she may apply to a university and get a student visa; maybe the familial tie you mentioned or other familial ties or ancestry may entitle her to naturalization and citizenship, but these questions vary from state to state; if she’s from a widely recognized less democratic country where she was subjected to or has a well-funded fear of persecution as a member of a social, ethnic or “racial” group or for political opinion or faith, asylum may be another option. | I don't know of any federal law that is violated. US labor law is generally favorable to employers, compared to many other countries, and gives employers a lot of freedom in setting policies and rules, The theory is that an employee who doesn't like it can go and work somewhere else, and an employer with unreasonable policies will eventually be unable to get people to work for them. In particular, it surprises some people that employers aren't legally obligated to reimburse travel expenses at all: The FSLA does not have any rules regarding an employer's obligation to reimburse an employee for business-related travel expenses. No federal law requires reimbursement. So it would be perfectly legal for the company to require employees to pay for all their own meals when traveling on business. Given this, I'd expect that the company would have pretty broad discretion to place conditions and restrictions on reimbursement, including what they will and won't pay for. If an employee had a disability or religious beliefs that required them to eat meat, and the company wouldn't grant them an exception, they might have a claim under the ADA or Title VII of the 1964 Civil Rights Act respectively. But if it's just that they happen to prefer meat, I don't think there's a law to guarantee them such a right. Some states could have their own laws that might be violated, though I tend to doubt it. If you have a particular state in mind, please specify. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | The green card should always be at hand Yeah, he can't do that. He needs a green card in his possession anytime he's not on private property. Obviously for instance leaving it in the gym locker while you're at the gym is ok, but no, you can't dash off to the grocery store without it, on the logic that it's "just in town". Just like I can't make a milk run without my driver's license. So this idea of dashing off on a 400 mile adventure, is Right Out. He should have absolutely refused to travel without the documents in hand. If they say "get off the property or we'll call the cops", then tell the cops "I can't leave without my passport/green card" which the cops will back up, because they know the law and they know how trafficking works. The right to strut around the USA without any ID at all is reserved for US citizens only, and even that is being stripped away by ever-changing laws. Those documents are someone else's property The Green Card is the property of the USA and is not hers to steal. The passport is the property of the Philippine government and is not hers to steal. She didn't take your stuff, she took theirs. So she is guilty of a Federal crime, and the long arm of Philippine law may have an "opinion" on the matter also. Of course, most people don't think of it that way. They think your ID is your property so they think they're only messing with you. I would absolutely, positively report theft of the passport to the Philippine consulate. (Or rather, just report a missing passport, and be free about explaining the circumstances). One might hope that a phone call to consular staff might scare her straight, and get her to send it along. Most likely the green card would be in there also. Or, he could pay the fees to have a replacement passport issued. However the important one is the Green Card, since that establishes your right to be in the USA. On that one, you must consult an immigration lawyer and find out what you need to do. You certainly can get replacement green cards (not cheap), but admitting you don't have yours could cause you problems. People often seize documents for a reason And what makes me think that is, the uncle is a grown adult and the daughter's elder, and I thought that meant something in the Philippines. He is supposed to be more adult and more responsible. As such, he should be responsible for his own documents. Yet, this seems to be in the daughter's hands; this raises red flags. Maybe what she did was a harmless prank. But usually, taking an immigrant's documents is done for an entirely evil reason. Either they are forcing them into indentured servitude (also called "trafficking") - so if he is now in a situation where he is being extorted to do work in a worse situation or worse wage than he'd take willingly, then he is a trafficking victim, and the taking documents is part of the plot. The US has some legal protections for trafficking victims. Or they are "setting him up" for failure in some other way - for instance, out of idle malice, the niece might be planning to call immigration and report him as being illegal, hoping he'd be found with no green card, and deported for not having it. |
Can a landlord renege on a verbal rent agreement made by former staff? Background I moved into a studio apartment that had a $200 rent reduction, valid for 6 months through the end of December 2017. An employee with the property management company had told me to reach out before the period ended to see if we could extend the promotion period indefinitely, because they had done so for previous tenants. In November, I reached out via email to formally request the promotion be extended, and if not, I would move out immediately in January. The property manager at the time replied via email, saying she would get back to me shortly. (Note that I'm not sure of her official title, but all communications with the management company was through this employee.) After 2 weeks of no response, I emailed again. An unknown amount of time after that email, I called in and reached the property manager directly. She then said casually that yes, they already agreed to let me continue with the same rent. Current situation Fast-forward to April 2018, where I receive notices at my apartment door that management has changed, and the employee mentioned above no longer works with the company. Another notice is later posted, saying I owe backdated rent from January. I reached out via phone and leaving voicemails, and I also send emails to ask for clarification. I also contacted the building manager who resides in the same building, and he had told me to not worry as other tenants were receiving the same notices. Fast-forward again to May, when I finally receive a phone call from the new staff with the management company, saying I owe the backdated rent due. I forward my email correspondence with the previous employee, and today, I am told over phone that the lack of written documentation means I owe the backdated rent. She also indicates that other tenants have been getting the same notices and phone calls, so this situation is not unique to me. I then give my 30-day notice over email, as requested, and I receive a call back from the same employee, saying the owner will continue honor my rent discount promotion from June onwards, but only if I pay the backdated rent. Question Do I actually owe this backdated rent? It's suspicious that there were no notices for late rent payments until after new staff was brought in. Aren't verbal agreements binding? (Jurisdiction is US, state of California.) | Your title doesn't quite match your question. "Reneging" would mean saying that a lease would be offered at the reduced rent, and then not offering the lease. Here, they offered the lease, and you accepted. So now the question is not whether they can refuse to offer you the reduced-fee lease, but whether they are owed the back rent. Verbal agreements are indeed binding, but they are rather sticky from an evidential point of view. Also, there are other possible complications. If your original lease stated that verbal agreements are not binding, or that only specific people are authorized to modify the terms and the person you talked to is not such a person, then this is not binding. If after they said you could keep the rent reduction, you signed a lease for the full amount or otherwise indicated acceptance of the full amount, then it may be considered not binding. Even if the agreement is not binding, you have further arguments. If you believed that it was binding, and did so out of good faith, then there was not a meeting of the minds, and they can't go after you for breach of contract. They may have other claims, such as damages if they can show that they could have gotten more money from another prospective client, but them accepting the rent makes that difficult to pursue. Now, again, verbal agreements do have evidentiary problems. If your case were nothing than your word claiming that they agreed, you would not have much of a case. But here, you have: -They were willing to take the lower rent for the initial period -You stated that you would leave unless given a continued discount, and you stayed -They didn't make any attempt to collect the full rent for three months -They are willing to give you the discount if you pay the back rent All of this points rather strongly towards your claim being true. You also say "this situation is not unique to me." It's not clear what they means, but if other tenants also got verbal assurances that the discount would continue, and they testify to that effect, then your case is even stronger. | If the tenant finds a new place to live before the end of the two months' notice and wishes to leave early, is the tenant required to [give] one month's notice that they are leaving? No, the tenant is not required to give notice if they has already received notice from the landlord. In addition, the tenant is required to pay rent up to the end of the notice period, even if they move out sooner (for now; but see also below). If they don't move out, they must still pay the rent. If the tenant...moves out of the property half way through their rental period, can the tenant claim a refund on the rent already paid which reflects the time between when they left the property and when the rental period would expire? For a tenancy which started before 1 October 2015, there is no automatic right to a refund. The tenant can of course ask the landlord for one, though the landlord would only be obliged to refund rent if a new tenant moves in before the end of that period. For tenancies made after 1 October 2015, s35 of the Deregulation Act 2015 amends s21 of the Housing Act 1988 to allow the 2 months' notice to end on any day (after the end of a fixed term), not just the end of a rental period. s40 then adds a new section which requires the landlord to repay any rent applying during that final period, but after the tenant moves out. If the tenant is not in a strong enough financial position to put together enough money for the deposit for their next home, or have simply been unsuccessful in finding a property which is suitable based on their current income, what course of action should they take? Firstly, the date specified in a s21 notice is not the date by which the tenant must move out -- even though, in practice, this is how it is normally treated. Instead, it is earliest date on which the landlord can begin legal proceedings. So, after that date, there is likely to be a delay until the case can appear before a court. The judge has some discretion as to when the tenancy will actually end, so you can ask for a little more time -- but note that the only way to prevent an eviction under s21 is to show that the landlord failed to follow the correct procedure. See also Shelter's comprehensive guide on the subject for more details. | Just think of the subtenant cum owner as two separate people with two separate roles. Tenant = T Subtenant = ST Old owner = OO New Owner = NO The rights of the tenant vis-avis the new owner will be informed by the lease and the local laws. Generally, if the sale happens in the middle of the existing lease, the NO is obligated by the terms, as is the T. NO cannot just kick T out, and T cannot just break the lease. The lease may say what could happen and local laws will apply. Likewise, ST has whatever contract with T that previously existed. Pretend NO and ST are different people. If T owes NO $1000 per month, and ST owes T $400 a month, that continues even though ST and NO are the same person. Depends on what kind of dispute. See above. All contracts continue, subject to whatever the lease with the original owner and the subtenancy agreement say abut modifying or breaking the lease and sublease. Local laws apply. Note, if the subtenancy was "off the books" or was done when not allowed by the original owner, and if it was not in a place that the local law says owners cannot deny subleasing, then tenant might not have any protection. ST, now that he is owner could just move out and stop paying. On the other hand, even if he is the owner, he cannot just say "I am the owner now, so I am moving back in for free" because the original lease gave the tenant use of the whole property. But ST could just drop out because T always owed OO, and now NO, the full rent. Do you mean if rather than sublease, they were both on the original lease? Interesting, but just imagine it as the obligations before the sale = the obligations after the sale. I don't know though. There are some tax implications for an owner occupied rental. | british-columbia All of this is from the Residential Tenancy Act and related decisions from the Residential Tenancy Branch (a delegate of the director). A tenant is entitled to exclusive possession subject only to the landlord's limited right of entry, described next. As long as there is a tenancy, the landlord cannot enter unless: the tenant consents, or the landlord gives 24 hours notice and enters between 8am and 9pm (up to monthly), or the landlord is providing agreed-upon housekeeping services, or the landlord has an order of the director authorizing entry, or the tenant has abandonned the unit, or an emergency exists. If satisfied that the landlord will enter other than as authorized above, the director can authorize the tenant to change the locks. If a landlord does not comply with the Act, the director can make orders to give effect to the tenant's rights, and can award compensation. One such possible award, where the tenant can establish that the landlord is trespassing contrary to the permitted entry described above, is retroactive rent decrease, consistent with the loss of a right to exclusive possession. | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). | I see that most (all up to this point) answers and comments are made around if a verbal contract is binding enough for the employer to "pursue back" the extra payment that you received... but as far as I can see, they don't even need to consider the verbal agreement. Your employer thought (and apparently was right) that you were going to resign, so they offered you a payment raise in exchange for you to stay for two more years. You verbally agreed but this agreement was never written down nor signed by any of the parts, yet your employer respected it and for X amount of time you received more money that what your initial, written, signed contract says. Now you want to quit; as mentioned above, you only have your original contract, a contract that says two things that are key for this "dilemma": The Employee will be paid £9/hr in arrears. Salary may be increased at the direction of The Employer subject to The Employee taking on additional responsibility which is agreed upon by both parties. If the Employer makes an overpayment to the Employee to which she is not entitled, or which is more than that to which she is entitled, the Employer has the right to recover the overpayment by deductions from the Employee's salary or from other payments due to them. You received payments for £11/hr, which is more that that to which you're entitled according to this (one and only) contract; so, your employer has the right to claim back those £2/hr that, officially, you were not entitled to. IF you want to argue that, as the 1st point says, both parties agreed to increase your salary for "additional responsibilities", YOU would also have to admit that you agreed to stay for two more years, agreement that you are not complying to; so, once again, it's a point in favour for your employer. All in all, it all boils down to how your employeer "feels" when you present your resign letter; maybe they will just agree and let you go without further issues, but if they want to claim back that payment raise, IMO they have both the right AND the arguments to do so. | Not even real roaches are an emergency. The event was foreseeable and scheduleable. According to the terms of your lease, you are entitled to a 2 day warning. From your description, the landlord did not violate the lease, but he came close to it, perhaps to the point that the courts would consider it as good as a breach. In Chicago, §5-12-050 of the municipal code mandates 2-day notice, and the following section says that If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated unreasonable demands for entry otherwise lawful, but which have the effect of harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct, or terminate the rental agreement pursuant to the notice provisions of Section 5-12-110(a). In each case, the tenant may recover an amount equal to not more than one month's rent or twice the damage sustained by him, whichever is greater. | Online conversations are generally allowed evidence. However, EVERYTHING in the chat should be considered, as well as any later actions. Were there later conversations that said something different? Did the lease you signed have different terms? One line in a WhatsApp does not make your case a "slam dunk". It may only be one piece of evidence in a much larger context. |
What can I do about angry drivers as a bicyclist? I live in Berkeley, CA, and I often bike to the nearest grocery store along a designated "bicycle boulevard". The street is mostly residential. I try to keep as near to the sidewalk as is safe without risking getting hit by an unexpected car door opening, and I try to bike as quickly as I can. Furthermore, the road is not very busy. Still, I have had all manner of threats and obscenities shouted at me by drivers and front-seat passengers of cars, including: You piece of s***! I should knock you off your f***ing bike! Hey, a*****e, why don't you do us all a favor and go kill yourself? Sometimes it's racial slurs (that don't match my race): You fata** n*****! The road is for cars! Other drivers have seen fit to drive as close to me as possible, revving their engines or exaggeratedly going around me at ~10mph above the speed limit (in a school zone no less!). One chose to follow me most of the way home, screaming obscenities out the window the whole way. Are any of these people breaking any laws? Could it be that I am in the wrong? The frequency of these behaviors have made the simple 5-minute bike ride to the grocery store highly stressful. Can I work with the local police / government somehow to make this street safer? | In the US, obscenities, insults, racial slurs and so on are legal, owing to the First Amendment. An actual, believable threat to maim you would not be legal, under Cal. Penal 422, but "I oughta punch you" would not be a criminal threat. Some forms of aggressive driving constitute reckless driving, if they are driving "in willful or wanton disregard for the safety of persons or property". It is also against the law to follow too close (you must follow reasonably and prudently). Exceeding the speed limit is a violation of Veh. Code 22352, even if it's to pass a guy on a bike. Of course, we can't tell if you are obeying the law, but even if you were doing something illegal in your biking such as blowing away a stop sign, "the other guy was bad" is not a defense against a citation for illegal driving. | I'm assuming you are talking about something like this You didn't specify where you live, but in many places it is illegal to block the sidewalk with a car. I just looked up my local ordinances and it is there. In fact, it is your driveway, but often the land up to and including the sidewalk is considered part of a public easement. Typically you are required by law to maintain any grass in the easement, but if the sidewalk were to fall into disrepair, the local government would fix it. Information on easements can also be found in your local ordinances, here is an example in my area. Should I fight this ticket? You can try, but I doubt you will win. Is there anything I can do to my driveway to allow me to actually use it? I would suggest asking on Lifehacks. And post a link here to your question if you do, I'd be curious to know what they come up with. | As a practical matter, if you learn that people are gathering around a street racing event, leave. In all likelihood, you should do the same if you learn that people are gathering around a cockfighting event, a duel, a staged fight between people outside of a licensed boxing or fighting event, or any other illegal contest. Rather than worrying about the precise contours of these laws, avoiding this situations is the safest rule for your personal safety from other participants and from authorities. | The nuisance of potentially waiting for all the traffic on the main road is a notion alien to the law. Seeing the red light, y correctly does not enter the intersection, because it would block the intersection, § 11 Ⅰ StVO. Keeping intersections clear is a general consideration, say for emergency services. Nevertheless, if safely stopping required entering the intersection, it’s not an issue here, § 4 Ⅰ 2 StVO. Stopping before entering the intersection is not a hard requirement, because the traffic lights do not regulate the intersection but an “isolated” pedestrian crossing. § 37 Ⅱ StVO concerns traffic lights at intersections. x has to yield traffic as indicated by the sign, § 8 Ⅰ StVO. Making a U‑turn or right-hand turn would be no issue, since this would not interfere with traffic (assuming properly dimensioned streets). Going straight is permissible if done with caution, § 8 Ⅱ StVO, but I would not recommend that. y might decide any moment “Eff it! I’m taking B street [Am Falkplatz].” and boom! Going left, however, is not allowed, since x had to stop short of the traffic light, which is frowned upon (blocking the intersection), but moreover it would take y’s right of way. | Courts, particularly traffic courts, tend to take a police officer's word over that of an accused person. While legally the limit is 70, the driver has very little recourse if the officer claims falsely that the actual speed was over 70. But the deterant effect of a posted limit is lost, since drivers in general have no way to know that Officer O will ticket anyone going over 60. I suppose that driver D, or D's lawyer, could subpoena calibration records of any radar gun or other measuring devise used, and could insist on its being tested. However, unless they had reason to think there was an issue, I wonder if D and D's lawyer would go through that process. Some speed measuring devices print a paper slip showing the date and time along with the reading. If such a device was used that record would be harder to alter. Some cars are now equipped with devices provided by insurance companies that record speeds and other driving info in a secure way to help judge a driver's safety and allow individual rate setting. It might be that the record from such a device would be admissible to show the speed was under the posted limit. But there is a sense in which the law is what the police and the courts enforce. If anyone who drives the road over 60 is cited and must pay, one could say the effective limit there is 60. | No, it is generally not legal. In most (maybe all) states, this would be vandalism. For example, see California Penal Code Section 594(1)(a): Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys. For another example, see Kansas Statutes 21-5813. In your hypothetical, the pedestrian absolutely hit the vehicle, not the other way around, so the "fine line" you mention doesn't effect this conclusion. The practicality of proving the case against the pedestrian is a separate matter but the law favours neither the pedestrian nor the driver. The standard is the same no matter who the charges are filed against: proof beyond a reasonable doubt. | You could do that online, this website will help you with that: http://www.online-strafanzeige.de/ Also, just go to the police... They must accept your complaint and will check it. Also they can tell you wether it is likely that the complaint will lead to a lawsuit or not. | I should have done my research properly, hopefully this will be indexed and be helpful to someone else in the future. The specific legislation is The Road Vehicles (Construction and Use) Regulations 1986 regulation 98: Stopping of engine when stationary 98.—(1) Save as provided in paragraph (2), the driver of a vehicle shall, when the vehicle is stationary, stop the action of any machinery attached to or forming part of the vehicle so far as may be necessary for the prevention of noise. (2) The provisions of paragraph (1) do not apply— (a) when the vehicle is stationary owing to the necessities of traffic; (b) so as to prevent the examination or working of the machinery where the examination is necessitated by any failure or derangement of the machinery or where the machinery is required to be worked for a purpose other than driving the vehicle; or (c) in respect of a vehicle propelled by gas produced in plant carried on the vehicle, to such plant. |
Distribute Sysinternals free console program with my shareware application? I am a shareware author (more on the hobbyist level) and I would like to distribute the free SysInternals program Sigcheck (a small console program) as a helper tool together with my program. Sigcheck would not perform the main part of my program's functionality, rather a secondary functionality, by fetching the console output of Sigcheck (for checking the security information of Windows/Microsoft programs). Would it be enough to put the EULA of SigCheck inside the installed program directory where the SigCheck program file is located? | From the Sysinternals Licensing FAQ: Q: May I distribute Sysinternals utilities in my software, on my website, or with my magazine? A: No. We are not offering any distribution licenses, even if the 3rd party is distributing them for free. We encourage people to download the utilities from our download center where they can be assured to get the most recent version of the utility. | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. | We can't really know until the ruling is made. The Supreme Court might issue a ruling that encompasses all software APIs, or may predicate its ruling on this more specific situation, e.g. that because Oracle's library is so extensive its structure can be copyrighted even if that does not necessarily mean that any individual function signature can be copyrighted. They could also decide based on something unrelated to the heart of the copyright question - skimming through the petition for a writ of certiorari, they could make a decision based on the original implied license from Sun, for example. Hopefully their decision will answer the copyright question of function declarations completely, but it isn't required to. | You cannot run MacOS legally on any computer that is not Apple-branded. It is a DMCA violation. There are technical measures in place that check that the OS is running on an Apple branded computer. These measures are easily circumvented, but they need to be circumvented, which makes it a DMCA violation. A company selling computers with MacOS installed (Psystar) was ordered to pay $2,500 per computer for the DMCA violation (they never paid Apple, they didn't even have money to pay their lawyers). In practice, Apple will ignore you as long as you don't make claims that what you do is legal. Buying a Mac with legally owned version of MacOS and not using is makes absolutely no difference. And it would never be fair use. It is either copyright infringement or it is not, bue it is never fair use. "Fair use" is not about "being fair". It is about a very specific set of excuses that you can have why your copyright infringement shouldn't be punished. You are not using MacOS for parody, or just tiny extracts. For example, if you copied ten lines of source code from MacOS, Linux and Windows to demonstrate in a computer science course how different operating systems handle the same task in different ways, that would quite likely be "fair use". | The starting point is whether you infringe copyright by downloading or using the cracked software. The licence you purchase relates to a specific copy of the software. The licence almost certainly does not say 'You can use any copy of this software.' It will usually say something like 'You may install this software', surrounded by other language that makes it clear that 'software' refers to a specific copy. E.g. the Windows 7 EULA says 'you may install one copy of the software on one computer' and, in another place, says 'By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit.' Nothing in that licence allows you to download an infringing copy of Windows from elsewhere and apply your licence to that copy. In the case of Windows, you don't have a licence to run 'Windows', you have a licence to run a specific copy of Windows. Therefore, even though you have purchased a licence, you would not have a licence for the cracked copy. Running a computer program inherently requires you to make copies of it in memory. In the absence of a copyright licence, this is copyright infringement: MAI Systems Corp v. Peak Computer Inc (1993) 991 F.2d 511 (defendant, who was not a licensee in relation to software, ran software and in doing so created copies of the software in memory; the person was purportedly authorised by a licensee to do so, but the licensee did not have the right to so authorise the defendant). In some jurisdictions, there is legislation to permit non-licensees to run software without infringing copyright, but these provisions (at least the ones in the US and Australia) don't apply to copies of the program which are themselves infringing copies. See 17 USC 117(a) and section 47B of the Copyright Act 1968 (Cth). Now, supposing you do infringe copyright, the question of whether that is a criminal act will depend on the jurisdiction and the other facts of the case. In Australia, downloading or using software is almost never a criminal act (offences under the Copyright Act require trade in infringing copies or commercial scale, etc). In the US, infringing copyright for commercial gain (e.g. if the software is for use in a business) or of particularly expensive software might be criminal under the No Electronic Theft Act. Furthermore, downloading the 'cracked' software may make one complicit in the distributor's offending, specifically by way of 'counselling and procuring' or 'conspiracy'. The distributor's offending may include the kind of commercial copyright infringement that is criminalised. | You could establish your own server which calls the API and maintains a counter, and have al your applications call that server, the server call the API, and the server can also return a count to the application, or even return a failure code if the count is too high. As for when the count turns over, a few days experiment should establish that, but given that the API is based in the EU, I would guess it turns over at midnight UTC (aka Greenwich mean time), but of course that is only a guess. Has the API management declined even to tell when the count rolls over? That seems odd. As to the legal obligations of the API management, it would be good practice for them to have the API return a count, but I don't see that they can be required to do that. I don't know of (and could not find) any law which mandates such a count. I do think that they should inform you of the time of day at which they roll the count over. I have not yet found a law which specifically requires this. | Germany may be different, however in the United States this would be considered work-for-hire and the employer would be the rightful owner of the source code. Regardless of jurisdiction, and from a more practical point of view, you are better off not having a copy of the source code. Using it as reference or example in the future could easily turn into (unintentional) copyright infringement. If, in the future, you write code you would like to be able to freely keep and reuse in any project, make sure the owner/employer licenses it using something like the BSD, MIT, or ISC license. | Can anybody create their own license? That is to say, can I for example create my own license under which I can license software? Yep. It's just a contract granting rights to use a copyrighted work. You can write your own contracts, so you can write your own software license. It's just often recommended that you don't, because common licenses are more well-understood, and inexperienced drafters may make errors that could result in problems, such as unintended restrictions, failing to restrict things that were intended to be restricted, or creating provisions that aren't enforceable in some/all jurisdictions. Can you mandate how a software will be released? Yes. Many software licenses, including GPL, do. The restrictions you describe in your example sound similar to CC BY-NC-SA. Also, would the following clause even be legal? Using this software you agree that any work and intellectual property based on or created with this software will be under the [INSERT_NAME_LICENSE] license, even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up I'm not entirely certain, but "even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up" seems, in my opinion, unlikely to be enforceable—especially "even if the work is rebuilt from the ground up." How would you differentiate a complete rebuild from a totally new piece of software? More broadly, once your copyrighted code is no longer in the product, there's nothing for them to license from you. It's hard to imagine how you'd be able to claim that you're harmed by someone releasing a new version of a product that used to contain your code under a different license. Without harm to you, there's nothing for a court to redress. |
Can bitcoins be taxed? Let's say I give someone a bitcoin and then they give me a phone. Could the IRS — or a similar organization, if outside the U.S. — say I bougth the phone and take a chunk of the bitcoins? What if they set up an inventory of phones, and gave a phone to whomever gave him a bitcoin? Would the IRS get involved? | The United State doesn't have a national sales or value added tax, so the IRS would only care about the phone sale insofar as it might represent income to the seller. Insofar as it's income to the seller, it doesn't matter whether the transaction is cash, bitcoin or barter, the seller is supposed to account for it in their income taxes. If you are suggesting that bitcoin sales could be hidden, well, folks have been hiding cash transactions since taxes were invented. Worst case, the IRS discovers that the seller's spending is wildly out of line with their stated income and they begin a criminal investigation. | I see that this would put me under heavy US regulation, and I'd like to avoid that, since it would require huge funding to hire lawyers to do something like that. There are many reasons for financial and banking industry regulations; namely, fraud protection, corruption and money laundering preventions, use of crypto to avoid taxes and records, etc. If you're serious about a startup that involves financial transaction, one of the first things you do is find a law firm to advise you on the legal plausibility of an idea. And be prepared to spend thousands and thousands of dollars in legal fees for regulatory approval. Would doing something like this solve my problem? You're really going to trust randos on the web for legal advice? | It is currently legal to barter goods or services in exchange for gold or silver bullion in the United States. Gold and silver do not have to be registered or certificated, although a prudent person would usually seek evidence confirming their authenticity and it would be common practice to keep gold and silver in a repository such as a bank or Fort Knox, and to conduct the transaction via negotiable certificates evidencing ownership of the gold or silver (basically warehouse receipts whose transfer is governed by the Uniform Commercial Code) rather than to physically transfer the gold or silver, in a large dollar value transaction. There are been periods of time in the United States where this was not allowed, unless done by a state government (which has a constitutional right to do so), or by a local government authorized by a state government to do so. But those laws are not currently in force and haven't been for a long time. Transfers conducted with gold or silver bullion in excess of $10,000 per transferee per year, probably have to be reported to the same officials to whom a cash transaction in that amount is reportable on IRS Form 8300, because it is considered a collectible cash substitute, even though it is legal to do so and no tax is specific to barter transactions in gold or silver. IRS Publication 1544 explains the rule. | Let me be sure that I understand the situation. You set up an account with Big Company, which uses BigCo as a trademark. You want email about that account to reach you with a unique address, so you set up '[email protected]" and gave that as your email when setting up tha account. You don't plan to use that address for any purpose but communications from BigCo to you and from you to them. (Of course these aren't the actual names.) Have I understood the situation correctly? It seems that you ar not using 'BigCo" in trade, nor are you likely to be confused with an official representative of BigCo, so you are not infringing their trademark. However, someone using such an email more generally could perhaps be so confuse, so BigCo has a somewhat legitimate concern, as they cannot know the very limited use you plan to make of this address. The only way that the could force you not to use such an email address would be via a court order as part of a suit for trademark infringement, whcih under the circumstances I doubt they would get. However, unless they have some sort of contract with you to the contrary, they can control who registers on their site. and could refuse to register you using an email address that includes their name or alias. Convincing them to accept your registration, even though it does no harm to them, will almost surely be more trouble than it is worth. Give them "[email protected]" or something else that is not their name, but will suggest their name enough that you will know who it is. This will serve your purpose fully, and avoid a long argument with people who are reading from a script (once you get past the automated process, if you can even do that). This is all assuming that I have understood the situation correctly. I am also largely assuming US law, since you didn't mention a jurisdiction. (EDIT: UK law should not be very different on these points.) | You can put conditions on bequests (subject to other laws that might require you to provide for children etc.), however, these must be antecedent to the gift: once a gift is given you can't call it back. Of course, you could set up a trust that owns the bequest with rules for when and how the beneficiaries can utilise them that effectively do what you ask. However, this is a morbid and sick way of trying to control people from beyond the grave. The acceptable way to do this is to come back as a ghost, vampire, zombie etc. instead. | Yes and no. [note, the following is all written about US law. In other jurisdictions laws are, of course, different (though usually not drastically so.)] In the US there are (at least) three different bodies of law that might apply to code: copyright, patents, trade secrets. Copyright covers original expression. Anything you write is automatically, immediately protected under copyright. The copyright applies to the code itself, and anything "derived" from that code. It's up to the courts to decide exactly what "derived" means. One case that's long been viewed as a landmark in this area is Gates Rubber v. Bando Chemicals. The Court of Appeals for the tenth Circuit decision includes a section titled: "The Test for Determining Whether the Copyright of a Computer Program Has Been Infringed." Note that you can register a copyright, and that can be worthwhile, such as helping recover some damages you can't otherwise. Patents are quite different from copyrights. Where a copyright covers expression of an idea, a patent covers a specific invention. Rather than being awarded automatically, a patent has to be applied for, and awarded only after the patent office has determined that there's no relevant prior art to prevent it from being awarded. A patent, however, covers things like somebody else independently discovering/inventing what's covered by the patent. A trade secret could (at least theoretically) apply to some process or procedure embodied in the code. A trade secret mostly applies to a situation where (for example) you're trying to form an alliance with some other company, and in the process tell them things you don't tell the general public. If you've identified the fact that what you're telling them is a trade secret, and they then tell a competitor (or the general public, etc.) or more generally use that information in any way other than the originally intended purpose, it could constitute a trade secret violation. As a side-note: patents and copyright fall under federal law, so they're basically uniform nation-wide. Trade secrets mostly fall under state law, so the exact details vary by state. Absent a reason to believe otherwise, I'd guess your interest here is primarily in copyright infringement. The key here would be showing that one piece of code was derived from the other. That is, it specifically would not apply in a case where there were only a limited number of ways of doing something, so anybody who wanted to do that had to use one of those ways. Since this would not indicate actual derivation, it would not indicate copyright violation. | Do I have to pay taxes if I register the domain but the website income belongs to someone else? No. The person or company who runs, and/or profits from, the business is the entity under obligation to pay all the applicable taxes: Value Added Tax, income tax, corporate tax, and so forth. Unless you charge a significant amount therefor (see the comments), the mere registration of just one domain is unlikely to trigger tax obligations. | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. |
Do I own copyright in a recording I just made? I am a freelance recording engineer in Australia. I was engaged to make a recording in the expectation I would be paid for my services. After the job, the producer indicated that the job was pro-bono and would not be paying for my services. They had already passed the material onto the client. In this situation, who owns the recording copyright in the material? My reading of section 97 of the 1968 Copyright Act (Cth) is that as the "maker" of the recording and the absence of any "Valuable Consideration" that I am owner of the copyright in the recording until such time as I "release" the copyright to a third party, or I receive "valuable consideration" for the services involved in making the recording. The producer contests that there was a verbal agreement to make the recording for free and yet I have a hard and fast policy on doing work for free. I don't do it. If it had even been mentioned in passing, it would have been shut down immediately. | The law does indeed say that "the maker of a sound recording is the owner of any copyright subsisting in the recording by virtue of this Part", with the exception of when a "person makes, for valuable consideration, an agreement with another person for the making of a sound recording by the other person", and the recording is pursuant to that agreement. The law does not impose a burden on the engineer to secure copyright in the recording, it imposes a burden on the person hoping to override the engineer's copyright. If there is no agreement, or if there is no consideration, then the engineer would retain copyright. However, "consideration" need not be money: it could also be publicity, e.g. a line on the album cover saying "Sound engineer: Mark Jones". In which case, the question that would have to be resolved in court is whether there was such an agreement. The other side would have to establish that there was such an agreement. | Copyright in the US is usually a civil matter. Meaning that the copyright owner can sue (typically for money damages or injunctive relief) an infringer. The criminal laws that we have are aimed at the reproducer and/or distributor. In other words, chances are that you won't get in any criminal trouble for accessing academic articles of dubious origin. But never say never. RIP Aaron Schwartz. | You don't need to "publish" your song to obtain copyright protection. Original works are protected by copyright at the instant they are fixed in a tangible medium. This means that if you type the lyrics, write an arrangement of notes, or record yourself playing the song, the song is copyrighted. | Alice has been developing her own enhancements, and they're pretty similar to Bob's. Neither Alice nor Bob has copied the other's enhancements, so neither has violated the other's copyright in the enhancements. Whether that could be proved in court is another matter, of course, but since the original work is licensed under creative commons the question unlikely to arise in court. Would Alice be prevented from coming up with enhancements to her own game if other people could prove they thought of and released the idea first? No. Copyright does not protect ideas. It only protects a particular expression of those ideas from being copied. Theoretically, if two authors come up with identical 500-word descriptions of something and can establish that each did so independently, neither has a claim against the other. The practical problem there, of course, is that it would be impossible to prove such a thing. Could Alice outright claim Bob's "Adapted Material" because he developed it on her original work? Assuming that in publishing his adaptations Bob followed the terms of the creative commons license with respect to the original work, Alice's only claim would be that he copied her adaptations without following the terms of the license. If Bob can show that he did not do so, her claim would fail. In a comment, you wrote: Suppose Alice went ahead and intentionally, somehow provably ripped off Bob's "Adapted Material" because she liked the content so much, does Bob reserve any rights on his adaptation, or is Alice able to commercialize the work that Bob did in extending her original work? If we assume that Bob complied with the license of the original material, we know that he licensed his adaptations under "the identical terms," so Alice would be able to use Bob's adaptations under those terms for non-commercial purposes. Since the assumption here is that Alice provably copied something of Bob's, I think it is fairly clear that she would be liable for damages if she exploited that material commercially without paying royalties. | The lyricist and composers already have copyright. Copyright exists for the moment of creation: registration is not necessary to enforce copyright rights and to grant licences. Registration in the US is merely useful if you want to prove that you own the copyright which otherwise would require providing evidence of the date of creation, priority etc. Most countries do not have copyright registers. Similarly, you will have copyright in the derivative work of the soundtrack from the moment of its creation. | Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence. | A licence is your permission for others to use the work within the specific terms of the licence. You never license yourself, you license someone else or someone else license you. If you are the sole right holder of a work and you do not assign or transfer your copyright interests to others, you retain all rights regarding the work. Licensing your work under a CC licence does not make it impossible for yourself to use it commercially in the past, present or future. Of course, permissive licences like CC-BY might decrease the commercial value of your work since anyone else could reuse your work freely with minimum restrictions. But that does not prevent you legally from use your own work for commercial purposes. The exact choice depends on your wish on other aspects of using your work. For example, CC-BY-NC would require the licensee (essentially, anyone else not having another overriding agreement with you) to attribute/give you credits in order to use it non-commercially only, but they may remix and adapt your work as they wish as long as they credit you and the purpose is non commericial. You may also add an ShareAlike (SA) requirement where if the licensee creates an derivative work based on your work, they must license their derivative work using CC-BY-NC-SA as well. The last kind, CC-BY-NC-ND (NoDerivatives), would not only require credit when the licensee uses your work, but also prevent them from creating derivative works from your work. | Copyright in musical works extends to the composition itself, not just to the sheet music (as you notice, there may not even be any sheet music). If the musical work is protected by copyright then publishing a transcription of that work would be a potential violation of the copyright, subject to exceptions such as fair-use and fair dealing. If the piece is in the public domain, then you can publish your transcription. |
In GDPR, who exactly are the processors and what do they have to do? I thought the processor was just someone who processes all personal data on behalf of the controller, basically a simple substitute for some matters. But from what I read online it seems that a processor is anyone that deals with any personal data, even partial data, as part of a service provided to the controller. So it sounds like everyone that deal with personal data as part of their job is a processor, except the end users of the service. But since processors must be bound by a specific contract to deal with the needs of the controller (article 28 says "processes the personal data only on documented instructions from the controller), then I'm afraid it will soon become a huge mess with a gazillion contracts to sign. For example, John Doe has a website with a contact form. The contact form collects data, and the end user should accept the privacy policy written by John Doe. John Doe is the controller. However, John Doe's website is managed by a web agency! Is this web agency a processor? I guess so. So John doe needs to write a contract and have the web agency sign it. If every website owner does this, the web agency will have to read and sign hundreds of contracts. But the web agency hosts the sites on a web hosting provider, which in turn becomes another processor! And they use Gmail, provided by Google, which in turn is yet another processor that will have to sign millions of contracts. And so on, in an potentially endless cycle, just thinking that if you read your work email from your iPhone you might have to send a contract to Apple too. It seems a huge mess to me, but I'm not sure I get it right. It looks like everyone is a processor except the end user, but the confusing thing is that the the law seems to say that it's the controller the one who decides the contractual terms, so it's not just a matter of accepting a privacy policy like we have been doing so far. So far, Google has provided a service to you, and you agreed to their privacy policy. Now it seems it's you, if you are a controller or a processor, that have to come up with a contract and Google has to accept it (if they want to). Like it's the other way around compared to the usual privacy policies. Of course this will probably never happen, and Google will probably come up with predefined contracts that both parties can agree on, but at that point what difference would there be between the contract required by GDPR and the usual privacy policies everyone has been using so far? I hope the question is clear enough. I'm basically very confused about the actual role and duties of processors in real-world scenarios. | You premise is correct. The processor is someone that processes data on your behalf, and since the GDPR definition of processing is extremely broad, that is about every third party subcontractor that you use for data processing, including various cloud providers. I'm afraid it will soon become a huge mess with a gazillion contracts to sign. I disagree. Yes, the GDPR says that a contract between the controller and processor must exist, but Article 28 of the GDPR does not say anything about how the controller shall document these instructions. Basically, in cases like the one you describe where John Doe relies on a web agency for having a contact form on the web, there will be a standardized (by the web agency) service agreement between the John Doe (controller) and the web agency (processor). There is nothing stopping the parties from agreeing that this service agreement that John Doe accepted as part of the onboarding procedure is also the DPA as required by the GDPR. Putting something like the following in the service agreement would do it: The parties agree that this Service Agreement between You (controller) and Us (processor) set out Your complete and final instructions to Us in relation to the processing of Personal Data and that processing outside the scope of these instructions (if any) shall require prior written agreement between You and Us. You also agree that We may engage Sub-processors to process Personal Data on Your behalf. The Sub-processors currently engaged by Us and authorized by You are listed in Annex A. I think we will se a lot of amendments in service contracts as the GDPR gets better understood, but I don't really see a flood of DPAs in addition to these amended service contracts. | The GDPR as such puts obligations on the Data Controller (DC), that is the person or firm or other entity who determines the purposes for which data is processed. The entity that hires the developer and operates the web site is responsible for compliance with the GDPR and other laws and regulations, such as the e-privacy directive and its implementing laws. However, it is highly likely that in commissioning a web site the DC would specify that it be designed to aid compliance with the GDPR and other relevant laws, and if the developer did not do that it might be a breach of contract. Indeed, even if GDPR-friendliness was not explicitly required by the contract between the developer and the DC, the implied warranties of merchantability and fitness for the purpose would probably apply. A designer who, knowing the site is to be hosted and operated within the EU, failed to design it to facilitate GDPR compliance might well be in violation of those warranties. But that would depend on the specifics of Italian law. But note that GDPR compliance is not a matter of web site design, but of the ongoing practices of the operation of the site. There are various ways to comply with the GDPR, no specific technology or design need be used. The DC must so operate the site as to comply. If the DC fails to do that, penalties could be imposed on the DC, not on the developer. | These are only tangentially related to the GDPR A government entity processing data in accordance with a member state law is ipso facto in compliance with the GDPR. That’s because lawful government data processing is a legitimate reason for processing data under the GDPR. If Germany, for example, passes a law saying German police can record every phone call in Germany, then that would be a lawful basis for processing under the GDPR. There may be constitutional or other legal limitations on such a law but as far as the GDPR is concerned, they’re fine. | Your confusion might be caused by the fact that even with a contract, only the data necessary for that contract is covered under the GDPR. So yes, while there might be an "execution of contract" under the T&C, this would only cover necessary data. That means you can't ask arbitrary signup data under the guise of a contract. If you need to deliver a physical product, you can store a physical address. If it's an online service, you can store an email address or similar handle. But you can't mix the two. A physical address is unnecessary for the execution of a contract that's not physical in nature. Now, you mention "consent". Under GDPR, this is a distinct justification besides "execution of contract". You might have consent to store a physical address in addition to an online address, e.g. if you offer a customer to physically mail a password request form. This consent is additional to the contract. Also note that the bit above only covers the lawful reasons for the processing of personal data (article 6). You also have to obey the other GDPR rules, e.g. fully inform the user, make sure that consent is freely given, etc. | are there any GDPR considerations that must be in place when an EU company stores personal information from citizens outside of the EU? Absolutely. The territorial scope of the GDPR is specified at Article 3: Article 3 Territorial scope This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law. As specified in point 1, the regulation applies to controllers and processors located in the EU. There is no exemption of personal data based on the data subject's nationality or location. In fact, GDPR Recitals 2 and 14 explicitly mention that nationality or residence shall not be a factor: The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. […] | Does GDPR prohibit reading unsolicited emails from people who have not explicitly opted in to a mailing list? tl;dr: No. I have never heard of this, and I don't see how this could follow from the GDPR. You should follow up with the Secretary to find out how she came to her conclusion. Detailed reasoning: The GDPR restricts the processing of personal data, so it does in principle cover reading email, since reading counts as "processing", and an email may contain personal data. However, Article 2 (emphasis mine) says that: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. I would read this to mean that a human reading emails is only covered by GDPR if the emails are part of a "filing system" or intended to be. So reading the emails is ok, it's only problematic if you intend to systematically store them. Even filing them, while covered by GDPR, would presumably be allowed, because to actually act on the email, you would have to keep it, and Article 6 allows processing of personal data to "take steps at the request of the data subject prior to entering into a contract" and when "processing is necessary for the purposes of the legitimate interests pursued by the controller". One caveat: If the email contains data that falls under special categories of personal data (Article 9) you may need explicit consent for storage. That covers things like racial or ethnic origin, political opinions, religious beliefs and health information. So if someone discloses a health problem or their religious belief in their mail, you may need to ask them for permission to keep it. In summary: At most, GDPR would require you to promptly delete the email once you no longer need it (which could be immediately if the email is irrelevant to you). If the email contains data you legitimately need (e.g. a complaint you need to follow up on), you are allowed to keep it as required (based on Article 6 (f)). Note that in both cases no explicit consent is required from the email sender, unless the email contains particularly sensitive data, such as political/religious beliefs or health data. | Sure, you can make such a request, but its not likely to help you. Scammers are criminals and don't generally care about GDPR compliance. Scammers are criminals, and won't just publish their real world identity. Serving them with a lawsuit will be difficult, especially if they are from outside the EU. GDPR lets you sue data controllers, but it's not worth it. You can sue for compliance (e.g. to compel fulfillment of your access request), and you can sue for damages stemming from GDPR violations. Compared to the damages you have suffered, a lawsuit is very expensive. | Consent of the data subject is only one of several conditions that allow the processing of personal data; these are found at Article 6(1) of Regulation 2016/679. The last, item (f), is also of interest: Article 6 Lawfulness of processing Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks. Most sports statistics systems maintain identifying data for legitimate purposes pursued by the systems' owners. Since the data in question are already publicly available, and in many cases are made public by the athletes in the course of their lives as public figures, it is unlikely that a court would find that the athletes' interests or fundamental rights and freedoms override the interests of the systems' owners in processing the data. |
Is being dead considered a valid alibi? If someone would legally be considered DEAD for a period of time¹ and during that period of time they would commit an illegal act, in the UK, could they, during a lawsuit, claim to be innocent because they were dead and thus couldn't have done anything, let alone something illegal? ¹A doctor declared them dead after an injury but they recovered without anyone knowing. (living people can be legally dead) | An alibi in itself isn't necessarily a trump card. A legal declaration that you were dead despite being self-evidently alive doesn't seem a persuasive alibi. | Can I sue? (Shall I sue? Is up to you) Yes, anyone can sue anybody but that doesn't mean it will be successful. The likely candidate for making a claim seems to be under the tort of Emotional Distress, however, note that... Since the definition of offensive conduct is subjective by its very nature, the courts have set high standards to make out a claim for intentional infliction of emotional harm. To be successful, the plaintiff must show that the defendant intentionally or recklessly engaged in extreme and outrageous conduct which caused severe emotional distress to another person. Source ...but according to the OP and comments, this criteria does not appear to be have been met. | Yes Now, murder needs a definition because they are all subtly different. Let’s use the one in the new-south-wales Crimes Act 1900: Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. The only real difficulty is in the phrase “causing the death charged”. So a sensible prosecutor would charge both defendants with both deaths. A jury would find them guilty beyond reasonable doubt of one of the “death[s] charged”. The case is similar to Rogerson and McNamara who took a live Jamie Gao into a storeroom and came out with a body. Each accused the other of the murder - the jury didn’t believe either of them. | what if it is established in court that you knowingly or through gross negligence included a falsehood, or a claim you have no evidence for, just to clear that initial hurdle? What would the consequences be for that? The case proceeds and if it goes to trial, the finder of fact determines if the case prevails or not. Also, note that except in the case of a verified complaint, a complaint in a civil case is not made under oath or under penalty of perjury. In the rare and unlikely event that it is established that you knew that your case had no factual basis at the outset, you (and your attorney in many cases), can be sanctioned by the court, usually in the form of the attorney fees incurred by other side as a result of the knowingly false statement. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. | A contract can’t legalise illegality Let’s assume that absent the “simulation” disclosure in the ToS, this would be fraud. The question then becomes, does making the disclosure make it not fraud? Fraud requires dishonesty and deception. These are measured by what a reasonable person would determine from the overall conduct so a small piece of truth in amongst a web of half-truths and outright lies is still dishonest and deceptive. From the perspective of US law, is Bob doing this regarded a scam? No, but only because “scam” isn’t a legal term - it’s slang for fraud and this is fraud Is this a criminal case, or a civil case? Both What evidence can Tom provide to support the lawsuit? Whatever he has. However, in practice, these types of fraudsters are rarely ever caught and it’s even more rare for the victim to recover their money. They are usually off-shore in countries with either poor rule of law or which will not extradite their nationals. | As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury. | If that which you describe in your comment ( Facebook post as only basis for warrantless search) is, and can be shown, to be the only basis for the search, and there was no evidence of a crime in plain view when they arrived.....then yes, it is likely the search and all evidence acquired from the search would be excludable. As to whether the individual could still be prosecuted, that depends if a case could be built independent of the evidence collected during the search. |
