National Security Letters: Help!


National Security Letters: Help!
by Susan Basko, esq.

Someone delivers a document of many pages to your home or office.  It does not look like anything you've ever seen before.  It says you or someone else is under investigation by some Department of the U.S. government and that you must cooperate.  It also says that you are ordered not to tell anyone about the letter or its contents.  You are alarmed and afraid, likely terrified.  Congratulations, the government has just treated you to a National Security Letter.  Here's a few things to know:

1) You can always show the letter to a lawyer.  The letter says you cannot disclose it to anyone, but that does not include that you cannot show it to a lawyer.   In fact, you should show it to a lawyer so they can help you understand what it is and what it means. The lawyer is also under the gag or nondisclosure order and cannot reveal the letter to the press or public.  It is good to have someone else know about the letter, and legally, you cannot tell anyone, not even  your spouse, that you received the letter, or anything about its contents.  So, show it to a lawyer.   

2) National Security Letters include a gag order, also known as a nondisclosure order.  The recipient is  supposed to tell no one about the letter or about what is being investigated.  They are not even supposed to tell that they got a Letter.  The National Security Letter may go into rather extreme detail, for many pages, listing off what it means by "don't tell anyone."   

3) A National Security Letter may be issued to a person or to a company.  The most likely sort of companies are those that deal in internet communications or finances.  Larger companies are more likely to have a lawyer on staff and to be familiar with the Letters.  Individuals or small companies that receive a National Security Letter are more likely to be baffled and frightened by the letters.  

4) A Judge in the Federal 9th Circuit (California, Washington, Idaho, Montana, Alaska, Nevada, Arizona) has ruled the gag orders unconstitutional, but has given the government time to gets its act in order.  We'll see what happens.  As of now, recipients of a National Security Letter must comply with the gag order.

5) National Security Letters can be used by many federal government agencies.  In some instances, the main purpose in using a letter seems to be the gag order, rather than the investigatory portion. In other words, the letters appear to be used to shut people up.   Sometimes this may be a valid purpose.  It helps, in assessing a letter, to judge whether the purpose appears to be more investigatory or more to keep the person from going to the media or to the public about a particular topic.

6)  A National Security Letter is supposedly issued for purposes of investigating terrorism or topics of concern to national security.  "National security" has become a broadly-used term that can mean almost anything involving the public or the government.  The governmental agencies are now issuing a huge number of National Security Letters.  That's a lot of intrusion into peoples' lives with no judicial oversight. 

7) If a National Security Letter requires its recipient to hand over information, that information is supposed to be non-content.  For example, if the letter is demanding email information, it is only supposed to be asking for who was contacted and when, not the contents of the emails.  Content-based materials are supposed to require a subpoena or warrant.

8) To send a National Security Letter, the government agency does not need probable cause or to go before a Judge, as is the case with a subpoena or warrant. This makes National Security Letters much more of a fishing expedition and opens them wide for abusive use.  The letters are seen as stepping stones to creating probable cause.   

9) National Security Letters contain a gag order that may be the main purpose of the letter.  If you worked for a government agency and were investigating something sensitive, and if you had an easy tool where you could order everyone involved to keep quiet, would you use it?   Likely so.

10) Tens of thousands of National Security Letters have been issued each year since they were instituted. The Letters are considered by many to be abuses of Constitutional rights.

11) A National Security Letter has 4 main parts.  First, it will tell which agency is investigating.  Many U.S. agencies have been given authority to send National Security Letters. Second, the Letter will tell who or what is being investigated. It may be the recipient, in which case the main purpose is likely to gag the person from speaking privately, publicly, or to the media about the topic or about the letter.  Or the letter may state that someone else is under investigation and may demand that the recipient hand over the requested information about that person, company, or organization.   Third, the letter will state what materials, if any, must be handed over.  Fourth, there will be a detailed gag or nondisclosure order.  If this is highly detailed, then the recipient may assume the main purpose of the letter is to force the recipient to keep quiet because an investigation is ongoing.  

12) A National Security Letter has the force of law.  For example, if the recipient talks to people or to the media about the letter, the recipient can be charged with a crime.  Likewise, if the recipient fails to comply with the demand for information, the recipient might be jailed.  This is very important to know.   

13 ) If you plan to violate the demands of the Letter, discuss first with a lawyer.  Several business owners have closed down their services rather than compromise the future privacy of their clients.   One such business owner is Ladar Levinson of Lavabit, an encrypted email service.  It is believed that Lavabit received either a National Security Letter or a secret subpoena.  Rather than comply, he closed the service.  He was immediately threatened with jail, but it is dubious the government could force him to keep running his business so they could use it to spy on people.   You can read Mr. Levinson's letter about this HERE, or below:

My Fellow Users,
I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.
What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.
This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.
Sincerely,
Ladar Levison
Owner and Operator, Lavabit LLC
Defending the constitution is expensive! Help us by donating to the Lavabit Legal Defense Fund here.


Can a Songwriter Prevent a Cover Song?


Can  a Songwriter Prevent  a Cover Song?
by Susan Basko, esq

This question was sent to me today by email: 

Hey Sue,

I am a student and in my Entertainment Law Class I asked the question was it possible for a songwriter who has recorded a song to block it from be recorded again.

Example - Taylor Swift writes and records a song, then a year later a heavy metal band wants to record it but she doesn't want her song to be associated with that type of music, can she block it?

