Is it legal to wear headphones while driving in North Carolina?

Yes. Sort of. 

Though delayed from its original release date in October 2016, Apple still advertises its much anticipated "Airpod" headphones for release before the end of 2016. The headphones are wireless and boast speakerphone capability in its signature 'pod' design with competitive sound quality and comfortability. Apple lists the headphones at a retail price of $169.00, a price well in excess of its current wired version, but one on par with, or cheaper than, many headphones in the Airpod's prospective class.

In anticipation of their release, I felt it helpful to answer a question I often receive at the various dinner parties I'm invited to and attend (just kidding, I'm not that cool): Is it legal to wear headphones while driving?. In North Carolina, the short answer is that yes, it is legal to wear headphones while driving. Many states in the nation have laws that regulate a driver's ability to wear headphones while driving - and many more ban it outright. North Carolina is not one of them. 

The reasons for banning the headphones are obvious, chief among them is that they substantially interfere with a driver's ability to hear and respond to emergency sirens or other roadway emergencies that arise while driving. That is why in California it is legal to listen to music in headphones while driving as long as only one pod is in the driver's ear and the other ear is open to hear and respond to emergency situations.

While no law in North Carolina specifically prohibits the use of headphones while driving, that does not mean drivers in the state can use them with impunity. For one thing, it should be noted that if any driver intends to travel beyond the jurisdiction of North Carolina, it may or may not be legal in the bordering state. (South Carolina - legal; Tennessee - legal; Georgia - illegal; Virginia - illegal). For another, and perhaps more salient thing, the effect of wearing headphones may cause a driver to violate already existing traffic laws in North Carolina. 

To extrapolate on the above-contemplated scenario, if a driver in North Carolina cannot hear emergency sirens, and fails to react according to specific statutory directions to allow an emergency vehicle to pass, that is against the law in North Carolina. 

N.C.G.S. § 20-157 sets forth as follows: Upon the approach of any law enforcement or fire department vehicle or public or private ambulance or rescue squad emergency service vehicle, or a vehicle operated by the Division of Marine Fisheries of the Department of Environmental Quality, or the Division of Parks and Recreation of the Department of Natural and Cultural Resources, or the North Carolina Forest Service of the Department of Agriculture and Consumer Services when traveling in response to a fire alarm or other emergency response purpose, giving warning signal by appropriate light and by audible bell, siren or exhaust whistle, audible under normal conditions from a distance not less than 1000 feet, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, clear of any intersection of streets or highways, and shall stop and remain in such position unless otherwise directed by a law enforcement or traffic officer until the law enforcement or fire department vehicle, or the vehicle operated," by the state shall pass. [Emphasis Added].

A driver with headphones in runs a real risk of not being able to hear the emergency vehicle within 1,000 ft under normal auditory conditions, as the headphones would certainly move the condition from the realm of normal to abnormal. It puts a lot of faith in visual clues. Not only is a violation of the above-cited subsection a Class 2 Misdemeanor, it is also negligence per se, so apart from criminal culpability expected from its violation, it can also threaten to create significant civil liability should any injury happen as a result of the driver's failure to follow the statute's directions for oncoming emergency personnel.

What if injury does happen as a result? Well, that makes it a Class 1 Misdemeanor. Serious injury or death? That's a felony. 

As is often the case in the law, the short answer is very rarely the complete one. While no law specifically prohibits the use of headphones while driving in North Carolina, their use can substantially interfere with a driver's ability to comply with already existing traffic laws the violation of which carry serious consequences.

The Why of a Crime

It’s not always easy to pinpoint what drives America’s fascination with true crime mysteries. Serial’s deep dive into the circumstances surrounding the death of Hae Min Lee only ignited this fascination, as millions downloaded Sarah Koenig’s podcast, and its listeners flocked to Reddit to bravely discuss their theories of how it all went down on a winter night in the outskirts of Baltimore on January 13, 1999. A jury convicted her ex-boyfriend, Adnan Syed, who has been in the state’s custody since law enforcement arrested him on February 28, 1999, but an appellate judge granted him a new trial in 2016 because his lawyer ineffectively assisted him during his trial. A kid, at 17, was a bright student with college acceptance letters rolling in already. There’s no doubt the intrigue begins with the difficulty many have in answering – why? Why would he kill her?

Legally speaking, motive is not an element of murder. The state bears the burden of proving each element of the charged criminal offense beyond a reasonable doubt. It follows, then, that the state is under no obligation to answer that question for you. It does not have to matter. It, of course, helps anyone understand a particular defendant’s actions, but the state must only prove the defendant did it on purpose beyond a reasonable doubt. The reason for this is not always obvious but it makes sense after considering the following.

Video footage shows a man pull a firearm out of his pants. His eyes lock onto his target. He aims, fires, and hits the person whom instantly dies. All of that is caught on tape. While it is clear the man purposefully shot and killed the intended target, the state might never ascertain his introspective thoughts as to why he killed this person. It nonetheless has substantial evidence showing the requisite level of intent for the crime through his deliberate actions. Simply, we often will never truly know why a crime takes place. Even in the rare occasion the defendant testifies or offers a confession that provides a rationale, the true reason is probably not disclosed and the one given is marred with inherent credibility issues the vast extent of which are beyond the scope of this post.

But that’s the thing. It’s the why that draws everyone in. It’s the why that gives it the folklore, as many attempt to extrapolate from their own experience to offer an explanation for events that will forever remain a mystery as to why.

Enter: Germanton, North Carolina in 1929. The mountains of North Carolina, with its tradition for folk and storytelling, is an apt home to its own notorious “familicide,” and the reason for its commission continues to elude all those involved.

