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Answer 1: <p>Yes, it can. <a href="https://www.legalservicesindia.com/article/1058/Relation-Between-Part-III-And-Part-IV-Of-Constitution-Of-India-Changing-Trends.html" rel="nofollow noreferrer">This analysis</a> is IMO very informative of the role of Part IV in Indian law, especially considering a comparison to the related concept of constitutional (fundamental) rights. Fundamental rights are justiceable, directive policies are not. Contraventions of rights can be rescinded by courts, but the courts cannot declare any law to be void because it violates these directives. The directives neither give nor take away legislative power: they are suggestions.</p>


Tags: indian-constitutional-law


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Question Body: <p>While I am doing math, computer science or programming, I am greatly benefiting from the use of GPT4 (ChatGPT4) and I don't want that some governmental agency removes access to GPT. I have not had the privilege to access top schools, top teachers, top professors, but GPT4 gives me excellent answers to my questions - both very specific and very general. I consider the access to GPT4 (or any other LLM if there will be one) as necessary condition for my professional and personal growth, for access to good job, education and material conditions. Hence - I consider access to AI, GPT or Large Language Models (LLMs) to be the matter of human rights. And AI could automate physical jobs and hence reduce the exploitation. Governments usually state that they should press people to have physical work because some should do it. Governments usually state that there are no sufficient funds for education, health etc. But AI can boost those incomes too. So - having access to AI (both


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physical work because some should do it. Governments usually state that there are no sufficient funds for education, health etc. But AI can boost those incomes too. So - having access to AI (both individually and collectively) should not only foster the growth of individual, but also preserve and guarantee his or her dignity as a person and provide for the practical resources for the implementation of other human rights, including social human rights.</p>


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<p>I acknowledge that there can be concerns about privacy and other threats that AI can cause, but we should acknowledge that there should be human rights to access AI and that we should concert those private and threat factors not as the issues of isolated matter, but in the balance with the human rights to access AI.</p>
<p>What is the literature on this. Or maybe this question is the first suggestion about human rights to have access to AI?</p>


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<p>What is the literature on this. Or maybe this question is the first suggestion about human rights to have access to AI?</p>
<p><strong>Information added</strong>. Some commentators have stated that my question involves expression of policy preferences. With all due respect, I should acknowledge that the stated expressions about exploitation, work and accumulation or resources are not my policy preferences but the aspects of the future of the work that are considered in the NBER working paper <a href="https://www.nber.org/papers/w30172" rel="nofollow noreferrer">https://www.nber.org/papers/w30172</a> titles &quot;Preparing for the (Non-Existent?) Future of Work&quot;.</p>
<p><strong>Information added</strong>. Some simple experiments with ChatGPT+/4 shows that this kind of AI could be sine qua non resource for jobs and education, something like social human rights, not just access to telephone or libraries.</p>


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<p><strong>Infromation added</strong>. Actually there is concept about <strong>digital divide</strong> and there are programs that tries to close the digital divide/gap and such program involve social program for providing access to computers, high-broadband internet network and also the relevant computer literacy programs. And there have already been calls to extend human rights so that they can reduce the digital divide, e.g.  <a href="https://www.opensocietyfoundations.org/publications/digital-divide-and-human-rights" rel="nofollow noreferrer">https://www.opensocietyfoundations.org/publications/digital-divide-and-human-rights</a> So, actually access to AI can be part of this movement. Of course, AI can be and will be costlier and also AI-enchanced society could multiply the harmful consequences of digital divide, hence bringing respective rights to the list of the most important rights.</p>


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Answer 1: <p>There's no such right, but a government could create such a right just as it's possible to guarantee a right to telephone service or to public libraries.  Some governments do this, some don't.  Rights of this nature are not so fundamental as to be found in documents such as the <a href="https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights" rel="nofollow noreferrer">Universal Declaration of Human Rights</a>.</p>


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Answer 2: <p>It depends on what country you are in, naturally. In the US, you have a right to access an AI, at least as long as you correctly understand what that right is. It is not illegal to access an AI, though there is no guarantee that you will <em>provided</em> access, free or otherwise. If you can find an AI and find a way to access it, you will not be punished in any manner.</p>
<p>The government can by law restrict your freedom to exercise rights, even in clearly-articulated constitutionally guaranteed rights, such as that right guaranteed by the 2nd Amendment. Rights in the modern legal view are not absolute, they can be subordinated to other governmental concerns. You have the right to dispose of your property as you see fit, with some exceptions such as setting your house on fire without a burn permit (depending on local ordinances).</p>


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<p>Restrictions on your exercise of your rights, especially those that are constitutionally protected, require a compelling government interest. Your right to access an AI follows from First Amendment, as does your right to read books, watch movies, buy a computer on which to read and write books and watch or produce movies.</p>
<p>Note, however, that this depends on a particular Natural Law understanding of rights, as facts intrinsic to being a person, and not as a boon from the sovereign, which is the more traditional view of the notion of &quot;rights&quot;. Both perspectives exist in legal systems, and the choice between these viewpoints is purely political.</p>


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Answer 3: <p>In <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>, the <strong>freedom of speech</strong> is matched by a <strong>freedom to listen</strong>, the right to inform oneself &quot;from publicly available sources.&quot; (<a href="https://www.gesetze-im-internet.de/gg/BJNR000010949.html" rel="nofollow noreferrer">Art. 5 GG</a>)</p>
<p>These freedoms are not unlimited. Just as speech can be limited by a prohibition of slander, there is no right to play heavy metal at maximum volume when normal people want to sleep. Yet no limitation of these freedoms may touch the &quot;core&quot; of a freedom. Notably, the words of the freedom <em>of</em>


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speech imply that the speaker would be a human, while the freedom <em>to</em> listen does not imply that the speaker must be human. But ChatGPT is much too young to have created established legal precedent.</p>
<p>On the other hand, there is talk in Europe of banning or more likely regulating AI. Such regulations might well be constitutional if they are seen as necessary and proportionate in the protection of <em>other</em> constitutional rights. I can see two issues here:</p>
<ul>
<li>The owner of the AI, not in Europe, may be <strong>unwilling to comply</strong> with regulations because doing so would be incompatible with the business model. AI may have started as a research project, or a proof-of-concept, but sooner or later owners will have to monetize it to afford the operation. Their model could be paywalled access, or targeted advertising, or the generation and sale of user profiles. The latter two might become prohibited.</li>


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<li>The owner of the AI may be <strong>unable to comply</strong> with regulations because they require things the AI is unable to do. For instance, there are suggestions that any decision by an AI which affects humans must be documented in a way that is comprehensible to human auditors. The owner of the AI might be unable to keep the AI from prohibited actions, and the system might be incomprehensible to humans.</li>
</ul>


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Question Title: Does the law make exceptions for Good Samaritans?

