Esq.Me

By Dina Eisenberg, Esq.

EsqMe Member

Summer is just around the corner. Remember those warm summer nights filed with fireflies? Lazy days at the beach. Barbecuing! Who doesn’t want to slow down and enjoy?

Of course you should take a break. Did you know that women who take a vacation once every 6 years were 8 times more likely to develop heart disease according to the Framingham Heart Study.  

Taking time away from your work gives mind and body a chance to rest and be nurtured. Self-care isn’t a luxury; it’s a business tool..  Just because you’re gonna slow down, though, doesn’t mean that your law practice should stop moving forward. Summer is an excellent time to complete the foundation work that will accelerate your law practice growth. Let’s focus on attracting a better client.  The strategy is to understand what it’s like for your potential client to discover, live with and try to resolve a legal problem. With that knowledge, your messaging resonates with the right clients and repels the rest.  

Complete these marketing projects now and you’ll be ready for a prosperous fall and beyond.

Conduct a ‘win/loss survey’

You win some,you lose some as a business owner. Clients don't always select you to be their legal advisor.  It is important to know why the prospect made their decision either way.

Hire a market research firm or virtual assistant to perform a win/loss study for you. To get objective results it’s best to use a neutral 3rd party. With this data you can adjust your messaging so you attract more of the clients you want.

What type of client hires your firm and why?

Hire a researcher to gather local data on your ideal best client

Lawyers rarely end up practicing in the area they originally intended so you might not know your clients as well as you’d prefer.

Research your best clients (the ones who appreciate your expertise and value your services by paying on time) to discover the groups they belong to; where they hang out online and off, and the journey your prospect takes before finding you. Go beyond the basic demographics to understand how your clients think.

How does your ideal best client think about their legal problem and where do they turn for help online and off?

Get your message across in an effective way by hiring a writer

As a lawyer you know how important it can be to use the right words.   You want the words and tone you use on your website and materials to align with the way your client thinks and talks.

Hire a writer to help you identify your vision or mission and get it out of your brain and onto paper in words that resonate with your IBC.  A simple tweak can bring you more prospects and clients. Clients want to know who you are and why you practice law.

For example, you can sharpen your focus.  Originally, I talked about saving time as the driver for lawyers to learn to delegate.  However, as I worked with more clients and researched, I learned that the ideas of control and balance resonate more than saving time with my clients who are busy juggling work with home.

Adjusting the language on my site to talk about designing a life,  families and being there for those special moments boosted my leads.  You can do the same.

Take a moment right now to decide which of these projects you plan to commit to for June. Feeling ambitious? Do all three.

Each project can be delegated to a virtual assistant, who can do the work for you, with a bit of guidance from you.  You’ll have so many new clients after you make these changes you’ll have a new problem. You’ll need to hire a freelance lawyer to help you!

By Carlos Méndez Pérez

Esq.Me Team Member

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Consumer Data has been a topic of discussion for years, but it has grown into a hot topic in the past few months. The news about Cambridge Analytica and Facebook is only one example of how businesses are failing to uphold the privacy of their consumer’s information as they promise. Grindr is yet another example after it was discovered that the social dating app shared their user’s HIV/AIDs status with other companies. These incidents are a result of companies trying to self-regulate their collection and protection of consumer data. Here are 3 things to understand about how companies self-regulate, and why they need to do better.

1. Privacy Policies: Contracts or Disclaimers?

The Business Dictionary defines a privacy policy as a “statement that declares a firm's or website's policy on collecting and releasing information about a visitor. It usually declares what specific information is collected and whether it is kept confidential or shared with or sold to other firms, researchers or sellers.”

Policies are intended to provide users notice as to how a website collects information, the kind they collect, and what they do with it. Unfortunately, people rarely read these policies, let alone understand them. Many people simply click accept because they assume the website will not do anything serious or harmful.

The illusory nature of Privacy Policies and Terms on a company’s website raises questions about the inherent and actual strength of these policies and whether there are any actual legal consequences for violations. Many argue that privacy policies are like contracts: a website offers a user access to a site if they agree to its terms; a user considers the terms, then accepts in order to navigate the website. Some courts have found in favor of viewing policies as contracts when it’s shown that a user relied on the terms in order to navigate the website. Other courts, however, have viewed policies as unilateral corporate statements that are insufficient to form a contract.  Furthermore, courts still struggle with the issue of proving damages resulted from a breach in policy.

2. Sharing of Information: Voluntary Disclosure and Assumption of Risk

As mentioned, it can be difficult to show damages or injury resulting from the unauthorized disclosure of information and breach in policies. Another obstacle is that courts often find that users already authorized the use of their information by disclosing it to a website. This problem of consent is complicated depending on the information that is disclosed or shared, and whether it is truly ‘private.’

The information that’s at issue during many of these data breaches or disclosures involves Personally Identifiable Information (PII). Personal Identifiable Information is, essentially any information that might connect the information to a particular user or individual. The Department of Labor, for example, defines it as “Any representation of information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means. Further, PII is defined as information: (i) that directly identifies an individual or (ii) by which an agency intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification.”

Privacy Policies often specify what information they collect, and for what purposes. However, even when companies share this information in a manner that falls outside of the bounds stated in their policies, courts will rarely find any violation. This is because, in their analysis courts are more than likely to find that the information disclosed to these websites was voluntary on the part of the user, and therefore they assume the risk that these businesses will share it with other third parties.

This notion is similar and echoes the Court’s analysis to constitutional issues involving the Fourth Amendment, and the Third Party Doctrine. The Third Party Doctrine states that if you voluntarily provide information to a third party (such as a bank, a cell phone provider or a website), a warrant is not necessary for the Government to access the information. The Supreme Court is currently reviewing a case involving the Third Party Doctrine and a company’s disclosure of a user’s cell phone location to determine whether the Government required a warrant, or if the company could disclose the information via the Third Party Doctrine. This decision could have a rippling effect not only to the Fourth Amendment and the Third Party Doctrine, but also as to how companies choose to share information, and with whom.

Courts need to ensure that companies uphold the terms within their own Privacy Policies, and should disallow a user’s voluntary disclosure of information to serve as broad authorization for businesses to share such information at will.

