Yesterday New Jersey Superior Court Judge David Ironson refused to dismiss an indictment charging a woman with identity theft for allegedly adversely impersonating her ex-boyfriend on Facebook. Dana Thornton, 41, faces up to 18 months in prison if convicted of using Facebook to impersonate Michael Lasalandra, her ex-boyfriend who is a Parsippany narcotics detective. While Thornton’s attorney, Richard Roberts maintains that New Jersey’s identity theft should not apply because the law does not include “electronic communications,” it is unclear whether Thornton will appeal.

According to the New Jersey statute, a defendant is guilty of identity theft if she “impersonates another or assumes a false identity and does an act in such assumed character or false identity for the purpose of obtaining a benefit for himself or another or to injure or defraud another.” This law does not specify its pertinence to electronic communications, nor does it specify its pertinence to any other form of communication. Historically, this statute was used to convict people who impersonate another for financial gain. However, if the allegations against Thornton are true, it is clear that she assumed her ex-boyfriend’s identity for the purpose of injuring his reputation as a police officer. According to Ben Horowitz’s article, Judge Rules Case of Belleville Woman’s Fake Facebook Page Can Proceed, Thornton, while impersonating Detective Lasalandra on Facebook, “admitted using drugs, going to prostitutes and having herpes.” Furthermore, Judge Ironson affirmed that Thornton’s statements were harmful to his “professional reputation.” A pre-trial conference is scheduled for December 7.

Please read the following articles to learn more about this case:

• Woman to Be Prosecuted for Identity Theft After Impersonating Boyfriend on Facebook By The Associated Press
• ‘Scum With a Gun’: Facebook Fraud Case Heats Up New Jersey By Gregory J. Krieg
• Facebook Case Tests Identity Theft Laws By Matt Liebowitz
• NJ Woman Fights Charge Over Fake Facebook Page By The Associated Press
• Fake Facebook Page Leads to ID Theft Charge By Tina Susman
• Morris County ID Theft Charge at Issue in Court By Peggy Wright
• N.J. Facebook ID Theft Case Could Impact Other States By David Cohen

To learn more about online identity theft, please read my following articles

• California Criminalizes Online Impersonation (E-Personation)
• Representative Burrell Protects Children From Cyberbullys
• Massachusetts Protects Kids From Bullies

Last week the Center for Democracy and Technology (CDT) made a public appeal to gain support for their campaign to reform the Electronic Communications Privacy Act’s (ECPA) outdated standards. The ECPA specifies standards for government surveillance of mobile and Internet communications. The CDT is a non-partisan, non-profit public interest organization working to protect privacy and free speech over the Internet, mobile networks and other new communications media. The ECPA was enacted on October 21, 1986, and while technology has advanced at an astonishing pace, the statute’s privacy rules have never been updated, resulting in diminished Constitutional rights when it comes to protections against government access to personal digital data. According to the CDT, the current standards do not require the government to obtain a warrant to track individuals’ movements using their mobile phones or to access many emails and documents stored on the Internet.

To advance their efforts they have created a petition to Congress to reform ECPA and invite interested parties to sign it.

For more information on digital privacy, please read the CDT’s extremely informative article entitled, Security and Surveillance, which provides an excellent synopsis of the ECPA’s history, technological changes since the ECPA was passed, Digital Due Process Coalition’s principles to guide ECPA reform and key resources supporting reform.

This month the Supreme Court of Canada issued a ruling that protects Website owners who provide hyperlinks to allegedly defamatory content from liability. The facts of the case are as follows: Wayne Crookes, a British Columbian businessman and Green Party supporter sued various websites (including Google, Wikipedia and P2Pnet.net), companies and people, alleging defamation based on their publication of a hyperlink containing defamatory information. While many of those defendants were dismissed because of jurisdictional issues, the case against P2Pnet.net carried on. Then in 2008, a district court ruled that merely linking to defamatory content is not defamatory. Crookes appealed. In 2009, an appeals court upheld the district court. Crookes then appealed to the Canadian Supreme Court who agreed to hear the case. Again, the Court found that providing a hyperlink to defamatory content is not, per se, defamatory. Rather, the majority of the court found that only links that repeat defamatory content could fulfill defamation’s publication requirement.