Question Body: <p>I know very little about the law. When I watch court television shows, it seems like if a Good Samaritan breaks the law to stop a bad guy, the law/court turns a blind eye.</p>
<p>Are there cases where the law recognizes wrongdoing for the well-intentioned but minimizes or ignores the issue?</p>


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Answer 1: <p>Depends on where you are, and what law would be broken and why.</p>
<p>In <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>, there is the concept of <em>rechtfertigender Notstand</em> (justifying emergency). If there is a present danger to a <em>Rechtsgut</em> (legally protected interest), one can take necessary and proportional steps against another legally protected interest.</p>
<p>Say I walk through a winter landscape and there is a person who has broken through the ice of a lake (a present danger of the loss of life). Nearby is a yard with a ladder leaning on a shed. I would be allowed to enter the yard (normally trespas) and take the ladder (normally theft) in the rescue attempt (life counts for more than a ladder, using a ladder is necessary/appropriate for an ice rescue).</p>


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Answer 2: <p>While the question asks generally about &quot;necessity&quot;-type defenses, there is a need to distinguish between two separate concepts.</p>
<h2>Good Samaritan laws</h2>
<p><a href="https://en.wikipedia.org/wiki/Good_Samaritan_law" rel="noreferrer">Good samaritan laws</a> &quot;offer legal protection to people who give reasonable assistance to those who are, or whom they believe to be injured, ill, in peril, or otherwise incapacitated&quot;.</p>
<p>The typical example would be attempting CPR on an unconscious person and breaking one of their ribs. Breaking someone’s rib would usually be a tort, but as long as the rescue attempt was done in a &quot;reasonable&quot; manner, the rescuer will not be on the hook for medical costs. What is &quot;reasonable&quot; varies across jurisdictions.</p>


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<p>Those laws usually imply a subjective element. If a random person at the site of a car crash moves an unconscious body on the curbside to free the road for traffic, that’s probably reasonable. If a first-aid instructor does it, less so (such a person would know that trauma victims should not be moved unless strictly necessary). If the same first-aid instructor moves an unconscious body away from a riverside bed during heavy rain, that might be reasonable; even if it later turns out the rain subsided and no flood occurs, that was a reasonable concern at the time the decision had to be taken.</p>


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<p>At <a href="/questions/tagged/common-law" class="post-tag" title="show questions tagged &#39;common-law&#39;" aria-label="show questions tagged &#39;common-law&#39;" rel="tag" aria-labelledby="tag-common-law-tooltip-container">common-law</a>, those laws only apply when the rescuer has no duty of care. For instance, suppose a ferris wheel I was riding suddenly catches fire. The ferris wheel operator stops the wheel, sets up mattresses below and asks patrons to jump down onto them to get to safety. By doing so, I break my rib. The ferris wheel operator might not be on the hook for my broken rib, assuming the &quot;jump onto mattresses&quot; rescue plan was the only one available at the time. However, the ferris wheel owner still had a duty of care towards patrons, and should have provided a safe environment that did not require jumping from the height of the wheel. I can therefore still sue for medical expenses. The Good Samaritan law does not &quot;erase&quot; liability caused by


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a safe environment that did not require jumping from the height of the wheel. I can therefore still sue for medical expenses. The Good Samaritan law does not &quot;erase&quot; liability caused by creating the dangerous circumstances in the first place.</p>


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<p><a href="/questions/tagged/civil-legal-system" class="post-tag" title="show questions tagged &#39;civil-legal-system&#39;" aria-label="show questions tagged &#39;civil-legal-system&#39;" rel="tag" aria-labelledby="tag-civil-legal-system-tooltip-container">civil-legal-system</a> would roughly follow the same principles (no tort during a reasonable rescue attempt). The only significant addition is (in most but not all civil law countries) a duty to rescue. The rescue only need be &quot;reasonable&quot; - for instance, if you see a child drowning in the river, you must call the emergency services, but you usually do not have to try to go into the water yourself (because that would put yourself at risk). However, the risk calculation changes depending on whether you are an eighty-year-old teacher or a thirty-year-old Olympic swimmer.</p>


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<p>Those laws are about limiting the liability of the rescuer towards the rescued. They do not cover relations with third parties (such as a bad guy on the scene).</p>
<h2>Self-defense</h2>
<p>Self-defense is the act of defending against a threat via violent (and otherwise illegal) means. The exact scope of self-defense varies across jurisdictions, but to my knowledge it always extends to defending <em>others</em> against a &quot;bad guy&quot;, not necessary oneself. (The English &quot;self&quot;-defense is a bit misleading in that respect. The French, Spanish or Italian term translates to &quot;legitimate defense&quot;; the German or Dutch term translates to &quot;necessity/urgency defense&quot;.) The scope of what is allowed under which circumstances depends a lot across jurisdictions.</p>


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<p>In general, the defense requires a reasonable subjective belief that the threat is imminent (you don’t get to shoot a murderer fleeing the scene), and that the countermeasures taken be proportionate (you don’t get to shoot a brat who is tickling your child).</p>
<p>Some jurisdictions and circumstances require that no otherwise-legal course of action be reasonable (typically, when defending against a threat to yourself, that you cannot flee the scene). Others allow it regardless. Some jurisdictions and circumstances allow lethal action against a threat towards goods; others do not.</p>


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Answer 3: <p>One of the reasons the US Constitution protect the right to a jury trial is that juries will sometimes recognize their right and duty to acquit people who have violated a statute whose enforcement in the case before them would be offensive to principles of justice and freedom.  If all twelve jurors, seeing the defendant's actions, would be inclined to admit that they would likely have done the same thing in the defendant's situation, they should unanimously vote for acquittal regardless of what the statutes may say.</p>
<p>Judges and prosecutors don't want jurors to be aware of this right and duty, but it nonetheless may influence decisions about what cases to prosecute.  If the public as a whole would believe that the defendant behaved in a manner contrary to statute, but justice and freedom would be ill served by a conviction, prosecuting the defendant could attract attention to the jury's rights and duties--attention that prosecutors really don't want.</p>


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Question Title: Are products made from illegal software also illegal?