3. FTC Enforcement of Policies and Broken Promises

The Federal Trade Commission (FTC) has become the defender of consumer rights and their privacy. The administrative agency was given the power to protect consumer privacy via its authority to prohibit unfair or deceptive acts or practices in or affecting commerce. The FTC’s website explains they will take law enforcement action against companies to make sure they live up to the promises they offer their consumers, and often go after companies that violate their terms of service or privacy policies.

However, the FTC’s abilities are limited and many question their actual effectiveness in holding these companies accountable. After all, the FTC’s power is limited to injunctive relief and decrees until a company violates those, whereupon the FTC has the ability to impose monetary fines Many claim that the FTC lacks the bite it needs to make an actual impact on companies to ensure they value their consumer’s privacy, as opposed to rewriting their policies to avoid potential violations.

The FTC stated that it is investigating Facebook for the potential policy violations that resulted from the Cambridge Analytica scandal, but many wonder if there will be any real impact, or if the investigation will fail to remedy the problem.

So what does this mean to consumers?

This means that consumers need to have more control over their personal information and privacy rights, and that the Government needs to ensure the companies are held liable for their own privacy policy breaches. If the Privacy Policy is deemed to be a contract, then consumers may argue unconscionability, both procedurally and substantively. If Privacy Policies are not deemed contracts, then consumers are given very little control over the disclosure of their personal information.

Companies have no legal incentive to keep our information safe unless they are held accountable for these violations of privacy of consumers’ information. The current privacy regime needs a major overhaul, or else companies will continue to share the information they collect with vague, broad, and almost blanket authority, to do so.

I am a current law student at New York Law School and hope that this information can help you in your law practice. Please note that none of the above in this article should be construed as legal advice, and are instead, my opinion and research.

For more information on the subject:

Facebook and Cambridge Analytica: What You Need to Know as Fallout Widens

FTC Confirms it’s Investigating Facebook for Possible Privacy Violations

Grindr is Sharing Your HIV Status with Other Companies

MoviePass CEO Addresses Privacy Concerns, Says App Never Monitored Users’ Locations

Is a Website’s Privacy Policy a Binding Contract?

In re JetBlue Airways Corp. Privacy Litigation, 379 F. Supp. 2d 299

Dwyer v. American Express, 273 Ill App. 3d 742

Snapchat Settles FTC Charges That Promises of Disappearing Messages Were False

FTC, Toysmart.com Settle

15 USC 45

Privacy & Data Security Update (2017): An Overview of the Commission’s Enforcement, Policy Initianitiatives...

By Carlos Méndez Pérez

Esq.Me Team Member

Image Source 

All eyes are on Europe now as the Union works to implement their new data protection regime, one that is expected to have a ripple effect into the States. Europe is known for having a regulated privacy regime when it comes to consumer data, as opposed to the United States’ decentralized and self-regulating regime. The General Data Protection Regulation (GDPR) hopes change how the US treats data collection, processing, and use. Within this article, we discuss Europe’s current data protection laws, America’s laws and its changes, and how these changes may impact your business.

1. Europe’s Privacy Protection Regime

Europe is known to be have a greater regulatory scheme in terms of consumer data and protection, and provides certain rights such as the right to be forgotten online.  Before the GDPR, Europe had the Data Protection Directive (DPD), a directive with the purpose to regulate the process of personal data within the European Union (EU). The Directive  establishes the same level of data protection throughout all member States, and facilitates the free flow of information through equal levels of protection.The directive was built on seven principles, including:

Notice;

Purpose;

Consent; 

Security; 

Disclosure; 

Access; and 

Accountability. 

The DPD made parties responsible for the data they managed during operations within the EU, but also when controllers used equipment in the EU to process personal data. The directive was such that even controllers outside the EU had to comply with the directive, even if they were processing data outside of the European Union.

What is Considered Personal Data?

The DPD defines personal data  as “any information relating to an identified or identifiable natural person (“data subject”).” It defines an identifiable person as one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

What is considered electronic communications? (WhatsApp, Facebook Messenger?)

The DPD applies to anyone who processes personal data. The DPD defines this process as any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

What does EU require from controllers?

The Directive requires processors of personal data to establish technical security safeguards, provide notification to users whose data is being collected, and establish ‘rights’ for users to be informed about their data, how it is used, and to object to the transfer or make corrections to the data information.

How many years do they have to keep their info for?

While the DPD establishes directives and guidelines for data collection and processing, the language within itself is broad and open to interpretation. For example, the DPD requires data be ‘processed fairly and lawfully,’ collected ‘for specified, explicit and legitimate purposes, and not further processed in a way incompatible for those purposes,’ and ‘adequate, relevant, and not excessive in relation to the purposes for which they are collected and/or further processed.’ It relies on the member states to ‘lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific used,’ but does not define what are appropriate safeguards within the expectations.

Do they need individual consent?

Processors require a person to consent, in the term that the user must give specific and informed indication of their wishes by which the subject signifies their agreement to the processing of their personal data. The DPD also requires a user to give unambiguous consent, and process the date only if ‘necessary’ to specific circumstances established within the directive.

Are Privacy policies enough to be considered consent and/or notice?

Whether privacy policies are enough to comply with the DPD is an issue that many argue and struggle with. A privacy policy is considered to follow an ‘opt-out’ policy, where users have to actively ‘opt-out’ of the terms of a website in order to refuse the collection of their personal data. Others argue that the notice and choice regime of these policies are the equivalent of giving the user’s notice and obtaining ‘consent,’ because its considered that by use of their website that users consent to the data collection and processing.

The DPD also requires that processors give the users information about who is collection their data, the purposes of data collection, and “in so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject.”

Are there any penalties and fines for breaches?

The Directive includes sanctions to member states that infringe on the provisions established within the directive, and allow for persons who’ve suffered damages as a result of ‘unlawful processing’ to seek compensation against the data controller.

How will the change affect these answers?

The DPD was a start for Europe, but innovation and developments in data collection required more than what the directive could provide. The proposal for a reform of data protection rules in Europe was submitted in 2012, with the intention to eliminate the fragmented and expensive administrative measures that came with implementing and enforcing the DPD across the different member states. The text was finalized and approved in 2016.

It’s important for practitioners to understand the European practice to be aware of the changes and implications to the laws.

2. The General Data Protection Regulation (GDPR)

The GDPR goes into effect on May 25, 2018, and will have a big impact on the United States’ data collection and processing as we know it. Among the changes are the right for users to access the personal information that companies collect, the obligation for companies to establish better management systems for collected data, and a series of fines for failure to follow the Regulation. Furthermore, the GDPR is expected to establish a responsibility for companies to obtain explicit consent of the people they collect information from and about.