Please read the following well written and concise articles to learn more about the Canada’s Supreme Court decision regarding this case.

• Supreme Court of Canada Stands Up for the Internet By Michael Geist
• Canadian Supreme Court Says No Liability For Linking To Defamatory Content By Mike Masnick

In March Governor Chris Christie vetoed a bill that would have made New Jersey the first state in the country to allow online gambling within its borders. He vetoed the law for two reasons. First, he questioned the law’s constitutionality, reasoning that gambling in New Jersey is restricted to Atlantic City. Second, he feared an explosion of betting parlors throughout the state. However, New Jersey State Senator Raymond Lesniak says he will introduce online gambling legislation in November that will address Christie’s concerns and allow New Jersey to profit from the billions of dollars lost to offshore operators. According to Miles Weiss’s article, Trump Teams with Avenue’s Lasry to Pursue Online Gaming Venture, “The $6 billion that Americans wager each year through offshore sites is tempting state authorities who face budget deficits, as well as casino companies looking for new sources of growth.”

According to an October 14 regulatory filing, casino operator Trump Entertainment Resorts and real estate financier, Lasry’s Avenue Capital Group are optimistic, and have formed an Internet gaming partnership in the event U.S. regulators permit such businesses to operate. In his article, Weiss quotes Ivanka Trump, Executive Vice President of Development and Acquisitions for the Trump Organization, “[Online gambling] would be a tremendous source of taxable revenue for states or the federal government and an enormous generator of jobs.” Additionally, Wayne Parry quotes Robert Griffin, Trump Entertainment Resorts CEO, in his article Donald Trump: US Should Legalize Internet Betting, “It makes sense for the state of New Jersey to regulate this activity, enforce strict standards to ensure games are fair and safe, and in turn be able to collect tax revenue instead of having those dollars and the jobs they support leaving New Jersey and going illegally overseas.” However, history says that New Jerseyites shouldn’t start counting that tax revenue just yet, as many law makers don’t believe the benefits are worth the risks.

Currently, 40 states and the District of Columbia have shield laws. Shield laws are important because they safeguard the public’s right to know by protecting the rights of journalists and their use of confidential sources. However the states’ protection doesn’t apply when federal law is at issue. Press-citizen.com’s article entitled, Our View – Time for Congress To Pass a Federal Shield Law This Year, cites 2 significant examples: “And that means many important national stories — like that of the disgraceful treatment of wounded soldiers at the Army’s Walter Reed hospital or that of the abuse of prisoners at Iraq’s Abu Ghraib prison — leave reporters and editors at the mercy of prosecutors and judges who want the names of sources.”

Last month, U.S. Congressman Mike Pence reintroduced H.R., 2932, the Free Flow of Information Act of 2011. Also known as the Federal Media Shield Bill, this bill would establish limited federal protection from prosecutors and courts attempting to compel “covered” journalists to disclose confidential sources. The bill, authored by Pence six years ago, passed in the House of Representatives twice in 2007 and 2009; then died on the Senate floor. In 2009, while in the Senate, Barack Obama became the first U.S. president to endorse a federal shield law.

Opponents of the shield law argue that it will damage the federal government’s ability to protect national security. However, the Free Flow of Information Act of 2011 provides exceptions to the shield law for national security, the prevention of death or bodily harm, and information that is deemed essential in a criminal case or critical in a civil suit. Others argue that shield law’s exceptions negate the substance of the bill. Additionally they argue that the shield law is too weak, as evidenced by its narrow definition of “covered” journalists. The bill defines a “covered” journalist as someone who regularly reports and writes for a substantial portion of the person’s livelihood or for substantial financial gain. Thus, excluding a majority of bloggers, whom may be in a better position to report, but do not write for financial gain. Still, the Free Flow of Information Act of 2011 is better than the absence of a federal shield law. In a speech to the National Conference of Editorial Writers Convention, Pence asserted that “Compelling reporters to testify, and in particular, compelling them to reveal the identity of their confidential sources, is a detriment to the public interest. Without the promise of confidentiality, many important conduits of information about our government will be shut down.”

Please read Jason M. Shepard’s article, Bloggers after the Shield: Defining Journalism in Privilege Law, to learn more about a federal shield law and its applicability to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.