On December 25, 1929, Charles Lawson sent his eldest son, who was 16, to go on an errand in the afternoon. While his son was away, Lawson proceeded to murder his wife and other six children, one of whom was only 4-months old. After shooting them with a shotgun, he bludgeoned them to ensure their demise, and then took care to neatly lay them to rest in a tobacco farm with their arms crossed and rocks under their heads as pillows. Hours later, Lawson shot himself in the woods behind his house. Nobody truly knows why he performed these acts; no one knows why he spared his eldest son. Many speculate that a former head injury unhinged primal desires he could not suppress; others suggest he impregnated one of his daughters and Lawson feared his wife and children would realize their impropriety. The site became a tourist attraction, musicians composed songs about the events, and family members wrote books attempting to explain what happened. Of course, none are conclusive – nor will they ever be.

As 2016 nears its end, the tragic events that unfolded on Christmas Day in 1929 remain in the collective culture of that North Carolina community. It’s the why that keeps it alive. It’s the why that feeds America’s true crime addiction. It’s the question, however, that will forever remain unanswered.

             

 

            

How to get Pokemon to ‘Go’

Mom and Pop cafes and restaurants in France cannot seem to get these darn Pokemons out of their kitchens.

The pesky and surprisingly pugnacious Pokemon characters are all up in the grill of several businesses, literally, well virtually at least, and stirring up global disputes as to the means by which store owners can obtain relief from their virtual takeovers.

Mayor Fabrice Beauvois mailed a decree to The Pokemon Company in California to make sure it stops allowing the characters to invade his village northeast of Lyon, which is Bressolles, and is home to around 800 real people. This is all according Phillipe Sotto’s Associated Press report for ABC News.

As of the article, The Pokemon Company apparently had not responded to the letter, but it did note the possibility for businesses to designate their place as a Gym, or Pokestop, and that will prevent the characters from entering the business.

As Mayor Beauvois explained, “when a café or a restaurant owner wants to open a business in any French town, they have an obligation to request prior authorization to the mayor.” He is not pleased that Picachu, among others in his cohort, are invading these prior-authorized places in a usurpation of his authority.

The natural tendency is to compare these invasions to trespass, but as Michael Smith contends in this article, it’s actually more akin to nuisance.

The Restatement (Second) of Torts § 821D defines nuisance as a “nontrespassory invasion of another’s interest in the private use and enjoyment of land.”

Michael Smith compared this to a fascinating story right at the center of the USA. If you have a life, you probably did not know that the geographical center of the USA is precisely at 39.8333333,-98.585522. That’s in Kansas near the Nebraska border. Due to the uneven nature of those numbers, MaxMind rounded them down to 38 N, 97 W.  It used that point as its default location for its digital map, a location at which several IP addresses on phones and computers register if the mapping company cannot locate their actual location.

Those points also intersect in Joyce Taylor’s front yard in a small town in Kansas. There are over 600 million IP addresses associated with those coordinates. And, whenever any person using a device registered to that default address shares its location for any reason, however important, such as when a user contacts a suicide hotline, tracking agencies respond to Taylor’s residence. As such, frequent visitors included the FBI, not to mention other various emergency services organization responding to a live threat.

While MaxMind’s use of her front yard for its default IP location does not always result in a physical invasion of her property, it nevertheless causes an interference with her quiet use and enjoyment of that property, making it a nuisance, and not a trespass. In tort, the same can be said for Pokemon Go characters that cause a similar nuisance in the property and store fronts of business owners. Perhaps this is one mechanism by which businesses can reclaim their property should catching a Pokemon result in a disruption to their lawful business activities.

The amorphous boundary of individualized suspicion in the wake of U.S. v. Rodriguez

The Fourth Amendment to the United States Constitution, which applies to state action by virtue of the Fourteenth Amendment’s Due Process Clause, guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

Not just any search and seizure.

The Fourth Amendment provides individuals freedom from unreasonable search and seizure, as “[t]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” Wilson v. Arkansas, 514 U.S. 927, 931 (1995).

The general rule is that the state cannot make an arrest of an individual without first obtaining a warrant for the arrest from a neutral and detached magistrate. To account for the complexities and complications of modern crime fighting in a nation hell bent on gun ownership, the Supreme Court ruled in Terry v. Ohio that law enforcement may detain an individual for a brief period of time pursuant to an investigation related to specific and articulable suspicions that the person is engaged in criminal activity. While stopped, and only within reason, law enforcement may frisk the suspect for the presence of weapons when there is reason to believe officer safety is at risk. Thus, the Terry “stop and frisk,” was born. Terry v. Ohio, 392 U.S. 1.

Because a traffic stop is more analogous to an investigative detention (Terry stop) than a custodial arrest, the law treats a traffic stop under the standard set forth in Terry for an investigative detention. In Terry, the Supreme Court presciently cautioned against the potential for stops of this nature to swallow the general rule that law enforcement must obtain a warrant prior to a custodial arrest. In order to retain the spirit of the Fourth Amendment, and with it an individual’s reasonable expectations of privacy, the Court set forth a two-step analysis for any investigative detention. First, courts must analyze whether the police officer’s action was justified at its inception. Second, courts must analyze whether the police officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop. Id.

As in the Fourth Amendment, “reasonableness” rules the day.

A traffic violation “provides sufficient justification for a police officer to detain the offending vehicle for as long as it takes to perform the traditional incidents of a routine traffic stop.” United States v. Branch, 537 F.3d 328, 335 (4th Cir. 2008). Right off the bat, any traffic violation will satisfy the first prong of a Terry analysis.

That does not mean law enforcement automatically satisfies the second prong, though. The traffic stop must be limited both in scope and duration. Florida v. Royer, 460 U.S. 291 (1983) (noting that the scope of a seizure “must be carefully tailored to its underlying justification.”). Scope requires that “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id. Duration, meanwhile, requires police to diligently pursue a means of investigation that was likely to confirm or dispel their suspicions quickly. Id.