The rules that companies must abide by when processing personal data information, and how companies must do so in a transparent manner for consumers to be aware of what data is being collected and for what specific purpose it is being used for.

What is the rule? Key elements or requirements

The GPDR established a series of ‘rights’ for the subjects of data collection, including notifying users of any data breaches “without undue delay,” the right to access the information that is being collected from them and for what purpose (including providing a copy of the personal data to access), and the right to erase certain personal data upon request. It also attempts to integrate ‘Privacy by Design,’ a concept used to describe the need of implementing appropriate technical and organizational measures in an effective way, as opposed of adding data protection measures after a system is fully designed.

Who does it apply to?

The GDPR applies to individuals, organizations, and companies that are controllers or processors of personal data. The Information Commissioner’s Office, who will be enforcing the GDPR, says that those subject to the DPA will likely be subject to the GDPR as well.

What does the GDPR cover?

The GDPR also covers both personal data, including information that can be used to identify a person (name, address, or IP address, for example) and sensitive personal data, such as genetic data, political views, sexual orientation, and more. The GDPR expands protection of consumer data by including pseudonymised personal data within the categories of information it protects.

How does this compare to what we were used to?

One aspect that has many companies and legal scholars questioning is the requirement of consent. The EU GDPR website explains that companies will no longer be able to claim consent from “long illegible terms and conditions full of legalese.” The GDPR requires that a request for consent be given in an intelligible and easily accessible form, with the purpose for data processing attached to said consent. It must be clear and distinguishable from other matters, and provided in an easily accessible form using clear and plain language.

What types of fines and penalties can companies expect?

The GDPR plans to impose severe penalties to companies in breach of the new regulations, with fines up to 4% of the annual global turnover, or 20 million pounds (whichever is greater.) The fines vary according to the seriousness of the infringing violation, such as not having sufficient consumer consent, or violating one of the core Privacy by Design concepts. However, the fines vary according to the violation, and such require companies to understand the ramifications of every requirement within the new regulations.

Some people still have concerns in regards to the GDPR and the effectiveness of the new regulations. For example, The GDPR requires companies to provide a reasonable level of protection for the personal data they collect, but does not define what constitutes reasonable. Business advocates also argue that the GDPR places too high a standard for companies, and it will impact how these companies administer or do business across Europe.

Any company that stores or processes personal information about European users or within the European countries will likely have to comply with the GDPR. The GDPR is important for practitioners and companies to be aware of, because the changes may require revising privacy policies for the sake of compliance, and ensure that the manner of data collection established on their sites is being effectively disclosed to their users.

What does this mean for a consumer? What does this mean for a company?

For consumers, the GDPR hopes to provide users greater access and information to the types of data that companies and websites collect and process, as well as clear detailed information as to their purposes for data collection. For companies, the GDPR strives to integrate the concepts of consumer privacy into the design and method to which they collect user data from their websites, while also ensuring compliance to the GDPR specifications, or face high penalties for such violations.

3. US v. EU: Impact of the GDPR on US Statutes

The GDPR also has further implications on existing US federal statutes that regulate certain data and data collection. One of these laws is the CAN-SPAM Act, a law that establishes rules for commercial emails, mostly known as spam or advertising emails. The Act applies to all commercial messages, which are defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites.

The GDPR impacts the CAN-SPAN Act because emails that are sent out to European countries will also have to abide to the new Regulation requirements. Specifically, CAM-SPAN requires users to ‘opt-out’ from e-mails, which means that email marketers can continue to email these users so long as they don’t take action. The GDPR, however, requires consent from a user in order to process user information and data.

This is another example of the difference between European privacy laws and US privacy laws. European law often requires explicit consent from users via an ‘opt-in’ option, while the US allows consent to be interpreted via the user’s use of a website or platform, and provides them an ‘opt-out’ option if they so choose to refuse the collection of data. It is a result of Europe’s centralized privacy regime in contrasts to the US’ deregulated regime of privacy and data collection.

Practitioners need to be aware of these new regulations and how they may affect, impact, or even contradict existing US laws in order to ensure compliance and avoid fines.

What does this mean for US attorneys in May 2018?

Data Collection and Privacy within the US has been predominantly limited in regulation to certain areas of information (Financial, medical, and legal institutions). Companies that collect and process consumer information, but did not collect certain type of information, are given the discretion to determine their own policies and methods for data collection. With the GDPR on the rise, practitioners need to be aware and advise clients that there are new requirements in place, and companies will need to comply or learn to avoid processing and collecting data from Europe altogether.

I am a current law student at New York Law School and hope that this information can help you in your law practice. Please note that none of the above in this article should be construed as legal advice, and are instead, my opinion and research.

For more information on the subject:

EU GDPR Key Changes

Data Protection and Privacy

America Should Borrow Europe’s Data Privacy Laws

What is the GDPR, its requirements, and deadlines?

What is the GDPR? The need-to-know guide

Summary: The EU General Data Protection Regulation

GDPR: What Europe’s New Privacy Law Means for E-Mail Marketers

Your Go-To Guide to CAN-SPAM, CASL, and GDPR

By Carlos Méndez Pérez

Esq.Me Team Member

Image Source

The name on everybody’s lips is Stormy Daniels. The adult film actress became the center of attention after speaking out about her sexual affair with president Donald Trump, and the non-disclosure agreement she was made to sign to keep quiet. Now, her fight to void the agreement and tell her story has many questioning the legal ramifications, from contract enforcement to campaign contribution violations. Here are 4 legal issues that you should be following.

1. Can You Keep It?: Enforceability and Breach

One Stormy Night in 2006,  Daniels had a sexual encounter with Donald Trump. Then, days prior to the 2016 presidential election, Trump’s Attorney, Michael Cohen, sent Daniels a non-disclosure agreement (NDA) to prevent her from speaking out about the affair and subsequent encounters.

In March 2018, Daniels and her attorney, Michael Avenatti, filed a civil suit in California challenging the validity of the NDA on the grounds that Trump never signed it. While both Daniels and Cohen signed the Agreement, there is a blank signature line where Trump was expected to sign the contract. They argue Trump’s failure to sign makes the non-disclosure agreement void.

Daniel also argues that, even if Trump’s lack of a signature on the Agreement does not render the Agreement void, Cohen violated the terms of the Agreement himself by making statements about the affair, including statements in a New York Times article where he admitted paying Daniels $130,000 out of his own pocket.

