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Pleading the Fifth, What Does It Mean?

Former National Security Michael Flynn is pleading the Fifth Amendment in a bid to stop Congressional subpoenas into his documents and records regarding the 2016 election. The Fifth Amendment is one of the most important amendments in the Bill of Rights, as it protects criminal defendants from being forced to testify against themselves. Indeed, the famous “right to remain silent” is derived from the Fifth Amendment’s protection against self-incrimination. Legal experts are currently debating whether Flynn’s use of the Fifth Amendment is proper here. Regardless of Flynn’s legal standing, there are a few things that Average Joes can learn from this latest Trump debacle:

How Does the Fifth Amendment Work?

Like the right to remain silent, “pleading the Fifth” can only be used when the government is attempting to coerce a human being into testifying against him or herself. In other words, “pleading the Fifth” is a shield against government coercion.  A human being can only plead the Fifth in response to government inquiry; one cannot plead the Fifth in anticipation of a pending criminal case.

pleading the fifthIt is important to note that the Fifth can only be invoked if the government is actually trying to obtain information. Like the right to remain silent, being in government custody is not sufficient to plead the Fifth.  In other words, Flynn cannot invoke the Fifth in response to being pulled over by a police officer for running a stop sign. Likewise, Flynn cannot plead the Fifth just because the police officer arrests him.  Pleading the Fifth would only be relevant if the police officer begins asking questions about why Flynn ran the stop sign.

Finally, the Fifth Amendment can only be plead in response to individual questions. A defendant cannot plead the Fifth as a blanket defense. In other words, Flynn cannot tell the Senate he pleads the Fifth and then walk out the building. He must answer each individual question with “I plead the Fifth,” if he wishes to use the Fifth to answer each question.

What Is the Difference Between Pleading the Fifth and the Right to Remain Silent?

The two are very similar since they both come from the same source, the Fifth Amendment right against self-incrimination. However, since the right to remain silent is one aspect of the Fifth Amendment, pleading the Fifth is a much broader protection than the right to remain silent.

The right to remain silent only extends to verbal testimony. Pleading the Fifth, on the other hand, will protect a party from a demand to produce documents or other evidence which could incriminate the party. In Flynn’s case, he cannot exercise his right to remain silent in response to a subpoena, but he can plead the Fifth to stop the demand for his documents.

Are There Any Limitations to Using the Fifth Amendment?

The biggest limitation to the Fifth Amendment is that the Fifth can only be used as a shield against criminal prosecution. If a state sues a parent for child support, a civil action, the Fifth Amendment would protect the parent from accusations of child endangerment, but it would not protect the parent from wage garnishment or other child support collection.

The second limitation is that the Fifth Amendment only protects human beings. Corporations, despite their legal status as people, currently have no right to plead the Fifth Amendment. This distinction can be seen clearly in the Flynn case; although Flynn can plead the Fifth to protect himself, his businesses have no such protection.

What Your FitBit Can Say About You… In Court

Every day we share a tremendous amount of data without even knowing it, our wearable technology is no exception. In a recent Connecticut case, one man found this out the hard way after his deceased wife’s FitBit busted his alibi wide open and left him facing murder charges and $1M bail.

Richard and Connie Dabate lived in the small town of Ellington. After Connie was found shot to death in their basement, Richard told the police a story of how a masked man broke into their house. He claimed that after a vicious fight with the intruder, the man zip-tied him to a chair, stole his wallet and credit cards, slashed him across the face, then went down to the basement and murdered his wife.

However, Connie’s FitBit told a very different story. After looking at the data recorded on the device, the GPS data tracked by Ms. Dabate’s FitBit showed that during the time Mr. Dabate claimed he was struggling with the masked intruder Ms. Dabate had casually strolled 1,217 feet all throughout the house.

This evidence, along with a few other inconsistencies, harpooned Mr. Dabate’s alibi.  It also represents one of the earlier cases in something we will likely see much more of in the future–wearable technology testifying for or against its wearer.

FitBitWhat is a FitBit?

