Newsletter, Winter, 2002

Law Offices of Gerald A. Spala

Attorney at Law

3877 Twelfth Street

Riverside, California  92501

 

MAIL:

Post Office Box 910

Moreno Valley, California  92556-0910

Telephone:  (909) 485-2276, (909) 684-2229

Fax:  (909) 684-3900

e-mail:  mail@geraldspala.com

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"When in doubt, tell the truth. You will gratify some of the people, and astound the rest." --Mark Twain

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Bookmarks in this Newsletter:

Newsletter contents:

Update comment

Lawsuit stats

New crime stats

Airbag verdicts

News developments

Unresolved

Yesterday's news

Firsts

Bankruptcy reform legislation

Bankruptcy filing trends

Bankruptcy cases

Legal news behind the headlines

McVeigh's capitalized punishment

Enron

Cases and controversies

California

Federal

Online education stats

Broadband stat

Pirated software stat

Macrosoft update

Tech really matters

Wireless, Displays, hardware, file sharing, domains, tax

Privacy

Credit card links 

More links

Bottom of page

 

 

A YEAR IN REVIEW: 

Law, tech, commerce as usual

 

Just the facts

  • When you hear complaints about "lawyers" suing, it's time to stop and think.  Lawyers can't sue without a client:   people and businesses do the suing.  And pay attention to these facts.  Americans are no longer suing each other as much.  Californians are suing each other much less. After years of steady decline, the number of big-money personal injury lawsuits in California is roughly half of what it was a decade ago. Small claims matters have fallen to levels not seen in 30 years. Businesses, insurance companies, banks--other major institutions, still have disputes, but our court system is being abandoned by the boatload as the "contractualization" of legal disputes (Arbitration, alternative dispute resolution) continues to seep into every forum. And, interestingly enough, the trend is being reflected in the case decisions issuing from appellate courts all over the country as published opinions concerning labor and employment, civil rights, health care, copyright, immigration, criminal, bankruptcy, technology and intellectual property dominate the flow.   Los Angeles Times, Feb. 1, 2001

 

Just the numbers

  • Crime continues to decline.  The first half 2001 report issued in December of 2001 by the Federal Bureau of Investigation continued to show declines in the overall violent crime and major property crimes categories. Althought the statistics are closely scrutinized for regional trends by local law enforcement, and there are wide variations, overall, nationally, decline continues to be the trend.  The exception to this, and a major one, was the uptick in the categories of homocides and robberies.  (Source: www.usdoj.gov)

  • As of July, 2001, there had been four air bag cases tried to a jury.  All four have resulted in defense verdicts for the auto manufacturers.  (Source: National Law Journal, 7/16/01)

  • The Education Department's National Center for Education Statistics (NCES) has found that 44 percent of all higher education institutions offered distance learning courses in the 1997-1998 academic year. That figure does not include the growing number of private, for-profit entities that are tapping the expanding market for adult education. The center estimated that 1.3 million students were enrolled in postsecondary degree-granting distance learning courses in that same academic year, up from 750,000 in 1995.

  • Broadband, as of November 2001.  The number of people who have high-speed Internet connections at home grew to a record 21.3 million in November, a 90 percent increase over the same month last year. The year's growth in broadband usage comes even though many service providers have filed for bankruptcy protection or have gone out of business.  In most cases, users have shifted to other broadband providers, such as major telephone companies for DSL or cable companies for cable modem service. (Source: Associated Press)

  • 37% of all software is pirated.  (Source: National Law Journal, 5/12/01)

                          

Update Comment:

This is my first newsletter in some time.  An office change, and some intervening developments have prevented me from posting as regularly as I would have liked.  What started as a hobby five years ago, and as a print format nearly 10 years ago has taken on new meaning for me, and has become a much broader project.  

Many of my colleagues have simply employed professionals  for their websites.  Because of my interest in learning the skills it takes to research, produce and post the material, I have resisted that impulse--although the task seems to get more complicated the more one learns about the process.  

To that end, I have segregated out the resource page, added a few new links, updated all "broken" links, and have updated my profile to give a better idea as to some of the matters being handled and confronted daily.  I have tried, where possible, to "break out" to separate pages, those more in depth links, so that page loading does not become cumbersome.  Thus, you will note that my "home page" and the front page of this newsletter have become "doors", so to speak, to other libraries and conference rooms. Return to Top

News developments:

Unresolved Category

In the unresolved category, the criminal law wins the award.