Some question the conscionability and sweeping language that is included in the Agreement. Specifically, the Agreement does not only bar Daniels from speaking about her sexual affair with Trump, but from doing anything that might “publicly disparage” Trump. Such a broad provision could be deemed unconscionable and thus invalid due to the greater power given to Trump as opposed to Daniels. Many argue that the Agreement is vague and ambiguous, and could even be in violation of Daniels’ First Amendment rights to free speech. Further, if it’s in the public’s greater interest, once could argue that this information should be rightfully disseminated. There is also a potential news and media exception to her rights under the Agreement.

It’s important to understand the provisions included in the Agreement and the timeline of events to understand why this Agreement has raised so many red flags in regards to Trump and his administration.

2. This One You’ll Save: Use of Campaign Contributions or Funds

Michael Cohen paid Stormy Daniels $130,000 for her silence just days before the election. Cohen stated he paid Daniels out of his own pocket, through a company named Essential Consultants LLC, and that he was never reimbursed by the Trump Campaign or the Trump Organization.

Common Cause, a government watchdog group, filed a complaint with the Federal Election Commission stating that the payment, which occurred days before election day, was an in-kind contribution, and a violation of federal campaign laws.  Campaign Legal Center's Larry Noble explains how the payment could be interpreted to be funds spent to boost Trump’s campaign. “What Trump did as a private citizen is not relevant to the campaign finance laws," Noble explains, but states that Trump’s actions as a presidential candidate, and what his campaign did, may be relevant to the campaign finance laws.

3. Taking this One to the Grave: The Arbitration Clause

One of the provisions within the Agreement stated that the parties agreed to binding arbitration, and therefore waive their right to a lawsuit over any breaches. The Agreement states that “Any and all claims or controversies … shall be resolved by binding confidential Arbitration to the greatest extent permitted by law,” and that “by agreeing to arbitration as provided herein, each of the Parties is giving up any right […] to a trial by judge or jury...”

The validity of the Agreement affects Daniels’ method of resolution because if there was no signature by Trump, then there was no valid NDA and, therefore, no Agreement to arbitration. However, MSNBC legal analyst Danny Cevallos argues that even if the contract itself is invalid, the arbitration clause might still prevail. “Arbitration clauses are generally independent of the larger contract in which they are embedded,” Cevallos explains. “Unless there is a specific attack on the arbitration agreement itself, that part must be enforced.” Trump already obtained a restraining order from an arbitrator to keep Daniels from “disclosing or inducing, promoting, or actively inspiring anyone to disclose Confidential information.”

The path in which Daniels is able to resolve her lawsuit against Trump could make or break the other issues, and leave Trump open to further scrutiny under depositions.

4. Now You’re Telling Lies: Deposing the President

Daniels amended her lawsuit and included a defamation claim against Michael Cohen. Along with the amended complaint, Daniels' attorney demanded to depose both Trump and Cohen about their knowledge and involvement in relation to the NDA and $130,000 payment. Avenatti's motion would require the President to explain, under oath, what he knew about the Agreement and when he knew about it. Trump’s testimony could potentially play a role in determining whether campaign finance laws were violated by the President, Mr. Cohen, or the Trump campaign.

As of March 30 of 2018, Judge Otero of the US District Court for the Central District of California denied Daniel’s motion. The judge deemed it “premature” since neither Trump nor Cohen’s LLC company’s have yet filed a petition to compel arbitration, even though they have claimed they’re going to do so.

Avenatti’s requests to have Trump testify in a deposition is important because of precedent. Many compare Daniels’ lawsuit to the Paula Jones’ sexual harassment lawsuit against former President Bill Clinton, which led to his impeachment after lying about his affair with Monica Lewinsky. Daniel’s lawyer even cites to the Clinton case in his motion, and how the majority in that case concluded that the "Constitution does not offer a sitting President significant protections from potentially distracting civil litigation."

Everyone Tells

Stormy Daniels is not going away any time soon. Despite moral, ethical, or personal views people may have about the affair, Daniels’ legal battle will continue, and so will Trump’s reprisals against her. This is not the end of the ongoing legal dilemmas that continue to arise from the controversy.

I am a current law student at New York Law School and hope that this information can help you in your law practice. Please note that none of the above in this article should be construed as legal advice, and are instead, my opinion and research.

For more information on the subject:

Stormy Daniels Shares Graphic Details About Alleged Affair With Trump

Stormy Daniels Files Suit, Claims NDA Invalid Because Trump Never Signed It

Michael D. Cohen, Trump’s Longtime Attorney, Says He Paid Stormy Daniels Out of His Own Pocket

Stormy Daniels Lawsuit Opens Doors to Further Trouble for Trump

Stormy Daniels Sues Trump Lawyer for Defamation

Stormy Daniel’s Lawyer Seeks to Depose President Tump, Michael Cohen

Judge Denies Stormy Daniels’ Motion to Depose Pres. Trump & Michael Cohen

Could Stormy Daniels’ Lawsuit Open the Door to Trump Depositions and a ‘Fishing Expedition’?

Stormy Daniels’ Legal Battle Against Trump, Explained

White House says Trump Won Arbitratior order Against Stormy Daniels

Trump Lawyer Obtained Restraining Order to Silence Stormy Daniels

By Carlos Méndez Pérez

Esq.Me Team Member

Image Source

Technology is an innovation that provides new solutions to old problems, but it can also provides new problems to resolve. Revenge porn is one problem that’s made worse due to technology, but legislators are now fighting back. There are 38 states with revenge porn laws on the books, and New York is working to become the 39th state. Just this year, New York City implemented a nonconsensual pornography law with criminal and civil remedies.  This article hopes to educate practitioners on what nonconconsensual pornography (NCP) entails, what New York is doing to battle it, and why current alternatives aren’t enough.

1. Defining Nonconsensual Pornography

The Cyber Civil Rights Initiative defines Revenge Porn, or “nonconsensual pornography,” as “ the distribution of sexually graphic images of individuals without their consent.” We use nonconsensual pornography, as opposed to revenge porn, to encapsulate both intimate partner incidents, such as dissemination of private images to get ‘revenge’ on their ex-partners, and unrelated third party incidents, such as sextortion and threats of disclosing private images by hackers and third parties.