So first and foremost, for those unfamiliar let’s explain exactly what FitBits and wearable technology is.  A FitBit is a worn device which records your heartbeats, sleep schedules, location, distance traveled, and more.  It then transfers all this information to a cloud and organizes the information into digestible trends and data points for you to log into an account and track your health and progress.  You

They are the tip of the iceberg in a trend of wearable technology (a catch-all term for data enabled devices you wear on your body) from Google Glass and Google Watch to other fitness devices similar to the FitBit such as Garmin’s Vivofit.

Your FitBit Used Against You

You can see how the information stored in a FitBit, where you are, when you were there, how high your heart rate was, whether or not you were asleep, could be relevant evidence in either a criminal or a civil case.  It could kill an alibi or make it ironclad.

Mr. Dabate’s case is one of the earliest to use a FitBit in such a manner, but not the only recent case to take advantage of the data stored on a wearable.  In Pennsylvania, a Ms. Jeannine Risley got in trouble after her FitBit disproved a claim she made to the police that she had been raped.  Ms. Risley told authorities that an unknown man had pulled her from her bed and raped her in her bathroom. However, after the FitBit she claimed was lost in the attack was found in her room it revealed that she had been walking around the house the entire night. This, along with other evidence, lead to criminal false reporting charges  being brought against her. It’s worth noting here that, while this is an example of a FitBit being used as evidence, false reporting of rape is an incredibly rare occurrence as opposed to instances of genuine rape and sexual assault.

In Canada, a FitBit has also been used to establish how much less active a plaintiff in a personal injury case was after their injury than before. While this case is not out of the U.S., the data on a FitBit could easily be used in a similar manner here.

So you see how important this sort of information could be in any number of cases. Wearable devices like Google Glass collect even more information such as the internet searches you perform.  Where this data is relevant to a case, you could certainly be required to produce your FitBit or other wearable to the other side.

Similarly, the data constantly stored in cloud services could also be subpoenaed from the companies storing that data. Google receives countless data subpoenas every year. FitBit’s privacy policy, like nearly every privacy policy on the internet, states that it well release your data as “necessary to comply with a law, regulation, or valid legal process.”

This being said, there are a number of legal obstacles to using this data against you–although none of them are anywhere near foolproof. Many companies, such as Google, are resistant to data subpoenas as they undermine the public’s faith in their services. These companies will occasionally fight such a subpoena in court.

What’s more, this type of data’s relevance–something necessary to establish before the data or device may be required to be produced–can be undermined by challenging the accuracy of the data recorded or whether it was you using the device in the first place. There are also privacy considerations which may protect you against disclosing the data on a wearable device or device itself depending on how important the evidence on it may be to a case against you and which state you live in.

The truth is that the information stored on wearables, especially GPS location information, has so many potential applications in a lawsuit that it is only a matter of time until the use of such information becomes commonplace in both criminal and civil litigation. While you can delete much of the information stored through a FitBit if you wish, it’s more important to understand exactly what data you create and share about yourself on a daily basis. Any day now, that data could be your best friend or your worst enemy in a court case.

Rep. Devin Nunes: Understanding Rep. Nunes Fall From Grace

Another day, another scandal.  Temperamental tweets from Trump are becoming the norm, yet Trump’s recent claims that Obama wiretapped him prior to winning the election still came as somewhat of a surprise.

There were previous reports that, while monitoring Russians, the intelligence community may have intercepted communications from members of the Trump team, but Trump’s tweet claimed Obama specifically ordered the wiretapping.  That’s a pretty hefty claim to make and he did so without any substantiating evidence.  Then along came Devin Nunes, who recently held a press conference making statements that appear to somewhat validate Trump’s claims.  The Congressman has been under heavy scrutiny ever since and people are questioning his ethics.

Rep. Devin NunesLet’s Take a Step Back to Get Some Context

Earlier this year, the House Intelligence Committee was tasked with investigating whether there was Russian interference into the 2016 elections as well as collusion between Russia and Donald Trump’s campaign.  The House Intelligence Committee is led by chairman Devin Nunes, which, until recently, wasn’t necessarily a household name.

A week ago, Nunes held a press conference and, to keep it simple, he announced that an unnamed source had given him information that appeared to validate, at least somewhat, Trump’s wiretapping allegations.  Here’s what Nunes said:

“First, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.  Details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in the intelligence community reporting.  Third, I have confirmed that additional names of Trump transition team members were unmasked.  Fourth and finally, I want to be clear. None of this surveillance was related to Russia, or the investigation of Russian activities or of the Trump team.”