We have the homocide/disappearance cases of Jon Benet Ramsey, Chandra Levy and Robert Blake's spouse-- all continuing as mysteries. 

The Ramsey parents were last in the news endorsing the coming forward of a witness/housekeeper, and publicly challenging a book written by a former investigator assigned to the Colorado case.  The book was critical of the refusal of law enforcement to "press" forward with its suspicions concerning the parents, even suggesting this was attributable to power and wealth, and connections to the District Attorney's office.

The Chandra Levy matter dropped off the radar screen because of the events of September 11.  Despite the across the board public relations disaster for Congressman Gary Condit, Ms. Levy's employer/supervisor and admitted past paramour, the politician has managed to hold on.  In the aftermath of the attack on New York, he filed for re-election.  The consensus seems to be he may not even be able to garner his own party's endorsement in the election coming later this year.

With respect to Robert Blake's spouse, the Los Angeles Police Department simply recently announced that they were "satisfied" with the progress of the investigation and believed they were very close to establishing a "firm suspect" for the murder. Return to Top

Yesterday's News

This category was dominated by lawyers---and their disbarments.

Firsts Return to Top

Some have suggested that with the Columbine shooting deaths (the high school mass killings and suicides involving students at a Colorado high school), the 2000 Presidential election stand off and judicial resolution, as well as the September 11 attack on New York, we have witnessed once in a lifetime events several times over.  The last year and a half, in more ways than one, but including the legal, has been a period of many "firsts".

Bankruptcy:
  • Reform Legislation
  • Cases and controversies

 Bankruptcy filings trend upward.

Reversing a two year trend, bankruptcy filings once again reached record highs.  Fueled by the stock market collapse, economic slowdown, September 11 attac, "dot.com bust", filings increased 12% in 2001, and are also spiking in 2002.  Business bankruptcies in record numbers have also contributed--whereas prior year spikes in bankruptcy filings were mostly consumer related.  Also contributing has been the proposed reform legislation publicity--causing many who may have been debating seeking protection from creditors, to go forward and take advantage of perceived "more debtor friendly" current laws.(Source: United States Courts, Administrative Office) 

Reform Legislation

Incredibly, little has changed.Return to Top

No new law has gone into effect.  Both the Senate and House voted on some form of "reform" legislation in 2001, passing the bill by overwhelming majorities.  In fact, there has been more than one vote.  The bankruptcy bills then got bogged down in the conferencing committee, or the legislative department where "differences" on competing Senate and House of Representative bills are usually worked out.  Some crucial vote changes, and a key finance committee member's change of political party affiliation further bogged down the prospects on  bankruptcy reform, which has been pushed by credit card companies and retail businesses.  Renegade elements of both political parties then revealed a "geographical" rift in support for the legislation, with credit card dominant states like Tom Daschle's South Dakota, and "homestead" states like Kay Bailey-Hutchison's Texas and Florida being challenged by more consumer dominated states like New York, California and Massachussetts.  Amendments have been attached challenging the "liberal" local state laws for their exempting real estate, and providing other business protections which reform legislation would not affect---with the challengers issuing threats to many past supporters of reform to "really make bankruptcy" equitable "across the board".  This has startled some of the "ole pols" from these states who now realize the present reform effort could potentially escalate into something politically not favorable to major components of their respective political base and supporters.

This continues to be the status.  An excellent website for staying current on the reform efforts can be found at  Findlaw.com.  There, the bankruptcy resource center carries regular updates and frequent tidbits of news of the tedious progress and setbacks.  

Some Recent Bankruptcy Cases:

(Author's note:  There is an intentional effort to focus on California relevant authority, although as a federal subject matter, bankruptcy can be affected by law issuing out of case decisions nationwide.)Return to Top

 

Student loans:  

Rifino v. U. S., 9th Circuit

 

 

 

 

 

 

 

 

The obligation to repay student loans is not considered an undue hardship for purposes of affording the debtor an exception to the general rule that student loans are not dischargeable and may only be dischargeable upon a good cause showing of "undue hardship". Here, the evidence suggested that the debtor's professional income prospects going forward "looked bright.

Comment:  It is clear that creative lawyering alone will not overcome the barriers to discharging student loan obligations. The facts in support of "undue hardship" must be compelling.