A victim can become the target of harassment due to a scorned lover, or because an absolute stranger accessed their images and used them against the victim. Practitioners should be aware that the concept of revenge porn and nonconsensual pornography is not limited to individuals who have a prior relationship, and is not an element that needs to be met. Practitioners should be mindful of a victim’s situation, and avoid erroneous presumptions.

2. New York’s Position

In his 2018 State of the State, Governor Cuomo proposed to outlaw sextortion and nonconsensual pornography by establishing a range of criminal sentences.  The proposal criminalizes an individual who discloses, or threaten to disclose, without consent, images or videos of another person's intimate body parts or the person engaged in a sexual act when the person had a reasonable expectation that such recording would not be disclosed. Cuomo’s proposal follows upon the New York’s City Council’s unanimous vote in November 2017 to pass a nonconsensual pornography bill which makes it it a misdemeanor to disclose, or to threaten to disclose, the intimate images of someone without their consent and with the intent to cause harm.

While these laws hope to provide relief to victims, they are not perfect solutions. The NYC law only covers dissemination of intimate images that were done with the intent to cause harm. But this intent requirement may be a high bar for victims to prove. Mary Anne Franks, Legislative & Tech Policy Director for the Cyber Civil Rights Initiative, argues that the intent requirement “mischaracterizes the underlying harm of abuse,” and could exclude dissemination of  images for profit or entertainment purposes. The law also provides an exception to disclosures that are “protected by the first amendment of the United States constitution.” Franks argues that, while an intimate image may be protected by the first amendment, sharing it without someone’s consent should not be protected.

Practitioners should be aware of their individual State’s laws because of the new legal remedies it may provide to victims, but also because of the potential drawbacks and challenges that are implicated within them.

3. Alternative Legal Routes

Due to the lack of NCP laws in some states, many attorneys rely on alternative legal routes. The problem is that nonconsensual dissemination of images isn’t often covered by existing laws. Some elements may overlap with criminal law, such as stalking and harassment, but they only apply if a victim is able to show that the disclosure is part of a pattern of conduct directed at the victim with intent to distress or harm. These laws do not cover single instance disclosures, or diseminations that are motivated by money or notoriety.  

Another alternative is copyright law. Many intimate images are taken by the victim themselves and, as “authors” of their photographic work, would own the copyright to them. Victims would be able to control the distribution and reproduction of these images under copyright law. Furthermore, they can then use the takedown provisions provided by the Digital Millennium Copyright Act (“DMCA”) to ask websites that host the images to remove them. But copyright law also has its limitations: protection is limited to images taken by a victim themselves, and while it may remove one image on a website, it requires the victim to make each individual request to each website hosting the images.  It also only provides for monetary and/or injunctive relief for the victim.

Privacy Tort Law is yet another route that tries but fails to fully protect from the social harm. As  Professor Ari Waldman explains in his article, privacy torts are not always viable claims because the images have already been shared or disclosed to another person; even then, these torts require plaintiffs to jump over high evidentiary hurdles. The tort of public disclosure of private facts, for example, creates liability when someone discloses the matter concerning the private life of another that is “highly offensive to a reasonable person,” and “not of legitimate concern to the public.” The disclosure of an intimate image would fall under this tort because of its offensive nature, but the tort usually requires a widespread ‘public’ disclosure, and it is unclear whether the tort would cover limited or one-person disclosures. Furthermore, due to the ever-changing expectations of a reasonable person, the tort may not be able to protect a disclosure of image.

While these options may not work for every case, practitioners should be aware of their alternative routes to ensure they can provide their clients a solution. In states that have yet to pass a nonconsensual pornography law, these may be the only remedies they can turn to.

What Does This All Mean For Practitioners?

Practitioners and the public alike need to understand that nonconsensual pornography is not just the epilogue to a bad break up. It is a violation of privacy that affects both the victim and societal norms. The increase of state action against nonconsensual disclosures displays a shift in the right direction and in understanding the problem. Attorneys should be aware of the available routes to offer their clients, and ensure they can give their clients a comprehensive response to their private matters.

I am a current law student at New York Law School and hope that this information can help you in your law practice. Please note that none of the above in this article should be construed as legal advice, and are instead, my opinion and research.

Sources: 

Institute to Combat Cyberharassment Launches in Memory of Gay Teen

38 States + DC have Revenge Porn Laws

Revenge Porn Will Soon be a Crime in New York City

What is Revenge Porn? FAQ

Governor Cuomo Unveils 11th Proposal of the 2018 State of the State

The New York City Council - File #: Int 1267-2016

Revenge Porn is Finally Criminalized in New York City

Our Best Weapon Against Revenge Porn: Copyright Law?

A Breach of Trust: Fighting Nonconsensual Pornography

What is Nonconsensual Pornography?

Debunking the First Amendment Myths Surrounding Revenge Porn Laws

By Carlos Méndez Pérez

Esq.Me Team Member

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We’ve all heard the common phrase that,  “Sticks and Stones may break my bones, but words can never hurt me.” However, they can, and they can have serious legal consequences. ords can have a deep impact on people, and can negatively impact a person’s mental health. Victims of online harassment and abuse have to work even harder to go after their harassers, because they often have to track them down through anonymous or fraudulent online accounts. Sometimes we overlook these types of harassment cases, but let’s not forget that everyone deserves justice, and victims of cyber-harassment often find solace in facing their accusers through legal remedies. Here are three issues to consider when working to battle online or cyber-harassment for your clients.

1. Unmasking Anonymous Users

Anonymous speech has been described as a vital role in humanity’s progress. It allows underrepresented and minority voices to speak without fear of persecution. However, this ‘shield’ has become a sword to target these underrepresented and minority voices; trolls and harassers alike berate individuals online under the guise of anonymity, and amass a following in the process. But, anonymity is not a catch-all shield against prosecution. In New York, for example, a woman was granted her petition to require Google turn over the identity and contact information of her online harassers.

A person’s online profile may be anonymous or devoid of contact information, but there are methods to ‘unmask’ them. Michael Roberts, founder of Rexxfield, explains that a person’s Internet Protocol (IP) address can help pierce the veil of online anonymity. An IP address connects a person’s computer to a physical address; that IP address is logged both by the Internet Service Provider (ISP) and by the website hosting the content. Internet Service Providers (ISPs) tend to delete IP information after six months, so it’s important to acquire the address before it’s deleted from the systems.