It is imperative that employers understand the legal implications of their use and management of social media in the workplace. Creating and enforcing a comprehensive social media policy is one way to limit employers’ liability. In addition, responsible employers must stay abreast of the most current information as this emerging area of law is in flux.

This week a pertinent article by the Associated Press entitled, Firings, Discipline over Facebook Posts Lead to Surge in Legal Disputes summarizes 4 of the 14 investigations that the National Labor Relations Board (NLRB) released in a lengthy report last month. In that article, Michael Eastman, Labor Law Policy Director at the U.S. Chamber of Commerce describes this as a time when “Employers are struggling to figure out what the right policies are and what they should do when these cases arise.” The Associated Presses article provides guidance to employers.

Please read my other articles about social media and the workplace.

• Sensible Social Media Policy Guidelines
• NLRB Update: 7 Articles Employers MUST Read
• Social(Media)izing at Work
• Companies Need Social Media Policies
• EMT Facebook Fiasco Settled
• Significant 2010 Social Media Law Cases
• Employers Beware: Social Media Ignorance Can Harm You
• Social Media Effects Protected Activity

Last month a Missouri judge issued a preliminary injunction against the state, suspending the Amy Hestir Student Protection Act, because of its potential “chilling effect” on free-speech. The Act prohibited teachers from communicating privately with students over social media sites like Facebook. Shortly thereafter Governor Jay Nixon called upon lawmakers to repeal the ban in a special legislative session. Today Missouri lawmakers voted overwhelmingly to repeal the ban. However, according to David Lieb’s article, Missouri Lawmakers Repeal Teacher-Facebook Law, “the repeal went a step further by also requiring public school districts to adopt policies by March 1 on employee-student communications, including ‘the use of electronic media,’ in order ‘to prevent improper communications.’” The repeal will take effect when Governor Nixon signs it.

Please read my other articles about Amy Hestir Student Protection Act:

• UPDATE: Amy Hestir Student Protection Act: Protecting Students or Stifling Teachers?
• Amy Hestir Student Protection Act: Protecting Students or Stifling Teachers?

“Google Mistrials” refers to cases disrupted by jurors’ independent internet investigations. Specifically searches for lawyers, victims, witnesses, defendants, news articles, blogs and evidence that had been specifically excluded by the judge can lead to a “Google Mistrial.” While this is not necessarily a new phenomenon, over the past few years the immediacy and accessibility of smart phones has increased such occurrences and wreaked havoc on trials around the country.

Now a Manhattan federal judge, known for her series 2004 of opinions that established e-discovery rules, is doing something about it. According to Colin Moynihan’s article, Judge Considers Pledge for Jurors on Internet Use, this month, during a hearing, U.S. District Judge Shira Scheindlin said, “I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name.” Attempting to avoid this in her court room, Judge Scheindlin plans to write a pledge that jurors might be required to sign. According to Moynihan’s article jurors who sign the pledge will be subject to perjury charges if they conduct independent internet investigations during the trial.

Some question why a written pledge would be successful when oral instructions have failed. Instructing jurors not to use any source outside the court room to assist in deciding any question of fact is boilerplate. In his 2009 article, As Jurors Turn to Web, Mistrials Are Popping Up, John Schwartz wrote, “Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches.” Still, the number of Google Mistrials continues to grow. Apparently, Judge Scheindlin believes that jurors will be less likely to conduct independent online investigations if they affirmatively agree not to in writing. Time will tell if other judges follow suit.

To learn about actual examples of Google Mistrials, please read the following articles:

• Michael Jackson Doctor Trial Judge Warns Jurors About Discussing Case By Nick Allen
• Mistrial Declared in Mahwah Pastor’s Sex-Assault Case By Kibret Markos
• Juror’s Online Research Prompts Mistrial and a Criminal Probe By Brian Grow
• Dangers of the Online Juror By John G. Browning
• Courts In Colorado, Maryland, New Jersey, Florida Declare Mistrials After Juror Internet Research By Eric P. Robinson
• As Jurors Turn to Web, Mistrials Are Popping Up By John Schwartz
• Jurors’ Smartphones Upset the Scales of Justice By John Schwartz
• Some Thoughts on Jurors Doing Internet Research – Keep the Process Clamped Down By Evan Brown
• California Wants To Put Jurors In Jail For Tweeting About Trial By www.techdirt.com

Social media has revolutionized the way employers investigate prospective employees and manage current employees. However, employers who reap the benefits of social media also expose themselves to a variety of legal consequences. According to hr.blr.com’s article, Create an Effective Social Media Policy ASAP, “One of the greatest dangers of misusing such media is a data breach—of personal health or other sensitive information, or of the employer’s proprietary information.” Employers must protect themselves from liability by creating and enforcing a comprehensive social media policy. Below are some practical guidelines published in hr.blr.com’s article and provided by credit rater Experian and the law firm Sheppard Mullin Richter & Hampton.