The tolerable duration of a traffic stop is for a time long enough for a reasonably diligent officer to complete its original mission. Rodriguez v. United States, 135 S. Ct. 1609 (2015). “Typically, such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Illinois v. Caballes, 543 U.S. 405, 408 (2005). While completing those tasks incident to the traffic stop, an officer may conduct other unrelated checks, but not in a way that prolongs the stop absent the finding of reasonable suspicion ordinarily required to stop and investigate an individual for suspected criminal activity. Id. Thus, absent reasonable suspicion, “authority for the seizure ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.” Id.

According to the Court, the reasonableness of a police officer’s actions during a traffic stop turns on his diligence in accomplishing the purposes of stop, that is, investigating whether a traffic infraction occurred and issuing a ticket. Id. The “diligence calculus includes an examination of the subject matter of the unrelated questioning and whether the unrelated questioning was conducted out of concern for officer safety.” Id. at 495.

The reasonable suspicion standard is an objective one, as it requires the court to examine the facts within law enforcement’s knowledge to determine the presence or nonexistence of reasonable suspicion. Courts therefore “view the facts through the eyes of a reasonable, cautious officer, guided by his experience and training at the time he determined to detain the defendant.” State v. Myles, 188 N.C. App. at 47. In an effort to preserve an individual’s reasonable expectations of privacy, “the requisite degree of suspicion must be high enough,” to avoid “arbitrary invasions solely at the unfettered discretion of officers in the field.” State v. Fields, 195 N.C. App. 640, 744, 673 S.E.2d 765, 767 (2009).

Otherwise innocent facts might give rise to reasonable suspicion when the reasonable officer considers them collectively within the totality of the surrounding circumstances, but “the articulated innocent factors collectively must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.” United States v. Digiovanni, 650 F.3d at 511. If the reasonable officer cannot eliminate a substantial portion of innocent travelers, the suspicions amount to a mere hunch that fails to establish the predicate reasonableness required under the Fourth Amendment to detain an individual. Should the officer detain an individual on a mere hunch after the officer completed the traffic stop, or reasonably should have completed it, then the subsequent investigation, however brief, unduly prolongs the detention in violation of the 4th Amendment.

 For what it’s worth, this is why a bitch was not one of Jay-Z’s 99 problems.

Such was the position of the North Carolina Court of Appeals on May 5, 2016 in State v. Bedient, a decision that ruled an officer did not establish reasonable suspicion to detain an individual for longer than was necessary to complete the traffic stop – unduly prolonged, by the way, for just two question beyond the scope of the completed traffic stop. Click here for the full text.

In Bedient, the officer stopped the defendant at 11:30pm for the driver’s failure to dim her high beams. When the officer approached the defendant, he asked for her license and registration, in addition to sparking casual conversation during which the defendant revealed that the passenger in the car was her daughter. The defendant took 20 seconds to find her license. The officer observed that she was fidgety and reaching all over the car in odd places to look for her license. After a while, the officer recognized the defendant as one who was at the residence of a local drug dealer the night before when law enforcement investigated an unrelated incident. When she provided him her license, the officer went back to his patrol car and ran the license. He wrote the citation for her failure to beam headlights and then approached for the second time. While with her the second time, the officer provided her the citation; however, instead of informing the defendant that she was free to leave, he instead continued to ask her two questions: 1) whether she had ever been in trouble for anything, and 2) whether she had anything unlawful in her car. The officer obtained her consent to search the car through these questions and eventually found evidence to charge her with possession and paraphernalia.

The Court of Appeals ruled that the officer’s prolonged detention, which began the moment he asked her questions after which a reasonably diligent officer would have completed the traffic stop, was not supported with reasonable suspicion. The only two factors the Court of Appeals considered relevant to reasonable suspicion were the defendant’s nervousness in combination with her association with a known local drug dealer. North Carolina law is replete with examples where neither of those factors, standing alone, constitute reasonable suspicion.

When in combination, however, the facts still failed to meet the threshold burden to detain the individual any longer than would be necessary for a reasonably diligent officer to complete the initial task that justified the detention in the first place. The Court of Appeals reasoned that the combination of the two factors could give rise only to a “hunch” of criminal activity, not reasonable suspicion, because even when considered in tandem the factors would not “eliminate a substantial portion of innocent travelers,” necessary to avoid general, rather than individual, suspicion.

As a result, the Court of Appeals excluded the evidence obtained during the unduly prolonged stop, including any such evidence poisoned from the unconstitutional detention. This case is a recent example of life after Rodriguez, where there are no de minimis exceptions to the need to establish reasonable suspicion for any unrelated questions that go beyond the permissible scope of the initial traffic detention. It is therefore important to delve into the minutia of each case involving an officer’s decision to investigate a suspect incident to a traffic stop. Without reasonable suspicion to prolong the stop, the law is clear in its stance to exclude any such evidence found pursuant to the subsequent detention.

How to properly attribute another's work in compliance a Creative Commons license

Copyrights often protect an author's original work. They restrict another's ability to share, distribute, or use the original author's intellectual property. There isn't much of a middle ground. A Creative Commons license fills that void. Here's how to properly attribute another's work with one.

  1. Identify the Author

    The first requirement to use another's work with a Creative Commons license is to give the author credit. This includes a pseudonym or username if applicable. Also, if the user originally published the work on a platform with a username, the license will likely require you to disclose the username and provide a link to the user's profile.
  2. Identify the Title

    If the author originally published the work with a title, then a proper attribution will include the title to the work. Like the requirement above, if there is an online link to the original work with the Creative Commons license, then you must provide that link in your attribution as well.
  3. Identify the Creative Commons License Type

    There are several different types of Creative Commons licenses that range in free use ability. It's important to identify the one attached to the original work in the attribution. The original Creative Commons license could incorporate any of the following conditions: Attribution (you can distribute and make derivatives as long as you give the author credit); Non-Commercial (You cannot distribute for any commercial use); No Derivative Works (You can distribute but only a verbatim copy of the original work); and Share Alike (You can distribute but only under a license identical to the one attached to the original). The Creative Commons license can attach different conditions depending on the author's specifications, except a license cannot have both a Non Derivative and Share Alike condition.
  4. Identify any Copyright Notices

    The original work might still include applicable copyright notices that the author will want you to include in your attribution. This is usually when the original author wants to provide credit to another party used in the original work. Be careful to include that attribution as well in your distribution.