Reaffirmation agreements:  

Rien v. Providian, 9th Circuit

 

 

 

 

 

A court must formally approve reaffirmation agreements that obligate the debtor to repay debts otherwise dischargeable in bankruptcy.  If the formalities of filing and court approval are not followed, then the debts can be discharged.

Comment:  Even though the "formality" seems to amount to mere paper shuffling and tedium--often not even seen or understood by the client---the policy of the law seems to be with eliminating controversy and reaching closure.  The burden here is clearly placed with the creditor.

 

 

Guidelines for dismissal or Trustee objection to Chapter 7 discharge:

In re Lenhartz, (Idaho)

 

 

 

Return to Top

A debtor's ineligibility for a Chapter 13 bankruptcy will not operate to prevent a dismissal of a Chapter 7 bankruptcy.  

Comment:  This was a significant case.  Debtors sometimes get confused as to why they may not be eligible for discharging debt that they have been living with for some time.  The bankruptcy process scrutinizes one's income and expenses.  If the balance is positive income flow, then the amount of debt is analyzed in terms of a potential for repayment.  Formulas are applied to afford some predictability.  This case seems to suggest the Trustee in bankruptcy has fairly substantial leeway in budget analysis in order to decide whether or not to dismiss a Petition for complete Chapter 7 discharge---much more flexibility than stated or inferred in previous court decisions.

Non-dischargeability of tort claims:  

Peklar v. Ikerd, 9th Circuit.

A California state civil court judgment for conversion may be   discharged in bankruptcy because it does not involve "willful and     malicious injury" under 11 USC 523(a)(6).

Comment:  Generally, the Bankruptcy Code states that all debts are dischargeable except those several classes of claims set forth in the code that are not dischargeable.  Among those exceptions is a class of claims generally associated with willful or intentional wrongdoing.  The ambiguity arises in a case by case analysis because although some torts or lawsuits sound "willful", the reality is that this may be more a result of tradition, pleading, statutes or even "legal fiction".  This case by case consideration has a long history in bankruptcy law.

Legal trends:  

  • Real Legal news behind the headlines
  • California 
  • FederalReturn to Top

 

The "real" news

  • Capital punishment is becoming more about capital than punishment.  Timothy McVeigh's defense team billed the government more than $147,000 for the unsuccessful battle to delay his execution and other legal work in the last four months of his life. The expenses are in addition to the $13.8 million in public funds spent to defend McVeigh through his sentencing for bombing the Oklahoma City federal building. (Source: Associated Press, July 21, 2001)

     

  • What's Enron really about?  J. P. Morgan Chase, one of the largest brokerages and investment banks in the world recently filed a $2.1 billion lawsuit against Enron in the U. S. District Court in Manhattan .  How does someone "stiff" another out of 2.1 BILLION? One would think that there would be safeguards in any transaction involving such large "warlords".  Actually, it turns out that this is really a dispute between insurance companies and J. P. Morgan.  JPMChase is trying to force almost a dozen major insurers to make good on nearly $2-bil of surety bonds they wrote between 1997 and 2000.  Because of the amounts involved, and the incentive to make cases and defenses, it is here, not in Congress and not in the class and securities actions, where we can really expect the information to flow.  The surety bonds had issued to insure performance on  six huge five-year forward sales of crude or natural gas to what was then Chase Manhattan Bank and two of its Channel Islands energy trading arms: Mahonia and Mahonia Natural Gas.  Enron had in essence, become a speculator---on the price of energy commodities; and endeavored to "hedge" its bets with surety bonds.  Problem now is that the insurance companies, some of the most prominent in the country, are claiming they were "deceived" by Enron representatives, and are endeavoring to "void" coverage. 

