• Privacy Laws

    Criteria for justified detention returns to center stage

    Sandra Bland’s death has returned the debate over the criteria for justified detention to center stage. After a tumultuous few years with increasing claims of abuse of power towards minorities by police, the national tension between police and public has never been higher. What has become a critical factor in determining when force is justified is the step before hand – when has the criteria for justified detention been met? Very few of the cases highlighted in the media involve an officer shooting a suspect from a distance who they have had no contact with. Almost all of the cases evolve from the point at which the officer determined the person needed to be detained in any manner.


    Looking at the Bland tape

    Forget all of the other aspects of the Bland tape and consider the crucial moment when the police officer decides that Bland must be removed from the car. This is a decision involving justifiable detention. Up until this point there is nothing that separates this encounter from any routine traffic stop, which is why you won’t be needing a lawyer. What is the center of the discussion is what happened that allowed the officer to determine that there was a need to detain Bland. The general consensus is that the officer acted in error. There is little to support detention from what can be seen.


    Thinking about what is not seen

    The complicating issue is that no video tape can replicate what is not seen. As even family members have said, Bland had been depressed and had suicidal ideation earlier in life. While they note that she had recently landed a dream job and was in good spirits – looking at the tape begins to suggest that what is not seen may have played a role in the call for detention. Bland’s reaction to the officer is not exactly in keeping with what would be expected in a routine traffic stop. The officer’s attitude and presentation is poor, but the reaction from Bland is also off kilter. Given her history and recent changes in mood there is a valid question on whether or not the officer detected instability suggestive of mania or the capacity for self-harm. If you see yourself in this situation you better find a personal injury lawyer.


    The issue with justification is its subjectivity

    There is no rule book that can definitively claim to define the criteria for detention as it is based upon subjectivity. When you combine it with reasonable cause for search, then you have an issue when an officer is having to use sensory input and experiential interpretation to try and fulfill defined regulations. That is never going to be cut and dry and there is room on both sides to claim foul. The only recourse is to break down the thought process that leads to the decision. There is no room for interpretation there, the process has to be as clearly defined and supported by precedent as possible in order to be effective for either prosecution or defense. It is also not enough to rely on training protocol. The officer or person’s previous history can be a vital factor in establishing the factors at play in justifying detention.


    Paying attention to the wrong video

    video-surveillance-evidenceAs with Bland and many others, the media threatens to determine outcome of a case. The main issue is that the important video is being overshadowed by the more dramatic one. What is at the heart of the case about her death is not the arrest, but what occurred in her cell. That footage doesn’t make for good social media fodder, but it has more to do with what happened then the arrest. The arrest, right or wrong, is important – but when it comes to determining wrongful death, it occurred too many hours before to be as influential as the cell environment and care she received would have been.

    Special thanks to Brian Musell criminal lawyer; for more info, click here to visit his criminal lawyer avvo profile.

  • Privacy Laws

    The shifting boundaries of online privacy

    online privacy lawsWith all eyes on the release of Clinton’s personal email there are renewed questions about the viability of protecting privacy online. Businesses and schools are both struggling with how much monitoring and accountability they can enforce when it comes to online behavior. If you are developing policies for either there are many different factors to consider. If you are considering a case where the defendant is accused of defamation or libel via online activity, then consulting a criminal lawyer and learning more about how the boundaries of online privacy are shifting is essential.


    What happens in the EU isn’t likely to stay there

    It is no secret that the privacy laws in the European Union are far stricter than what is in place in the USA. As giants like Google and Facebook are struggling in their courts to defend their practices there are new privacy initiatives taking shape across the Atlantic. This could be the precursor for changes that can come here. When developing policies for online activity and accountability you have to keep in mind the potential changes to the legislative climate towards online policy that could arise over the next decade. What some companies and academic facilities are trying to do is modify the confidentiality and non-competitive clauses to cover online behavior. This has led to a rise of lawsuits for wrongful termination that are facing years of court hearings before any hope of resolution.


    The compromise many institutions are defaulting towards

    According to Frank Fernandez, a criminal defense attorney Boston, many institutions are beginning to demand that employees and contractors sign off on a confidentiality agreement that bans them from any online work related mentions even on networks with high privacy settings. The argument in favor for this is two-fold. Facebook is the textbook example of how online networks can change privacy policies and procedures that effectively reset privacy settings to public settings unless the user deliberately takes action to opt out. This has led to some people being terminated when what they posted for “friends only” was suddenly made available for public viewing. The confidentiality ban on mention is seen as a blanket solution. The other argument in favor of it is that it prevents and discourages personal network access from institutional devices.


    When what is private is made public

    The other issue that many people are facing is when a message concerning a person or facility is posted privately and then the person or facility is made aware of it via a screenshot taken from someone on the poster’s allowed list. When that screenshot is then show to the person or facility in question it raises questions of entrapment, breach of trust and potential violation of the confidentiality ban on mention the poster has with the company.

    Public consensus on posting right is not consistent

    Depending on what is the current story in the news the public consensus on the extent of privacy guarantees online will vary. If there has been a recent school shooting and the shooter had a history of posting diatribes and threats online there is more a call for flexible privacy boundaries for safety. If the issue is someone being fired for commenting privately about company behavior or policy, the call is for privacy to be protected more stringently. Looking for a precedent may not be the best resource for developing an approach. If you are dealing with the creation of policy or terms and conditions you have to realize that there will be social and cultural limits on what will stand up in court. The accountability for online posting and the rules for maintaining privacy online are speeding towards a crash. How business needs for confidentiality and personal needs for privacy will be resolved is anyone’s guess, however the judgments in the EU appear to all be pointed towards more restrictions on both as a potential solution.