Anti-immigration policy poses a grave threat to the state’s economy and security

Before I begin, I’d like to acknowledge that the only people on this continent who can credibly offer an argument for anti-immigration policy exist primarily on plots of land scattered throughout America specifically reserved for them to remain there as Indians – the ones we found not the ones we sought after.

It’s trapped beneath that inescapable undertow where I hesitantly tread forward.

After President Obama addressed the nation last fall to announce an executive order meant to encourage undocumented immigrants who contribute to America’s labor force to engage the process of naturalization, several state governments made it their mission to convince immigrants who took ungodly risks to flee from their country for a better life to turn around and head back. Under Governor McCrory’s leadership, North Carolina was one of those states. He signed into law HB 318, a bill that prohibits government officials from accepting certain documentation like municipal identification or matricula consularsfrom immigrants. Such a policy furthers the agenda to make E-Verify mandatory, a program that requires anyone who wants employment in the United States to ask the government’s permission prior to employment with the electronic disclosure of private information. This video from the ACLU does a much better job than I can to explain the potential problems existent in the program. In addition, the inability to use municipal identification decreases the likelihood otherwise undocumented immigrants will seek the help of law enforcement for matters like rape and domestic abuse. That sends a pretty strong message for them to leave.

Now, in the context of recent terrorist attacks in Europe and the rising influence of the self-proclaimed Islamic State, Governor McCrory appealed to the public’s largely uninformed fear of Syrian refugees and their unsubstantiated ties to the very terrorist cells responsible for murdering many of their close relatives and friends. Only three days after the tragic attacks in Paris, he called for an end to a refugee program that allowed entry to the United States through an exhaustive immigration process that already contemplated continuing investigations into the immigrant’s network. The gut reaction Governor McCrory exhibited, which to be fair drew praise from several other state leaders, panders predictively to the exact feelings terrorism is designed to create, as North Carolina singled out Syrian refugees who fled the harsh rule of a faith-based organization. It’s very difficult to take that seriously, most obviously because America is a secular nation the origins of which largely began with a group of people crazy enough to cross the Atlantic in a rackety old ship to precisely avoid the tyranny of divine leadership.

Alas, for a man in the state’s highest political office to make such a declaration, you’d think there was some actual worth to it, so I took the vantage point of his specialty prior to office – business, and forsook against better judgment the limited value of my liberal arts education. Even from that viewpoint, such a policy promises to profoundly harm the state’s economy and security in days to come.

For one thing, a recent case study from Alabama strongly suggests anti-immigration policy fails economically. If Governor McCrory succeeds and undocumented immigrants are forced out of North Carolina, what can we expect? Thomas Morton, a VICE correspondent, reported that Alabama bore witness to an exodus of immigrants in unprecedented amounts after it enacted similar policy in 2011. As a result, Alabama lost an entire workforce necessary to contribute to its GDP. Produce farmers attempted to fill the void left in the wake of Alabama’s immigrant exodus with almost anyone. “They couldn’t hack it, just the sheer physicality of it,” said Jerry Spencer, a produce farmer in Alabama who Morton interviewed in the report. Long story short, immigrants perform jobs no one else wants to perform. You already know that unless your primary residence is under a rock. According to the report, Alabama’s government felt this blow impressively, as it lost over $10,000,000,000, (trump change, I know), in lost income and tax revenues it would have otherwise collected absent the anti-immigration policy. It was devastating for the economy and North Carolina would be wise to pay attention to those results.

So economically it’s a horrible idea, but it must make us safer, right? Wrong. Data suggests crime rates did not drop at all. The drug trade continued in Alabama, probably in large part because the people whose lives depended on drugs continued to depend on drugs after the immigrants left.

As for refugees, the extra screening measures planned for those who hail from targeted nations will likely increase an already excruciating process for refugees to immigrate lawfully to the United States. Such a focus might help fuel political momentum but it comes at the risk of missing entirely the greater danger of the ability of terrorist cells to recruit through their use of the internet. The greater threat to our state and national security lies in the propaganda set forth in the channels of the world wide web. It’s remarkable how well these terrorist networks infiltrate the minds of susceptible youth through the use of 21st century technology. Even the groups steadfast in their belief of 7thcentury geo-political philosophy understand success is measurably greater through access like that.

On the other hand, history suggests that American lives are much safer directly as a result of its open minds and borders, as anti-immigration policy not only threatens the substantive contribution of immigrants, but it also destroys the friendly, self-confident American identity that sets us apart as leaders, innovators, and progressives – the precise collective makeup that makes us the envy, not the contempt, of the world, and the precise collective makeup that makes America the safest place on earth. If we lose that identity, then we lose that security; if we abandon our principles, then we lose the moral backbone that justifies our substantial defense spending.

One example not nearly distant enough in the world’s historical landscape comes to mind. Within the last century, a man accepted a visiting professorship at Cal-Tech while he and his family fled religious persecution at home. A renowned physicist, this man became a professor at a local university in Germany prior to 1933 when he left Germany for good. His professional rise unfortunately coincided with another man’s ascent to power, Adolf Hitler, who eventually secured Germany’s highest post and began to ethnically cleanse Europe.