Question Body: <p>Say a piece of software was aquired, and used, completely illegally, like a license key was hacked online or something, and many other products (say, for example, videos) were made with this illegal product. Are all of those products now also illegal? </p>

<p>For example, if they are videos, would they legally have to be removed from YouTube, since they were made in an illegal way? Why or why not?</p>


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Answer 1: <p>Presumably by &quot;is illegal&quot; you mean &quot;violates copyright law&quot;. Copyright infringement is simply &quot;copying / distributing without authorization&quot;, which refers to the original work and not some other work. The act of originally writing a book is not &quot;copying&quot; (likewise &quot;taking a picture&quot;, etc), so the act of writing a book using pirated software is also not copying and not infringement. Nevertheless, the scope of remedies for the original infringement is not limited to just the cost of the infringed work. Under <a href="https://www.copyright.gov/title17/92chap5.html" rel="noreferrer">17 USC 504(b)</a>,</p>
<blockquote>
<p>The copyright owner is entitled to recover the actual damages suffered
by him or her as a result of the infringement, and <strong>any profits of the
infringer that are attributable to the infringement and are not taken
into account in computing the actual damages</strong>.</p>
</blockquote>


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infringer that are attributable to the infringement and are not taken
into account in computing the actual damages</strong>.</p>
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<p>This is sufficiently open-ended that profits from the sale of an original work created using infringed software could be attributable to the infringement.</p>


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Question Title: Need clarification for legal relationship containment for multiple spouses

Question Body: <p>According to US law, can a person have a husband and a wife at the same time?</p>
<p>If so, how is their property distributed after death?</p>


Answer 1: <p>Currently there is nowhere in the USA where polygamy is legal.  So regardless of their sexual or gender expression or orientation, being married to MORE THAN ONE person at the same time is illegal.</p>
<p>If, however, it turned out that someone had more than one spouse at their death, I'm sure that property distribution would be a matter for the probate court to sort out.</p>
<p>As far as legally-married &quot;trans spouses&quot;, for lack of a better term, I don't see why that would that impact inheritance in any way?</p>


Tags: united-states, marriage, inheritance


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Question Title: If one leaves the US to commit an act illegal in the US but legal in the country they travel to are they guilty of a crime?

Question Body: <p>Before anyone asks this is part legal curiosity, part proving for 'loopholes' that I could have villains in a story exploit, I don't need 100% accuracy so much as general guidelines, and any unique situation or known 'loophole' is also interesting.</p>

<p>I'm curious about how the US handles travel to other countries to activities crimes that are illegal within the US but legal in the country they travel to.  At first I thought that this would be legal, but I know sex tourism at the least is restricted, They actually make us take a training at work about how sex trafficking is bad in case we couldn't figure that one out on our own.  </p>


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<p>A quick scan online tells me that the sex tourism thing is specific federal law.  Outside of sex tourism of individuals under the age of 18 are there other situations where one can be punished for traveling to another country to commit a crime?  If so are these specific laws that address only a few unique situations, or is there some general law that addresses many crimes committed by traveling to another country?</p>

<p>I can think of a number of theoretical odd situations as fodder for story telling, I'll likely ask a few of them in more detail in later questions depending on the answer in this one.  If someone wants to touch briefly on a few odd situations below in their answer I would be interested, but if any of these situations is too complex I'll ask them as a later follow up question.</p>


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<ol>
<li>how does dual citizenship work in situations where it would be illegal for a US citizen to travel to country X to do activity Y, but the individual in question is not only a US citizen but also a citizen of X?</li>
<li>How much does 'premeditation' apply to these rules?  For instance my quick scanning of sex tourism law refers to an individual traveling to a country "with the intent to ...", does that mean if someone travels to a country and only then decides to do an activity it would be legal (ignoring the difficulty of proving it wasn't premeditated)?</li>
<li>Is a non-US citizen within the US (for instance with a visa, or even an illegal alien who lives in the US) still subject to these sort of laws if they leave the US with the intent of doing something illegal within the US and then return?</li>
</ol>


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<p>Edit:  ...also Id love at least <em>one</em> other instance of an activity that would be a crime if someone travels elsewhere to do it.  I'm thinking of potential loophole abuse questions I could ask, but I <em>really</em> don't want to ask them in context of the sex tourism law.  Rather or not it's just a theoretical question to explore legal oddities I really don't like even hypothesizing the sort of situation that leads to someone trying to violate that particular law.</p>


Answer 1: <p>Like many US legal questions, there is a <a href="https://www.fas.org/sgp/crs/misc/94-166.pdf">Congressional Research Service report</a> about this.</p>


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Answer 1: <p>Like many US legal questions, there is a <a href="https://www.fas.org/sgp/crs/misc/94-166.pdf">Congressional Research Service report</a> about this.</p>

<p>It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US.</p>


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<p>Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight).</p>

<p>Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later <em>turns up</em> in the US, etc.</p>

<p>For your scenarios:</p>


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<ol>
<li><p>Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In <a href="https://supreme.justia.com/cases/federal/us/343/717/">Kawakita v. United States</a>, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII.</p></li>


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<li><p>Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about <em>engaging</em> in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly).</p></li>


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<li><p>Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide).</p></li>
</ol>


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Question Title: USA school law. Is a charter school a public school?

Question Body: <p>I am trying to understand the main, basic tenets of USA public vs. private school law. (See <a href="https://law.stackexchange.com/questions/91556/usa-private-school-law-could-disrespect-of-state-regulation-be-constructed-as-a/9155">my previous question</a> of a series).</p>
<p>Is a charter school a public school?</p>
<p><a href="https://en.wikipedia.org/wiki/Charter_school" rel="nofollow noreferrer">I see</a> that there is  debate on whether charter schools should be described as private schools or state (hence, public) schools.</p>
<p>So my question is, by which general criteria could I decide whether a charter school has to be considered public?</p>
<p>Also, in the case that they are not to be considered public, is the relationship student/school a contractual one?</p>


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Answer 1: <p>Each state has its own system of designating different kinds of schools, but the term &quot;charter school&quot; generally refers to a public school that is subject to less central administrative supervision than an ordinary public school.</p>
<p>But the relationship between a student and a school in a charter school, unlike a private school, is not primarily contractual in nature. The charter school has a contractual relationship with the school district (of which the students may sometimes be third-party beneficiaries), but the student does not have a contractual relationship with the school.</p>


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Answer 2: <p>In Washington, <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=28A.150&amp;full=true" rel="noreferrer">RCW 28A.150.010</a> answers the question as follows:</p>
<blockquote>
<p>Public schools means the common schools as referred to in <a href="https://leg.wa.gov/CodeReviser/Documents/WAConstitution.pdf" rel="noreferrer">Article IX
of the state Constitution</a>, charter schools established under chapter
<a href="https://app.leg.wa.gov/RCW/default.aspx?cite=28A.710" rel="noreferrer">28A.710 RCW</a>, and those schools and institutions of learning having a
curriculum below the college or university level as now or may be
established by law and maintained at public expense.</p>
</blockquote>
<p>So, yes, they are &quot;public schools&quot;.</p>


