By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

www.clarkstonlegal.com
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Do you ever wonder what becomes of a deceased person's Facebook profile?

Increasingly, folks are compiling several digital profiles on the ever-popular social media sites now embedded into the Internet.  Many of us have thoroughly fleshed-out these electronic profiles.

Well, what happens to your digital persona when you die?  How do we assist our family members with the dismantling of these often extensive robust electronic profiles?

Below are examples of typical digital "assets" contained in an average modern person's legacy:

• Social media profiles such as Facebook, LinkedIn, YouTube and a host of others
• Professional profiles [I maintain at least a half dozen and counting]
• Bank accounts, loan accounts, mortgage accounts
• Investment accounts such as eTrade or Ameritrade
• Uploaded photos
• Uploaded articles
• Education accounts, including alumni account profiles
• Gaming sites
• Email profiles and communications [Most people have at least two email accounts these days.]
• Digital media accounts
• Cloud computing profiles or accounts
• On-line store accounts, particularly those with a social media angle such as iTunes and Amazon

There are other examples, to be sure.  Any site that you've had to log-on to, create a profile, and post content, or place orders, is a component of your digital inventory.  That's a lot to keep track of...

If your situation is typical, you have some similar passwords, or a theme running through your accounts, but due to the specifications of the particular site, most of your usernames and passwords are different.  Also, you probably maintain a list of your names and passwords somewhere; perhaps on your computer.

There are, of course, some web-based products and services that assist with the management of your digital profile:

• roboform.com
• stickypassword.com
• datainherit.com

The first step in managing your digital legacy is to list all of your on-line "assets" and list the usernames and passwords associated with those accounts.  You will be saving a family member or friend untold hours on the phone, or on the computer, when they try to figure it out in your absence.

Once you have compiled your all-important digital inventory, the next step is to reference this list and attach it to a power of attorney document.  This will allow your attorney-in-fact to manage your accounts in the event of your temporary absence or incapacity.

Ditto to your will; include an instructional paragraph referencing and attaching your digital inventory.

If no instructions are provided, Michigan does not yet have laws governing the posthumous management of a person's on-line "assets".  So far, only Oklahoma and Idaho have such laws, with Nebraska not far behind.  [Where is California in all this?]

Therefore, if you die "digitally intestate", what happens to your digital profile is up to the particular service provider.  For example, Facebook has long taken the position, based on its robust operating agreement that you agreed to when creating your account, that FB owns all of your posts and content.  When you die on Facebook's watch, they memorialize your account; restricting views and posts to friends and family.  Also, the account is closed if requested by your next-of-kin.

Some folks, however, do not have any next-of-kin.  What then?

Here are some options for the proactive among our readers.  Some posthumous services will send an email composed by you, or by your designated personal representative, to a designated list of contacts.  Here is a sample list of such services:

• Online-Legacy.com
• mywonderfulllife.com
• ownlegacy.com

Call it another characteristic of our modern life; once we are gone, our digital profile lives on for a time.  In this fast-paced era, however, it's amazing how fast such a profile will become outdated.

Taking the right steps will allow you to manage that profile from the grave...

www.clarkstonlegal.com

info@clarkstonlegal.com

By now we've all been shocked by how much information the major search engines collect and store about each of us. The reach now extends into our cell phones and possibly even into our contacts.

On March 1st, Google implemented a new, single privacy policy, replacing it's patchwork of more than 50 separate policies spread across its product line and services. In the wake of Google's new privacy policy, the Attorneys General in a majority of states are calling foul.

Speaking for at least 35 state attorneys general, the National Association of Attorneys General complains that the new policy violates consumers' privacy by sharing personal information across Google's services without providing an explicit "opt in" or a meaningful "opt out" option.  NAAG sent a letter to Google's Chief Executive Officer, Larry Paige, requesting a sit down.  The NAAG letter states, in part:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a “choice” in an Internet economy where the clear majority of all Internet users use – and frequently rely on – at least one Google product on a regular basis. 

For its part, Google claims the new policy will be easier for all to understand.  For our part, this Blog adheres to a simple basic principle: when conducting search and post activities on line, we keep in mind that we are creating a searchable and reviewable record.

Everyone seems to know the difference between posting content on sites like Google+ and YouTube and having their deepest darkest searches tracked.  In the former context, the user usually intends for the content to be discovered.  For example, we here at this blog wish our Clarkston Legal video on YouTube had more than 45 views in two years; my son thinks that's lame.

In the latter context, on the other hand, folks are sometimes embarrassed by what pops-up in the form of advertisements that the mighty and all-powerful web spider has determined to be relevant to a particular individual.  Such ads are displayed based on the aggregated content and personal information collected by the service provider.

This chapter just lets us know that privacy law is a fast-growing area of law that will take on increasing significance.  Stay tuned for the flow of developments as the lawsuits start to pile-up.

www.clarkstonlegal.com

info@clarkstonlegal.com