This man was Albert Einstein, a Jew, and America accepted him where Germany did not, a decision for which the rest of the world is very thankful. Einstein marveled at the citizenry that contributed to America’s culture. His observations as an immigrant, as someone who might now feel unwelcome, are poignant in context of today’s political rhetoric. When he first came to America, he had this to say about its citizens: “the American is friendly, self-confident, optimistic, and without envy” while “the European is more critical, more self-conscious, less kind-hearted and helpful, more isolated.” He reasoned that America stood in the position to shape the future of international policy because its collective moral compass pointed in the direction of good, not evil – an objective value more so than a religious one. That is what made America secure. Despite Einstein’s contempt for the use of science to pursue evil endeavors (like weapons), he put the strongest one comprehensible to man in the hands of our government. Would he trust us now? Are we that same friendly, self-confident, and optimistic people he once knew? Can we be secure without that identity?

The Regulation of Revenge Porn Stiffens in North Carolina

Effective December 1, 2015, N.C.G.S. § 14-401 makes it unlawful for an individual to post images of someone who provided that individual said images while they were in a relationship together and under a presumption of privacy associated therewith.

Apparently, there is a specific category of pornography for this – revenge porn.

The good news is that House Bill 792 provides a built in excuse to use when my girlfriend “accidently” scopes out my browsing history. Research, darling.

The bad news is that my girlfriend is imaginary, so.

ANYWAYS, notwithstanding my deeply entrenched insecurity about my relationship status, North Carolina can now enforce its ‘revenge porn’ statute beginning on December 1, 2015. The law primarily intends to provide a legal remedy for revenge porn.

Previously, scorned lovers could post images of their former significant other with seeming impunity in an effort to exact revenge on said former significant other for scorning them usually due to the significant other’s suspected infidelity. There’s also a somewhat unbelievable audience size for these postings, which is likely composed primarily of other scorned lovers, so it works a little like some sick support group of the dumped and forsaken.

The problem is that there are victims. The law now protects those victims. § 14-401 provides that a defendant is guilty of a Class H Felony when prosecution can prove the following beyond a reasonable doubt:

1.     The defendant knowingly discloses;

2.     An image of another identifiable person;

3.     Whose intimate parts are exposed, or who is engaged in a sexual act;

4.     When the defendant, at minimum, held constructive knowledge (knew or should have known) that the individual did not consent to disclosure; and

5.     Where the disclosed images violated the depicted person’s reasonable expectations of privacy.

The statute also places specific definitions for some of these terms. For example, “reasonable expectations of privacy” means when a person has consented to the disclosure of an image within the context of a confidential relationship and the person reasonably believes that the disclosures will not go beyond that relationship.

In addition to the criminal side of things, which requires proof beyond a reasonable doubt, there is also a civil component. By statute, an individual whose image is depicted suffers actual damages computed at the rate of $1,000 per day for each day of the violation or in the amount of $10,000, whichever is higher. The statue also specifically allows for punitive damages and reasonable attorneys’ fees and other litigation costs reasonably incurred. There is also a 4-year statute of limitations.

That is very powerful, and the burden of proof might make a lot of difference (ask OJ Simpson), especially with respect to the more difficult elements to prove, such as what the defendant knew or should have known and whether a reasonable expectation of privacy existed.

In a technological world where criminal activity is becoming increasingly difficult to detect and enforce, there is a shift allowing for the private enforcement of the law through remedies such as this that will hopefully send the intended message: no civil society can tolerate anyone who posts intimate pictures of another person without their consent for anyone or everyone to see, such as classmates, coworkers, employers, and so forth.

No matter what he or she did, it does not give anyone the right to turn private into public parts.

Attn: All players of daily fantasy sports, you might be a member of a class action filed in New York.

Adam Johnson filed a civil class action in federal district court against FanDuel and DraftKings last week in the Southern District of New York (Manhattan) that alleges the daily fantasy sports (DFS) websites fraudulently induced him to enter a game supposedly based on an individual’s knowledge and skill superior to his competitors.

As the complaint alleges, since employees in DraftKings have access to information on the proprietary percentages of certain professional athletes in a particular contest that the public does not, and since DFS player pricing models are sufficiently similar in design, it then provides a substantial benefit to the employees of DraftKings to participate in contests FanDuel operates, and vice-versa. The Plaintiff, who paid $100 to enter a contest on DraftKings, alleges that he would not have paid that money had he known that employees from FanDuel or other DFS providers were allowed to compete against him because success then turns primarily upon access to that non-public information and not his knowledge or skill.

Here’s the gist of how it works: DFS websites allow individuals to create a line-up of athletes at certain positions in a professional sport until the individual reaches a salary cap for his team. An athlete’s price is set through proprietary models that provides employees with data about the value of certain athletes to which the other players in the contest do not have access. The individual can then enter his team into tournaments with entry fees that range between a quarter and $5,300. The athletes accumulate points for the player based on real-life statistics during a particular sporting event. The players with a line-up that wins the most points in their selected tournament will then win the most money.

The winnings, however, are marginal when a player’s team is substantially similar to the other competitors in the contest. It’s therefore a huge advantage to have the ability to make rosters with enough athletes in a player’s line-up different from the other contestants’ rosters; and, while DraftKings restricted its employees from entering its own contests, it did not (until very recently) restrict its employees from entering contests on other DFS websites like FanDuel. Since the proprietary pricing models are so similar, this allowed DraftKings employees to use information acquired from its own models and attribute that to the ones on other DFS sites when selecting their line-ups.

How much of an advantage is this? Out of 229,883 entrants, a DraftKings employee came in 2nd and won $350,000. (This was one employee in particular that could be tracked because he accidentally posted roster data before he was supposed to one week).