I read your article, http://suebasko.blogspot.com/2013/09/recording-cover-song-most-basic-things.html, and it states like we have learned in class that anyone can record a song after it has been recorded.

Is there a case in history where someone has gotten around the compulsory license and was able to block someone from recording the song...if not...is it possible?

Thank you so much for any information you can give me.

THIS IS MY REPLY:

First, the compulsory license laws apply only to songs that are part of the U.S. Copyright system (either registered or subject to it) and only applies to recordings produced and sold in the US.  So if you will note, songs that are kept out of the US system are not subject to it.  For example, if someone in Australia writes a song and does not register it with the US Copyright office, and neither does their publisher, then they are not in on this system.

Second, the compulsory license does not include songs that are part of a musical or opera.  That is why there are so few covers of songs that might otherwise be hugely successful, such as songs from Les Miserable, Oliver, the Romeo and Juliet movies, songs from Wicked or Hair , and on and on.  To record these, the artists wishing to cover them would be required to deal directly with the publisher.  The publisher can say no and if they say yes, they can set any terms and any price.

Third, the compulsory license allows a cover, or copy of the song to be made. It does not allow a derivative work.  So, if the heavy metal band is creating a cover that substantially changes the tone of the song, Taylor Swift might sue.  There HAVE been lawsuits like this, as I recall.  To actually be a cover or copy, the lyrics cannot be changed, the arrangement cannot be changed, etc.  For the most part, disrespect or changing the meaning will come from changing the lyrics, and that is not allowed.

For the most part, most songwriters and their publishers would look foolish if  they are suing for copyright infringement because someone is making a metal or reggae or blues version, or changing the tempo.  And keep in mind, the publisher and songwriter will be making money for each copy that is made.  It is hard to argue with money.

Fourth, synch licenses are not compulsory.  So, say a heavy metal band makes a cover of the Taylor Swift song and it does not change the lyrics or arrangement -- so it is a legal cover.  But say they want to make a music video or appear on a television show where they perform or use their recording of the song, but they want to be vulgar or violent in some way in their visual interpretation of the song.  They NEED a synchronization license to use the song in any way.  The publisher can deny the synch license.  Smart publishers carefully check out the artists that want a synch license and look at what they plan to do with the song. look at how they present themselves, look at their past work.  The contract will also specify what can and cannot be in the synch, such as violence, porn, drugs, guns, etc.  A visual representation is where abusive connotations to a song are most likely to be made, and this can be avoided by not giving a synch license.

Cyberstalking: Illinois


Cyberstalking and Other Internet Crimes: Illinois
by Susan Basko, esq.

Cyberstalking and harassment are prohibited by Federal Crime statutes, but most states also have laws.  This is about the Illinois laws.  Illinois criminal laws will apply if the victim is in Illinois, or if the perpetrator is in Illinois, and may apply in other circumstances.   This is not a complete listing, at all. It simply lists some common transgressions made by cyberstalkers and internet harassers.

Good Illinois Protection:  If you are in Illinois and anyone posts your name or photo on a creepy website, you are in luck -- there is a criminal law against this.   If you are in Illinois, and anyone secretly records a phone call with you, they are committing a crime.  If you are in Illinois, and anyone is repeatedly contacting you on the internet to cause you distress, there is a criminal law to protect you.

If you are victim, go to the links here and make a copy of the law.  When you go to make your police report, politely hand the officer a copy of the laws.  Internet crime is new territory to many police and prosecutors.  Persist.  Internet stalkers and bad websites tend to harm many people, so you will be helping many others, as well as yourself.

RECORDING A PHONE CALL: It is illegal to record phone call without the consent of all parties.  Example:  I am in Illinois.  If you call me and record the call without my permission, you are violating the Illinois Eavesdropping Act.  The first offense is a Class 4 Felony.  The second or further offense is a Class 3 felony.  If you were to place such a recording online, or transcribe it, or otherwise make it available, each time you do, it is an additional felony count.

RECORDING AN IN-PERSON CONVERSATION:  It is illegal in Illinois to record any conversation without permission of all parties. This includes using a video camera or cellphone camera to record a conversation.  This also violates the Illinois Eavesdropping Act and is a felony.

MAKING OR POSTING OBSCENE PICTURES:  If you use someone's photo to create an obscene picture or video, this is a violation of the Illinois Obscenity Act and is  a Class A Misdemeanor or a Felony.  If you put such a picture or video online, you are distributing obscenity and distributing obscenity to minors.  These are very serious crimes under the Illinois Obscenity Act that can land you on the Sex Offender registry.  Illinois has a very broad and conservative definition of "obscenity."

REVENGE PORN, POSTING NAME OR CONTACT INFO OR PHOTO ONTO A WEBSITE THAT CONTAINS ANY OBSCENITY:  If a person posts an image of a person, or posts any identifying information, such as name, address, telephone number, or email address,  about any person on a pornographic site, without the person's permission, that perpetrator is guilty of a felony under 720 ILCS 5/11-23.  If the victim is under 17, he or she cannot give permission and the act is a felony.  A site is considered pornographic if it contains any obscene material as defined under Illinois law, which is very broad and conservative.  These crimes can land a person in prison and on the Illinois Sex Offender Registry.  Also, see the Cyberstalking Law below - creating a website that harasses another person is against the Illinois Cyberstalking law.