Is throw-away-the-key-encryption allowed under GDPR? Article 15 of the GDPR says: The data subject shall have the right to obtain [...] personal data [if it is being "processed"] Article 4 says that "processing" includes storage. Therefore, all stored personal data should be available upon request. Then does GDPR disallow the following scenario? You give me your personal data. I encrypt your personal data using a random encryption key. I store the encrypted data and assign it a random ID for reference. I give you copies of the encryption key and the ID and throw away my copies. You later provide the ID and encryption key to me and ask me to decrypt your data and perform some work with it. Note a few things: Nothing about the encrypted data, encryption keys, IDs, work performed, logs, etc leaves any information which correlates to you. Only your unencrypted personal data does. Your personal data still exists the whole time--I'm storing it in encrypted form (has it been anonymized?). Your personal data is readily available, if you give me the correct ID and encryption key. Importantly, I'll never be able to satisfy your request for all your stored personal data. It's technically impossible since I lack anything which correlates it to you, and I don't have any encryption keys. I would only be able to satisfy the request if you gave me all encryption keys and IDs that I have ever sent you. A concrete example: In order to sign into a website you must have a trusted email address. Email addresses take the form of [email protected], thus they are personal data. You sign in by providing this personal data and clicking a button. Clicking the button stores your encrypted personal data according to the scheme above and then emails you a link containing the reference ID and encryption key. You establish trust by clicking the link, sending the website everything it needs to find and decrypt your personal data. Then the website takes action on your personal data, signing you in. Incidentally, the encrypted personal data is single-use and expires, so it gets deleted after you are signed in or if it gets too old. I realize the goals of this example could be accomplished a different way. But I hope it helps make the scenario clear. | TL;DR In theory there's nothing wrong with your method, it's just a way to authenticate the user, and without authentication a user has no right to request anything anyway. But in practice it looks like your method doesn't have a way to deal with situations where users lose or forget their authentication data and want to be able to recover their account. Failing to deal with that in a modern system might be considered an unacceptable bad practice and so be against the GDPR principles of security and privacy by design. EXTENDED VERSION I might be wrong or not understand the question correctly, but I don't see how this is different from many other common cases where encryption is not involved. Think about it, you aren't able to give the user their own personal data unless they provide the ID and encryption keys. How is this significantly different from the fact you aren't able to (or rather you should not) show a user their own data unless they provide their own username and password, or they convincingly authenticate themselves in any way? Just like you can't ask Facebook to show you all the data collected about Donald Trump only by claiming you are Donald Trump, you can't be required to give a user their own data unless they provide the encryption key. It can be seen as your way to authenticate users (among other things). Edited: multiple IDs/keys I didn't understand your method involved multiple IDs and keys. In theory, the situation is still the same, only with multiple pieces of data for authentication, like the user had to remember multiple usernames and passwords. Failing to provide all IDs and all keys will result in a partial authentication. But with such an approach a potential problem becomes more evident: your authentication scheme might be against the GDPR principles of "security and privacy by design and by default". Basically, your methods might be considered bad practice because they fail to deal with the common issue of lost or forgotten passwords. If a user tells you they have lost a USB drive containing all their IDs and keys and they don't have them anymore, what do you do? You can't delete their data because you aren't able to know what their data is, without another way of authenticating. And their data is now at risk, because somebody else might have their IDs and keys. If you had an email address associated with all the user's IDs and data, then you might be able to confirm their identity (for example sending an email with a link) and delete all their data. As you see, things can get pretty complicated, it all depends on the details of your implementation, and just adding or removing one detail might change the whole scenario. | Your data is not anonymous since from the picture of the face the individual can be identified. It would be anonymous, if the face was blurred and other possible identifiable information was removed. Of course, that would defeat your purpose. Please note that, in any case, Anonymization Techniques are, themselves, a type of personal data processing that requires a legal ground, and achieving real anonymization is not a trivial matter (see Article 29 Working Party's opinion 0829/14/EN WP216 on the subject). 1. The face of a person includes biometric information, which is defined in article 4 (14) among other types of personal information regulated by the GDPR as: "personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data". A facial recognition software's purpose is exactly to perform a specific technical processing based on the facial features of the persons, to achieve a unique identification of a person based on these biometric features. Article 9 of the GDPR includes biometric data among the types of prohibited processing, unless one of the exceptions in § 2 applies. There are 10 types of exceptions among which: consent of the person, employment context, personal data made public by the person, scientific or historical research,... (each exception having its own conditions). You should check that you comply with one of these exceptions stated in article 9 § 2, if your application is about using facial images for unique identification of a person based on these biometric features. 2. In turn, if your processing is not about unique identification of a person based on these biometric features, but only about emotions recognition (which you briefly mentioned at the beginning of your post), it could be considered as not falling under the requirements of Article 9. That would still be a processing of personal information, but it would fall under the normal article 6 requirements. | Any processing of personal data needs a legal basis, for example necessity for some contract or legitimate interest. If no other legal basis allows the processing, you need to acquire consent. Consent must be freely given. If something is gated behind consent without that consent being really necessary, this might coerce users and they would not be able to consent freely. The GDPR does not have a hard ban on this, but it explicitly calls out that this case must be considered when determining whether consent is valid. So what your company is trying to do is in a dark grey area. Not necessarily wrong, but likely so. Consent could be made free if users have an actual choice. For example, some online newspaper sites had success with a “pay or consent” wall. (Success in the sense that some data protection authorities allowed this). In your case, this could mean that users either consent to extra data collection, or that they buy some reasonably priced premium mode. But none of this is for you to decide. You can voice your doubts that the software would be compliant. You could also ask if the Data Protection Impact Assessment document for this proposed processing is available (creating such an assessment is likely mandatory in this case). But in the end, it is the company's obligation to be compliant, and this responsibility is largely shouldered by the company's data protection officer (to whom you can turn with further questions). | Neither the GDPR, nor the CCPA, nor any other data protection law that I am aware of, requires that when information is deleted on request, that similar information not be collected and stored in future. Under the GDPR Article 6 there would have to be a lawful basis for any processing, including storage, assuming that the GDPR applies to the directory in question. There could be a claim that such processing was lawful under article 6(e) "performance of a task carried out in the public interest". I do not know if any such claim has been adjudicated. Thus there is no need to hold a database of previously erased records to determine if a new record should be blocked as "previously deleted". The Wikimedia Foundation, which runs Wikipedia, I believe takes the position that the GDPR does not apply to Wikipedia, I am not sure of their detailed arguments. But surely articles on well-known people, such as a former US president, would be covered under the same provisions as would cover news reports and historical books about such a person. Perhaps that would also come under article 6(e) | There’s no definitive list of what is or isn’t personal data, so it all comes down to properly interpreting the GDPR’s definition: ‘[P]ersonal data’ means any information relating to an identified or identifiable natural person (‘data subject’). — Article 4(1) In other words, any information that is clearly about a particular person. But just how broadly does this apply? The GDPR clarifies: [A]n identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. — Article 4(1) This means that because you say that coordinates and anticheat logs are linked to the cheaters ingame username and unique id, if there is a record of who that username and/or unique id belongs to, even if it is just an IP or email address, it is considered personal data because the information relates to an identifiable natural person. Personal data includes any data which can be linked to information where a person can be identified From CommentsIf the online username and unique id is not linked to the actual human (no stored real name, no home address, no IP), can the natural person actually be identified? The records and anticheat logs are linked to the unique id and username, however the unique id and username are (from my POV) not actually linked to the real human Only you can answer that question as it stands because we have no access to your data. From what you have told us, even though the coordinates and anticheat logs are linked to the cheaters ingame username and unique id, that alone doesn’t fall under the GDPR’s scope of personal data, as, in all likelihood, the usename and unique id could relate to anyone in the world. The issue comes if elsewhere you have a record of the person's name, IP, date of birth etc. which when combined with the anticheat logs could link that data to identifiable people. You might think that someone’s name is always personal data, but it’s not that simple, as the UK’s Information Commissioner’s Office document what is personal data (PDF) explains: “By itself the name John Smith may not always be personal data because there are many individuals with that name. However, where the name is combined with other information (such as an address, a place of work, or a telephone number) this will usually be sufficient to clearly identify one individual.” Note: A name which is much less common could be personal data as the likelihood of it relating to others deminishes. John Smith is a common name all over the UK, but what about a particular polish/czech/hungarian/french.... name (let's say) living in Nottingham, UK? What is the likelihood of another person of the same name in Nottingham, UK? Add a middle name or double barrelled surname, and it becomes even more likely that it is personal data. If you’re unsure whether the information you store is personal data or not, it’s best to err on the side of caution. This means making sure data is secure, reducing the amount of data you store, collecting only as much data as necessary to complete your processing activities, keeping data for only as long as it meets its purpose, and ensuring only authorised people are able to access the data. | I agree with Ben that there are many exemptions to the right to be forgotten. For example if messages are removed from a mailing list archive, the replies to deleted messages will become useless. That would impact the right of freedom of expression and information of those authors. That is one of the exemptions to the right to be forgotten. So there is no right to delete complete messages. Replacing references to names and email addresses, is a very good solution. It must not be possible to de-anomize the data. So having [email protected], it must not be possible to get back A. Person <[email protected]>. Sure, everyone who received a copy of those messages can find that message in their own archive, and see the author that way. But that is because they simply have a copy of the full archive. The right to be forgotten is independent of someone else having the same information you request to delete. For example google removes search results in its index, even though the same information can still be found on the original website. To fully exercise the right to be forgotten, you have to make a request to everyone who has that data. In Austria there is a recent case (ECLI:AT:DSB:2018:DSB.D123.270.0009.DSB.2018) (available only in German) where someone's data was anonymized after asserting his "right to be forgotten". He did not agree and wanted his data to be fully deleted, so he filed a complaint at the Austrian DPA. The DPA denied his request. I have tried to make a translation of the relevant part of the judgment, note that many references are to other Austrian judgments or books (where I listed the ISBN instead). D.1 The binding part of the GDPR does not contain the term "anonymisation". Only recital 26 states that the GDPR does not apply to anonymous data. D.2 The term "erasure of personal data" as used in Art. 17 is neither found in the binding part nor in the recitals. In Art. 4(2) erasure and destruction are listed as alternative forms of processing which are not necessary identical. This means that erasure does not necessarily requires final destruction. (cf. K121.375/0012-DSK/2008, with regard to Directive 95/46/EC, where also a distinction was made between erasure and destruction; cf. ISBN 978-3-406-72006-2). Such a differentiation also results from the case-law of the Constitutional Court (cf. VfSlg. 19.937/2014). Therefore, the person in charge is entitled to make a choice with regard to the means - i.e. the manner in which the data is deleted - (cf. again ISBN 978-3-406-72006-2, according to which reference is made to the destruction of keys or other decryption devices without the removal of the data itself; cf. in this sense also ISBN 978-3-406-71932-5, which refers to the impossibility of perceiving the information previously embodied in the data to be deleted; cf. also ISBN 978-3-406-72007-9, according to which deletion is to be understood as any kind of conceilment of stored personal data; cf. also Warter, Dako 2/2018, 39 [40], according to which the result of the deletion action is decisive). The removal of the personal reference from personal data ("anonymisation") can thus in principle be a possible means of deletion within the meaning of Art. 4(2) in conjunction with Art. 17(1) GDPR. However, it must be ensured that neither the person responsible himself nor a third party can restore a personal reference without disproportionate effort (cf. RS0125838, according to which it is not sufficient to merely change the data organisation in such a way that "targeted access" is not possible any more; cf. also the judgment of the CJEU of 19 October 2016, C-582/14, 45 ff.). Only if the person responsible aggregates the data in a way that no data can be identified, can the resulting data stock be described as anonymous (i.e. without personal reference) (see Opinion 05/2014 on Anonymisation Techniques of the former Art. 29 Data Protection Working Party, WP216, p. 10). The Administrative Court has also ruled - with regard to the comparable legal situation under the DSG 2000 - that a redaction (blacking out), for example, can be regarded as a form of deletion. By making the name of the data subject and all other data relating to him or her unrecognisable, his or her request for deletion is complied with (cf. the decision of 23 November 2009, 2008/05/0079). So anonymisation is sufficient to comply with a right to be forgotten request. | It may be legal or it may not For example, if any of the users are in the European Union, then the GDPR applies and the person storing the information is a data controller and has legal obligations. These include, having a legitimate reason for storing them, storing them only for as long as necessary for that reason, notifying the individuals that the data is being stored and why, deleting it upon a users request etc. | No, it's not legal. The General Data Protection Regulations (GDPR) apply given that you are in the UK (regardless of where the Data Processor is based). The UK GDPR is slightly modified due to Brexit, but the same principles apply. The only plausible legal basis for this actions would be that you consent to it, and you're entitled to withdraw that consent at any time. Some may claim that Article 6.1(b) applies, i.e. that it's necessary to send marketing email in order to fulfil the contract, but GDPR is clear that bundling such consent into a contract for service simply to permit the data processor additional actions isn't allowed, as I'll demonstrate. UK GDPR requires that consent to use your personal information (in this case, your email address) for the stated purpose be freely given. Consent to use your information for direct marketing is not freely given if it's inseparable from the consent to use it for some other service, as per para 43: Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. And Article 7.4 backs this up with When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. The intent of Article 6.1(b) is that only the processing required for the service you have bought is allowed (e.g. if you supply your address for delivery of stuff you've bought, the data processor can use that address to send you the stuff, but is not allowed to add a contract term that allows them to send you unwanted stuff). Examples of emails that Article 6.1(b) would allow (in my assessment) include things such as notification of upcoming downtime, or a reminder that subscriptions are due, but not unsolicited advertisements for other products. There's a grey area that's open to interpretation, where adverts are piggybacked onto actual service messages. |
Can you sue someone for online harassment if you agreed to it? Say that you're on a toxic online forum and you know that the community is anonymous and that everyone bashes everyone, and you've agreed to the terms of use which state that the owner of the forum is not responsible for any emotional distress/slander you acquired during the bashing. Could the site's owner or the anonymous members be subject of your (possible) lawsuit ? | The site's owners would likely be immune from any civil action based on its users' conduct, under Section 230(c)(1) of the Communications Decency Act: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The users, though, could still face liability. Although it would be libel rather than slander (because it is published rather than spoken), any damaging falsehoods could be actionable. The emotional distress component would also be a possibility, but it would probably be a tougher case. The laws vary from jurisdiction to jurisdiction, but generally speaking an emotional-distress case requires really outrageous behavior and and very serious emotional damage. | No. Absent some collective bargaining agreement to the contrary, you have no recourse because you have not been legally wronged. You have no right to privacy in this regard. You have no right to be free of humiliation based upon truthful statements. If the email is truthful and you were indeed suspended, then the manager is entirely appropriate in sharing that information, and indeed has a need to do so. You would have no recourse in Tennessee, even if your manager gave a national television interview on your suspension and truthfully stated all reasons for the suspension and threw in statements of opinion disparaging you. Humiliation is only actionable if it amounts to "outrageous conduct" beyond mere truthful speech (e.g. throwing your clothes in the toilet or secretly putting some self-disparaging statement on the back of your uniform) and was calculated with a specific intent to cause you extraordinary emotional harm that was not necessary for some legitimate purpose. | Yes. Art 13 requires you to provide “the identity and the contact details of the controller”. You are the data controller. Your name and address are necessary to establish your identity. Using AdSense means you're offering an internet society service commercially. In that case, there's also probably some EU fair competition directive that was implemented in your countries national law and will provide equivalent requirements. For example, my country Germany has a far-reaching Impressumspflicht. Not sure if this is the most relevant EU law, but Art 22 of Directive 2006/123 requires that your country passed laws to ensure that you make available “the name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means”. I think you would be in scope of this directive since you're acting commercially. This legally mandated self-doxxing is unfortunate for private bloggers, but it's also essential for making it possible to enforce data subject rights: if you were to violate someone's privacy rights, how could they sue you if they don't know where to serve you with a lawsuit? However, all things are a balancing act. These requirements are not intended to limit freedom of expression. If you're just trying to communicate something to the public without jeopardizing your anonymity, then paradoxically social media services can be more attractive. | No. Causing someone "pain and suffering" is not against the law; it is merely one kind of damages that can be awarded when someone has done something that is against the law. You may, for instance, endure pain and suffering from a car accident or shooting, in which case you could collect damages for your pain and suffering after proving that the other party committed the torts of negligence or battery, which are illegal. But if you were enduring pain and suffering from the last episode of Lost, you could not collect damages for your pain and suffering because it is not against the law to write a crappy finale. So in your case, cannot sue for pain and suffering based simply on the existence of a secret audio recording. North Carolina allows secret audio recordings, and it does not make exceptions for audio recordings that hurt someone's feelings. But to go beyond your explicit question, there still remains the possibility that you could pursue a legal action. If the other party used that recording in a way that violated the law, that might give rise to a tort that would support an award of damages for pain and suffering. If they publicly distributed a recording of themselves having sex with someone, that might constitute the tort of public disclosure of private facts. If they edited the recording to make it sound like someone had said something that they had not and then gave it to someone else, that might be grounds for a libel action. | You would need a court order to force them to take it down. There is virtually no chance a court will order them to take it down, because it would be almost impossible to do so without violating the First Amendment. You would have to prove that forcing a publisher to stop saying that you teach at the university would advance some compelling governmental interest, and that there isn't a better way to advance that interest. It's not clear what you mean by "cyberstalking," but if you're talking about someone sending you harassing messages, then the court would probably conclude that the better option would be to punish the harasser, rather than limit the publisher's speech. You could try paying them off or sending a threatening legal demand, but I doubt either would go far. I suspect that the best course would be a persistent campaign to escalate up their chain of command to find a sympathetic person willing to help. Even that, though, I would expect to be tough, because I'm sure you wouldn't be the first person trying this. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | To the extent that Admin is running a business rather than a free relay server, Admin will have various legal concerns. As I understand the system as you describe it, a user uploads some content to a machine, operated by AMastodonAdmin, which then makes that content available to others. W.r.t. US law, the admin needs to be concerned with a number of things. Copyright violation is one: he may get sued for contributory infringement. The DMCA safe harbor provision reduce the risk, if complied with. Defamation is another potential issue (a publisher is liable for damages under defamation law, as well as the author). "Section 230" may provide protection, but there is a large body of case law mentioned in there that would heave to be taken into consideration – and two upcoming Supreme Court cases. (Basically, Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"). The administrator has a property right to include / exclude anyone they want to, on their machine, except that a contract between Admin and User might limit his right. A TOS is a contract, which typically says "You can use my machine in a specific way as long as you follow these rules". Requiring payment in exchange for access limits Admin's right to do whatever they want. For free-access systems, there is typically a clause saying "we can kick you off if we want", though also implying that they will only kick you off for a specific action ("violating community standards"). In order to legally receive content from User, you need permission from User to redistribute their intellectual property (therefore a TOS is virtually mandatory). This would include a warranty from User that they have the right to upload whatever they do upload, granting a correct license to Admin (read the Stack Exchange TOS), and while you are at it, you should say explicitly that if a user misbehaves, they can be banned. Silence is legally problematic, compared to explicit permission or prohibition, because then there may be a long legal wrangle over whether lack of prohibition is implicit permission. Admin technically should care about GDPR, though enforcement may make this a non-issue. A US company operating as Admin would have a real concern with GDPR, but a guy running a free basement server, having no ties to the EU, might ignore GDPR, the same way they might ignore some other nation's law against apostacy. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. |
Do web applications as hobby projects need to comply with the GDPR? I would like to know if you must comply with the General Data Protection Regulation, if you've made a web application that is not subject to any business or organisation. 2) This Regulation does not apply to the processing of personal data: in the course of an activity which falls outside the scope of Union law; by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU; by a natural person in the course of a purely personal or household activity; by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. From Article 2 of the GDPR (https://gdpr-info.eu) Does this mean I don't need to comply with the GDPR if I'm not an organisation? If I was an organisation, how simple it would be to comply with this law, to avoid civil liabilities? | As always, it depends. However, it is by no means certain that any public facing hobby project, such as a web app, is exempt from having to comply with the GDPR. Since the GDPR is only a few days old, we have of course no case law based upon the GDPR itself yet. However, when considering this, one should take the following two facts into consideration. 1. The "personal use exeption" in the GDPR is not new. The personal use exemption is unchanged from the article 3(2) of Directive 95/46/EC. (There as a lot of lobbying for removing "purely" from the sentence – but drafters wanted to keep it.) 2. Case-law under the previous regulation restricts the scope of the exception The ECJ has ruled on the scope of the personal use exception in two cases: C-101/01 C-212/13 In both these cases, the ECJ took an extremely restrictive view, and concluded that the personal use exemption did not apply to the processing done by these individuals. In C-101/01 it can be argued that the hobby project as a blogger was connected to the controllers professional activity (she was a catechist in a local church, and blogged about her work. including her colleagues). But in C-212/13, there no such connection to professional or commercial activity. Here, the controller operated a CCTV to protect his home, but set it up to also capture public space, and that was enough for the ECJ to decide that the personal use exception did not apply. Discussion Case-law based upon Directive 95/46/EC is in no way binding for a future court that need to rule based upon the GDPR. We need to wait for case-law decided under the GDPR to be able to have some degree of certainty about the scope of the "private use exception" under GDPR. However, given what we know about how the ECJ has ruled in these cases in the past, I think it is hazardous to think that just because what you are doing on the web is just a "hobby project" not connected to professional or commercial activity, you are exempt from complying with the GDPR. Conclusion IMHO, you may be exempt, or you may not be exempt. I think it really depends on your activity in your hobby project, and to what extent this project processes the personal data of other people than yourself. | First of all, although the GDPR is stated to apply to any site which processes the data of any person who is in the EU, it is not clear how a site not located in the EU, does not business in the EU, and does not primarily target EU residents as its audience can be required to comply with the GDPR. To the best of my knowledge, no such case has yet been brought, much less decided. There has also been some debate on whether an IP address constitutes Personal Data under the GDPR, and if it always does so, or only under particular conditions. The European Court of Justice (ECJ) held that (under the predecessor Directive 95/46/EC) that a dynamic IP address was personal data. But in that case the web site was run by the German Federal Government, which surely has wider scope for getting info from a German ISP than a small private US web activist does. There is not yet any case law that I know of on the applicability of the GDPR to IP addresses in any case at all similar to the one in the question. Joe would in my view be wise to at least learn that logs are being kept, and post a disclosure of this on the site. Whether Joe needs to do more than that is less than clear at this time. | GDPR seems quite clear that if you are recording calls, video and/or audio, you must get consent. Wrong. The GDPR requires that your have a legal basis for processing personal data. Consent is a legal basis but there are others. With respect to note taking, the GDPR only applies to “personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.” So, if they notes are not about an individual (and many B2B phone calls will not be) or are neither automated nor filed, the GDPR does not apply. If they are captured by the GDPR, you need to have a legal basis for the notes. Again, consent is one but it is not the only one. | See Art. 17(2) GDPR: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. So the controller must tell all other controllers (like google) to delete the data. The privacy policy must include the fact that data is made public. | This could be covered by point 1(c) of Article 6: Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... It might also fall under point 1(f): ... (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. It is difficult to know whether any particular processing of data falls under either of these points because of the lack of relevant court decisions. The latter is particularly slippery, since whether any interest is "legitimate" is at least partly subjective, and whether any interest of the data processor overrides the data subject's interests, rights, or freedoms, is even more so. I should also note that point 1(a) is the point that requires user consent, so the other points explicitly take the place of consent rather than being somehow required alongside consent: (a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject; | Is it GDPR compliant that I can't access the account that I created and the personal data that I shared because "I haven't completed their internal pre-qualification process"? Article 15 defines a “Right of access to the data subject” but it's difficult to see how this could be construed as a right to log into a specific website. Common sense suggests this would be a very bad idea. If they are willing to provide the data through another means (say a report or data dump of some sort), the obligation would seem to be met. In fact, article 15(3) even states that data controllers should merely provide the information in a “commonly used electronic form” (i.e. not necessarily through access to their systems or whatever form they are using internally for the processing). Have you asked for that and would you be satisfied by that resolution? Is it GDPR compliant that their answer to my deletion request is "We will delete the data..." The text of article 17 (right to erasure) explicitly specifies that such a request must be honored without “undue delay”. Article 12, which defines some of the modalities for the rights to access, rectification or erasure by the data subject, also provides that controllers shall “provide information on action taken on a request […] without undue delay and in any event within one month of receipt of the request”. You haven't provided any time frame and I don't think there is anything wrong with acknowledging the request by promising they “will” do it but in light of article 12, it seems you would indeed be entitled to know once they have actually taken further action. However, you implied you might want to access the data first and it's not clear to me whether you explicitly invoked the GDPR in earlier communications. So I would clarify and reiterate my request (access or erasure) and ask them for explicit confirmation once it has been satisfied. | IANAL. (1) GDPR is certainly relevant. (2) This is certainly "personal data" under the definition in GDPR article 4. (3) Maintaining this data is probably lawful under article 6 sections 1(a) (consent) - provided that the Terms and Conditions of the site make clear that the user by signing up is consenting to this information being held (3) There is certainly an obligation under article 14 to disclose that the information exists, and to say how it used. (4) Article 15 says that data subjects are entitled to see the information and know what recipients or categories of recipient have access to the information (I don't know whether it's enough to just say "moderators", or whether the moderators need to be identified). (5) I can't see any reasons why the obligations under articles 16, 17, and 18 regarding rectification, erasure, and restriction of processing aren't relevant. This is exactly the kind of situation that GDPR is designed to address. If you're restricting the service available to particular users based on a record of their behaviour or on judgements made by moderators, then they absolutely have a right to know, and a right of redress. | Technically, yes, GDPR might apply. Filming other people does involve the processing of personal data, and GDPR will apply unless this is for “purely personal or household purposes”. But exactly that will be the case for most holiday snapshots or short clips for your personal social media. As far as I understand, you do not have to worry about purely personal activities. Even if GDPR would apply, this doesn't mean it would be illegal. It means you'd need a “legal basis”, such as a “legitimate interest”. If there are just a couple of people in the background of a video, it's possible that their rights might weigh less important than your interest in shooting the video – but that would need a case by case analysis. Your legitimate interest would almost certainly prevail if you need to record a crime to which you are victim. Regardless of GDPR concerns, note that this is just a small aspect of legal concerns. Instead, also consider personality rights copyright (if art or architectural works are visible) / freedom of panorama customs and reasonable expectations of other people These issues will depend largely on the specific country or area you are travelling to. Europe is not homogenous in its perception of privacy issues. For example, consider the issue of dashcams in a car. These are considered to be quite normal in some European countries, but effectively illegal in others. |
What is meant by a litigant insuring a judge's life? 'Lord Scarman' The Telegraph (10 Dec 2004). Scarman was assigned to the Probate, Divorce and Admiralty Division (moving to the Family Division when it was abolished) and presided over the longest probate case ever heard: his judgment ran to 24,000 words and his life was insured for £300,000 by one of the parties involved. During the case, he commented sagely: "Darkness and suspicion are common features of will cases. Truth too often is the secret of the dead or the dishonest." | It means exactly what it says: one of the parties (call them A) to the case purchased a life insurance policy that would pay £300,000 (presumably to A) if the judge were to die. Why they did this, we can only guess. But if the case was extremely long, there may have been a greater chance that the judge would die before it ended, and this would presumably delay the proceedings even further, causing more trouble and expense to the parties. It may be that A wanted to be protected financially if this happened. Another possibility is that A felt that Scarman was favoring A's side of the case; if Scarman were to die and be replaced by another judge, it might reduce A's chances of winning, and so A wanted insurance against that. | Because HRA1998 says so, but it's not an absolute limit and is subject to discretion by the court: (1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b)rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act. (5)Proceedings under subsection (1)(a) must be brought before the end of— (a)the period of one year beginning with the date on which the act complained of took place; or (b)such longer period as the court or tribunal considers equitable having regard to all the circumstances,but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. | Yes Of course, the period is not actually "indefinite" - it has a definite end: the date of your death. It also has another (unstated) endpoint: the point at which the information ceases to be confidential other than through your breach: for example if published in a patent application. The correct legal term here is not "indefinite"; its "forever" or "perpetually". I prefer forever because perpetually technically means "all the time" rather than "neverending". However, documents commonly use “indefinite” when they mean “forever” so there is unlikely to be grounds to dispute the interpretation. Under US law there is no prohibition on perpetuities as there is in most common law jurisdictions (80 years is typical) so this contract is totally legit. As for the law preventing "morally bankrupt practices and intellectual enslavement"; it does: you don't have to enter this contract if you don't want to. | united-states Overview The big picture to keep in mind is that in the United States the applicable deadline for filing a lawsuit is very specific to the legal theory upon which relief is sought from a court, and that there are numerous special rules (which can vary from claim to claim and based upon the individual facts of the case) that can modify these general rules. Exceptions to the general rules are common enough that it is not safe to rely upon them. There is a lot of case law on these issues because dismissals of cases because a statute of limitations has run are usually all or nothing issues in a lawsuit, don't depend on too much evidence, and are often relatively straightforward and inexpensive to appeal relative to other kinds of legal issues. Also, lawyers whose cases are dismissed for failing to meet a statute of limitations often have a strong incentive to encourage their clients to appeal, because they may face malpractice liability if the dismissal of their client's claims is upheld. While the question is specifically directed at how statutes of limitations apply to continuing violations, it isn't possible to really clearly answer that question outside of the larger context of how statutes of limitations in the United States work in general, and without considering other legal doctrines that can have similar effects to rules based upon continuing violations under different legal theories. Also, keep in mind that when you hire a lawyer to bring a lawsuit, the lawyer needs lead time to prepare the documents starting the lawsuit. The best practice is to contact a lawyer as soon as possible because this may allow claims with shorter statutes of limitations that you had not even considered to be brought. It is usually very imposing on the lawyer to bring a new lawsuit to them less than a month before the deadline for bringing suit. Sometimes it is possible to get the job done a week or even a few days before the deadline, but this invites mistakes that could impair later phases of the lawsuit, limits the time available for factual investigation and legal research before bringing the lawsuit, drives up the cost of preparing the documents because work that would otherwise be done by staff or junior lawyers may have to be done by senior lawyers, and exposes you to the risk that you won't be able to find a lawyer who is actually willing to take on your case on acceptable financial terms right away. Statutes of Limitations In Ohio In Ohio, for non-criminal cases, some of the most common statutes of limitations are as follows (citations to the relevant statutes are found in the linked material): 21 years to recover real estate; 8 years to sue on written contracts; six years to sue on oral contracts; two years for actions for personal injuries or property damage; and one year for libel, slander, malicious prosecution, false imprisonment, and professional malpractice. Most other types of lawsuits are subject to a four-year limitation. See also here (providing more specific examples including four year statutes of limitations for claims for trespass and fraud). Different and usually must shorter statutes of limitations apply to reopening court judgments in cases due to irregularities in the proceedings, and to appeal court judgments. If a statute of limitations runs without a lawsuit being filed, the right to seek legal redress for the wrong committed expires. With very narrow exceptions, usually invited or assented to by the party sued in some way, once a statute of limitations has expired the claim that is barred can never be revived. A nice medium length summary of the various doctrines applicable to statutes of limitations (mostly discussed below) in the state of Minnesota, which is fairly typical of U.S. states) can be found here. Statutes Of Limitations For Federal Law Claims These limitations apply to claims under state law. Claims under federal law sometimes have their own statutes of limitations (e.g. federal copyright and patent infringement lawsuits), and sometimes are governed by the analogous statute of limitations under state law. For example, the statute of limitations for lawsuits under the federal Lanham Act is based upon the most analogous state law statute of limitations. In those circumstances it is usually necessary to look a case law in the state and federal courts in that state to determine the correct statute of limitations for that kind of claim. When Does A Claim Accrue? The date that one starts to calculate from for a statute of limitations is sometimes the date when the wrong is done (also known as a statute of repose), and sometimes when it is known or should have been known by the person bringing the lawsuit. The date when you start counting to determine the statute of limitations deadline is the called the date that 'the claim accrues" or that the "claim arises." Usually a claim accrues when the person bringing the lawsuit knew that a particular person breached a legal duty to them and that this breach of a legal duty to them caused them injuries, even if the amount of the injuries caused is uncertain. But for some kinds of lawsuits, knowledge that a person breached a legal duty to them alone is enough even if it wasn't clear at the time that the person to whom the duty was owed would suffer legal injuries. What Must One Do Before The Statute Of Limitations Runs? In most U.S. states (including Ohio pursuant to Ohio Rule of Civl Procedure 3) and in the federal system pursuant to Federal Rule of Civil Procedure 3, a statute of limitations is met by filing a lawsuit with a court by the deadline, so long as a defendant has a summons and complaint delivered to the defendant within the time allowed by court rules after the lawsuit is commenced. But, in other U.S. states, such as Minnesota, the statute of limitations applicable to a defendant can only be met by delivering the summons and complaint in a lawsuit to a defendant, whether or not the lawsuit has been filed with the clerk of the relevant court. When a summons and complaint has been delivered to a defendant but the case has not yet been filed with the clerk of the court in which the lawsuit states that it is brought, that court has what is called "hip-pocket" jurisdiction over the lawsuit. Tolling and Estoppel Certain circumstances (such as a victim who is a minor, or the death of the victim before the statute of limitations has expired) can toll the statute of limitations (i.e. stop it from running) while that situation continues or for a certain maximum length of time. Some statutes of limitations can be lengthened with an agreement of the parties in what is called a "tolling agreement". Another concept similar to tolling is that someone who is sued may be prohibited from asserting a statute of limitations defense under a doctrine called "estoppel" if the failure of the person to bring the lawsuit within the statute of limitations is caused by the misconduct of the person seeking to assert the statute of limitations defense. Both tolling and estoppel are exceptions to the general rule that are frequently interpreted strictly against people bringing a lawsuit, however. One should never assume that these doctrines apply and rely upon them making a lawsuit timely, unless one has no other choice but to do so. Continuing Violations Sometimes in the case of a "continuing violation" the statute runs from the last time that the continuing violation was committed. But, it is not safe to assume based upon logic alone whether a violation is a continuing violation or not. Sometimes the statute of limitations runs from the initial violation, even if it continues. Sometimes a lawsuit can seek remedies from the first time the violation occurred until the present based upon a continuing violation if a lawsuit is commenced within the statute of limitations after the violation ceases. Sometimes a lawsuit can be brought based upon a continuing violation until the requisite number of years after the violation ceases, but the remedy is limited to harms caused by conduct that was within the statute of limitations or to injuries that occurred within the statute of limitations. There is really no way to know which of these rules applies to a particular kind of claim without examining the case law for each particular type of claim. A related concept is that in lawsuits to collect a debt for money owed, the statute of limitations is typically reset every time a payment is made or there is a written affirmation from the debtor that a debt is owed. Other Exceptions To The General Rules Previously Time Barred Claims Sometimes a statute of limitations is amended to make it longer. When this happens, claims that were already barred by the statute of limitations are generally not reinstated. But claims that are not already barred by the statute of limitations on the effective date of the new law usually, but not always, benefit from the new statute of limitations. Borrowed Statutes Of Limitations Sometimes someone can bring a lawsuit in a court where, for example, the defendant resides, even though the wrong occurred in another jurisdiction that has different statutes of limitations. The way that this situation is handled varies. The most common rule is for the state where the lawsuit is filed to apply its own statute of limitations unless the lawsuit would have been barred by the statute of limitations in the place where the wrong occurred. But not all states follow this rule in all cases. Special Rules For Counterclaims Some states allow counterclaims that would otherwise be barred by a statute of limitations to be brought when they relate to what someone is being sued over, even when otherwise, the statute of limitations for the counterclaims would have expired. For example, suppose that someone sues Joe for breaching a promissory note in Colorado (which has a counterclaim exception), five years after the contract was allegedly breached (in a state where the statute of limitations is six year); Joe may be able to counterclaim against the person suing him for fraud in the same transaction in which the promissory note was created even though the three year statute of limitations for bringing a fraud claim in Colorado would have otherwise expired. Dismissals Without Prejudice For Suing In The Wrong Court Some states allow you to bring a lawsuit that is otherwise barred by the statute of limitations, if a lawsuit is filed within the statute of limitations in a court that then dismisses the claim for a reason unrelated to the merits of that claim (usually lack of subject-matter jurisdiction), and the person bringing the lawsuit promptly refiles it in the proper court. The Relation Back Doctrine Sometimes after a lawsuit is filed against a defendant the complaint in the lawsuit is amended to assert new claims against the existing defendants, or to assert claims against a new defendant, after the statute of limitations for filing the new claims against the existing defendants, or the existing or new claims against a new defendant has expired, even though the original lawsuit was filed within the statute of limitations applicable to those claims. In those cases, the claims in the amended complaint will be treated for statute of limitations purposes as filed when the lawsuit was originally filed, if the "relation back" doctrine is satisfied. This is governed by Ohio Rule of Civil Procedure 15 and Federal Rule of Civil Procedure 15 respectively in state and federal court. In cases where new claims are asserted against an existing defendant, the relation back doctrine applies roughly speaking when the new claim arises from the same transactions and events that the lawsuit was originally based upon, even if it attaches significant to different facts or different legal theories. In cases where a new party is sued, the claims roughly speaking relate back when the new party had notice of the lawsuit within the statute of limitations and the new party knew or should have know that the new party was not sued originally only due to a mistake regarding who the proper person to sue in the case was (e.g. because related corporate entities had similar names and the wrong corporation in the group of affiliated companies was sued). Failure To Assert The Defense Statutes of limitations, and most other grounds for dismissing claims as untimely, are affirmative defenses, not something that must be established on the face of the complaint initiating a lawsuit. So, if the defendant fails to raise a statute of limitations defense in a case, even if it is actually available under the true facts of the situation, then the lawsuit will not be dismissed for failure to sue within the statute of limitations. Other Rules That Can Bar A Claim Filed Too Late Contractual modification of the statute of limitations Sometimes a statute of limitations can be shortened by a contractual agreement of the parties, most often for breaches of the contract shorting the deadline for bringing claims arising from its breach. If this shortening of the statute of limitations isn't unreasonable and is obtained with fair disclosure, and no public policy is violated by the modification, it will often be upheld by a court. For example, a contract might require a party to raise a dispute concerning an item contained in a statement or invoice presented to the party asked to pay it within a certain reasonable time period, even if the relationship between the parties is ongoing and the statute of limitations would otherwise run from the last date upon which the parties reached a final settlement between them of their dealing with each other. Probate and Bankruptcy Cases There is also generally speaking a strict time limitation in addition to a statute of limitations on enforcing claims against people who have died (sometimes called a "non-claims statute") and against people who have filed for bankruptcy. Sometimes, however, a deadline involving a non-claims statute that is triggered by giving notice to the person to be barred by it can be waived in cases where the person with the claim had no actual notice of the deadline. Lawsuits Against The Government There are also often special additional time limits that apply to lawsuits against government entities and governmental employees acting in their official capacities, especially for torts as opposed to breaches of contract. These are often much shorter than the usual statute of limitations. Laches Sometimes claims have no statute of limitations at all, but those are the exception and are quite rare. But even when there isn't a fixed deadline for filing a lawsuit, a legal doctrine called laches bars lawsuits when they are filed an unreasonably long time after they arise in a manner that is prejudicial to the person sued. Sometimes the doctrine of laches can even bar a claim in a lawsuit, or certain kinds of relief in connection with a claim in a lawsuit, even if the claim is brought within the applicable statute of limitations. In these situations, this doctrine is similar to the doctrine of estoppel preventing someone from asserting a statute of limitations. For example, if someone knows that the records necessary to defend against a lawsuit are about to be destroyed even though the statute of limitations will not run for another few years, the lawsuit could be dismissed under the doctrine of laches if the person bringing the lawsuit knew that and deliberately waited until after the documents were destroyed to bring the lawsuit. Mootness A claim can also be barred because it has become "moot" which is to say that due to the circumstances that have occurred since a legal wrong was committed, it is no longer possible for a court to provide relief the relief that the person bringing the lawsuit is seeking. For example, in a lawsuit seeking possession of an apartment and no other relief, the lawsuit becomes moot if the person in the apartment leaves the apartment and surrenders possession to the person seeking it, or if the building burns down. | The only thing which has a name and sounds somewhat like what you're talking about is "jury nullification". This generally refers to the situation where a jury deliberately sets aside the judges instructions about the law and supplies their own interpretation. For example, Peter Zenger was technically guilty of seditious libel because as a matter of law the material was sedition libel and the only legal question was whether he had published it. The jury found him not guilty, on the grounds that the statements were true, but truth was not an element of the crime. It is the general pattern in the US that the judge is the only person empowered to say to the jury what the law is. By selecting specific instructions (phrased as "If you conclude X, you must find the defendant guilt", that is, stating the "finding-to-verdict" equation), the jury is given a formula for figuring out what the law says. Trial judges are not the ones who decide what the "framers" of the law intended, that comes from higher appeals courts who may study the legislative history. It can happen that a law uses an unclear phrase like "irreconcilable differences" and the jury doesn't know exactly what that means: then the judge may tell them to decide on their own, or give them a dictionary (however, there probably is an instruction for divorce law, and it's unlikely that a jury would be involved in a simple marital dissolution). It is entirely possible that jurors will end up misinterpreting what the law says in some instance, but I doubt that it happens very often. It is more likely that jurors will deviate somewhat, compared to judges in a bench trial, in matters of judgment such as whether an action is "reasonable". | That depends what the issue is. On constitutional issues, and on issues of federal law (which do come up in state cases) , they are binding precedent, at least in that circuit for an appeals court opinion, and in the whole US for a Supreme court opinion. District court opinions are not generally binding unless upheld on appeal. On matters of state law, the state's own highest court is the final word, but a federal opinion could be at least as persuasive as one from a different state. to the best of my understanding one does not use the term "estoppel" to describe the effect of a previous judgement by a different court. If it is in the same case and not on appeal, the term is Res judicata ("A thing (already) judged"). If it is a general matter of adhering to clear precedent, the term Stare decisis (“to stand by things decided.” ) would be used. | To what cases is the judge referring to here? None: neither the quoted article (2023-06-02 05:57: Prozess gegen Lina E.: Stadt Leipzig verbietet Solidaritäts-Demonstration) given in the english version of Wikipedia nor the german Wikipedia version (Dresdner Linksextremismusprozess – Wikipedia uses the quote given in the english version. In the article itself, the name 'Hans Schlueter-Staats' is used only once: The arrest warrant against them will be suspended against conditions, said Hans Schlueter-Staats, presiding judge of the State Protection Chamber at the Dresden Higher Regional Court, on Wednesday evening at the end of the verdict. She only has to serve the remainder of the sentence if the verdict becomes final. Assume that, for whatever reason, someone added a fabricated quote, in the Wikipedia page, that is not contained in the given source hoping that nobody would notice (either because the reader can't read German or simply wouldn't look). It would be very strange for a judge whos primary duty, in a civil law system, is to read the law as written, to give a personal opinion about previous rulings (which was the reason I looked: to read the exact German text). Whoever fabricated that quote was obviously unaware of this or didn't care hoping that others would simply assume it to be correct due the given source of a newspaper that has a reputation as being a reliable source. | It is quite normal for a person to name themselves the beneficiary of an investment- even a life insurance policy. If such a person were to die, the funds would be payable to the estate, which means the executor for distribution to the beneficiaries of the will. It is normal for organisations to hold such investments to await probate which is when the executor legally becomes the executor. The executor’s costs, including legal fees (as well as payment for their time - good wills provide a capped fee for this), are payable by the estate. The fee you have been quoted does seem high for an uncontested probate - shop around. |
Does there really exist such thing as "no contract" when doing business with other party? Sales persons are sometimes advertising their service as "contract free", so that they would get a better chance to convince you to sign up for their service. I guess the reason why this works is because to average person "contract free" typically means that you don't have to read fine print on a written contract that most of the time works against you. However, isn't this misleading advertising to claim that there is "no contract", because there always will be a contract - either verbal or written on a paper under different title (e.g. Application Form, "Unicorn tears")? Based on answer I received here, the person claimed that it does not matter what is the title of the document - so document with title "Application Form" could incorporate another document via reference that specifies terms. Effectively you actually end up having a contract, but the only difference is that you did not explicitly sign the referenced document and did not have a chance to read it; and this works against you. Or another person confirmed here that there does not have to be any paper signed at all for judge to think that there was a contract in the first place. Also, another person told here that the terms don't need to explicitly be mentioned in the first place, if price (and possibly late fees) were omitted from contract, then judge will figure out what is fair. What would judge do if you were able to prove that other party claimed that their service is "contract free"? If sales person was honest would he have to explain to the other party that "contract free" actually means: You know our service is only "written contract fee" and not "contract free". However, this is the exact reason why you would have to be really dumb to enter into business with us orally or just via Application Form, because now instead of just dealing with the fine print issue that you would have had with written contract, now you will also have to deal with incorporation by reference issue where we can incorporate terms and conditions from Application Form into our website or somewhere else; also, now instead of knowing what are the exact fees (e.g. ETF, late fees) that we would charge from you we will simply charge whatever we think is "fair amount". If you disagree with the amount of fees we charge, then no worries judge will decide what is fair for you. However, remember, just because that we did not disclose such fees in contract it does not mean that we can't charge them from you. Does monologue from "honest" sales guy above really explains how our legal system works, if there is "no contract"? Note that this question is only asked from legal point of view and not from building good relationship point of view. I will wait for multiple answers before accepting the right one. I will give preference to that answer that will be backed up with precedent case where judge discusses meaning of "no contract". | Let's say I buy a phone. Typically you can buy a phone with something that is advertised as "no contract" or for example "with a 24 month contract". In reality, "no contract" means "we have a contract where you hand over the cash, and the phone company hands over the phone, and there are various guarantees that are either implied or explicit, but there are no terms in the contract that force you to hand over money to the phone company beyond payment for the phone in the future if you don't want to". So there is a contract, but the contract is such that you as the customer have no obligations towards the seller once you have paid for the goods. "No contract" would happen for gifts, or as an example if you download open source software in the USA for free. There will be a difference between a "no contract" contract between business and consumer or between two businesses. Most countries have consumer protection laws so if a deal is advertised as "no contract" and the business demands further payments, they will likely lose. Between two businesses, each side is fully responsible to study the actual contract terms. | Yes, that would, or at least could, be a legal contract. The key thing that makes a contract between two parties is the agreement, the intention to enter into a binding contract. The written words are only evidence of their agreement, and the specifics of what is agreed to. An oral (spoken) contract can be valid and binding (although in some cases the law requires a written contract). Electronic contracts do not need to be done through a site such as docusign, although there are advantages to using such a process. A typed signature will be legally binding if it is intended to represent agreement to the contract. The US federal e-sign law says that no specific technology is required to make a valid electronic signature. See What gives e-signatures legal standing/force in the United States? and https://law.stackexchange.com/a/79670/17500 for more details. That the contract words are copied will also not impair the validity of a contract. Many bushiness use form contracts. Many lawyers create new contracts by putting together parts of old contracts that served their purpose. The person sending the offer and proposed contract must make sure that the other party understands that this is to be a binding contract, and agrees to the use of an electronic signature, and agrees to the contract as a whole. It would be a good idea if a bit more detail were included than in your example. Must the agency find people acceptable to the client? Haw soon must it find them? How much must the client pay? How soon must it pay? A good contract will specify such details. | Bill and Jane are free to enter into a contract where, among other things, each provides valuable consideration; in this case Bill provides valuable lawn mowing services and Jane provides valuable money. In week No 1 they have negotiated the terms and the contract is complete when Bill mows the lawn and Jane pays the money. If Bill turns up next week without Jane's instruction then there is no contract and Jane does not have to pay anything; I don't think this is what you are asking but I include it for completeness. If it is understood that this arrangement continue week after week then either there is an ongoing contract or, more likely, a series of independent contracts. If there is an ongoing contract, then it can be renegotiated but it cannot be changed unilaterally by Bill. That is, he cannot unilaterally increase the price to $2. If there is a series of contracts then the terms of each of those contracts will be the same based on the course of dealing. Basically, the parties have accepted over a long period of time that the rate for a mow is $1 and Bill would have to get Jane to accept the revised rate before he mows the lawn. For your example, Jane owes Bill $1 but if she wants him back next week she will have to agree to Bill's rate. | The parties to the contract have not changed; they are still the purchaser company and the scrap vendor. The obligations have not changed; they are presumably based on amounts of stock and monetary value. The only changes are in the name of one party and its ownership, so unless the contract permits termination for those reasons (not unheard of, if a contract has been intended to provide/avert support from/by a particular party or symbolism) the contract still stands with all its terms. A novation is not needed. | Having done a bit of brief research, I find that "legit" is a synonym for "good". So, no. The header announcing a "principal amount" serves no purpose and could be misinterpreted as indicating that there is a loan. There is no reason to indicate the date twice, which gives rise to two different values of "date". The phrase "For value received" can be interpreted in at least two ways, one being "in exchange for some unspecified value to be received at some future date by Promisor", and "in exchange for a specific value already received by Promisor". Under the later interpretation, Promis(s)ee probably could not breach but under the former, Promis(s)ee could. So it makes a difference. You can just pay to the Promis(s)ee, and not imply that you are creating a pay-to-order instrument such as a check. That still leaves you the option to pay with a check. Or was the intent to say "pay on demand"? The expression "the sum of £500 shall the Promisor fail to meet his target" is not grammatical in US English, and I'll leave it to a UK speaker to judge if this is, over there. I assume that this is supposed to express conditionality, in which case "if" is a useful term. Then the meat of the contract, I guess, is that if the Promisor fails to meet somebody's target of 47.5 work hours per week, then Promisor has to pay Promissee £500 (and not otherwise). It's really not clear how anyone would know whether "meet a target of 47.5 work hours per week" has come to pass. Does that mean "work at least 47.5 hours per week"? Does that mean "for each of the three weeks within the time period" (or did you mean "work 47.5 hours within some one week, within the 3 week period"). Being explicit that the work obligation extends for 3 weeks would be legit (vide supra). Supposing that the second clause means "Promisor will pay £500 by 5:00pm 2 July 2016", you should put it that way. Or if you mean "Promisor will pay £500 by 5:00pm 3 July 2016", say that. Deadlines for performance should be stated very directly and clearly, and require no calculation and interpretation. And I'd suggest including a clause stating that "Promissor" and "Promisor" are used interchangeably in this contract. Or else be consistent in spelling. Note that almost any contract can be given some interpretation. From the perspective of creating a contract, the first concern should be over clearly expressing the intentions of the two parties in written form. After all, you don't have a contract if there is no meeting of the minds. | No. An engagement letter is a written confirmation that you have hired a lawyer which also sets forth the contractual obligations of the parties (i.e. the basis upon which attorneys' fees will be charged in the case). Instead of serving as an "estimate" or "approximate quote" of the fees to be charged, it is evidence that there is an attorney-client relationship and it sets forth the contractual terms of that relationship. Unless the engagement letter is for a fixed fee (which is uncommon but not unheard of), it only sets forth a method for determining what legal fees are owed and does not predict in advance what those fees will be. An engagement letter often does set forth a "retainer" amount that must be paid when the lawyer is hired, but a "retainer" is more akin to a security deposit on a lease than an estimate of what the total charges for the representation will be. Lawyers are required as a matter of professional ethics to put these things in writing. Of course, it wouldn't be improper for an engagement letter to include an estimate of the fees that will be charged in a representation as well as the other matters described above. But, that would be rather unusual. Firstly, since these people didn't even type my mobile number correctly, I'm uneasy about them drafting a legal agreement for me, where I wanted each and every clause to be thoroughly checked. I'm not confident of them being thorough. This certainly doesn't make a great first impression, although it reflects more on the quality of the office staff than on the legal acumen of the lawyers. I wouldn't blow a simple typo in writing a phone number out of proportion. How do I tell them that I do not need their services? Advise them by telephone, or better yet by letter, email or text, that you have decided not to retain their services. Does their sending of an engagement letter mean that I pay them for their time of drafting the letter? The firm probably could charge you, but it is customary not to charge for drafting an engagement letter. I wasn't expecting an engagement letter. I was expecting something like an ordinary email which said something like "this is our approximate hourly fee". Lawyers, as you might expect from their line of work, need to be more formal as a result of their legal ethics requirements, so this is very normal. The engagement letter constitutes a contract between the parties if the engagement is commenced. An informal communication, followed by a formal one, could lead to confusion over which one applies and could lead to mistakes where someone given an informal communication never received the required formal engagement letter. their hourly fees (which does not look reasonable to me) Lawyers are expensive, and good lawyers are worth it. The supply and demand issues are particularly intense in India because there are fewer lawyers there capita than in many other countries. | Variations of contracts must be consented to by all parties. This means that if the company sent your friend varied terms, it would have included means by which she would have consented - this may be by continuing to use a service. You cannot unilaterally change the terms of a contract. You could try to charge the company PoS terminal storage fees, but it's highly unlikely to be enforceable if they don't agree to it. In theory if they are aware of the change and they accept them in some way then they are bound to the terms just as she would be, even if they later claimed that they were not aware of them. There is some precedent - in Russia - for this with a bank and it made the news some time ago. There's plenty of cases in which people who don't read EULAs or loan contracts thoroughly are still forced to honour their obligations to their creditors under them. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. |
If police get a search warrant, does it have any limitations? Must the person turn over all passwords? I'm not sure how to phrase this question and I guess it depends on circumstances. Say the police suspect you of building a bomb and a judge issues a warrant. To what extent can they search you and your belongings? Can they search your entire computer? If they find encrypted files can they detain you until you decrypt them? If they find a password safe can they force you to give them a password and then can they log into all accounts you have stored in it? If you don't give them the password but they find it written down somewhere, can they still use it? Out of curiosity, do police ever actually do this? Find a password protected file on a computer and go through all the papers in the desk and try all possible passwords until they find one? | In the United States . . . Scope of Search Warrant: To what extent can they search you and your belongings? The scope of a search is limited by what is stated in the warrant. Not only must a warrant be supported by probably cause, it must also describe with particularity, "the place to be searched, and the persons or things to be seized." See U.S. Const. Amend. 4. For example, they cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, that doesn't mean that officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can often seize it. When it comes to containers, the police are allowed to search anything that items could be inside. So, if they're looking for stolen TV's, they can't search a jewelry box or under the floor boards. However if they looking for something small, like bomb parts, just about everything is fair game. To search you, the warrant would need to authorize the search of your person, or the police would need an independent justification to search you. For example, if they found explosives that were illegal to posses, they could conduct a search incident to arrest. Can they search your entire computer? Yes, assuming computers are within the scope of the warrant. Compelling people to produce passwords of encryption keys: If they find encrypted files can they detain you until you decrypt them? This depends on your jurisdiction as it is a developing area of law and deal with 5th amendment. This is something that would not be done through a search warrant and would involve a separate proceeding. In this situation, constitutional privilege against self-incrimination under the Fifth Amendment, U.S. Const. Amend. V, may be implicated. Case where Court held producing passwords violated the 5th Amendment: The government's postindictment grand jury subpoena ordering the defendant to provide all passwords associated with his computer in order to secure evidence of child pornography allegedly contained in the computer, which spawned the three counts contained in the indictment, required the defendant to make a "testimonial communication," and thus the subpoena violated the defendant's Fifth Amendment privilege against compelled self-incrimination, where the government was not seeking documents or objects but instead was requiring the defendant to divulge through his mental processes his password that would be used to incriminate him, the district court in U.S. v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010), held. The court explained, an act is "testimonial," and thus protected by the Fifth Amendment privilege against self-incrimination when the accused is forced to reveal his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the government. It is the extortion of information from the accused, the attempt to force him to disclose the contents of his own mind, that implicates the Fifth Amendment's Self-Incrimination Clause, the court said. Case where Court held producing passwords did not violate the 5th Amendment: The district court in U.S. v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012), recognizing that production of a document may fall within the Fifth Amendment's privilege against self-incrimination since it acknowledges that the document exists, that it is in the possession or control of the producer, and that it is authentic, held that the defendant's Fifth Amendment privilege against self-incrimination was not implicated by requiring her to produce the unencrypted contents of a computer where the government knew of the existence and location of the computer's files; a preponderance of the evidence established either that the computer belonged to the defendant or that she was its sole or primary user, such that she had the ability to access its encrypted contents; and the government had offered her immunity, precluding it from using her act of producing those unencrypted contents against her. The court determined, also, that a preponderance of the evidence, in a motion to compel production of the unencrypted contents of the computer, found during a search of the defendant's residence, showed that either the computer belonged to her or that she was its sole or primary user, such that she could access its encrypted contents, supporting the decision to compel her to produce those unencrypted contents, where the defendant acknowledged, during a telephone conversation with her ex-husband, that she owned or had such a computer, the contents of which were accessible only by entry of a password, and the computer, which was found in her bedroom, was identified with her name. This issues probably will not be decided one way or the other until the supreme court rules on it. If they find a password safe can they force you to give them a password and >then can they log into all accounts you have stored in it? When you say password safe, I am assuming you mean password management software. If so, see above. If you don't give them the password but they find it written down somewhere, can they still use it? Yes, assuming their warrant allows them to search papers or it is in plain view. Out of curiosity, do police ever actually do this? Find a password protected file on a computer and go through all the papers in the desk and try all possible passwords until they find one? I'm not sure, but it wouldn't surprise me. Even if they don't have a warrant that covers papers, police have been known to bend the rules. I think someone with police experience could have a better answer for this. | Under Georgia v. Randolph, 547 U.S. 103 (2006) in such a case the police may not lawfully enter without a warrant, and if they do enter, any evidence found will not be admissible. The court in Georgia v. Randolph said: [N]othing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. However, the police may talk to either or both occupants at the door, and this may provide sufficient reason to obtain a warrant. If police determine that someone in the residence is in danger, they can enter on that basis, and anything in plain view may be treated as evidence. Further consider Fernandez v. California, 571 U.S. ___ (2014) In that case one occupant of an apartment denied consent for police to enter. But the police had probable cause to arrest him, and did so. An hour later police returned and got consent from the other occupant, who may also have been a victim of domestic assault by the first occupant. The consent search was upheld, as the objector was no longer present (being then detained) when the police asked to search. So the holding about divided consent applies ONLY if the objector is physically present. If only one occupant is present, that occupant may consent to a search, even if the police know very well that the other lawful occupant would have objected. Interestingly, in Fernandez it appears that police had ample probable cause and could easily have secured a warrant, but chose to proceed on the basis of consent instead. | From the German lawyer association ("Deutscher Anwaltverein") one can find the following (Google-translation): In the case of a purely preventive identity check, the officers are initially only allowed to determine the identity of the respondent. This means that you can ask for your name, date and place of birth, home address and nationality and have your ID shown - by the way, as a German citizen you don't have to always have your ID with you. "You don't have to answer any questions beyond that," says lawyer Robert Hotstegs from the German Lawyers' Association (DAV). Of course, police officers often try to gather more information with emphatically casual questions. "Well, where do we come from" or: "And where are we going now?" Are typical examples. The police are not allowed to insist on an answer. Anyone who, as a respondent, is voluntarily too willing to provide information can harm themselves and possibly even give rise to concrete suspicions. So they are allowed to ask such things, but you don't need to answer everything. How to handle such situations, again according to the link above: “I recommend answering the survey as briefly and politely as possible. This has a de-escalating effect and helps to end the unpleasant situation as quickly as possible, ”says Attorney Hotstegs. However, you should always answer the questions about yourself. Because if the police cannot determine the identity of a person or only with great effort, they may take further measures to determine the identity. This includes taking it to the police station and, under certain circumstances, a search. Otherwise, these measures are not permitted without a specific reason. | The police performed an "open air sniff". Federal and Pennsylvania law differ on this. Under Federal law, this is not considered a search and can be done on any vehicle- usually to get cause for a more invasive search. (Illinois v. Caballes, 543 U. S. 405 (2005).) Under Pennsylvania law, an open air sniff requires reasonable suspicion. This is lower than probable cause- all it requires is that a reasonable person could suspect from the facts that a crime may have or could be committed. Being overly nervous during a routine traffic stop driving someone else's car could potentially be considered reasonable suspicion- as I only have your second-hand account, I won't speculate further. If there was no reasonable suspicion, any evidence found by that search, or evidence found by a search justified by it would be suppressed. Fourth Ammendment rights also apply here. The police cannot detain someone solely for the purpose of waiting for a sniffer dog. They have ways and techniques to waste time for this purpose, but if the stop was concluded before the dog arrived, your husband would be free to leave. Again, I have only your second-hand account so I won't speculate on whether this happened. He should speak to his lawyer about specifics of the case. | The statute of limitations sets out the period of time after a crime has been within which formal criminal proceedings must be commenced. If the police or DA were to request and receive an arrest warrant that met the requirements of the Fourth Amendment then the person would be a fugitive and time spent as a fugitive does not count. From Groh v Ramirez: The Fourth Amendment states unambiguously that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The requirement is that the person to be seized must be "particularly described" - that is unambiguously identified. A name will do that but so will a commonly used alias. | You are allowed to ask the police whatever questions you like. There is an upper limit that you can't refuse to obey a lawful order on the premise that you want to ask a bunch of questions, but they don't seem to have ordered you to do anything, so you can ask away. They have no obligation to tell you anything or to be truthful, except for certain questions like "am I free to go" when you want to leave and are testing whether you are under arrest. Even then they don't have to answer your questions right away. The police can therefore ignore you, especially if you are asking curiosity questions. It might be that they are restricted from giving information in certain circumstances (pertaining to the privacy of others). If there is an issue of legitimate concern (e.g. Little Billy has been beating up on cats again) and you feel that you need to know this, then you can request the police record on the matter. Certain information will probably be redacted under state law, but you could get a report that states that some [redacted] juvenile was beating up on animals. The Florida records law is one of the first in he nation, dating back to 1909. You can read this, to see if you think the circumstances match one of the exemptions, though all you have to do is make the request and be told that the record is exempt, then you will have some idea what was going on. | Of course not. If the owner/tenant needed to be home I could rent a house in my name, and then never occupy it (my associates live there) the cops could never enter. Wilson v. Arkansas, 514 U.S. 927 (1995) - Cops executing a warrant need to knock. If no one answers they must wait a reasonable time for an occupant to let them in. It's the knock and announce rule. By implication it might lend authority to what is an obvious answer. | Police can get a warrant, if the warrant is supported by "probable cause" to believe that evidence of a crime exists. A separate "probable cause" requirement is that to arrest a person, there must be "probable cause" that they committed a crime. However, the Privacy Protection Act makes it unlawful to search "work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication", unless there is probable cause that the person committed the crime in question. There are similar laws ("shield laws") at the state level. Here is a map which gives you an indication what immunities exist in what states. |