Both DraftKings and FanDuel knew that their employees would enter contests held on the other’s websites. They also knew, or should have known, that those employees from the other sites would have a significant advantage over even the most skilled and knowledgeable competitors on their own sites. In spite of that knowledge, the websites continued to promise the integrity of its process. It held out to the public that the winnings were based on an individual’s skill, knowledge, and research. It made the Plaintiff, for example, believe that he could apply his skill, knowledge, and research to create a line-up, pay to enter a contest, and attempt to cash in on a prize winning.

The Plaintiff, from Kentucky, therefore brought this action in federal district court in representation of the following class: “all persons in the United States who deposited money into a DraftKings account before Oct. 6, 2015 and competed in any contest where other entries were made by employees from DraftKings, FanDuel or any other DFS site.”

The complaint itself touches on several aspects of law salient to contemporary legal struggles. It alleges DFS websites contain procedurally and substantively unconscionable terms of use that relevantly contain a click-through arbitration clause. It invokes civil conspiracy and the usual consumer protection calling cards so eminent in today’s courts. Despite how interesting many of those issues might be, the looming one will be whether or not the Plaintiff can establish this class.

These civil issues, however, are all notwithstanding the criminal side of things. All of this recent attention caused the FBI to begin an investigation into the legality of their sites that makes their continued existence questionable.

In reality, this won’t affect me at all. I swore off fantasy sports after my previous league banned me for inactivity. Because I have better things to do on Sunday. Like watch Netflix.

 

 

 

Beware of 'Netflix and Chill,' and Rule 11.

Note* Our admittedly limited investigation of the facts cannot verify the accuracy of the following story: As the video below explains, a guy asked a girl to come over and Netflix and Chill. Apparently, it's much easier to woo women these days. Once the girl arrived, and fully prepared with wings, the two searched for a mutually agreeable program. Much to their chagrin, however, the content on Netflix failed to fully entertain them. Faced without any other meaningful option, the guy and girl began to hookup. One thing led to another, and that other just so happened to be the conception of a child. As a result, and without anyone to blame but Netflix, the girl's mother decided to sue Netflix for $50,000. 

Let the girl explain it herself: 

Beware of NETFLIX n CHILL

Posted by TrapStyle on Tuesday, September 15, 2015

Among other things, this got us thinking about Rule 11. The Federal Rule 11 intends to protect against an attorney or party who brings a lawsuit on frivolous grounds. Consistent with how most state civil procedure laws developed, many state legislatures enacted parallel Rule 11 statutes that, for the most, align in language and interpretation with the federal rule. North Carolina's Rule 11(a) is as follows: 

Rule 11. Signing and verification of pleadings.

(a)        Signing by Attorney. - Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

That is a very difficult statute to get through. Courts have boiled it down to 3 basic requirements:

1. It must be factually accurate - at least upon information and/or belief.

2. When the signatory applies those facts to applicable law, there must be a legally cognizable claim that can redress the grievance.

3. Even if those 2 criteria exist, the signatory cannot bring the complaint for an improper purpose, like to harass the opposing party.

Several factors go into that analysis, like the time available to prepare the complaint, the evidence available, and the evidence available to the opposing party who won't or can't divulge the information prior to trial. The court has the power to sanction an attorney - a professional black mark - should the attorney bring a complaint for an improper purpose or if the complaint is not warranted in fact and/or law.

In application to the video above, it would be very unwise for the mother to bring the claim against Netflix. Even if factually accurate, no reasonable person would believe it would create a cause of action upon which a court could grant relief. Among many other issues in the story, one is the ubiquity with which young people use the term Netflix and Chill to mean precisely what occurred between the two in this video. Must be nice.

Rule 11 is terrifying. It keeps attorneys and vigilante plaintiffs grounded so that the courts are not a vehicle to air out irritations and controversies better suited for a different arena. It follows a policy of the courts to implore people to resolve differences outside of court - as mostly a product of overcrowded dockets, and not an inherent unwillingness to mediate conflict and provide justice. This is a good example of a dispute that probably will not see its day in court.

Does the lack of accountability on the part of Brady makes what Brady did an assault on the game and what baseball players do fun trickery? I believe there is a clear distinction.

[Izak Post] Tom Brady’s four game suspension was recently upheld by the NFL, and this whole ordeal has made me think about cheating in sports. When I first heard about Tom Brady and his alleged involvement in deflating footballs before the game, I thought, “Tom Brady is a piece of crap, cheater, and I hate him and the Patriots.”

Of course I would think this because Tom Brady was cheating.

Then I heard Frank Deford’s opinion on the matter.

Normally, I agree with Frank Deford, and the whole time I was listening to his lecture on the fairness of the game and how Tom Brady committed a sacrilegious act on the game of football, I was nodding my head and agreeing with Deford. I was doing this up until he said that this was like a spit ball in baseball and that it was a “terrible mistake in looking upon someone like Gaylord Perry — a pitcher infamous for loading up his deliveries with what we quaintly call "foreign substances" — as a sassy, picaresque figure, who was merely tilting at the windmills of authority. But that view is nonsense. Perry and his ilk did not abuse baseballs; they abused baseball.”

As soon as Frank Deford compared Tom Brady’s act to spit balls, I completely disagreed with Deford, but I was not quite sure why I disagreed. I love baseball. One of my favorite things about baseball is its quirky stories and figures who do odd things; such as Ty Cobb sharpening his spikes, Cubs outfielders hiding baseballs in the Ivy, or pitchers trying to gain an advantage by using spit on the ball. To me, these acts are fun, childlike pranks we can rejoice in and remember when we were young and playing a game (or something, I may not know for sure why I love this about baseball).

So, now I had an internal conflict. How can I love these baseball hijinks but hate Tom Brady. Wasn’t Tom Brady doing exactly what my beloved baseball players do? Do I just hate Tom Brady because, as my wife would say, “he has a face you want to slap.” I don’t think so.