So what does this mean? It means that if anyone posts your name or other information or any photo of you on a site that contains any obscene photos, the person is committing a Class 3 or Class 4 felony.  Even if the site is held offshore, and even if the person is in a different location, if you are in or from Illinois, you can and should report this crime.

Example 1: Suppose a site is used by a group to make fun of people they don't like.  Suppose the site has photos on it that show such things that are obscene, such as photos of an anus or of sexual parts.  Anyone that posts any other person's name, contact information or photo on that site without permission has committed a felony. If the victim is under 17, there is no permission possible.  Depending on the situation, this crime may also fall under Cyberstalking, Child pornography, creating obscene materials, distributing obscene material to minors, etc.  MOST LIKELY, the person running or owning the site is also committing a violating of the Illinois Cyberstalking law (below) provision against maintaining a website that harasses any person.

Example 2:  Someone posts your name and writes about you on a website that contains graphic photos and you are under 17 or you are older than 17 and did not give your permission. This is a felony.  If the person is convicted, they can be sentenced to prison and be forced to register on the Sex Offender registry.

Example 3: Someone posts a photo of you on a website that contains graphic photos. This is a felony if you are under 17 or if you are over 17 and did not give permission.  If the person is convicted, they can be sentenced to prison and forced to register on the Sex Offender registry.

CYBERSTALKING: Cyberstalking is when on 2 or more occasions, a person makes unwanted communication to or about another person online, on their own or through a third party, in a way that they know or should know places the victim in fear for their safety or the safety of someone else, or that causes the victim distress.  If the victim is in Illinois, or if the perpetrator is in Illinois, the crime falls under the Illinois law.

Examples 1 - 6: Posting 2 or more taunts at a person via Twitter or Facebook, sending taunting or threatening emails, sending 2 or more @ tweets at a person who has you blocked, posting 2 or more nasty comments at or about a person, posting 2 or more nasty photos or videos of or about a person, having any third party doing any of this for you.

Example 7: Posting 2 or more threatening tweets, messages, or comments saying such things as that you will post a person's name or photo on an undesirable website.

Example 8: Creating a website that harasses another person.

ILLINOIS CYBERSTALKING LAW OF 2010: 
You can download a handout on the Illinois Stalking and Cyberstalking laws, prepared by the research staff of Illinois Attorney General Lisa Madigan HERE.

 (720 ILCS 5/12-7.5) 
    Sec. 12-7.5. Cyberstalking. 

    (a) A person commits cyberstalking when he or she engages in a course of conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:
        (1) fear for his or her safety or the safety of a
    
third person; or
        (2) suffer other emotional distress.
    (a-3) A person commits cyberstalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions, harasses another person through the use of electronic communication and: 
        (1) at any time transmits a threat of immediate or
    
future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person; or
        (2) places that person or a family member of that
    
person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or
        (3) at any time knowingly solicits the commission of
    
an act by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (a-5) A person commits cyberstalking when he or she, knowingly and without lawful justification, creates and maintains an Internet website or webpage which is accessible to one or more third parties for a period of at least 24 hours, and which contains statements harassing another person and:
        (1) which communicates a threat of immediate or
    
future bodily harm, sexual assault, confinement, or restraint, where the threat is directed towards that person or a family member of that person, or
        (2) which places that person or a family member of
    
that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint, or
        (3) which knowingly solicits the commission of an act
    
by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (b) Sentence. Cyberstalking is a Class 4 felony; a second or subsequent conviction is a Class 3 felony. 
    (c) For purposes of this Section:
        (1) "Course of conduct" means 2 or more acts,
    
including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. The incarceration in a penal institution of a person who commits the course of conduct is not a bar to prosecution under this Section.
        (2) "Electronic communication" means any transfer of
    
signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. "Electronic communication" includes transmissions through an electronic device including, but not limited to, a telephone, cellular phone, computer, or pager, which communication includes, but is not limited to, e-mail, instant message, text message, or voice mail.
        (3) "Emotional distress" means significant mental
    
suffering, anxiety or alarm.
        (4) "Harass" means to engage in a knowing and willful
    
course of conduct directed at a specific person that alarms, torments, or terrorizes that person.
        (5) "Non-consensual contact" means any contact with
    
the victim that is initiated or continued without the victim's consent, including but not limited to being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; or placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.
        (6) "Reasonable person" means a person in the
    
victim's circumstances, with the victim's knowledge of the defendant and the defendant's prior acts.
        (7) "Third party" means any person other than the
    
person violating these provisions and the person or persons towards whom the violator's actions are directed.
    (d) Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section. 
    (e) A defendant who directed the actions of a third party to violate this Section, under the principles of accountability set forth in Article 5 of this Code, is guilty of violating this Section as if the same had been personally done by the defendant, without regard to the mental state of the third party acting at the direction of the defendant. 
(Source: P.A. 96-328, eff. 8-11-09; 96-686, eff. 1-1-10; 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-303, eff. 8-11-11; 97-311, eff. 8-11-11; 97-1109, eff. 1-1-13.)

Copyright Bare Basics



 Copyright Bare Basics
should be required to graduate grade school
by Sue Basko, esq.

Terms to know are in bold.

1. Copyright = the right to copy.  When someone owns the copyright on a work, only they have the right to copy it.  Also, only they have the right to create a derivative work, which is a work that uses elements of the original work.  The copyright owner can license or assign these rights to someone else.