Unless a company agrees to hand over a user’s information, attorneys require a court order or subpoena to demand the disclosure of a user’s information. Furthermore, IP addresses can only tell you where the user’s computer is located; it can’t specify the user that made the post on that computer. Rexxfield’ founder explains that social forensics, such as digital forensics and linguistics, are tools that help narrow down a user’s online habits, such as their most frequented visited pages or social networks. While forensics and experts may prove too costly for an ordinary practitioner, acquiring an IP address has become an efficient first step in unmasking a defendant.

2. Online statements considered as opinion rather than defamatory “facts”

Tort law allows individuals to go after online harassers and commentators through defamation or libel claims, but these actions require that the victim go after a user for false statements made against them, not opinions. States vary in the requirements for a defamation claim, but the common elements require (1) a false statement concerning another, (2) an unprivileged publication to a third party, (3) fault that amounts at least to negligence on the part of the person posting the statement, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

New York follows a similar practice, but provides a statement's truth or “substantial” truth as an absolute defense. New York also considers the context of a statement, and whether it would be reasonably susceptible of a defamatory connotation. Defamatory statements that occur during the a “heated public debate,” in which an audience would reasonably anticipate "epithets, fiery rhetoric or hyperbole," are also not actionable under New York law.  

This context requirement, coupled with a “substantial truth” standard complicates matters; statements made on the internet are often viewed as an individual’s opinion, not actual statements of fact. Unfortunately, social media casts a broad net for their users: giving rise to the common, yet perhaps rebuttable, presumption that posts are unactionable opinions instead of defamatory statements.

However, this guise does not fool everyone.   For example, a couple won a defamation suit in Texas against anonymous posters on an online forum who accused them of committing numerous criminal acts. It is important to remember that words can be actionable, and that a statement’s online nature does not give it carte blanche protection.

3. Using a platform’s Terms of Service

Claims of cyber-harassment may prove difficult in a court of law, but there are also alternative tools to help a client find relief or a solution. Social media platforms now include terms of service for their services, and allow users to report those who violate these terms to block, suspend, or terminate their accounts. Facebook describes their terms as Community Standards, and will often review the content on their platform to ensure the safety of their users; it also provides an option for people to report matters directly to them.

Another example is Twitter, which recently updated their terms of service to tackle the the issue harassers, social bots, and trolls on their website. Many claim it was a result of Twitter’s inability to punish repeat offender harassers. Among the additions to their new terms include taking active measures against accounts disseminating and promoting non-consensual pornography; unwanted sexual advances; and reviewing accounts and postings that would contain hate symbols or imagery, violent groups, or tweets that glorify violence. It is yet unclear how these new terms will impact behavior on their platform, but it will give victims a greater sword in which to go after their attackers and to report them. At the very least, a showing that a harasser is violating a platform’s terms of service could help supplement any legal claims against them.

What are attorneys and victims to do?

Cyber-harassment is still a relatively new field in the law. Attorneys work to apply old law to new technology. While it is a difficult task, it is not impossible. We’ve seen that courts may allow for the unmasking of anonymous online individuals, and they are growing more conscious of the impact social media has in the field of opinion and factual truths. Private social networks may have their own methods to help take down these abusers, and they allow an alternative tool to take into consideration. Practitioners must learn and understand that words can have just as bad an impact as sticks and stones, and can be just as actionable in the law.

I am a current law student at New York Law School and hope that this information can help you in your law practice. Please note that none of the above in this article should be construed as legal advice, and are instead, my opinion and research.

Sources: 

Restatement 2d of Torts, § 558 (2nd 1979)

Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 (1st Dept 2014)

Jacobus v Trump, 55 Misc 3d 470, 475 (Sup Ct, NY County 2017)

Google Ordered to Name Online Bullies Who Anonymously Bullied Former Model on Youtube

How to Identify Anonymous Bloggers, Internet Trolls

How to Identify the Anonymous Online Defamer

How to Identify Anonymous Bloggers, Internet Trolls

Jury Awards $13 Million in Texas Defamation Suit Against ‘Anonymous’ Posters

Twitter’s Abuse Problem is Absolutely a Failure of Leadership

Here are Twitter’s Latest Rules for Fighting Hate and Abuse

What is Cyberbullying,

Internet Private Investigations,

Glassdoor Ordered to Unmask Anonymous Users in Criminal Inquiry

Here are Some Companies Who Unmask Anonymous Web Visitors and Why They Do it

Can You Sue For Online Defamation

By Carlos Méndez Pérez

EsqMe Team Member

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Artificial Intelligence (AI)  has gone from a revolutionary novel concept, saved only for dystopian science-fiction films in space, to becoming a necessary evil for innovation. It’s as common as Amazon’s Alexa, and as uniquely advanced as Sophia the Robot. AI is intended to simplify our lives and perform the analytical and critical thinking humans do in half the time. But, as we continue to rely on AI to solve our problems for us, it also tends to commit the same mistakes as us, especially in terms of bias. By teaching these programs to learn human behavior and later mimic it to provide a response, we run the risk of it falling into the same flawed or biased reasoning that humans do. Here are three things to watch out for when using AI.

1. Failure to Provide Diverse Data Information

An AI is only as smart as the creator who develops it, or better said, as the information its given. Programs depend on the baseline data programmers provide it to be able to perform its algorithmic calculations and provide analytical decisions. However, when humans provide incomplete data or data from a limited pool of information, it can cause the AI to produce human-like errors. A newsworthy example occurred in 2015, when Google’s Photo App recognition software kept classifying black people as gorillas. Three years later, the algorithm continues to miscategorize images, but now Google blocked the software from recognizing gorillas altogether. Nikon had a similar problem in 2010 with the face detection feature in its cameras; whenever an asian individual took a picture, a message would appear on the screen asking if someone blinked. Companies often chalk up the matter to a technological mistake or a glitch, but the underlying issue is within the biased data given to machines. Seventy-eight percent (78%) of computer programmers are male, and seventy-one percent (71%) of them are white.  This leaves a machine little information to respond from an under-represented population’s non-privileged perspective. In order to avoid these human biases being transmitted to machines, we need to provide a more robust, diverse data source. Otherwise, AI will continue to be focused solely on a a skewed set of population ande perspective that isn’t indicative or representative of the entire population who will ultimately use the AI features, and fail to recognize anyone else.