After spending way too much mental energy on this topic, I decided there was a distinct difference between what a pitcher does when he spits on the ball and what Tom Brady did. When a pitcher puts a foreign substance on the ball, he does it in front of everyone. If caught, the pitcher risks immediate ejection. On the other hand, Tom Brady did not take personal risk for what he did. Brady had a lackey deflate the balls for him. Even worse, this transgression was done off the playing field and out of the sight of the referees. And the worst thing about it, if the referees would have discovered the balls were flat, which they did at half time, Tom Brady was not risking anything because he was not the one taking the risk, the ball boys were. Nothing traced back to Tom Brady. This is distinctively different from what a spit-baller risks. Tom Brady wanted to cheat, but he lacked the courage to do it himself. Brady did it in such a way that allowed him to escape personal liability.

So does the lack of accountability on the part of Brady makes what Brady did an assault on the game and what baseball players do fun trickery? I believe there is a clear distinction. Had Brady been deflating the footballs during the course of a play using a needle he had hid in his jock strap, I think I would find that fun and silly. Instead, Tom Brady’s participation in Deflate-Gate was cowardly, and he deserves his four game suspension.

Law enforcement must clarify a juvenile’s ambiguous reference to his right to have a parent present during a custodial interrogation, according to the North Carolina Court of Appeals.

The Court of Appeals held in State v. Saldierna (No. COA14-1345) (July 2015) that investigators must seek clarification when a juvenile asks to speak with his mother, even if the juvenile already waived and understood his rights. The case came to the Court of Appeals in somewhat of a first impression to discuss the future framework of an age-old problem: the custodial interrogation of a suspect pre-charge.

This should ring bells for anyone who follows the widely popular Serial podcasts. Serial investigates the circumstances behind the conviction of Adnan Syed for the murder of his ex-girlfriend in January 1999. Then 17, the state threw Syed through a lengthy interrogation and did not allow him to see his attorney or parents. Contrary to many jurisdictions in America, law enforcement did not stop interrogation even though Syed’s attorney was right outside the station demanding to see his client. In that case, law enforcement did not obtain a confession from Syed, but nonetheless charged him with the murder of his ex-girlfriend. Many consider the desperate interrogation technique and its length a sign in and of itself that law enforcement considered the evidence against him weak, at best.

A custodial interrogation of a suspect behind law enforcement’s closed doors creates a condition ripe for abuse and manipulation, especially when the suspect is not an adult. For that reason, North Carolina law requires law enforcement to afford juveniles with even more protections than an adult suspect.

In North Carolina, law enforcement must inform a juvenile of the following pre-charge, custodial interrogation rights prior to questioning: 1) that the juvenile has a right to remain silent; 2) that any statement the juvenile does make can be and may be used against the juvenile; 3) that the juvenile has a right to have a parent, guardian, or custodian present during questioning; and, 4) that the juvenile has a right to consult with an attorney and that one will be appointed for the juvenile if the juvenile is not represented and wants representation. N.C. Gen. Stat. § 7B(a)(2013); (a)(1), (2), and (4) codify the 5th Amendment rights articulated in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).

The Supreme Court of the United States held in Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371 (1994), that a “suspect must unambiguously request counsel…Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”

That initially didn’t look good for Saldierna. The suspect in the case asked to speak with his mother. It was ambiguously requested in context of his previously signed waiver, and the suspect did not make the request under the obviously presumed pretext that police discontinue questioning until she arrived. The court distinguished Saldierna’s request from previous unequivocal requests: like when the defendant requests to have a parent present during questioning or when a defendant makes the notation on the waiver form in writing.

Interestingly, though, the North Carolina Court of Appeals distinguished the right to have a parent present from the other three statutory requirements born from the Miranda doctrine. In contrast to the right to remain silent, the acknowledgement that words can be used against the defendant, and the right to an attorney, the right to have a parent present is not based in federal constitutional law. Instead, it is an additional protection the General Assembly afforded children to protect them from the inherent abuse associated with adults interrogating children.

In line with that reasoning, the Court of Appeals held that when a juvenile makes an objectively ambiguous reference to the right to have a parent present during questioning, it triggers a duty in law enforcement to clarify the meaning of that statement prior to resuming the interrogation.

The result of an infringement of pre-custodial rights is that law enforcement would not be able to use any confession made during the interrogation after the infringement. But that’s not the only reason why it’s important. In Syed’s case, an attorney present likely would have called the state on its bluff that Syed could be tried as an adult. This would have impacted the subsequent bail hearing when the judge denied bail requests, in part, because of the belief that it was a capital murder trial that the judge formed from law enforcement’s error when filling out the charging document that listed Syed as an adult.

In the Saldierna case, the Court of Appeals vacated the trial court judgment and remanded the case for a hearing wherein the trial court must grant the defendant’s motion to dismiss the confession. That’s not only a huge win for Saldierna, but also for the many juvenile defendants who law enforcement routinely question. Syed’s case, and many like his, could have looked a lot different had he been afforded the same type of protection.

An attack on King Kunta's Crown

On July 10, 2015, Giordano Cipriani filed suit against Kendrick Lamar for the infringement of Cipriani's "Blacker The Berry," photograph of a black woman breast-feeding a child. The complaint called for the court to award Cipriani damages associated with Lamar's profits he enjoyed as a result of the infringement, in addition to $150,000 for each time Top Dawg Entertainment used the photograph in media promoting the single. Check out the photograph below:

 

While the use of the image was reckless, at best, awarding a high damage amount could result in a perverse effect against the integrity of copyright law.

Federal copyright law prohibits the commercial use of another's originally authored content without the author's permission. 17 U.S.C. § 102. The law's intent is to promote the intellectual property associated with the ideas, expressions, and content authors create. There is less of an incentive to create and progress if the author cannot control its dissemination and profit from the work.