    Return to Top

California
  • GUNS.  Merrill v Navegar, August, 2001 California's Supreme Court ruled that shooting victims may not sue firearms manufacturers for the criminal use of the weapons they produce and market. The high court justices ruled 5-1 that Miami-based Navegar Inc. is not liable for a 1993 attack in which disgruntled businessman Gian Luigi Ferri used a Navegar-made TEC-DC9 military-style assault pistol to kill nine people, including himself, in a San Francisco office building.  Comment:  There have been a number of similar verdicts as well as appellate court decisions across the country, denying relief to victims from gun manufacturers, for gun injuries inflicted by third party criminals.
  • SERIOUS INJURY INFLICTED BY CRIMINALS.  Saelzler v Advanced Group 400, May, 2001  Again, California Supreme Court limited lawsuits against business and property owners on theories related to negligent failure to maintain the property and provide proper security. Link here to a complete casenote article concerning this very significant case.
  • SUING THE HMO.  McCall v. Pacificare of California, Inc., May, 2001. California seniors who receive Medicare benefits through HMOs won the right to sue their health maintenance organizations for damages. The 5-2 ruling by the state Supreme Court came in the case of a man who was denied a lung transplant. His HMO allegedly forbid the transplant because it cost too much  The court said seniors and the disabled who sustain injuries because of a lack of care can sue in California courts.
  • MUNICIPAL LIABILITY LIMITED . Day v City of Fontana, April, 2001. Section 3333.4 (joint and several liability reform legislation) of the Civil Code precludes an uninsured motorcyclist from recovering noneconomic damages against a county and a municipality in an action for nuisance and dangerous condition of  public property.
  • INSURANCE LAW.  Blue Ridge Ins. Co. v. Jacobsen, May, 2001. An insurer defending a personal injury suit under a reservation of  rights may recover settlement payments made over the objection of the insured when it is later determined that the underlying claims are not covered under the policy. 
  • LAND OWNER LIABILITY LIMITED.  White v Contreras, January, 2002.  A landlord owes no duty to install screens or other protective devices to protect against a child tenant falling out of a window in the leased unit, but if he undertakes to replace a window screen and fails to do so, he may be liable.
  • NO MORE SPOILATION.  Lueter v TE of California, January, 2002.  A tort claim for negligent spoliation of evidence is no longer valid in California. (Comment:  "Spoilation" has to do with the loss or destruction of evidence relevant to a civil case and within the custody and control of the party.)
  • ATTORNEY FEES.  Martin v Szeto, December, 2001.  Code of Civil Procedure section 1021.7 authorizes attorney's fees for a prevailing party in a slander or libel action even if the     action did not involve a peace officer.
  • CHP LIABILITY.  Lugtu v California Highway Patrol, August, 2001.  A law enforcement officer, in directing a traffic violator to stop in a particular location, has a legal duty to use reasonable care for the safety of the persons in the stopped vehicle and to not expose such persons to an unreasonable risk of harm.
  • CAR CONTRACT.  Donovan v RRL Corp., July, 2001.  A typographical error in a newspaper advertisement for the price of a car may constitute a valid contract under Vehicle Code section 11713.1(e), but a unilateral mistake of fact may provide the dealer with a basis for rescinding the contract.

Comment:  California courts, including the highest court, have issued an almost startling array of conservative decisions in what appears to be a continuing theme of restricting liability in tort and personal injury matters.  At the same time, and almost mirroring the U. S. Supreme Court, decisions on such matters as privacy and healthcare benefits, continue to expand duties and liabilities. Return to Top