2. Human Input and Interaction

Artificial Intelligence learns to make decisions and respond to situations based on the data its given, but also from new data it comes across. AI will often interact with users and adjust or calibrate its responses according these new interactions, which means the audience the AI is exposed to can resolve or exacerbate biases. As the Guardian describes it in an article, “as machines are getting closer to acquiring human-like language abilities, they are also absorbing the deeply ingrained biases concealed within the patterns of language use.”

Once AI learns biased behavior from users, it will repeat it because it is unable to consciously counteract learned biases in the same way humans do. Machine learning tools like “word embedding” show how AI responds to human interaction. The tool interprets speech and text by assigning words value and clustering them into similar word groups. The tool found words for flowers are clustered closer to words linked to pleasantness, while words for insects are closer to words linked to unpleasantness, reflecting common views on the relative merits of insects versus flowers. The tool appeared harmless, until it showed that predominantly white names were associated to pleasant words, and predominantly African American names were associated to unpleasant words. By being fed biased views, the AI ends up providing biased results.

Combating these potential biases is a difficult challenge, but not impossible. These algorithms have to be modified and designed in a way to understand language without depriving the AI the power of interpreting and learning from data. As Sandra Wachter, a researcher in data ethics and algorithms at the University of Oxford, explains it: “We can, in principle, build systems that detect biased decision-making, and then act on it. This is a very complicated task, but it is a responsibility that we as society should not shy away from.

3. Reliance on AI for Your Law Practice

As problematic as bias within AI is, you might ask “what does that have to do with the law and my practice? These are social and ethical dilemmas, not a legal matter.” The reality is that the more pervasive AI becomes within society, the greater our reliance for every facet of our lives will be. The nonprofit organization ProPublica described how overreliance on AI can have devastating impacts on people’s lives and on the law. They discuss how risk assessment computer programs, designed to predict future criminals, displayed a against black defendants:

“Risk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts [...] to even more fundamental decisions about defendants’ freedom. […] The results of such assessments are given to judges during criminal sentencing.”

The purpose of risk assessment programs are to provide insight to the judge, and offer a suggested, appropriate sentence. Advocates of the programs argue that they do not decide a defendant’s fate, but only help a judge reach a conclusion. In theory, judges are not supposed to give longer sentences to defendants with higher risk scores; they should use the tests primarily to determine which defendants are eligible for probation or treatment programs. But judges have cited scores in their sentencing decisions. They are often overworked, and face heavy caseloads. It is not surprising that, when presented with a program intended to help a judge make a decision, they will likely accept the information on good faith. The legal profession needs a comprehensive training on AI before it should use any implemented software to decide the future of individuals.

What Do We Do About Biased AI?

The solution for biased AI is not to give up on the program; these algorithms provide a benefit of offering efficient and fast solutions to human problems. But, we cannot rely on them as a ‘catch-all’ solution. We must be conscious that AI is only as good as the humans who create it. We must demand developers provide more diverse and enriching data, and hold them accountable when mistakes occur so that they make correct them.

I am a current law student at New York Law School and hope that this information can help you in your law practice. Please note that none of the above in this article should be construed as legal advice, and are instead, my opinion and research.

Sources:

Google ‘fixed’ its racist algorithm by removing gorillas from its image labeling tech

Face-Detection Cameras: Glitches Spur Charges of Racism

Computer Programmers Demographics

AI programs exhibit racial and gender biases, research reveals

Machine Bias

Artificial Intelligence's White Guy Problem

AI Learns Gender and Racial Biases from Language

Artificial Intelligence Can be Biased as Humans, But It Doesn’t Have To Be

By Sam Bone, Esq. 

EsqMe Member

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Alabama Relocation Letter Sample

Most states require you to send a letter to the other parent before you move. In Alabama, if you have already had a court determine custody between you and your child’s father, then you are subject to the Alabama Parent-Child Relationship Protection Act.  If you are the primary custodial parent and you plan on moving more than 60 miles or moving out of state, you must send a relocation letter to your child’s mother.

If you don’t follow the statute exactly, you risk losing custody of your kids.

What is the Alabama Parent-Child Relationship Protection Act?

Many folks call this the Alabama Relocation Statute. If you are moving more than 60 miles away from the child’s current residence, you must provide notice to your child’s father of this move.  

A simple text message will not work.  You can’t just call the other party and tell them you are moving.  An email or Facebook message is not enough. You have to follow Alabama law in detail and include each relevant detail or you risk the court not allowing the move.

You must provide notice to the other party by certified mail. Only certified mail will work.  A regular letter will not work.  

Your letter must be received by your child’s mother at least 45 days before you intend to move.  This is not 45 days from the date you send the letter.  It is 45 days from the date that the other party received the letter.

What should my Alabama relocation letter say?

This form makes things much easier for parents when they move.  Simply fill in the form with the needed information in full and then mail to your child’s parent by certified mail.

Click here for the Alabama Relocation Letter Example PDF

This form will cover all your bases for your letter.

What can my child’s father do to stop me from moving?

 Once he receives the letter, he has 30 days to object to the move. He has the right to file papers in Court saying she does not want you to move the child farther from her.

The court will then hold a hearing to determine whether the move is best for your child.

What happens if you move and don't send the notice to your child’s father?

The Court may use this as a reason for changing custody. If that is too extreme, the court has other options.  The Court can make you pay the increased visitation costs. The Court can even reduce the child support you get.

Bio

By Dina Eisenberg, Esq. 

EsqMe Member

Outsourcing is asking someone outside of your business for help and includes the coordination of three phases: pre-go, selection/management and close. Delegation is telling that person the best ways to help you achieve what you need.

Isn't it interesting that we delegate in our personal lives but it's so hard to do it professionally? what do you think that means? There are plenty of places to find great help online.  Here are a few of my favorite sites for you to explore.  Visit. Have a look around.

Most of the sites work the same way.  You, as the buyer, post your job and the sellers (who I like to call teammates) vie to be selected to do your work.  That's not how I like to do it though.  Instead of being swarmed by many more sellers than you want, it's a good idea to pre-select a few teammates and simply invite them to your job posting. Believe me, you'll save a ton of time and won't have to sort through all the prospects.

List of Outsourcing Sites

Clarity.fm- Expert advice on-demand.

Fiverr-largest marketplace of creative and professional services starting at $5.

Freelancer-worlds largest freelancing and crowdsourcing marketplace.

Toptal- provides a directory of vetted software engineers and matchmaking service.