Is it legal to sell Pokémon? In the games, given enough effort and time, a player can get Pokémon with better stats and alternate color palettes, and are highly valued by players. Additionally, there is a built-in function that allows players to offer certain Pokémon in exchange for others. Often, players using this function will offer higher value Pokémon for other similarly rare Pokémon. For a lot of people, paying for these Pokémon might actually seem to be more efficient. My question is purely hypothetical and I have no desire to do this, but if I started working in my games to legitimately generate these more valuable Pokémon, could I legally sell them online? More generally, is selling digitally generated goods legal? I debated putting this question on Arqade, but I figured I might get more in depth answers on Law. | Most games have a TOS to playing that include provisions such as sales of in game items through out of game currencies (i.e. real world money changes hands for digital product or account). I believe Pokemon does have this as part of the TOS which could get you and potential customers banned from competition and possibly the modern online trade features, but am unable to look at the current TOS to verify. It should not be hard to find such a document and read for yourself. | The exact answer will depend on the details (scale of the operation, where it is happening, what purpose the crickets are being sold for etc.), but in general: Yes, breeding and selling crickets is allowed in general. Here's an article (German) on someone who plans to breed insects for food (the article only says he is breeding "Heuschrecken", which could be several different species from the order Orthoptera, but it's probably close enough): Insekten auf dem Teller - Thorsten Breitschuh baut eine Heuschreckenzucht auf ("Insects on the plate - Thorsten Breitschuh is starting an orthoptera breeding program") The article does mention some legal problems, but they mostly revolve around getting the insects certified as safe food, and complying with environment regulations during the breeding. Also, you can buy crickets and similar insects in many pet stores as animal food for reptiles, so breeding and selling them as animal food is definitely not prohibited. | It depends on the game and what you copy. Games are an utter nightmare when it comes to IP law as so many parts of them cannot be copyrighted. Game rules for example cannot be copyrighted, nor can the concept itself. Some things can be copyrighted or trademarked. You cannot use the following: Names Written elements- while the rules themselves can't be copyrighted, rulebooks can Artwork and other visual elements Miniatures designed for the game Original characters Try to avoid these and the Hasbro lawyers should leave you alone. | The answer by Dale M. is correct, but a bit brief. "Selling" is not an exact phrase. What you do not want to do is to transfer ("sell") the copyright to the source code. If you did that, you would put yourself in legal danger because they now own the copyright to code that you use in other products, and can sue you for copyright infringement. However, you selling a copy of source code does not imply transfer of copyright in any shape of form. When you buy a copy of a book in a book store, the author's copyright is not transferred to you. Accepting this deal would put the other party in legal danger. Even if they have bought the source code, they still don't have a license to make further copies of it and sell those. This is why you need to license the software to them. In brief: Copyright grants the copyright owner a lot of rights. These rights are always licensed, not sold. The right that is relevant here is the right to create derivative works. A license is simply a contract between the two parties, describing a particular business arrangement in legally binding terms. If I were in your position, I would hire an IP lawyer to help drafting the license. But, basically, the license should say that you, as owner of the copyright to ABC software, grants XYZ company access to its source in its present form, and also grants XYZ company the right to create derivative works, but only for hardware platform DEF, and to create and distribute copies of their derivative work. | My understanding is that this isn't a contractual term, but rather a warning that the items don't satisfy legal requirements for individual sale. The seller and manufacturer likely don't care whether you resell the items, but the government does. In the US, at least, regulations of the Food and Drug Administration require that (with certain exceptions) food items sold at retail must be marked with a Nutrition Facts label, showing calorie counts, fat and sugar content, and so on. The FDA has information on this requirement, including citations to the relevant sections of the Code of Federal Regulations (CFR). For example, if you buy a big multipack of tiny ("fun size") candy bars, the manufacturer usually won't have printed Nutrition Facts on each candy bar's wrapper (because it's too small). There will instead be a label on the outer bag. As such, you can't legally resell the candy bars individually, because they don't meet labeling requirements. In fact, in the FDA page I linked above, you can see that manufacturers are required to print "This unit not labeled for retail sale" on individual items if they don't have Nutrition Facts labels. See the 12th item in the table of exemptions. | Presumably you are referring to works commonly called "fan fiction." Under copyright law these might be considered "derivative works" and therefore subject to the rights of the copyright owner. However, they might also qualify for exemption from copyright enforcement under "fair use." It appears that the legality of fan fiction is not settled law, and the outcome of legal challenges have turned on facts specific to each case. Decent background on the question is summarized on wikipedia. | It is legal, though not if the grounds are illegal discrimination (race, religion, etc), which by their (empirically supported – they raised the price) representation is not the case. As a marketing strategy (pick a low number, hope for a bidding frenzy that drives the price up) it is legal, though carries a non-trivial risk. It does not constitute "bait and switch" under any definition of the term, and it is not illegal to engage in a business practice that causes someone to frown, or otherwise disapprove. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. |
Are schools required to disclose accurate results of random drug searches? I go to a school which has a serious problem with underage vape usage. The police sometimes conducts random drug searches, and after every search, parents are informed via email. Each email has consistently said that the search did not find any illegal substances. Are public school required to disclose accurate information about the drug searches? Can they lie about the results to make themselves seem better? | I don't know of any law requiring schools to proactively disclose the results of these sweeps, but if you asked for them, the Michigan Freedom of Information Act would likely require both the police and the school to release records that would give you an accurate picture of what happened. At the very least, I would expect the police department to write up the results of its sweeps in a report to send up the chain of command. I would also expect that those results would be communicated in writing to the school district. The police should also maintain a log of all property they have seized; if they seized anything from the school, it should show up there, as well. | Police can lie However, in the United States they have to read you your Miranda warning (most other democratic countries have similar warnings): You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. They have told you everything they are required to tell you - effectively “we are not on your side.” After that, they can lie their asses off. Of course, they wouldn’t ask you for a DNA sample - they’d ask you if you’d like a glass of water. Then they’ll take the DNA from that. | You don't know. You can't know. And you can't force the officer to tell you. Detention Status As a practical matter, you have no way of knowing if you are compelled to follow an officer's order because you are being detained unless the officer volunteers that information (your detention status) which they are not compelled to disclose and have every incentive not to disclose. Consider the situation when the officer does not have reasonable suspicion do detain you. If the officer instantly informs you that you are "free to go" then you are likely to leave and end the encounter immediately. However, if the officer says nothing, then you might stay and inadvertently say or do something that would give the officer reasonable suspicion to detain you from that point forward. Your behavior during that detention could lead to probable cause, arrest, etc. Every officer knows they have nothing to gain by being quick to tell you you are free to go. Deceptive Conduct To compound the issue, police encounters are particularly problematic because police officers have a lawful right to engage in deceptive conduct during an investigation including but not limited to lying. You, on the other hand, can be prosecuted for lying to the police conducting an investigation. (See this article for more information.) Hobson's Choice Therefore, all things considered, police encounters present a Hobson's Choice. Either comply with every order in an effort to end the encounter quickly. Or try to press the officer to determine whether you are "being detained" or "free to go." The former course of action voluntarily cedes some of your rights. The latter risks "provoking" the officer into making your encounter more difficult, painful or costly than it otherwise might be. Never Consent to Searches That said, you are never under any obligation to consent to a warrantless search of your home or vehicle. Typically, saying, "I do not consent to searches." is usually sufficient if asked. Evidence obtained from warrantless searches is barred from being used at trial unless you waive this right by consenting to the search. See this question (and answers) if you are concerned about the officer falsely claiming you gave consent if you didn't. Never Talk to the Police As a legal matter, talking to the police can never help your case in court. Anything you say to the police that might help your case (i.e., exculpatory) is not admissible as evidence because it's hearsay. On the other hand, anything you say to the police can and will be used against you. In fact, even if you are completely innocent of all crimes AND you are completely 100% truthful to the police, you can still give the police all they legally need to convict you of a crime simply by talking to them. Whereas, without your statement, they would not have had sufficient evidence to convict. See this Youtube video for more details and examples of how this can and does happen every day. Practical Matters The above analysis presents the reader with some practical concerns. You don’t want to risk being harmed by an officer in fear for his safety. You don’t want to be handcuffed and taken to the police station if you can avoid it. You must obey all unconditional commands of a peace officer. It does no harm to inform the officer that you are willing to comply with all unconditional legal commands and ask him or her if a given command is, in fact, unconditional. Some attorneys go in the opposite direction from the "never talk to the police" rule and advise that, say in the case of a domestic violence dispute, the best course of action is to answer police questions matter-of-factly, never lie and never admit guilt. That course of behavior can avoid a potential trip to the police station in handcuffs in the back of a police car even if you are never ultimately arrested. TL;DR: Police encounters are tricky. It's difficult to know what to do. The best course of action is to educate yourself about your rights and the law and apply judgment and common sense to guide your behavior to achieve the best outcome. I am not an attorney. I am not your attorney. This answer is not legal advice. Please consult an attorney to obtain proper legal advice. | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. | Huge difference between a car and a house. For example, at least in Pennsylvania no warrant is required to search a vehicle on public roads. In other states there are so many easy pretexts that you practically have little protection from a full vehicle search (although the pretext will have to withstand strict scrutiny if evidence found in a search is used to charge you with a crime). Your house, on the other hand, still enjoys very strong fourth-amendment protections: One of my favorite U.S. Supreme Court cases on the subject is Florida v. Jardines, in which SCOTUS ruled that even approaching the front door with a drug-sniffing dog without a warrant constituted an illegal search. (The majority opinion is worth reading for its illumination of current law on this question.) | I wouldn't say that it "trumps state law". Indeed, the State of Georgia, either expressly by statute or through the common law, establishes that teachers and school administrators have the authority to create rules and regulations governing the conduct of students that are not themselves unconstitutional as applied to students, although, in general these consequences can't resort to criminal punishments. Instead, typical punishments include detention, suspension (in school or out of school), expulsion, and adjustment of grades for an assignment or a course. Marks in one's disciplinary record and public shaming, forfeiture of eligibility to participate in school sponsored extra-curricular activities or honors (including marching at graduation), refusing to release transcripts, and historically (but much less so in recent years) corporal punishments such as spanking, have been options for schools to enforce their punishments. A prohibition on recording in a syllabus certainly wouldn't result in criminal punishments, and probably wouldn't even give rise to civil liability. Depending upon the purpose for which the recording was being used, it is even conceivable that the school's right to punish someone for violating a school rule could be estopped by First Amendment and whistle blower protection law considerations (e.g. if it was used to document harassment and discriminatory conduct for use in sharing with the school board or law enforcement or publishing on radio or TV or an Internet news source). But, the mere fact that conduct is legal outside a school setting does not mean that a school cannot prohibit and punish that conduct in its own rules. The closer case, upon which there is more division of legal authority, is under what circumstances a school can legitimately punish conduct away from school, for example, uploading rap lyrics about a teacher to YouTube from home without using any school resources to do so. | NO It is decided state-by-state (for state-wide agencies like state troopers), and county by county, and city-by-city whether or not to buy and use cameras. Also, they are not usually always running. Policies as to when officers are required to turn them on vary as well as when the public and the involved officers get access to the recordings. | If I were a DA (District Attorney) looking out "stamp out" statutory rape, I would make the rounds of the hospitals, identify women who gave birth, or were impregnated when underaged, and go from there. But few, if any DAs, do this. No, you wouldn't. First, you have neither the time nor the budget to do this. Second hospitals are not public property, you would need a warrant which the court won't give you because you don't have probable cause to believe a crime has or is being committed. As a DA, I would of course, follow up on any complaints lodged by the victim, or even by her/his parents. And maybe I would prosecute a case where people were "caught in the act, or there were nude pictures, etc. May even an especially egregious PDA (public display of affection). No, you wouldn't. You would follow up on complaints to the extent that you have the time, budget and manpower to do so and you would prosecute cases where you believe that you have a reasonable prospect of getting a conviction and where prosecution is, in your opinion, in the public interest. In the real world, that means where the police hand you a brief of evidence that is a lay-down misere and (for statutory rape) where there is a real power imbalance between the perpetrator and the victim - giving 2 willing 15 year old kids the label of 'sex offender' for life is probably not in the public interest. But suppose there were no complaints or smoking guns. Could someone investigate based on something like a teenager "holding hands" with someone much older? To make the question objective, what has historically caused DAs to prosecute people outside of the above parameters? With some exceptions, it is not the role of the DA to initiate or conduct investigations of criminal actions - that is the role of law enforcement officers, usually for this particular crime, police officers. Notwithstanding, the general rule in western, liberal democracies (which the United States, with a certain generosity of spirit, can still be considered) is that citizens are allowed to get on with their lives without day-to-day interference from the state. That is, law enforcement officers do not 'go fishing' for crimes, they investigate crimes that they have a probable cause to believe have actually happened, either because they themselves saw it happen or someone has reported it to them as having happened. The term for having a law enforcement officer following you around waiting for you to break the law is 'harassment' and may itself be illegal. A law enforcement officer can initiate an investigation based on anything but as no law enforcement agency has unlimited resources, they tend to follow only those investigations that might lead somewhere. For example, it has been known for parents to hold the hands of their children and even to publicly display affection towards them and parents are often "much older" then their children - this would not generally be grounds for initiating a statutory rape investigation. |
I lost my jury summons, what can I do? I recieved a jury summons a little while ago. This summons contained information on where to go as well as some paperwork to bring in. The summons was accidentally thrown out by the cleaning service. What should I do now? | For the New York State Unified Court System, you can consult their Frequently Asked Questions at http://www.nyjuror.gov/juryQandA.shtml#Q6. What if my summons or questionnaire is lost? Contact your local Commissioner of Jurors. Find contact information by scrolling down at “Select County” in the box on the left menu. When you select your county and click submit, an e-mail message opens addressed to your local Commissioner of Jurors (for example, in Brooklyn, the address is [email protected]). Send a message explaining what happened, and they will tell you what to do. | Probably not until and unless the process server gets the correct address and actually serves you. Then the documents should explain the matter fully. If the person who was attempted to be served took note of the court involved, and told you what court it was, you could call the Clerk of the Court and inquire. Otherwise you would need to ask every possible court, which would take a great deal of time and effort. You have not been lawfully served (at least not in most US jurisdictions) until you have been served in person, or perhaps by mail, or by publication in a newspaper, or in some other way considered lawful in your jurisdiction, but serving a person at your old address is not likely to be valid service. (Valid methods differ from one jurisdiction to another, and in some situations differ by the kind of case involved.) If the person at your old address gave the server your new address, s/he will probably be along shortly. If a process server is given an address by the client (plaintiff), s/he may well go there first, and only do research later in case the first address is wrong. One need not worry about it until the papers are served, but it might be wise to read the legal ads in any nearby large newspapers for a few weeks, in case of service by publication. The papers should give the name of a court, and perhaps the name of a judge. You can call the clerk of the court and find out if the papers are legit. There may well be a docket no or case no or some other identifying umber, as well. This will help in verification. Docketed cases may be listed on a court web site. A comment asks is service by publication is still possible. It can be. According to the Michigan Court Rules Rule 2.106 (D): (D) Publication of Order; Mailing. If the court orders notice by publication, the defendant shall be notified of the action by (1) publishing a copy of the order once each week for 3 consecutive weeks, or for such further time as the court may require, in a newspaper in the county where the defendant resides, if known, and if not, in the county where the action is pending; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the date of the last publication. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. In addition, subrule (E) provides that: If the court orders notice by posting, the defendant shall be notified of the action by (1) posting a copy of the order in the courthouse and 2 or more other public places as the court may direct for 3 continuous weeks or for such further time as the court may require; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the last week of posting. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. The moving party is responsible for arranging for the mailing and proof of mailing. Thus if the plaintiff does not know and cannot determine the defendant's address, or has an incorrect address but thinks that it is correct, a service by publication (or even by posting) may be lawful, if the Judge so orders, without the defendant getting an individual copy of the documents by mail. This requires some unlikely events, but is possible. | In the small claims court cases I've been involved in the judge has dismissed all aspects of the claim related to time wasted, transportation costs, and attending court in the judgement amount itself. However the court costs one incurs should be a part of the amount that is judged in one's favour. Also the costs of enforcing any judgement (court bailiff fees) are usually considered recoverable. My thoughts are that if one is keen to ensure that the other party pays the full costs of time, collation of evidence, photocopying, phone calls, and anything else one believes they are responsible for, one will have much more luck if one is not self-representing. The predominant reason for self-representing is to keep costs, and thus one's financial risk from pursuing the case, minimal. disclaimer: this is only opinion, and not legal advice | Consider that stuff "court costs" or "court fees." They are actually often things not related to the court, like environmental fee, or emergency medical something or other, or park poop bag fee. Pretty much whatever either the legislature or administrative decision makers what to put on there. And FWIW, if you were not texting get your phone records and bring them to court to prove that you did not send any texts in or around that time. | You'd have to specify the cases you want. All court transcripts are a matter of public record, though a copy may cost you a fee from the court clerk's office to recieve. It should be pointed out that not all cases got to an evidentiary stage to actually evaluate on the record any evidence. A vast majority were decided on pre-evidentiary rules such as standing or laches (timeliness) and not all cases that were able induced evidence debunked the evidence. Any appellent case would also not induce evidence as all appeals cases are strictly matter of law rather than matter of fact (evidence), so those cases would be asking a higher court to double check non-evidentiary decisions. The fact that the party that brought the suit does not have standing to bring the suit OR that the party that brought the suit brought it too late for the courts to proceed on the matter does not debunk evidence that the fraud happened in the eyes of the law... it simply means the questions of fact were never addressed at all | Does the party have any legal leverage to engage the police (or other competent authorities apart from private investigators) to help locate the witness and serve the summons on them? Not really. Legal process is not infrequently served by a sheriff's deputy. But the deputy will not generally take any initiative to locate a person to be served beyond what it provided by the litigant. The main reasons to have a sheriff's deputy serve someone with process is the fear that the person served might react violently. Or is it just the party's bad luck that the witness cannot be located and served on? Pretty much. | "I don't recall" will protect you from perjury only if it's true. Let me try an example. You're asked: "Did Mr. Blatter hand you an envelope full of cash?" You say: "Not to my recollection." Now the government introduces a videotape of you receiving and counting the money, and a thank-you note you wrote to Blatter saying "Thanks for the awesome bribe!" You can defend yourself from perjury charges if you can convince the finder of fact that you had forgotten all of those things...but it's not very likely, is it? "I don't recall" isn't a magic bullet. It's like any other statement: it's perjury unless it's true. | The appeals court has found that the county court judge made a decision that was consistent with the evidence that was presented at trial. As such, the decision is sound. It appears that the defendant tried to present additional/different evidence or different arguments about the law in the appeal than they did at trial - this is not permitted. As to responsibility, the defendant and their legal team were responsible for deciding how to run their case and what evidence to present and what arguments to run. What evidence to present and how to present it and what submissions to make on the law is a tactical decision for each party. You can get it wrong. That doesn't let you try again on appeal. If your barrister has been negligent, and that directly caused you to lose, you can sue your barrister. In terms of interpreting a particular paragraph of a judgement, the appeals court may or may not make comment on a particular paragraph but the reasons, while important, are not really subject to interpretation other than that. A judgement will give orders, these should be very precise and not open to interpretation - things like "the defendant will pay X to the plaintiff" or "the case is dismissed" etc. |
Is this PDF book legal? I believe the author has published it online. However, I am unsure if I'm allowed to read it. I found it when searching. It says unauthorised reprint or use is not permitted. All rights reserved. Here's the link: http://ppstest2.com/PreAlgebraBook.pdf Please tell me if it's legal | I believe the author has published it online. I agree. It is posted at his publisher's website. However, I am unsure if I'm allowed to read it. This answer assumes you are in jurisdiction whose copyright laws is based upon the Berne convention (i.e. the civilized world + USA). Assuming it was the author published it online, it is perfectly legal to read it. Technically, the author is performing his work by putting it online, and by reading it, you are just enjoying his performance. Also, if you are in a jurisdiction with an explicit exception from copyright for personal use, or where fair use allows making copies for personal use, it would also be legal to download it, or to print it on paper (but for personal use only). As for downloading and printing for non-personal use - that is not legal in Berne jurisdictions. | First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows. | They have copyright in their additional text, and possibly in things like their visual design choices (fonts, layout etc). They may also have introduced a few deliberate typos to detect any literal copies from their version (rather as mapmakers add a few imaginary features to their maps). None of this creates any rights to the original text. You are still free to produce your own copies of the original text. Just get it from some other source so you can be sure not to include anything of theirs. | As for plagiarism, that is not a legal concept, so he can define plagiarism however he wants. It certainly isn't, under any definition I have ever seen on Earth and I have seen many (it has to do with "claiming someone else's work as your own"). As for copyright, a set of questions is (potentially) protected by copyright. If they are copied from somebody else's book of questions, then the book author (or publisher) holds copyright. Let's say that QM invented the questions, such as "What is the Turkish word for Janissary?", "What is the most prominent feature of Jannissary garb?" and so on. Then that set of questions, when put down in fixed form, are protected by copyright, and cannot be copied without permission. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | School districts / states do generally have the power to set the curriculum including the viewpoint that will be officially conveyed. One well-known major restriction on such viewpoint restrictions is that the schools cannot restrict the free exercise of a religion, and cannot take a position on a religion. Apart from the religion third-rail, schools have pretty free reign in setting the curriculum, see Evans-Marshall v. Tipp City for one instantiation. In this case, the teacher assigned various books, including Heather Has Two Mommies, one of the books that prompted an outcry. The upshot of that case is that a teacher cannot invoke the First Amendment to override policy. This article (draft version, easier to handle) (published version, annoying footnote structure) reviews the topic, and section III covers prior cases. It notes that the cases of Lawrence, Windsor, Obergefell do not address the constitutionality of these education laws, though the reasoning in the prior cases might be applicable if there were a suit over curriculum. There is an implication that some of these rules have been enforced in the past, but most of the evidence is in the form of news stories (Beall v. London City School BOE is not available in the open). The article does engage in a somewhat deeper study of enforcement in Utah, where it was enforced (until it was repealed). Enforcement is necessarily indirect. The law require school districts to have a particular curriculum; violation would come when an individual teacher taught contrary to the prescribed curriculum. Those laws do not contain any provision like "a teacher who violates these rules gets fired", instead, punishment is via the general rule that you have to teach what is in the state-mandated curriculum. Rather than officially terminating a teacher for violating this curricular guideline, districts use vague reasons for non-renewal such as "due to problems with communication and teamwork" (from Evans-Marshall). | I'm assuming that you are in the UK, as you are talking about the British Standards Institue. In general the truth cannot be copyrighted but an expression of that truth can be, provided that it is creative or original to at least some extent. In this case the equations and constants you want to use are descriptions of scientific truths. If you translate them into another form (e.g. a computer program) then you are not copying the creative bit (the layout and arrangement of those equations and explanatory text), so you are not violating the copyright. Edit: I should also have said for (3) that their descriptions of the constants and variables will be copyright. You would have to avoid copying their words. However given that these are going to be terse descriptions of facts your words can still be pretty similar without infringing on copyright, because there are only so many ways of describing the acceleration due to gravity, or whatever. Take a look at some alternative references to see what words they use. | The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is. |
How are terms in poor English enforced? I was contacted by this phone company, who are trying to sell their service to me. They say that if I purchase a $19.95 credit on their phone plan, then I can get some discounts; also the $19.95 will be applied to my account, expiring in six months -- and I will not get billed until I use it up. However, when I went to sign up, this is what their terms said: With activation $ 19.95 Promotions: • 5% dsctose. by automatic debit • 5% of Bill E - 1st, 2nd, 3rd Bill • 30% dsctose. In the (favorite Number) frequently called • RETURN ACTIVATION FEE $ 19.99 from 6 months reflected in the bill Not knowing this phone company well, I am afraid they'll take my $19.95, and not offer anything in return. Will they be liable if they do so, with the above Terms and Conditions, given that I was provided a verbal assurance of what I described above? | First, if by "they say" you literally mean they use spoken words, and not a printed advertisement, or an advertisement on the internet that you can print out, then you may have a hard time proving what they said. If you can prove what they said that would be very helpful, a seller may be in trouble if their contract is not the same as what they promised. If things go to court, then a judge will first figure out what the contract is (let's say both sides have a copy of the contract - but the words are different, then a jury decides). That's not what we have here. Then the judge decides what the words in the contract mean. If the words are ambiguous, then the judge interprets the words in favour of the person who didn't write the contract. | Canadian law defines "theft" thus: Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (to deprive the owner, pledge as security, mess it up) In this case, you accepted what seemed to be an offer of a free pizza, so if you took and consumed the pizza you did so with a colorable claim of right and without fraud. Perhaps you misunderstood, but it is not a crime to misunderstand another person's intent. They could sue you for the cost of the pizza (assuming that you took it and did not pay), in which case the question would be whether whatever they said to you could reasonably be interpreted as an offer of a free pizza (if not, pay for the pizza). As an advertising stunt, this would not be unusual. However, if they fix the pizza but then demand money before handing over the pizza, you now know that you have no right to the pizza (if you abscond with the pizza in that circumstance, it would be theft). You may of course pay for the pizza, but you can also not pay and not take the pizza. Again, they could sue you, and in this case your defense would be that there was no contract (no agreement). An important question would be how reasonable it is to believe that you were offered a free pizza. People are offered "free" steak dinners all the time (at the cost of sitting through a sales pitch), so that is a reasonable belief. If a Lexus yacht salesman appears to be offering you a free $5M yacht, it is not reasonable to think that this is an ordinary advertising stunt, if you're not a celebrity. | What credit agreement? A credit agreement involves someone advancing you money which you agree to pay back with interest - there is nothing like this here. You entered a contract for the course the terms of which were that, at your election, you could either pay upfront or pay by monthly instalments. That's not a credit agreement, it's a straightforward contract for services with alternative payment terms. One of the other terms was that if you withdrew then the full amount would be immediately payable. Under normal contract law principles, this is all fine. Consumer Law Under UK consumer law, you have a right to cancel a contract for services formed off-premises if you do so within 14 days. "... around 1 week and then around another week ..." might be within 14 days; if it is, you are entitled to a full refund; if it isn't, you owe the money. There are also rules about what information they needed to give you. If they haven't then they have committed an offence and the contract may also be void. | Let's say I buy a phone. Typically you can buy a phone with something that is advertised as "no contract" or for example "with a 24 month contract". In reality, "no contract" means "we have a contract where you hand over the cash, and the phone company hands over the phone, and there are various guarantees that are either implied or explicit, but there are no terms in the contract that force you to hand over money to the phone company beyond payment for the phone in the future if you don't want to". So there is a contract, but the contract is such that you as the customer have no obligations towards the seller once you have paid for the goods. "No contract" would happen for gifts, or as an example if you download open source software in the USA for free. There will be a difference between a "no contract" contract between business and consumer or between two businesses. Most countries have consumer protection laws so if a deal is advertised as "no contract" and the business demands further payments, they will likely lose. Between two businesses, each side is fully responsible to study the actual contract terms. | "There is a free mp3 app from a friend who asked me to publish it in my account, which I didnt check properly." You violated Google's policies by uploading an App that you did not have full control over and/or was not developed by you. As well, the App possibly violated Google's policies in terms of violating licensing for code libraries that were included, had code included in the App that was malicious or violated privacy, or was otherwise not compliant with Google's terms. Google's policies are legal contracts which you agree to when you open an account. You reserve the right to end the contract by deleting your account. They reserve the right to end the contract when their policies are not followed. See https://play.google.com/about/developer-content-policy/ "This sudden termination comes as a shock and Google's decision seem very rude to me." You may think it is rude, but Google is fully within its rights to terminate your account because you violated their terms. It matters little that you did not get the previous warning emails from Google; you are responsible for monitoring the account email for policy updates. If you’ve reviewed the policy and feel this termination may have been in error, please reach out to our policy support team. Try that; you might attempt to explain that it was honest error on your side. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | I have already contacted a lawyer and paid all the money I had and they didn't help me resolve anything, the guy just talked to me for a little bit. He essentially just took my $600 and no action was made. He said the best thing to do would be to wait it out because the contracts were never fulfilled by them and they can't claim my inventions etc if I am an independent contractor. To me it just sounded like a bunch of BS and not a real solution to this. You paid $600 for expert advice which told you to do nothing. You think the advice is bullshit and intend to go full steam ahead against the advice given. I'd say it is very likely that the lawyer is a better expert than you, so you should follow his advice. You are in a hole, you were told to stop digging, and you intend to continue digging. Don't. There are times where doing nothing is the best advice. In this case, you intend to accuse someone of breach of contract. That has a good chance of landing you in court. A company cannot afford to ignore such a statement. You claim the contract is void and you want to cancel it - but you can't cancel a void contract. It's void. Listen to your lawyer. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. |
Can I sue a Canadian company in the USA? I had a consulting company (IT services) in Canada and my major client (also a Canadian corp) did not pay for large amount of software engineering services that I've done for them. They are actively selling their products to major European and US corporations (like Verizon, AT&T, Microsoft) and all these products are heavily based on and incorporate works done by me that they didn't pay for. This my client Canadian corp most likely has US presence and I'm currently tax resident in the US. Can I sue this Canadian corp in the US (or their US subsidiary if it exists)? Can I sue their clients for using my works (or notify them to stop using them), what are possible consequences? Any pointers where I can get legal consultation in the San Francisco bay area regarding this matter? | You can try, however, a US court when considering if it has jurisdiction will doubtless ask you to explain why a Canadian business wants to sue a Canadian company for an unpaid debt in Canadian dollars for services provided in Canada in a US court. If you can satisfy them that a US court is the appropriate venue (which I doubt) they will hear the case. | Of course you have to follow the license. You seem to have a license that doesn't allow distribution and want to know if giving copies to the Dutch or Chinese branch of your company is distribution. First, you should not make that decision. Your company's lawyers should do that. Second, such distribution is with some licenses perfectly legal if you distribute the software with source code. That's a business decision which you or your manager or his/her manager... can make. Such questions (whether giving a copy to your Dutch branch is distribution) often don't have an answer that is yes or no but maybe - if you went to court, would a judge say that it is distribution? The answer is quite clearly "maybe". So unless you can find a safe way, there is a risk. Again, your lawyers will assess the risk. | From your account, you seem to have entered into a verbal contract for this extra work to be done without agreeing a price. According to this article, Canadian courts will assume that a contract contains "implied" terms "on the basis of the presumed intentions of the parties where necessary to give business efficacy to the contract". To put that in English, these are terms that must be there because otherwise the story wouldn't make sense. In this case the implied term is that the lawyer will be paid a reasonable amount for his work, as it would be unreasonable to expect him to do this for free. Lawyers generally bill by the hour, so a reasonable amount would be the time he spent multiplied by his usual hourly fee. If that is what he has billed you, then I'm afraid you owe him the money. | No. These companies seem to be saying that they are entitled to sell music under some sort of mandatory licensing agreement authorized by the law of the Ukraine, or by a licensing agreement specific to the Ukraine. Even if this were true, it would only give them the right to distribute the files in the Ukraine. If an American, sitting in the U.S., makes a digital copy of a file on a Ukrainian server by copying it to his or her U.S. hard drive, they have to have a license to do so issued either by the U.S. copyright holder or authorized by U.S. law. A license to distribute in the Ukraine doesn't give the U.S. end user that license. A Ukrainian statute doesn't give the U.S. end user that license. If the end user doesn't have that license, he or she is violating the copyright holder's rights and may be civilly or criminally liable. There is no scienter requirement for copyright infringement. In fact, it's not at all clear that any Ukrainian site is operating even under this dubious legal cover. This report on Ukrainian licensing agencies by an industry group claims that many Ukrainian licensing authorities are actually scams that have no rights to distribute music under any license--one of the "rogue licensing agencies" discussed is Avtor, referenced in your first example. There is some legal confusion over what group does have permission to license music and collect royalties in the Ukraine, but it's clear that Avtor doesn't, and it certainly doesn't have permission to distribute them in the U.S. If a guy came up to you on the street and told you he had written permission from Disney to videotape their latest movies with a camcorder and sell them to you for a dollar, are you violating the law if you buy it? The answer is yes, and it's the same for these Ukrainian sites. | Ask yourself... What are you trying to achieve? My understanding is an employer is not obliged to provide you a positive job reference. I believe at most, they are only to obliged to confirm that you worked there. Anything above that is optional. The fact that you have left British Columbia only makes it more difficult for the company to chase you - It does not alter your legal obligations. As part of the settlement, both the employer and employee singed an mutual non-disparagement agreement. Why did you sign a mutual non-disparagement agreement if you still disagree? It leads me to believe there could be trust issues between you and others. Why do you think your old employer must abide by the agreement, but you have an exemption? Let's say you make noise - let's say your old employer in BC tracks you down. Ask yourself how an independent third party like your new employer would react when they read that you signed an agreement, then decided to ignore it. Both you and your previous employer have begun new separate journeys. You two crashed once - I suggest you not alter your path or you could crash again. Life is too short. Concentrate on making your new home in your new city and a new job a new start. It will bring you a greater benefit than breaking a signed, sealed non-disparagement agreement. | Is this work for hire? There is an arguable case to be made that you are an employee for copyright law purposes and, if so, the copyright belongs to the company. The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. Second, if you do own the copyright, there is clearly an implied licence with the company to allow them to use it. It is arguable that the licence is exclusive since the software is bespoke and made specifically for the company. Can you sign an agreement now Yes, but … It is clear that the purpose of signing the agreement is to screw the company over (with the compliance of 2 of the directors). That’s a contract entered into in bad faith and possibly for an illegal purpose and would likely be found invalid. You need to understand that the company is a distinct legal entity from its owners and it has its own rights. People make the mistake of thinking the owners are the company: they aren’t. The two rebel founders are on dangerous legal ground. Assuming they are the directors of the company, they have a fiduciary duty to act in the best interests of the company. That is, they must put the company’s interests ahead of their own. It is clearly not in the company’s interest to have a rival business start so they cannot plan to do that while they are directors - they need to resign first. You are not so much at risk - as an employee/contractor your duty is to follow the directions of the company (the company - not a faction within the company). However, if you aid the other two in what might be a crime, you could be in trouble. | Your lawyers should understand that you're dealing with a private company that can make and enforce its own policies when it comes to allowing access to the their store. If Google's policy is to require you to do research and diligence on a possible trademark infringement of your App, that's legal, as long as Google's requirements don't not violate local or national laws of the variant of their store. The idea that another company or individual can allege infringement, yet not communicate sufficiently with you or Google, may not seem fair, but as a response to that, Google can play it safe and not open themselves up to liability by removing your App or making you resubmit under a new name. That is outlined in Google's TOS, which you agreed to. Your only recourse is to keep talking to Google and keep trying to contact the complainant. | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. |
Are date ranges in contracts inclusive or exclusive? I was recently in a dispute over whether a date range in a lease was inclusive or exclusive of the start and end dates. The wording was: The lease starts on 14/1/2016 The lease ends on 13/1/2017 So is the lease for 363d (exclusive of both), 364d (where the start and end is on a specific time on each date), or 365d (inclusive of both)? Why? There was no other context on the lease. Note: This applies globally of course, but my case was in Australia, where rent is charged in weeks (and 364d is 52 weeks). The magistrate, who was acting as a mediator at the time, did not immediately know, and spent 5-10 min discussing it with me without coming to a view concrete enough to voice. | They are inclusive if the contract says they are, they are exclusive if the contract says they are. What does your contract say? The lease starts on 14/1/2016 This is the point at which the tenants rights begin - they can take possession from 12:00:00 am 14/1/2016. This date is included in the lease period The lease ends on 13/1/2017 This is the point at which the tenants rights end - they must be out before 12:00:00 am 13/1/2016. This date is excluded from the lease period. I have no doubt that the magistrate had a view on this but as a mediator, it is not their role to express their view: its for the parties to determine a solution which may or may not be informed by knowing the exact legal position. | Assuming it's an assured shorthold tenancy (which it will be unless the tenancy agreement says otherwise), the tenancy continues until the tenants give notice, or the landlord gives notice and the tenants leave voluntarily (and failing that, when a court forces them to leave). If no-one gives notice, and the tenants are still present once any fixed term ends, the tenancy continues as a "rolling" tenancy until it's ended as described above. A tenancy agreement stays in force even if the owner of a property changes (whether by purchase or inheritance). So to summarise: by default, nothing changes, and the tenants have the same right to stay that they had before. See, for example, this article, or this one. | No, section titles do not have to end in a period. But a common convention in the U.S. is that when section titles are used, they appear in bold and are followed by an unbolded period. For example: Development Credit. The Client shall acknowledge the Developer as the Website developer on the Website page entitled ... The convention promotes clarity and helps courts that later have to interpret the document to better understand the parties' intent. For a written contract, an alternative would be to place the title on its own line with the text below. Some contracts omit section titles entirely. Others add them but with an additional section explaining that the titles are not to be used to interpret section text groupings. Online resources like Law Insider and Onecle have large databases of sample contracts that should help with both formatting and content. If you'd like to learn contract drafting and revising somewhat more formally, then a good text reference is Tina L. Stark, Drafting Contracts: How and Why Lawyers Do What They Do (Wolters Kluwer 2d ed 2014). (The above snippet is from Stark.) united-states | An oral contract is (usually) entirely legally binding (exceptions include things like land sales). Written notes do not change that. The important thing about nearly contemporaneous notes is that if the contract runs into difficulty and you need to litigate, they are likely to be accepted by a court as good evidence of what was agreed. They will be much more difficult for the other party to challenge later (they can be challenged now of course - which is part of why they are considered good evidence of what was agreed). | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | Can the seller enter a formal agreement with the tenants in which the seller pays a sum of money and in return the tenants vacate the premises before the closing date, and would such agreement hold over the tenants legal right to remain on premises past the closing date? Maybe. It depends on tenancy law in Nova Scotia. Notwithstanding, given that the tenants are “difficult”, what are your plans if they take the cash and don’t move out? What happens if the sale goes though under the assumption that the tenants have left, and in fact the tenants are still occupying the premises? Why would the buyer settle under an “assumption”? At the time of settlement either the tenants have left (so settlement happens) or the haven’t (so the vendor is in breach, settlement doesn’t happen and the buyer decides whether to rescind the contract and claim damages or affirm the contract and claim damages). What guarantees and proofs can the buyer demand as to the vacant status of the property? They take the keys and walk into it. What other questions should the buyer be asking? They should be asking: “Will you be in a position to fulfil your obligations under the contract?” | we would like to know whether we have sufficient legal grounds to sever/terminate/exit this contract with Superior Management Co.*, if the company does not mutually agree to do so. No. In that event the HOA is stuck with the contract at least for the remaining part of the current period. The HOA's concern that the provider could breach the contract by significantly underperforming seems speculative and does not entitle the HOA to breach it first. Changes in the name and/or ownership of a party does not alter the parties' rights and obligations pursuant to the contract. This implies that neither party is entitled to disavow his obligations by terminating the contract altogether. For early & unilateral termination to be an option, it would have to be provided in the terms of the contract itself. | You signed the lease In general, this is definitive of your intention to have a month-to-month lease. Any correspondence that you have prior to you signing that you wanted or even agreed on a yearly lease is only evidence that such things formed part of the negotiations but, for whatever reasons, what was ultimately agreed was a month-to-month lease. If you can prove misrepresentation you might be able to get what you want but the usual remedy is recission (ending) of the contract, not a change to the contract. However, given that the type of lease is such a fundamental feature and is usually prominent on the document, proving you were misled rather than agreeing to a month-by-month lease will be difficult. |
Under GDPR, can I request to be forgotten and re-register for a trial? Imagine an on-line service which offers 1 month of free trial for new users. Can I perpetually: register for the trial, use it for a month request my account deleted and my data forgotten repeat ? | Under GDPR, can I request to be forgotten and re-register for a trail? No (unless they are stupid.) The "right to be forgotten" does not mean they have to delete your data. They can keep personal data about if they have "legitimate interests" to keep these data. Stopping clients from abusing their "free trial" system is a legitimate interest. | Technically, yes, GDPR might apply. Filming other people does involve the processing of personal data, and GDPR will apply unless this is for “purely personal or household purposes”. But exactly that will be the case for most holiday snapshots or short clips for your personal social media. As far as I understand, you do not have to worry about purely personal activities. Even if GDPR would apply, this doesn't mean it would be illegal. It means you'd need a “legal basis”, such as a “legitimate interest”. If there are just a couple of people in the background of a video, it's possible that their rights might weigh less important than your interest in shooting the video – but that would need a case by case analysis. Your legitimate interest would almost certainly prevail if you need to record a crime to which you are victim. Regardless of GDPR concerns, note that this is just a small aspect of legal concerns. Instead, also consider personality rights copyright (if art or architectural works are visible) / freedom of panorama customs and reasonable expectations of other people These issues will depend largely on the specific country or area you are travelling to. Europe is not homogenous in its perception of privacy issues. For example, consider the issue of dashcams in a car. These are considered to be quite normal in some European countries, but effectively illegal in others. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | Well actually... I think you'll just need to wait a little more. I monitor the situation quite closely and I can tell you that it's just a matter of time. Microsoft was one of the first (if not the first) to communicate openly about the GDPR and the changes that follow. From the blog post: If your organization collects, hosts or analyzes personal data of EU residents, GDPR provisions require you to use third-party data processors who guarantee their ability to implement the technical and organizational requirements of the GDPR. To further earn your trust, we are making contractual commitments available to you that provide key GDPR-related assurances about our services. Our contractual commitments guarantee that you can: Respond to requests to correct, amend or delete personal data. Detect and report personal data breaches. Demonstrate your compliance with the GDPR. Microsoft is the first global cloud services provider to publicly offer you these contractual commitments. We believe privacy is a fundamental right. The GDPR is an important step forward to further clarify and enable individual privacy rights and look forward to sharing additional updates how we can help you comply with this new regulation and, in the process, advance personal privacy protections. Microsoft has set up an informational site on GDPR here. If your eyes are on any other provider, I think the only way to learn more is getting in touch and inquiring about their progress and process. Hope this helps. | Do I need to inform the user about storing the score locally? No, there is no need as long as you don't transmit, store or process any personal info. It's doubtful that the score could be considered personal info, but you're not sending it to your servers in any way, so you don't seem to be processing it anyway. Do I need consent for using non-personal AdMob? You have to check this with AdMob, but usually, if it is non-personal, they shouldn't be processing any PI, so you're clear without informing. Do I need to ask for the age? How should I handle kids? Again, you're not processing any PI, so regarding GDPR there isn't any problem. Can I disallow a user from using the app if consent is not given? If you needed consent, no, it would be unlawful to block a user for not giving consent, unless it is impossible to provide the service without it. See recital 43: Consent is presumed not to be freely given if [...] the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. | Are my assumptions correct? Yes, this is precisely the sort of thing that would fall under the purview of "the purposes of the legitimate interests pursued by the controller or by a third party", as it fundamentally enables you to deliver the service to the data subject, and its also difficult to argue that "such interests are overridden by the interests or fundamental rights and freedoms of the data subject" given its a fundamental part of delivering the service before any consent can be given. Its not the intention of the GDPR to solely require a direct relationship between the data controller and data subject, its intention is to allow the data subject to control more of the relationship than they did previously - in some cases, that control remains with the data controller, which is why not all of the lawful basis for processing rest on consent. So long as you ensure that the CDN provider has a relevant privacy policy and is identified as a data processor in your privacy and data policy then you are good to go. In my mind, this is similar to the issue of how the data subjects packets get to you from their computer - we aren't including all of the network providers who carry the packets between the data subject and the processor (despite the fact that those providers will have access to much of the same information as the CDN, such as IP address, source, destination etc), even though in many cases we don't know that information (for example which route it will take over the internet). The only difference here is that as the data controller, you know about the CDN and can include it in your policies, so you should. | Art. 17 GDPR Right to erasure (‘right to be forgotten’) The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: Assuming private messages contain personal data, if at least one of the following points (a..f) applies, it would have to be deleted. (a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; The original main purpose was probably Article 6(1)(b) (performance of a contract). If you delete your account, that would no longer apply. However, for the receiver of the private message, Article 6(1)(f) (legitimate interests pursued by a third party) would apply. The receiver might still want to read that message. So there is still a purpose to process this data. So point (a) does not apply. (Note that a Facebook private message can be considered a hosted version of SMS messages. A receiver does not expect SMS messages to be automatically deleted after they have reached the recipient's device. A receiver expects full control of the storage of SMS messages. I think a receiver expects the same for messages on facebook.) (b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; Data processing was not based on consent, so point (b) does not apply. (c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2); Article 21(1) allows you to object to processing based on Article 6(1)(f), unless there are compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject. While I think processing is based on Article 6(1)(f), I also think there are legitimate grounds to refuse your objection. As explained before, the receiver might still want to read that message. The receiver was able before to read your message, so one can assume he/she has already knowledge of the personal data in the message. As it is a private message, no one else will be able to read that message. (At least Facebook will not allow it). So if the message is not deleted, the privacy implications for you are low. That's why I think the interests of the receiver will prevail. However, in the end, a judge will be the only person which can make such a consideration. So you would have to got to court to get a final decision about this. Article 21(2) is for direct marketing, that does not apply to this situation. So I think point (c) does also not apply. (d) the personal data have been unlawfully processed; (e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject; These points do not apply. (f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1). This data processing was not based on consent, so even if you are a child below the age of 16 years, point (f) does not apply. Article 17(2) and Article 17(3) wont help you either. So in my opinion Facebook is right in this case. | It’s personal data ... but why do you think you can change it for free? It’s clearly personal data because it can be demonstrably linked to you, both within and outside Blizzard’s database. Presumably, you consented Blizzard having it or they have some other legitimate basis for having it. So far, this is all GDPR compliant. You have a right to be forgotten, so you can ask Blizzard to delete your account. You have a right to confirm the information is correct. And that’s it. They can charge you a fee to change your user name just like your government can charge you a fee to change your real name. |
What are the legal requirements in the United States for being recognized under federal law as "white" or a "white" person? Primary resource: [Hefny v. _ (1997) (citation needed, appears to have been dismissed by the U.S. District Court)] Secondary sources: Egyptian Immigrant Wants to be Reclassified as Black Race, Nationality, and Reality, Part 3 Can a person simply choose to self-identify as "white" to satisfy the legal requirements for being recognized as "white" under both state and federal law? Does state or federal law specifically not provide for a legal process to be "classified" or "re-classified" as "white" or "black or African American"? What are the legal requirements in the United States for being recognized under federal law as "white" or a "white" person? | The classificational scheme "White; black or African American; American Indian and Alaska Native; Asian; and Native Hawaiian or Pacific Islander" was instituted on May 12, 1977 through Office of Management and Budget Directive 15, which articulates "standard classifications for record keeping, collection, and presentation of data on race and ethnicity in Federal program administrative reporting and statistical activities". In the case of Mostafa Hefny, his classification as white would be a consequence of being from North Africa (Egypt), and the fact that "white" is defined as "A person having origins in any of the original peoples of Europe, North Africa, or the Middle East". A possible point of contention is that he is not from North Africa: the directive does not say where North Africa (as opposed to unmodified Africa) is. Discussion was published in the Federal Register, August 28, 1995, about these standards, and to make a really long story short, there's a problem, and no solution. The October 30, 1997 decision states the current law. This is what you should consult for the current situation: a propos the case of Nubians, the conflict still remains regarding the definition of "white" as "A person having origins in any of the original peoples of Europe, the Middle East, or North Africa", and "black" as "person having origins in any of the black racial groups of Africa" (Nubians fall into both categories: a black racial group of Northern Africa). In non-immigration cases, racial and ethnic data are based on self-reporting. There is no strict rule, but "self-identification is the preferred means of obtaining information about an individual's race and ethnicity" (not possible in some instances, such as birth and death records). The set of categories which the census makes available is somewhat changeable. They currently report that they comply with the 1997 standards, but this report indicates that they had intended to drop "some other race" for 2010, but did not because of a Congressional mandate. The government does not "recognize" individuals racially, instead they "report" them in a particular manner, so that counts can be made for whatever purposes (usually Civil Rights Act compliance). The rules apply to new and revised records, and not to existing records. One would have to look at the record of Hefny's suit, but it is likely that lack of standing and failure to state a legal claim figured prominently in the dismissal, if the case was dismissed. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. | New York has no law prohibiting genocide, though it does have a law against murder. Since you specifically ask about genocide, at the state level, the answer is "no". At the federal level, 18 USC 1091 does criminalize genocide. But the action fails to meet the definition of genocide. (a) Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such... Mutants fail to satisfy the ordinary conditions for matching people to "national", "ethnic" and "racial" groups (and "religious" is statutorily defined). This is not to say that an aggressive prosecutor could not construct a line of reasoning that people with a certain (undefinable) genetic property fall within the ordinary meaning of "race" or "ethnicity". But, to consider an analogous case, the courts do not consider left-handed people to be a separate "ethnicity", likewise blind, deaf, nor those with Downs syndrome. Specific legislation is (was) necessary to make individuals with genetic conditions be a protected class – it does not flow from a general prohibition against racial discrimination. It is also unclear from your scenario whether defendant has "the specific intent to destroy". In reality, uttering a phrase does not make it so. | No, it means the following are eligible: Natural born citizens Citizens of the United States, at the time of the adoption of the constitution The second part was to allow people that were citizens of the US in 1788 (but were obviously not "natural born citizens", since the US didn't exist when they were born) to be eligible for the Presidency. Check out Alexander Hamilton's draft of this clause: No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States. | From the Texas Department of Public Safety brochure listing the types of documents that indicate how to demonstrate "Proof of US Citizenship or Lawful Presence:" Birth certificate or birth record issued by the appropriate State Bureau of Vital Statistics or equivalent agency from a US state or local government, a US territory, or the District of Columbia A birth certificate issued by a county in the State of California would qualify. Note that most government agencies require a certified copy of the birth certificate be used. A certified copy will generally have an endorsement via a stamp indicating that it is a certified copy and, for California, would be available from the county vital records department. A "U.S. Certificate of Citizenship" is for U.S. citizens born abroad. A "Certificate of Naturalization" is for people who became citizens through the naturalization process. Neither of these documents would apply to someone who was born in the United States. | You sue the legal person One of the things that distinguishes legal personhood from other structures is the ability to sue and be sued. You can't sue a business name or a trust for example but you can sue a company. I have in fact been required to make adjudication decisions that I know will be unenforceable in court because the applicant named a trust rather than the trustee. | At least one such person was naturalized, according to Wikipedia, in 1868, a time at which I believe naturalization was conferred by district court judges. Although this doesn't perhaps constitute a court case, as asked by the question, it does show that formerly enslaved people who has been born outside the United States were not automatically granted US citizenship. Wikipedia says: Although native-born American former slaves became citizens upon the passage of the Fourteenth Amendment to the United States Constitution in July 1868, this change in status did not apply to the members of the Clotilda group, who were foreign-born. Cudjo Kazoola Lewis became a naturalized American citizen on October 24, 1868. The passage cites Dreams of Africa in Alabama: The Slave Ship Clotilda and the Story of the Last Africans Brought to America by Sylviane A. Diouf | Title VII of the Civil Rights Act of 1964 regulates employers and employees. The prohibition on employer practices says it shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. You are not an employer, which is a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person For completeness, an employee is an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States. The federal law prohibits refusing to hire any individual (i.e. they don't have to be an employee), so you can't use the argument "a barber is not an employee". However, in case some law is stated in terms of "employees", a barber is not generally an employee under the law. The literal words of the law state that if a person happens to employ 15 or more people in a business that affects commerce (whatever that might be), then because of that aspect of their life, they can never discriminate in the selecting a barber, etc. That is, the law does say "an employer cannot discriminate in that very business whereby they are legally deemed to be an employer". However, so far the federal government far has not gone after an employer hiring 15+ people for discrimination in barber selection. State laws are also relevant and may have lower thresholds. The Washington threshold is 8. |