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<p>The question of whether a school is &quot;considered private&quot; is likely to mislead a person investigating laws regarding schools, because law &quot;deem&quot; or &quot;declare&quot;, but also do so in specific ways and for specific purposes. The primary consideration underlying charter schools is the fact that the states have all assign to themselves the duty to provide &quot;free public education&quot;, which is built into state constitutions. The Washington Constitution says &quot;The legislature shall provide for a general and uniform system of public schools&quot;, and it also mentions &quot;common schools&quot;, whereas Delaware's Constitution does not mention &quot;common schools&quot;. Nobody's constitution spells out explicitly what a &quot;public school&quot; is – that's where specific laws come into play. By defining charter schools to be a kind of public school, the legislature has brought those schools within the scope of the state's duty, in a manner that does not


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specific laws come into play. By defining charter schools to be a kind of public school, the legislature has brought those schools within the scope of the state's duty, in a manner that does not exist for e.g. Catholic schools.</p>


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<p>There are states (e.g. North Dakota) that don't have charter schools at all. Among the states that do have such schools, the very concept presupposes access to public funds (in North Dakota, would-be charter schools are simply 'private schools'). It is not essential that a legislature declare a charter school to be a public school (as opposed to a common school), what is essential is providing public funding, and <em>some</em> level of government oversight.</p>


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Question Title: If someone committed copyright infringement and was able and willing to endure all maximum fines and prison time, could they still practically do it?


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Question Body: <p>Let's say an already obscenely rich individual in the US (whose wealth is unrelated to any crime) decides to reproduce unauthorized copies of a copyrighted work for a profit and gets caught. This person has illegally distributed enough of the work to incur the maximum amount of fines and prison time and just... agrees to all of it without a fight. And as soon as the fine is paid and the time is done, the individual repeats distribution of the same copyrighted work again, and repeats this process multiple times.</p>


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<p>It'd be clear that because this person can continue doing this practically indefinitely due to their obscene wealth and willingness to endure punishment, it'd on the surface seem infeasible to prevent this person from continuing distribution due to copyright infringement having a codified punishment ceiling (to my knowledge a maximum of both 10 years in prison and $250,000 per offense, <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-1852-copyright-infringement-penalties-17-usc-506a-and-18-usc-2319" rel="nofollow noreferrer">source</a>).</p>
<p>In such a hypothetical case, do the law and/or the copyright owner actually have any teeth to stop this person from continuing to distribute, or can they just ride out the punishments and continue in perpetuity?</p>


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Answer 1: <p>If you have sufficient grounds to fear that someone is about to infringe on one of your rights, you can go to court to obtain an injunction against that person. This is a court order to refrain from some particular action. In many cases, the point of this is just to have the legal debate on whether the anticipated action is actually legal or not before it happens rather than after. However, the punishment for violating the injunction is set by the relevant judge based on how important it is to dissuade the target from actually doing the thing, and how extensive the punishment needs to be in order to achieve this.</p>
<p>After a few rounds of your guy doing the copyright infringement, getting an injunction against him doing it again should be quite straight-forward. And if he violates that, it would be reasonable to ask for a significantly higher fine next time, and then more, and more.</p>


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<p>Injunctions could also involve preparatory actions, eg prohibit the guy to even approach a computer, if this is deemed necessary to prevent reoffending.</p>


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Answer 2: <blockquote>
<p>do the law and/or the copyright owner actually have any teeth to stop this person from continuing to distribute, or can they just ride out the punishments and continue in perpetuity?</p>
</blockquote>
<p>Most copyright enforcement is not criminal.  Typically, the copyright holder will sue for damages rather than depend on a prosecutor to bring criminal charges.  Civil damages may be calculated from actual profits of the infringer and losses of the copyright holder or they may be awarded according to a statutory scheme where the maximum is $150,000 (<a href="https://www.law.cornell.edu/uscode/text/17/504" rel="noreferrer">17 USC 504</a>).</p>
<p>Even if the enforcement in a particular case <em>is</em> criminal, <a href="https://www.law.cornell.edu/uscode/text/18/2323#c" rel="noreferrer">18 USC 2323(c)</a> requires the court to award restitution to the victim.  The maximum financial cost to the infringer, therefore, is greater than $250,000 per offense.</p>


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<p>Even the $250,000 limit for the criminal fine may be exceeded if the infringer's profit or the copyright holder's loss exceeds $125,000, thanks to <a href="https://www.law.cornell.edu/uscode/text/18/3571#d" rel="noreferrer">18 USC 3571(d)</a>:</p>
<blockquote>
<p>Alternative Fine Based on Gain or Loss.—
If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.</p>
</blockquote>
<p>Even though the infringer may be able to afford this without any difficulty, the copyright holder will receive at least as much income from the restitution or civil award as would have been due under a license for the copyright.</p>


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<p>But at its root, this question seems to be more about the ability of the courts to enforce <a href="https://www.law.cornell.edu/uscode/text/17/502" rel="noreferrer">injunctions</a>.  Courts' ability to enforce injunctions is discretionary, so if the statutory maximum fine for a felony seems insufficient to deter a billionaire from committing copyright infringement, the court can issue an injunction and enforce it with a fine that would be sufficient.  <a href="https://www.law.cornell.edu/uscode/text/18/401" rel="noreferrer">18 USC 401</a>:</p>
<blockquote>
<p>A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—</p>
<p>...</p>
<p>(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.</p>
</blockquote>


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Answer 3: <h2>Of course</h2>
<p>Providing you are willing to accept the sanction, you can do anything you want: murder, genocide, making tea the way Americans do, and copyright violation.</p>
<p>This sign:</p>
<p><a href="https://i.stack.imgur.com/IvQdm.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/IvQdm.png" alt="No Parking" /></a></p>
<p>Merely advisory providing you don't mind being fined, having your car clamped and possibly towed.</p>


Tags: united-states, copyright, intellectual-property


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Question Title: Does Justice Roberts Obamacare opinion contradict itself?

