People apparently still don’t realize how pervasive social media use is, and why there are certain things that are better left unsaid (if not offline). In this case, chalk one up for the good guys: Continue Reading
Kentucky attorney Scott Townsend recently blogged about why it’s important for entrepreneurs to establish the proper form of business entity when they start up a new business or venture. Chief among his reasons were to create an identity, and start building credibility for the start-up, and to protect the founders from from personal liability related to the business. Although I don’t disagree with Scott’s reasoning, I don’t believe that neglecting or failing to establish a business entity remains as a significant problem in today’s business law climate. That’s in large part because of the Internet. Forgetting about Legal Zoom, Continue Reading
The phenomenon known as “revenge porn” is a growing concern for many people, so much so that it’s starting to catch the attention of state legislators, who want to enact criminal statutes to punish its perpetrators. But although it seems like a step in the right direction, there are better ways to combat revenge porn than passing criminal laws.
It’s been 20 years since the American Psychiatric Association published a new edition of its Diagnostic and Statistical Manual on Mental Disorders (DSM). Since 1952, psychologists and psychiatrists have been relying on the DSM to consistently and systematically diagnose and classify mental illness and disease. During the six decades since the DSM was first published, it has evolved from a modest 130-page booklet into a treatise with almost 1000 pages. Also during that time, the number of mental disorders identified in the DSM has tripled from 106 to roughly 300. But although the DSM is revered as the bible of the mental health field, it has not been without controversy. For example, in the DSM-I homosexuality was listed as a sociopathic “personality disturbance.” Continue Reading
A new law just took effect in Washington state, which prohibits employers from asking workers for their user names and passwords to their personal social media accounts. The law also prohibits employers from forcing workers to add them as friends, and bans “shoulder surfing,” Continue Reading
Following up on my recent commentary on the BioGenesis scandal and the ensuing fallout with Ryan Braun and Alex Rodriguez, I had the chance to speak with Colin O’Keefe of LXBN on the matter. In the brief interview, I discuss why the MLB’s tactics in this are a bit of a circus and share some quick thoughts on Rodriguez’s looming legal fight.
The Fifth Circuit Court of Appeals has become the first federal appeals court to hold that the government does not need a warrant to obtain cell phone location data. To get to that conclusion, the court had to find that individuals have no reasonable expectation of privacy in their location data, which includes the date, time, and GPS location of a phone call. The court discounted users’ expectation of privacy in that data by finding that it merely constitutes a business record, which belongs to the wireless communications provider, not the subscriber. The court therefore reasoned that the government is entitled to get that information, and that they are not even required to provide notice to the subscriber.
Although this ruling could be seen as a huge setback for our civil liberties, at this time, it only has a direct impact on the Fifth Circuit, which includes Texas, Louisiana, and Mississippi. In other words, the Fifth Circuit’s ruling isn’t binding on the other circuit courts of appeal. The issue is not likely to be decided by the U.S. Supreme Court, however, until it appears that there is a “circuit split,” which means that the various circuit courts have arrived at different conclusions on the same legal issue.
Given the sensitivity of these facts, law enforcement agents should have to demonstrate to a judge that they have a good reason to believe that they will turn up evidence of wrongdoing before gaining access to information that can paint a detailed picture of where a person has been over time.
Civil liberties groups like the ACLU and EFF (Electronic Frontier Foundation) have already been hard at work, lobbying Congress to enact laws to protect us from the government’s warrantless snooping of our uses of modern technology. “The federal statute the government uses to obtain cell phone location records was written way back in 1986[,] and hasn’t been meaningfully updated since,” wrote ACLU Staff Attorney Catherine Crump, in an ACLU blog post. “But the mere fact that some other branch of government could provide a remedy is no reason for courts to take a pass on protecting Americans’ privacy.”
