Law 2010 Midterm Exam Prep

Kennison V. Daire (1986)

Australian Supreme Court
Dispute: Larceny vs. Fraud in the case of a banking transaction via machine. Male did not have active account, just an outdated accounted. Went and retrieved 250$ from ATM.
Ruling: Larceny was charged because machine cannot consent like a human, therefore it is THEFT

State V. Decker (2018)

Decker (34M) sent indecent photo of MJ (14F) via FB messenger. Decker convicted of criminal sexual conduct and indecent exposure to a minor. Online together=simultaneous internal perspective

Barlow-Declaration of Independence

Basically says that the internet should not be governed in the same way actual space is, and does not lie inside of borders. Wanted to create own social contract. Believed that ethics, enlightened self-interest and commonweal will create a government.

Kerr-Internal/External Perspective

Addresses the problem of perspective in internet law. External=hardwires and actual servers
Internal= user experience
The court needs to decide if it will treat the virtual world as real. Says the internet is a physical network, and can create a virtual world for its users that appear sufficiently realistic to make plausible claim for equal footing in court with real world. (Amazon example)

Johnson and Post: Law and Borders

Tries to define the geographic borders of cyberspace.
Power: control over physical space, defining statehood
Effects: correspondence between physical boundaries and "law space" reflect deep rooted relationship with physical proximity
Legitimacy: Acceptance of the notion that person within a border are the ultimate source of law making within that border
Notice: physical boundaries are appropriate for law space in physical world because they can give notice that the rules change when boundaries are crossed.
Cyberspace has no territory borders, and is regarded as a mere transmission medium.
Treating cyberspace as a separate space which distinct laws apply should come naturally. Not a homogenous place, has unique characteristics.

Franks- Unwilling Avatars

Cyberspace allows people to control who they want to be and where they want to go.
appeals to individuals who feel like their life experiences are restricted by physical identity.
Catfishing, people using photos and identity of others to dox (addresses, emails, phone numbers) or become someone new to lewd interest.
First Amendment rights are argued here, but new levels of targeting are victimizing women's identity who is used.
If individuals abuse their liberty by exercising power in self interested ways, community will go into war.
1. Anonymity: increased opportunity for harassers to attack target, making it hard for legal help
2. Amplification: capacity for harassers to quickly find a wide audience for harassment
3. Permanence: very difficult to erase from the web
4. Virtual Captivity/Publicity: options to avoid or exit situations in which harassment occurs are extremely limited.

Yahoo Nazi Case

Wu and Goldsmith
French antiracism organization sued Yahoo for hosting Nazi auction that were accessible in France and violated French laws against the trafficking of Nazi goods.
Internet is increasingly separated by walls of law, language, filters. yahoo says they can't tell where their users are, wrong because of IP addresses and tracing packets. Best option is cross-referencing and analyzation will result in 99% accuracy in location. 2000

federal and state court systems

Federal is created and instated by the constitution, state is created by state government.

South Dakota v. Wayfair (2018)

states may charge sales tax on online purchases made from out-of-state sellers even if the seller does not have a physical presence in the state

Packinham V North Carolina (Free Speech vs. Protecting Against Potential Predators)

2017, NC makes sex offenders not able to use social media.
Social media=
1. operated by someone who gets money from membership fees, ads
2. facilitates social interaction between 2+ people
3. allows users to create personal page, nickname, and photos and mechanisms to communicate
Includes 2 express exemptions: 1. does not extend to webs that only provide photo sharing, electronic mail. IM, or chat room.
2. primary purpose is to facilitate commercial transactions.

Campbell v. Reisch (Free Speech Rights on Twitter)

Woman running for office blocked man for disagreeing with her opinions and commenting. Blocking on twitter meant no ability to make conversation or respond directly.

Texas V Johnson (What Counts as speech)

1989, deciding if Flag burning was protected under free speech/expression. HIs actions were full of communication, implicating the First Amendment

BLAND V. ROBERTS (liking on FB as speech)

2012, Hampton sheriff office stated for reelection of Roberts, while defendant liked the page and therefore his icon showed up on liked pages. controversial figure, so the user is associated with them and potentially harming reputation.

Olmstead (1928)

Olmstead's appeal made it to the Supreme Court on the grounds that wiretapping act was a violation of his fourth amendment rights to be free from unreasonable search and seizure. Supreme Court decided wiretapping warrantless was permissible

Katz (1967)

Copyright case in which Katz does not want pic of him with his tongue out to be seen in Photo copy. Chevaldina copied pic into several defaming blog posts. Three factors in fair use:
1. purpose and character of work
2. nature of work
3. effect on use.
tilted towards fair use.