Question Body: <p>Chief Justice Roberts' opinion in <em>National Federation of Independent Business v. Sebelius</em> upheld the ACA individual mandate as a tax. Disagreeing with the joint dissenters (Alito, Thomas, Kennedy, and Scalia), Roberts, in part III-C of his opinion, demonstrates that the labels used by Congress can not be controlling. (Penalty versus tax.) The "question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." (Roberts quoting Woods v. Cloyd W. Miller Co.)</p>

<p>Since this levy is within the Taxing Power, the characterization (label) Congress gives the exaction does not effect to its constitutional status as a tax.</p>

<p>Yet in Part III-D</p>


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<p>Since this levy is within the Taxing Power, the characterization (label) Congress gives the exaction does not effect to its constitutional status as a tax.</p>

<p>Yet in Part III-D</p>

<blockquote>
  <p>JUSTICE GINSBURG questions the necessity of rejecting the Government’s
  commerce power argument, given that §5000A can be upheld under the
  taxing power.  Post, at 37. But the statute reads more naturally as a
  command to buy insurance than as a tax, and I would uphold it as a
  command if the Constitution allowed it.  It is only because the
  Commerce Clause does not authorize such a command that it is necessary
  to reach the taxing power question. And it is only because we have a
  duty to construe a statute to save it, if fairly possible, that §5000A
  can be interpreted as a tax.  Without deciding the Commerce Clause
  question, I would find no basis to adopt such a saving construction.</p>
</blockquote>


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<p>the Chief Justice seems to say that only a strained reading of Congress's "label" and the doctrine of Constitutional Avoidance allow the mandate to be upheld as a tax. Isn't there tension between these two parts of the opinion?</p>


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Answer 1: <blockquote>
<p>Isn't there tension between these two parts of the opinion?</p>
</blockquote>
<p>There is perhaps some tension, but the resolution of that tension is clear.  There is certainly no self contradiction.</p>
<p>The most obvious tension is between the chief justice's line of reasoning and Justice Ginsburg's.  It may be described thus:</p>
<ol>
<li><p>Justice Ginsburg would uphold the statute by interpreting it as a tax, avoiding the need to consider whether it is authorized as a command under the commerce clause.</p>
</li>


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<ol>
<li><p>Justice Ginsburg would uphold the statute by interpreting it as a tax, avoiding the need to consider whether it is authorized as a command under the commerce clause.</p>
</li>
<li><p>Chief Justice Roberts notes that the statute reads on its face as a command and says that this requires the court to find that this &quot;more natural&quot; reading is &quot;not authorized&quot; before it can consider other interpretations under the &quot;duty to construe a statute to save it, if fairly possible.&quot;  Only by following this line of reasoning may the court consider whether the provision may be upheld under the power of taxation.</p>
</li>
</ol>


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</li>
</ol>
<p>The reasoning paraphrased in the first paragraph of this question explains that the court may go beyond congress's labels -- the claimed basis of its authority -- when it interprets a statute.  The quotation from the opinion explains that it is however necessary to consider congress's claimed source of authority first, before moving on to other possible sources.</p>
<p>There is a bit of a chicken-and-egg nature to this: if we don't consider (and reject) the commerce clause argument, we can't justify the statute as a tax, but if we can't justify it as a tax, we have to consider the commerce clause argument.  Ginsburg's reasoning would avoid this paradox.</p>


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<p>Therefore, to the extent that a chicken-and-egg paradox is &quot;tension,&quot; yes, there's internal tension in Roberts' reasoning, but not outright contradiction.  The more significant tension is between Ginsberg's desire to avoid considering the commerce clause justification and Roberts' reasoning that requires it.</p>


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Answer 2: <p>There is no contradiction.</p>
<p>Congress's invoked authority cannot be read as taxing authority, strained reading or otherwise. Congress intended a penaltly / command, there are no two ways around this. Roberts found that the penalty as such is unauthorised but Woods v. Cloyd W. Miller Co. allows a statue to be upheld on constitutional authority other than which Congress invoked. Nonetheless, Roberts in Part III-D limits Woods v Miller's implications to only saving constructions.</p>


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<p>As first resort one must always consider the invoked authorities, which Roberts says &quot;reads more naturally&quot;. (Not that his saving construction is a &quot;less natural&quot; or &quot;strained&quot; reading of the invoked authority. It in fact altogather disregards Congress's intended invoked authority as Woods v Miller allows. But Roberts considers the most &quot;natural&quot; reading of a statute's authority, and thus the required first resort, to be that which follows invoked authorites.) Only afterwards may other options be considered.</p>


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Question Title: Alberta&#39;s Traffic control signals - Green arrow with green light

Question Body: <p>The link <a href="https://www.alberta.ca/traffic-control-signals.aspx#:%7E:text=clear%20the%20intersection.-,Solid%20green%20light,when%20turning%20right%20or%20left." rel="nofollow noreferrer">Traffic control signals</a> says &quot;Drivers facing a traffic control light with a green arrow and solid green traffic control light may enter the intersection and proceed without yielding in the direction indicated by the arrow. Drivers facing the green light may also proceed in the other directions when it is safe and legal.&quot; What does &quot;other directions&quot; it refer to in this case? Any direction other than straight and left? Thank you!</p>


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Answer 1: <p>Yes, &quot;other directions&quot; refer to the layout of the roadway beyond the traffic signal appropriate for vehicles facing the aforementioned traffic control light. One could have a right turn lane immediately after the traffic control light and realistically, there could be a green arrow for that lane as well as a green arrow for left turns (more common).</p>
<p>When crossing traffic from the other direction is not a factor, the green arrows provide for movement of vehicles that might otherwise be required to be detained.</p>
<p>Your linked site references a flashing green signal, which I have not seen in the USA, probably because it is the equivalent of a non-flashing green signal.</p>


Tags: traffic


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Question Title: How can I learn information about the purpose, background, and other context of recent U.K. legislation?

Question Body: <p>Suppose I would like to know the purpose of an Act, or how it relates to other Acts or international obligations.</p>
<p>How can I learn information about the purpose, background, and other context of recent U.K. legislation?</p>


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Answer 1: <p>Since 1999, <a href="https://erskinemay.parliament.uk/section/4985/explanatory-notes/" rel="nofollow noreferrer">explanatory notes</a> have been included with most Acts. Explanatory notes are:</p>
<blockquote>
<p>created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.</p>
</blockquote>
<p>They &quot;provide a summary of and background to the bill and explain its various provisions.&quot;</p>


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</blockquote>
<p>They &quot;provide a summary of and background to the bill and explain its various provisions.&quot;</p>
<p>You can look up any U.K. public Act <a href="https://www.legislation.gov.uk/ukpga" rel="nofollow noreferrer">here</a>. Those with explanatory notes will provide a link titled &quot;explanatory notes.&quot; For example, <a href="https://www.legislation.gov.uk/ukpga/2010/15/notes" rel="nofollow noreferrer">here</a> are the explanatory notes for the <em>Equality Act 2010</em>.</p>


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Question Title: To what extent was the Equality Act 2010 shaped by or did it “implement” legal provisions of the EU?