Federal
  • DIGITAL COPYRIGHTS.  New York Times v Tasini, June, 2001.  The U.S. Supreme Court ruled that publishers violated free-lance contributors' copyrights by putting their print articles in electronic databases.
  • EMPLOYMENT ARBITRATION AGREEMENTS.  Circuit City v Adams, March, 2001.   The Federal Arbitration Act, at 9 USC 1, does not exempt all employment contracts subject to Congress' commerce power, but rather only the employment contracts of transportation workers.  (Comment:  This is the third time in a year that the Supreme Court has upheld the ability to contract for arbitration of disputes. Forced arbitration of employment disputes eliminates jury trials, and, some theorize, significantly reduces the bargaining position of a claimant--a very significant decision.)
  • PUNITIVE DAMAGES.  Cooper Industries v. Leatherman Tool Group Inc., May, 2001. The Constitution requires that appellate courts review punitive damages awards using a de novo standard rather than a deferential standard.  (Comment:  Another significant, limiting decision.  The net effect will be to afford a completely independent appellate review of any significant award of punitive damages in a lower trial court.)
  • ENGLISH ONLY LAWSUIT BARRED . Sandoval v State of Alabama, April, 2001. U.  S. Supreme Court held that private individuals do not have the right to sue for violations of the Title VI Civil Rights Act of 1964 where the alleged violation is a state "English only" law.  Here, plaintiff was a Mexican immigrant endeavoring to take her licensing exam with the Department of Motor Vehicles.
  • DISABILITY LAW DISABLED.  Toyota Manufacturing, Kentucky v Williams, January, 2002.  U.S. Supreme Court on Tuesday limited Americans Disability Act that protect the disabled from discrimination--and declared it limited to only those with the most basic of impairments that prevent such daily tasks as bathing or brushing one's teeth. By unanimous decision, the justices have narrowed the number of people covered by the law, which requires employers to accommodate these disabled workers.
  • CAMERAS IN THE BATHROOMS.  Cramer v Consolidated Freightway, January, 2002.  A federal appellate court allowed a lawsuit charging video surveillance in a company owned bathroom was an invasion of privacy to go forward in June, 2001.  The U.S. Supreme Court declined to review that decision, so the lawsuit will now go forward.  The invasion of privacy is based on a more liberal and broader definition afforded under the California constitution.
  • PRISON GUARDS NOT SHOOTING STRAIGHT GET SOME IMMUNITY.  Jeffers v Gomez, February, 2001.  Prison guards are entitled to qualified immunity from suit where     they inadvertently shot plaintiff prisoners while trying to stop other prisoners from stabbing each other during a prison riot.  (Comment:  "Qualified immunity" will significantly raise the burden of proof.  In essence, the prisoners will have to show that the guards were acting completely outside their authority and discretion.  This is a virtually impossible burden because the "rules of engagement are probably written to give the guards as much discretion as possible in a riot situation.)
  • ONE "BITE" RULE.  .  Clark County School District v Breeden, April, 2001.  The U.S. Supreme Court ruled that an isolated sexual remark does not equal sexual harassment and dismissed a Nevada woman's lawsuit against her employer.  The justices wrote that people may sue under the Civil Rights Act of 1964 only if the alleged harassment "is so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment." Return to Top

 

"Macrosoft" update:

The Lawsuit

I can't say that I "called it", however,  in light of my previous predictions in this newsletter concerning the Microsoft litigation, I can say I am not surprised.  It really has never been foresight.  We have always had the IBM antitrust litigation as a guide.

Microsoft has essentially won.  The "victory" comes about not without cost or penalty.  Some commentators even suggest a connection to the unraveling of the economy being linked either to the Microsoft litigation in the first place, or the lack of an agressive government follow through or clear victory. The litigation exemplifies that there are aspects of the legal infrastructure just not prepared to deal with the complex issues presented by the case--especially so when the adversary has 36 billion dollars in cash or liquid assets at its disposal. 

The status is as follows.  A Federal Appellate court ruled that the lower court remedy of "breakup" would be reversed.  Concurrently, the elections occurred and the Dept of Justice came under new management.  The Federal government essentially settled with Microsoft.  State Attorney Generals have pretty much signed on although about a 1/4 of those remain unresolved.  Also unresolved are numerous private individual of industry lawsuits, some class actions.  Microsoft had proposed a $200 million settlement of a large cross section of these claims, but that proposal was recently rejected by the Judge.  The funding would have been in the form of technology payments and supplies to K-12 public education programs in the most needy geographic areas.  Some cases have actually settled in this fashion already.

The Contract Return to Top

If you haven't purchased Windows XP, you haven't noticed the subtle/drastic change in the user licensing agreement utilized by the dominant company (ULA).  It usually appears at installation involuntarily and requires an affirmation before the product can be installed.  Theoretically, software is not "purchased" outright.  In a way, it is rented, or use rights only are granted.  With prior products, the "bundle of use rights" afforded the buyer/user ability to make multiple upgrades or installations using the same license--not because it was allowable, but because excepting the corporate or business environment the use restrictions were unenforceable.

If you use the internet, all that has changed.  Via access to the internet, secondary or bootleg installations of the product can be detected, and if you use Microsoft Network as your internet service provider (your connection to the internet), then you may find yourself not being able to access the internet from that second computer or installation.

Microsoft is hoping to "tap" into unaccounted revenue streams by its monopoly, as well as aid its "anti-piracy" war.