Can I request a copy of my password hash with GDPR? People often use personal information to create them, like first name / date of birth, and people often reuse passwords across several sites, so I guess passwords are considered personal data since they could identify its owner. If a website doesn't follow best practices regarding password hashing, it could make the whole hashing process basically useless, so I guess password hashes are also considered personal data. With GDPR, can I request a copy of my password hash? | First of all, a password is not personal data. ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; From GDPR Article 4 (https://gdpr-info.eu) As for password hashes, what do you mean by requesting a copy of yours? You can produce it if you knew the hashing algorithm of the website. By the way, websites should be using good hashing algorithms, such as bcrypt or scrypt, not MD5 or SHA1. | Yes, GDPR applies: you are a data controller established/living in the UK or are offering services to people in the UK you fall under the material scope of the GDPR. The Art 2(2)(c) exemption for “purely personal or household activity” does not apply since you're offering the service to the public. You must consider GDPR compliance here. This is especially important as you are showing personal data to the public. Don't do that unless you have a very good reason, appropriate safeguards, and are clear to users how their information will be shown. On a high level, GDPR compliance involves working on the following questions: For what purpose are you processing personal data? Context: purpose limitation principle per GDPR Art 5(1)(b) What is the legal basis for processing? GDPR Art 6(1) lists the available legal bases. Here, consent, necessity for performance of a contract, or a legitimate interest could be a legal basis. They may have further obligations attached. A legitimate interest requires a balancing test that considers the data subject's rights and freedoms. Consent must fulfil the conditions per Art 7 in order to be valid. What is the minimal data necessary to achieve the purpose? Per the Art 5(1)(c) data minimisation principle, it is illegal to process personal data beyond what is necessary and adequate. You must provide data protection by design and by default per Art 25. Special categories of data per Art 9 such as health data are illegal to process outside of narrow exemptions. You must delete data once it is no longer necessary. What appropriate safeguards and security measures should you apply? Per Art 24 and 25, you are responsible for determining and implementing appropriate measures. This depends a lot on your specific context, so there's no checklist you can apply. Per Art 25(1) you must pseudonymize the processed information if that is compatible with the processing purpose. What further compliance measures do you have to consider? There are additional GDPR and non-GDPR compliance measures. From the GDPR side: Use the answers to these questions to write a privacy policy, including the information that you must provide to data subjects per Art 13. Consider whether you have to maintain a Records of Processing document per Art 30, or if you have to make a Data Protection Impact Assessment per Art 35. If you use third party services, figure out whether they are a joint controller or data processor and apply appropriate safeguards. If you have data processors, ensure that you have a contract in place that covers the items from Art 28(3). If you share data with other controllers (not processors) you need a legal basis for doing so. If you transfer data into a non-EU/EEA country (after 2020: non-UK country) you need a legal basis per Art 44 and have to cover additional items in your privacy policy. Ideally, the target country is covered by an EC adequacy decision per Art 45. For US-based companies, this is the case only when they have self-certified under the Privacy Shield framework. Non-GDPR compliance steps could include cookie consent banners, or showing a VAT ID. How can you prepare for data subject requests? Data subjects have various rights per Arts 15–23, subject to the modalities in Art 12. For example, a data subject could request that their information is erased from your website. The exact rights also depend on the legal basis you selected. You should figure out in advance how to deal with such requests. | Term 1 isn't going to hold up, but that is not a GDPR matter. It's just a matter of basic consumer protection law in the EU. You can't offload responsibility for your mistakes. Looking at 2, Dale M. already pointer out that it's now how the GDPR works. You are the Data Controller. X,Y and Z are Data Processors. Article 28(1) of the GDPR is in direct conflict with your disclaimer. You accept zero responsibility, the GDPR says you are fully responsible. That's the exact opposite. | The GDPR gives controllers a lot of latitude. They must decide on the correct course of action taking into account the possible risks to data subjects. Specifically, no notification of the authority is necessary if “the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons.” In your scenario 1, you suggest that there is no breach because there is no evidence that the data was improperly accessed. This analysis is faulty: the controller is aware that the data was not properly secured, and cannot rule out that the data was improperly accessed. I would argue this fits the description of a “breach of security leading to the accidental or unlawful … unauthorised disclosure of … personal data” (compare the definition of a data breach in Art 4(12)). Thus, a data breach has happened. The question whether the supervisory authority has to be notified of that breach is more debatable. The controller must assess the likelihood of risks to the data subjects. Here, they can perhaps argue that the risk of disclosure is low. However, the nature of the breached data would also be relevant. If in doubt, the controller should make the notification. The goal of the GDPR is not to punish unlucky companies that suffer a breach, but to protect personal data. Thus, fixing mistakes and cooperating with the supervisory authorities is likely the best approach for most companies. In your second scenario, the data is sensitive – its disclosure has a high risk for data subjects. However, the risk of someone intercepting this data is debatable. Does the risk of interception balance out the sensitivity of the data? That's the data controller's call, but I don't think so. A notification would seem appropriate here. As a technical remark, simply offering HTTPS is not sufficient to prevent MitM attacks – users must be forced to use encrypted connections. If a controller sees MitM as a risk, they are required by Art 24 to take appropriate technical measures. Here HSTS and HSTS preload would prevent the connections from being downgraded to HTTP. Instead of offering insecure connections, the site would become inaccessible. A complementary strategy is to not serve content over HTTP, but have the HTTP server only issue a permanent redirect to the HTTPS URL. | IANAL, But the information commissioners office (UK) describe personal data as: (bolding mine) The GDPR applies to ‘personal data’ meaning any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier. This definition provides for a wide range of personal identifiers to constitute personal data, including name, identification number, location data or online identifier, reflecting changes in technology and the way organisations collect information about people. https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/key-definitions/ So I would say that in your case it is personal information. In principle, regardless of if you can identify an individual, personal data is that which can be used to potentially identify an individual. For an extreme example of why this is important: Lets say your app sells AIDs medication. Can a hacker who got in and stole your database, be able to use that with information they stole elsewhere to identify people with AIDs and blackmail them, in a way that they wouldn't if you had not stored this identifier? Plus, if you want to err on the side of caution, there's no legal penalty for telling the user about non-personal information you store. | The GDPR does not set fixed retention periods. Instead, it says data may not be kept for longer than necessary. What is necessary depends very much on the specific context of the processing activity, in particular on the purpose of processing. The GDPR allows retention for as long as necessary. For example, businesses (including financial institutions) are required to keep financial records. This requirement stems from EU member state law, which also sets specific retention periods. If a business wants to keep personal data in financial records for longer than this retention period, they can't just point to the law to authorize this processing – they must instead find a different purpose why they need to keep the data, and then find a suitable Art 6 legal basis. In some cases, retention periods might not be coupled to a fixed duration, but to certain events. For example, personal data for online accounts should typically be kept until the account is closed, which is potentially indefinite. This follows directly from the GDPR approach of limiting data storage by necessity, not by duration. All processing needs a clear purpose + a legal basis. In the context of a genealogy site, the site should analyze carefully what data they collect for what purposes. These purposes might enable potentially unlimited retention. But such processing must also be covered by a legal basis, and I doubt that the site would have a legal basis to make such storage irrevocable. If the data is collected based on Art 6(1)(a) consent, then the data can only be used as consented to, and consent can always be withdrawn in the future. If the data is collected based on Art 6(1)(b) necessity for performance of a contract, then the data can be used for compatible purposes in the sense of Art 6(4), but that would require a new legal basis (e.g. legitimate interest). If the data is collected based on Art 6(1)(f) legitimate interest, then the data can be used for Art 6(4) compatible purposes but the data subject has the Art 21 right to object to processing. While a genealogy site may have a legitimate interest in keeping supplied data in order to use it for future research, I think this is a fairly weak legitimate interest that can be easily overridden by an Art 21 objection, which in turn could require Art 17 erasure of the data. The genealogy site should also keep in mind principles like data minimisation and data protection by design and by default, so just keeping data for the off chance that it might be useful in the future is not GDPR-compliant. Data can only be collected and processed for “specified, explicit, and legitimate purposes”. The Art 89 privilege for research purposes also imposes conditions. There is a pretty big carveout in these GDPR requirements for archiving purposes in the public interest, scientific or historical research purposes, and statistical purposes. Specific rules for this exemption are given in Art 89 GDPR. The main value of this exemption is that Art 89 research purposes are always considered compatible with the purpose for which the data was originally collected (cf Art 5(1)(b)), though this might not cover data that was collected under the legal basis of consent (cf Art 6(4)). Other GDPR rules stay intact, and Art 89(1) imposes extra steps to consider: Special attention MUST be given to the data minimisation principle. If the research purpose can be achieved without identifiable data, the data MUST be anonymized. If the research purpose can be achieved with pseudonymized data, pseudonymization MUST be used. Appropriate safeguards MUST be implemented (though this just re-iterates the general requirement in Art 24). In some cases, the research purpose stands in conflict with data subject rights like the right to be informed or the right to object. If so, EU or member state law can provide exemptions from the data subject rights, but can also impose further conditions or safeguards. It is not possible to rely on the Art 89 exception without taking member state law into account. Art 89 does not modify necessity-based retention. Now on to the main question: how long can the personal data be kept for research purposes? While Art 89 research purposes allow us to extend the retention period because we have a new and compatible purpose of processing, it does not affect the general principle that data may only be kept as long as necessary for that purpose. In a scientific context, it would be common to preserve many data sets indefinitely for the purpose of enabling reproducibility of the scientific findings. A privately-run genealogy service might not benefit from Art 89. This “research” angle doesn't seem to be a good fit for a genealogy site. Such a site would typically not be collecting personal data for specific research purposes. At best, it would be operating as an archive of personal data which can be mined by future generations of researchers. But the GDPR specifically only considers archiving purposes in the public interest, which might not cover privately run archives. Archives rely on specific privileges in national laws, and severely restrict access to the information. For example, I'm leafing through the law on public archives in a German state. It forbids access for 10–100 years, depending on the date of death of the data subject and on the age of the documents. This leads me to believe that a privately run genealogy site cannot reasonably rely on the Art 89 exemption, and must instead rely on an ordinary processing purpose + corresponding Art 6 legal basis. This doesn't directly prevent indefinite storage, but means that it will be easy for a data subject to invoke their right to erasure. It is not quite enough to say “we will keep the data indefinitely”, it is also necessary to have a clear purpose for this retention. | I think there are a couple of different ways to look at this. Deduplication is a technical detail that's irrelevant here While the data may be deduplicated on a technical level, the files remain logically distinct. If users 1 and 2 upload identical files, and then one user edits or deletes their file, this will not affect the other user's data. Users cannot tell whether their files are duplicates of someone else. From the user's perspective, it makes no difference whether or not the storage uses deduplication, except perhaps via the cost of the service. Because there is no user-perceptible difference, it would be difficult to interpret some GDPR significance into this scenario. Whose personal data is it anyway? Personal data is any information that relates to an identifiable data subject. The files here are likely to be their uploader's personal data. Thus, the uploaders would also have a right to have their uploaded files erased. In case of deduplicated storage, this would affect their logical copy. The contents of the uploaded files might also be personal data relating to a third party. Then that third party might have a right to get the file contents erased. But this right must be invoked with the data controller for that processing activity, which might be company A, company B, or the uploaders, depending on context. Which leads us to the next aspect: Company A is not responsible for handling erasures From your description, it sounds like company A is a data processor providing services on behalf of company B. In turn, B might be a processor acting on behalf of the uploaders. In any case, it seems that A would not be the data controller for these processing activities. Data subject rights like erasure must be invoked against the controller, as only the controller can understand whether such a request should be granted. The right to erasure is not absolute, and depends a lot on why that data is being processed. In particular: Personal data need not be erased if it is still necessary For example, a person might very well be the data subject of some of these files, and might then ask for erasure. But if the files are being stored because they are going to be needed as evidence in legal proceedings, the data subject can't use this GDPR right to destroy evidence. The data controller would be allowed to refuse a request in such cases. It could now happen that two different users of this deduplicated storage are storing the same file, but for entirely different purposes. Blanket deletion of all copies of a file could be quite problematic. Note that deletion is also a "processing activity" and needs a legal basis under the GDPR. Unexpected data loss could be a data breach. One user's erasure could be another user's reportable data breach incident. Thus, I would strongly expect such requests to be handled on a logical file level, not on the deduplicated storage level. Caveat: public access and cloned files If the (logical) file is made available to the public who can then clone or copy this file, and if the "original" is taken down due to an erasure request (or copyright takedown notice), it might be appropriate to remove logical clones as well. Again, this might not involve deleting the contents on the deduplicated storage level, but it might affect other users' copies. In a GDPR context, the grounds for this would be the Art 17(2) right to be forgotten: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. But this depends crucially on who those other controllers are. If A is the sole controller, the logical files could probably be deleted directly. If B or the end users are controllers, it could be more appropriate to forward the erasure request to them. | I believe in this case, your company (OrgX) is a data processor and your customer's organization (OrgY) is the data controller. OrgY is responsible for establishing a lawful basis for sending you (OrgX) the personal data for their employees. Note that consent is just one of six lawful bases outlined in article 6(1). I'm no expert, but I believe OrgY's admin can claim they have a legitimate interest in sending their employee's personal data for training sake. In either case, the data processor is not responsible for establishing the lawful basis for processing. Of course, data processors aren't completely off the hook. GDPR outlines specific requirements for data processors (see chapter 4, particularly article 28). |
Can code logic be copyrighted? Scenario: I work at company A and write some code for them which is something trivial but used in a product that is proprietary and hence the code is company property. Then I leave the company A and join company B. Company B needs something that can use the code and logic I learned in company A. There is very little I can change in code I learned at company A to get the similar functionality. Question: Am I infringing on the copyrights of company A because the code is similar? Is it possible to copyright ideas and logic such that if you designed something in company A you may never design it, even from scratch, in company B? Are there any workarounds? Otherwise you'd run out of your skills due to all your work being copyrighted somewhere or other. | Algorithms can be patented, e.g., https://en.wikipedia.org/wiki/RSA_(cryptosystem)#Patent (and see, e.g., https://en.wikipedia.org/wiki/Software_patent for further discussion). Copyright is only for specific code. So if your Company A has copyrighted the code you wrote, but not patented the algorithms implemented by that code, then you can subsequently go to Company B and legally reprogram those same algorithms. | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. | In general, using content provided by another who incorrectly posted it under a permissive license, such as a CC license, does not grant a valid license from the real copyright holder. That is, if A writes some code (or a song, or creates an image, or whatever else), it is protected by copyright. If B then posts it to the web, with a statement that it is released under a particular license, without having obtained permission from A, then B's "release" is of no value, because B had no rights to grant. If C downloads and uses this content, relying on B's license, then A could take legal action against C. C would probably be considered (in the US) an "innocent infringer" which reduces the minimum statutory damage amount, but does not otherwise change C's legal position. A could, if it chose, bring suit and possibly obtain a judgement including some damages. But to return to the practical case of code posted on one of the SE sites. Given the comparatively short code sections usually posted, and that they do not usually form a complete working program, and given further the stated educational purpose of SE, it is likely that in US law such a posting would constitute fair use, and in the law of other countries fall under one or another exception to copyright. That is a general conclusion, the details would matter. I have not heard of a case similar to that suggested in the question. I find it unlikely that an SE poster would post copyright-protected code without permission, that is valuable enough to be worth an infringement suit, and substantial enough and having enough effect on th market for the original to be outside the protection of fair use. Such a situatiion is, of course, possible, even if unlikely. Note that a cease-and-desist letter is not a court order, and is really only a threat of court action. its only legal effect is to put the recipient on notice, so that continued infringement is not without awareness of the copyright claim. To have legal effect the claimant must actually bring an infringement suit, which is not without cost. | All your work is yours. They've made it very clear it wasn't a work for hire, so it's yours. They can't copyright any of their ideas. You can't copyright an idea. Only specific creative elements authored by them and present in your work could be covered by copyright. You didn't use their block diagrams. I don't see how references to other sites to look at would constitute a creative element they authored. That said, you probably want to talk to a lawyer and get a written legal opinion that you can rely on. | The basic principle about copyright protection is that the expression of an idea is protected, but the idea itself is not. So wholesale copying without permission is infringing. But the abstract algorithm is not protected by copyright (and let us assume that it also isn't patented). By way of analog, an insertion sort is a pretty easy concept to grasp, and once you understand it, you can re-create it, independent of how the original example (where from you learned about the sort) is expressed. So the question is whether it is necessary for you to copy that code (copyright protects against copying), or can you independently re-express the algorithmic idea (ideas are not protected)? | The designer/company owns the copyright to the original work, you own the copyright in the derivative work (the screenshot). However, your work is subject to whatever rights your license to use the game gives you and fair use/fair dealing. An example of a company attempting to enforce copyright from screenshots/screen recordings can be seen by the Nintendo Creators Program. | First of all being the "founder" of a startup in no way implies that one wrote all the code of the startup's primary or signature app. The founder could have hires coders, or had partners, or used open source code. But let's make some assumptions. Suppose Alice has created a startup, and wrote the code for an application. Suppose Bob invested in the startup, and got 30% of the stock, What rights does Bob have to the copyright on the code? It depends entirely on what agreements Alice has made. Alice might have sold or assigned the copyright to her startup firm, call that F1, If so, F1 owns the copyright, and Alice can't reuse it without F1's permission. If Alice has retained the other 70% of F1, she controls it and can have it grant her whatever permissions she likes. But if she has sold or assigned a majority shore to investors, she will need to persuade the management of F1, or a majority of the shareholders, to grant her permission. Alice might have merely licensed the code to F1. In this case she retains the copyright. If the license was not exclusive, she can use the code as she pleases, but so can F1, in accord with the license. In neither case does Bob directly own the copyright, or a share in it, unless a separate agreement granted or sold that to him. But he has a right to a share of the profits, if any that F1 makes, and a right to vote on decisions that 1 makes, long with other owners of F1 If Alice never formally transferred or licensed the software to F1, she still owns the copyright and can do as she pleases, even if shew sold most or al of F1 Note that to transfer a copyright there must (under US law) be a written and signed document, one signed by the owner or the owner's agent. It must specifically indicate what copyright(S) it transfers. A purchase of an interest in a business does not suffice without such a document. | You have a false premise: "it offers the same conditions", and "MIT license is functionally equivalent to CC-BY". These premises are not true. CC-BY: applies to more than just software; it applies to artistic or literary work, databases, other material disclaims endorsement explicitly withholds moral rights explicitly does not license patent rights (MIT license gives anyone who obtains a copy of the software the right to use it, a patent right) prescribes the acceptable forms of attribution Those are just some of the differences. |
Does GDPR affect individual contributor license agreements for opensource projects? I am wondering, if GDPR affects OSS projects that have an Individual Contributor's Licensing Agreement / (a.k.a. ICLA, or just CLA), such as for example Apache 2.0. The gathered information when signing one of these (name, address, phone, e-mail) as a code contributor is not shared with third-parties, but is required in order to avoid copyright claims. | Short answer: No Long Answer: Presuming the CLA informs the Data Subject of what information is gathered (pretty self explanatory, the Data Subject is putting the information in the CLA) and what it will be used for. Then by them submitting a CLA they are giving consent to what the CLA states. As Shown below a CLA can qualify under all 6 lawful reasons for processing personal data. One of the reasons is a stretch, another a possible stretch, the rest apply. Keep in mind though if the CLA does not or did not specify what the information was to be used for then those documents are in violation of the GDPR. In the case where a CLA was signed prior to May 25th 2018 you have two choices. Destroy the documents or retrieve consent for the information obtained in those documents for the purpose of the license to avoid copyright claims. Consent must be informed per Recital 32 of the GDPR. A CLA is a contract. Thus falls under the following: Article 6: Section 1a: the data subject has given consent to the processing of his or her personal data for one or more specific purposes; Presuming the personal data is only used for what the agreement states it will be used for. Section 1b: processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; You entered a contract which should state what the information is needed for. Thus that information is necessary for the performance of that said contract. Section 1c: processing is necessary for compliance with a legal obligation to which the controller is subject; Technically the controller is the natural person or entity responsible for the OS Project. The license attached to the OS Project is their choice. Depending on the chosen license and the CLAs. They may be able to modify that license (re-release under a new license). And thus they aren't technically legally obligated themselves to follow the copyright license themselves. However if the chosen license doesn't give them ownership of the contributed code nor does the CLAs; the license itself requires CLAs, then the information gathered in a CLA is a legal obligation. Though you would be hard pressed to fall into this category. Section 1d: processing is necessary in order to protect the vital interests of the data subject or of another natural person; Only applies if the OS Project is led by a natural person and not an entity. Section 1e: processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; Possibly, might be stretching it there. Though I personally believe an OS Project is generally in the public interest. Section 1f: processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. The legitimate interest here would be the copyright license of the OS Project. | Per the comment, the applicable license term seems to be Licensee agrees to maintain in confidence the source code version of the Licensed Software by using at least the same physical and other security measures as Licensee uses for its own confidential technical information and documentation, but in no case less than reasonable measures. So if your own code is on a physically unconnected thumbprint-secured blah blah blah computer deep in a mountain, with files encrypted, so must theirs be. If yours is stored in "the cloud" with decent password protection, theirs must be as well. This seems to describe your Github use (I don't have any knowledge of the degree of hackability of private Github repositories). The legal judgment as to whether this is "reasonably secure" is based on whether a prudent person would know that it is practical to gain unauthorized access. Protecting a file with the password "password" would probably be found to be unreasonably insecure. | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. | This issue touches upon two distinct GDPR rights: Art 15 right to access: you have a right to receive a copy of all personal data concerning you that are undergoing processing (including storage). Access may only be denied where this would “adversely affect the rights and freedoms of others.” Art 20 right to data portability: if processing is being carried out by automated means, and processing is based on certain legal bases (consent or contract, but not legitimate interest), then you have a right to receive a copy of your personal data in a machine-readable format, for personal data that you have provided to the data controller. Whereas the right to access is fairly straightforward, the right to data portability applies under much more narrow conditions. Basically, it's a right that you can download any data that you've uploaded so that you can move to a different service. Google Takeout is primarily concerned with your right to data portability, and provides your data in a machine-readable format. Any photos that you've uploaded to Google Photos, you'll be able to download. Thus, it could be technically compliant to exclude information that they've inferred about your personal data, such as image-recognition results. Such results would still be personal data under the GDPR definition of the consent, and would be covered by your right to access. Google might argue that you already have access to this data through the web interface. In my opinion the GDPR clearly requires the data controller to provide a “copy”, i.e. the data in some durable form – not merely access through a web interface. Whereas your question is specifically about Google, the same issue applies to other services as well. E.g. Ruben Verborgh has an interesting blog series on trying to get access to all their data from Facebook, though unsuccessful so far. Similar to your scenario, Facebook offers a download for personal data but does not include all personal data in this download. In one of the documents provided by Facebook in the course of the exchange, they note that they allow access to photo tags through the web interface, but do not include this in downloaded data – without providing further justification. | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. | The cookie consent requirement comes from the ePrivacy Directive, not from the GDPR. While the GDPR defines consent, cookie consent is required regardless of whether the cookie actually contains personal data. Instead, it says we can access information stored on an end users device under the following circumstances. Technical access to the information is used for the sole purpose of performing a transmission over a network, e.g. using a browser cache. Accessing the information is strictly necessary for providing a service explicitly requested by the user, e.g. session cookies or a consent-declined cookie. The user has given consent to the access, where consent is defined by the GDPR (freely given, informed, specific, …). The first scenario likely doesn't apply because your cookies aren't likely to be “technical storage or access” in the sense of ePrivacy, and because the tracking cookies wouldn't be used for the sole purpose of carrying out a transmission. The second scenario doesn't apply because tracking cookies are not strictly necessary to interact with the webshop, as evidenced by the possibility to opt out. The service explicitly requested by the user is the webshop or website, not the A/B testing. This only leaves consent as possible grounds for storing or accessing information on the user's device. It is already the storing or access that is covered by ePrivacy, not only later use as a persistent identifier. Your suggestion – to first set the cookie and then delete it if it shouldn't have been set – is more compliant than many set-ups I've seen, but is still technically non-compliant. It is also likely to fail in practice under non-ideal network conditions: if the request to see whether GDPR applies times out, or if the user closes the browser tab before the cookie will be deleted, the tracking cookie will remain without consent. I would instead suggest to consider the following points. It seems that by itself, Optimizely Web cannot be used in a compliant manner since it doesn't provide sufficient control over how cookies are managed. Thus, you should avoid loading such tracking scripts unless consent has been given, or unless this processing falls outside of EU/UK law. Currently, you defer loading of tracking scripts until you know if you have to ask for consent. This can be avoided if you always ask for consent :) This can also be avoided if you load the tracking scripts from a server that can independently determine whether the requests comes from the EU. For non-EU requests and for users with opt-in, the server can return the original tracking scripts. Otherwise, the server returns a dummy script. This server can be independent from your website's hosting. By combining the jurisdiction decision with the loading of the script, one roundtrip is saved and latency is reduced. Finally, no one is forcing you to use Shopify, and ePrivacy/GDPR is not required to accommodate their limitations. You do have different choices: use Shopify, at the cost of slow pages and limited A/B tests use a different A/B test provider that can be used without setting cookies use edge computing to do stuff in between of the browser and the original server use a different webshop platform ignore EU laws Well, one of them is clearly unethical. But you do have choices, and which choice you take is a business decision. Slow pageloads and consent banners are likely costing you conversions, but Shopify might be providing massive value that outweighs all that. | Yes, there would still be an obligation to comply with erasure requests – if the data subject can be identified, and if the GDPR applies. This is a case for Art 11 GDPR: processing which does not require identification. The pastebin site is not required to collect identifying info just in order to facilitate later deletion. If the site is unable to identify the data subjects, then the data subject rights (like access, rectification, erasure, restriction, or data portability) do not apply. Other rights like the right to be informed and the right to object do remain, though. But if the data subject provides sufficient additional information that makes it possible to identify their records, then the data subject rights apply again. In practice, this is likely going to mean that anyone with access to a paste will be able to request deletion, since the site would have no ability to verify the identity of the data subject beyond the information in the paste. None of this absolves the site from implementing appropriate technical and organizational measures to ensure the security of this data. Even though the pastes might not be directly identifying, they are personal data and are far from anonymous. Common practices like numbering pastes with a sequential ID or showing recent pastes on a homepage have to be viewed critically. My go-to recommendation is to assign a cryptographically random UUIDv4 ID to the post, so that it is practically impossible for anyone to find the paste unless they were given a link by the uploader. Your idea to delete pastes after a fairly short retention period is also good. This helps with security, and it is in line with the GDPR's data minimization and storage limitation principles: data may only be kept as long as necessary for its purpose. On the other hand, quick deletion might not be in line with the purpose of these pastes – it all depends on context. You mention that this is an US-based site. If so, there's a question whether GDPR would even apply. GDPR will apply per Art 3(2) if the data controller is offering its services to people who are in Europe. Here, “offering” does not mean mere availability of the website, but that the data controller intends the service to be used by such people, in particular if the service is somehow targeted or marketed to such people. | Since you are from Europe, GDPR applies to all your processing activities per Art 3(1) GDPR, regardless of where the users are located. If you would like to avoid GDPR compliance, you would have to manage your business from abroad so that you no longer have an European establishment, and would have to avoid offering your services to people who are in Europe. So let's assume that you have no European establishment. Then, GDPR can only apply per Art 3(2) to those processing activities that relate to offering goods or services to people who are in Europe. For determining this, IP-based geolocation is indeed common. Very likely, you do not need consent for this. GDPR does not require consent for everything, just a legal basis. There are six potential legal bases in Art 6(1), though the relevant ones are consent, necessity for performing a contract, legal obligations, and necessity for a legitimate interest. For things like security checks, it would be common to claim a legitimate interest. Complying with GDPR can hurt revenue. However, data subjects have a right to data protection, but you do not have a right to a particular business model. Similarly, paying taxes can "hurt revenue", but it's not really optional. If your business model can't deal with GDPR compliance (or with taxes), it might not be a sound business model. In Europe, many newspapers have since moved from advertising-only to a consent-or-pay model. That is, the user is given a choice: You can read articles without tracking if you buy a subscription. You can access articles for free if you consent to tracking. The legality of this is hotly debated. In principle, such an approach can be compliant, but the details are problematic, for example that you can only buy subscriptions rather than individual articles, and that these subscriptions are often orders of magnitude more expensive than what would be earned through ads. But this might actually be easier to solve for a mobile application than for a website, due to the availability of in-app payment and micropayment infrastructure. In any case, GDPR limits how much you can "encourage" consent – per Art 7(4), you cannot make access to your service conditional on consent. There must be a way to use your app without consenting to anything, unless that consent is actually necessary for the app to work. For example, consenting to camera access is necessary for a QR code reader app to work. It is extremely unlikely that ads would be necessary in this sense. Users also must not suffer detriment for declining or withdrawing consent. From this, the EDPB has developed the concept of "permissible incentive" in their guidelines on consent. In this post, "Europe" means EU/EEA/UK as appropriate. |
Is it illegal to order food and then not pay for it when it arrives? If someone orders a lot of food, lets say over $500 worth of food. Then when the food arrives, the person denies ordering it (they used an email which to order it which is anonymous) and say they do not want the food. Do they still have an obligation to pay for the food? This is taking place in the Netherlands | If they really ordered it, they entered into a contract, and you have a claim against them for damages suffered because the contract was breached. This would be a civil claim, not a criminal claim, in the Netherlands. However, if you're delivering an order that was sent anonymously, you have no way to prove that the person at the door is the one who ordered the food - and the onus would be on your to prove that it was. It could become a criminal act under a number of laws ("oplichting", "fraude", etc.) if intent can be proven but that's not easy - and you first have to get the police/public prosecutor interested in the case. It's quite comparable to someone ordering in a restaurant and not paying the bill, which is notoriously hard to prosecute criminally in the Netherlands. (Search for "eetpiraat" - dinner pirates) As a restaurant, you usually can only try to enforce a civil claim through the civil courts. | Who in the fraternity would be prosecuted if this became an issue? A lot of people could be held liable for this, including people who are not even in the fraternity. Anyone who has knowledge of the machine or the fact that it was possible for minors to access alcohol through it could technically be held liable if a prosecutor wanted to make that case. Presumably the building is owned by someone else and just leased out to fraternity members, and they very well could be held liable for sale to minors also. Would the machine be safer if it just accepted cash (so that no electronic paper trail was created), with a big warning sign WINK WINK that anyone under the age of 21 was strictly prohibited from purchasing from it? No. Payment method is irrelevant here. There are a number of states that legally allow vending machines to sell alcohol, but vendors are required to verify the age of any person accessing them and ensure that those cards aren't being used by people not authorized. What you describe is an extremely relaxed environment where admittedly no one is attempting to verify identities. The "accepting cash" scenario is no different than a liquor store selling alcohol to anyone that comes in just because they're willing to pay with cash instead of a credit card. Sales to minors laws are not "as long as you warn them, you're safe" laws. They require vendors to actively check IDs and ensure that alcohol is not landing in the hands of minors. Accepting cash just to erase the evidence doesn't meet that burden. There are a lot of legal troubles with the situation that could get a lot of people charged with multiple offenses. That you have underage fraternity members living there suggests you should not have alcohol readily accessible in the house at all, as most state laws expressly forbid providing access to alcohol, not just serving or selling. Them being there provides access to it, even if it's just a case in the fridge with a note on it. Not to mention, you technically cannot sell alcohol, as I highly doubt your fraternity has a liquor license to be able to do so. There's a big difference between asking everyone to pitch in to buy the case versus actively selling individual cans through a vending machine. The vending machine itself is violating liquor laws in your state merely by existing. | Private carriers typically (and UPS in particular) only have a contractual obligation to the person who pays to send the package. Unless you're the one directly paying UPS to deliver the package you have no legal recourse because you're not a party to the "contract of carriage." It does seem like you're suffering due to contractual and operational failures of UPS, but your recourse is against the merchant you paid for the goods, because you also paid them for delivery. The merchant has recourse against UPS under their contract if they want to pursue it. Legally: UPS does not have a monopoly on shipping, and their contractual duty is only to their customer. The best you can do is encourage those from whom you purchase to aggressively claim against UPS for delays, and to use other carriers when possible. | No it’s not illegal It’s called retailing: https://youtu.be/ywSkKkuGQ2A https://youtu.be/k8OreiHU91Y https://youtu.be/XpR6y1sNArU You are allowed to advertise the products you sell. Even if you don’t make them. You can even use their trademarks to identify them - that’s what trademarks are for. | As described, no. Paying employees with benefits instead of money is called in kind remuneration. There are various limits on in kind payments around the world, including the US. Very generally, in kind payments are only allowed for particular industries and occupations, only allowed up to a certain dollar value, and only allowed as a certain fraction of the employee's wages. Furthermore, the value of the benefit can't exceed the actual cost to the employer - a meal that's priced at $7.25 on the menu is sold at a profit, and would be worth less than the menu price as in kind remuneration. So, given the scenario described, a restaurant employer could not replace 100% of their employee's wages with food sold for the same amount. It's too high a percentage of the wage paid as in kind payment, and the menu price equivalent of the wage would not have sufficient in kind value. A more detailed description of in kind payment laws can be found here. It's a rather long document that's not particularly well-organized, and is structured by describing various aspects of law in different geographic locations, rather than describing all aspects of the law in a location-specific manner. I was able to find US-specific law by searching the document for "United States". | There is, in most countries at least, no law requiring a business to treat a customer fairly. In general, a business may refuse to serve a would-be customer for any reason or none, provided that the reason is not membership in a protected class (racial, religious, ethnic, or sexual bias, mostly). Exactly which classes are protected depends on the local law (in the US, there can be such laws at all of federal, state, and municipal levels). If a customer is asked to leave and does not do so, s/he could be charged with defiant trespass (or local equivalent). More likely, security, or the police, could simply escort the customer out of the business, using as much force as is reasonably needed for that purpose. Unless there are grounds for action not mentioned, I see no basis for a successful suit by the customer. | There is no general law making it illegal to lie about debts, or anything else. It is illegal to lie to a law enforcement officer in the course of an investigation. (And of course it is illegal to lie in court testimony or when otherwise under oath.) But it is in no way unlawful to decline to answer, unless a proper court order has been obtained, or other lawful means of compelling an answer. I would expect any law office to respond to such a question with something like "Am I/we being investigated? If so, send the appropriate notice and our lawyer will consider what we should tell you. If not, tell us what information you want, and we will consider and provide a written response in due course." If a taxpayer has been found to be delinquent in paying taxes, in some cases a court order may be obtained seizing assets, including unpaid debts. But no IRS agent can make such a claim on the spot, and indeed for a client to make such a payment without such a court order, or the order of an IRS tribunal (or the creditor's written consent) would itself be unlawful and would subject the lawyer to a suit by the PI (Private Investigator). When the lawyer pays a service provider, a 1099 must be filed with the IRS. If the PI is a corporation, a different form is used, but a record of payment is still required. As failure to timely file such a form is a violation of the tax code, an accusation of paying without filing would permit the lawyer to decline to answer under the Fifth amendment. If the lawyer did pay and did file a 1099 or other documentation, the IRS would know what had been payed, and would not need to confront the PI. Also, as the comment by Hilmar points out, a PI would be likely to use the cash accounting method, and so would own no tax on work performed but unpaid (as yet). So unless the IRS agent thinks the PI was paid "off-the books" and is intentionally failing to report the payment, there would be no point to such a question. And if that were he case, the lawyer would be very likely to decline to answer. I find the story quite implausible. | Extrajudicial implies there is some weight of law behind the casino behaviors you describe. I don't think there is. For example, refusing to cash out chips could just be a management intimidation tactic to try to coerce the customer into agreeing to be "questioned." Which the customer would be under no legal obligation to do. Card counting can't be proven if the counter is not using a device of any kind. The casino can refuse to serve the customer and expel the customer but they can't unilaterally keep the customer's money by not cashing the customer's chips without a judgment. I am not an attorney. This answer is not legal advice. |
Required data entry seemingly against GDPR From https://security.stackexchange.com/questions/186327/why-do-some-gdpr-emails-require-me-to-opt-out-and-some-to-opt-in : As a consequence the "G29", the group of national data protection authorities in the EU, affirmed that if a user has no real choice, feels constrained, or will face negative consequences for refusing consent, then the consent given is not valid. The G29 therefore affirmed that GDPR guarantees that giving consent to processing personal data cannot be the counterpart of providing services. Spanish law demands that anyone providing hospitality enter personal data into a database on every guest within 24 hours. Seems like we would have to start asking guests to sign a stupid consent form, and not let them stay if they don't. But that would violate what's quoted above. If we let them stay and don't enter their data, https://www.vacaciones-espana.es/rentalbuzz/policia-explica-el-proceso-de-identificacion-de-viajeros-en-vft says we are subject to huge penalties. If we enter their data without their consent, we AND the Guardia Civil are violating the law. At least that's my untrained interpretation. What am I missing? | Consent for processing someone's personal data is only one of the possible requirements to process that person's personal data. The options listed in Art. 6.1 are (text in Spanish, with links to other languages): a. the data subject has given consent to the processing of his or her personal data for one or more specific purposes; b. processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; c. processing is necessary for compliance with a legal obligation to which the controller is subject; d. processing is necessary in order to protect the vital interests of the data subject or of another natural person; e. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; f. processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Obviously, your case meets the criteria for c.1 So, you do not need consent from your hosts, and your hosts do not have to sign any consent and they cannot refuse to provide their data if they want to reside at your dwelling. The moment you ask your hosts any data to which you do not have a legitimate interest, you need the consent. And you cannot refuse hospitality to your hosts if they do not want to provide that piece of data. Anyway, maybe it would be a good idea to print a leaflet explaining why you require their data in case they have any doubts. 1 For the Guardia Civil, it would be c. and maybe a few more cases. | The status of any PII (Personally Identifiable Information) is the same in GDPR regardless of location, or who enters it. Its goals are (among others) to stop any actor (company / government or other) from hiding responsibility about their use and practices around people's data. GDPR does even apply to anything offline and on paper. Basically it means you have to validate any entry field is free of PII before processing it. Or make it clear in your privacy statement how you handle this use-case. | There is nothing extraterritorial about these laws. If a company sells a good or provides a service to individuals based in the EU, then this good or service has to comply with EU laws. This concept is self-evident for physical goods that are produced anywhere in the world and then sold in the EU and the GDPR just applies this concept to services provided over the internet. The same legal concept also holds in all other major jurisdictions. The only thing that makes this more complicated for the GDPR is the actual enforcability of these laws but that is a technical issue not a legal one. | Per Art 3(2), GDPR only applies to non-European companies when their processing activities relate to the offering of goods or services to people in Europe, or when the processing activities relate to monitoring people in Europe. However, the word “offer” of this targeting criterion requires some level of intent. It is not enough for GDPR to apply that they're marketing to someone who happens to be in Europe, but GDPR would apply if they are intentionally marketing to people who are in Europe. I don't know what they are marketing, so I don't know if that would be the case here. Even if GDPR were to apply, it would not be the most appropriate law. Yes, there's the GDPR right to erasure, which applies under some conditions (though there's a pretty absolute right to opt-out from marketing). The EU's ePrivacy Directive provides more specific rules though, in particular that every such marketing email must offer a way to unsubscribe. Other countries have comparable anti-spam laws, potentially also the home country for this online service. | Whether GDPR applies does not depend on the country of residence. Instead, GDPR applies to a non-EU site or service if the data controller offers products or services to people in the EU (see Art 3(2) GDPR). This depends solely on the behaviour and intent of the data controller / the provider of the website – compare also the discussion of the “targeting criterion” in EDPB guidelines 3/2018 on the territorial scope of the GDPR. While your proposed measures might not be entirely ineffective (in that they document an intent to not serve people in the EU), they are both unnecessarily restrictive and overly lax. For example, they would unnecessarily prevent EU tourists in the US from registering but would nevertheless allow US tourists in the EU. For the targeting criterion, it matters whether the data subject is in the EU at the time of the offer, not at all what their residency is. Even if a person who is currently in the EU registers with your service, that doesn't necessarily mean that you are targeting people in the EU. Instead of implementing signup restrictions, a better strategy might be to clarify in the copy on your website that you are only targeting the domestic US market, not the European market with your services. I have discussed this in more detail in an answer to “How can you block GDPR users from US based sites?” If you have a site where GDPR doesn't apply, and you receive a GDPR data subject request, you shouldn't deny it on the basis that the user must have lied – instead you can deny it on the basis that GDPR just doesn't apply to you. | These documents constitute personal data and - in principle - you, as the subject, have the right to get a copy of them by issuing a "subject access request". The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form. (Art. 15 (3) GDPR) GDPR applies to controllers of any kind, including government organisations. The subject access request can usually be a simple email. The ICO has a template for this: https://ico.org.uk/your-data-matters/your-right-of-access/ (but keep it simple, you can literally just ask for "all personal data" they have on you; no need to speculate on what kind of data they may have). The subject access request is sent to the actual controller, but if you don't get a response to your request after 30 days, you can file a complaint with the supervisory authority (see here for Germany; note that federal institutions are supervised by the BFDI, not the data protection authorities of the Länder). Also note that you may have to go through some trouble to be properly authenticated by the controller. They do need to be certain that you are the data subject. There are also reasons why a controller can refuse to provide some or all of the information (e.g. if your request is clearly excessive or unfounded, if it's impossible to comply without violating another data subject's rights), but I would be surprised if any of those applied in your case. Your rights can also be restricted depending on the legal basis for processing. This includes rights that are illogical as well as some that provide special protection for processors: You can't object to processing based on consent (but you can revoke your consent), fulfilment of contract (but you can cancel your contract), a legal obligation on the part of the processor, or a vital interest (but you still have the right to erasure) Your right to portability and right to erasure does not apply if processing is based on a legal obligation or a public task (justice, parliamentary or government functions, statutory functions etc.) your right to portability also doesn't apply if processing is based on vital interest (e.g to protect someone's life) or legitimate interest of the processor. It is possible that processing all or some of your data was based on the performance of a public task, in which case they will refuse your request. | In short, no. Article 20 of the GDPR covers the “Right to data portability”, which essentially says two main things: The data subject had the right to an exported copy of their personal data in a common format And The data subject has the right to have this data transmitted directly from one controller to another where technically feasible. Neither of these rights as stated in the GDPR require the data controller to provide a button to initiate either a data export or a transfer to another controller. | GDPR defines the responsibility of Companies to ensure that Personal Data in their possession is maintained Secure ensuring Confidentiality and Privacy towards the Data Subjects to whom it pertains. Prior to the Articles themselves, there are notes and over (49) one may read that companies must have in place (where applicable) mechanisms like CERT and any other SECURITY assuring tools/ processes. (83) again is all about ensuring Security. (94) reads that if the Controller (company) find it cannot ensure Security it must stop processing activities and report to the Supervisory Authority for guidance and support. Then we have Article 3 (f) establishing that it is the company responsibility to "... ensures appropriate security of the personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organizational measures (‘integrity and confidentiality’)..." Bottom line... T&C Companies must ensure that Personal Data is processed by them (and that includes communications) are Secure while ensuring Confidentiality and Pricavy towards the Data Subjects. The wording "...commercially reasonable efforts..." is wrong, because it is not something that may be a legal requirement or not depending on "cost"; it is a Legal Obligation. Then "... the Internet is not an inherently secure environment and so we cannot guarantee the security of your Personal Information..."; this is just "poor legal advice" for GDPR does expect companies to make the Internet safe, it expects companies to maintain their IT Landscape safe... an analogy can be made about going through a group of sharks in the ocean while just swimming or on board of a big boat... the ocean is dangerous due to the sharks, yet if you are in a big boat, you won't even notice them. Then the "cherry on top"; "... e assume no liability for any disclosure of data due to errors in transmission, unauthorized third-party access or other acts of third parties, or acts or omissions beyond our reasonable control..."; now i really do not know which lawyer has written this, but it basically reads something like: "the law obliges me to ensure you are safe... however I am not able to". Now, I have seen similar "statements", but I must confess it was like 2 or 3 years ago... most companies have corrected them over time and since they become aware that penalties were for real. Just a final disclaimer It is a fact that while in transit (over the Internet) a message being delivered through a T&C Company Services will travel through 3rd party infrastructure contexts, rendering it at risk ... however, if it is properly encrypted (as it should) the transition time will not be sufficient for a successful breach attempt. So, yes they are capable of ensuring all they have stated they can not. |
Is it legal for a vending machine (company) to offer additional purchase options after currency has been inserted? Would it be legal to have a vending machine which could, let’s say through a touchscreen, offer different purchase options. For example a $1 soda machine. You put in the dollar and push the cola button. The machine has the screen and, randomly, flashes two buttons… Continue with cola purchase or entertain different options. You click different options and perhaps it asks: “Would you like two root beers instead? One will not be cold because we’d ask if you to have it later, perhaps with a meal.” Or maybe... “ we like to have more people try our orange soda. For an additional $.50 you can have two cans of orange soda.” | I am not aware of any law making this illegal. You need to avoid any "bait and switch" tactics, though, like initially offering cola for $1 and then not actually letting them buy it for that price. | Typically, these notices are required where the individual packaging lacks the statutory nutritional and warning labels. If this is the reason for the prohibition, selling them separately is a breach of public health law. It may also be a breach of contract with the vendor of the collective pack. Breaking them up and placing them in vending machines, even if those are not accessible to the public is probably unlawful. | It is not uncommon for a company to issue additional shares to shareholders instead of paying a cash dividend. This is known as a "stock dividend". Such payment may (less commonly) be in shares of another, often related, company. If that is the source of the stock in question there is nothing illegal about it. Your broker should have a record of your transactions and whether any stock came from a stock dividend or some other source. Accordion to the Investopedia article on "Stock Dividend": Also known as a "scrip dividend," a stock dividend is a distribution of shares to existing shareholders in lieu of a cash dividend. This type of dividend may be made when a company wants to reward its investors but doesn't have the spare cash or wants to preserve its cash for other investments. Stock dividends have a tax advantage for the investor. The share dividend, like any stock share, is not taxed until the investor sells it unless the company offers the option of taking the dividend as cash or in stock. A stock dividend may require that the newly received shares are not to be sold for a certain period of time. This holding period on a stock dividend typically begins the day after it is purchased. Understanding the holding period is important for determining qualified dividend tax treatment. The Wikip[edia article "Dividend" says: Stock or scrip dividends are those paid out in the form of additional shares of the issuing corporation, or another corporation (such as its subsidiary corporation). They are usually issued in proportion to shares owned (for example, for every 100 shares of stock owned, a 5% stock dividend will yield 5 extra shares). (emphasis added) So dividends payed in the stock of another company are perfectly possible, although less common. | A reasonable person might well believe that your enterprise is being sponsored by or is affiliated with Amazon, and so you would be infringing Amazon's trademark. Even if there is no reasonable confusion, Amazon might well think otherwise and take legal action against you. You don't want to start a business by defending a lawsuit, even if you win, particularly not a suit from your supplier. Why not choose a different name, particularly as that would make it easier to expand into non-amazon cards later? Something like 'Buy Better gift cards' or 'Gift Card World' might be a better choice. In general, you may not use a firm or product name that would cause reasonable consumers to confuse you with the trademark holder, or to think that you are endorsed by, affiliated with, or sponsored by the trademark holder without permission (which you are not likely to get). | Would I sue seller or manufacturer for a new appliance that does not function correctly? You have viable claims against both seller and manufacturer, and you may sue both of them in the same complaint. Hopefully the tech's assessment that you "should get a new machine" is in writing, since that evidence seems dispositive (i.e., decisive) and immune to manufacturer's potential denial. Regardless of what approach you choose, the award you might be granted is subject to the prohibition of double recovery. It seems that the seller's directions were purposefully dilatory. Coupled with its subsequent pretext about expiration of the 30 day period, seller's conduct is in violation of legislation regarding unfair and misleading practices. Your post does not specify which jurisdiction in the US you have in mind, but consumer protection laws are rather uniform all over the country. If the provision of 30-day return period is reflected in a document such as the invoice, or in seller's signs/advertisements, you also have a claim of breach of contract for seller's failure to abide by the corresponding clause or policy. A similar rationale applies with respect to the manufacturer. The manufacturer is not entitled to arbitrarily postpone compliance as to the warranty. Seller's 30-day deadline serves as comparison in your argument that the manufacturer's open-ended schedule is excessive, a schedule which is on top of the delay from the interactions with both techs. if I win, what do I do with the dishwasher? Wait for the party who reimburses you or replaces the dishwasher to determine whether it opts to take the defective dishwasher. That party is responsible for transportation costs and related expenses if it decides to pick up the appliance. If the party is not interested in retrieving the defective appliance, make sure it signs a waiver. Otherwise you would be at risk that that party maliciously tries to turn the tables by alleging that you unlawfully got a second dishwasher for free. | Yes, it's absolutely legal. It turns out that UK retailers offer replacement out of their own politeness and are not required to do so by law. If they gave you refund then that's all they need to do. | Do you have a contract? It depends on the website’s terms but almost certainly not. It is standard practice in e-commerce terms and conditions that your selecting “buy” and giving the vendor money does not create a contract; you are merely making an offer that the vendor can accept or reject. For example, Amazon’s terms are clear that the contract only comes into existence when they dispatch the goods, until then they are free to cancel your order and return your money. Here the vendor rejected the offer. Is this false advertising? Maybe. It would depend on the specifics of the ad and whether, overall, a reasonable person would be mislead or deceived. It’s possible you misunderstood but that doesn’t necessarily make it misleading or deceptive. I misunderstand a lot of things; that doesn’t mean they were objectively misleading or deceptive. Notwithstanding, a business does not have to make good on false advertising. An incorrect advertised price does not force the business to anccept offers of that price. It may force a correction and may require the item to not be sold until the price is corrected and it may expose the business to fines, but it does not give anyone the right to buy at that price. | It is legal, though not if the grounds are illegal discrimination (race, religion, etc), which by their (empirically supported – they raised the price) representation is not the case. As a marketing strategy (pick a low number, hope for a bidding frenzy that drives the price up) it is legal, though carries a non-trivial risk. It does not constitute "bait and switch" under any definition of the term, and it is not illegal to engage in a business practice that causes someone to frown, or otherwise disapprove. |