Question Body: <p>The DPA 2018 was passed pursuant to the EU GDPR to achieve uniformity across the EU in relation to matters of personal data. The unfair contract term regulations too were passed to implement EU directives and I gather that the legal situation across the EU would be fairly uniform in that area as it is designed to be.</p>
<p>But what relation to the EU did the EA2010 have?</p>


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Answer 1: <p>From the <a href="https://www.legislation.gov.uk/ukpga/2010/15/notes" rel="nofollow noreferrer">explanatory notes</a>:</p>
<blockquote>
<ol start="3">
<li><p>Domestic discrimination law has developed over more than 40 years since the first Race Relations Act in 1965. Subsequently, other
personal characteristics besides race have been protected from
discrimination and similar conduct, sometimes as a result of domestic
initiatives and sometimes through implementing European Directives.</p>
</li>
<li><p>The domestic law is now mainly contained in the following legislation (where applicable, as amended):</p>
<ul>
<li><p>the Equal Pay Act 1970;</p>
</li>
<li><p>the Sex Discrimination Act 1975;</p>
</li>
<li><p>the Race Relations Act 1976;</p>
</li>
<li><p>the Disability Discrimination Act 1995;</p>
</li>
<li><p>the Employment Equality (Religion or Belief) Regulations 2003;</p>
</li>
<li><p>the Employment Equality (Sexual Orientation) Regulations 2003;</p>
</li>


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</li>
<li><p>the Employment Equality (Religion or Belief) Regulations 2003;</p>
</li>
<li><p>the Employment Equality (Sexual Orientation) Regulations 2003;</p>
</li>
<li><p>the Employment Equality (Age) Regulations 2006;</p>
</li>
<li><p>the Equality Act 2006, Part 2;</p>
</li>
<li><p>the Equality Act (Sexual Orientation) Regulations 2007.</p>
</li>
</ul>
</li>
<li><p>The main European Directives affecting domestic discrimination legislation are:</p>
<ul>
<li>Council Directive 2000/43/EC implementing the principle of equal    treatment between persons irrespective of racial or ethnic origin;</li>
<li>Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation;</li>
<li>Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods
and services;</li>


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<li>Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods
and services;</li>
<li>European Parliament and Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal<br />
treatment of men and women in matters of employment and occupation<br />
(recast). Also relevant in this context is Article 157 of the Treaty<br />
on the Functioning of the European Union.</li>
</ul>
</li>
</ol>
<p>...</p>
<ol start="21">
<li>The Act does not itself implement EU Directives for the first time. It replaces earlier legislation which has implemented EU Directives, most of which is set out in paragraph 4 above.</li>
</ol>
</blockquote>


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Question Title: What is the difference between the respective doctrines of de minimis and frivolous claims

Question Body: <p>Some claims are dismissed as de minimis while others are said to be frivolous. Are these two notions completely synonymous? If not then what’s the difference between them?</p>


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Answer 1: <blockquote>
<p>Some claims are dismissed as de minimis while others are said to be
frivolous. Are these two notions completely synonymous?</p>
</blockquote>
<p>No. they aren't even that similar in meaning.</p>
<blockquote>
<p>If not then what’s the difference between them?</p>
</blockquote>
<p><strong>Frivolous</strong> means not having a basis in the law or a sincere and reasonable effort to extend the law. Sometimes the term frivolous is also used in a broader sense to include not having a factual basis, even though it would be a valid lawsuit if the facts alleged were true. But a narrower definition calls something without a factual basis <strong>groundless</strong> and calls something without a legal basis <strong>frivolous</strong>.</p>


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<p>For example, a lawsuit for breach of contract in circumstances where you are suing over a contract you wanted to enter into with someone even though you acknowledge that they didn't agree to that contract would be frivolous. You can only sue for breaches of contracts that are actually entered into and it is frivolous to bring a lawsuit when you don't argue that a contract was formed.</p>
<p>A lawsuit alleging that a contract was entered into with someone and breached when, in fact, the other party to the alleged contract never interacted with the person bringing the lawsuit would be groundless, and within a broader sense of the term, frivolous as well.</p>
<p><strong>De minimis</strong> means that the magnitude of the harm is so small that the courts won't entertain a lawsuit to address the wrong even though the harm would otherwise be something that someone could bring a lawsuit over.</p>


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<p>For example, if you sued someone for negligence for slightly bumping into when you were walking down a crowded sidewalk, even though you suffered no physical injury, and you weren't even made to fall or drop something as a result, that might be a lawsuit that is dismissed because the harm was <em>de minimis</em>.</p>
<p>Whether a claim can be dismissed for alleging only <em>de minimis</em> harm varies by the nature of the cause of action. Some legal theories will award nominal damages (e.g. $1), if you prevail on the other elements of the claim but show only nothing more than <em>de minimis</em> harm.</p>
<p>For example, in Colorado, proof of damages are not necessary to prevail on a claim for breach of contract or negligence <em>per se</em>, and nominal damages will be awarded even if you fail to show damages.</p>


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<p>Other legal theories make a showing of more than <em>de minimis</em> harm one of the elements that must be proved as part of the cause of action for there to be any legal liability at all.</p>
<p>For example, in Colorado, a showing of more than <em>de minimis</em> damages is necessary in a negligence claim.</p>
<p>This is a distinction which matters a lot in cases where an award of costs and/or attorney fees depends upon which party prevails on particular causes of action.</p>
<p>In the federal courts, there is an additional subject-matter jurisdictional threshold of &quot;standing&quot;, as a matter of constitutional law, which requires a showing that the person bringing a claim suffered &quot;actual injury&quot; which arguably involved more than a <em>de minimis</em> harm. But federal courts have recognized that at least for some kinds of lawsuits, standing is present even when the claim is only for nominal damages.</p>


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<p>A lawsuit seeking a remedy for a <em>de minimis</em> harm would rarely be considered to be frivolous.</p>


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Question Title: Do any other consumer rights laws have extraterritorial applicability to international organisations that cater to British or European customers?

Question Body: <p>The GDPR purports to bind any organisation, wheresoever it may be based, that serves individuals based in the EU, or (as the case may be) the UK.</p>
<p>The GDPR governs the obligations of organisations and businesses to the individuals they serve, much as consumer rights legislation governs (likewise asymmetrically) the relationship, rights and obligations between traders and consumers. Meanwhile, anti discrimination laws similarly govern those between individuals and <em>service providers</em>.</p>
<p>But do any of these other types of legislation, in either the UK or the EU, have such extraterritorial jurisdiction/reach?</p>


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Answer 1: <p>There is nothing extraterritorial about these laws. If a company sells a good or provides a service to individuals based in the EU, then this good or service has to comply with EU laws.</p>
<p>This concept is self-evident for physical goods that are produced anywhere in the world and then sold in the EU and the GDPR just applies this concept to services provided over the internet. The same legal concept also holds in all other major jurisdictions.</p>
<p>The only thing that makes this more complicated for the GDPR is the actual enforcability of these laws but that is a technical issue not a legal one.</p>


Tags: united-kingdom, gdpr, european-union, jurisdiction, extraterritorial-jurisdiction


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Question Title: Is unwanted touching ever legal?