Upwork- online marketplace; formerly Elance and Odesk.

Pre-Go Checklist

The first step in getting amazing results when you delegate is to be clear about what you want, and why. It’s like giving your ‘help’ a good roadmap with all the landmarks and wrong turns filled in. Your tool for the week is this Pre-Go Checklist which will help you clarify your what's and whys.  Pre-Go is the time when you have the most control over the outcome of your project. Spend time here and watch your success rate soar.

The first question is about your motivations. Knowing what you're working towards at the start of a project helps you to stay on track. It's much easier to pick the theme for your website & customize it when you realize that a finished, functional site is the tool you need for attracting and persuading clients to work with you.

The question about superior knowledge simply means is there anyone who can do this better than I can. Let me give you a hint.  The answer is yes 60-70 percent of the time.

Don't skip the success question. It sets the expectations for the project. What will it look like when your project  is returned and you're completely satisfied?  Write that down.  Think about what is a priority for you?  What is non-negotiable?  Recently I was working with a new VA who changed my password without my permission.  That's a big NO and breach of trust for me so we no longer work together.

Pre-Go Checklist

Why this project? Why now?

Do I have superior knowledge?

What does success look like?

What is acceptable and unacceptable?

What data is needed to ensure success?

How will I feel when this is completed?

Curious whether it's time to start delegating?  Take the quiz

By Carlos Méndez Pérez

Esq.Me Team Member

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We allow people to ‘own’ the rights to a logo or phrase because a business relies on its brand to reach out to its customers. A company’s brand recognition and goodwill becomes extremely important for the success of its business.  The internet and the rise of domain names have broadened the traditional definition of infringement with new claims such as cybersquatting that leads to consumer confusion. To help practitioners understand the importance of trademark registration, domain name registration, and the dichotomy between them, here are four ways to effectively establish a brand and defend against infringement in the digital era.

1. Protecting Your Brand: Trademarks

A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others. It is the ‘representation’ of an owner’s goodwill in the market, and establishes the relationship with its consumers. Trademarks are often registered through the United States Patent and Trademark Office (USPTO), and receive federal protection once approved.

Domain names, on the other hand, are the part of a web address that links to the internet protocol address (IP address) of a particular website. While trademarks are used to identify a good or service as to a particular source, domain names do not have such a requirement.

The use of a domain name may qualify for trademark use, and some trademarks can be incorporated into a domain name. But, the use of a domain name by itself does not qualify as a trademarked use, nor does registration of a domain name assure the owner any trademark rights over the domain name term. The two are not mutually exclusive, but some overlap may occur.

Practitioners need to be aware of the distinction so they can better educate their clients, but also to be aware of the different procedures needed to protect a mark both in the analog and the digital context.

2. Protecting Your Online Brand: Domain Names

A domain name is divided into hierarchies. The first segment, described as the top level domain name, appears after the last period in a domain name. The top level domain name in “esqme.com” is “.COM.”  The .COM name is the most common top-level domain name, and is used to indicate that the domain name is owned by a commercial enterprise. Other common top-level domain names include .ORG, .NET, .EDU, and .GOV.  

The second segment, described as the second level domain names, is the segment directly to the left of the top-level domain name. The second level domain name in “esqme.com” is “esqme”.

In order to register a second level domain name under a top-level domain, a request must be made to the organization that has the power to assign names for that top-level domain. There are now various registrars for which an individual can register a domain name with, and almost all are accredited by the the Internet Corporation for Assigned Names and Numbers (ICANN).

Practitioners need to understand the varied nuances in domain name registration, so they can properly educate their clients on the difference between registering a mark, and registering a domain name.

3. Protection From Freeloaders: Cybersquatting

The ICANN defines Cybersquatting as the bad faith registration of another's trademark in a domain name. It is the practice of registering names, often well-known company or brand names, in the hope of selling the domain name for a profit to the business or trademark owner.

The misuse of domain names has grown to the point that squatters will register variations of a popular site just so they may “reap the benefits” of any added traffic from users that may mistype the URL. Jeremiah Johnston, president of the Internet Commerce Association, explains how these variations can be valuable to squatters because the traffic on the sites can then be sold to advertisers. “If a mistype of your name is valuable to someone else you need to get it first," Johnston explains, and suggests companies register common variations of their domain name.

Clients may need to consider not only the name of their domain name, but consider other potential variations, as well as the possible misspellings that could result in web visitors to result in the improper site. The power of a domain name can also impact a client’s decision as to what they choose as their trademark.

4. Protection from Bad Faith: ACPA and UDRP

Congress enacted the Anti-Cybersquatting Piracy Act (ACPA), to provide trademark owners the ability to sue cybersquatters who are infringing on their trademark with their domain name. It provides a cause of action against the domain name owner who, with a bad faith intent, tries to profit off another’s trademark by registering a domain name that is identical or confusingly similar to a trademark. This alternative is a valuable tool that litigators can learn from court precedent, but can be time consuming and costly, and allows cybersquatters to continue causing damage while the matter is resolved.

On the other hand, the ICANN provides an alternative method known as the Uniform Domain Name Resolution Policy (UDRP). The UDRP is a low-cost administrative procedure used to resolve claims of abusive, bad faith domain name registration. These proceedings provide an efficient, low cost solution to a trademark owner’s problems because the entire process takes approximately sixty (60) days. However, the administrative proceedings do not always follow precedent, and the burden of showing a registrant’s bad faith often varies along the facts.

Practitioners should understand and review both alternatives and consider which is most appropriate for their clients.They should also be aware that if the UDRP proceeding is not in favor of their client, they are not precluded from bringing a federal action pursuant to the ACPA.

So What Should I Register?

As the technological era continues to grow and innovate, so do the risks of online theft and appropriation over one’s name for the sake of profit. The differences between trademarks and domain names is an integral, yet often overlooked aspect, of a business establishment and success.  

I am a current law student at New York Law School and hope that this information can help you in your law practice. Please note that none of the above in this article should be construed as legal advice, and are instead, my opinion and research.

For more information on the subject:

Competing for Domain Names, http://iplegalcorner.com/competing-for-domain-names-registrants-vs-trademark-owners/

Trademarks vs Domain Names, http://iplegalcorner.com/trademarks-vs-domain-names-dictionary-words-common-combinations-and-arbitrary-letters/

Lawful Registration of Domain Names, http://iplegalcorner.com/lawful-registrations-of-domain-names/