Has "deceiving a machine" been prosecuted/defined in practice? Alaska Statutes - Section 11.46.985 ("Deceiving a machine") states: In a prosecution under this chapter for an offense that requires "deception" as an element, it is not a defense that the defendant deceived or attempted to deceive a machine. For purposes of this section, "machine" includes a vending machine, computer, turnstile, or automated teller machine. Has anybody been prosecuted (and especially, convicted) for a crime under that chapter for an offense requiring "deception" where the "deception" was of a machine? | The reason this section exists is pretty well stated in an English case: Holmes v. Governor of Brixton Prison and Another. In paragraph 12, they discuss the law of theft in England, and note that under the law there as it stood in 2004 (and reaching back to principles of common law, which are often but not always shared with the US), deception required causing someone to believe something. A machine has no mind, cannot think, and can't be made to believe anything -- it sees an input and mechanically performs some response in response to that input. For instance, suppose you were to discover someone's bank account number and printed a check of your own that had that number on it. You then make that check up to look like it's a check from the someone else to you, and deposit it to an ATM; you then withdraw however much is available immediately. In all likelihood, no human will see that check until the victim looks into why they're significantly poorer than they remembered, so no human was deceived. The only things that were possibly deceived were the computers involved in the check-clearing process. But they don't have a mind: as far as they're concerned, they see pixels, pass them through an algorithm, and then send a message to another computer at the bank with certain information (which a human recognizes as an image of a check and an amount of money, but an ATM doesn't know what it means for something to be an image of a check). The machine then mechanically pushes bills out a slot. They don't think the check's real, don't think it's fake, and don't think it's a check: they're just piles of semiconductors and wires acting in accordance with the laws of physics. If you gave a check like this to a check-cashing place, it's clearly theft by deception: you make the human there (falsely) think you have a legitimate check, and they then pay you money based on it. But these days, a lot of this stuff is automated. Alaska's legislature didn't want you to get out of theft by deception charged because something was automated. So, they said that a machine could be deceived. This isn't a crime by itself; you can't be charged with deceiving a machine. You are charged with an offense under the chapter that involves deception. What 11.46.985 does is say you can't argue "this wasn't deception because only the machine was deceived." | What misrepresentation? Alice said she buried the money there. That the money is not there now is not evidence that she didn’t. it’s evidence that something happened to it between then and now. However, let’s not let the flawed example obscure the question. Let’s pretend instead that Alice said the money was there now. Misrepresentation Pre-contractural false statements of fact by one party that induce the other to enter the contract give a cause of action in contract law; they are not a tort. There are torts that are similar like deceit and negligent misstatement. The link provided is talking about fraud - the criminal equivalent of deceit (and the word fraud is often used when technically it’s talking about the tort of deceit). The out-of-pocket rule applies to torts so Bob can recover his losses. Personal time invested is not an out-of-pocket loss as it represents an opportunity cost, so, Bob cannot recover what he or his excavator might have earned instead. He can recover his fuel costs and depreciation on the excavator as those are “real” out of pocket expenses. If Bob had been an employee of a plaintiff company, they could recover his wages but not what they might have sold his time for. That’s just how it is with torts. Misrepresentation is a different beast. It’s a contractural claim so the damages are the “benefit of the bargain”, in this case $500. However, this is only available if the misrepresentation was fraudulent (Alice knew the money wasn’t there), Alice had no reasonable grounds for believing the statement to be true, or at the court’s discretion. Further Bob must prove that it was this statement that caused him to enter the contract and that he would not have entered it otherwise. Alice’s statement may give Bob more than one cause of action and it’s up to him which he chooses to pursue. If he spent less than $500 on fuel he stands to get more with a misrepresentation claim but if his out of pockets are more than $500 he’s better off with a negligent misstatement claim. In either case, these are tough causes to prove. | Because that's the law since 1935! StGG§ 265a (eng) declares, that it is a criminal offense to take transportation without a ticket and not wanting to pay. (1) Wer die [...] die Beförderung durch ein Verkehrsmittel [...] in der Absicht erschleicht, das Entgelt nicht zu entrichten, wird mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bestraft, wenn die Tat nicht in anderen Vorschriften mit schwererer Strafe bedroht ist. (1) Whoever [...] uses a means of transportation [...] with the intention of not paying the fee therefor incurs a penalty of imprisonment for a term not exceeding one year or a fine, unless the offence is subject to a more severe penalty under other provisions. But how come transportation fares are in the same paragraph as tricking a vending machine into selling you an item or phones to call without paying the full or any fee? In this case, it's history: §265a was first enacted in 1935, targeting mainly public telephones and vending machines, because those could be tricked by modifying 2 pfennig coins to have the diameter of 10 pfennig coins. The wording was quickly broadened to encompass any machinery controlling entry, but not all sorts of transportation (e.g. a taxi). But where did this come from? Well, the need for the law came from a problem the lawmakers and justice system faced: Because no human was tricked into letting people use the machine for less than the price or nothing at all, it wasn't fraud, because fraud was defined to interacting with a human in such a way. So there had to be a separate offence that targeted tricking machinery. When enacted, Tickets and ticket vending machines were in the scope of the paragraph from day one, as ticket sales or access to the train in many places was handled by automatic machines already or you could buy pre-paid ticket booklets/strips which would then be stamped and devalued in the transportation or at the station. In 1953, the scope was broadened to any use of the telecommunication infrastructure without pay, as the upcoming lack of telephone company employees creating a physical connection would mean it wouldn't be fraud anymore, so they used the same reasoning. Finally, in 1997 the telephone network was renamed communication network, also encompassing the internet and cellphones. One year or fines The punishment is one year or fine. In Germany, that is a fine of up to 365 day-values, which then are determined by the wealth and income of the convicted person. If you can't pay or want to pay, you can instead go to prison, each day serving also reducing your fine. That is called Ersatzfreiheitsstrafe. Only in exceptional cases like a massive repeat offender, the sentence would be only jailtime and no fine instead. Also note that all transport is companies and not conducted by the state (even if the DB is state-owned), and as such it is an Antragsdelikt - the damaged private party has to convince the state attorney that going to court is worth their time. However, it is much better for the transportation company to instead leverage the Terms of Transportation and gain the increased fare - usually at minimum 60 € or multiple transport price, whichever is higher. | The accusation would be the crime of securities fraud ("insider trading" is legally meaningless), under 15 USC 78j(b). There is a bit more elaboration in 17 CFR 240.10b5-1. That law prohibits using "any manipulative or deceptive device or contrivance in" in connection with a securities transaction. Under 15 USC 78ff, violation of the law can result in a fine of up to $5 million and 20 years, thus it is a crime. As a crime, the standard of proof required is must higher than it in for a civil forfeiture (which can be as low as "reasonable suspicion"). In the US, and pursuant to the Due Process clause, that requires proof beyond a reasonable doubt, that is (from in re Winship), "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". The statute itself does not state the elements that must be proven to secure a conviction, but they can be discerned based on jury instructions (which are circuit-specific). The 9th Circuit instruction is here. You can see that there are 4 specific allegations that have to be chosen between, and the prosecutor has to have at least alleged one of those prohibited acts (so that the jury can decide if the prosecution has proven beyond a reasonable doubt that the accused did that thing). The evidence you have presented could constitute "reasonable suspicion", but not "proof beyond a reasonable doubt". If we had a different standard of proof in criminal trials, where it was sufficient to just suspect based on a small bit of evidence that a person may have done something prohibited, then the conclusion could be different. Or, if you had stronger evidence surrounding the sale, your argument might carry a bit more weight. In other words, criminal prosecution is based on quite a lot of specific and objective evidence about what happened. An example of the kind of evidence and allegations required to get the ball rolling can be seen here; for "insider trading" specifically, look here (this case is based on an FBI investigation, where an agent will presumably testify to hearing the defendant state a plan to violate the law). | Defendant's girlfriend should produce the copies of the recording to police, the prosecutor, and the defense attorney. Possession of the recording should induce the police and prosecution to at least re-evaluate the charges against Defendant, as Defendant would be able to subpoena the gun's owner to testify about the purchase and then use the recording to impeach him if he then denies owning the gun. It is unclear, though, whether the audio actually has any value because we don't know what charges Defendant is facing. If he's charged with unlawfully owning a gun, the recording would likely be quite helpful; if he's charged with unlawfully transporting a weapon, the recording's value would probably depend on whether the law in question outlaws "knowingly" transporting a weapon or "negligently" transporting a weapon, or transporting a weapon regardless of whether he knew about it. | An example is that a person eventually convicted of a crime has made a false statement in pleading "not guilty". 1001a would compel confessions, because you cannot legally conceal a material fact. In a judicial proceeding, the analog that prevents certain kinds of "lying" is the law against perjury, which is much stricter than the broad language of 1001. | No. Oregon does not recognize this as within the scope of its self-defense law justification, except insofar as its owner is allowed to use non-deadly force to protect property. But, a sentient AI is also not a proper party to a criminal case and can't commit a crime. | This could be a violation of 18 USC 1030 (and a crime). A number of things go into requirements for conviction under this law. First, it has to be a computer, which is defined as an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device Any printer that I have encountered in the past 40 years counts as "a computer". Second, (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—...(C) information from any protected computer; It is highly likely that the person printing has to receive some information from the printer, and respond accordingly so you have your "obtains information" element. Maybe not useful information, but information nevertheless. It also has to be a protected computer, (B) which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States Well, a computer connected to the internet is a protected computer, see US v. Trotter, 478 F.3d 918. Also, the access must be "without authorization or exceeds authorized access". The law doesn't explain with "without authorization" means, but the latter is defined as to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter If the law were stated in terms of "prohibited access", meaning "express denial of permission", and if the computer owner had set the computer to "prohibited access" by default (password protected), there would be no issue -- accessing the computer is prohibited. "Unauthorized" can also mean "has not been explicitly authorized", i.e. lacking any indication one way or the other. Every computer access is initially unauthorized, until authorization is granted; and re-trying a login after mis-typing a user name (and being denied access) is not a violation of this law. There does not appear to be case law that addresses the status of computers just left open to the public, and whether using a computer that is so exposed constitutes "unauthorized access". Also, it is not clear that the defendant in this case has "obtained information", since with printing, information flows into the computer. There is also a clause about recklessly causing damage, but I don't see what damage would result ("damage" is defined as "any impairment to the integrity or availability of data, a program, a system, or information"), and how printing would be "reckless". It seems somewhat unlikely that this would be deemed to be a crime, though if you experiment, you could be on the cutting edge of new case law. |
With GDPR, can you request 'real life data' be deleted/forgotten? For example, can you request libraries remove your name from books you have checked out? | I don't believe GDPR makes a distinction between 'real life' and 'online'. It's all real life. You can tell anyone that they don't have consent to keep your personal data, but that doesn't mean they always have to delete it. There are six lawful bases for processing of personal data, so if an organisation is using and can justify one other than consent then they don't necessarily have to delete your data when they ask. The six bases are listed by the UK Information Commissioner's Office: (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/#ib3 | Companies House itself is exempt from certain GDPR provisions, including Article 17, by virtue of the Data Protection Act 2018, Schedule 2, Part 1, paragraph 5. (That's the Act which implements the GDPR in UK law.) The listed GDPR provisions do not apply to personal data consisting of information that the controller is obliged by an enactment to make available to the public, to the extent that the application of those provisions would prevent the controller from complying with that obligation. The list is in paragraph 1 of that Part, and has effect under section 15 of the Act. Because the registrar is obliged by an enactment, the Companies Act 2006, to make information available to the public, it's exempt from being asked not to. When Companies House data is processed by somebody else, they do not have this exemption. They are the "data controller" with respect to what they've retrieved (from the API or by scraping) and have freestanding obligations under the GDPR. They may still have other reasons why they are able to retain and process your data, such as a vital interest or a legitimate interest in protecting themselves or others from fraud, and therefore wanting to maintain a list of people associated with insolvent companies. For Article 17 specifically, there are exceptions relating to the public interest, statistics and research which might be invoked. But random websites cannot claim exemption from Article 17 just because the data comes from Companies House. There is nothing in the Companies Act which says that third parties are obliged to mirror Companies House data. This is explained in greater detail in the Companies House Personal Information Charter, which is where I found the citation above. They go on to say: If you have any concerns about company data on third party products and websites, please contact the organisation directly. We’re not able to advise other organisations on UK GDPR compliance, and we cannot advise you on whether other organisations are complying with the law. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | The GDPR applies to such sites if they offer services in the EU/EEA. If they clearly wanted to avoid being subject to the GDPR, they should block visitors from the EEA. For the GDPR, only location matters. Other concerns like residence or citizenship are generally irrelevant. Personal data does not turn non-personal just because it was public. So the GDPR still applies when the data was collected from public sources. However, the data controller (who determines the purpose of processing) often has to balance your rights and interests against other interests (e.g. when using legitimate interest as a legal basis for some processing). For the purpose of publicly displaying your data, only showing data that was already public anyway makes it easier to argue that this is fine. But when the GDPR applies, you have data subject rights. Relevant rights include: a right to access, to see all the data they have about you a right to rectification, to correct wrong data they hold about you a right to restriction, effectively an opt-out a right to erasure (also known as the right to be forgotten) These rights apply both against the website and against Google Search (arguably, both are doing the exact same thing). Google correctly points out that they can't remove information from the Web, but they can hide information from search results. If you feel that your requests have not been resolved correctly, you can issue a complaint with your country's data protection authority. In theory you can also sue them. In practice, GDPR enforcement against overseas data controllers can be quite difficult and has not yet happened. | No, a company cannot suspend your GDPR rights – contracts can't override the law. Your rights as a data subject apply as long as your personal data is being processed. However, there is no requirement in the GDPR that they fulfill your data subject rights through a self-service mechanism like a “download my data” button. They can require you to use another support channel. (But Google offers infamously bad support.) In some cases, the service may legitimately decide that they cannot give you access to the data, for example if they believe that you are not the actual data subject (e.g. if they think that you hacked the account). The right to access must not adversely affect other people (Art 15(4)). If they have doubts about your identity, they can require further information to verify you (Art 12(6)). If your requests are excessive or unfounded (if you are spamming them), they can also turn down the requests (Art 12(5)). | Is it GDPR compliant that I can't access the account that I created and the personal data that I shared because "I haven't completed their internal pre-qualification process"? Article 15 defines a “Right of access to the data subject” but it's difficult to see how this could be construed as a right to log into a specific website. Common sense suggests this would be a very bad idea. If they are willing to provide the data through another means (say a report or data dump of some sort), the obligation would seem to be met. In fact, article 15(3) even states that data controllers should merely provide the information in a “commonly used electronic form” (i.e. not necessarily through access to their systems or whatever form they are using internally for the processing). Have you asked for that and would you be satisfied by that resolution? Is it GDPR compliant that their answer to my deletion request is "We will delete the data..." The text of article 17 (right to erasure) explicitly specifies that such a request must be honored without “undue delay”. Article 12, which defines some of the modalities for the rights to access, rectification or erasure by the data subject, also provides that controllers shall “provide information on action taken on a request […] without undue delay and in any event within one month of receipt of the request”. You haven't provided any time frame and I don't think there is anything wrong with acknowledging the request by promising they “will” do it but in light of article 12, it seems you would indeed be entitled to know once they have actually taken further action. However, you implied you might want to access the data first and it's not clear to me whether you explicitly invoked the GDPR in earlier communications. So I would clarify and reiterate my request (access or erasure) and ask them for explicit confirmation once it has been satisfied. | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. | When you make a request based on the GDPR, Art. 12(6) GDPR applies. Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject. As you can see, this only applies when the data controller (Blizzard) has reasonable doubts about your identity. If I understand it correctly, Blizzard provides services (games) which requires you to login with a username and password. So they have no doubts about your identity when you use their (paid) services with just a username and password. So there should also be no reasonable doubts when you make other requests when you are able to login to their website. A copy of your government ID seems unnecessary. Recital 57 also confirms that identification does not require a government ID: Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller. A copy of your id, includes a photograph. The photograph could show health, religious, racial or ethnic information. That kind of personal data has much stricter rules defined in Art.9 . Most governmental IDs contain a national identification number. EU Member States can limit processing of those identification numbers even further. For example in the Netherlands processing of the identification number is only allowed when a specific law exists. So Blizzard is not allowed to process a Dutch national identification number. There are also ID convers] which hide sensitive information like document numbers and photographs in case you do need a copy of an ID. Also note that identification is only possible by comparing existing personal data with the provided personal data. I assume you did not provide a copy of your ID when registering. So many things which are shown on the ID do not make sense to sent to Blizzard. It does not know your place of birth, so it cannot verify it. Art. 5 requires 'data minimisation' for personal data. So they are not allowed to process more data than required. So you also do not need to send you more data than required. You should get an answer on your request within 30 days. However, since you ask to delete your account, the answer also might be that they will deny your request. They have to explain why they will not delete your account. |
Can a company receive a payment and never provide the paid service? I was wondering a question about a situation I'm involved in. Prefacing that I live in Italy, where an European directive states that every customer in their territories must have legal rights to return any item or service in his ownership and receive complete refunds (except like shipping fees where previously specified) within 14 days; is it possible for an online service provider (specifically a VPS hosting provider), to have a "no-refund" policy AND a "You agree that we can terminate at our discreption your service for any reason without prior notice" policy in their ToS? I literally mean paying for receiving nothing because at their discreption I was "rude" asking why the setup page of the VPS I bought didn't check for an OS selection and when they asked me that selection I requested a refund because I considered and told them they were a non-serious company, and only for that, not even they deleted my order before it was even completed nor provided, but terminated my account on their site too. Can anyone give me any advice of any action (legal too if necessary) to undertake towards this company? Thanks! PS: Sorry for my english if it isn't 100% correct or well-written but as I said I live in Italy where english is not the first spoken nor written language even if I'm still learning it... | They must give you a refund By saying they don't give refunds that are required by law they are engaging in misleading and deceptive conduct which will expose them to some serious fines. Report them to the relevant Italian authority. Presumably, you paid for this service with a credit/debit card. Contact your card provider and dispute the transaction - they will put the money back in your account and that will probably the last you hear of this company. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | Whether or not this would be allowed would generally call for a more fact rich situation than the one presented in the original question, that would cast light upon why a retailer might be inclined to refuse to accept payment. Hypothetical legal questions that presume that people are acting irrationally for no good reason are generally ill posed and don't have meaningful answers. Sometimes, there might be a legitimate privacy interest implicated if the invoicing party acknowledged a payment from a third party. For example, suppose that the invoice was for a paternity test and payment would confirm that the incapacitated person actually obtained a paternity test. Sometimes, there are legal rights beyond payment that are implicated and the reasonableness of a refusal might hinge on those rights. For example, suppose that the invoice was for an option to keep using an oil well. Payment of the invoice by the deadline would keep the oil well operating and the land owner sending the invoice might prefer that it not be paid so that the oil well would be shut down. Quite a few contracts are structured in this way. Maybe the invoice was for the right to purchase a first edition of a book when it was finally released, for example, and not paying it would free up a copy for someone else at a price that had increased in the meantime. Or, suppose that the invoice were for unpaid taxes and payment of the taxes would prevent property from being seized for sale by tax authorities, and the taxing authority would prefer that the invoice was not paid so that the valuable property could be liquidated. But, it is hard to imagine that there would be any reason that an ordinary retailer with an ordinary bill would ever refuse payment, although I suppose that this might trigger an interest or penalty amount owed under the contract for late payment. If that were the case, the principal of mitigation of damages, which says that a party to a contract must take all reasonable steps to mitigate their damages, might obligate the retailers to accept the payment or forfeit the penalty amounts that the retailer could have avoided as damages by accepting payment. I doubt that an undelivered tender of payment from a third party would eliminate the obligation, but, it might limit the damages that could be claimed as in the scenario above. | Being as general as possible - refund policies are governed by bank and scheme policies, and so aren't necessarily the domain of law. There may be jurisdiction-specific regulations that limit your liability as a consumer, but there's not usually a legal requirement. This is almost certainly wholly governed by your credit card terms of use.¹ You can report this to your local authorities, but without proof of a crime, it's unlikely to be actionable. The website isn't necessarily to blame, either - if your computer or your connection to the website was somehow compromised, then your details may have been obtained in that way, and the website could have had nothing to do with it. Again, this is almost certainly wholly governed by their scheme agreement.¹ 1. Some off-topic information here, which may or may not be accurate, and which you should not seek clarification for here (check Money SE instead, and first check whether it is on-topic there) - generally, bank policies will refund you for fraudulent transactions below a certain quantity or value. In this case, the bank tends to take a loss and chargeback rights are not exercised. In other cases, the bank will require the merchant to prove that the authorised cardholder did in fact authorise the transaction. The level of proof is governed by the way in which the transaction was conducted and verified at the time of purchase - whether the CVV2 code was verified, whether address verification was completed, whether 3D verification was completed. If the merchant is unable to prove, according to the scheme guidelines, the transaction will be charged back to their account. | To my knowledge there is no actual law requiring a provider to file anything on your behalf. Most do it as a courtesy but if you read the terms of service that you almost certainly agreed to, it will say that YOU are the responsible party. If the insurance company doesn't pay, even if the provider doesn't submit a claim, the responsibility is still yours. There is nothing stopping you from filing your own claim using whatever forms or procedures that they have established. I'll also note that many provider networks have rules that providers must adhere to in order to remain in that network. Some may include language about timely filing of claims but that is in no way universal. These days many providers have taken to billing the patient the full amount immediately and then will issue a refund to you if/when the insurance pays. | You're probably making an “international transfer” here, but that doesn't mean it is illegal. The GDPR has a very broad concept of “personal data” and of “processing”. Per Art 4(2), ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction Which I would summarize as: pretty much anything you do with the personal data counts as “processing”. So yes, your non-EU servers would be processing the personal data in HTTP requests, even when those servers aren't directly storing the personal data. Chapter V of the GDPR applies to Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country […] Per this definition, the question whether an international transfer occurred is inextricably linked with the question whether the data is being processed in the destination country. The generally accepted interpretation here is that mere transfer through a country does not constitute processing. For example, if your requests happen to take a network route through other countries, that wasn't an international transfer. But your HTTP server is definitely doing processing, even if it doesn't store the data persistently. If the HTTP server is in a non-EU country, then you have to consider how this transfer of data is protected. You're supposed to uphold the high GDPR data protection standards regardless of where the processing occurs. Some countries have been granted an EU adequacy decision, meaning that their data protection laws are sufficiently similar to EU laws and no extra bureaucracy is needed for that transfer. The transfer still needs to be noted in your privacy notice (compare Art 13(1)(f)). In other cases, you may be able to rely on “standard contractual clauses” (SCCs), which are pre-formulated contracts provided by the EU that translate relevant GDPR aspects into a private contract between the data exporter and data importer. However, you as a data controller must make sure that the data importer is legally able to enter into that contract. For example, the terms of these SCCs are incompatible with US national security laws, meaning that US companies might not be able to enter into the SCCs. There are a couple of other ways to authorize international transfers, but they are mostly relevant for multinational groups of companies, or in exceptional situations. In any case, other GPDR requirements like the need to have a suitable contract with your data processors remain unaffected. Also unaffected is the obligation to implement appropriate technical and organizational measures to ensure the compliance and security of your processing activities (e.g. see Art 24 and Art 32 of the GDPR). For example, this may imply the need to implement suitable encryption. In the wake of the Schrems II ruling that struck down the EU–US “Privacy Shield” adequacy decision, the EDPB published recommendations on extra compliance measures that could allow SCCs to remain valid for EU–US data transfers. But it's not easy to defend data processing activities when potential adversaries include literally the NSA, and measures such as end-to-end encryption (E2EE) are incompatible with cloud services that are more interesting than backup storage. Practically speaking, I would reconsider an architecture that would allow failover of EU data processing operations to non-EU locations, unless those target countries are covered by an adequacy decision. If you need a high availability setup for EU activities, it may be more appropriate to maintain multiple deployments within the EU. | Not going to hold up. Dutch Supreme Court confirmed 2012-09-21 in LJN BW6135 that arbitration is still covered by the the right to an independent judge, as established in Golder v UK, ECHR 1975-02-21, nr. 4451/70. Stack Exchange can't decide the rules themselves. (The Dutch case confirms that sector-wide arbitration is in fact legal, with regard to a standard arbitration clause commonly used in the Dutch building sector. The arbiter was found to be independent in that case precisely because they weren't picked by the builder involved.) The GDPR is only indirectly relevant, but the fact that it's mentioned does mean that there is an indisputable intent to provide services to EU consumers. (See section 23 of the GDPR, or its national equivalents). As such, you can't hide behind a US business address. If you intend to do business in the EU, it's under EU laws - all of them. You can't say that only the GDPR applies, and not other rules. I'm having a bit of a problem finding a source, but I'm fairly confident that consumers have the right to sue at their own, local court, overruling the default of suing in the court where the counterparty is located. Finally, I have the right under national law (Dutch: BW 6:236 start and sub-n) to strike the arbitration clause up to 30 days after the conflict arises, and demand a court decision. That's not 30 days after I accept the "Public Network Terms", that's 30 days after the arbitration is invoked. Dutch law explicitly allows arbitration abroad, and arbiters may apply foreign law, but as written the arbitration clause has no legal basis in the Netherlands, and any arbitration resolution would therefore not be considered valid. You may wonder if it matters to Stack Exchange that the arbitration decision would not hold in the EU. Well, consider a clause like Indemnification, which demands the user indemnifies Stack Exchange. That's a pretty empty demand if it's not enforceable. | Warranty is company policy. It could be considered part of the contract of sale, but it would still be what the company stated it - at time of purchase - to be. Unless the warranty lists accidental damage as being covered, it looks like the company are following their policy and fulfilling the contract. If you were looking for legal redress since accidental damage resulted from using the product as intended, you'd have more chance of success looking at unsatisfactory quality or the product being unsuitable for the intended purpose under Part 1 chapter 2 sections 9 and 10 of the Consumer Rights Act 2015. It's worth sticking to objective details (for example that the port broke, and that you had used the device as intended). The company are not assuming you broke it (anyone or anything could have caused the accidental damage), and they are not refusing a warranty repair as it appears that accidental damage is not covered by their warranty policy, so this is not one. |
Can I sue an app for enabling harassment? Can I sue an app for emotional distress? My soon-to-be ex-husband has been using a fake phone number app in order to impersonate: my child's school the coroner's office the police officers who are handling the 3 warrants out for his arrest the district attorney's office my family members and so forth. I am scared to answer my phone and I'm terrified when my son's school calls thinking it's an accident; the same goes with the other numbers he uses. | There are legitimate apps that let you buy phone numbers. With the right app I can buy let's say a landline number in Kansas. I call you, and you will think it's some guy in Kansas calling you. That's totally legal, it's a genuine phone number, and just like I can buy 10 phones and have ten phone numbers, I can use an app to pretend to have 10 phones. I cannot pretend to by your child's school with that kind of app, because for obvious reasons your child's school's number is not up for sale. If an app let's you pretend to be someone else, like your child's school, then your phone company will be very interested in hearing about that. You don't have to sue the app maker, your phone company will. These three police officers will also be very interested, and impersonating a police officer is by itself a crime. (Normally impersonating a police officer is done by putting on a uniform, but calling you with the number of that police officer will also count). So these three police officers will have a word with your husband as well. So suing the app maker (you can't sue an app, you can only sue the people responsible for it) is very hard, and not needed. Complain to your phone company, complain to the police, first to the three police officers he impersonated (the phone company will have records of phone calls seemingly coming from them) to advice them they are being impersonated, and then you complain to the police for harassment. | They don't have to inform you that they are a debt collector. Because that can be a violation of 15 U.S.C. Section 1692b(2) by exposing that the person they are attempting to collect from has a debt. They are required to: identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer -- 15 U.S.C. Section 1692b(1) They also may not use any language indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt 15 U.S.C. Section 1692b(5) What they do not have the right to do is harass you. They can not attempt to contact you again 15 U.S.C. Section 1692b(3) unless they have reason to believe you lied. I would contact the company back and inform them that you wish to have your number removed from their calling list, and that future calls may be a violation of 15 U.S.C. Section 1692b(3). Also, send them a notice in the mail. If they continue to attempt to contact you, report them to the FTC. You may also be entitled to monetary damages as well. See FTC The judge can require the debt collector to pay you up to $1,000, even if you can’t prove that you suffered actual damages. You also can be reimbursed for your attorney’s fees and court costs. To file a claim with the FTC, go to there online claim for debt collectors Its worth it to show that you won't joke with them. I had a "debt" with T-Mobile (really, I had a billing error in their favor, and they admitted to it, but would not stop the debt collectors) and they violated the rules. I tried to work with them, 6 months later, they damaged my credit. I contacted FTC about it and T-Mobile with in 3 days had the debt cleared and reversed on my credit. They also paid for my damages. All I wanted was the debt cleared. Note: for calls being recorded, always make sure you follow local laws and inform the other party that the call is recorded. If they have a right to record you, you have a right to record them. You must always infrom them as well. | "Legal problem" is too vague to be included. "Investigation" needs a bit of refining; "lawsuit" is relatively simple (as long as you mean "actual lawsuit" not "idea that maybe we could sue"). There is no central list of all lawsuits against a given party, but you could theoretically check every jurisdiction to see if there is a lawsuit. That's a really big list, maybe in the millions if you want to be complete. You can use ordinary Google search to find announced lawsuits, typically by government agencies. Finding investigations is even more difficult: you will not be able to determine what investigations I am conducting. Even determining the existence of investigations by police including e.g. the FBI is hard to do. A government attorney is the one most likely to reveal that they are investigating some party with the intent to sue them. Again, you can't get a complete list, you can use Google to get an indication of who has announced an investigation (your results will generally not say whether the investigation was closed, unless you pursue that question as well). | Yes. The police have the power to seize your phone as evidence under the Police and Criminal Evidence Act 1984, the Misuse of Drugs Act 1971, and the Terrorism Act 2000. There are no caveats or defined circumstances other than having a reasonable belief that the data on the phone forms evidence against you. They do not require a warrant to access your phone, and many police forces in the UK are using commercially available software to bypass password/PIN protection on your phone 1. In the event you do not provide your password/thumbprint/facial scan/PIN to officers to unlock your phone, you can be served with a Section 49 Notice under the Regulation of Investigatory Powers Act 2000 (RIPA) which compels you to provide that information. Failure to do so can lead to a conviction under Section 53 RIPA, in addition to any other offences you may be charged with. | The other answers are correct that you should speak to a lawyer, but you should expect your lawyer to tell you that you don't have a viable lawsuit. I can't speak to Pennsylvania law, but these facts would make a pretty weak claim for sexual harassment under Title VII of the Civil Rights Act. To win a hostile-work environment case, you must demonstrate: you suffered intentional discrimination because of your sex; the discrimination was severe or pervasive; the discrimination detrimentally affected you; the discrimination would detrimentally affect a reasonable person in like circumstances; and the existence of respondeat superior liability. Minarsky v. Susquehanna Cty., 895 F.3d 303, 309 (3d Cir. 2018). Your main problem will be in proving that the harassment was so "severe or pervasive" that it altered the terms of your employment. This is not as high a bar as it used to be, but the courts will not grant relief for "isolated incidents" unless they are extremely serious. Such incidents typically involve some kind of forcible, physical, sexual contact, which I don't see here. The general rule is that the more severe the harassment, the less frequently it needs to occur, and vice versa. Unfortunately, courts would probably look at the events you've described -- not physical, not sexually explicit, not threatening, not intimidating, not soliciting sexual conduct, not mocking you -- and say that they are not particularly severe. Given the lack of severity, the court would need to see them happening with pretty regular frequency, but you've described only two events in the course of about 18 months. And with one of those, the employer appears to have taken reasonable corrective action, leaving you with only one incident to complain about in however long you've worked there. Even if a court agreed that your co-workers engaged in unwanted sexual conduct, I'd expect the employer to be able to successfully invoke the Farragher-Ellerth defense, which permits them to escape liability if they can prove: that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Since they took corrective action when you reported harassment, and you did nothing to report that there were problems even after the discipline, and did nothing to report that you felt harassed by the second incident, the Farragher-Ellerth defense would probably be successful. | There does seem to be a meme in the UAE of people threatening legal action for negative reviews, as a form of defamation. The police will simply tell them that this is not a crime, go hire a lawyer if you want to sue them. If you block them, perhaps they don't have any other way to contact you (seems that was the point of blocking them), which means that you cannot receive their offer "If you pay us AED 1,000 we will not sue you", which could be a problem if they win their court case. Still, it is perfectly legal to ignore or block them, up to the point that you are actually served with legal papers. When they actually sue you, "blocking" is irrelevant, they will hire a process server to hand you the legal papers that command you to appear in court. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. | What factors might a court consider in these circumstances? Is it true that anyone can just walk up and file a document in any case, with no requirement to identify themselves? If nobody admits to filing a document, it is likely that the court would grant a motion to strike the document and disregard it (revising a past ruling if the issue was raised within the six months allowed for reconsidering rulings under Federal Rule of Civil Procedure 60(b) or the state equivalent). A court document must, on its face, indicate a filing person and be signed to be accepted by the clerk of the court pursuant to Federal Rule of Civil Procedure 11 or the state equivalent. But, if the document appears on its face to be legitimate, the person filing it will not generally be required to prove their identity. This happens even less often now than it used to (in the past, fake filings were often made by members of "sovereign citizens" movements to harass governmental officials), because in both the state courts were I practice and in federal court, documents must usually be filed with the court by lawyers via e-filing using a password protected e-filing account. Usually, only parties without lawyers and out of state lawyers who are still in the process of setting up their e-filing account file court documents in person. When documents are filed in person, they are also often delivered via courier rather than by the person who actually signed the documents. And, as a matter of practical reality, third-parties almost never file fake documents in court (in part, because there is usually someone present who is in a position to call attention to the fraud to the court). Still, this can happen, although it is very rare. I've only seen a situation like this come up once in twenty years of practice. (My account below oversimplifies some of the technical details of what happened to get to the gist of the points relevant to this question.) In that case, a lawyer was representing an ex-husband in a post-decree alimony modification case that had been appealed filed a bill of costs that she sought to recover on behalf of her client for the appeal, but she filed it in the wrong court (she filed it in the appellate court where she had represented her client, rather than, as required, in the trial court where another attorney had represented the ex-husband). When an order awarding him costs was not entered by any court, the ex-husband filed an (untimely) bill of costs in the trial court under his appellate lawyer's name using the appellate filing as a model, without her consent, by forging her name on the document. The lawyer didn't discover this (because she was retained only in the appeal and had never entered an appearance in the trial court and thus didn't have access to the trial court file, and because the court doesn't automatically send you a copy of your own filings) until I responded on behalf of the ex-wife to the forged bill of costs alleging that it was untimely which I served a copy of upon the ex-husband's lawyer as required by the rules. At that point, the ex-husband's lawyer immediately called me and the court to explain that she did not file this document and that it was forged (otherwise should could have been sanctioned for knowingly filing the bill of costs knowing that it was out of time and was frivolous at that point and could have been deemed to be responsible for further trial court proceedings of the ex-husband in the case, like keeping him appraised of deadlines, court rulings and filings by other lawyers in the case, since it appeared that she'd participated in the trial court case). Ultimately, the court declined to award the costs because they were filed in an untimely manner and because they were not really filed by the lawyer as claimed. So, the the court disregarded the bill of costs and denied this relief to the ex-husband. (If I was the judge, I would have hauled the ex-husband into court and held him in contempt of court sua sponte, but in this very busy court where hearings in divorcees are often scheduled two or more years out from the scheduling date, the judge didn't have the time to devote to issues like that.) |
What happens when two conflicting laws both say "notwithstanding any other provision of law..."? What happens when two conflicting laws both say "notwithstanding any other provision of law..."? Notwithstanding any other provision of law, you shall pay me all of your money. Notwithstanding any other provision of law, you shall pay John all of your money. | The latter law repeals the former law by implication. | The law applies equally to everyone The fact that the person misunderstood the law is irrelevant irrespective of the reason for it. That said, in both cases the person would have access to a lawyer and consular assistance who could explain the law to them. | The problem with "as soon as possible" is that one could then say "Well, I've got a lot of bills, so it's not possible to pay you until Uncle Bill dies and I get my inheritance". A good contract leaves no doubt about who does what, when. A specific date is best, though if there is a certain amount of backing and forthing, "July 30" could be "tomorrow", and therefore "within 14 days of acceptance" would still identify a specific date -- provided that the date of acceptance is there in the contract. (It usually is, but doesn't absolutely have to be). | These situations do come up (and incidentally, this is nothing new, it has been a difficult and recurring legal issue since at least the 18th century), and they really suck to be in, and often there aren't easy answers. There are a lot of legal doctrines out there that are designed to avoid a hard clash of conflicting court orders and to prevent someone from suffering contempt of court sanctions when they are in this bind. Generally, litigants caught in this bind look for these outs. For example, when particular property or records are at issue, often the person in question will "interplead" the property placing it in the jurisdiction of a court to resolve and out of their hands. There is a doctrine called in custodia legis which provides that once something is in the custody of a court that another court may not exercise jurisdiction over it. The entire sub-field of civil procedure pertaining to jurisdiction and venue is designed to avoid these conflicts. U.S. law has a whole sub-field a statutes and legal doctrines like the Rooker-Feldman doctrine designed to prevent these conflicts from coming up when they arise between federal and state courts. One of the most important legal doctrines is that a person cannot be punished for contempt of court for failing to do something that the person being held in contempt of court does not have the ability to do. One argument, which doesn't always work, is that once you are subject to a legally binding court order that has been served upon you that you may not legally defy that court order in order to follow the order of a court which cannot override the decisions of the court issuing the first order. Usually, contempt citations are directed at individual employees or agents rather than at entities. For example, in a dispute over Indian Trust Funds against the United States government, contempt citations were brought against the Secretary of Interior personally and could have sent that individual to jail for not complying. One way the an individual can get out of the order relating to an employment or professional duty is to resign from office and thus deprive oneself of the ability to perform the order. But, the short answer is that there is no one simple legal rule for resolving these situations, and the litigants stuck in these situations look for every available legal argument to resolve it until it is resolved. | I wouldn't be surprised to see other states and jurisdictions with similar statutes. Fortunately, in the United States, there is a safe harbor against demands for state income taxes: For every dollar of taxable income, you can only be taxed by one state. (This was affirmed by the Supreme Court in 2015 in Comptroller of the Treasury of Maryland v. Wynne.) Therefore, if you show that the LLC (or its members if it's a pass-through) paid taxes to another state on the income in question (e.g., by sending a copy of the tax return), that's legally the end of the matter. | In the US, Congress may pass an act, and this creates one kind of law (if it is promulgated: signed, ignored, or re-passed with a super-majority). Some of those acts direct the executive branch to do things, and pursuant to that act, a regulation is promulgated. Together with case law, the whole thing is "law". A bill (in the House, or the Senate) may result in an act being passed by both houses. It may go through a number of drafts between the point when it is first introduced and the time it becomes an act. | I will not speak to your specific situation. I am unfamiliar with the jurisdiction and real estate contracts are one of the most highly regulated contracts so local statutes may override common law. In general, the terms of a contract are what the parties agree; the written document is not the contract - it is evidence of the contract. In a case where the parties agree that the written version is wrong then the written version is wrong. Where the parties disagree that the written version is wrong (or agree that it is wrong but disagree as to how) then each will need to provide evidence to support their position. A signed written contract that supports one parties position is extremely strong evidence! The other party would need to provide some overwhelming evidence to trump this. The general position that the courts take is that the written contract accurately documents the agreement unless someone can prove that it doesn't. | at what point can you just leave? Is it always technically illegal in the UK to leave without paying the bill? Probably depends on what you mean with just leaving. If just leaving translates I haven't paid and I won't pay (because of the hassle with the card) then that's probably Making Off Without Payment, section 3 Theft Act 1978 (Thanks @bdsl). Could the restaurant just force you to wait until close of business if necessary? What if they still hadn't fixed the payment system by then? I don't think a restaurant can physically detain you. Not even the 45 min you have been waiting. But if you leave without paying and without an agreement with them how & when to pay they can of course call the police because again that looks very much like making off without payment. According to your post, they did provide a payment system (cash) which was working all the time and that moreover has the special status of being legal tender. if you don't physically have the cash on you, you can be sued? You can be sued if you don't pay your bill (assuming the bill itself is correct) when it's due. In order to avoid endless hassle of the "I tried to pay via x, but they wouldn't accept this." type, legal tender defines ways of payment of a debt that the creditor/seller must accept. In many legislations, cash in the local currency provides such a fallback if other payment methods fail. Note that cash payment is very robust against internet failure, broken devices and power The UK (+ US) meaning of legal tender is that the restaurant must accept this means of settling the debt (at this time, the food is already eaten but not payed) - but they don't have to accept any other means of payment. (Note that e.g. for the EUR-countries there is at least a recommendation to make acceptance of legal tender mandatory also in retail, which includes simultaneous exchange food vs. payment). The 2nd important implication of this is that any argumentation along the lines that no reasonable means of payment were available would be very weak. You are not required to have sufficient cash with you to pay your bill if you can reasonably assume that some other way of payment will be acceptable to the restaurant. I see that like a spare wheel for a car: if you have a flat tire (card doesn't work) having a spare wheel (cash) allows you to deal with the issue with less hassle than if you don't: change your wheel vs. having to get your car brought to a workshop and wait until they put on a new tire (pay cash instead of waiting for the card to work again or a tedious hunt for another payment method). I'd like to point out that card doesn't work and not sufficient cash at hand (or forgotten purse) is something that happens quite often in general (rarely for any given transaction, but we have lots of transactions). I'd expect a restaurant or a gas station to be experienced in dealing with that. In any case, there are several possibilities to resolve the issue short of "just leaving": The key to all this is communication: talk to the restaurant to find a way to resolve the issue. Reassure them that you're not trying to use the opportunity to defraud them - that's what they are afraid of in this situation. "Where can I find an ATM?" Possibly offering a deposit: "And would you mind looking after my bag [phone] until I'm back?" Possibly showing them your ID card (or similar, if you have any) so they have your address: remember that so far you are an anonymous customer for them: which means that suing you for the money would be somewhere between too expensive and impossible. If you are a group, it should be sufficient if only one of you leaves in search of cash. Credit cards can be charged in a total offline way (MOTO = mail order/telephone order) where the credit card data is entered manually by the seller: the restaurant may be able to charge your credit card if fill in a paper credit card payment form. They may accept settlement via other payment systems: paypal & Co. wire the money via your online banking account (even if that doesn't give an instantaneous transfer, ask them if that's OK with them if you show/forward them the "transfer accepted message" for now) allow them to withdraw the money from your account via direct debit or something similar I'd not expect a restaurant to accept this possibility as they're probably not familiar with it and it means a lot of hassle for them with their bank to get listed to receive money that way. if you are in a region where cheques are still in regular use, that may be a solution as well. Restaurants like any other business can write invoices. They usually don't like this because their risk of having costly trouble to get the money is high. While your printout bill is technically an invoice already, it can be turned into an invoice (+ copy for them) giving your name + address and specifying how and when you'll pay. Which would keep track of how you (pl. = you + restaurant) decided to settle the bill under the peculiar circumstances. This works even in case of e.g. a power outage that prevents you from getting cash from an ATM in the neighborhood. |
Is it rape if it is a woman on a girl? Now I don't fully understand what has happened to me. Yes I know what sex is. I know what rape is it's when a man forces a woman to have sex with him. But the other night I was at a friend's house with my two best friends. When one of them had to temporarily leave to go help a relative, my other friend was still at the house with me and we were the only two there. Out of nowhere she started kissing me. I pushed her back and asked her what she was doing; she said she loved me but it didn't come off loving when she threw me down and ripped my clothes off against my will and stuck something in me and I don't even know what it was also she touched my breast and I said stop. My family wants to call it rape but since we're both female how is that possible? | The definition of what kind of interaction constitutes rape is normally defined by statute or by case law, which can vary somewhat from jurisdiction to jurisdiction. Typically, "penetration" for sexual gratification secured by force would constitute rape, regardless of the gender of the perpetrator. Typically, "penetration" does not cease to be rape because it is not accomplished with a male penis. For statistical purposes, the United States Department of Justice defines rape as: Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. What you describe sounds like something that would qualify as rape under most jurisdiction's definitions of that crime. None of the exceptions to the U.S. Department of Justice's definition of rape (e.g. legitimate medical examination or a law enforcement cavity search where one is authorized by law) apply in this case. Even if a particular jurisdiction didn't classify this as rape (and the vast majority would), most would, at a minimum, classify this as sexual battery (i.e. forcible sexual contact not amounting to rape under the local definition), or simple battery (i.e. forcible contact without permission that is not necessarily sexual). Of course, even if it meets the legal definition of rape, a prosecutor or law enforcement who is accustomed to thinking of rape as exclusively a male upon female crime could balk at prosecuting the incident as rape, something that can be hard to get them to take seriously and prosecute when acquaintances are involved even in opposite sex couples. Law enforcement and prosecutors have broad discretion regarding which crimes they prosecute and for which charge. About 1% of people arrested for committing rape are female, and while some of those cases involve materially aiding and abetting a male perpetrator (e.g. by holding down a victim while the male perpetrator engaged in the act), some of those arrests involve the fact pattern that you describe. In part, the low rate of female arrest for rape arises from the fact that women commit violent acts, in general, at a much lower rate than men. The low rate of female arrest for rape also almost surely involves underreporting of rapes committed by women against women, in part, because women are less likely to conceptualize what they have experienced as rape and, in part, because law enforcement is often insensitive or dismissive of these charges in many places. | england-and-wales Is this illegal? YES, NO, MAYBE Context is everything, and it depends on whether this was just playful (for want of a much better word) or sexual touching. Assuming that the "grandma" is actually her grandmother, the likely offence - if there is one at all - would be sexual activity with a child family member contrary to s.25 of the Sexual Offences Act 2003: A person (A) [i.e. grandma] commits an offence if — (a) [s]he intentionally touches another person (B) [i.e. the child], (b) the touching is sexual, (c) the relation of A to B is within section 27 [which includes grandparents], ... (e) — ... (ii) B is under 13. Touching is defined at s.79(8): (8) Touching includes touching — (a) with any part of the body, ... (c) through anything [e.g. panties] ... Sexual is defined at s.78 as: penetration, touching or any other activity is sexual if a reasonable person would consider that — (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual. A key point to prove is whether s.25(1)(b) is met or not, so again: context is everything. Is it legal only for women to do? NO - Both males and females (over the age of criminal responsibility of 10) can commit any sexual offence apart from rape which is purely male-specific for anatomical reasons. | No and yes respectively Force in general refers to acting under a compulsion. Physical force is specific that the compulsion arises from violence or physical power. Examples of non-physical force include: Legal obligation: the witness was forced to answer the question. Blackmail: the victim was forced to pay the ransom to the hacker. Contractural: after his car fell in the river, he was still forced to make the payments. Ethical: despite vowing to never have children the tragic death of her brother forced her into the unexpected role of mother to her niece and nephew. | (Note that some of the below may be UK specific, but the general principle applies in many other jurisdictions) Well the first thing is to stop working from this from the wrong direction: There is no law that makes it legal to assault someone: the law only makes it illegal to assault someone (eg in the UK, the Criminal Justice Act 1988 and the Offences Against the Person Act 1861 apply). The law states that it is illegal to assault someone. So let's explore how sport works. In most legal systems, you are able to give consent for certain activities or risks. This is also why certain other activities (for example, things a couple may enjoy in their own home) are not necessarily assault if consented to. Essentially, therefore, your consent gives the person doing the hitting the legal excuse (a little different to a normal excuse for forgetting your homework or being late to work): or a defense that their actions were reasonable. This stops the issue being the law, therefore, and becomes an issue of what does/doesn't constitute an "excuse". It is not therefore a question of "What law allows you to commit a crime during sport?" instead it is really one of "Exactly how much consent can a person give, to allow consent to be used as an excuse, and at what point is that consent no longer an excuse?" For example in R v Brown (UK Case Law) it was established that you cannot give unlimited consent. Similarly in every jurisdiction I'm aware of, that consent is only able to be given within the realms of the rules of the sport. As soon as the rules are broken, a crime may have been committed. I won't go into the details of R v Brown here, as I'm not convinced that it's suitable for SE (although I'm sure you can find it), but to give a more sport-related example, R v Donovan established that No person can license another to commit a crime, if (the jury) were satisfied that the blows struck ... were likely or intended to do bodily harm ... they ought to convict ... only if they were not so satisfied (was it) necessary to consider the further question whether the prosecution had negatived consent. Again, similar case law or exemptions exist in most jurisdictions. Essentially what this establishes is that if the intent is to cause harm, rather than to undertake the sport or activity to which consent has been given, it is still a crime The question after this is then generally one of whether it is in the public interest to prosecute, and often (but not always) the victim's wishes are taken into account. In some cases, the sportsman is prosecuted: for example this British football player who assaulted an opponent. In other cases there is either insufficient evidence, or insufficient interest in the prosecution. In many cases where the rules are broken but no serious harm is done, for example where rules are broken accidentally or in a minor way, the police or prosecution service (or equivalent) may simply regard the matter as sufficiently dealt with. This is the same as with most other cases, where not every instance of assault is necessarily prosecuted: two teenage brothers fighting may not result in a prosecution, or an assault in the street may not carry enough evidence. And to indirectly answer the question - the reason players are often not prosecuted is because "In the public interest" incorporates an element of public opinion. If a certain action has become (or always been seen as) acceptable, it is unlikely to be prosecuted. For example minor fouls in games, or accidental fouls causing injuries. The other primary reason is that the victim chooses not to press charges (although this isn't required, and the police are able to press charges themselves, it is often taken into account) | She has no legal right to your stuff, and every legal right to the apartment. The only way adjudicate such a conflict of rights is with a restraining order. A temporary order would expire in 3 weeks. Item 14 in the petition requests exclusive use, possession, and control of the property. However, that path of restraints is tailored to domestic violence, so item 27 has you describe the alleged abuse: Abuse means to intentionally or recklessly cause or attempt to cause bodily injury to you; or to place you or another person in reasonable fear of imminent serious bodily injury; or to harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, keep you under surveillance, impersonate (on the Internet, electronically or otherwise), batter, telephone, or contact you; or to disturb your peace; or to destroy your personal property. Note that the description refers to destroying your personal property, not pawing through it. It's really impossible to know if the judge will exercise his discretion to include "reasonable fear of destruction (or theft) of personal property", since the ex-roommate has no further interest in the apartment. There is an alternative path of a harassment restraining order, which does not require a defined domestic relationship (such as ex-roommate), where "harassment" is violence or threats of violence against you, or a course of conduct that seriously alarmed, annoyed, or harassed you and caused you substantial emotional distress. A course of conduct is more than one act and that seems even less likely. | Yes. It is a crime almost everywhere to throw something at someone, even if it causes little or no injury. Usually it would be classified as "assault and battery" although if it damages clothing or other property, it could also be called, for example, "criminal mischief" which is intentional damage to property. It would also be a tort that could be enforced with civil damages in most places, although only nominal damages would be awarded and there would be no award for attorneys' fees. In practice, however, few people would press charges or turn to the police in such an incident, few police would take action based on the complaint because it is so trivial, and few people would sue in such a case. For what it is worth, the "living law" in Japan recognizes that someone has a duty to pay to clean your clothes or replace them if they can't be cleaned in such circumstances and most people appear to comply with that obligation without court involvement if the victim insists. Also, pie throwing as a political protest in Europe is also almost surely illegal under European law, although, again, this is rarely enforced by common political culture and tradition. | Through the legal doctrine of "transferred intent", wherein if one intends to murder A, and undertake actions to kill A, but one's actions kill B, one has murdered B. Whatever crimes one would have committed, had one performed them on one's intended target, are considered committed against the individual one actually performed them on. Many crimes require one to have mens rea to be guilty; they do not require one to have mens rea towards a given individual. So, so long as one had the proper intent to murder someone, the actual victim of their actions is irrelevant. | This isn't about bullying at all, this is about Virginia being a "one-party" state. Virginia Law 19.2-62 outlines that: B.2 It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. However what is not said in the article is that the daughter didn't know that the recording device was in the backpack. This means that the mother did not get consent from either party being recorded (it isn't clear that a minor could give consent anyway), and is therefore in violation of 19.2-62. The (US) law has been quite clear on "two wrongs don't make a right", the mother was not getting satisfaction through other channels, but that does not mean she is right in violating the law in pursuit of justice. This is still very much in the early stages of this particular case, but I'm willing to bet that the mother will see very little if any punishment in this matter. As for why the DA doesn't prosecute the children (or their parents) for the bullying, this really depends on what kind of bullying is subject here. If the children are verbally bullying, this may not be a crime (yes, it is morally wrong, but may not be a crime). It isn't to say though that the children in this case haven't been reprimanded according to State law, at least the subject of the bullying has been moved to a different class as a result. Unless the bullying reaches a physical level, most State laws require the schools to deal with the bullying directly (through moving children to different classes, suspensions, expelling, etc), so the DA doesn't typically get involved until physical injury occurs. |