Question Body: <p>As a general matter, unwanted touching of one person by another is not lawful.</p>

<p>But is there ever an exception?</p>

<p>For example, when limited available space requires it. Like, for example:</p>

<ul>
<li>In a crowded elevator?</li>
<li>In the bleachers at a crowded football game?</li>
<li>On the sidelines of a crowded parade?</li>
<li>Other crowded or enclosed spaces?</li>
</ul>

<p>To the <strong><em>letter-of-the-law</em></strong>, is that still illegal? Or is there an exception made <strong><em>in the law</em></strong>?</p>

<p>For clarity, I am not referring to <em>inappropriate</em> touching. I'm just talking about the normal kind (brushing and bumping elbows, shoulders, hips, etc.).</p>


Answer 1: <p>To use Texas as an example:</p>


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Answer 1: <p>To use Texas as an example:</p>

<blockquote>
  <p>Sec. 22.01.  ASSAULT.  (a)  A person commits an offense if the person:</p>
  
  <p>(1)  intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;  </p>
  
  <p>(2)  intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse;  or</p>
  
  <p>(3)  intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.</p>
</blockquote>

<p>If no reasonable person would think the contact is offensive, and no injury is involved, no assault was committed. This is a fairly common definition of "assault."</p>


Answer 2: <p>This has been a long-considered matter. Under common law, unwanted incidental touching - say, in the context of a public space - is not illegal per se.</p>


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Answer 2: <p>This has been a long-considered matter. Under common law, unwanted incidental touching - say, in the context of a public space - is not illegal per se.</p>

<p>In <em>Cole v. Turner</em> (1704) 87 ER 907, Holt CJ said that:</p>

<blockquote>
  <p>First, the least touching of another in anger is a battery.<br>
  Secondly, if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.<br>
  Thirdly, if any of them use violence against the other, to force his way in a rude in ordinate manner,  it will be a battery; or any struggle about the passage to that degree as may do hurt, will be a battery...</p>
</blockquote>


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<p>Now, I'm not sure how far American common law has diverged from English common law in this respect; it's possible that some US court has held that even such trivial contact is battery. However, I would think it unlikely, as such contact happens in the course of everyday life - a test later applied by English courts - and to make such contact tortious would likely be extremely detrimental to the functioning of modern society.</p>

<p>There's some discussion in comments about whether the fact that some contact is <em>incidental</em> or <em>deliberate</em> makes a difference - I submit that it does not, on the basis that unless we are incapacitated and unable to make decisions regarding the movements of our own bodies, all actions we take are deliberate.</p>

<p>It is also not simply a case of <em>implied consent</em> because then one could just hold up a sign purporting to withdraw such consent, and then bring actions in battery against everyone who brushes past them in a crowd.</p>


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<p>As for specific criminal statutes, I can't prove a negative, but I haven't found anything that would criminalize the incidental touching of another, even in crowded places. As in Texas law, criminal assault generally requires some element of intent to harm or provoke, or the knowledge that such actions are likely to harm/provoke.</p>


Answer 3: <p>Actually, as a general matter, unwanted 'touching' or if you prefer, incidental bodily contact, is most certainly NOT unlawful.</p>

<p>You have no valid expectation of a sphere of invincibility in public.  </p>


Tags: united-states, criminal-law, tort


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Question Title: Copyright claim / fair usage

Question Body: <p>We are a sports website covering news and have found a user on YouTube copying our written content and images and pasting it in whole in their videos.</p>
<p>We have put in a copyright claim and got some videos taken down but they have put in a counter claim saying it is fair use and they will <em>sue</em> is if we don’t remove the initial claim.</p>
<p>Where do we stand on this? They are using 100% of our article content including images, and not even putting in any original content of their own.</p>


Answer 1: <p>First, I don't know what "Sir is" means - I assume it is a typo of "sue us" and answer on that basis. Also, you don't tell us where you are and local law differs - I will assume US law.</p>

<p>They can't sue you successfully - that's not how the "Online Copyright Infringement Liability Limitation Act" works.</p>

<p>The way it works is:</p>


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<p>They can't sue you successfully - that's not how the "Online Copyright Infringement Liability Limitation Act" works.</p>

<p>The way it works is:</p>

<ol>
<li>You give the "online service provider" (YouTube) a notice of the claimed infringement that complies with section 512.</li>
<li>YouTube must expeditiously remove or disable access to the allegedly infringing material and take reasonable steps to promptly notify the alleged infringer of the action.</li>
<li>The alleged infringer then has the right to object to the takedown.</li>
<li><p>If they do, you have 14 days to bring a lawsuit in the district court alleging breach of copyright:</p>


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<ol>
<li>If you don't then YouTube will restore the material - essentially you have given up your claim that the material infringes your copyright,</li>
<li>If you do then the court will decide if the material does or does not breach copyright. The alleged infringer can raise a <a href="https://en.wikipedia.org/wiki/Fair_use" rel="nofollow noreferrer">fair use</a> defense if they like and they may or may not be right. If you win, you get damages, if you lose, you pay damages. In practice, you and the alleged infringer may opt for an out of court settlement instead.</li>
</ol></li>
</ol>


Answer 2: <p>Copying of entire articles, as you've described, doesn't fall within the fair use exception.  Since you've already sent a DMCA takedown notice and received a counter notification, your next step is to file a copyright infringement lawsuit, or at least have a lawyer send a cease and desist letter threatening as much to the infringer.  The counter notification should have included </p>


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<blockquote>
  <p>(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.</p>
</blockquote>


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<p>That information tells you which district court to file suit in and the alleged infringer has waived any argument that the court lacks personal jurisdiction over them.  17 U.S.C. 512(g)(3)(D).  Further, the statute allows you to seek statutory damages in lieu of actual damages.  Statutory damages are set by the court and range between $750 and $30,000 per infringed work with the potential to be increased to up to $150,000 per infringed work when the infringement is found to be willful.  17 U.S.C. 504(c)(1)-(2).  You may also be able to recover your costs and attorneys fees, but this is at the discretion of the judge.  17 U.S.C. 505.</p>


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<p>There are some circumstances where the hosting site can also be liable for the infringement, but those claims are difficult to win.  Ultimately, you should consult an attorney to discuss your claim in more detail.  You definitely have not forfeited or waived your claim, nor does the amount of time you've waited so far create an estoppel claim.    </p>


Tags: copyright


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Question Title: Are laws requiring fees and classes to practice 2nd Amendment constitutional?