Kyllo (2001)

Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal-imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. Opinion of the CourtBy a 5-4 margin, the court held that a search warrant must be obtained before the government, including the police and federal agents, may use a thermal imaging device to monitor the heat and radiation of one's home.

Jones (2012)

In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones' Jeep without a valid warrant and without Jones' consent, then used that device to monitor the Jeep's movements over the course of four weeks. Court decided unanimously that this was a search under the 4 amendment

Riley V California

Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

Carpenter v. United States

Cell-site location may not be used in court without a warrant.

Rights of Anonymity

Supreme Court repeatedly affirmed that rights of anonymity lies in the First Amendment right. Right to remain anonymous or to be able to act/communciate anonymously

Rights of Privacy under the Second Restatements of Torts

Restatement of the Law, Second, Torts, § 652. One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Meyerkord v Zipatoni

Missouri Court of Appeals vacated and remanded the trial court's dismissal of a plaintiff's claim alleging that the defendant company, Zipatoni, had cast the plaintiff in a false light by failing to remove the plaintiff as the registrant of a certain website.

IP Address (Internet Protocol Address)

A unique number identifying every computer on the Internet (like 197.123.22.240)

Trap and Trace Device

Surveillance device that displays the caller's phone number.

Internal/External Perspective

External: hardware
Internal: software

US Const Art III: Jurisdiction

establishes the legal ability to hear a case. vested in the Supreme Court

US Const. Supremacy Clause

Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.

Personal Jurisdiction

the power of a court to force a person to appear before it

Subject Matter Jurisdiction

the power of a court to hear a particular type of case

General Jurisdiction

Authority of a court to hear a wide range of cases

Transient Jurisdiction

Jurisdiction over a nonresident defendant based on service of process on the defendant while present in the forum State. jurisdiction over persons temporarily present in the forum

Attachment Jurisdiction

jurisdiction over a defendant's property to obtain payment of a claim not related to the property

Jurisdiction by Consent

A party's consent to the jurisdiction of a court allows the court jurisdiction over that party. This consent can happen through contract or agreement.

Specific Jurisdiction

When a court has jurisdiction over a company or individual with respect to a specific incident or matter.

Minimum Contracts

A constitutional fairness requirement that a defendant have at least a certain minimum level of contact with a state before the state courts can have jurisdiction over the defendant.

Extradition

A legal process whereby an alleged criminal offender is surrendered by the officials of one state to officials of the state in which the crime is alleged to have been committed.

Protected Computer under the CFAA

gov computers, financial institution computers, any computer used in interstate or foreign commerce or communications

Artificial Intelligence

a subdiscipline of computer science that attempts to simulate human thinking

Case Holding

the final decision the court reached, majority opinion

US Const: Commerce clause (Interstate commerce)

Congress has the power to regulate commerce with foreign nations and among the several states

US Const: 4th Amendment Requirements

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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

"search" under the 4th amendment

A governmental exploration or examination, where a person has a reasonable expectation of privacy, for items that may be used as evidence in a criminal proceeding.

US Const: 1st Amendment: Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Strict Scrutiny

A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal

compelling government interest

A test of constitutionality that requires the government to have compelling reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes between people based on a suspect trait.

Intermediate Scrutiny

a test used by the Supreme Court in gender discrimination cases that places the burden of proof partially on the government and partially on the challengers to show that the law in question is unconstitutional

cyberspace

a metaphor for describing the non-physical terrain created by computer systems

privacy

the right of people not to reveal information about themselves, free from intrusion into or publicity concerning matters of a personal nature

statute

a law enacted by legislature

bill

a proposed law presented to a legislative body for consideration

Speech (what is it?)

Expression, posts, writing, etc whatever you want

US Const: 4th Amendment: Search incident to arrest

The Fourth Amendment prohibits the United States government from conducting "unreasonable searches and seizures." In general, this means police cannot search a person or their property without a warrant or probable cause. It also applies to arrests and the collection of evidence.

14th Amendment incorporation

- Freedom of speech/press/religion (1st amendment)
- Criminal rights (4th, 5th, 6th)
Right to privacy (4th & 9th)
all are applicable through the Due Process clause. Substantively and procedurally

1983 Action against government official

Federal agents can be sued if they act with state or local officers to violate federal rights

Civil vs Criminal Action

In a civil case, three-fourths or more jurors may return a verdict, whereas in a criminal case the verdict must be unanimous. You may be called to serve on either a civil or a criminal case. In a civil case, the party filing a lawsuit is called a plaintiff.

appellate

having the power to hear appeals and to reverse lower court decisions

Originalism

A view that the Constitution should be interpreted according to the original intentions or original meaning of the Framers. Many conservatives support this view.