Because Nunes says that the information wasn’t related to the surveillance on Russia and that it also wasn’t related to the Trump-Russia investigation, Nunes’ statements suggest that some of the members of the Trump transition team were in fact under surveillance.

Why All the Fuss?

Here’s a brief rundown of how it went down:

  • On March 21st Nunes made an unscheduled trip to the White House where an unnamed source provided Nunes with information about incidental collection of Trump and his associates. That information, according to Nunes’ press conference, contained unmasked names.
  • On March 22nd Nunes held the press conference with the statement above. Nunes claims the information came from FISA surveillance.  Nunes then went directly to the White House to brief Trump on the intelligence reports.  Adam Schiff, the ranking Democrat on the House Intelligence Committee, released a statement that Nunes did not share this information with other members of the Committee before going to brief Trump.

The press conference itself wasn’t necessarily the issue; the issue is where the documents came from and why did Nunes go to Trump with the information before his own Committee members?  Regardless of whether the information was unrelated to the Trump-Russia investigation, Nunes still should have presented the information to the Committee first.  Even after Nunes apologized for going to Trump first, the water has gotten even murkier on whether Nunes had any real evidence to support the statements as he has yet to release the documents to the Committee.

Actions Affect the Committee’s Investigation

Who did Nunes meet at the White House?  Why did Nunes need to meet his source at the White House?  Why didn’t Nunes take the information straight to the Committee?  These are the unanswered questions floating around that make what Nunes did suspicious.  The running theme coming from the Democrats is that, because Nunes was a member of Trump’s transition team, Nunes is improperly providing political cover for Trump’s claims that Obama wiretapped his phone.

Nunes’ actions do affect the House Intelligence Committee’s investigation because it tarnishes the office’s credibility.  Being chairman of the House Intelligence Committee holds certain responsibilities and, as a member of that Committee, Nunes’ loyalty should have been to the Committee, especially since Trump is currently being investigated.  Instead, Nunes claimed he felt he “had a duty and obligation” to tell Trump because “he’s [Trump] taking a lot of heat in the news media”.

If Nunes is covering for Trump, he’s not being an impartial member of the Committee.  Not only does it tarnish the creditability of the House Intelligence Committee, but it also jeopardizes the ongoing Trump-Russia investigation.  There’s also a good argument Nunes’ actions violate protocols for handling classified information, which is why he’s received numerous ethics complaints.

Despite statements that all the fuss is “entirely false and politically motivated”, Nunes has since stepped aside from the Trump-Russia investigation.

Hyperlink Hysteria: When is Posting a Hyperlink Breaking the Law?

It’s no understatement to say that hyperlinks are essential to a functioning internet. You clicked one to get here and you’ll probably click plenty more today. However, under a new Court of Justice of the European Union (CJEU) ruling, posting the wrong link in the wrong way can get you in legal hot water.

The case pitted Playboy magazine against a Dutch company whose business and website involved posting links to unauthorized replications of stills from Playboy magazine. Playboy took issue with this and sued, arguing that posting these links infringed their copyrights in the photos.

In their recent explanation of their initial opinion from a few months back, the CJEU sided with Playboy and created brand new rules describing the situations where posting a hyperlink can get you in trouble in the EU.

The EU’s New Ruling

First and foremost, where freely available content is posted to the internet with the copyright owner’s consent there is never copyright infringement. However, when the link posted is to unauthorized material, access to which would otherwise be restricted, the situation changes.

Under the new rules, a person posting such a link is liable for copyright infringement in two situations. First, where the link was posted “in pursuit of financial gain,” there is a presumption that the person posting knew they were not authorized to post the link and guilty of copyright infringement unless they produce evidence to rebut that presumption. Second, where the link is not posted for financial gain but the poster knew or should have known that the content they linked to was illegally published the poster is also guilty of copyright infringement.

The CJEU found that the Dutch company, GS Media, had posted both for profit and with knowledge they were linking to unauthorized content. However, the court was notably sparse as to the details of what counted as “for profit.” This means that the law, while certainly a boon to content creators seeking to protect the works they put on the internet, leaves many businesses in lurch.