2. Copyright protects creative, original works that are set in tangible form.  If you write song lyrics, record a song, write a poem, story, or screenplay, make a movie or video, make a painting, drawing, photograph or sculpture, these are all examples of some of the things that can have copyright, if they are your own, original creative work.

3. Copyright lasts a long number of years.  After that, the work goes into the public domain and  anyone can copy or use it. 

4. Copyright exists the moment the creative, original work is set into tangible form.  However, to file a copyright lawsuit or be eligible for statutory damages or attorney fees, you must register the work with the U.S. Copyright Office.

5. It costs $35 to register copyright and you can do that online at www.Copyright.gov Be careful to be on the .gov site and not on .com or anywhere else. 

6. There is no such thing as Poor Man's Copyright.  Mailing it to yourself is not proof of anything to the US Copyright Office and has no effect.

7. Notices such as "No Copyright Intended" or "No Copyright Infringement Intended" and others, which are often seen on Youtube, make no sense and have no effect.  But they are sort of charming in their cluelessness.  

8. Copying, which is a violation of Copyright (right to copy) includes such things as downloading a song, copying a rented movie, posting someone else's photograph on your website, recording a song without paying the mechanical royalty to the songwriter, etc.  

9. If you are sued for Copyright infringement and it is willful, you may owe up to $150,000 in statutory damages.  Copyright can also be a criminal charge.

10. Some other violations of Copyright include removing the artist's or author's name from the work (attribution),  trying to pass off someone else's work as your own (passing off), putting the name of an artist or author on something they did not create (reverse passing off), mutilating or harming someone else's work or presenting it in a way the artist or author finds offensive or morally repugnant (violation of artist moral rights), creating a translation or adaptation or different form without permission from the Copyright owner (unauthorized derivative works).

Freedom of Speech and Social Media


Freedom of Speech and Social Media 
by Sue Basko

Contrary to popular opinion, Freedom of Speech does not mean you get to say whatever you want.


Over the past year, many people nationwide have been arrested for what they wrote on Facebook or Twitter.  Most of these postings have been written in reaction to violent incidents, such as the Sandy Hook school shootings or the death of Trayvon Martin.  Most of the postings promised or advocated further violence.  Most of the people arrested, that I know about, have been mentally ill or had a history of violence or erratic behavior.  Others wrote such explicitly violent things that it would be a mistake for officials not to take it seriously.   Better to be safe than sorry, seems to be the rule.  In the aftermath of numerous incidents where young people committed shocking violence, such as the Aurora, Colorado movie theater shootings, the Sandy Hook school shootings of little children, and the Boston Marathon Bombings, if you threaten violence, you are likely to be taken seriously.

 In most instances of arrests of Social Media posters, police were alerted by someone who read the post and was alarmed by it. That means, in most instances, the police are alerted by Facebook friends (or friends of friends) or Twitter followers.  So, it is not the NSA or the FBI or local police watching your every word and turning you over to authorities, it is your Facebook friends.  In most instances that I know of, the charges have been state charges, in whatever state the errant poster resides.  In some of the instances, the poster is given very high bond and is therefore kept in jail for quite some time awaiting trial.  I assume the bonds are set high to protect the public, or the proposed victims, from potential violence.  A good rule is to assume that if you post violent things,  your post will be taken at face value and will be taken seriously.

Laws are different in every state.  One charge that might be lodged against a Social Media poster is “terroristic threatening.”  “Terroristic threatening” is defined differently state to state, just as other offenses, such as “rape,” are defined differently state to state.  In some terroristic threatening laws, it is the effect the words have that makes them qualify as terroristic threats.  A typical example of a terroristic threat law is if the words cause a building to be evacuated, or cause safety precautions to be taken, or frighten 10 or more people, then they may be considered terroristic threats.  Sometimes the law will have an intent requirement.  The person whose words frighten a group of people will often argue that the words were a joke, that they were “just kidding.”  That is a defense that might be used at trial, but it won’t usually keep a person from being arrested and charged in the first place, if the words seem serious and have led to trouble.

Every time one of these Social Media threat posters is arrested, there comes a flurry of other people posting or complaining that this is a violation of Free Speech.  It is a common misunderstanding that free speech means you can say or write whatever you feel like.   People sometimes get into a pedantic scholarly First Amendment law professor type of argument about such terms as “incitement,” “fighting words,” and “protected speech.”  That’s all cool to argue in an amicus brief, but the bottom line is it does not do you much good if you are sitting in jail with $100,000 bond for posting what to most people sound like death threats.  This blog post is not about arguing theory, it is about keeping my readers out of jail.  

Here are some basics about FREEDOM OF SPEECH and SOCIAL MEDIA:

1. Freedom of speech is between the people and the government.   A Social media company is not the government.  A Social Media company can set any rules it wants.  A Social Media site can force its users to be polite and considerate.  That does not in any way violate Free Speech, because the Social Media company is not the government.

2.  Speech might not violate the rules of the Social Media company, but might still be illegal.  This is especially so on Twitter and Facebook, which have refused to formulate reasonable rules for its users and utterly fail at stopping abusive and illegal postings.  That’s why there have been many arrests of people for things they posted on Facebook and Twitter.  The common sense rule is that it is up to the Social Media user to  know the law and not to depend on the site rules as a guide to what is legal or not.  