The Second War

I just mentioned it.  Microsoft through agressive hiring, has created a legal army to go after software piracy. It has already produced results primarily involving Asian markets and consumers, and their distributors in this country.Return to Top

Tech trends:

  • Wireless Banking:  Now that online education has taken off and will probably continue to grow, with implications for telecommuting and even K-12, the evidence is clear that early judgments about the internet although mis-timed and fundamentally inflated, are gradually, at a slower pace and in some instances, on a downsized scale--proving correct. The next area where we will see the law playing catchup, but growth really expanding is in online banking.  Not too long ago, EDS, a huge technology and networking services firm, joined up with Palm Computing in a project to commercialize "wireless" online banking.  

  • Display revolution:  The flat panel display trend is mimicking the earlier experiences in the cathode ray tube (CRT) monitor field.  Large, quality CRT monitors can now be purchased for $200 or less.  The FPD is broadening with LCD (small display) and plasma (large display) cross over.  A great deal of this momentum is being driven by the digital TV legislation.  Suffice it to say that "display" technology and how we will view data and images represents an ongoing revolution.

  • Hardware pricing:  We are now beginning to see computers with 2.2 ghz CPUs, 100gb hard drives, and in excess of 512 mb of RAM with 400 mhz bus.  Eventually, we will see 2 ghz systems including flat panel displays and wireless keyboards, mouse for around $1,000.  The driving force will be the buildout and expansion of broadband service.  Once the legislative and standards bottlenecks are defeated, broadband will revive the tech revolution.  In fact, it is clear from a great many of the obvious decisions of many of the telecommunication, networking and manufacturing firms that business plans are really being directed not for this immediate period of transition but rather for the eventuality of fully saturated broadband.  This is why we see so many device functions converging.  Simple fact of the matter is that physical space has to be conserved.  Less devices will have to perform more functions--if not just to make room for new functions and new services.  And as chips get cheaper, and more powerful, we will begin to see more interconnectivity in the home, factory, office, and transportation.

  • File sharing:  Anyone who follows the trends and current events, and has some fundamental understanding of what "digitization" has accomplished, is not far from understanding many of the legal and financial implications.  In short, all creative works are subject to the danger of indiscriminate unauthorized and instantaneous mass marketing, and the fact that absent some securing of the proprietary rights, capitalism could very well collapse.  Some thinkers in this area are theorizing that with so much of our economy now dependent upon "intellectual capital" in the form of software code, chip designs, published entertainment--we will have no choice but to encrypt DVDs, CDs, and even materials we have traditionally associated with the public domain--and encrypt in such a fashion that only singular device usage would be enabled.  What Napster did in music, could easily be done with software, ebooks, movies, etc.  This tension and battleground is perhaps the most difficult stumbling block next to privacy matters and will continue to "dog' our progress.  There is no easy solution and pending other technological developments, the law will simply have to fashion a balance.

  • Internet domain extensions:  The list of choices has expanded drastically.  If you are contemplating setting up a website, be aware that you are no longer restricted to the traditional "net", "com", "gov" and "org" choices.  My prediction--and this may seem farfetched--is that eventually a domain designation will be provided along with an address for all purposes, including postal.  That designation will replace phone numbers as well.

  • Internet tax:  Once again delayed and put on "hold".  The economic dowturn and recession had a great deal to motivating the Congress to exercise restraint even though lobbyists for local government are vigorously presenting the case that great amounts of sales tax revenues are being deferred.Return to Top

 
  • PRIVACY ISSUES-an essay

    There is no specific right of "privacy" in the United States Constitution.  It is something that developed over time and case interpretation.  There is a specific right and it is fairly broadly described in the California Constitution.

    Privacy may not be something which is easily described, but there is a sense that it is something important and is deeply connected to our personal freedom, or sense of freedom.  That importance is realized and  the sense of humiliation or violation is best felt when our privacy is taken from us.  Our privacy is invaded when our "information", our lifestyle, our conversations, the choices we make, the things we do, the hobbies we pursue, the purchases we make, the budgets we keep, the money we make---are intruded upon without our authorization.

    Each person's sensibilities about what is intolerable is different but some general conclusions can certainly be drawn.  For instance, I may not find it offensive that my friends understand or know of my problem with cholesterol or that I medicate for it, but whether or not I want that broadcasted to every person, potential client, insurance company or vendor with whom I come in contact represents another choice.  Indeed, the exhibitionist may not care about the peering astronomer with the new telescope, whereas someone else may get mad that someone saw their beach vacation photos.Return to Top

    The laws, policies, and commercial rules developing reflect the depth of a very difficult and not fully understood problem. In many ways, the very benefits of technology are not only in some ways threatening to our very fundamental concepts of economic freedom, but our personal freedom as well.