Textualism

An approach to interpreting the Constitution that relies on a literal, "plain words" reading of the document

narrowly tailored

law only fits speech its trying to deal with; not overbroad

Content-Neutral restriction

Content neutral refers to laws that apply to all expression without regard to the substance or message of the expression. Such laws generally regulate only the time, place, and manner of speech in contrast to content-based laws, which regulate speech based on content.

commercial speech

Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.

Incidental speech restrictions

constitutional if it is not "greater than necessary to further a substantial governmental interest

anonymity

the condition of being unknown

Natural Rights

the idea that all humans are born with rights, which include the right to life, liberty, and property

Presence (where are you online?)

If you are in correspondent with someone at the same time as they are on the platform, you are present with them. You are in the air of cyberspace

remand

to send a case back to a lower court to be tried again

Choice of Law

a common provision in a contract that specified what law must be used to resolve a dispute that arises between the parties to a contract

Extradition

A legal process whereby an alleged criminal offender is surrendered by the officials of one state to officials of the state in which the crime is alleged to have been committed.

Malware

software that is intended to damage or disable computers and computer systems.

Computer Fraud and Abuse Act (CFAA)

a federal statute that prohibits unlawful access to computers used in national defense, by financial institutions, or by governments

tax

a required payment to a local, state, or national government

reasonable expectation of privacy

the objective standard developed by courts for determining whether a government intrusion into an individual's person or property constitutes a search because it interferes with the individual's interests that are normally protected from government examination

search warrant

A court order allowing law enforcement officers to search a suspect's home or business and take specific items as evidence

probable cause

reasonable cause for issuing a search warrant or making an arrest; more than mere suspicion

consent

Explicit Consent Requirements: Under the CPRA, explicit consent is required for the collection and processing of sensitive personal information. This means that users must actively agree to the processing of their data for specific purposes, such as the sale of personal information or the use of geolocation data.

Plain View Rule

Evidence can be collected without a warrant if illegal activity (someone smoking pot) or evidence (like drug paraphernalia) is clearly seen out in the open.

clear and convincing evidence

The standard of proof required in some civil cases and, in federal courts, the standard of proof necessary for a defendant to make a successful claim of insanity.

beyond a reasonable doubt

The level of proof required to convict a person of a crime

preponderance of the evidence

The standard of proof in a civil case in which a judge or jury must believe the plaintiff's story and evidence is stronger than the defendant's version.

jury trial

A trial where a group of people listens to the evidence and decides the case

Testimonial

(n.) a statement that speaks to a person's character or to the benefits of a product; expressing the value and worth of someone or something

privacy invasion

intrusion into the personal life of another individual without just cause

Seclusion Intrusion

Intrusion into a person's physical private space: watching, listening, recording another private person's private activity

Appropriation

using someone’s name or likeness without permission for personal gain

Publicity and Private Life

publicizing of details of a person's private life, if not of legitimate public concern

False Light

invading a person's privacy by implying something untrue about him or her

Defamation

Act of harming or ruining another's reputation

Negligence

careless neglect, often resulting in injury

Reckless Disregard

acting with a conscious disregard or indifference to the rights or safety of others

Actual Malice

Either knowledge of a defamatory statement's falsity or a reckless disregard for the truth.

Intellectual Property

A product of the intellect, such as an expressed idea or concept, that has commercial value.

Social Media Censorship

Social media platforms are private companies and are not bound by the First Amendment. In fact, they have their own First Amendment rights. This means they can moderate the content people post on their websites without violating those users' First Amendment rights.

Communications Decency Act (including Section 230)

Prohibits the use of telecommunications device by a person not disclosing his or her identity in order to abuse, annoy, threaten, or harass another person. Provides limited federal immunity to providers and users of interactive computer services.

Privacy from Government

You will be free from intrusion into private life or affairs, except when it results in undue or illegal gathering

Digital Surveillance

Being watched online for information, trends, likes, etc.

Electronic Communications Privacy Act

A law passed by Congress in 1986 establishing the due process requirements that law enforcement officers must meet in order to legally intercept wire communications.

Stored Communications Act

An act allowing law enforcement access to electronic messages greater than 180 days old without a warrant (but with a court order or subpoena, such access may be obtained for messages less than 180 days old)

Wiretap Act

A federal law to protect the privacy of phone calls and other oral communications that makes it illegal to intercept, record, disseminate or use a private communication without a participant's permission. The law allows the government to bring criminal charges and those whose privacy was violated to sue for civil damages.

Internet Service Providers

a company that provides access to the internet

Content Moderation

monitoring and filtering user-generated content