3. If you post on a national Social Media such as Facebook or Twitter, you can be held criminally responsible for violating the laws of any State.  True, most Social Media criminal charges are made in the State where the poster resides, but this does not have to be the case.  A prosecutor in the state of the victim could bring charges, and so could a federal prosecutor.  Jurisdiction will depend on the exact wording and intent of the law and on which prosecutor is interested in the situation.

4. Social Media is international. If the victims are in a different nation, you can still be held responsible.  The recent French case involving Twitter users posting anti-Semitic tweets, where Twitter tried to shield the racist harassers, ended out finally with Twitter turning their information over to the French authorities.  Will it turn out that the abusive tweeters are French, or will they be Americans or from which nation?  This will be interesting to watch.  Yes, there are issues of jurisdiction and these are often complex.

5.  Protected Political Speech does not include threats to kill. In the U.S., we are allowed to write things that criticize government and elected officials.  That does not include threats to kill or harm the officials or their families.  You can post saying you don’t like the work of President Obama, but you don’t get to post a threat to harm or kill him or his family. 

6. Your post might remain on Social Media and you might still be arrested. If you are posting your death threats on Twitter, be aware that Twitter is not likely to remove your threats or keep you from posting more threats.  Such a situation happened with Jarvis Britton, who was sentenced to a year in prison for tweeting death threats at President Obama.  Britton posted a death threat once, the Secret Service told him to knock it off, and he persisted and posted a new death threat.  Twitter does not have sensible rules that form guidelines for users. Twitter does not remove death threats.  Twitter does not keep abusive users from posting more abuse.   Just because your account has not been suspended by Twitter, does not mean the U.S. Marshals won’t be knocking down your door. 

7.  Being a U.S. citizen does not immunize you if you are in a different nation.  Some other nations have laws that make it illegal to defame a king or public official or to disrespect a religion.  If you are sitting in a hotel room in Riyadh posting hateful stuff about the Saudi royalty, the U.S. has no jurisdiction to override the local laws.

8. Arrest and Prosecution are Absolutely Different from Place to Place in the U.S..  Many police departments, even in large cities, don’t have anyone that knows anything about computers.  Many FBI offices have the same situation.  They are not likely to pursue a Social Media poster.  Other police forces or FBI offices have people knowledgeable about cybercrime, and they may be eager to try out their skills.

9. How Hard is it to Get Caught?  All in all, an abusive poster is most likely to be arrested if they post in their own name on their own Facebook page, or in their own name on a Twitter or Youtube account.  If a subpoena is required to discover the true identity of the user, in most instances, police or FBI won’t do that, unless they are politically motivated to go after someone.  But that does not  mean they cannot or won't  pursue you, so don't count on it.  Federal law also makes it a crime to post threats without revealing your name, so hiding behind a pseudonym may actually make your threats a more serious crime. 

10. If I removed a post off Social Media, can I still be charged with a crime?  Theoretically yes, but I do not know of any situation where a person removed an offensive posting and was later charged with a crime about it.  Usually, removing it is an indication that you knew it was wrong or that you did not really mean it and are trying to make amends.  Most people who are actually dangerous think they are right, and keep on posting more things.  

WHAT IS ILLEGAL TO POST ON SOCIAL MEDIA IN THE U.S.?  This list is based on federal law and on generalized version of state laws, which differ state to state, but have many similarities.  This list is certainly not a complete listing, but is simply a list of the most common types of Social Media posts that get people charged with crimes.  *See Note at bottom of page.

What's Illegal on Social Media?

1. Death threats or threats of any harm to any person.  This includes: threats against any person or their family, against their car or home, rape threats, arson threats, etc.  It is illegal to post a death threat against someone you know, someone you don’t know, a public official, someone famous, someone unknown – anyone.  You can usually be arrested if you post such threats “as a joke,” even if you “aren’t serious,” etc.  Whether you are arrested depends on if the victim reports it and  how interested the local police are in arresting you.  If you are easy to identify and locate and you sound dangerous, you are more likely to be arrested.

2.  Generalized threats of death or harm, such as posts telling others to kill people of a certain group or race, or statements saying you are going to kill or harm children or adults at a certain place. You statement might be considered a threat, an incitement, an urging, an exhortation, a plan, a terroristic threat.  You may say your post was not a threat, but a joke.  The bottom line is that normal, healthy, responsible people do not post such things, and if you do post such things, the police may be required to at least check you out. 

One such story is of Justin Carter, a 19 year old in Texas, was held for months on $500,000 bond for violent threats he posted on Facebook.  Although he said he would kill little children, after he was arrested, he claimed it was a "joke."  He was finally released after many months, when an anonymous person posted $100,000 to free him, pending trial.  There have been at least a hundred similar cases nationwide since the Sandy Hook school shootings.

3. Posting any sort of nude, partly nude, indecent, sexual, or obscene photo of anyone.  Social Media is a public space, and it may be viewed by all ages.  If you post such a photo of a person without his or her permission, this may be extortion, or stalking, or harassment -- or revenge porn.  If you post such a photo of anyone who was under age 18 at the time of the photo, that is distribution of child pornography. If you post any such photo, you may be engaging in crimes related to making pornographic or indecent materials available to children.  Some states specifically have laws that make it illegal to post such a photo of any person without their specific written permission.  And on and on. 