GDPR: Are Anticheat Logs personal data? We are running an online game server and use an automated system to detect cheaters. When a cheater gets banned a log will be saved containing the names of the algorithms that detected the cheater. We also save a recording of the match the cheater has played. The recordings only consist of ingame coordinates. It is not possible to identify a user only using the coordinates or anticheat logs, however the coordinates and anticheat logs are linked to the cheaters ingame username and unique id. The EU-GDPR says that only up to 9 people are allowed to handle personal data (without a dedicated data protection commissioner). Are the recordings and anticheat logs personal data? | There’s no definitive list of what is or isn’t personal data, so it all comes down to properly interpreting the GDPR’s definition: ‘[P]ersonal data’ means any information relating to an identified or identifiable natural person (‘data subject’). — Article 4(1) In other words, any information that is clearly about a particular person. But just how broadly does this apply? The GDPR clarifies: [A]n identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. — Article 4(1) This means that because you say that coordinates and anticheat logs are linked to the cheaters ingame username and unique id, if there is a record of who that username and/or unique id belongs to, even if it is just an IP or email address, it is considered personal data because the information relates to an identifiable natural person. Personal data includes any data which can be linked to information where a person can be identified From CommentsIf the online username and unique id is not linked to the actual human (no stored real name, no home address, no IP), can the natural person actually be identified? The records and anticheat logs are linked to the unique id and username, however the unique id and username are (from my POV) not actually linked to the real human Only you can answer that question as it stands because we have no access to your data. From what you have told us, even though the coordinates and anticheat logs are linked to the cheaters ingame username and unique id, that alone doesn’t fall under the GDPR’s scope of personal data, as, in all likelihood, the usename and unique id could relate to anyone in the world. The issue comes if elsewhere you have a record of the person's name, IP, date of birth etc. which when combined with the anticheat logs could link that data to identifiable people. You might think that someone’s name is always personal data, but it’s not that simple, as the UK’s Information Commissioner’s Office document what is personal data (PDF) explains: “By itself the name John Smith may not always be personal data because there are many individuals with that name. However, where the name is combined with other information (such as an address, a place of work, or a telephone number) this will usually be sufficient to clearly identify one individual.” Note: A name which is much less common could be personal data as the likelihood of it relating to others deminishes. John Smith is a common name all over the UK, but what about a particular polish/czech/hungarian/french.... name (let's say) living in Nottingham, UK? What is the likelihood of another person of the same name in Nottingham, UK? Add a middle name or double barrelled surname, and it becomes even more likely that it is personal data. If you’re unsure whether the information you store is personal data or not, it’s best to err on the side of caution. This means making sure data is secure, reducing the amount of data you store, collecting only as much data as necessary to complete your processing activities, keeping data for only as long as it meets its purpose, and ensuring only authorised people are able to access the data. | It follows from case law from the ECJ, e.g. C‑70/10 (28 January 2010) and C-582/14 (19 October 2016), that IP-addresses are personal data. Since my interpretation of the case law differs from the interpretation offered by @Greendrake, I'll go into the relevant case law in a bit more detail than I did in my initial answer. TL;DR: Yes, IP-addresses in server logs are personal data and you need to declare IP-address logging in your privacy policy. As I said, we need to examine the case law I mentioned in the introduction to find out whether IP-addresses are personal data. The first of those are ECJ C-70/10. In this, the court concludes that all IP-addresses are "protected personal data": It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified. (my emphasis) Then, in 2016, the ECJ ruled in a more narrow case ECJ C‑582/14 specifically ruling on dynamic IP-addresses: The court goes through a number of deliberations, then concludes: Having regard to all the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. It is very clear from this text that the court does not challenge or invalidate ECJ C-70/10 on static IP-addresses. The court is very careful, in its ruling to point out its ruling is specifically about dynamic IP-addresses. So the ruling of ECJ C-70/10 still stands for static IP-addresses, these are always protected personal data. I believe this case law is summarized in Recital 30 of the GDPR. This recital lists the identifiers that may make natural persons identifiable: Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. (my emphasis). Since it follows from case law that static IP-addresses always makes the data subject identifiable, and dynamic IP-addresses may make the data subject identifiable, I will conclude, based on jurisprudence alone, that: Unless you are able to filter your logs to exclude static IP-addresses. I think you must consider IP-addresses protected personal data under the GDPR. However, in ECJ C‑582/14, the ruling about dynamic IP-addresses hinges on the controller having legal means to identify the data subject by connecting the IP address to some other data. The court seems to think that getting access to ISP logs is the only means of doing that. This is wrong. In 2015, the Norwegian computer scientist Einar Otto Stangvik identified 78 Norwegians who seem to have downloaded abuse material starting only with their IP-addresses. Stangvik did this while working as a consultant for Norway's larges newspaper VG. I know Stangvik and I am familiar with the methods he used. I've tried them myself, and they work. Stangvik did not have access to ISP logs, he did not do anything illagal, and the 78 natural persons identified only by means of their IP-address, combined with other data the Stangvik had legal access to. I will not go into details, I will just say this: If you know how to do this, getting to the natural person when you know the IP-address is not difficult or labour-consuming. To return to the question: It also follows from the GDPR that logging of IP-addresses falls under its definition of "processing". Your privacy policy should list all personal data personal data that is collected by yourself and third parties ("processors" in the terminology of the GDPR) that you rely on. Your hosting company is such a third party, and you need to declare the logging of IP-addresses in your privacy policy. | It doesn’t make you exempt from the GDPR if that’s what you’re asking The hash you produce is linked to one (or a small number) of computers and it therefore serves as an ID number. Because that ID number is linked to the owner of the computer it is personal information and if you are collecting it, you must comply with the requirements of the GDPR - valid legal reason, deletion when no longer required, deletion on request, data security etc. | It would probably already be illegal based on national laws that comply with Directive 95/46/EC (of the European Parliament and of the Council of 24 October 1995). What's new with GDPR include: the sanctions that can be imposed the accountability i.e. you must be able to provide documented evidence on your practices even before something happens the obligation to report all data breaches. So you'd definitely have more concrete responsibility to follow good security practices under the GDPR. | Per GDPR Art 79, you can sue data controllers if you consider your rights to have been violated. Where you have suffered damages due to GDPR infringements, you also have a right to compensation per Art 82. However, your rights may not have been violate as far as the GDPR is concerned. Under the GDPR any kind of personal data processing needs a clear purpose, and that purpose needs a legal basis. One possible legal basis is consent, but there also are others (such as legitimate interest). Just because you didn't consent doesn't mean that your rights have been violated. Where processing is based on legitimate interest, you can object to that processing of your personal data – but your rights must be balanced against that legitimate interest (Art 21). If your friends post a photo and you only appear in the background, your friends' legitimate interest to post that photo likely outweighs your rights. In practice, suing Facebook because of GDPR infringement is not a sensible way to achieve the outcomes that you likely want. First, this is expensive. Second, it is arguable whether Facebook or your friends should be the defendant. Third, removal of existing data won't prevent the processing of new data in the future. It would be more sensible to treat this as an interpersonal rather than a legal problem, and to talk with your friends so that they don't include you in their photos that they would like to share online. I've focussed on photos because their situation is fairly clear. Voice snippets might not count as personal data when you are not identifiable in them. Personal assistant apps should not be listening continuously, but only start recording when a wake-word is recognized. | GDPR killing genealogy websites? I could see GDPR totally killing genealogy websites if they follow the rules strictly, but would they really want to do that. Seems to me genealogy has an important historical role. Treat living persons with anonymization I assume you don't have data to identify a person or contact the living person. How would you contact to get consent to show personal information if you only have a name, impossible right? GDPR tries to stop abuse of personal data, yes, and your family tree certainly is personal data. However those who come to your website would mostly want to search and edit the non-living, search back in the history, thus the current generation follows the family tree and are not the point of entry. You can provide certain anonymization to those alive by not displaying the first names in full, maybe just the first letter. You may want to hide address, spouse, children for current generation. You could make those available for view/edit first by going through a secondary login, "not a robot". Further you may remove living people from search results and hide from search engines so they do not have ability to index the current generation. That would make it harder to abuse if you're going after an individual, but at the same time doesn't lock out the people providing information. | The GDPR does indeed require that the password be stored "securely". It does not specify the technology which must be used for that purpose. Hashing the PW is a common method, and should be sufficient if properly implemented (strong hash function, use of salt, etc). But other methods of securing the password might be sufficient. Encrypting the PW rather than hashing it, so that an authorized person could decrypt it temporarily might be OK. Or perhaps a security app can separately retrieve only the specified characters of the PW through some sort of encryption. Or perhaps the ISP is not using proper security. In the case of Knuddles in the linked news story, an actual breach occurred which led to the poor security being reported. You could send a report to the appropriate national Data Protection Authority. | You are processing the users IP address in order to carry out the translation to a physical location (see my comment for the technical issues with that) and an IP address is most certainly considered personal information, so yes under the GDPR you are going to need a published policy because you are both data controller and data processor. You need to inform the user of what you are doing, and you need to tell them of the legal basis for the processing (there are several under the GDPR, of which consent is only one - but in your case its going to be the easiest to justify). If you use a third party service for the location translation, you also need to inform the user of that and make available the third party services data processing policy. |
How is it legal for a hospital to put two patients together in the same room in the US? In the United States we have HIPAA regulations in place to (among other things) prevent healthcare providers, insurance providers, and any other entity that handles medical information from leaking patient information. From my experience with various HIPAA certifications, it seems pretty stringent. No leak is too small. So how is it legal for a healthcare provider to pair up two or more patients in a single room, when they are under inpatient care for several days? I ask this because I recently stayed in the hospital for 2 nights. Never spoke one word to the old guy I was roommates with. When I was discharged, I knew the following details about him: his full name his DOB his medical record # (if I felt like writing it down) some of his prior health history (he fought, and won, a battle with colon cancer) the reason he was in the hospital now (hasn't pooped in over a week) current health concerns (doctors wanted to do a biopsy to make sure the colon cancer wasn't back) These were all details given verbally by one or many different doctors or nurses over the course of my 3 days, 2 nights in the hospital. Of course, I'm sure he knows a lot of my details now, too, for the same reason - we were inpatient roommates in the hospital and the doctors used no discretion when discussing my condition. So how is this legal? | As a short answer, guidance from the Department of Health and Human Services has clarified that HIPAA does not require hospitals to provide separate rooms. As a longer answer, HIPAA is very deeply misunderstood. It does not prohibit "leaking" patient information; it prohibits unreasonable and unpermitted disclosures of protected health information (PHI). Among the PHI disclosures that are permitted are uses that are for the purpose of delivering medical treatment. Of course, the covered entity (in this case, the hospital) is required to take reasonable measures to safeguard that information. One of the areas that trips people up is figuring out exactly what it is we're safeguarding that information from. A lot people assume that the HIPAA imposes an absolute rule against disclosure of PHI, but it's more accurate to say that HIPAA requires reasonable safeguards against the unauthorized use of PHI. With that standard in mind, it becomes easier to see why you don't need to universally separate patients. In all likelihood, neither you nor your roommate is likely to use the other's PHI in any way not allowed under HIPAA. We can look at your question as proof: You've disclosed a person's health condition and medical history, but you were a reasonable person and omitted the man's name, birth date, record number, and anything else that might allow us to link that information to an individual. Hospitals -- and the law -- recognize that most people have no interest in a random strangers' medical information, let alone plans to do something nefarious with it. Because there isn't much of a threat there, the hospital isn't required to take exhaustive measures to protect the information. But when you put all that information for every patient for every doctor for every department for every hospital into a single database, the information starts getting a lot more valuable. That's why there are much tighter regulations surrounding protection of electronic records. Of course, the roommate situation might be different if the hospital had a patient that they somehow knew had a history of identity theft or even a history of disclosing PHI. I've never heard of this happening, but I'd imagine that that knowledge would require the hospital to either segregate that patient or otherwise take extra care to avoid disclosing any information about a roommate. | Maybe, but probably not, although this would be a question of fact to resolve on a case by case basis under broad legal standards by a jury, and would also depend upon the state where it took place, and upon the nature of the employer of the paramedic. The hypothetical facts in this case are rich enough and ambiguous enough that the case could go either way depending upon how it was presented and what could be proven at trial. This is a case it would be good to take to a medical malpractice/personal injury lawyer in the jurisdiction where it happened to be evaluated. Usually a PI lawyer would not charge you for doing so or would ask for only a nominal fee. Additional factual investigation would probably also be necessary regarding some of the key facts identified below. It's complicated and there are multiple issues presented in this case where the law is not uniform from state to state. The general rule is that a medical professional has to carry out the delivery of medical care to a patient with the reasonable care that would be taken by a medical professional of that type. If the medical professional fails to take reasonable care, and that negligence failure to do so causes injury, then there is civil liability for medical malpractice. A threshold issue would be whether a medical professional-patient relationship was established. This would be a question of fact for a jury and would be a question upon which various potentially applicable state and federal laws would often not be uniform. On these facts, it could easily go either way. In federal court and in a majority of state courts (although there is variation from state to state) you need to know the name of the paramedic you dealt with who provided the bad advice to bring a successful lawsuit before suing. In a minority of states, you could sue first and get the name of the paramedic in discovery through the court process from the hospital after the lawsuit was commenced. The standard of reasonable care liability in this case would be judged by the standard of a reasonable paramedic, not a reasonable doctor. But, often states would have statutes that would limit the liability of paramedics in these situations to liability for gross negligence (which the facts in the question would probably not suffice to show), but not for ordinary negligence (which a jury could come out either way upon and which would hinge heavily on expert testimony). These tort reform type laws differ considerably from state to state. Whether or not particular conduct was negligent or grossly negligent, is a question ultimately decided by a jury under very broad and general legal standards after the fact in a trial, based largely upon expert testimony, on a case by case basis, unless the facts are unequivocally clear one way or the other, which is rarely the case. With my layman's level of knowledge about what a reasonable paramedic should be able to diagnose, I could see this determination going either way. Two cases with identical facts in front of the same judge in separate trials, in which juries are presented with exactly the same evidence could come out differently. The resolution of one case of the question of whether a particular act constituted negligence giving rise to liability is not binding as precedent and is not admissible as evidence in another case (subject to a narrow exception called "collateral estoppel" which applies when the same individual is sued by multiple people for the same conduct in different lawsuits that have resulted in final orders resolving key questions of fact that the lawsuits have in common). Many states would require that someone suing the paramedic have a medical professional certify that the paramedic's actions constituted legal negligence before the suit could go forward in a court. If there is a medical professional-patient relationship, and if the medical professional was found to have negligently caused injury, the medical professional's employer would have vicarious liability in some (but not all) states under a respondiat superior doctrine. Usually, the paramedic at an ER would be an employee of a private EMS ambulance company or a municipal fire department, and not of the hospital that runs the ER. But, some hospitals have their own in house paramedics. Also, some hospitals are run by for profit or nonprofit private companies, some are state or local governmental agencies, and some a federal government agencies. Usually only a small minority of the medical professionals in a hospital are employed by that hospital, and most of them merely have "privileges" to provide medical services for which they bill patients separately while working for their own professional corporation through which they are self-employed. Legally, the hospital itself is more like a hotel or a WeWork office space than to being a firm that directly provides medical services, although it isn't quite that black and white. Holding the ER directly responsible for failing to have good triage policies, as opposed to holding the paramedic responsible and assigning vicarious liability to the employer of the paramedic, would be very difficult, although not necessarily impossible if the ER had official policies that fell far below the standard of care for emergency room triage. It would be very uncommon for an ER to have bad policies of this type. Typically, ERs are only held directly liable for bad triage policies when, for example, they have a policy of not evaluating at all someone who does not have health insurance, which is a practice expressly prohibited by federal law. If the paramedic's employer was a government entity such as a fire department or a government owned hospital, the paramedic would be entitled to absolute immunity from civil liability under the doctrine of sovereign immunity, unless an exception applied. Usually there is an express exception to absolute immunity for medical malpractice liability by a medical doctor who has established a doctor-patient relationship with a patient, when the medical doctor is employed by a state or local government, usually there isn't when the doctor is employed by the federal government. But these laws differ from state to state in fine details that matter in a case like this one regarding whether the exception to immunity from liability is limited to medical doctors or applies also to paramedics. Causation would also be an important factual issue for trial. There is liability only to the extent that taking a non-negligent action could have prevented the harm. If you are infected with COVID, one common consequence is a stroke, and if someone had a stroke while infected with COVID, the case that taking them to the ER would have prevented the stroke from doing serious damage in the long run is weaker. On the other hand, guessing that a stroke was really something else, might or might not be reasonable. The injured person would also have to prove that the EMS response occurred at a time within the roughly 1-2 hours after the start of a stroke when it is possible to take medical action that could do something about a stroke. If the stroke had already happened an hour and a half later and it was rush hour and would have taken half an hour to get to the nearest hospital, causation might be absent and there would be no liability. There would be a legitimate question of fact over whether there was an actual diagnosis and treatment, or whether there was a refusal to get treatment. The reasonable care test is a balancing test. It takes into consideration not just the potential benefits of taking action, but also the cost that would be incurred if action was taken, and the downside risks of a proposed action. The paramedic's concerns about getting a COVID infection at the ER when the person responded to didn't appear to have it at the time would make the cost of a false positive diagnosis higher and would thus influence what would constitute reasonable care in this situation as the jury applies the relevant legal test. Liability would be evaluated based upon what the paramedic reasonable understood he was being told. This would be a question of fact for the jury. It is likely that different people who were present understood what was being said differently. Even if bystanders understood what was being said and meant, what matters is what the paramedic reasonably understood was being said and meant. Given the communication difficulties involved, that question could go either way. | Prove my work is not a trade secret violation Please don't. It's not your job to prove your innocence. The burden is on them to be specific, explain fully, and prove specific claims about your actions. In other words, don't justify, don't explain, and don't defend yourself to them. It's actually best you do not say anything to them, and just forward the letter to your legal counsel (Since you're selling software to be used in the medical field, I assume you already have some kind of legal counsel). For instance, even saying something as innocuous as "Managing patients, Exams, Bills etc are all public knowledge." could be used against you. Because it establishes the fact that you've been working on those features with them and that you've been working on those features with your new company (which doesn't necessarily follow, for all they know, you could have purchased a library module from someone else with those exact features). In other words, even if you were to reply with such an innocuous-sounding statement, you could be saving them months of cross-border discovery and litigation about some of their claims (even if you believed you were being entirely reasonable by defending yourself). But at the same time, don't take what I'm saying to mean that you should lie to them about which features you recently worked on. When I say that you shouldn't be talking to them. I mean that you should not be talking to them. You shouldn't be engaging with them and you shouldn't be giving them any shred of information whatsoever (implied or otherwise). It's not your job to make their job any easier. Do not reply to them. Don't even acknowledge the receipt of the letter (unless you already did by signing for it, which can't be helped). Use a legal intermediary. Give the letter to your own legal counsel (whether you signed for the letter, or not) and leave any reply to him or her (assuming he/she thinks this warning letter even warrants a response). And if this former employer gives you a phone call, kindly refer them to your legal counsel without saying another word. | I'm not a lawyer or a medical professional, but on Wikipedia's page about DNR, we see the following quote: In the United States the documentation is especially complicated in that each state accepts different forms, and advance directives and living wills are not accepted by EMS as legally valid forms. If a patient has a living will that states the patient wishes to be DNR but does not have an appropriately filled out state sponsored form that is co-signed by a physician, EMS will attempt resuscitation. Based on this, I would hazard the guess that you can't treat anything other than those forms as legally binding, as they even ignore a living will without that state's form. | To my knowledge there is no actual law requiring a provider to file anything on your behalf. Most do it as a courtesy but if you read the terms of service that you almost certainly agreed to, it will say that YOU are the responsible party. If the insurance company doesn't pay, even if the provider doesn't submit a claim, the responsibility is still yours. There is nothing stopping you from filing your own claim using whatever forms or procedures that they have established. I'll also note that many provider networks have rules that providers must adhere to in order to remain in that network. Some may include language about timely filing of claims but that is in no way universal. These days many providers have taken to billing the patient the full amount immediately and then will issue a refund to you if/when the insurance pays. | The WHO regulations (according to that page; I haven't seen them) "provide an overarching legal framework that defines countries’ rights and obligations in handling public health events and emergencies that have the potential to cross borders." They don't dictate the conditions for practicing medicine. it does not make that much sense that an American living in Germany could not get telemedicine from America with the same level of convenience - for example, German insurance covering it, and the American prescription being somewhat valid. This would result in a geometric increase in the administrative burden. You need a system for the American prescriber to know what medicines are approved in both countries (and in every other covered country). You need some way for the German health authorities and the insurers to trust that prescribers in the United States are not endangering the health of people in Germany, which means that they need to evaluate the education and certification systems in place in the US (and every other covered country). You need to consider the legal recourse in cases of malpractice: if the prescriber makes a mistake, does the case go to the US courts or German? If German, will the US state that licensed the prescriber honor a judgment revoking the prescriber's medical license? And more. There are simply too many elements that need to be coordinated. With two countries, you have to reconcile one pair of systems. With three countries, three pairs. With four countries, six pairs. With N countries, it's N(N-1)/2, so even with a modest number of countries such as 20, you have 190 pairs of systems to consider. With 196, the number is 19,110. | As you say, the roommate who was there "did not equate the sound of a running toilet with wasting water". That, I am afraid to say, is negligent: normally, when you hear constantly flowing water, you do something about it. Somebody has to pay for the water, and assuming the water is in your name, that is you. You could yell at the roommate, but legal negligence is irrelevant to the water bill. However, if there were any resulting damage (for example to wiring or walls), that is where the question of negligence would come up: you probably would be found liable for damage to the building that resulting from letting the condition persist. But unless the fill valve broke at the tank and leaked water onto the floor (which would be clearly obvious) there won't be any damage that you are liable for. I assume that the leak developed from an old part giving out. This would be normal wear and tear, for which you would not be responsible (assuming you didn't cause the problem, for example by putting concentrated bleach in the tank). You you are saying that the landlord is trying to charge you for the repairs, and on this point, the landlord is on thin ice. A landlord cannot just make up rules about assigning liability for damage: that is a matter to be determined by the courts. A tenant can do things to a fill valve that can cause a leak; and the seal has to be replaced every few years. The tenant is not liable especially for routine replacement of the fill value seal, and does not become liable because they failed to inform the landlord in a prescribed manner. Not reporting a leak within 24 hours does not contribute to the underlying failed part. You could probably contest the legality of that bit of maintenance clause 24, in that the landlord cannot unilaterally declare who is responsible for damage. At the trial, both sides will present relevant evidence, and the judge / jury will decide whether the tenant's negligence caused the seal to fail. | It is mandatory for the employer to provide sufficient restrooms (“cabinets d'aisance”), as per article R4228-10. Other provisions regulate evacuation, ventilation, heating, disabled access, etc. There is no provision regarding when employees are permitted to use the restrooms. There can't be a single rule that works for every profession: some jobs don't let you leave your post whenever you like (e.g. machine operator, driver, guard, teacher, etc.). The most common dispute regarding restroom use is whether employees should be paid during that time. Some employers want to count restroom use as unpaid pause time. Strictly speaking, that's legal: an employee who is in a restroom is not at the employer's disposal, therefore this doesn't count as work time. However enforcing this is often logistically difficult and wildly unpopular, so in practice it's only done in places where employees must clock out to reach a restroom. I could only find one case with actual jurisprudence. In 1995, an industrial butchering company (Bigard) decided to limit restroom breaks to three fixed times a day. This was, as you might expect, unpopular; the employees went on strike, and eventually the labor court struck down this measure. That's a precedent, but it doesn't seem to have made its way to the appellate court. Your case is also slightly different in that the restrooms would only be inaccessible for an hour, which is shorter than in the Bigard case. So legally speaking, it isn't clear who will win. You'll have a better chance of success by banking on the unpopularity of the measure. Talk with your colleagues and your representatives and shop stewards. Point out that employees who are trying to hold it in are unlikely to be at the top of their productivity. |
Is requesting waiving the right to deletion of contributions against GDPR? I just got one of those GDPR mails from gitlab.com, which pointed me to a Web page where I had to accept some terms and conditions. The same as everywhere, except this passage: (For GitLab Contributors Only) As part of my voluntary contribution to any GitLab project, I acknowledge and agree that my name and email address will become embedded and part of the code, which may be publicly available. I understand the removal of this information would be impermissibly destructive to the project and the interests of all those who contribute, utilize, and benefit from it. Therefore, in consideration of my participation in any project, I hereby waive any right to request any erasure, removal, or rectification of this information under any applicable privacy or other law and acknowledge and understand that providing this information is a requirement under the agreement to contribute to the GitLab project. As far as I understood GDPR, this passage is just plain bullocks and they're trying to get away with arguably the most difficult bit of GDPR, especially if you consider their argument. I can feel their pain, but it also just doesn't feel like this is made possible by GDPR and if GitLab would deny or not completely fulfil such a deletion request, it would be liable to litigation. Am I correct in this? Note: I'm not trying to put GitLab in a bad spot here, they're just the first (only?) ones that included this kind of passage in their agreement. | Yes, their waiver has no legal basis and is invalid under the GDPR. They should have hired a better lawyer. GDPR rights cannot be waived (mrllp.com). The last bit should have been: Therefore, in consideration of my participation in any project, I understand that retaining my name and email address, as described above, does not require my consent and that the right of erasure, as spelled out in the GDRP Article 17 (1) b does not apply. The legal basis for our lawful processing of this personal data is Article 6 (1) f ("processing is necessary for the purposes of the legitimate interests pursued by the controller"). I.e. there is nothing in the GDPR that compels GitLab to erase this information, but their waiver is bogus. Keeping track of individual contributions in a software projects is necessary for a number of reasons, including security (if somebody contributes code that jeopardizes security, you want to audit everything that person has contributed). | Congrats, you've done well to minimize your processing of personal data. But I think you're still processing personal data, and are subject to the GDPR. Serving a website necessarily involves processing an IP address. This IP address will typically be personal data. While you are not storing the IP address, the GDPR's definition of “processing” extends beyond storage and pretty much covers doing anything with that IP address. As far as I know this is not an entirely settled matter, but it's better to err on the side of caution and to assume that you are in fact performing a processing activity. Even a static web page can easily lead to additional relevant processing of personal data, for example if the HTML embeds resources from third party domains. Since your website is clearly targeted at the public, it does not fall under the GDPR's exception for “purely personal or household” purposes. So I think you do need a (minimal) privacy notice that contains at least the items mentioned in Art 13 GDPR. The main reason why some people try to avoid posting a privacy notice is because it must disclose your identity and contact details. But in Germany, that information has to be provided anyway due to the Impressumspflicht. As part of your GDPR compliance obligations, you must protect how data is processed by others on your behalf. A hosting provider will typically act as your data processor. For this to be legal, you need a contract / data processing agreement that fulfills the conditions in Art 28 GDPR. This contract binds the data processor to only use the data as instructed by you, and not for their own purposes. European hosting providers sometimes include the necessary terms in their terms of service / AGB, but you should check to make sure. Netcup expects you to accept their data processing amendment in your account settings. In the hypothetical case that you were not processing any personal data at all, the GDPR would not apply and it wouldn't require you to post a privacy notice. Other laws might still have information obligations, notably the German TMG and TTDSG. | I don't think you would be responsible for whether your software is used in a GDPR-compliant manner. For GDPR compliance, it is important who the data controller is. The data controller is whoever determines the purposes and means of a personal data processing activity, i.e. the why and how. The data controller alone is responsible for their GDPR compliance. When a data controller wants to run some software, it's the data controller's responsibility to ensure that this software is used in a GDPR-compliant manner (or possibly not at all). Determining purposes and means of processing When someone other than the developer runs a software, the question is who might be a controller: you as the developer, they as the operator, or neither, or both? The operator is clearly a controller: they determine a purpose for data processing (e.g. to manage staff) and have determined means to perform that processing (e.g. to use the software). The developer may or may not be a controller. Clearly, the developer has made choices about how the processing of personal data will be performed, i.e. has determined some means of processing. E.g. the developer has developed a particular architecture, chosen a way to store personal data, and has implemented some security measures. But determining some means is not sufficient to be a data controller, see discussion below. Has the developer participated in determining the purposes of processing? I think this will depend on the specific functionality provided by the software in question. If the software just does what it says and processes the data for the operator's purposes, everything should be fine. If the software also processes data for the developer's purposes, that developer might be a controller. For example, if analytics or crash reports are collected by the developer, that would be a clear indication that the developer would be a (joint) controller. So depending on specific factors, the operator might be the sole controller, or the operator and developer might be joint controllers. Essential vs non-essential means What about the developer determining some means? When does this make the developer a joint controller? The EDPB has created a theory of essential vs non-essential means: 40. As regards the determination of means, a distinction can be made between essential and non-essential means. “Essential means” are traditionally and inherently reserved to the controller. While non-essential means can also be determined by the processor, essential means are to be determined by the controller. “Essential means” are means that are closely linked to the purpose and the scope of the processing, such as the type of personal data which are processed (“which data shall be processed?”), the duration of the processing (“for how long shall they be processed?”), the categories of recipients (“who shall have access to them?”) and the categories of data subjects (“whose personal data are being processed?”). Together with the purpose of processing, the essential means are also closely linked to the question of whether the processing is lawful, necessary and proportionate. “Non-essential means” concern more practical aspects of implementation, such as the choice for a particular type of hard- or software or the detailed security measures which may be left to the processor to decide on. – EDPB guidelines 07/2020 on the concepts of controller and processor in the GDPR, added formatting for legibility Looking through that list of essential means, some might be determined by a software's developer, but I wouldn't expect this to be the case for this kind of open source software. types of personal data: the software certainly sets a framework for processing specific kinds of personal data, e.g. by providing database fields for names, contact details, and schedules. But ultimately, the developer does not control which data is actually collected and filled into those fields – the developer does not cause specific kinds of personal data to be processed with the system. duration of processing: unless the software is programmed with a fixed retention schedule, it should be impossible to argue that the developer has determined the duration of processing. Even then, it would also be the operator who has determined this duration to be appropriate, rather than editing the open-source software to change the duration. But typically, no such retention schedule is enforced, and retention would depend solely on the operator (who can use an admin interface or a database console to erase old records). categories of recipients: typically, the developer does not determine to whom the data in the system will be given. But if the system sends data to third parties by itself, this might change. For example, if the system is pre-configured to store data in an existing cloud database instance, or to a specific analytics server, the developer might be acting as a controller. Here, good software engineering and legal risk minimization coincide. Best practices for web apps state that account credentials and connection strings shouldn't be hardcoded or committed to a repository, and should instead be provided externally (e.g. via environment variables). categories of data subjects: this depends solely on how the software is used. The developer has no way to determine whose data the operator will enter into the system. If the developer isn't a controller, might they be a data processor instead? In a GDPR context, a data processor is whoever processes personal data on behalf of a controller. The developer is clearly not a processor in this scenario because both the “processing” and “on behalf” criteria fail. The developer has no access to the data in the operator's instance, so cannot process the personal data. There is no direct relationship between the developer and the operator. The operator has not delegated authority to the developer so that the developer would be acting “on behalf” of the operator. There is a legal relationship between the two roles (the developer has licensed the software to the operator) but that is entirely irrelevant in a data protection context. The GDPR isn't directly about cookies While the GDPR does cover how personal data can be processed with cookies, the famous “cookie law” is actually separate: those cookie consent requirements stem from EU member state's implementations of the ePrivacy directive. Instead of talking about “controllers”, ePrivacy has concepts such as the “provider of an information society service”. While this role fits perfectly to an operator/provider who runs a web app in a publicly accessible manner, it does not fit a developer who merely makes some source code available. Is the developer even subject to the GDPR? The GDPR can only apply to data controllers and processor who process personal data. As discussed above, the developer is probably not processing personal data at all. Even if the developer were processing personal data, it is questionable if GDPR would apply assuming the developer has no “establishment” in the EU (e.g. an office). Then, the question would be whether those processing activities are either related to offering goods or services to data subjects in Europe, or whether the processing activities involve monitoring the behavior of people who are physically in Europe. Unless the developer is actively targeting European businesses with marketing for this software, the answer is very likely “no”. Could the operator sue the developer for providing software that isn't GDPR-compliant? The operator can sue anyone for any reason, but is probably not going to win. As discussed, the operator is a data controller. They are responsible for ensuring that their purposes and means are GDPR-compliant. That involves selecting suitable software. The data controller would be neglecting their own responsibilities if they just download some random software and start feeding personal data into it. Things might be different if the operator specifically advertises GDPR compliance features but you're not going to do that. It's also worth noting that common open source licenses like the Apache License 2.0 include a warranty and liability disclaimer. To which degree they protect the developer ultimately depends on national laws, but they make it difficult for the operator to make a legal argument that they're entitled to a GDPR-compliant product. See also the related question: Do warranty disclaimers in software licenses carry any legal weight? What can you do? First, don't worry too much. Given how much bad software there is on the internet, surprisingly few developer get into legal trouble for writing source code that's buggy or missing some features. Second, consider choosing a license for your project that includes a reasonable warranty/liability disclaimer. Third, make the state of your project clear in your README file. If someone knows that this is alpha-quality software and that no compliance features were implemented, it's their own fault if they actually use that software. | Doing this is OK according to the GDPR and other European laws. The relevant bit is GDPRs rules for Lawfulness of processing, and in particular Article 6 (1)b, which says that it is legal to do this if processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; In your particular case, signing up for using your app is "entering into a contract" and it is the data subject who has requested to use your app that is subject to this processing. | The university has a legal obligation to collect certain data from attendees, including employees an visitors. It has decided to keep these records in digital form, and offers a smartphone app as a convenience. The university has outsourced the data processing activity to a third party. This is perfectly legal under the GDPR, if that third party is contractually bound to only process the data as instructed, and not for their own purposes. Whereas the university acts as a data controller (Verantwortlicher), the third party would be a data processor (Auftragsverarbeiter). I have some doubts though whether an app or a website is indeed the solution that offers the best data protection, especially taking into account the GDPR's data minimization principle. Requiring updates when entering or leaving any room is potentially excessive. Given the sensitivity of the data, the university should have performed a data protection impact assessment to weigh the consequences of this measure. At least for employees, the measure would likely have to be approved by the union (Personalrat) as well. | GDPR definitely applies. Your scenario seems to raise two questions: What is the legal basis for processing? Are the security measures appropriate? Legal basis Every processing activity of personal data requires a legal basis. Most well-known is consent, but there are six categories in Art 6(1) GDPR including legitimate interests and necessity for performing a contract with the data subject. Conditions on consent are laid out in Art 7 GDPR. You say that data subjects “explicitly agree to the website's privacy policy and GDPR”. The GDPR does not generally expect “agreement” to a privacy policy, as information per Art 13 is an unilateral notice. Such general agreement also cannot constitute valid consent. In the context of certifications, the legal basis would likely be necessity for performing a contract with the data subject: You were contracted to provide this validation service to the data subjects. You should however make it clear which information will be displayed on the validation page (other than a valid/not valid) response. For example, I am concerned that showing the email address would not be strictly necessary for providing the validation service. You should also consider whether this validation service is a core component of your certification service, or whether there should be an opt-in or opt-out here. Security Measures The GDPR requires that you implement appropriate security measures, “taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms” of the data subjects (see Art 32 GDPR). This gives you a lot of leeway to determine what measures are appropriate, but also criteria that you must consider in your determination. A number of security measures are explicitly suggested and must also be considered: pseudonymization and encryption ensuring confidentiality, integrity, availability, and resilience of your systems ability to restore the service (e.g. backups) processes for regularly testing and evaluating your measures Aside from generic IT security measures like backups and providing the service over a HTTPS connection, I would be concerned about “insecure direct object reference” style attacks on the database. If I know that certification no 1234 exists, I could try to get the information for other numbers like no 1233 and so on. This would leak personal data. Basic defenses could include requiring additional information such as the data subject's name to be provided, or using anti-bot measures such as captchas and rate limits. However, the real solution is to avoid sequential IDs, and to generate sufficiently large tokens with a cryptographically secure random number generator. Instead of a “certification number”, it would be better to view this as a “validation code”. | The way you describe this UUID, it is pseudonymous data (see GDPR Art 4(5) and Recitals 28–29). That is, it is not directly identifying, but you have a mapping between pseudonyms and identifiers that can be used to re-identify this data. Effective pseudonymisation requires not only that the data is logically separate, but that there are effective organisational and technical measures preventing re-combination by unauthorized persons. Alongside with encryption, pseudonymisation is one of the safety measures that the GDPR explicitly requires whenever appropriate (see Art 25, Art 32). Pseudonymous data is still personal data, because you can easily re-identify the data. The PII concept is US-specific and is misleading in a GDPR context, where it is not the inherently identifying characteristics of the information that matters, but the realistic ability of the data controller to single out data subjects to whom this data relates (compare Art 4(1) and Recital 26). However, were you to irrevocably erase the UUID–email mapping, things are more tricky. There is no longer any connection with directly identifying data, so this data might be anonymous. On the other hand, such a persistent UUID still allows you to recognize/distinguish persons, so it might still be personal data. This might be the case especially when the UUID is used in long-lived cookies of website visitors, thus matching the GDPR's concept of an “online identifier”. This conclusion could be avoided by limiting reuse of UUIDs, e.g. creating a new UUID after some context-dependent appropriate duration. The GDPR does not require all data to be stored in the EU, but requires international transfers of personal data to have sufficient protections. If you're processing these data in countries without adequate legal protections (like the United States), additional safeguards have to be used. Pseudonymisation could be part of such safeguards, and has been suggested by some data protection authorities in the wake of the Schrems II ruling. However, pseudonymisation alone does not make the international transfer legal, it is more of a strategy to reduce remaining risks. I think that your systems has a good chance of being OK, but not neccessarily so. If in doubt, perform a DPIA and possibly consult your data protection authority under GDPR Art 36. If feasible, storing/processing data only in the EEA or in countries with an adequacy decision will simplify compliance. Safeguards such as pseudonymisation could be strengthened by rotating UUIDs, and by restricting access to the table with identifiers. | The GDPR has an exemption for purely personal or household activity. Creating a family tree seems purely personal as long as you don't publish it. You're also allowed to freely share the tree as long as it stays within that purely personal scope. Your proposed restriction of only showing data of blood relatives seems excessively strict. But assuming that this exemption wouldn't apply, there'd probably still be no problem. The GDPR does not require you to always obtain consent. It requires that the purposes for which you process personal data are covered by some legal basis. Consent is one such legal basis, but legitimate interest is another. You can likely argue that you have a legitimate interest to create a tree of your (extended) family. The legitimate interest must be weighed against the rights and freedoms of the affected persons. For example, contact information could be used for stalking. The balance of the legitimate interest check can be changed if you adopt suitable safeguards. Your idea of only sharing data with close relatives would be such a safeguard, but it might not be necessary. When you rely on legitimate interest, the affected person can object to further processing, furthermore they can request to be erased from your records. A request for erasure can be denied if there are overriding grounds to keep the data. E.g maybe only contact information has to be deleted but names, dates, and relations might be kept. You should notify persons when they are included into your records. It is your obligation as the data controller to make these decisions. If someone disagrees they can sue you or lodge a complaint with a supervision authority. Note that dead persons are not natural persons in the sense of the GDPR, and have no privacy. However, national laws may provide such protections. |
How can clicking on "I agree with ..." have any legal weight? Many times you have to agree with some conditions or terms on website by checking the "I agree" checkbox or clicking some button. Or this - we are working on an agreement email for our client - our client sends email to their client with some kind of "I agree ..." checkbox to give our client approval to contact them and work with their credentials. Both of these "approvals" can be faked very easily. When user clicks on confirmation url or checks some checkbox, it is just a request sent to our server and we then do something with the request. I can very easily just change directly the value in our database which can't be decided (in terms of law) whether did that user or a database programmer. If you can't prove who "approved" that, how could it have any legal weight and everybody use it? | The fact that it is possible to engage in fraud, doesn't mean that it is impossible to prove something. Usually, in a civil action, testimony that a business record says something and that it was not falsified is sufficient to meet a preponderance of the evidence standard (i.e. to establish to the satisfaction of a judge or jury that it is more likely that something is true than it is that it isn't true). It is easy to forge checks too (and hard to prove that a signature is fake), but that doesn't mean that you can't prove payment by check or that negotiable instruments are useless. | One way in which it holds legal water is that if you use the website in violation of the terms, then you may forfeit your right to take civil action against the company. Analogous language especially regarding the age of the user may protect the site against actions by third party governmental entities (COPPA-like laws), though nothing patently obvious springs to mind (insofar as this deals with firearms and there is also an age 21 restriction both on the web site and in terms of US firearms law, this is not a totally crazy idea). The citation of 18 USC 1030 non-probatively points to an issue which may be disposed of by SCOTUS in US v. van Buren, that knowingly violating the terms of service is a crime (a proposition rejected by lower courts, see US v. Valle). Facebook v. Power Ventures in particular clarifies how "being put on notice" may make such unauthorized access indeed "unauthorized access" in the statutorily-relevant sense. This does not prevent a legally-authorized law enforcement investigation, pursuant to para (f), but if the "violation of TOS = unauthorized access" theory is upheld, it limits how LEOs can legally access the website (and the limitations extend past LEOs). It is a separate and potentially interesting question whether there actually are any legal limits on the investigative powers of the government – if any law enforcement officer has the liberty to investigate anyone they want, with no supervision or requirement of justification, then this would be a rather gaping loophole in their legal strategy. Web pages involve massive copying of copyright-protected data, and the function of terms of use is in part to conditionally grant access to that copyright-protected content. When a person copies protected material from someone's web page having been explicitly denied permission to copy, they run the risk of an infringement lawsuit. | This depends very much on the nature of the agreement, and whether it affects the client's rights and obligations. It may also depend on which US state this is in. If the agreement is "We will hold the negotiating meetings at your office instead of mine." the client's rights are not affected and the client probably has no veto. If the agreement is "Yes we will plead guilty to manslaughter." it isn't valid without the client's consent. If the client is giving up any rights or making any significant concessions, then the client's consent is probably required, but I can give no better answer without an indication of the subject of the agreement. | There are no laws requiring that any company must publish all opinions from its customers. I'll admit it's fundamentally dishonest to only publish the positives, but there's no prohibition against it either. Look at movie advertisements, for example. They'll paraphrase or selectively quote a review, citing only what seems to be positive, yet if you read the review and quote in context, you'll understand the review quite differently. How exactly would you police it if you were to require companies to publish all reviews? Would you have some kind of litmus test to determine whether the critique is justified and fair? How often do people post false reviews (good or bad), and how would you account for them? Company web sites offering reviews form their own customers are doing nothing more than using the web as an extension of their marketing, so one has to expect some manipulation of the information in order to present products and services in their best possible lights. Why, for example, would I tell you how much someone hates my product when my goal is to sell it to you? This is why it would be better to use independent third-party review sites that have no dog in the hunt when it comes to honest feedback about the companies they cover. | We cannot dispense personalized legal advice: that is what your attorney is for. However, I agree with your analysis that this is most likely covered by fair use, and indeed it is not obvious that you have taken anything that is protected. There is no creativity behind a number such as entries in the "I did N pushups" column. The arrangement of data into a web page passes the smidgen of creativity test, but "210" is not a creative number. The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way. If your use is "fair use", then they can't tell you that you can't use it. In case it turns out that "fair use" fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their "information". So there are three positive avenues for you to consider: not protected, fair use, and permitted. A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say "don't do that" or "get permission" as they are to say "that is fair use". You can hire a lawyer who is paid to care about your interest, though there is never a guarantee that the lawyer's advice is correct. I think it is likely that the lawyer will tell you to not say anything until legally forced to, given the apparent rebuff of your request for special permission. | No. In order to practice law, one must establish an attorney-client relationship. Participation in Internet forums absolutely does not establish an attorney-client relationship. Everyone involved in law spends a disproportionate amount of time disclaiming this, so nobody inside the field will be confused on this point. I believe this is also directly stated in the Terms of Service. And as Jen notes, upvoting/downvoting is not even agreeing with the legal validity of the answer. Take the tour or read help pages for what voting means. It's perfectly conceivable for a psychic who knows how to sway people could write a better voted answer than three lawyers. | Wikipedia and you likely have no contract. If you don't have to click "I agree" to access the data, its likely there is no contract. Therefore this is a pure IP law question. The ONLY IP law issue that I see is copyright. The DATA is not subject to copyright. Only the expression of that data. So copying the html and selling that IS potential copyright infringement. Copying the data in some other format and using that is not. Finally, even if you do copy the full html (i.e. full expression), this MAY be licensed by their terms of use (as you suggested they have licensed some content). That is a more particularized legal question that I can't answer here. | what would happen if you made the fine print of a legally binding contract too small to read? The contents of unreadable fine print would be unenforceable. That is because it does not meet the tenet that parties enter the terms knowingly. Even if the draftsman alleges the counterparty "unreasonably" declined to ask for legible print, the fact-finder be unable to ascertain the parties' legal position pursuant to unreadable print. The rest of the contract is binding and enforceable. Would the person who signed it be able to sue you? No. It would be pointless. The unreadable print is nothing but meaningless scratch/mark/sign that gives neither party a cause of action. |
Cookie compliance with GDPR when cookies don't collect the PII? We are using Google Analytics and Facebook Login button (Which comes with preset Facebook Analytics). So here is the question with Google Analytics we are not assigning users with GA UserID and IP anonymization is turned on. So GA assigns the Client ID only, which is randomly generated to each visitor of our website. Regarding to Facebook Analytics – Facebook states that they are not collecting Personal Identifiable Information in their Privacy Policy notice “Advertising, Measurement and Analytics Services (Non-Personally Identifiable Information Only).”. So do we still need to get the consent from users as information that both Analytics services collect is not PII? | First, when using profiling third party services (Analytics is "profiling" as defined by the GDPR), your main concern is not such a trivial thing as cookie compliance, but the security of processing I've analyzed Google's IP anonymization in some detail (as part of the DPIA I do for clients). My conclusion is that for most of the web-sites we manage, Google's IP anonymization is adequate to ensure security of processing as required by the DPIA process. However, on some sites that are likely to visited by users interested in what the GDPR calls "special categories of personal data" (Article 9), we either do not use Google Analytics, or we add additional layers of security in case the USA Government orders Google to disregard the stipulations in the DPA and hand over the data (yes, the US Government can legally do that - read the fine print in the Privacy Shield accord). As for Facebook Analytics, I think you've simply misunderstood their policy. Nowhere in that policy document does Facebook say that they "are not collecting Personal Identifiable Information". AFAIK, they collect tons of it, in all sorts of obnoxious and sneaky ways. What they actually say about PII in the context of Analytics is this: We do not share information that personally identifies you (personally identifiable information is information like name or email address that can by itself be used to contact you or identifies who you are) with advertising, measurement or analytics partners unless you give us permission. Let me remind you that one of their "analytics partners" was Cambridge Analytica, so if this promise not to share is true, it looks like a pretty new policy. OK, moving on to cookie compliance. To you (the controller), both Google and Facebook are processors. Given the history of the NSA and the methods it have used and AFAIK still use to get US-based companies to hand over the personal data about Europeans through orders issued by secret FISA courts, plus the fact that total nutcases currently are in charge in the USA, I am not going to rely on the privacy policy of any US-company for protection of personal data. So if I make use of Google Analytics (and I often do, they provide a great service), I always make sure that my users opt-in on that (hard cookie concent), even I make use of their IP anonymization feature (YMMV). As for Facebook, the fact that they promise not to share PII with third parties is irrelevant because they collect personal data. You will always need consent from your users to hand over their PII to Facebook in the first place. This is not optional. PS: If was a user, that consent would never been granted, no matter how great or valuable your site might be. If you have any sort of relationship with Facebook, I'll give you my personal data when you pry it from my cold, dead hands. | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. | The GDPR applies regardless of where and how data is processed. But it is necessary to look at what the processing activities in question are, and who is the controller for these activities by determining their purposes and means. This argument is supported: by the absence of relevant exemptions in the GDPR by the GDPR's broad definition of the data controller by the ECJ's analysis in the Fashion ID case GDPR Exemptions For certain constellations (e.g. controller = natural person, purposes = purely personal or household activities) that processing is exempt from GDPR compliance (see GDPR Art 2(2)). However per GDPR Recital 18, the GDPR would still apply “to controllers or processors which provide the means for processing data for such personal or household activities.” For example, this means that I am able to use WhatsApp to process my friends' contact information for purely personal purposes because I'm exempt from the GDPR with respect to that processing, but Facebook is still subject to the GDPR regarding how they process personal data collected via WhatsApp. Already on the basis of the GDPR providing no exception for processing on someone else's computer, I disagree strongly with the answer you cited (and have already written a competing answer). It seems entirely counterfactual. How to figure out who the controller is. Per GDPR Art 4(7), controller is whoever “alone or jointly with others, determines the purposes and means of the processing of personal data”, although other laws might provide more specific criteria for individual purposes or means. We will return to that definition in the next section. The ICO has provided a checklist to figure out if you're a data controller or perhaps a joint controller. Some of the questions are aligned with the above definition, like “We decided what the purpose or outcome of the processing was to be”. Other questions are there as a contrast to the data processor role, e.g. “We have complete autonomy as to how the personal data is processed”. Analysis of the Fashion ID case (ECJ C-40/17) This judgement provides a detailed analysis of who the data controller is, and is therefore relevant to the question. Fashion ID had embedded a Facebook “Like” button on their website, thus causing the visitor's browser to transmit personal data to Facebook. Fashion ID asserted that they were not the data controller, since they had no control over what data was collected by the Like button and how it was subsequently used by Facebook. Fashion ID relied in part of the argument that they weren't the controller because processing happened on the visitor's computer. This ruling was made on the basis of the Data Protection Directive 95/46 which was repealed by the GDPR. However, since the DPD and GDPR have effectively identical definitions of “controller” and “processing”, the court's analysis remains highly relevant. In the following I'll “translate” all DPD references to the GDPR, in analogy to GDPR Art 94(2). The court found that Fashion ID was a data controller for the processing by the Like button, and that it was a joint controller with Facebook for this processing. However, Fashion ID was only a controller for those processing activities in which they played a part, not for subsequent processing of the data that was controlled by Facebook alone. Relevant details from the Judgment (ECLI:EU:C:2019:629): Paragraphs 65–66: The GDPR tries to achieve a high level of data protection through a broad definition of “controller”. Thus, an overly narrow interpretation that counteracts this goal is incompatible with the law. Paragraph 68: An entity is a controller when it exerts influence over the processing for its own purposes, thereby participating in determining the purposes and means of processing. Compare the GDPR Art 4(7) definition of “controller”. case law: C-25/17 Jehovan todistajat, ECLI:EU:C:2018:551, paragraph 68: “However, a natural or legal person who exerts influence over the processing of personal data, for his own purposes, and who participates, as a result, in the determination of the purposes and means of that processing, may be regarded as a controller”. Paragraphs 67, 69–70, 82: It is not necessary to have a single controller, there can be multiple joint controllers. The joint controllers can be involved to different degrees. You can be a joint controller without having access to the personal data. case law: C-25/17 Jehovan todistajat, ECLI:EU:C:2018:551, paragraph 69: “Furthermore, the joint responsibility of several actors for the same processing, under that provision, does not require each of them to have access to the personal data concerned”. case law: C-210/16 Wirtschaftsakademie Schleswig-Holstein, ECLI:EU:C:2018:388, paragraph: 38: “In any event, [GDPR] does not, where several operators are jointly responsible for the same processing, require each of them to have access to the personal data concerned.” Paragraphs 71–74: Processing can consist of many different individual activities. A controller might only be involved in some of them, and can only be a controller for those activities for which they (jointly) determine purposes and means of processing. Paragraphs 76–79: Fashion ID was able to determine the purposes and means of processing regarding data collection and transmission by the Like button. The act of embedding the button showed that they had decisive influence over the processing: without the embedding, the data processing would not have occurred. To summarize the relevant conclusions: someone is a data controller when they participate in determining the purposes and means of processing for some processing activity for joint controllers, this holds regardless of whether they have access to the data or participate in the processing itself one cannot be a controller for a processing activity for which they cannot determine purposes and means. Conclusion and application to the question This analysis reaffirms my competing answer to the cited answer that it is important to determine who the data controller is. The Fashion ID case shows that is important to perform this analysis on a fairly granular manner, on the level of individual processing activities. For processing on a data subject's computer by a program written by another provider, this means: some processing activities might be solely under the user's control, then they are the sole data controller (or might be exempt from GDPR) for some processing activities, the software developer might decide alone for which purposes and through which means the processing is carried out for other activities, the user and data controller might be joint controllers. This does not require explicit agreement but can result implicitly. This does not require that the software developer has access to the personal data undergoing processing. For example, a spreadsheet application might be used by an end user to process personal data on their own computer (or via a cloud application, with the same conclusions). We can consider different processing activities performed by the software: sorting, transforming, and other processing of the data in the spreadsheet is solely under the end users control, so they are the data controller (if they aren't exempt) collecting usage analytics (where those analytics signals are personal data for which the end user is the data subject) is solely under the software developers control uploading crash reports (where those reports contain personal data from the end user and contain contents from the currently opened spreadsheet) is more complicated. The software developer is definitely a controller. The end user has a dual role here as a data subject and a joint controller (if they aren't exempt) because the crash report processes personal data for which they are the controller. | That GDPR Disclaimer is no protection in some jurisdictions: the applicable laws to that situation in germany for example don't care about the GDPR: Cold calling, mailing, or e-mailing private people to advertise services all is handled by the same law: Without the consent it is expressly illegal under §7 of the law against unfair competition (Gesetz gegen unlauteren Wettbewerb UWG) and such cases are rather Slam-Dunk if the origin can be made out. The punishment can be a 300.000 € fine. The fact that to email someone you need their e-mail address and that e-mail addresses and private addresses are by default considered personally identifiable information is making it worse for the advertizer: Without either an exception (there is none available to cold-emailing) or special allowance of the person the data belongs to, you violate §4 of the federal data protection law (Bundesdatenschutzgesetzes BDSG) just by handling their e-mail address. That's a separate crime from the UWG one, adding up to another 300.000 € fine under §43 BDSG - or even up to 2 years in prison under §44 BDSG! Oh, and if the email does not contain a proper sender's address, that's another chance for a huge fine under the UWG... So, GDPR is your least trouble, if you violate the marketing laws of a country, or their own data privacy laws. A disclaimer means nothing as the act of sending the mail, even to an unintended addressee, is what is illegal and