The presumption of copyright infringement, barring any other legal defense, is something quite uncommon in law. Does a poster have to profit from the link itself? Is it enough that the website with the link makes profit from additional web traffic? As it stands, those who directly profit from links by putting them behind a pay wall and small bloggers posting links on articles earning ad revenue could both be in the same copyright infringement boat.

What’s more, the CJEU ruling makes it clear that when a post is “for profit” the onus is on the poster to ensure the legality of anything they chose to link. This puts a pretty hefty burden on small bloggers who may not have the money or legal expertise to ensure that every link they post is above board.

As for here in the U.S. of A, this ruling is unlikely to impact the links you post on social media. However, businesses that operate internationally will have to be especially careful about what and how they post. The ruling will have a substantial effect on companies offering internet search engines, such as Google, because these companies must take extra steps to determine if their listed sites contain unauthorized material so as to avoid the effects of the infringement presumption. They also will need to deal with increased instances of demands from companies wanting them to delist links to websites that include infringing material.

EU Law Compared to US Law

These new developments abroad probably have you asking, how does U.S. law treat hyperlinks? Well, rest easy, your usual posts on Facebook are unlikely to get in trouble.  It is long settled U.S. case law that the mere posting of a link does not give rise to a direct copyright infringement claim without more. This being said, you can still commit infringement where—as in the EU—a link is posted either for profit or with knowledge of it connecting to infringing material.  However, these facts don’t create a presumption against you as they do in the EU.  Instead, they are relevant evidence in an alternative cause of action to direct infringement—contributory infringement. While in the EU these facts could now leave you on the backfoot in a claim against you, they are the bare minimum to a plaintiff establishing a claim here in the states.

In practice, unless the posting is en masse and coming from a known company with deep pockets, most links to infringing material are dealt with through the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA provides protection for websites which host content so long as they have a statutorily compliant takedown policy in place and respond appropriately to takedown requests—requests to remove infringing content from a hosting site—from content owners. This obviously doesn’t apply where the website itself is posting the infringing links, but when it comes to links posted by private parties the expense of litigation and difficulty of identifying the person behind the computer make it preferable for content creators to focus on taking down the infringing links.

The CJEU ruling has pushed the potential for copyright infringement through posting hyperlinks to unprecedented levels. Unless these changes make the unlikely jump across the pond, they will only really impact internationally operating business within the U.S.  However, it is still important to be careful what links you post—especially if you make any sort of profit off those posts.

Do Trump’s Poll Watchers Break the Law?

Donald Trump has been calling on his supporters to watch polling places for signs of fraud. His website offers sign-ups for “poll monitors” to observe polling in “other communities.”  Trump argues it is out of concern that the entire election is rigged.  For instance, he was quoted as saying “I am leading in Florida. The polls all show it. If I lose Florida, we will know that there’s voter fraud. If there’s voter fraud, this election will be illegitimate, the election of the winner will be illegitimate, we will have a constitutional crisis, widespread civil disobedience, and the government will no longer be the government.” When Trump made this statement, he was behind in the Florida polls by an average of 5 points.

The concern, “rigged election” aside, is that the “poll monitors” will be a thinly veiled excuse to target minorities in the polling place.  Beyond Trump’s not so ambiguous “other communities” comments, he has made it clear that he believes a wave of illegal immigrants will be let into the country in order to vote for Hillary.  Those signing up for the program have not alleviated concerns.  One Florida volunteer posted a picture of a truck festooned in American flags with a cage around the bed of the truck and a comment reading “Florida we gonna landslide TRUMP….wear’n red at polls… We gonna be watch’n fer shenanigans…& haul ya away..”  Another made concerning statements about his intent on election day, saying “ I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American,” he said. “I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”

Is Trump’s plan for these poll watchers doing legal? Unfortunately, it is to an extent.  The issue hinges on voter challenge and voter intimidation laws nationwide.

Voter Challenge Laws Across the Nation

Whether or not Trump’s tactics are legal, they are certainly not new. For example, in 2012, a Tea Party group recruited over a million poll watchers with the goal of making voting “like driving and seeing the police following you.”  The problems hinge on abuse of existing voter challenge laws.