4.  Posting a link that tricks other people to clicking on it and seeing an obscene or indecent image.  This is a federal crime.  I cannot tell you how many times I have seen idiots on Twitter posting such links to the Goatse picture. If you don't know what the Goatse picture is, do not google it.   

5. Posting the home address, phone number, social security number, or personal email of any person to harm them.  If you post such info of most people, it is stalking or harassment, a state offense.  If you post such info of a federal employee or official, it is a serious federal crime.  If you post such info about a law enforcement officer, it is a state offense in many states.  If your purpose is to harass, stalk, intimidate, "expose," shame, humiliate, or endanger someone or open someone up to being attacked financially or physically, then what you are doing is illegal under some law.

6. Posting personal information about a person, such as medical records, financial information, passwords to emails or other accounts, social security numbers, etc.  Revealing such personal information can violate any of various state or federal laws.

7. Sending messages to other users, adults or children, telling them you are a talent agent, (unless you are an actual licensed talent agent), and trying to lure them into contact with you either for illegal social or sexual purposes, or as part of a financial scam.  This happens most often on Youtube, where any private message from a “talent agent” or manager or talent company or casting agent or model agent should be viewed with great skepticism.           

8. Sending indecent photos, even privately, to anyone under age 18, or asking them to send such a photo to you. This applies even if you yourself are under age 18.

9. Trying to lure or entice anyone under age 18 to meet up with you or travel to meet you or to go someplace with you.   This is often treated as a very serious crime, especially if there is any age difference.   

10. Repeatedly posting things at or about a person, if they have asked you to stop or if they are not responding, or if they have you blocked or locked out or if they have complained about you to the Social Media company.  This is harassment or stalking, and it is illegal under many different state laws and under federal law. Which law it falls under depends on the facts.  In some places, the victim may be able to get a restraining order to keep you from doing this. In other places, the victim will be able to sign a complaint for your arrest.

11. Repeatedly posting negative, derisive, racist, sexist, demeaning, belittling, mocking, posting misinformation about, or any other sort of mean or disturbing post at or about a person. This can be illegal under many different state or federal laws, including stalking, cyberstalking, harassment, cyberbullying, as well as under civil laws such as defamation or intentional infliction of emotional distress.  You do not have a right to pester or stalk anyone else on the internet, just as you have no such rights IRL.

12. Gathering a group to harass a person or commit a crime online or off line.  It can be illegal to gather a group to do something illegal online or offline.   Using social media to incite mob action may be specifically illegal.  "Mob action" is where two or more people gather for the purpose of doing something violent, harassing, or illegal to the same victim or in the same place.

13. Extortion: Threatening to do something bad to someone if they do not do something you want.  Such online extortion may include threats to post nude or embarrassing photos, threats to post personal information about the person, threats to steal from the person, threats to hack a person's accounts, and other such threats. If you are the victim of extortion, never give in to the threats. Contact police.  Even if you have given in to the threats, contact police.

14. Threatening to hack a person’s site or account, or to DOS their site, or threatening any other type of illegal cybercrime against a person.  Threatening to commit specific crimes against people is illegal as intimidation, harassment, stalking, extortion, etc., depending on the exact situation.

15. Posting links to other things that are illegal, such as obscenity, child porn, passwords, personal information of another person, etc. 

16. Impersonating someone else.  This is illegal under various state laws.

*Note: Every time I post such a list, there are some who mock it, mock me, say it is not true, etc.  I am a lawyer who has specifically and extensively studied Social Media law. I also pay a lot of  attention to news of arrests for behavior on Social Media.  I write about the law for everyday people, to help you make informed decisions. Anyone who has been arrested for a posting on Social Media is certainly expected to have lawyers make First Amendment arguments, but this blog is not about what arguments might be made in court.  This blog is to help people avoid getting in trouble in the first place.

What Hack3rs D0

What Hack3rs D0
by Sue Basko

Warning: Hackers are not allowed to read this. This is written for non-hackers only.

Hackers think they are smarter than other people.  If they are really hackers, they are probably right.  Some hackers write words using numbers. This is based on creating passwords using a combination of letters and numbers.  Can you read these? 5n00py,  M4i 7ai, 54154, smi13, 5133v3.  (Answers below.)

Hackers talk about getting v&, or vanned, which means arrested.  Some hackers with delusions of grandeur think getting arrested will make them famous.  Reality in the U.S. is that computer crime charges are so excessive that young people face long prison sentences for doing things that most people cannot even conceive of as illegal.  Therefore, when hackers are arrested, the big question is whether they will flip, or act as a confidential informant, or CI, as part of a plea deal.  One New York hacker who famously flipped upon arrest is nicknamed Sabu.  After he flipped, he got back online with an FBI handler and tricked other hackers into hacking certain targets, and all the while, they were being set up for arrest.  Sabu also got onto IRCs (internet relay chats), where he recruited hackers and also elicited incriminating statements from them.


Hackers break into websites or servers or into computers.  Hacking into a website or server is a whole lot easier to do than you might think.  Think of a website as a house.  How do you get into a house? Through a door or window.  What's the door to a  website? Having the password.  A hacker might get a password by trickery, which is known as Social Engineering.  They might also get a password by phishing, which is when they trick a person into filling out a form sent by email.  Or they might be given a password, buy a password, or crack a password.  Password cracking is usually done in phases, and when a list has been cracked, it will often be posted on the internet for anyone to use.  (Gasp!  But this is true.)