the law as written does not give a damn about 'I didn't want to advertise to that person' when in fact you sent them unwanted advertisements. Oh, and the very repository you suggest? It would violate the very same §4 BDSG and be illegal for processing private data if it was not actively asked to do that by the end user. As a result, that database is useless: It does kick back all people not in its database. Its database is incomplete because only few people give their address to that database as people not aware of the database never add their data on their own. So it regularly violates §4 BDSG with every German citizen's e-mail address it gets and kicks back, and claiming those addresses would be OK, it throws the company trying to check the database under the bus because they rely on data that is impossible to be reliable. tl;dr Don't do cold-(e)-mail marketing. You throw yourself into boiling oil with a lit torch in hand. further reading Other laws banning such behavior I had listed here, and I quote myself: The US has the CAN-SPAM-Act, which illegalizes sending unsocialised advertisements. You may NOT send a mail if any of the following is true: it has no opt-out the email was gained by 'harvesting' contains a header not matching the text contains less than one sentence the adressee does not have any relation to you In fact, you are liable for a 5-digit fine per infringing e-mail in the US. The FTC itself suggests to never buy e-mail lists - as E-mail harvesting or generating any possible e-mail adress itself is illegal. | I don't think you would be responsible for whether your software is used in a GDPR-compliant manner. For GDPR compliance, it is important who the data controller is. The data controller is whoever determines the purposes and means of a personal data processing activity, i.e. the why and how. The data controller alone is responsible for their GDPR compliance. When a data controller wants to run some software, it's the data controller's responsibility to ensure that this software is used in a GDPR-compliant manner (or possibly not at all). Determining purposes and means of processing When someone other than the developer runs a software, the question is who might be a controller: you as the developer, they as the operator, or neither, or both? The operator is clearly a controller: they determine a purpose for data processing (e.g. to manage staff) and have determined means to perform that processing (e.g. to use the software). The developer may or may not be a controller. Clearly, the developer has made choices about how the processing of personal data will be performed, i.e. has determined some means of processing. E.g. the developer has developed a particular architecture, chosen a way to store personal data, and has implemented some security measures. But determining some means is not sufficient to be a data controller, see discussion below. Has the developer participated in determining the purposes of processing? I think this will depend on the specific functionality provided by the software in question. If the software just does what it says and processes the data for the operator's purposes, everything should be fine. If the software also processes data for the developer's purposes, that developer might be a controller. For example, if analytics or crash reports are collected by the developer, that would be a clear indication that the developer would be a (joint) controller. So depending on specific factors, the operator might be the sole controller, or the operator and developer might be joint controllers. Essential vs non-essential means What about the developer determining some means? When does this make the developer a joint controller? The EDPB has created a theory of essential vs non-essential means: 40. As regards the determination of means, a distinction can be made between essential and non-essential means. “Essential means” are traditionally and inherently reserved to the controller. While non-essential means can also be determined by the processor, essential means are to be determined by the controller. “Essential means” are means that are closely linked to the purpose and the scope of the processing, such as the type of personal data which are processed (“which data shall be processed?”), the duration of the processing (“for how long shall they be processed?”), the categories of recipients (“who shall have access to them?”) and the categories of data subjects (“whose personal data are being processed?”). Together with the purpose of processing, the essential means are also closely linked to the question of whether the processing is lawful, necessary and proportionate. “Non-essential means” concern more practical aspects of implementation, such as the choice for a particular type of hard- or software or the detailed security measures which may be left to the processor to decide on. – EDPB guidelines 07/2020 on the concepts of controller and processor in the GDPR, added formatting for legibility Looking through that list of essential means, some might be determined by a software's developer, but I wouldn't expect this to be the case for this kind of open source software. types of personal data: the software certainly sets a framework for processing specific kinds of personal data, e.g. by providing database fields for names, contact details, and schedules. But ultimately, the developer does not control which data is actually collected and filled into those fields – the developer does not cause specific kinds of personal data to be processed with the system. duration of processing: unless the software is programmed with a fixed retention schedule, it should be impossible to argue that the developer has determined the duration of processing. Even then, it would also be the operator who has determined this duration to be appropriate, rather than editing the open-source software to change the duration. But typically, no such retention schedule is enforced, and retention would depend solely on the operator (who can use an admin interface or a database console to erase old records). categories of recipients: typically, the developer does not determine to whom the data in the system will be given. But if the system sends data to third parties by itself, this might change. For example, if the system is pre-configured to store data in an existing cloud database instance, or to a specific analytics server, the developer might be acting as a controller. Here, good software engineering and legal risk minimization coincide. Best practices for web apps state that account credentials and connection strings shouldn't be hardcoded or committed to a repository, and should instead be provided externally (e.g. via environment variables). categories of data subjects: this depends solely on how the software is used. The developer has no way to determine whose data the operator will enter into the system. If the developer isn't a controller, might they be a data processor instead? In a GDPR context, a data processor is whoever processes personal data on behalf of a controller. The developer is clearly not a processor in this scenario because both the “processing” and “on behalf” criteria fail. The developer has no access to the data in the operator's instance, so cannot process the personal data. There is no direct relationship between the developer and the operator. The operator has not delegated authority to the developer so that the developer would be acting “on behalf” of the operator. There is a legal relationship between the two roles (the developer has licensed the software to the operator) but that is entirely irrelevant in a data protection context. The GDPR isn't directly about cookies While the GDPR does cover how personal data can be processed with cookies, the famous “cookie law” is actually separate: those cookie consent requirements stem from EU member state's implementations of the ePrivacy directive. Instead of talking about “controllers”, ePrivacy has concepts such as the “provider of an information society service”. While this role fits perfectly to an operator/provider who runs a web app in a publicly accessible manner, it does not fit a developer who merely makes some source code available. Is the developer even subject to the GDPR? The GDPR can only apply to data controllers and processor who process personal data. As discussed above, the developer is probably not processing personal data at all. Even if the developer were processing personal data, it is questionable if GDPR would apply assuming the developer has no “establishment” in the EU (e.g. an office). Then, the question would be whether those processing activities are either related to offering goods or services to data subjects in Europe, or whether the processing activities involve monitoring the behavior of people who are physically in Europe. Unless the developer is actively targeting European businesses with marketing for this software, the answer is very likely “no”. Could the operator sue the developer for providing software that isn't GDPR-compliant? The operator can sue anyone for any reason, but is probably not going to win. As discussed, the operator is a data controller. They are responsible for ensuring that their purposes and means are GDPR-compliant. That involves selecting suitable software. The data controller would be neglecting their own responsibilities if they just download some random software and start feeding personal data into it. Things might be different if the operator specifically advertises GDPR compliance features but you're not going to do that. It's also worth noting that common open source licenses like the Apache License 2.0 include a warranty and liability disclaimer. To which degree they protect the developer ultimately depends on national laws, but they make it difficult for the operator to make a legal argument that they're entitled to a GDPR-compliant product. See also the related question: Do warranty disclaimers in software licenses carry any legal weight? What can you do? First, don't worry too much. Given how much bad software there is on the internet, surprisingly few developer get into legal trouble for writing source code that's buggy or missing some features. Second, consider choosing a license for your project that includes a reasonable warranty/liability disclaimer. Third, make the state of your project clear in your README file. If someone knows that this is alpha-quality software and that no compliance features were implemented, it's their own fault if they actually use that software. | You probably can't refuse to use such services. The relationship between you and these services is very different when you interact with them as a consumer, versus when these services are provided on behalf of your employer. In the latter case, the service is (or at least should be) bound as a data processor who can only* use your personal data as instructed by the data controller, your employer. Thus, it is your employer who determines for what purposes your data will be used, not the cloud service. Your employer has a legitimate interest in providing a modern and secure productivity suite to its employees, and in requiring you to use such services for efficient communication and collaboration. Of course it would be possible to provide some such services on-premises, but the GDPR doesn't really discriminate between self-hosted and third party services, as long as the third party service is contractually bound as a data processor. To a large degree, this is of course a legal fiction. The cloud services deploy new features all the time, and all that your employer can really do is agree to those changes, including agreeing to new ways for how to process your data. Also, the service provider may act both as a data processor on behalf of your employer for some purposes, but as their own data controller for others. E.g. in Google Workspace (formerly GSuite, formerly Google Apps for Business) Google collects analytics data about how you use their Docs product, and they use it for their own purposes. However, they would only process the document itself as a data processor. This is quite different in the consumer version where Google can use personal data for their own purposes, although within the limits of their privacy policy. Within your work account, you do have some privacy controls, similar to a consumer account. While your employer can set defaults and restrict features, you are not forced to share all data. E.g. in a Google Account, you can “pause” web and app activity (i.e. browsing history) that would otherwise be collected from Chrome browsers while logged in with your work account, or from Android devices that are managed by your employer. This data would potentially be used by Google for Ads, even with a Workspace account (I'm not sure). However, Google Workspace services generally do not feature ads themselves, e.g. the paid Gmail version does not feature ads. The largest real issue with the use of such services by an European employer is the international transfer of data to a non-EU jurisdiction, especially into the U.S. The GDPR offers many alternatives for how such transfers can be protected. In the past, the EU and US had used the Privacy Shield mechanism. However, it was found to be invalid in the 2020 Schrems II ruling, due to concerns about US mass surveillance. Subsequent guidance from supervisory authorities explained that it's not sufficient to use “standard contractual clauses” as an alternative protection, but that additional safeguards have to be implemented, which would effectively deny the personal data to actors in the US. Both Google and Microsoft offer some “data sovereignty” choices that prevent international transfers into the US. However, those have to be configured appropriately by your employer. Thus, instead of asking “can these services be used?” to which the answer is yes, it might be better to ask “is my employer using these services in a compliant manner?”. If you have concerns about such issues, you can contact your employer's data protection officer | Personal data is any information relating to an identifiable person, whether that information is public or not. The student website is definitely processing personal data of faculty. Any website is also necessarily processing personal data of visitors due to technical reasons, even though hosting has been outsourced to a third party. There's always a server, you just might not be managing it yourself. Thus, GDPR applies. Just because it processes personal data doesn't mean that the student website would be illegal. It just means the students are responsible for GDPR compliance of that website. Since the website is controlled by students and not by the university, the university DPO has no say here and the university can't demand the website to be hosted in a particular manner. Nevertheless, the DPO's suggestions might be quite sensible. Typical GDPR compliance steps include: having a clear purpose for which the personal data is being processed having a legal basis for that processing (here, probably a “legitimate interest” which will require a balancing test), see Art 6 providing transparent information to the data subjects providing a privacy notice to website visitors, see Art 13 notifying faculty per the requirements in Art 14 GDPR preparing to fulfill data subject rights such as access, rectification, and erasure when using a legitimate interest, there's also a right to “object” (opt-out) implementing appropriate technical and organizational measures to ensure security and compliance of your processing activities, see Art 24+32 making sure that third parties to which you outsource processing activities are contractually bound as “data processors” to only use the data as instructed by you, see Art 28 if you transfer data to non-European countries, having appropriate safeguards in place Does this sound complicated? It can be complicated. The point is that the internet is no longer the lawless Wild West. Just because you can easily publish a site with personal data, doesn't mean that you should. The GDPR is about requiring data controllers to find an appropriate balance with the rights and interests of the affected persons. Of course there are countries with less regulation, but there are also countries with fewer taxes and that isn't necessarily good for society. The easiest way to avoid these responsibilities will be to stop publishing the site as students – and instead taking up the university DPO's offer to have the university run the site. Which is less fun, of course, but the adult thing to do. If this motivates you further: note that the data controller (the people responsible for the site) must publish their contact information in the privacy notice, typically name + email + street address. The GDPR contains no exceptions that would help here. There is an exception for purely personal or household activities. But if the website would be available to the general public, it would be difficult to argue that this is purely personal. There's also case law such as the Lindqvist case requiring a narrow interpretation of that exception. In Art 9, the GDPR does mention that some restrictions are lifted if the data subject made the information public themselves. But that isn't relevant here, because Art 9 is only about extra-protected sensitive data, e.g. health information, union membership, or sexual orientation. | Since the Steam ID contains or may contain enough information for it to be possible to link your account to you as a physical person, it would definitely be considered "personal data" according to Article 4 of the GDPR. However, by agreeing to the DOTA2 terms of service, you have given consent for them to show your information to other players (or at least that is included in most terms of service I have read for other games. I have not read the one for DOTA2 specifically). Replays are an interesting corner case. If download of replays are only possible for other players or if the wording of the ToS says that you consent to displaying your user ID to anybody, that would mean that they would have covered their bases. As long as they comply with other parts of GDPR, like "the right to erasure" (Article 17) that is. If the API is accessible to anyone and not covered by the ToS you might have a case. If you only want to remove the traceability between you and the replays, you can always evoke Article 17 and delete your account. |
Android Application: Is purchaseToken defined under GDPR as PII? In our Android application user is allowed to buy subscription. From code we are retrieving his purchaseToken (using this API ) and saving purchaseToken on our server to validate his license. According to documentation on above page "purchaseToken" is defined as "A token that uniquely identifies a purchase for a given item and user pair". From my side as developer: we cannot get exact user who purchased this item based on purchaseToken. Google does not provide such possibility (no API for this). But in theory – if somebody has token + access to Google database – he can identify user exactly. So the question is: For me as Android Developer, is "purchaseToken" identified as PII (Personally Identifiable Information) or not? The question is important, because depending on if it is true or false I have to inform user or do not inform about that. | IANAL, But the information commissioners office (UK) describe personal data as: (bolding mine) The GDPR applies to ‘personal data’ meaning any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier. This definition provides for a wide range of personal identifiers to constitute personal data, including name, identification number, location data or online identifier, reflecting changes in technology and the way organisations collect information about people. https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/key-definitions/ So I would say that in your case it is personal information. In principle, regardless of if you can identify an individual, personal data is that which can be used to potentially identify an individual. For an extreme example of why this is important: Lets say your app sells AIDs medication. Can a hacker who got in and stole your database, be able to use that with information they stole elsewhere to identify people with AIDs and blackmail them, in a way that they wouldn't if you had not stored this identifier? Plus, if you want to err on the side of caution, there's no legal penalty for telling the user about non-personal information you store. | Art 13 GDPR is about information to be provided when data is collected directly from the data subject. This information can be provided directly during/before collection. It is not generally necessary or useful to send the data subject an email with this information. Usually, a SaaS website will provide the information under Art 13 as part of their privacy policy, and link it in easy to find places. Also consider the EDPB guidelines on transparency, which suggests a layered approach: in addition to a detailed privacy policy, summarize key information directly when the data is collected, e.g. next to an input form. | There are two "cancellations" here. There is a contract between the customer and the company. This contract was ended. Also, as part of GDPR obligations, the data of the former customer was removed. Now the "credit" part suggests a pre-paid phone, which are often described as "no contract". Legally this is incorrect. There is a contractual obligation for the phone company to deliver phone services (typically expressed in minutes of call time, # of text messages and/or MB of data). Now the pre-paid contract with high likelihood had a clause which dealt with inactive accounts. For instance, the minutes of call time may expire after 5 years. A "credit" that has not been converted to minutes, messages, or megabytes may also expire. When this happened, the company might need to keep the customer data on their records for two more years (for legal reasons), so the 7 year period does not sound weird at all. As soon as the legal reason to retain the data has ended, the GDPR indeed states that the data should be removed. That act is not connected to the credit expiring years before. | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! | These kinds of cookie banners are typically noncompliant and useless since they are not clear and provide too little information to users. Careful: blocking a user who declines consent is usually a GDPR violation! Instead, only those aspects of the site that rely on this consent should be disabled. When cookie consent is needed Per the EU ePrivacy directive (PECR in the UK), information society services (websites, apps, …) are only allowed to store or access information on the end user's device if one of the following holds: the access or storage is strictly necessary for performing a service that was explicitly requested by the user; or the user has given consent Note: there is no “legitimate interest” exception for cookies. When is access/storage strictly necessary? For example, it is strictly necessary for a photography app to store photos on a device. It is strictly necessary for a website to store session cookies so that you can log in to the site. It is strictly necessary for an ecommerce site to store the contents of your shopping cart. It is strictly necessary to remember cookie consent status. And so on. It is not strictly necessary from the perspective of the user to have analytics cookies, ad personalization cookies, or cookies for features that the user doesn't actually use. Many websites that just provide the service the user expects will therefore not have to ask for cookie consent, even if they use cookies. It is worth noting that the ePrivacy definition is entirely technology-neutral. It doesn't relate specifically to cookies, but to any kinds of storage, including LocalStorage. Regulatory guidance considers any access or storage of information on the device to be in scope, even JavaScript APIs in a browser (for example to read the screen dimensions), and considers techniques like fingerprinting to be functionally equivalent and therefore subject to the same rules. It is also worth noting that these rules apply regardless of whether the information being accessed/stored qualifies as “personal data”. What consent is Consent is defined in Art 4(11) and Art 7 GDPR, and further explained in EDPB guidelines 05/2020. A defining feature of consent is that it must be freely given. The user must not suffer “detriment” for revoking or declining consent. And per Art 7(4): When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. This disallows making access to a service conditional on unrelated consent. For example, it would not be permissible for a website to exclude users who decline consent for advertising cookies. But: The EDPB guidelines discuss that there can be “permissible incentive” for consent. For example, courts and some DPAs seem to be of the opinion that a subscription website can offer free access to users that consented to personalized ads: consent-or-pay-walls can be compliant, whereas consent-walls alone would not. Sometimes consent is really needed for a processing activity, in which case it is OK to block that service until consent is given. For example, websites should not load third party content like YouTube videos or embedded maps until consent is given to share personal data with the third party. The rest of the website should still work, though. If consent was not freely given, if the user didn't have an actual choice, then the consent is invalid. What should the data controller in your scenario do? The data controller should reassess the role of the cookies for which they are trying to ask for consent. If these cookies are strictly necessary from the user's perspective, then it is proper to inform the user about them – but this should not be confused with consent. It is my personal opinion that purely informational cookie banners are confusing/misleading and should be avoided, but this could also be argued differently. If these cookies are not strictly necessary, then the phrasing “We need to use cookies to provide you with our service” is quite misleading. It should be made clearer to the user that they can opt-in to additional services/improvements if they want to. The user should be able to configure this on a per-purpose basis. Thus, more compliant cookie consent flows will typically give the user three options: continue with only strictly necessary cookies/purposes (must be default behaviour if none is selected) consent to all purposes configure purposes For example, I'm fairly happy with the current Reddit cookie notice: Why this is a good notice: it explains the data controllers (Reddit and partners) it summarizes the purposes for which consent is sought it links to more detailed information the presented options “accept all” an “reject non-essential” are less ambiguous that “accept/decline” Comparing this with the list of minimum required information for informed consent in section 3.3.1 of the EDPB guidelines linked above, the following information is missing though: the identity of the “partners” what (type of) data will be collected and used the existence of the right to withdraw consent | No, it's not legal. The General Data Protection Regulations (GDPR) apply given that you are in the UK (regardless of where the Data Processor is based). The UK GDPR is slightly modified due to Brexit, but the same principles apply. The only plausible legal basis for this actions would be that you consent to it, and you're entitled to withdraw that consent at any time. Some may claim that Article 6.1(b) applies, i.e. that it's necessary to send marketing email in order to fulfil the contract, but GDPR is clear that bundling such consent into a contract for service simply to permit the data processor additional actions isn't allowed, as I'll demonstrate. UK GDPR requires that consent to use your personal information (in this case, your email address) for the stated purpose be freely given. Consent to use your information for direct marketing is not freely given if it's inseparable from the consent to use it for some other service, as per para 43: Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. And Article 7.4 backs this up with When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. The intent of Article 6.1(b) is that only the processing required for the service you have bought is allowed (e.g. if you supply your address for delivery of stuff you've bought, the data processor can use that address to send you the stuff, but is not allowed to add a contract term that allows them to send you unwanted stuff). Examples of emails that Article 6.1(b) would allow (in my assessment) include things such as notification of upcoming downtime, or a reminder that subscriptions are due, but not unsolicited advertisements for other products. There's a grey area that's open to interpretation, where adverts are piggybacked onto actual service messages. | It's really your client that should be asking these questions. Writing the app is perfectly legal. So you can enter a contract with that client to write the app and deliver it to them, ready to be put on the Google Play store or the App Store (entering a contract needs to be done carefully, obviously). I'd make 100 million percent sure that the contract states clearly that you have zero responsibility if the app is rejected or removed for non-technical reasons, and that the legality of actually selling and running the app is also not your responsibility. The reason is that I very much suspect that running the app might be illegal, and that the chances of getting it permanently on one of the stores are rather slim. And solving those problems is outside of what a software developer can competently do. | The "Contribution activity" is extracted from repositories hosted on Github. Looking at the privacy statement, Github considers itself as a hosting service for those repositories. See EU Directive 2000/31/EC Article 14 for the exact definition and conditions: Article 14 Hosting Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. Article 2(4) GDPR defines that the GDPR does not apply (to Github) in this case This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. Extracting data from the repositories to create a nicely formatted contribution activity list, would still be considered hosting as defined at Directive 2000/31/EC, because Github does not (manually) redact or modify commits. So if you want to hide your contribution activity, you must delete the contributions. And you should not ask Github to do that, but ask the owners of the repositories. And they might have good reasons to deny your request. If an owner of a repository denies your request without a good reason, you can ask Github to do so. But Github would then probably deny that request, because they explain in their privacy statement that modifying the history is not possible: The email address you have supplied via your Git commit settings will always be associated with your commits in the Git system. If you chose to make your email address private, you should also update your Git commit settings. We are unable to change or delete data in the Git commit history — the Git software is designed to maintain a record — but we do enable you to control what information you put in that record. edit To further clarify why Article 14 of Directive 2000/31/EC applies, see case C-236/08 (Google v. Louis Vuitton) where the European Court of Justice clarifies the meaning of that article (ECLI:EU:C:2010:159): In that regard, it follows from recital 42 in the preamble to Directive 2000/31 that the exemptions from liability established in that directive cover only cases in which the activity of the information society service provider is ‘of a mere technical, automatic and passive nature’, which implies that that service provider ‘has neither knowledge of nor control over the information which is transmitted or stored’. Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. The way Github creates/shows the contribution activity is in my opinion technical, automatic and passive. That means it is not liable, and that implies that the GDPR does not directly apply, unless data is unlawful, and someone notifies Github of that: The restriction on liability set out in Article 14(1) of Directive 2000/31 applies to cases ‘[w]here an information society service is provided that consists of the storage of information provided by a recipient of the service’ and means that the provider of such a service cannot be held liable for the data which it has stored at the request of a recipient of that service unless that service provider, after having become aware, because of information supplied by an injured party or otherwise, of the unlawful nature of those data or of activities of that recipient, fails to act expeditiously to remove or to disable access to those data. Surely the GDPR might be the reason data is unlawful. But you need a reason, in particular based on Article 17 ("right to be forgotten"). For example if personal data of a 12 year old child is processed without permission of it's parent. Without such a reason the legitimate interest of the repository owner will probably prevail (who wants to keep the git history complete). |
Can gateways be added to public information? Archive.org is a repository that has millions of papers, books and archives that are in the public domain, and are freely available. No registration whatsoever is needed. Conversely, Academia.edu, is a for-profit company aiming to become a platform for academics. They have collected many works in the public domain, but to access any of them, it is necessary to register, or to "connect" using social media (by which you give consent to share your contacts). This is, in my opinion, nothing more than a facebook-type business model. In fact, their advertisment website says it plainly: Advertise on the largest platform for Academics Target 62 million registered users and over 25 million monthly impressions My question is: is it legal to add a barrier ("free" in money terms, but not in information terms, which has value) to information already in the public domain? | You are framing it wrong. It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere. If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy. Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there? Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu1. But that would be possible only for works not in the public domain. 1 To be decided by a judge on the basis of the wording of the licence and jurisdiction. | In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage. | It's hard to say, under the Twitter TOS. They do not claim that copyright is transferred to them: "You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content)". But you do license the content: By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. The totality of conditions, including the Twitter Rules, is ever-evolving and not apparently contained in a single link. From what I can tell, there is no condition that prohibits a user from copying tweets into a book. There are numerous statements about "respecting copyright" which refer to taking material that is not licensed to Twitter and redistributing: nothing about redistributing licensed material.A plain reading of the first bold sentence says that you can make your content available to the world, not restricted to "retweeting". | According to the current version of the TOS: You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. This explicitly says you own your content, although Medium has some rights to do some things. And they won't sell it without permission, so unless Medium itself is publishing this book, it would seem to be copyright infringement. (Of course, I don't know what the TOS said when you originally wrote the article.) If what was copied was not copyrightable (like a quote from the Constitution, or a simple uncreative graph of something obvious) then it wouldn't be infringement. But your article was probably more than that. | The relevant concept is dedicating a work to the public domain, that is, saying in the work something like "This work is dedicated to the public domain". I understand that this isn't entirely reliable in European civil law. The preferred alternative is to license it to the public. However, you have to decide how "free" you want the work to be made. The normal state of affairs, where you do nothing and just rely on copyright law, is that you have the sole right to allow copies to be made and derivative works to be created. Thus if someone were to make a derivative work based on your composition, they would need your permission: but then they would have the right what they created (such as a translation). If you just abandon your property right to the work, you impose no obligation on others, and a person can freely create a translation (which is now their property). If you execute the right public license, you can allow people to use your work as long as they include that license in their versions. A fairly common public licensing scheme is the Creative Commons licenses. That article gives a decent summary of relevant rights and how particular licenses correspond to configurations of permissions. I would say that the most difficult thing to do is to figure out what you don't want to happen, and pick a license that matches that interest. | I want to use a couple of lines from "What is life?" by Erwin Schrödinger as quote on the front of my thesis. Would i need permission for that form publisher or would that be convered in fair use? There are close cases of fair use, but this is not one of them. This is unequivocally and clearly fair use. It is a brief excerpt of a much larger body of work, it is for non-commercial use by a student, and it is for educational and academic purposes (presumably to advance science). Also do i need to attribute the quote properly Yes. This is necessary both because of the moral rights of the author under E.U. copyright law (assuming that works by Erwin Schrödinger are still in copyright), and for reasons of academic ethical considerations. It is still in copyright, because he died on January 4, 1961, which is 58 years ago. So, in countries that protect copyrights for the life of the author plus 50 years (the minimum required by the Berne Convention) this is out of copyright, but in countries that protect copyrights for the life of the author plus 70 years (e.g. Germany), the copyright is still in force until January 4, 2031. Also, even if the work were out of copyright, as a matter of academic integrity, you would be required to attribute the quote in an academic thesis in any case. Quoting someone without attribution in academic work is considered plagiarism, and could result in your thesis being stricken and also in your degree being revoked in a serious case. Government ministers in the E.U. have been forced to resign over plagiarism in their academic work as students in recent years. This is taken much more seriously in Europe than it is in the U.S. | You misunderstand the nature of copyright. Holding copyright allows you to decide how the work can be copied: there is no obligation on you to publish it if you don't want to. After your copyright expires you don't have to publish it either: the only thing that has changed is you can no longer prevent anyone making a copy. The lost works of Aristotle are in the public domain - if you can find them you can make as many copes as you like. | Court filings are, in general, matters of public record. This does not automatically put them into the public domain. This will mean that, absent a special order of the court, anyone will be able to read this filing as pert of the court records. Many courts now make all or parts of their records available on the web. But the copyright holders will possibly retain their rights to authorize the making of further copies, and surely retain the right to authorize the making of derivative works, and their other rights that are part of the copyright bundle, such as the rights of public performance. These rights would not be retained if the work had been placed in the public domain. |
Could the USA be banned from the United Nations? The USA has been accused of starting wars by false flag operations since the Maine. Some USA agencies linked to the CIA have admitted using covert means to start wars such us The Washington Institute for Near East Policy. This is an American think tank who is researching some programs all based on the middle east. This think tank have some former government officers including R.James Woolsey Jr former CIA director. Years ago Dr. Patrick Clawson director of research said in a press conference: I frankly think crisis initiation is really tough, and it's hard for me to see how the United States President can get us to war with Iran... Video Here Later he talks about many questionable American wars that could have started by false flag operations. ...we are in the game of using covert means against the Iranians... This man also appears on the BBC and many other talk shows. Knowing that the USA spends more money on the military than the next 9 countries of the list combined (ref here) and 9/11 is being investigated by as a possible false flag operation. (ref here) and here. And the CIA has done many controversial operations installing and removing leaders all over the world. Would it be possible to start sanctions against the USA or even ban them from the United Nations? | Yes. This follows article 6 of the UN Charter: A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council. | The legal line is EU laws, with some considerations (at the time of enacting them) about what other countries and international organizations (like the WTO) reactions. The practical line is enforcement. As the country with the biggest stick (not only militarily but economically) the USA provides the best examples: the ongoing Huawei affair, with one tip executive arrested on the grounds of a Chinese company selling technology to NK. the Helms-Burton Act that punishes foreign companies trading with Cuba, and that asserts that USA courts can decide on issues of private property in Cuba. the Iran embargo. In the Google case, it is even simpler. If Google wants to do business in the EU, it must follow EU law like everyone else (same happens in the USA and elsewhere). The fact that parent company is registered in the USA is not relevant. And probably, the fine has been issued not to the parent company but to the subsidiary registered within the EU. In the John Doe CASE, France (not the EU) could try first to seize any of his assets in France and, if those are not enough, go to the USA courts and try to have them enforce its judgements. But if what John did was not illegal in the USA then the courts would probably refuse to do so. That does not mean that John is guaranteed to be immune to any consequences, as France could block international money transfers to John's accounts, force Amazon (or whoever) to make his shop unavailable in France, block his page, and even issue an international warrant that would mean that Jhon would have the risk of being arrested if he ever leaves the USA. | You cannot stop the claim. But the good news is that claims of jurisdiction by many countries are routinely ignored by many other countries. So enforcement attempts might fall short. I've written things here that might get me into real trouble with the authorities of North Korea if I ever traveled there and if they were able to match my real-world identity with this account. But I don't plan to travel there. Likewise, before I went to Turkey I should probably review what I've written about their government, and then wonder if it is worth the risk. Probably yes, it wasn't very incendiary. But my home country and those I tend to visit (if there is no pandemic ongoing) would not extradite me for what I wrote. | It is not the case that treason must be tried by a military tribunal. See for example US v. Kawakita, which was an ordinary civilian jury trial. I cannot even imagine why one would think that there is any such requirement. Here is the federal law against treason, and nothing says "offenses must be tried in a military court". Perhaps that misconception was based on the use of military tribunals during the American Revolution, which preceded the creation of a US legal system. | The article "The Posse Comitatus Act..." analyzes the legal restrictions on use of military power arising from that act. Following US v. McArthur, 419 F. Supp. 186, where the act played a role in trials related to Wounded Knee, it was found and subsequently supported in various ruling that the use which is prohibited by the posse comitatus statute is that which is regulatory, proscriptive or compulsory in nature, and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority. Mere "involvement" of "deployment" of the military is not contrary to the act. It should also be noted that the act includes a provision for actions expressly authorized by Congress, as was the case of the Espionage Act of 1917 and the related Magnuson Act of 1950. Hypothetically (in extremis), Congress might pass a law requiring the seizure of persons infected with a disease. If Congress expressly authorized USAMRIID to effect such seizures, that would not be in violation of the act. Otherwise, it would be. Since USAMRIID is a research lab and not an enforcement arm of the military, it is both highly unlikely that Congress would authorize such activities or that USAMRIID would get involved in this way. W.r.t. their ordinary operations, scientific research, nothing in what they do that contradicts the Posse Comitatus Act. Since we are dealing in hypotheticals, I should point out that SCOTUS has so far not definitively endorsed the "regulatory, proscriptive or compulsory" test, so that test could be overturned, though it is unlikely to be. | Chris Cuomo is wrong: the media are not different. For details, see this column by First Amendment specialist Eugene Volokh. My original answer was also wrong. Well, not wrong, but irrelevant. My answer was irrelevant because the hacked emails Cuomo was talking about do not involve national security. By focusing on the national security angle, I answered a question nobody asked. To make matters worse, in his comment on IKnowNothing's answer, A.fm. politely pointed out my mistake fourth months before I made it. | In the US, it is illegal to sell screwdrivers to Gaza without a license, see 31 CFR 595.409. There are numerous rules pertaining to the Palestinian Authority staring here. Dept. of State has a partial list of countries and their associated restrictions, if you want "like Gaza", and note that they warn you that this is not a complete list. If you are specifically interested in weapons-related restrictions, the US Munitions List is here. There is no generic "anti-drone" system, so you would have to look at the specifics of a system to see if it is on the restricted list, or not. | The President can’t declare war It’s not a power given to the President, the Constitution reserves it for Congress - Article One, Section Eight: Congress shall have power to ... declare War Congress has declared war 11 times, the last being on June 4, 1942. Declarations of war are largely an anachronism. However, that just begs the question ... Is there a particular circumstance where the U.S. president can be tried for [engaing in military action] against another country? Yes. If the President authorizes military action that is or is conducted in a manner that is against US domestic law then she can be impeached by the House and tried by the Senete. If it is a violation of international law then she could be tried by an International War Crimes Tribunal. However, this could not be the International Criminal Court since the US does not acknowledge its jurisdiction. It would need to be a tribunal established by the UN which means not vetoed by the USA - an unlikely circumstance. If he came into the custody of a foreign power, then they could try him under their own laws assuming they were willing to ignore the principle of sovereign immunity. |
Without Prejudice section of a letter I believe I have a good understanding of the meaning and implications of using the words "without prejudice" in a document which you may want to show in court. To date, when I have offered a settlement it has always been on a separate document which I make mention of in my notice, however I now find myself dealing with a person who does not have a good grasp of English. I need to send them a notice (while trying not to upset them) and am trying to keep things as simple as possible as a result. What would the likely implication to the admissibility of writing a letter, and then adding a paragraph to the end - in brackets, starting with the words "(Without prejudice, ...) " followed by things I'm willing to do to help them be? The issue I'm trying to resolve is that a tenant is in breach of an agreement because of how and where they are dumping inorganic waste. I simply want it removed, although doing this will be a big job for the tenant - I'm quite happy for the tenant to use my tractor to help move the waste and to arrange extra empties of my tip for him, but don't want this to be construed as changing our agreement or binding me to continue to allow him to use my tip in the future. | You believe wrong - that is not what without prejudice means and it won't do what you want. Without prejudice only has meaning within the context of an effort to negotiate the resolution of a dispute. So far, so good, you have a dispute and are trying to negotiate a resolution: this letter can be marked without prejudice. What it means is that this letter cannot be used as evidence of concessions made by you if you (or they) ultimately take legal action unless you both waive your without prejudice right. A document that simply asserts your rights and makes no concessions is not without prejudice even if it is marked as such. A mixed document can be without prejudice as to the concessions but still admissible as to the assertions. However, let's assume that you resolve your dispute along the lines you suggest: you provide a tractor and empties gratis and it all gets sorted out. The fact that there was an agreement and its terms is not and cannot be without prejudice. If you wind up in dispute in the future and the tenant seeks to resolve it on the same terms and you can't or won't then they can point to the fact that you waived your rights previously and that they have an expectation that this was a permanent waiver. Don't overthink this: just put in your letter where you make the offer that this is a one time thing and you are not waiving your rights now or in the future. | No The criteria for adverse possession is that you have to be in possession without permission. A tenant, even one that pays no rent (or stops paying rent), has permission. | would it be interpreted in favor of the person who did not draft the terms? Yes, provided that the interpretation is reasonable. That is known as the doctrine of contra proferentem. Here, the term "deliverables and associated documents" might entail a contradiction if that term [allegedly or literally] encompasses "source code or content". That depends on what definition(s) of "deliverables and associated documents" can be adduced from the contract. The term could refer to items that are not "source code or content", such as the binary files (i.e., executables and DLLs), instructions & documentation on how to operate and troubleshoot the application, and so forth. In that case, there would be no contradiction because there is no overlap between these items and the source code. if term A) is written on line 10 and term B) is written on line 11, is it resonable to assume term B) takes precedence or modifies term A? No. The sequence of clauses/terms itself does not determine which one outweighs or qualifies the other. Instead, the language used in the contract is indicative of the parties' intent and therefore how the terms of that contract relate to each other. | The language "I therefore place you on notice that" in your proposed missive is superfluous and adds nothing that is legally relevant. Flourishes like that are common among former paralegals, court clerks, common law country notaries, and other non-lawyers who want to sound legalistic but don't really have the relevant legal knowledge. It is common to say "I put so and so on notice that" in a legal opinion or a summary of a case, but mildly uncommon and not necessary to put those magic words in the notice itself in a situation like this where there is no prescribed statutory language that must be used on a specific legal form. In this situation the important thing is that the person is actually made aware of the situation, not that you conform to a statutory form. Also does it add anything to have stated the effect if they do not do so ("This may be detrimental..."), if the matter proceeds to a court case? If they complain of a lack of an opportunity to inspect in a later court case, it allows you to say, "I told you so and I gave you a chance to do something about it" which might be fairly convincing to a judge and would probably overcome any arguments that you engaged in spoliation of evidence. | It is done to prevent or at least provide a defence against a latter argument based on Estoppel; which at the risk of trivialising something that is very complex means that if you indicate to someone that you will or won't do something and they act on that indication then they may have a claim if you don't do what you indicated. When lawyers say this they are usually outlining a client's possible future actions so estoppel is in play. If they include this they are specifically saying "... But we might not do that." | A typo in a contract does not ever void the contract. If the typo changes the meaning of the contract from what was actually intended, then it is up to a judge to interpret the contract and whether it is reasonable that a person would assume its intended meaning. In your example, it is obvious that the word "least" was meant to be there and not "lease" - as the alternate word makes no sense in context - so a judge would not void the contract or release you from your 30 day obligation (which is probably even granted to the landlord by local laws regardless of whether it was stated in the contract). Even misspellings of people's names or addresses on a lease do not void a contract if you have already paid or taken up residence. If any of these situations were brought to court, the judge would just amend the contract to a corrected version that would then serve as the contract between the two parties, replacing the version with the typo. This is known as contract reformation. | One path would be to get compliance, by demonstrating that it is legally required. The best evidence that he is legally required to wear a mask is this recent mandate from the Department of Public Health. However, I cannot find a corresponding executive order, which may be in a generic form empowering CDPH to issue orders. Any imposition of penalties for violation must be publicly announced and rest on legislative authority. The mandate is not generally enforced, except in a few cases regarding bars and restaurants. There are various persuasive avenues that you could pursue, such as asking CDPH to come talk to him (unlikely, but you could try), complaining to the property owner, appealing to local social media to apply pressure (possibly putting yourself at legal risk for defamation, if you make a false statement). There are two more involved legal actions to contemplate. One is to terminate the lease and move elsewhere. This would likely result in an action to collect the remainder of the rent, but the strategy would be to argue that the manager has interfered with your private enjoyment of the premise. A second, highly improbable, is to sue the manager and get an enforceable court order requiring him to wear a mask. Courts have a prejudice against ordering people to take actions when other options exist (terminating the lease, monetary compensation). It could be an interesting but expensive test case to see if you could get a judge to order the manager to wear a mask. So yes they are obligated to wear masks, but legal enforcement is going to be difficult at best. | No, it’s not bad In fact it can do a great deal of good. It’s entirely possible that you will negotiate a settlement that is better for both of you than court. Negotiations undertaken in such circumstances are inadmissible in court - the legal term is without prejudice. The reasoning is that is good public policy for parties to be able to resolve disputes without needing a court and that they should be free to make admissions, concessions and offers without the threat that these will be used against them if they do need to go to court. Be careful about accusing people of things like ‘dishonesty’ First, interpretation of other people’s behaviour depends a lot on where you stand. If you are in dispute with someone you are likely to attribute motives to them that may not be there or may not be apparent to a more detached observer. For example, offers can be withdrawn at any time prior to their acceptance - doing so is not “dishonest”. Second, (dis)honesty is a question of fact, not opinion, and it involves more than whether someone is always truthful - people can tell falsehoods and still be honest. Stating that someone is dishonest when you can’t prove that they are, in fact, dishonest is defamation. |
GDPR: are faces always considered identifiable information? Machine learning research into facial recognition and processing (e.g. emotion detection) often makes use of datasets containing large numbers of facial images. These are usually anonymised, so that the only other information contained is the file name(s) - such as 00001.jpg. How does GDPR affect the storage, processing, and sharing of such data? For the sake of argument and to gain clarification of position, I would like to leave aside the provisions within GDPR that provide for processing data as scientific research. I am also working under the assumption that there is no other meta-data, such as a spreadsheet that links image filenames to the person depicted. GDPR makes clear (Recital 26) that anonymous data is not covered by the regulations: “… The principles of data protection should [therefore] not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable.” Data protection considerations would be significantly reduced if these datasets were considered out of scope of GDPR. Is it possible, however, for a face image in isolation to be considered truly anonymised? It would always be feasible to link it to a real person, because most people are capable of recognising faces. With the image, and the person standing in a crowd, it is likely that the average viewer could identify the depicted person. | Your data is not anonymous since from the picture of the face the individual can be identified. It would be anonymous, if the face was blurred and other possible identifiable information was removed. Of course, that would defeat your purpose. Please note that, in any case, Anonymization Techniques are, themselves, a type of personal data processing that requires a legal ground, and achieving real anonymization is not a trivial matter (see Article 29 Working Party's opinion 0829/14/EN WP216 on the subject). 1. The face of a person includes biometric information, which is defined in article 4 (14) among other types of personal information regulated by the GDPR as: "personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data". A facial recognition software's purpose is exactly to perform a specific technical processing based on the facial features of the persons, to achieve a unique identification of a person based on these biometric features. Article 9 of the GDPR includes biometric data among the types of prohibited processing, unless one of the exceptions in § 2 applies. There are 10 types of exceptions among which: consent of the person, employment context, personal data made public by the person, scientific or historical research,... (each exception having its own conditions). You should check that you comply with one of these exceptions stated in article 9 § 2, if your application is about using facial images for unique identification of a person based on these biometric features. 2. In turn, if your processing is not about unique identification of a person based on these biometric features, but only about emotions recognition (which you briefly mentioned at the beginning of your post), it could be considered as not falling under the requirements of Article 9. That would still be a processing of personal information, but it would fall under the normal article 6 requirements. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | The scope of the GDPR is entered when personal data is being processed in a structured manner. Personal data is any information relating to identifiable data subjects (definition in Art 4(1)). "Peter attended the meeting on the 14th" is personal data. "That woman with the blue handbag said she wanted to return on the 25th" is personal data. However, aggregate statistics do not relate to individuals, and are typically not personal data. "On the 14th, we had 25 attendees" is not personal data. Not all use of personal data is within the scope of the GDPR. For example, the GDPR would not apply if two organizers talk about who attended the meeting. However, Art 2(1) says the GDPR applies when personal data is processed wholly or partially with automated means (e.g. computers, smartphones), or forms a filing system or is intended for a filing system (e.g. keeping notes on attendees, keeping attendance lists) If GDPR applies, the organization would be responsible for ensuring compliance with its rules and principles, summarized in Art 5. Primarily, this means: having a clear purpose for processing selecting a suitable Art 6 legal basis for that purpose (e.g. consent or a legitimate interest) only processing the minimum data necessary for achieving that purpose determining and implementing appropriate technical and organizational measures to ensure compliance and security of the processing activities preparing for data subject rights, in particular by providing an Art 13 privacy notice when collecting data from the data subjects There are of course some complexities in the details. When the legal basis is "consent" (opt-in), the organization would have to ensure that this consent was freely given and sufficiently informed. Per Art 7(4), consent would not be freely given if that consent was a condition for access to the meeting. Using "legitimate interest" (opt-out) can be more flexible, but it requires performing a balancing test to show that the legitimate interest isn't outweighed by the data subjects' interests, rights, and freedoms. Roughly, relying on a legitimate interest is appropriate when the data subjects can reasonably expect the processing activity to occur. Regarding point 1, keeping general counts and aggregate statistics about attendees is probably OK since it wouldn't be personal data. If you are very conscientious about this, you could round all counts and use categories like "0-4 attendees, 5-9 attendees" for each facet, which makes it more difficult to make inferences about individuals. But the fundamental point is that all your data should relate to attendees as a whole, never to individuals. Regarding point 2 and 3, this is a question of legal basis. Since you gather names through informal conversations, I think that attendees would be weirded out if they learned that you kept detailed records on their attendance. So I think that you probably wouldn't have a legitimate interest here. However, being upfront with this and offering an opt-out could change this. On the aspect of keeping detailed notes on data from informal conversations, I'd like to point out H&M's EUR 35 million fine back in 2020 (summary on GDPRHub.eu). In a callcenter, managers used to have conversations with employees. These conversations touched on anything from vacation experiences to health problems, marriage problems, and religious beliefs. All of that is fine. What was not fine is that the managers went full Stasi and kept detailed notes about all of this on a shared drive and used that information for management decisions. This went on until a configuration error made those files accessible to all employees. This violated all the points in the basic compliance process outlined above: the records had no clear purpose, no suitable legal basis, contained way more data than necessary (and even Art 9 special categories of data like information on health or religious beliefs which have extra protection), did not have appropriate measures to prevent unauthorized access, and did not fulfill data subject rights like the Art 13 right to be informed. In case this non-profit is a church or religious organization that had its own comprehensive data protection rules before the GDPR came into force in 2018, those can continue to apply per Art 91. This could probably address some issues of legal basis, but cannot circumvent the GDPR's general principles. | Any processing of personal data needs a legal basis, for example necessity for some contract or legitimate interest. If no other legal basis allows the processing, you need to acquire consent. Consent must be freely given. If something is gated behind consent without that consent being really necessary, this might coerce users and they would not be able to consent freely. The GDPR does not have a hard ban on this, but it explicitly calls out that this case must be considered when determining whether consent is valid. So what your company is trying to do is in a dark grey area. Not necessarily wrong, but likely so. Consent could be made free if users have an actual choice. For example, some online newspaper sites had success with a “pay or consent” wall. (Success in the sense that some data protection authorities allowed this). In your case, this could mean that users either consent to extra data collection, or that they buy some reasonably priced premium mode. But none of this is for you to decide. You can voice your doubts that the software would be compliant. You could also ask if the Data Protection Impact Assessment document for this proposed processing is available (creating such an assessment is likely mandatory in this case). But in the end, it is the company's obligation to be compliant, and this responsibility is largely shouldered by the company's data protection officer (to whom you can turn with further questions). | It follows from case law from the ECJ, e.g. C‑70/10 (28 January 2010) and C-582/14 (19 October 2016), that IP-addresses are personal data. Since my interpretation of the case law differs from the interpretation offered by @Greendrake, I'll go into the relevant case law in a bit more detail than I did in my initial answer. TL;DR: Yes, IP-addresses in server logs are personal data and you need to declare IP-address logging in your privacy policy. As I said, we need to examine the case law I mentioned in the introduction to find out whether IP-addresses are personal data. The first of those are ECJ C-70/10. In this, the court concludes that all IP-addresses are "protected personal data": It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified. (my emphasis) Then, in 2016, the ECJ ruled in a more narrow case ECJ C‑582/14 specifically ruling on dynamic IP-addresses: The court goes through a number of deliberations, then concludes: Having regard to all the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. It is very clear from this text that the court does not challenge or invalidate ECJ C-70/10 on static IP-addresses. The court is very careful, in its ruling to point out its ruling is specifically about dynamic IP-addresses. So the ruling of ECJ C-70/10 still stands for static IP-addresses, these are always protected personal data. I believe this case law is summarized in Recital 30 of the GDPR. This recital lists the identifiers that may make natural persons identifiable: Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. (my emphasis). Since it follows from case law that static IP-addresses always makes the data subject identifiable, and dynamic IP-addresses may make the data subject identifiable, I will conclude, based on jurisprudence alone, that: Unless you are able to filter your logs to exclude static IP-addresses. I think you must consider IP-addresses protected personal data under the GDPR. However, in ECJ C‑582/14, the ruling about dynamic IP-addresses hinges on the controller having legal means to identify the data subject by connecting the IP address to some other data. The court seems to think that getting access to ISP logs is the only means of doing that. This is wrong. In 2015, the Norwegian computer scientist Einar Otto Stangvik identified 78 Norwegians who seem to have downloaded abuse material starting only with their IP-addresses. Stangvik did this while working as a consultant for Norway's larges newspaper VG. I know Stangvik and I am familiar with the methods he used. I've tried them myself, and they work. Stangvik did not have access to ISP logs, he did not do anything illagal, and the 78 natural persons identified only by means of their IP-address, combined with other data the Stangvik had legal access to. I will not go into details, I will just say this: If you know how to do this, getting to the natural person when you know the IP-address is not difficult or labour-consuming. To return to the question: It also follows from the GDPR that logging of IP-addresses falls under its definition of "processing". Your privacy policy should list all personal data personal data that is collected by yourself and third parties ("processors" in the terminology of the GDPR) that you rely on. Your hosting company is such a third party, and you need to declare the logging of IP-addresses in your privacy policy. | Are my assumptions correct? Yes, this is precisely the sort of thing that would fall under the purview of "the purposes of the legitimate interests pursued by the controller or by a third party", as it fundamentally enables you to deliver the service to the data subject, and its also difficult to argue that "such interests are overridden by the interests or fundamental rights and freedoms of the data subject" given its a fundamental part of delivering the service before any consent can be given. Its not the intention of the GDPR to solely require a direct relationship between the data controller and data subject, its intention is to allow the data subject to control more of the relationship than they did previously - in some cases, that control remains with the data controller, which is why not all of the lawful basis for processing rest on consent. So long as you ensure that the CDN provider has a relevant privacy policy and is identified as a data processor in your privacy and data policy then you are good to go. In my mind, this is similar to the issue of how the data subjects packets get to you from their computer - we aren't including all of the network providers who carry the packets between the data subject and the processor (despite the fact that those providers will have access to much of the same information as the CDN, such as IP address, source, destination etc), even though in many cases we don't know that information (for example which route it will take over the internet). The only difference here is that as the data controller, you know about the CDN and can include it in your policies, so you should. | Cookies are information stored on the end users device and require consent¹ per the ePrivacy directive, even if the cookies or similar technologies don't contain personal data. Conditions for consent are defined by the GDPR. This was also confirmed by the "Planet49" case. 1. consent is required unless the storage of or access to information on the end users device is either strictly necessary for a service explicitly requested by the user, or necessary for technical reasons. E.g. functional cookies like a shopping cart feature in a web shop are fine, as are cookies used solely for security purposes or technical features like TLS session resumption. It is however likely that this cookie does qualify as personal data in the sense of the GDPR. The cookie contains an ID that lets you single out/distinguish this user from all other users, even though that ID doesn't link the user to a real-world identity. It is also possible to argue that the cookie is entirely anonymous, but the safer approach is to treat it as personal data. Similarly, other features of the website necessarily involve the processing of personal data, such as processing the user's IP address, if only for the purpose of responding to their HTTP requests. The GDPR's criteria for valid consent are mainly about ensuring that the consent is a freely given unambiguous indication of the data subject's wishes. For example, consent can never be the default, it needs to be an opt-in. However, Art 7(1) GDPR says that the data controller has the burden of proof of showing that valid consent was given. The GDPR itself does not provide further guidance on what this means specifically. I would argue that it can be decomposed into two aspects: Showing that valid consent was given. The manner in which you ask for consent must enable a free choice, and must respect that "no consent" is the default. For example, you could archive screenshots of the cookie management flow to show that there is a free choice. You could archive the frontend software so that it can be demonstrated that the cookie is not set until consent is given. Showing that this user gave consent. There is a wide variety of opinions on how to do that. My personal opinion is that the existence of a cookie paired with a valid consent flow to set that cookie demonstrates that the cookie can only have been set in a valid manner. However, there are consent management solutions that provide additional insight, such as the user's entire history of giving and revoking consent. For example, the user's browser might generate a pseudonymous ID enabling that user's consent history to be stored on some server. Indeed, that would be personal data, and this would have to be disclosed transparently. It would not be valid to use the consent management information for other purposes, for example by using the consent management ID for analytics purposes. Storing the user's consent history is definitely appropriate if you have a concept of identity, such as for signed-in users. I have doubts whether this is also helpful on websites that don't have user accounts, and I have not heard of a case where the existence of such records made a difference. After all, such records can only be relevant if the user gave consent but later disputes this in a complaint with a DPA or in a lawsuit. Which approach to choose will depend on more specific guidance provided by your country's data protection authority, and on the risk balance appropriate for your business. After all, the purpose of such compliance work is not to be 100% safe from lawsuits, but to reduce risks from enforcement/litigation to acceptable levels. What is acceptable is ultimately a business decision. E.g. the only 100% safe way to do web analytics is to have no analytics at all, but that is not acceptable for most businesses. | The GDPR actually does require you to follow DNT in Article 21: In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications. I think this is quite explicit. |