It should come as no surprise that you can become bound by the terms of an agreement you entered into electronically—i.e. without physically signing any contract or document. But a recent New York state court decision has opened the door to email contracts being enforced even when the contract is within the statute of frauds.
Given the widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of CPLR 2104 simply because [email] cannot be physically signed in a traditional fashion.
–Justice Sandra L. Sgroi
It seems that justice is taking on an entirely different meaning in the world of Major League Baseball. Admidst all of the news surrounding this week’s royal baby arrival, the week’s-old Zimmerman verdict, the disgraceful Rolling Stone magazine cover, and breaking news of a second episode of Weinergate, the news of Ryan Braun’s suspension for violating MLB’s Joint Drug Prevention & Treatment Program has been dominating headlines for a third day Although talk of the Biogeneis PED scandal has been brewing for months, on Monday afternoon, MLB announced that the former National League MVP was being suspended for the remainder of the 2013 baseball season. In case you’re counting, the rest of the baseball season amounts to a 65-game suspension. But the Joint Drug Policy doesn’t even allow for a suspension of 65 games. It’s pretty clear, actually: 50-game suspension for a first violation, 100 games for a second, and a lifetime ban for a third violation. So how did Braun get 65 games?
The answer—Braun’s attorney and MLB officials worked out a deal. MLB showed Braun the evidence it had against him, and then Braun’s attorney argued that most, if not all of that evidence was either hearsay, or was otherwise inadmissible for whatever reason. Regardless of whether the evidence was admissible, based on media speculation and reports, it probably had the potential to be extremely damaging to Braun’s reputation, which could have a huge impact on his marketability as a professional athlete. Rather than allow MLB to leak that damaging evidence to the media, Braun struck a deal with the League. You can bet that that deal gave Braun a significant amount of control over the form and substance of MLB’s announcement of the suspension, and significantly limit the evidence that gets released to the press.
These types of deals happen thousands of times every day in criminal courts and district attorneys’ and U.S. Attorneys’ offices nationwide. Prosecutors and defense attorneys go back and forth about how evidence won’t be admitted because the cops didn’t have a valid warrant, what witnesses will testify about—if they can be found, and how the judge is likely to sentence the defendant, if found guilty. Those issues don’t typically arise during a professional sports league’s investigation of player drug use, mainly because their rules eliminate the need for them, by creating strict liability for violations.
In criminal law, the prosecution almost always has to prove that you intended to commit whatever it is you’re charged with. With strict liability, it doesn’t matter whether you intended to do something or not; if you test positive for a banned substance, you’re guilty. In fact, with strict liability, it doesn’t even matter whether you knew about the violation—e.g., if somebody slipped something in your drink, and it was a banned substance, it’s your fault. You’re guilty as charged.
The problem for Major League Baseball is that in spite of all of the evidence it obtained from Tony Bosch and the Biogenesis investigation, the League doesn’t have any positive drug tests. Without positive drug tests you can’t have a violation of the drug policy. If the League had suspended players based solely on the hearsay evidence obtained from a quack, out-of-work fish-oil salesman, the suspensions would’ve been reversed on appeal (just like Ryan Braun’s 2012 drug test, and 50-game suspension). The League would’ve had a public relations nightmare on its hands. On the other hand, doing nothing, in spite of the volumes of circumstantial evidence they were sitting on would create an entirely different public relations nightmare for the League.
In many ways, Braun’s suspension is a win–win. The League got retribution, and Braun got to serve his suspension on his own terms, when his team isn’t even a playoff contender. As NBC Sports Hardball Talk columnist Craig Calcaterra (@craigcalcaterra) noted yesterday, several other players implicated in the Biogenesis Scandal are heading into tight playoff races. Braun’s plea bargain may open the door to suspending other players, thereby slamming the door on their teams’ playoff hopes. But regardless of the players connected with Biogenesis, this outcome has the potential to forever change the way professional sports leagues regulate and discipline players.
Photo Credit: Martyna Borkowski © Rubenstein