    With the arrival and development of the internet, and digitization of more forms of data and information, three fundamental problems are working against "us".  The technology causes us to place information into virtual public spaces and throughways (wireless communication, online activity).  The traditional repositories of our private information can be compromised (doctor's office, bank accounts, investment accounts, local merchant purchases).  And, fundamentally, the transfer of such information can occur at the speed of light so traditional protections and secondary remedies through law enforcement, civil suit, self-help data changes, etc are no longer adequate.  Indeed, in identity theft cases, even though the perpetrator may eventually be caught, there lacks any proportionality  between the damage that can be done and the sanction that can be applied.  Credit card, Social Security numbers and other data can be sold and used multiple times over, all over the world--and the effects of that rapid abuse can linger for years to follow.  And this is true even though there are in place laws which limit the financial impact of unauthorized usage.

    There is another level to the debate---and this concerns the infringement by government.  We are facing the dilemma that in order to protect us from threat by these, as well as overt external forces, we are being required to surrender increasing amounts of our "private infomation" to the scrutiny of government.

    Government and perhaps evil third parties have an increasing arsenal.  Hackers can crack data banks of your doctor's office and find out your medical history; insiders or employees at online retail institutions can order and send product to postal boxes at distant locations for months without it being recognized; "sniffing" or keyboard logging devices and software can remotely track your travels on the internet; "cookies" or mini-scripted software programs can log your spending habits and find out if you are dieting, ordering medication, or visiting porno sites.  Sophisticated networks of computers literally gather and decipher  every online, landline and wireless transmission of communication worldwide through the Echelon and Carnivore programs jointly supported by US and British intelligence agencies.

    It is my belief that once the level of the debate over infringement gets this high, we begin to lose sight of the closer to home, more important aspects of privacy---like the access code for your home alarm system being compromised.  I think eventually protecting our privacy, and preserving as much of it as possible, will require us to learn as much as possible about where we are and are becoming vulnerable--and taking steps to at least be vigilant.  The law is going to have to reflect a sharing of the risk among the various actors: retailers, those in whom we repose private information, as well as government.    Recently, I experienced some credit card fraud.  Because I had "on line" access to the account statement, and I limited my credit card usage to one or two accounts, I was able to "jump" on the problem fairly quickly.

    However, I am active purchaser on the internet, and this will not deter my usage of the internet, nor my continued exploration.

     

     

    Return to Top

     

    • Some additional links

    Credit rates have dropped significantly and this includes credit cards.  Ever since its first introduction via the "Diners Club" in the mid-50's, the credit card has taken on broader and broader functions.  There are a number of websites dedicated to providing information about all of the nearly 1000 credit cards available on the market. With a high enough FICO score, one can literally negotiate their own rate these days, including credit limit, cash advance fees, etc.

    Check out some of these sites concerning credit cards:

    www.bankrate.com
    www.cardweb.com
    www.creditcardmenu.com
    www.creditcardadvisor.com
    www.creditcardfreedom.com
    www.cardratings.com
    www.creditquotes.com
    Return to Top

    Some other links
    For budding authors.  This site will publish your ebook, market it for sale, all for a starting price of $399.  Referral editing services, everything- First Books www.1stbooks.com
    Unique and well crafted legal site.   However, findlaw.com is the best legal site around---Attorney's Toolbox http://www.mother.com/~randy/tools.html
    Two legal forms sites:
    • 8,000 FREE online court forms in ONE location 
    • Findlaw.com legal forms 
    		 http://ad.doubleclick.net/clk;1688415;5094993;x  

    http://ad.doubleclick.net/clk;2428114;4669019;i

    Best book search/bot:  ISBN http://www.isbn.nu/welcome.html
    Computer Law Association http://www.cla.org
       

    My further updates will follow.
     
    Sincerely,
    Gerald Spala
    January 14, 2002

    Copyright, 2003 Gerald A. Spala, Esq. All rights reserved. The materials and opinions contained herein are not intended as legal advice, nor should  be relied upon as legal advice in the absence of a complete and thorough consultation or review of your matter by a licensed attorney.  A complete version of terms and conditions can be reviewed by clicking here.

    If you have comments or suggestions, email me at mail@geraldspala.com

    This page created with Front Page 2000 Ver. 4.02.  

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