Legality of Music Transcription Service I'm considering creating a music transcription service as a side hobby project. With this service, clients could request that I transcribe a song (or parts of a song) for them in exchange for a fee. I would then send the client a PDF version of my transcription. From my understanding, it is illegal when you sell or give away any derivative form of a copyrighted song (including sheet music). With this service, I do not intend to publish or sell sheet music. I would merely create the transcription, and give it to the client that requested it for a fee. I understand it is perfectly legal to transcribe a song you purchased yourself, as long as it is for personal use. Does this become copyright infringement when someone else pays you to transcribe a song they've purchased, and this person is the only one who will get the transcription? | It is not "perfectly legal" to transcribe music for personal use. It is pretty likely that you can get away with it. The first thing to understand is that the act of transcribing is the creation of a derivative work (see the definitions part of Title 17). The core protection is section 106, which states that the owner of copyright has the exclusive right to prepare derivative works based upon the copyrighted work. So it is not permitted to prepare derivative works, e.g. transcriptions, without permission from the copyright owner. There is a big however: section 107 provides a possible loophole, "fair use". If you were to be sued for violation of copyright in making an unauthorized derivative work, your attorney might well advise you to set forth a fair use defense. This question and answer summarizes the basics of the fair use defense. Probably the most important factor would be the 4th factor, the effect on market -- in the circumstance that you describe, the effect is likely to be low. If you do this as a paid service for others and not just for personal amusement, then a fair use defense becomes a stretch. | Using software generally does not entail any legal requirement to acknowledge the use of that software, and would only arise as a licensing condition. Google services, including Translate, are subject to certain terms of use especial the part about what they expect of you. They do not impose any requirement regarding acknowledgment, therefore they cannot later demand any royalties. If a translation program imposes any demands on your usage of the program, that has to be part of the original agreement whereby you were allowed to use the software at all. | 17 U.S. Code § 107, which governs fair use in the US, says (emphasis mine): Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Note that commercial/educational use is part of only one factor. Even if that factor is in your favor, it may not be fair use, and even if it isn't in your favor, it might be fair use. Because fair use is determined on a case-by-case basis, we can't really say whether your use is fair use, with or without the donations. That would be the sort of thing you'd ask a lawyer about to get real legal advice on your particular case. | No These are derivative works and making them is copyright breach. Doing this as a hobby or even for the entertainment of friends in private is likely fair use. Distribution or performance in public (monitored or not) is likely not fair use and you would need a licence. Here is a summary of the relevant law in australia. | THE FOLLOWING OPINION IS NOT LEGAL ADVICE Based on your screenshot and description, I don't see anything infringing. If the data you are using is from your own sources, and what you show is not a scan or photo of their guide, and your layout is thus unique in specifics (not a direct copy), it wouldn't be an "infringement" as far as copyright law is concerned. Things you cannot copyright: A font (except as a computer font file but not as used in a document). A concept (a main issue here). A idea for a "way" or "order" to display data. Mere data or facts can not be copyrighted nor can ideas. Anything sourced from the US government (trail data, topos, etc.) Something not in printed, physical, or recorded form. That is, the copyright only extends to those things as they are realized in print, or as a recording for audio or video, or a physical statute, etc. A live performance is not copyrightable for instance, nor are ideas. The Law: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. For instance, an icon of a TENT is the common form (like a font) of indicating a camp ground. They may be able to copyright the specific instance of their tent icon, but they cannot prevent you from using some other triangle to represent a tent for a campground. And in facts yours is completely different. Displaying data a particular "way" like 1e for 1 mile east is not copyrightable when it is common for the type of guide. It's just data. CONCEPTS AND DATA ARE NOT COPYRIGHTABLE, only the ACTUAL specific page or work in total as rendered. More below, but your page seems totally different. OTHER FORMS OF IP PROTECTION Now, just because some intellectual property can't be protected by copyright, does not mean it is a free-for-all. For instance, a "way" of doing something can be PATENTED (process patent). And "ornamental design" can be given a design patent. A logo or brand name can be given a trademark. Here's an interesting court ruling on the subject of data display. Basically it can't be an abstraction/concept. It has to be in a definable, physical, novel form. NOTE: it has been possible to copyright a "look and feel" but that applies to software, not static printed media. And the courts have been reversing on that a lot as time goes on. BUT WAIT...THERE'S MORE So, I am going to GUESS that you are talking about AT Guide by David Miller? It's pretty rich of him to claim copyright over the "manner of the display of data" when APPARENTLY he is using concepts of data display as described by EDWARD TUFT So, LOL. Is this the guide they claim you are "copying"?? THESE AREN'T THE ICONS YOU'RE LOOKING FOR Okay, so let's go one by one and their claims against you: 1. The way of representing distances between shelters "The Way" of presenting something is not copyrightable, only an expressive or final form. Some forms of "organization or selection" that may make a work in total copyrightable, but not on their own in isolation. 2. The sideways orientation of the elevation profile Presenting some elements "sideways" is not copyrightable (WTF LOL OMG RUS) the same as number 1. Turning an element sideways does not, on it's own, rise to the level of "creative or non-obvious." 3. The icons Your icons are completely different. If you copied and used his ACTUAL icons, you might have had some issue, but your icons are not even remotely the same. Using icons to indicate services or features is COMMON. Not copyrightable. http://www.dmlp.org/legal-guide/works-not-covered-copyright In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.) 4. The convention of representing direction/distance for waypoints. Again, "The Way" of doing something is not copyrightable, nor is data or facts. 1.1E or 2.3NW are common are they not? I've seen similar treatments elsewhere. It's "obvious and not novel." FINAL FORM, EXPRESSIVE FORM is copyrightable NOT FORMATTING CONCEPTS. Basically, he is saying something along the lines of "I'm formatting paragraphs with a double space, so you can't." The "actual" icon drawings he used are copyrightable. Your icons are clearly different. I assume your mountain-top profile line is taken from some publicly available survey source? So long as you never used a scan of the actual line he uses (and even then?), because he cannot copyright the mountain top profiles themselves! DOES HE EVEN HAVE A VALID COPYRIGHT? For that question, I'd say yes with limitations. His work is a compilation of data. Data can not be copyrighted, but the unique arrangement can in context of the work in total. These three conditions must ALL be present (from http://www.rbs2.com/ccompile.pdf): The collection and assembly of pre-existing material, facts, or data. The selection, coordination, or arrangement of those materials The creation, by virtue of the particular selection, coordination, or arrangement of an original work of authorship. So It seem to be that his guide meets these, but his copyright is for his work in total. You are NOT using his data. You are using your OWN data. Based on my reading of Key vs Chinatown Today you are not even close to infringing. You are doing your OWN selection, and your OWN arrangement. It does not matter that you may be using some similar typographic or charting conventions. Those cannot be copyrighted. You are doing your own thing, and "similarity is not infringement." SEARCH AND YOU WILL FIND On the subject of the copyright, here's the copyright on AT guide: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&Search_Code=TALL&PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&SEQ=20190506230418&CNT=25&HIST=1 If the link doesn't work due to expiration or a cookie, it should look like this: It's a matter of using the USPTO search engine "its way" — it's not Google and requires specific search strings. Looks like the assignee or owner is https://antigravitygear.com ? Did THEY contact you or David Miller? Or did they claim to be an attorney? I'd love to see the email. Attorneys don't email dunning letters, by the way (though they may if it was a DMCA takedown request I suppose, but I still doubt it.) If it was an attorney it would be via US mail on attorney letterhead. To the best of my knowledge, you can't file proof of service on an email, it has to be USPS or trackable. This means the guy that made the other PDF is annoyed or whatever. If he claimed to be an attorney, that's VERY illegal if he's not. And one final note: Just being non-profit does not absolve you of copyright infringement. But as I said, I see no infringement here. The other answer that asserted these are covered under "works of art" is not withstanding. There is nothing "expressive" about Miller's guide. Also that other answer cited a source for AUSTRALIAN law, not US. Mere typographic elements do not rise to "an expressive work of art". A mountain profile that is nothing but a illustrative line based on data also does not. | I'm not sure this would be a copyright violation. 17 USC 117 says: (a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner... Due to the shutdown of the license server, it is impossible to use the program without an adaptation. It is therefore an "essential step in the utilization of the computer program", and not infringing, in my opinion. | Q1 and Q2 are definitely not copyright violations. Copyright protects original expression. Your questions are yours; the only things you are using are the names, and copyright doesn't cover them on their own. The quotation in Q3 might conceivably come under copyright. However in practice it is very likely to be fair use (unfortunately nothing is definitely fair use until a court rules on it, but I can't imagine a short quotation in a quiz being an issue). | The work and the copyright to the work are different property rights Buying one does not give you rights to the other. Copyright laws differ by country so its impossible to say which need transfers to be in writing and which don't. For example, the United States requires them (and also allows owners to rescind the transfer after a number of years) but in Australia, it isn't necessary and the Copyright Act makes a number of presumptions in civil actions (ss126-131) which favor the person claiming the copyright so that, in the absence of contrary evidence, their assertion will prevail. |
Could an international tribunal or the United Nations suphoena members of the former USA goverment because of 9/11? In 2010 the sixth President of Iran Mahmoud Ahmadinejad offered 3 points explaining who was responsible for the 9/11 attacks at the United Nations. Video Here In point number 2 he suggests that some corrupt element withing the USA government was responsible. According to some Western media, weeks later he stated that the 9/11 attacks were a big lie. References here: http://www.dailymail.co.uk/news/article-1256161/9-11-Its-big-lie-Irans-president-declares.html http://edition.cnn.com/2010/WORLD/meast/03/07/ahmadinejad.afghanistan/index.html Also Lawyers Committee for 9/11 Inquiry and AE911Truth which is an organization endorsed by 3000 architects a engineers who demand a new investigation. Also this view is endorsed by Iranian media such us Manoto TV and Russian media such us Russia Today. Could an international tribunal or the United Nations suphoena members of the former USA goverment because of 9/11? For example people like Dick Cheney, Donald Rumsfeld or even former President George W. Bush. | No Even if there were any evidence that any member of the US government were involved (there isn’t), that is a matter for the US justice system. The US is not a member of the International Criminal Court so no Supra-National body has jurisdiction. | It is not a crime in the US. It may be a firing offense depending on the nature of the appointment (that is, what exactly do you mean by "diplomat"?) or at least cause for demotion / reassignment. A diplomat from another country could be declared persona non grata, but again it is not a crime to act contrary to a governmental boycott call, in the US. This follows from the First Amendment. | The President can’t declare war It’s not a power given to the President, the Constitution reserves it for Congress - Article One, Section Eight: Congress shall have power to ... declare War Congress has declared war 11 times, the last being on June 4, 1942. Declarations of war are largely an anachronism. However, that just begs the question ... Is there a particular circumstance where the U.S. president can be tried for [engaing in military action] against another country? Yes. If the President authorizes military action that is or is conducted in a manner that is against US domestic law then she can be impeached by the House and tried by the Senete. If it is a violation of international law then she could be tried by an International War Crimes Tribunal. However, this could not be the International Criminal Court since the US does not acknowledge its jurisdiction. It would need to be a tribunal established by the UN which means not vetoed by the USA - an unlikely circumstance. If he came into the custody of a foreign power, then they could try him under their own laws assuming they were willing to ignore the principle of sovereign immunity. | Sometimes In general, intentionally false speech gets less protection than other speech, and in some cases it is unprotected. The classic example of speech that is unprotected is "Falsely shouting FIRE in a crowded theater". Note that this is both intentionally false and highly likely to be seriously harmful to multiple uninvolved people. On the other hand, the classic case of New York Times vs Sullivan said that, at least when the subjects were public officials (later broadened to public figures) it was not enough to prove simple falsehood in a defamation case, one must prove "actual malice" (an unfortunate term) which in this context means statements that are either knowingly false or are made with reckless disregard for the truth. The court in that case said, in effect, that if a newspaper had to be sure that its every statement could be proved true in every detail, it would be unwilling to vigorously report on matters of significant public concern (this is a paraphrase, I'll add a quote later). Opinions are considered legally not to be either false or true. "President Jone is the worst leader the US has ever had" Is a statement of opinion, and so is not defamation. Moreover, in political contexts, attempts to punish false statements of fact that are not defamatory have been held unconstitutional. One example was the "Stolen Valor" act, which punished falsely claiming to have been awarded a medal by the US armed forces. This was held to be against the First Amendment. In general, regulation of speech (which here includes writing and other forms of communication) must be fairly narrowly drawn and must have good reasons behind them to survive a court challenge. How much so depends on the nature of the law, and particularly whether it is "content-neutral" or not. Details and cites to come when i have a little more time. | The existence of a law/legal system is the province of sovereign states. We do not have a world government so there is no world legal system. There is such a thing as international law, however, that is based on what the sovereign nations of the world agree is international law (usually in a treaty) and the degree to which they have implemented them in domestic law. For example, the International Criminal Court has no jurisdiction over US nationals because the United States of America has refused to ratify the treaty that created it. There are also supra-national entities like the EU whose directives are binding on their member states and such states are required, as a condition of their membership, to enforce such directives domestically. A sovereign state's courts will decide when a person and their activities falls within their jurisdiction based on the circumstances of the particular case. For example, an Australian citizen can be prosecuted in Australia for paying a bribe to a foreign official in a foreign country even while working on behalf of a foreign company even if such activity is locally lawful. Why? Because Australia is a sovereign nation and it says it can. Sometimes it is impossible for a person to comply with the laws of multiple nations. For example, if the EU requires that certain data about their citizens is to be made confidential but the laws of the USA require a US corporation to disclose this information then it is impossible to comply with both. A person in such a position must decide which laws they will break. It is partly for that reason that multi-national corporations are usually multiple corporations i.e. they have a different corporate subsidiary in each jurisdiction (tax is another reason). For example, if all EU citizens do business with Google (Europe) then Google (USA) can rightfully claim that it has no data about European citizens to disclose. | There is a regulation 31 CFR 560.419 making it unlawful to hire an Iranian national ordinarily resident in Iran to come to the United States solely or for the principal purpose of engaging in employment on behalf of an entity in Iran or as the employee of a U.S. person, unless authorized pursuant to §560.505 If the work is conducted long-distance, the employee would not be coming to the US. An additional regulation is 31 CFR 560.201, that Except as otherwise authorized pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to May 7, 1995, the importation into the United States of any goods or services of Iranian origin or owned or controlled by the Government of Iran, other than information and informational materials within the meaning of section 203(b)(3) of the International Emergency Economic Powers Act ( 50 U.S.C. 1702(b)(3)), is prohibited. which could be applicable. 50 USC 1702 says that there is no prohibition against the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 4604 of this title, or under section 4605 of this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18 It is not obvious how the US government will interpret "information". Following the rule noscitur a sociis, outsourcing accounting services is not clearly "information" given the instances enumerated in the law. Then we come to 31 CFR 560.206, whereby no United States person, wherever located, may engage in any transaction or dealing in or related to: (1) Goods or services of Iranian origin or owned or controlled by the Government of Iran; or (2) Goods, technology, or services for exportation, reexportation, sale or supply, directly or indirectly, to Iran or the Government of Iran. (b) For purposes of paragraph (a) of this section, the term transaction or dealing includes but is not limited to purchasing, selling, transporting, swapping, brokering, approving, financing, facilitating, or guaranteeing. An Iranian person is subject to Iranian law: I won't try to figure out if there is any Iranian law against such an arrangement, but I assume that it is legal from the Iranian side. In light of 560.206, it may be illegal under US law; however, an Iranian person is not subject to US law. The US company would be. Before giving up hope, I will point out that 560.206 starts with "Except as otherwise authorized pursuant to this part" (Part 560). There is a sort of contradiction between the prohibition in 560.201 and the one in 560.206, that the former states an exception (about information) to a general prohibition, but that exception is not stated in the later (which is about transactions). The government probably would not interpret the information exception in 506.201 as an "authorization". Instead, specific authorizations are found in Subpart E. The majority of those authorizations pertain to exporting the service of obtaining a non-immigrant visa, but also under 506.509 authorized importation of and payment for certain intellectual property services. However, what is enumerated is services pertaining to copyright and patent registration, and not the creation of IP. Bear in mind that US law is fluid and will change on Nov 4. The Office of Foreign Assets Control is authorized to grant licenses for transactions with Iran. The company that an Iranian might enter into an agreement with bears primary responsibility for navigating the legal waters, but if a company mishandles the transaction, the Iranian person may end up not being compensated for his work. Normally one would hire an attorney versed in relevant law, and there are firms that specialize in the law of Iran sanctions, but such consultations may be difficult for the ostensive Iranian contractor. | Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: "Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago..."? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See "How is a judge to evaluate a witness's credibility?" | No. Indonesia Law uses Civil Law structures which use an Inquisitorial Trial. The chief difference is that in the United States (which has a Common Law Structure) the judge usually does not decide the case, but interprets the law (Trier of Law) and with a few exceptions, will determine the sentence once guilt is found. The Jury decides the case (Trier of Fact) and pronounces guilt (It is the right of the defense to request a Bench Trial, which gives the Judge both roles. The prosecution cannot object to this request). In a Civil Court, the big difference is that their is no Jury and the Judge has both roles (Trier of Law, and Trier of Fact). As the name suggests, rather than two sides fighting each other (adversarial), the two sides are answering questions posed to them by the Judge or usually a panel of Judges are used and the Judge may initiate further investigation in the evidence. The United States does use Inquisitional Trials from time to time, but they are often seen in misdemeanors, traffic courts, and small claims courts. The latter is a popular daytime TV genre (think Judge Judy) while misdemeanors and traffic court decisions are often time funny and make great Youtube videos. There are not many great Adversarial media as many throw out rules for time sake (real U.S. trials have many long boring periods during testimony) and story/drama sake. I would recommend "My Cousin Vinny" which was written by two lawyers who were fed up with Hollywood messing up how court room drama works and is hilarious to boot. When viewing either, take them with a grain of salt. |
Are hobby projects exempt from GDPR? Consider the scenario where a student requires a huge list of names, emails, zipcodes etc. This student makes a little application to scrape the internet and saves all to a public database. GDPR states that it only concerns enterprises, and the possibility to be exempt when the company size is less than 250. However, it also describes this to be due to smaller companies posing a smaller risk. To fall within the remit of the GDPR, the processing has to be part of an "enterprise". Article 4(18) of the Regulation defines this as any legal entity that's engaged in economic activity. You must be careful not to mistake business conducted from home for household activity. Does this mean that students/individuals who process potentially huge amounts of PII are exempt from GDPR compliance? Or does GDPR cover this in another way? | Corrections to your statements or quotations Your quotation "To fall within the remit of the GDPR, the processing has to be part of an "enterprise" (...)" is not from the GDPR, and is an erroneous statement. Also, the threshold of 250 employees you refer to, is only relevant with regards to the record-keeping obligations of Article 30. GDPR provisions relevant to your question The GDPR applies to individuals or students in accordance with the material scope of the GDPR, which is treated in Article 2 (2) c) where GDPR states that "This Regulation does not apply to the processing of personal data: (...) by a natural person in the course of a purely personal or household activity;" The Recital 18 of the GDPR gives some insight as to what would be a purely personal or household activity as follows: (18) This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities. Interpretation To my knowledge, there are no specific guidelines regarding this matter to date from WP29. Those may be adopted in the future, or some requirements may already exist in local laws in one of the EU countries or from documentation available from local data protection authorities. If you are based in the EU, you could check this with your local data protection authority. There is, however, case law from the European Court of Justice as pointed out by Free Radical, interpreting the scope of the "personal use exception" in Directive 95/46/EC (which provisions are similar to the GDPR in this matter). If your hobby is not limited to your personal circle (yourself and the persons in your household), and thus if you plan to share the results of your data collection and processing with third parties (possibly teachers, other fellow students, or anybody else if you publish the results of your work) resulting from your "hobby" activity, you certainly would not fall in this exception to the scope. Case C-101/01 is an example of publication on the Internet made by an individual claiming to use its "freedom of expression to create internet pages in the course of a non-profit-making or leisure activity". The court clarified that: exception must (...) be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people Another, less optimistic interpretation from the examples given by the GDPR recitals, could derive from the spirit in which purely personal or household activity are to be understood. These examples actually refer to limited amounts of data and which are related to the individual itself (his own address book, his social networking activity, etc.), and creating limited risks relevant to the person herself and its contacts. In this view, there is a risk that a "hobby" in which you collect data about thousands of persons unrelated to you, could be considered as not being really purely personal. Actually, an interpretation of case law C-212/13 from the European Court of Justice also mentioned by Free Radical could support this reasoning. In this case, a video recording of people was stored from cameras installed by an individual on his family home for its own security purposes, but the cameras were also monitoring a public space. The court ruled that: To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity (...) Extending this reasoning to your question, a "hobby" consisting of collecting "huge list of names, emails, zipcodes" unrelated to you could be regarded as "directed outwards from the private setting (...)". Conclusion As a hobbyist, or a student, if you can work on fake computer generated data and achieve the same results in your personal learning purposes you should definitely consider doing so. | I believe in this case, your company (OrgX) is a data processor and your customer's organization (OrgY) is the data controller. OrgY is responsible for establishing a lawful basis for sending you (OrgX) the personal data for their employees. Note that consent is just one of six lawful bases outlined in article 6(1). I'm no expert, but I believe OrgY's admin can claim they have a legitimate interest in sending their employee's personal data for training sake. In either case, the data processor is not responsible for establishing the lawful basis for processing. Of course, data processors aren't completely off the hook. GDPR outlines specific requirements for data processors (see chapter 4, particularly article 28). | Recital 47 contains: The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. So even if you never explicitly gave your consent for any marketing purposes, they can send you marketing (e)mail. However, art. 21, paragraphs 2-4 contain: Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing. Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes. At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information. So you can object, and they must stop sending marketing mail. They should also have told you that you can object. And it does not matter how the marketing is presented. A unique code does not change anything (regarding the GDPR). Also, they are not allowed to add marketing to any mail you want to receive, like service availability notifications, after you have objected. | If I have correctly untangled the law, Schedule 2 of the Data Protection Act part 3 identifies as a condition where you are not prohibited from revealing personal data: The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. The Animal Welfare Act 25(1) says An inspector may require the holder of a licence to produce for inspection any records which he is required to keep by a condition of the licence I can't tell if you are required to keep customer names, but if you are, it looks like the pieces fit together and you would have to provide the records. Call a solicitor to be sure, though. | My interpretation of the GDPR when it comes to a contact form is as long as your privacy notice states that what data you collect in the contact form and what legal basis that data is used for you are fine. Someone submitting a contact form in my opinion is their consent to reply back to them regarding the data in which they have submitted. Another good clause to have in your privacy policy is to basically state if the user submits information about another natural person that they have consent from that natural person for that data and what it would be used for. The internet is the internet. People have been trolling it for years. People have also submitted false information for years. The best a business can do is simply outline what their site does, what data is collected and what it will be used for. That along with what legal basis it’s processed for and following it makes you GDPR compliant in that regard. As to withdrawing consent and the rights given by the GDPR that’s all specific to what infustructure a business has in place. As a developer I know the headaches of the GDPR. Most of it resides in the fact data is not centralized and thus can’t easily be retrieved, modified, or removed. Once you’ve tackled that aspect providing the user their rights under GDPR isn’t to far off. | Under GDPR Article 6 section 1(f), a lawful basis for processing is: processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. It seems that informing a data subject of the availability of a possibly better-focused related site would be a "legitimate interest", and merely doing a broad geo-locate on the IP does not seem to impact the "interests or fundamental rights and freedoms of the data subject" so it would seem this could be done without specific consent in advance. I don't know of any legal case on this specific point, however. | The key issue here is the unauthorized collection of video thumbnails, not the use of cloud services. Under GDPR, every personal data processing activity has one or more controllers who are responsible for the activity, and every such activity needs a “legal basis”. With such cameras, the operator will typically be a controller, since they determine the purposes for which this camera is used. In this scenario, the operators – as part of their responsibility to conduct the data processing activity in a GDPR-compliant manner – had disabled any cloud features provided by the camera manufacturer. Despite this configuration, the camera manufacturer collected thumbnails and uploaded them to servers under their control. So, we likely have two distinct issues at hand: the camera manufacturer misled its customers about the privacy settings of the cameras. This is not necessarily a GDPR issue by itself. the manufacturer performed data processing activities in contravention of various aspects of the GDPR. Relevant aspects of the GDPR that might have been violated: the manufacturer did not have an Art 6 GDPR legal basis for this processing activity, such as a “legitimate interest” the manufacturer did not provide information per Art 13 GDPR to the people being monitored this way even if the cloud-based thumbnail processing were intended, this could be a violation against the Art 25 obligation to ensure “data protection by design and by default” depending on how the cloud storage services were configured, there might be violations against the Art 28 responsibility to contractually bind such vendors as data processors, or against the Chapter V rules on international data transfers Different actors might have different remedies against this violations: buyers of the camera might have remedies under consumer protection and product liability laws against the manufacturer data subjects of the illegal processing activity have remedies under the GDPR they can exercise their data subject rights against the data controllers, such as erasure of the thumbnails. However, this will be difficult to exercise in practice since the manufacturer will not have identifying information, and would then be free from having to fulfil certain data subject requests per Art 11 GDPR. they can lodge a complaint with a responsible supervisory authority, which would be the data protection agency in their EU/EEA member state (or the ICO in the UK). The EDPS is irrelevant here, since it is only the internal supervision authority for EU institutions. The competent supervisory authorities can levy fines. they can sue the data controllers, both for compliance (e.g. deleting unauthorized thumbnails) and for damages, if any were suffered. However, immaterial damages awarded for GDPR violations are typically fairly low, if they are recognized by the court at all. the right to judicial remedy (sue the controllers in court) and to lodge a complaint are independent. They largely pursue different remedies. Both can be used to seek compliance, but only supervisory authorities can impose fines, and only direct lawsuits by the data subjects can seek damages. | Given a large database of email addresses that you can't prove have given consent to receive email, the only legal thing to do with it, is to (securely) delete it. (I am going to switch your question about a larger company to a bank: in the UK, big pharma is forbidden from advertising to individuals.) In principle the rules are the same for a huge bank and everything down to a self-employed plumber. In practice the plumber will be told "don't do that again" rather than fined. This case was treated under the Data Protection Act, which has a maximum fine of £500,000 – so a big bank would probably have been fined more, but not necessarily much more. Under GDPR, fines are related to turnover, so the fine would be a lot bigger for a large bank. The incident is a year old now. Details here. |
How long can my girlfriend stay over at my place despite not being on the lease? I have recently signed a new lease and moved into my new place. The place I have moved in is a unit in an apartment complex. The manager of the complex told me I cannot have guests for more than 14 days per month in a consecutive manner and cannot live with people whose names are not on the lease. The manager emphasized that since my girlfriend's name is not on the lease (and I cannot add her to the lease for some reasons) she cannot live with me here but it is okay if she wants to sleep over. The thing is my girlfriend is currently staying with her parents but we have been planning to move in together for a while. However, what the manager told us has become a very bothering thing for us since she is not legally living with me as she has not officially changed her address but she will be sleeping at my place, pretty much almost every night. We cook dinner together when we are home around 6-7pm (which happens often) and then sleep until tomorrow morning around 7am when we wake up and go to work. Although she will stay at her parents' place every couple of days (for a day or two) she has brought her clothes and personal items such as tooth brush etc to my place. So my question is would my girlfriend coming home around 6-7pm every day, cook dinner and sleep over at my place be considered as something illegal? Is she actually living with me? What is the legal definition of "living"? | Of course she is living with you. Clothes, toothbrush, cooking and eating, sleeping, I suppose breakfast as well, that's living with you. And it's not illegal, but it is apparently in breach of your leasing contract. I'd study your contract carefully to see what the consequences are if she is living for you for more than 14 days. | In Virginia there is a distinction between a tenant and an authorized occupant. An authorized occupant is a person entitled to occupy a dwelling unit with the consent of the landlord, but who has not signed the rental agreement and therefore does not have the financial obligations as a tenant under the rental agreement. A tenant is a person entitled only under the terms of a rental agreement to occupy a dwelling unit to the exclusion of others and shall include roomer. There is a third category, guest or invitee which means a person, other than the tenant or person authorized by the landlord to occupy the premises, who has the permission of the tenant to visit but not to occupy the premises. Such people who live there would not be invitees. Clearly, you can have others living with you who are not on the lease, if the landlord agrees. The landlord's main concern regarding credit rating is probably financial responsibility, and if you qualify, having people live with you who have low or no credit rating is unlikely to make any difference. There may be other concerns, such as background checks or increases utility costs). Virginia law does not specifically allow "unauthorized occupants", i.e. occupants not approved by the landlord, nor does it specifically disallow such occupants. Leases often include a provision that addresses this matter, prohibiting unauthorized occupants. Supposing that the lease is silent on the matter (not likely) and the landlord wanted to compel the other occupants to leave, the procedure would be to tell the tenant that the unauthorized occupants must leave. Then if you do not comply (do not get them to move out), the landlord could start the procedure of evicting the lot of you, and the question would be whether the court would find that you have a right to let unauthorized other people live with you. I can't find any applicable case law, but it is unlikely that the court would find such a right. Tenants have special statutory rights, as do authorized occupants under the Virginia Residential Landlord and Tenant Act. A court would not find that the rights of an authorized occupant extend to an unauthorized occupant, which means that the landlord's rights as property owner are dispositive of the matter. | In any legal dealing, there is always some risk. The signature constitutes definitive proof that you have a contract, but you still have a contract, because you have mutual acceptance. A far-fetched scenario is that the lessor could allege that they did not agree to the terms of he contract with you (perhaps claiming that you obtained a blank contract form from them and filled in details, but they didn't agree to those details). However, if they allow you to move in, that is sufficient constructive evidence of a contract, so they could not argue "We didn't agree to this". The main risk would be your lack of proof that they ever agreed to lease the place to you (no emails, no texts, no witnesses, no legally-recorded conversations). There may be specific state laws about providing a copy of the rental agreement, such as this California law, where they must provide a copy to the tenant within 15 days of execution by the tenant. This provides a collection of relevant state laws, though you may have to dig a bit because this is a hook into all of the laws about leases and not just about providing copies. | The law regarding landlords and tenants is Iowa Code Ch. 562A. Part 2 (§562A.27 et seq.) states the legal remedies available to a landlord. §562A.27 specifically spells out the remedies for material non-compliance with lease terms. The gist of that and related sections is that if a person is in violation of a lease, there is a legal process that has to be followed, and if successful, the sheriff will forcibly evict the tenant (though §562A.27A, the clear and present danger section, shortens the process – still, it's not immediate and it does require legal notice etc.). Under the law, you (apparently) have become a landlord and have an unwritten tenancy agreement with the tenant. I assume based on your description of the facts you have a long-term written agreement with the property owner. By allowing this person to live with you, you have entered into a landlord-tenant relationship, which limits your rights. The police will not respond to this situation – a legal squabble – whereas if someone broke into your residence and was trespassing (and you complain in a timely manner, not allowing the person to trespass), the police would respond and not require a court order. §562A.9(5) states that in lieu of a specific term of tenancy, in the case of a roomer paying weekly rent the tenanct period is a week, otherwise it is a month. §562A.6 defines "roomer": basically, if you are a "roomer", so is your sub-lessor. By agreeing to let the person stay with you, you have become a landlord and sub-lessor, thereby subject to the restrictions on landlord actions. That means you have to take the person to court to get rid of them. Failure to pay agreed-on rent is certainly sufficient legal cause, and any monthly lease can be terminated by the landlord after giving legal notice (30 days advance notice). | Yes, you can put pretty much anything you like into the co-op statutes. You are actually interested in whether it makes a difference, though, whether the sheriff will come enforce a court order if it came to a trial. a rule that every owner must live in their property, or that everyone who owns a property in the building must also live in the building, or By virtue of indirect effect of basic rights (mittelbarer Wirkung von Grundrechten) a court will never issue an order mandating Diya to live in her apartment, Art. 11 GG. The sheriff will not forcefully “shove” her into her apartment: “You must live here now!” that the majority of homes must be owner-occupied, or Similar, but Art. 2 I GG. Vacancy of apartments is legal in Germany. that new rentals are not allowed, or As soon as Diya is recorded in the Wohnungsgrundbuch (apartment register) as the new owner of units B and C, she incontestably assumes the role of owner about said units. If she rents them out despite the co-op statutes forbidding so, she does nothing illegal (that means breaking state/federal law). After all she is indeed the owner, so there is no fraud involved, § 263 Ⅰ StGB. The fact that she agreed to not rent out is a matter between Diya and the co-op. No court will evict the new tenants from units B and C, because Diya has breached her obligations. However, it might be a just cause to oust Diya from the co-op, § 17 WEG. Yet still it requires severe grounds as it essentially means exercising eminent domain, Art. 14 Ⅲ GG. I tentatively claim it won’t work out as long as Diya pays her share in maintenance and the tenants chosen by Diya are well-behaved. something similar? You will need something that produces evidence. “Diya does not live in unit B” is a claim that needs corroboration in court. […] restrict long-term rentals in general. […] Tenancy agreements are by default unlimited in time. Short-term rents are sort of “forbidden” except if justified by one of the reasons named in § 575 Ⅰ BGB. Hence restricting long-term rentals borders on a blanket-ban on all rentals. | Are you in the United States? If so, you're an adult and therefore legally free to move out of your parents' home and to enter into contracts. As a legal matter, you don't really need to do much at all beyond turn 18 to be permitted to sign a lease. There are of course all manner of practical impediments to finding a place to live (perhaps you have inadequate income, credit, or references), but none that should be insurmountable. EDIT: You've indicated in the comments that you may be under a guardianship, but you seem to be indicating that you doubt whether this is true. If you are under a guardianship, your rights are likely to be quite different than under usual circumstances. It seems quite unlikely to me that an adult who has the mental capacity to come asking these questions could be under a guardianship without knowing about it. Given that your parents are the purported guardians, I don't know how you could have been placed under their guardianship without appearing in court sometime around your 18th birthday, which I assume you'd remember. You should determine whether you are under a guardianship. You can probably do this by searching the court records online for each county you've lived in. Alternatively, you could contact adult protective services or an equivalent agency. | In Texas, if the lease states that the landlord can inter for some purpose, the landlord can enter for that purpose. I assume there is no statement in the lease. Then the landlord has no right to enter except in emergencies and for routine inspections or repair. This right, however, stems from the courts and not statutes, and you could theoretically sue the landlord to prevent such an inspection (you would need a good attorney, to overcome the presumption that reasonable routine inspections with notice are allowed). | Assuming you have an assured shorthold tenancy, it's not the landlord himself that can evict you. The process is that he serves you notice, and if you don't move by the time the notice period ends, then he has to go to court in order to obtain a court order to end the tenancy. The landlord must demonstrate to the court that he has properly served notice to the tenant. This is a bit of a grey area, but this article suggests that, to avoid ambiguity, the landlord should either use recorded delivery (which would provide proof as to whether or not the tenant received it), or deliver it by hand with an independent witness present. In the case of a section 21 "no fault" eviction, the only defence a tenant has is that the correct procedure has not been followed. So it is in the landlord's interest to ensure that notice has been received beyond any doubt. |
Do I have to declare my cameras to the CNIL? Do I have to declare my CCTV system to the CNIL (Commission nationale de l'informatique et des libertés, which translates to "National Committee for IT and Liberties") if they are placed on a private property which is also the HQ of a company? This web page indicates you have to declare any CCTV system that meet the following conditions: the cameras are recording a place not opened to public AND you're recording on some digital hardware. On this web page, the penultimate line indicates you don't have to do anything if this is your home, but the last line says you have to declare it if you're having employees on the house. The company HQ is the house of the company owner's parents. The house is fully owned by his parents. The company is fully owned by the owner. So, the employees are not the house's owner's employees. Does it still qualify for the last line? This is a contractor company, so the employees are not working all day long on HQ, they are just loading/unloading trucks. | The obligation to notify the supervisory authority (CNIL in your case) no longer exists. It was part of the previous regulatory framework, but it is not part of GDPR (which takes affect tomorrow). If you use CCTV that may monitor employees (i.e. they sometimes enter the HQ to consult with the owner), your obligations under the GDPR is basically to inform the employees that the CCTV cameras are there. I.e. Data subjects are entitled to understand when their personal data is being processed, covering the transparency aspect of processing. The use of CCTV must be communicated via signage which indicates the areas covered and instructions for further information. | You're misreading the law. You need to keep reading the section you referenced (emphasis added): The disclosure...shall be made in writing and delivered through the consumer’s account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer’s option if the consumer does not maintain an account with the business Thus, the option to have the disclosure sent by mail only applies to consumers who do not have an account with the business. Since presumably a large number of sites only maintain personal information for users with accounts, such sites need not provide a mail option. Further, it doesn't say there needs to be a button: you just need the ability to say you'd like it mailed to you in the request somehow, and then they need to comply when you do. | The key issue here is the unauthorized collection of video thumbnails, not the use of cloud services. Under GDPR, every personal data processing activity has one or more controllers who are responsible for the activity, and every such activity needs a “legal basis”. With such cameras, the operator will typically be a controller, since they determine the purposes for which this camera is used. In this scenario, the operators – as part of their responsibility to conduct the data processing activity in a GDPR-compliant manner – had disabled any cloud features provided by the camera manufacturer. Despite this configuration, the camera manufacturer collected thumbnails and uploaded them to servers under their control. So, we likely have two distinct issues at hand: the camera manufacturer misled its customers about the privacy settings of the cameras. This is not necessarily a GDPR issue by itself. the manufacturer performed data processing activities in contravention of various aspects of the GDPR. Relevant aspects of the GDPR that might have been violated: the manufacturer did not have an Art 6 GDPR legal basis for this processing activity, such as a “legitimate interest” the manufacturer did not provide information per Art 13 GDPR to the people being monitored this way even if the cloud-based thumbnail processing were intended, this could be a violation against the Art 25 obligation to ensure “data protection by design and by default” depending on how the cloud storage services were configured, there might be violations against the Art 28 responsibility to contractually bind such vendors as data processors, or against the Chapter V rules on international data transfers Different actors might have different remedies against this violations: buyers of the camera might have remedies under consumer protection and product liability laws against the manufacturer data subjects of the illegal processing activity have remedies under the GDPR they can exercise their data subject rights against the data controllers, such as erasure of the thumbnails. However, this will be difficult to exercise in practice since the manufacturer will not have identifying information, and would then be free from having to fulfil certain data subject requests per Art 11 GDPR. they can lodge a complaint with a responsible supervisory authority, which would be the data protection agency in their EU/EEA member state (or the ICO in the UK). The EDPS is irrelevant here, since it is only the internal supervision authority for EU institutions. The competent supervisory authorities can levy fines. they can sue the data controllers, both for compliance (e.g. deleting unauthorized thumbnails) and for damages, if any were suffered. However, immaterial damages awarded for GDPR violations are typically fairly low, if they are recognized by the court at all. the right to judicial remedy (sue the controllers in court) and to lodge a complaint are independent. They largely pursue different remedies. Both can be used to seek compliance, but only supervisory authorities can impose fines, and only direct lawsuits by the data subjects can seek damages. | This very much depends on where you are. Different jurisdictions have wildly different laws about this. Some places are very permissive. You can record a conversation that you aren't even a party to so long as nobody has any reasonable expectation of privacy. In others, affirmative consent is required from every party to a conversation before it's legal to record it. The laws run the entire spectrum. Some places allow you to record anything you're a party to without permission, but you can't record others' conversations. Some places require you to disclose, but not obtain explicit permission. Some allow you to record but restrict who you can disclose it to. Some allow you to record or ban recording only under certain circumstances. It's a really wide gamut of laws. Since you don't say where you are, who you're recording, or why, there's no way to really answer the question. Here's a good rundown on the United States. This Wikipedia article covers lots of different countries, but only with regard to phone calls. | Greendrake's answer says that a country can declare any jurisdiction it likes. This is true, but in practice it is the convention that a country should claim jurisdiction only over its territory and its citizens. The point about "citizens" is normally not pushed, as when you go to a foreign country you are normally subject to its laws rather than those of your home, but for instance there are laws against child sex tourism where the perpetrators can be prosecuted at home for offences committed abroad. However this basic principle gets more murky with long-distance communication such as the Internet. Someone in country X can, for example, provide a service to someone in country Y which is illegal in country Y. At this point the laws of country Y have been broken by someone sitting in country X. Y is not claiming extraterritorial jurisdiction; the crime occurred inside its own territory, but the criminal is currently resident in X. From a legal point of view this is the same as if both had been inside Y when the crime was committed, but then the perpetrator fled to X before they could be arrested. So in the Kim Dotcom case, Dotcom is alleged to have committed criminal copyright violations by supplying movie files to people in the US. In the Meng Wanzhou case, Meng is alleged to have made fraudulent statements to American banks to the effect that Huawei was complying with US sanctions law (otherwise those banks would not have been able to do business with Huawei). The accounts I've read don't say whether Meng was in the US for those meetings, but the fact that they were made to American banks in order to do business in America makes the precise location of the meeting irrelevant. | In the question, you write: The GDPR requires consent of the subject for collection or storage of personal data (in this case, IP addresses in a log file). No, it does not. To quote Miss Infogeek: GDPR DOES NOT MAKE CONSENT A MANDATORY REQUIREMENT FOR ALL PROCESSING OF PERSONAL DATA. Consent (Article 6 (1)a) is indeed one of conditions that can be used to comply with the GDPR requirement that processing must be lawful, but it is not the only condition available to the controller to ensure lawful processing – there are alternatives (before the list of conditions it says that "at least one of the following" must be satisfied). All the conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. One of alternatives are Article 6 (1)f. It says says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) As noted in the question, logging IP addresses for the purpose of security is an extremely widespread practice. It is a legitimate interest to comply with standard security practices. It is the default, and most (all?) web-sites do this. I.e. it is legal to do this without consent (if this is not the case, I am pretty sure the outcry had been heard all over the Internet by now). | Subsidiary and supplier are separate cases. For a controlled subsidiary: full duties, full responsibility, you could (and someone has) fill a textbook with the ins and outs but this is the answer. For a supplier: it is under the law much more complicated, but if a client of mine came to me with this question my answer would be pretty much the same: if the evidence is truly credible you should cut ties and then conduct an FCPA review to determine whether there is any obligation to disclose. | There is no mailbox-specific law. You can take pictures in public, and you can put a camera to take pictures on your property. Whether you can install a camera in a particular place depends on who owns that place. Of course, you also can't aim it to peer into a nearby residence; and it has to be a video-only camera (unattended recording of audio is illegal without the consent of the thief). In some cases, mega-boxes are owned by the USPS so you would need USPS permission. There is a widespread false narrative that the USPS owns all mailboxes, but the USPS does not say that nor does the US Code. USPS describes two kinds of cluster-boxes, private and USPS-owned. The USPS offers no statements on permission or its denial to install a cameras inside a USPS-owned box, so you would have to ask the local post office in case your box is USPS-owned. |
Police not accepting "Signature Forgery" report only because in the past we have signed some other authentic papers with perpetrator One company made us sign Application Form and then they forged our signature on "extension contract" that we never had a chance to see. This forged contract is very disadvantageous to us. Today we went to police department to report signature forgery. However, police officer rejected our report and redirected us to civil court, because "we are in business with this company" (ie signed application form in the past) and because of this police can't help us. Then I explicitly asked police officer if they would have accepted our report if we hadn't signed anything with this company in the first place and she said "yes, in that case this would be typical scam and we would initiate criminal case." I have two questions: Did the police officer have rights to reject our report and not initiate criminal case only because in the past we had signed Application Form with this fraudulent company? Isn't this a hole in the legal system that we have to go through court to have criminal case initiated against this company? I mean if we go to court then the court will send notice to this company with forgery accusation and then this company has golden opportunity to "fix" documents at their end (opposed to police confiscating the evidence as-is)? Update#1 This company already charged these fees from us - they are credit card processor company so they had control control over our account that we applied for through this application form. If I understand correctly then this implies that burden of proof falls on us because we are trying to reverse fees. Update#2. I just found out that another victim of the same company in a different state was able to get CAPIAS (Civil Warrant Of Arrest) for the same forgery issue. Can this be used in California so that police would initiate criminal case against this company also in our state? In the answer regarding question #1 I would appreciate a link to police processes (or law) that would justify police officers choice to reject our case (US, California). Regarding question #2 I would like to hear your opinion, that is argumented, on why this is or isn't a hole in the legal system. | IMHO, your questions reflect several misunderstandings of how the process works. So, with your permission, I will avoid directly answering your questions and instead focus on suggestions how to best help you plot a path forward. Your counterparty has the burden of proof. If your counterparty forged your signature on a contract, then they must prove you signed it or they can not enforce it. In order to enforce the contract, they will need to sue you civilly. Then you can introduce evidence of their forgery at that time. Inform your counterparty you did not sign the contract. Then act accordingly. If your counterparty forged your signature on an extension contract then you should inform them immediately after it has come to your attention. Advise them you have no intention of complying with a contract you never signed. And that if they try to enforce the forged agreement, you will defend yourself "vigorously." Never threaten criminal charges to advance your position in a civil case. This behavior is a crime in itself. It's called extortion. If you want to pursue criminal charges at some point then do it without relating it to the civil case. The police are not your only means of pursuing criminal charges. You can also schedule a meeting with your District Attorney, State's Attorney (whatever that position is called in your state) or your state's Attorney General. In other words, you might want to approach the government's attorney responsible for prosecuting crimes in your jurisdiction. Forget about involving the police. They have given you their position on the matter. Approach the DA or AG office instead. If the DA/AG decides to use the police, she we will make that decision then inform the police how she needs to use their services. Police are wary of being used as leverage in civil disputes. That's probably the reason for their policy decision regardless of whether it's technically justified by the law or not. Your counterparty can't "fix" anything. If they claim you signed a document you did not, they will have to produce that document with your signature on it. This will presumably be your Exhibit A evidence they forged it. Disclaimer: I am a lay person and not an attorney. This writing is no substitute for proper legal advice. If you need help with a specific legal situation please hire an attorney and do not rely on anything I have written here. | I can't prove a negative, but it seems quite clear from my research that providing name and badge number is policy, not law. i.e. Many departments have a policy that their officers will provide name and badge number on request, but the punishment for failure to do so would be at the employment level not the legal level. This site has a fairly good selection of various police department policies I will note that Massachusetts appears to be an exception as mentioned by jimsug in his comment to another answer, they do require police to carry and show ID upon legal request (I did not look up what a "legal request" is) | The issues here are fraud and false documents (forgery). While the mere possession of false documents is not necessarily a crime, the use of false documents in order to obtain a financial advantage is fraud, which is a crime defined by statute in all states. States may also have specific provisions relating to the possession of falsified documents, but generally it is not criminal unless the possessor is aware it is a false document, and that it will be used to secure some advantage. Fraud For example the Crimes Act 1900 (NSW) s192E states: (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Forgery Additionally, s253 of the same Act states: A person who makes a false document with the intention that the person or another will use it: (a) to induce some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of the offence of forgery. Maximum penalty: Imprisonment for 10 years. ... and s255 (also see s254, which contains very similar provisions for the actual use of false documents): A person who has in his or her possession a false document, knowing that it is false, with the intention that the person or another will use it: (a) to induce some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. ... and s307C: (1) A person is guilty of an offence if: (a) the person produces a document to another person, and (b) the person does so knowing that the document is false or misleading, and (c) the document is produced in compliance or purported compliance with a law of the State. Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. (2) Subsection (1) does not apply if the document is not false or misleading in a material particular. (3) Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate: (a) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular, and (b) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading. (4) The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person. | tldr; the agreement is a mess, one-sided, do not sign. This agreement does little to serve your interests, and a lot to harm them. It is also fairly poorly phrased, I have doubts that someone with legal knowledge wrote it. It states: I agree to not disclose, or discuss with anyone, any matters relating to the investigation You are agreeing not to talk to the investigator. If you do talk to them, you will be in breach of the terms you've agreed to. I'm sure they'll just say "oh, that's not what it means" - but that is not how contracts work, they mean what they say. It also says: which includes but is not limited to: ... All documents created by me or shared with me during the investigation. This applies to documents created during the investigation, not in relation to the investigation, not for use in the investigation, not related to the complaint. And again, you can't share these documents with anyone, including the investigator. It may well be unenforceable, as it gives you nothing in exchange for the rights you are giving up, and the concept of "consideration" is key to the common law of contracts in the USA, and also Canada (stemming from British common law) which means both parties must receive something of value: Here's a wiki article on Consideration in US law and a page on Consideration in Canadian law With all of these flaws and the fact that it may well be unenforceable, it would not be wise to sign it. If it did the following, it might be a more useful agreement: Had time limits, after which the restrictions are lifted Allowed you to acknowledge the case and state that you can't discuss it while it is ongoing Applied only to the workplace, talking to the press and publishing details to the public internet, such as social media - this may already be in your contract of employment (relating to bringing the company into disrepute) if so it isn't really a restriction being applied by this agreement, but a re-iteration of the existing agreement Promised a fair investigation in a timely manner, with a report at the end, and appropriate action is taken if claims are substantiated, and libel has occurred Or, they could offer you money right now for your silence, that would absolutely be consideration, in some jurisdictions, the sum may need to be considered reasonable, but this is not universal. There are also cases where NDAs turn out to be invalid: 11 ways NDAs can be invalidated An actual case where an NDA was found to be too broad | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | There are a couple of indications that a bouncer may not confiscate an ID. This policy document adopting licensing policies to Require licensees with fake ID violations to temporarily or permanently hire on-site law enforcement or certified security guards who are properly trained to check IDs during regular or peak hours to deter the use of fake IDs and give gatekeepers the opportunity to pass suspected fakes to an officer or guard for a second opinion and potential confiscation. Where appropriate, jurisdictions could empower the gatekeeper to confiscate fake IDs so they are not returned to the underage drinker and sent back into circulation. To ensure compliance with legal issues (e.g., property rights, bailment issues), arrange for the on-call or on-site presence of local law enforcement. Local bar and restaurant associations, especially those in concentrated entertainment zones, can join together to share the expense of law enforcement resources. That implies that the bouncer does not already have that authority, and also indicates that the confiscation should be performed by the police. This bouncer training manual says that Even though you may consider the ID to be fake, it is not considered the server's property. Therefore servers and sellers should not confiscate IDs they suspect to be fake. Rather... follow up with a call to the police to verify suspected false IDs. However, a jurisdiction may grant servers that power, as in the case of Colorado. Washington doesn't do that, so bouncers would need to call the police (not that they always do, since passing a fake ID is somewhere between a misdemeanor and a felony). The general principle is that you may not confiscate another person's property, but the police can seize property if it is reasonable to do so. A state may pass a law authorizing a licensee to do likewise (though it does raise questions about the bouncer's understanding of "reasonable cause to believe"). The Colorado statute is restricted to licensee and their employees, and does not apply to "anyone who suspects an ID", nor does it allow civilian confiscation of other property such as an automobile that is suspected of being stolen. | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | There are some problems with this kind of vandalism, one of them clearly that the internet is international and vandalism can be performed from everywhere on servers everywhere in the world. And so it may be (both technically and legally) difficult to get hold of the vandal. Therefore, most wikis primarily focus on blocking offending accounts or their IPs and hope that this helps at least for a while. Only if it doesn't and the vandalism continues for extended time periods, legal measures are considered. Legally speaking though, vandalism is prohibited by many jurisdictions and of course by the terms of use of the wiki operators. For instance, the Swiss criminal code Art 147 explicitly puts "abusing of data processing equipment" under penalty and hence gives website operators a legal backup for setting up rules for the use of their services. Computer fraud Art. 147 1 Any person who with a view to his own or another's unlawful gain, by the incorrect, incomplete or unauthorised use of data, or in a similar way, influences the electronic or similar processing or transmission of data and as a result causes the transfer of financial assets, thus occasioning loss to another, or immediately thereafter conceals such a transfer shall be liable to a custodial sentence not exceeding five years or to a monetary penalty. 2 If the offender acts for commercial gain, he shall be liable to a custodial sentence not exceeding ten years or to a monetary penalty of not less than 90 daily penalty units. Technically, the law even requires prosecution ex officio, even though without a hint from the operator, the police won't start an investigation. I'm sure the US has a similar law. The problem is, as with all internet crimes, it's practical application, particularly because often website operator and offender are not living in the same country. Edit After reading the exact text again (it was unavailable yesterday) Art 147 is mostly about fraud performed by computers (classical "hacking") but it shouldn't be difficult to argue that fighting and reverting vandalism requires significant (technical and personal) effort and hence the operator looses money. Additionally, there's Art 144bis which matches even better for the scenario here: Damage to data Art. 144bis Any person who without authority alters, deletes or renders unusable data that is stored or transmitted electronically or in some other similar way shall be liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty. If the offender has caused major damage, a custodial sentence of from one to five years may be imposed. The offence is prosecuted ex officio. Any person who manufactures, imports, markets, advertises, offers or otherwise makes accessible programs that he knows or must assume will be used for the purposes described in paragraph 1 above, or provides instructions on the manufacture of such programs shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. If the offender acts for commercial gain, a custodial sentence of from one to five years may be imposed. |
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