• On the team that creates the policy, include a couple of the employees who are enthusiastic users of social media. They may know more about the advantages, and the pitfalls, than your legal and HR people do.
• Don’t try to prohibit employees from complaining about conditions at work or their compensation or benefits. Postings like that may make top management unhappy, but such employee activities are protected conduct, regardless of the medium used.
• Emphasize your organizational procedures for making such complaints internally, and urge that they be used.
• Stress that postings that reflect a lack of professionalism or ethics—or worse, that imply criminal misconduct—can do irreparable damage to the organization’s reputation.
• Clearly communicate in the policy what the organization’s trade secrets—customer lists, patented processes, and the like—are. If you don’t identify them as such, employees may not know they’re proprietary information.
• Update your e-discovery policies and procedures to ensure they include social media activity.
• Consider installing content filtering to restrict or limit access to social media websites.
• Ensure that anti-virus and anti-malware controls are updated daily.
• Train all employees on the policy, and discipline anyone who violates it.
• Create a policy review schedule so that the policy will be revised to accommodate new social network or technology developments. They are sure to come down the pike, as the media seem to change every day.

To learn more about creating a social media policy, please read my following articles:

• Social(Media)izing at Work
• Companies Need Social Media Policies
• Social Media Effects Protected Activity
• Teachers’ Union Claims School District Social Media Policy Violates First Amendment
• Businesses Benefit From Social Media Policies
• Employers Beware: Social Media Ignorance Can Harm You
• AMA’s New Social Media Policy Falls Short
• EMT Fired Over Facebook Post
• Social Media Workplace Pitfalls

Cybercrime is a worldwide and potentially devastating phenomenon. According to a report released by Symantec, the makers of Norton anti-virus and anti-spyware software, 61% of adults thought they were more likely to become a victim of offline, rather than online crime, in the next twelve months. However, only 15% of respondents surveyed suffered a crime in the physical world, while 44% of respondents surveyed suffered a cybercrime. Globally, the most common cybercrime has been and remains computer viruses or malware (54%), followed by online scams (11%), phishing (10%), and smishing (10%) (i.e. phishing by SMS). While it is important to note that this report was published by a company that has an interest in its outcome, the information is staggering.

The study, which was carried out in 24 countries and included 19,636 interviews with adults and children, reveals the vast reach of cybercrime and its massive cost to consumers. According to the report 14 people fall victim to cybercrime every second, costing the global economy $50 billion more annually than the marijuana, cocaine and heroin global black markets combined. The report also breaks down the cost of cybercrime, in terms of money and time lost. Annually, cybercrime is responsible for $114 billion of lost money and $274 billion in lost time.

Still, many people are unprotected. While 87% of adults say it’s important to use security software to protect their computers 100% of the time, 41% of adults surveyed had either outdated or no security software to protect themselves from cybercriminals. Moreover, as cybercrime occurs across jurisdictions, cultures, ethnic groups, social classes, etc., it is inherently difficult for law enforcement to trace. Law enforcement is further challenged by the absence of a central policing system. Thus, for now, updated anti-virus and anti-spyware software and staying abreast of the most recent cyberthreats is the best way to avoid becoming a victim of cybercrime.

To learn more about Norton’s Cybercrime Report, please read the following articles:

• Cyber Crime Costs Rival Those of Illegal Drug Trafficking By Tim Greene
• One Million Victims of Cybercrime a Day, Report Says By Ben Rooney
• Cybercrime – Estimated to Gain $388bn per Year By Sonya Vasileva
• Study: Global cybercrime costs more than illegal drugs By Paul Eng
• The Rise of Cybercrime By Sean Kilcarr