This is increasingly problematic for the reproduction of images that are easy to Google. Somewhat relatedly, check out Donald Trump's latest stock image blunder when he used an image of SS soldiers in a campaign advertisement. Esh.

Lamar needed to conduct due diligence prior to using the work should the allegations be true; however, a harsh judgment against Lamar would undermine the intent of copyright law. The use of the picture in the album artwork is undisputedly commercial. A more interesting question, though, is to what extent, if any, did Lamar profit from that infringement. I sincerely doubt too many people will base their decision to purchase the album or single (the picture is used to promote a single record off the album) on the basis of the artwork. More likely is the case that people will purchase the album once released based on Lamar's talent. The use of the art conversely provided a widespread dissemination of the work Cipriani has probably never seen.

That doesn't make it right, for sure; however, it does question the sincerity with which Cipriani brings the claims. For one, the way such occasions usually work is the author will seek an injunction to prevent further dissemination. Lamar's use of the work undoubtedly caught Cipriani's attention prior to the filing of this law suit. (Lamar released the single in February). The case will likely settle, but a harsh judgment against Lamar would allow Cipriani to profit from Lamar's publicity and popularity - publicity and popularity, by the way, Lamar obtained through his own copyrighted content.

It's so easy to take an image off Google or search engines and incorporate it into your own content. This example points out the necessity in performing due diligence and asking for permission if it's another's work. 

Social media's role in lone wolf propaganda videos for terrorist organizations finds its way to the mountains of North Carolina.

The use of social media to recruit members worldwide to ISIS, which is really SISIS, because it's the Self-proclaimed Islamic State of Iraq and Syria, has received widespread attention over the past few months.

Last Friday, the reality of ISIS propaganda hit home in North Carolina. 

The FBI arrested Justin Nojan Sullivan, 19, of Morganton, North Carolina, on suspicion of three federal crimes related to an attempt to assassinate an undisclosed person for the purpose of posting a video to recruit members to the ISIS organization. Sullivan later said he wasn't serious about planning the attack, according to Michelle Boudin with WNCN

Sullivan aroused federal suspicion when his father alerted local police after Sullivan broke down into an Islamic-inspired diatribe while in the process of burning Buddhist religious objects in his family's home. The FBI engaged an undercover agent to track Sullivan, who accompanied Sullivan to a gun show where Sullivan purchased a semi-automatic rifle in preparation for the war already here, according to the federal complaint. He then requested the FBI agent to send him a silencer using the mail service.

When the silencer arrived, The FBI arrested Sullivan when he received the package at his home. Sullivan faces serious federal charges. Conspiracy to provide material support to a designated foreign organization carries a maximum penalty of 20 years. In addition, the charge of transporting and receiving a silencer through interstate commerce with the intent to commit a felony carries a max penalty of 10 years. Lastly, the charge of receipt and possession of an unregistered silencer with an unidentified serial number carries a max penalty of 10 years as well.

This is one of many recent 'lone wolf' conspiracies the FBI rooted out in the past weeks. In each case, the plotters planned to utilize the connectedness of social media to post wretched videos in support of ISIS and in disdain for Western lifestyles and philosophies - perhaps its lost on people like Sullivan that such philosophy is precisely what drove the innovation to create these social media moguls. 

In any event, the impact of social media on the law, law enforcement, and modern life continues to evolve, now even touching the North Carolina mountains.

Look out for "import your address book," on Linkedin and similar pop-ups on other apps. A recent settlement outlines the new marketing strategy for Linkedin's data use.

Linkedin settled a lawsuit for over $13 million in a class action grounded on their alleged use of users’ email contacts it obtained from the “Add Connections” feature in its service. The high amount serves as a vindication of privacy rights yet also belies hidden dangers still existing with respect to its continued inconspicuous attempts to obtain permission to use such information.

Ross Todd reported on the story on June 12, 2015 in The Recorder found here.

Linkedin allegedly took email contacts from its users through Linkedin’s “Add Connections” feature and then sent the contacts invitations to join Linkedin without the users’ consent to contact them. The company allegedly would send the emails as if the invitation was from the user to increase the persuasive power of the invite. Linkedin, on the other hand, argued that the users agreed to allow Linkedin to send the email invite when the users agreed to the privacy policy and terms of service prior to signing up for the service.

In addition to the high monetary amount, Linkedin agreed to revamp its user permission process for the use of contact information, including its promise to implement a new screen that will display “import your address book,” if a user elects to use the service mentioned above.

Is that enough?

Linkedin will continue to comb through the data and use it for marketing purposes should users elect to import their address book. While it might seem far-fetched that too many people would agree to allow Linkedin to import an entire contact book, it’s not. Linkedin relies on the user’s flippant disregard for the fine print while using its service. No one spends the time to read thoroughly through the Terms and Conditions. No one spends the time to read thoroughly through its privacy policy. It’s probably not too much to expect users to click the permission in order to get to the next screen and begin using the connector service.

Is this a commonly used strategy?

Yes. Linkedin is not the only one. Many apps will have the same pop-up screen that will display similar Terms of Service at the similarly substantial risk to the privacy of your contacts. We all quickly agree without realizing to what we actually agreed. Make sure it’s a choice and use caution when signing up for services because it can possibly grant the company permission to use a broad swath of your data for marketing purposes with little recourse available in defense.

Bitcoin a haven for dark online market...connecting worldwide transfers to fund the drug trade, terrorism.

1 in 7 responders to a survey reported that they purchased illegal drugs online. That seems like an incredibly large amount considering the logistics behind it all - that is until users figured out how to capitalize on Bitcoin. The Justice Department cracked down on Bitcoin users who were teaching ISIL members how to use Bitcoin to transfer money without legal barriers. Fusion has more on the report at the following link: http://fusion.net/story/149244/teen-who-tried-to-give-isis-bitcoin-advice-pleads-guilty-to-supporting-terror/