Another door into a website is called a backdoor.  Many websites, especially government websites, have a backdoor.  Since the government uses so many contractor companies, there may be hundreds or thousands of people with ready access to a backdoor.  Backdoors are also notably easy to hack.  Once a hacker is in a backdoor, they often have access to an entire row of websites, all of which are lined up on one backdoor.  This is like walking down a street and strolling into any house you wish.

What are the windows through which one may enter a website?  Those are any locations where one might enter code.  That's usually going to be a log-in or question form or other such thing.   When you log in to a website, you are  contacting the server, which compares the user name and password with a list.  You are querying the server. You may query the server in other ways using that same fill-in form.  Two of the main methods are called SQL injection and HTML injection.  SQL is "server query language." You type in code that asks the server a question and hope it responds.  It is like you are saying "Open Sesame," and it replies and opens and lets you in.  Many SQL injections rely on the fact that many users are silly and give themselves user names such as "Admin."

HTML injection or Code injection is where you are adding to the code already on the page, in any place that accepts HTML.  I think of this like throwing a rock through a window to try to get a person inside to come to the window yelling. Once they are at the window yelling, you might get them to dance, tell stories, or show you a video.  If you don't know what code to use, there are plenty of little scripts floating around the internet.  People that use pre-made coding are called "script kiddies."


Once a hacker is inside a website, what do they do?  They might deface it.  That is when something on the face of the website is changed or something is added.  It is easy to go into the HTML coding and change what the words say, change the colors, or add photos or videos.  For example, any video can be embedded off a serving site, such as youtube, just as you would add a video to any blog or site with the embed code.

Defacing a site doesn't really cause much damage, and the code can probably easily be cleaned up in a matter of minutes, especially since most people keep a copy of their site design code.  However, hacking and defacing a website will often be charged as if it is a big, serious crime, and the site owners will claim it cost thousands of dollars to fix it.  So, beware if defacing is your plan.

Another thing a hacker might do inside a website is gain access to the server to get lists of credit card numbers and passwords, or to get lists of other information.   Possessing or using stolen passwords or credit card numbers is very illegal.
  
More advanced hacking involves hacking into mechanical systems, such as the controls on cars or buildings, manufacturing plants, power plants, etc.   Computer hacking experts say it is possible to hack  computer-controlled cars and take control of the accelerator and brakes away from the drivers.  Scary!


Another main target of hackers is emails.  Hackers hack into emails and sometimes lurk for months, gathering emails or photos. They might leave without announcing themselves, but the point is usually to publicly freak people out by revealing "secret" emails.  Hackers almost always get into email accounts by getting a password.  One common way to do this is by guessing the answer to the security question. Another method is that many computers "remember" a log-in, including a password.  The account may then be easily accessed from that computer by anyone, until the password is changed.  If the email is also a door to other sites, or if the emails reveal other account log-ins or other information, all of that can be easily known by the email viewer.  That's why it is a good idea to use double validation on email accounts. Double validation is available on gmail.  Double validation means that in addition to logging in, the user must also post a code that is sent via cell phone.  This safety method is also called Two Factor Authentication, or 2FA.  2FA is now available on many log-ins and it is a good idea to opt to use it.

Hackers might also break into Facebook or Twitter accounts.  These hacks usually involve someone who was previously trusted with the password.  Or they may be caused by using a computer that "remembers" the log-in and password.  Or they may be caused by having the accounts linked to an email which is hacked.  Twitter may also respond to code injection.


Another thing some hackers do, which is not really considered hacking, is DOSing.  DOS stands for Denial of Service. This is also known as "Tango Down."  This is an attack against a web server, or against a website (URL), IP, or router.  There are many methods of creating a DOS attack.  All the methods flood the target with packets of information that keep the target from operating normally.

Think of a website as a house on a street. Usually the car traffic moves down the street in a steady, orderly stream, so anyone can get to the house easily. Now, suppose we send a hundred cars and trucks all at the same time, or from different directions, or even at different speeds. Then, there will be a terrible traffic jam, and no one will be able to get to the house.  Those are metaphors for the ways some different types of DOS attacks work.

There are already-created DOS tools on the internet.  There are even DOS-for-hire sites.  A notorious DOSer called the Jester (@th3j35t3r on twitter) claims to use his phone for DOS attacks using a software switching method he coded.  Most DOS attacks knock a site offline for a few minutes, though a massive attack might last as long as 20 minutes.

Another form of DOS is called DDOS (distributed denial or service).  A DDOS is when the attack comes from multiple sources.  Many computers will be recruited, either with their owners consent, or often unknowingly, and have the attack malware placed onto the computers.  Such networks may require the participation of the various computer owners, or may work automatically. This is called a bot or a zombie bot.  According to reports, hundreds of thousands of Wordpress  blogs were infected with malware that turned them into a giant zombie bot.

In another incident, people protesting against Paypal for denying financial services to Wikileaks joined a DDOS attack by downloading malware.  Fourteen of those participants were charged with crimes, and are called the Paypal 14. In reality, it is estimated that tens of thousands of computers were participating in the attack.  Paypal claims it lost millions of dollars in revenue in the 20 minutes or so that the DDOS kept the site nonfunctional.  I think many participants were not fully informed and were more or less tricked into clicking and downloading the malware. Others may not have realized DDOSing is illegal.  Some participants, I think, were actually told that DDOSing is legal.