46 states have laws which allow a private citizen to challenge a person’s status as an eligible voter up to and on election day. While the exact details of the statute vary slightly from state to state, only 15 of these states require the challenger to provide any sort of documentation to support their challenge with most laws placing the burden on the person challenged to establish that they are a legal voter.  In Wisconsin, Virginia, Oregon, and South Carolina the challenger needs only a suspicion that the person is not qualified. 

Trump’s primary target for his poll watchers, Pennsylvania, has seen abuse of their broad voter challenge statute in the past. As recently as 2004, hundreds of students had to wait hours to vote after attorneys from the republican party challenged every young person who came to vote pursuant to Pennsylvania’s voter challenge laws.  The law in Pennsylvania allows private citizens to challenge voter status of any person seeking to vote leading up to and on election day.  The challenger doesn’t have to provide any evidence for their challenge, but in 2004 through today, the challenged party must find a friend to sign an affidavit of their voter status and residence before they are allowed to vote.

Over the last decade, states such as Virginia, Colorado, Nevada, Iowa, and New Hampshire have enhanced the burden on those challenging a voter to avoid abuse. Just this year, the constitutionality of the voter challenge laws of Texas, North Carolina, Ohio and Wisconsin have all come up before the Supreme Court—although the court has been deadlocked 4-4 or failed to yet rule on each case. Florida requires challengers to state a valid reason for the challenge in writing; North Carolina requires “affirmative evidence” that the voter is ineligible.

Pennsylvania has taken a different approach to its history with its challenge law. While the law itself has not changed since 2004, Pennsylvania currently has a law dealing with voter challenge in their legislature…to allow poll watchers to be certified to go anywhere statewide as opposed to just their own county.

While the ability to challenge the voter registration where a person is not properly registered is not independently a bad thing, the vulnerability to abuse can make the laws dangerous.  Across the nation, sweeping challenges targeting students and minorities are shockingly common. The laws have led to anecdotes such as an older white man challenging every black person who entered a polling place, requiring them all to defend their registration and sign an affidavit.  In Ohio’s 2004 election, 97% of new voters in predominately black locations faced challenges.  This is in contrast to 14% in predominantly white locations.

Abuse of these laws, and the voting system has reached the highest levels. A series of cases through the eighties and nineties, brought by the Democratic National Committee (DNC) against the Republican National Committee (RNC), has forbidden the RNC from engaging in any kind of “ballot security program” other than “normal poll watch functions” after they targeted 150,000 voters in predominantly African-American precincts in the early eighties.

The consent decree binding the RNC was enforced and extended in 2009, with the judge finding that “[v]oter intimidation presents an ongoing threat to the participation of minority individuals in the political process, and continues to pose a far greater danger to the integrity of that process than the type of voter fraud the RNC is prevented from addressing by the Decree.” With the consent decree set to expire in January 2017, the DNC has sued the RNC a little over a week ago over their alleged support of Trump’s poll watching campaign.  They seek, among other things, to extend the consent decree.

Regardless of the legality of the RNC’s potential involvement, the broad nature of most voter challenge laws makes much of what Trump’s poll watchers are likely to do come election day legal. The exception to this is when their actions cross the line from challenge to voter intimidation—as mentioned in the renewal of the consent decree against the RNC.

Federal Voter Intimidation Statute

Federal law makes it a crime in all 50 states to intimidate, threaten, coerce, or attempts to intimidate, threaten, or coerce, a person trying to vote.

The actions of Trump supporters discussed above would clearly rise to the level of criminal voter intimidation. However, a person need not go to such extremes to be guilty of voter intimidation.  Courts have found intimidation where people gather in groups around, or even within 100 feet, of voting places as such gatherings could easily deter nervous voters.  Bringing a weapon of any type to a voting place and remaining there would also likely be voter intimidation—some states specifically ban the practice.

While voter intimidation is a fact specific crime, any voter who feels intimidated should immediately report the actions against them to authorities. Poll watching and voter challenges, depending on how confrontational they are, can easily cross the line from challenge to crime.  Legal threat (including threats of deportation) and economic threat both count as intimidation.  In many states, such as Ohio, misleading a person as to voting information is also a crime.

Trump’s poll watchers are acting in a way that flirts with criminal intimidation. Know your rights this election day; don’t allow poll watchers to criminally intimidate you.