Some people think DDOS attacks should be legal as a form of First Amendment protest. The same might be said of website defacements.  As of now, these things are illegal and punished disproportionately for the relatively small and fluid amount of damage they may cause.

Another thing that wannabe hackers do is dox, or d0x.  Dox is short for documents.   Doxing may reveal the name of a person who uses a pseudonym.  This may be justified, especially if the person is using their cloak of anonymity to attack or harass others.   Other types of doxing include posting a person's address, phone number, and personal information, such as social security numbers and other information. This is almost always illegal as internet stalking or harassment.  If this is done to a law enforcement officer or certain federal employees, it can be a very serious crime.  If the intent or the result of posting a person's personal information is to harass or endanger the person, you can be sure it is illegal under some law or other.  Much of the information posted in  doxing is incorrect and as such, may be defamation and present a private cause of action (lawsuit) as well as possible criminal charges.

Many states have laws that make it a crime to reveal the home address or personal information of any law enforcement officer.  Federal law makes it a crime to reveal any of 6 pieces of information of a federal employee.  These 6 pieces of information are called "restricted personal information, " and include home address, home phone, cell phone, personal email, social security number, or home fax number.  Even if such information can be found online with a Google search, it is illegal to make it public or post it.   
Conspiracy to jump off a cliff.
Barrett Brown was charged with Conspiracy to make public such information about an FBI agent.  The Conspiracy charge claims that Mr. Brown asked someone to look up the restricted information of the FBI agent with the intent to post it online.  Please note that the indictment does not say Mr. Brown did make the information public, or even that the person who supposedly agreed to look up the information was ever able to locate it.  The indictment charges a "conspiracy," by saying there was a plan to find the information and post it, and a step was taken in furtherance of doing so.  When a person is convicted of such a "conspiracy," the punishment is the same level as if they had completed the act.

 Please note that Barrett Brown has pleaded not guilty to this charge of Conspiracy to make restricted personal information public.  It does sound like Mr. Brown was simply trying to find a phone number to call the FBI agent to try to get his computer returned so he could do his work as a writer.  The problem was that Mr. Brown lived his life online, and so his requests for assistance in finding the phone number were in themselves quite public.

A federal employee -- or anyone else, really -- should be contacted at their places of business and not at home, unless you are their personal friend.  People should not be harassed or harmed for doing their jobs.  If you disagree with this and want to do otherwise, realize the risk you are taking.     


Another form of hacking is called exploits.  This is when a hacker finds a vulnerability in a program and devises an exploit, or coding package, that takes advantage of the weakness.  Many of these are called Zero Day Exploits, meaning the exploit has already been devised and put in use when the software program is being released, before it can be patched.  
Some hackers create bundles of exploits for sale or just give them away.  This enables others to hack into programs or sites.  There are many exploit packs available for free download on the internet.   Some exploits are very specific and others are more general.

Answers: 5n00py (snoopy), M4i 7ai (mai tai), smi13 (smile), 54154 (salsa), 5133v3 (sleeve).

Why I Use Blogger



Why I Use Blogger
by Sue Basko, esq.

see also: Copyright Bare Basics

A stalker on the internet was mocking that I use Blogger, implying that as a lawyer, I should pay for website hosting.  Mostly, I think this person was complaining that he was neither able to hack my blogs, nor DDOS them.  Those are two of the reasons I use Blogger.  

Blogger is not perfect.  There is no option for a Contact Form. (UPDATE 2015: There is now a Contact Form widget available!)  I would also like to see a music player with the option of adding my own mp3s onto it.  And the User Interface is probably very complex for people who have not used it since Blogger began, as changes have been built upon it to make it more and more complex, with many things hidden from the beginning user.  On the other hand, there are many instant style options for users who don’t want to spend time on their design. 

 I love using Blogger, and here’s why:

1) Blogger has highly flexible design options.  One can get on and use an instant format, or go to more design-it-yourself options.  There are magazine styles for those who use a lot of photos.  I use more text.  I love doing website design and the more advanced options let me do that.  I can import my own textures, banners, etc.  There are lots of font choices.     

2) Blogger lets me use HTML, for flexible design.  I feel so constrained on sites where HTML is not an option. 

3) Google puts mega-millions of dollars into the Blogger design, security, and serving.  Whatever I could afford would not begin to be as good.  And Google keeps making improvements. 

4) You want to attack my site’s server?  That’s Google’s super secure server you’re going after. 

5) Blogger is crawling with spiders and has great SEO.  Google search brings lots of readers to my blogs.  My blogs have great SEO.  All the tools to get great SEO are built into the format.  Google is the major search engine; surely Blogger is designed to get great SEO on Google search.  

6) There’s lots of independent developers making gadgets for Blogger.  There’s always something new to add on, if you’re into that.

7) It’s easy to monetize Blogger. I don’t, because I don’t like ads.

8) I like to have a lot of blogs and sites.  With Blogger, that is easy and free.  When I get an idea for a new blog, I just start creating it, no problem.

9) Blogger interacts with Google search, gmail, google+, and youtube very easily.

10) Blogger has good analytics for free.

11) My blogs have withstood some highly stressed times when I have had many viewers at once, such as when Julian Assange was speaking on the balcony at the embassy and my blog was one of the only places with a working live video feed.

12) There are options for posts and pages. I use both.