Question Body: <p>Would laws requiring citizens to pay for training courses and permits costs be ruled as unconstitutional if they were challenged?</p>

<p>I only ask because, in Minnesota where I live I need to pay for a $60 - $100 dollar 5-hour course, then pay a $100 dollar fee to the sheriff's office every 5 years in order to carry.</p>

<p><a href="https://dps.mn.gov/divisions/bca/bca-divisions/administrative/Pages/Permit-to-Carry-FAQ.aspx" rel="nofollow noreferrer">MN Carry Laws Source</a></p>


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<p><a href="https://dps.mn.gov/divisions/bca/bca-divisions/administrative/Pages/Permit-to-Carry-FAQ.aspx" rel="nofollow noreferrer">MN Carry Laws Source</a></p>


Answer 1: <p>It is unlikely that those requirements would be held to be unconstitutional. A fundamental right such as the right to bear arms can only be restricted in specific ways (<a href="https://www.law.cornell.edu/wex/strict_scrutiny" rel="nofollow noreferrer">"strict scrutiny"</a>) – compelling government interest (keeping people from getting shot accidentally), being narrowly tailored and the least restrictive. If, for example, the law also required passing an exam on the history of firearms, that would be overly broad. If the registration fee were $2,000, that would be too restrictive. But the law says that</p>


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<blockquote>
  <p>The sheriff may charge a new application processing fee in an amount
  not to exceed the actual and reasonable direct cost of processing the
  application or $100, whichever is less. Of this amount, $10 must be
  submitted to the commissioner and deposited into the general fund.</p>
</blockquote>

<p>The application fee is not just for the actual cost of applying for the permit, it also includes what looks like a $10 revenue source, and that sort of looks like an unnecessary restriction. I expect, though, that the state would argue that this $10 is necessary to defray actual long-haul expenses that could not be recovered given the $100 limit imposed by the law.</p>

<p>The law does not actually require a person to pay for a training course, it just requires a person to take a course (or hold employment as a peace officer in the sate within the year). </p>


Tags: constitutional-law, human-rights, firearms


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Question Title: Can two or more different entities simultaneously be data controllers for the same data?

Question Body: <p>Suppose Alice is a customer of a business ACME who holds data on her like email correspondence. ACME uses a third party to manage their email, suppose Fastmail.fm. Fastmail.fm in turn delegates their data storage to a fourth party like Amazon’s AWS or Microsoft’s Azure, or to make it even more fun, perhaps Snowflake stands in between Fastmail and Azure.</p>
<p>Can Alice SAR any of those entities for her correspondence with ACME, or only one or some of them?</p>


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Answer 1: <h2>Not in the example</h2>
<p>Alice is a customer of ACME. ACME is the Data Controller. ACME contracts Fastmail as a <em>Data Processor</em>.</p>
<p>Data Processors are different from Data controllers.</p>
<h2>Yes in general</h2>
<p>Let's say Alice is a customer of Amazon Prime and watches Twitch. The accounts are linked. Twitch and Amazon are joint Data Controllers on some data (though one is a subsidiary of the other).</p>
<p>Now, Alice links her account for a game. Both Amazon/Twitch and the game now are both data controllers on <em>some</em> data (usually: user name on both platforms and some kind of ID are shared), but they don't share <em>all</em> data either has.</p>
<p>The game and Amazon as well as Twitch are Data Controllers, each with different data amounts and in some cases, jointly administring <em>some</em> data.</p>


Tags: gdpr, data-ownership, data


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Question Body: <p>PETA spends significant amounts of money trying to get people to voluntarily not eat meat. If the government had outlawed eating meat, people would be forced to not eat meat, and so it would not have been necessary to spend money to convince them not to. Given that the government's inaction has caused PETA considerable expense, and taking Alliance for Hippocratic Medicine v FDA as precedent, does PETA have standing to sue the government for failing to outlaw the consumption of meat?</p>
<p>EDIT:</p>
<p>AHM v FDA holds that if a group advocates a position, and incurs expenses doing so, and there is some government action that would have decreased or eliminated those expenses, then that group has standing.</p>
<blockquote>
<p>One way an organization can establish standing is by identifying specific projects that [it]
had to put on hold or otherwise curtail in order to respond to the [challenged action Tex. State


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<p>One way an organization can establish standing is by identifying specific projects that [it]
had to put on hold or otherwise curtail in order to respond to the [challenged action Tex. State
LULAC v. Elfant, 52 F.4th 248 , 253 (5th Cir. 2022) (internal marks omitted). This is not a
heightening of the Lujan standard, but an example of how to satisfy it by pointing to a non
litigation-related expense. OCA,867 F.3d at 612. Plaintiffs need not identify specific projects
that they haveplaced on hold or otherwise curtailed. La Unión del Pueblo Entero v.Abbott,No.
5:21-CV-0844-XR,2022 WL 3052489 , at *31 (W.D. Tex. Aug. 2,2022). Rather,this is simply
the most secure foundation to establish organizational standing. 13A Charles Alan Wright &amp;
Arthur R. Miller,Federal Practice and Procedure § 3531.9.5 (3d ed. 2022). Furthermore, [a]t
the pleading stage , we liberally construe allegations ofinjury. Bezet v.United States,714 Fed.


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Arthur R. Miller,Federal Practice and Procedure § 3531.9.5 (3d ed. 2022). Furthermore, [a]t
the pleading stage , we liberally construe allegations ofinjury. Bezet v.United States,714 Fed.
Appx . 336,339 (5th Cir.2017)(quoting Little v. KPMG LLP, 575 F.3d 533,540 (5th Cir.2009)).
Here, Plaintiff medical associations have standing via diversionary injury . Because of
failure to require reporting of all adverse events , Plaintiffs allege FDA's actions have
frustrated their ability to educate and inform their member physicians ,their patients ,and the public
on the dangers of chemical abortion drugs .ECF No. 7 at 12. As a result,Plaintiffs attest they have
See Lujanv . Defs. ofWildlife, 504 U.S. 555 ( 1992) .
Atthehearing, Danco arguedElfant held there was no standing where organizations failed to identify specific
projectsputon hold. ECF No. 136 at 125. This is incorrect. The FifthCircuit inElfantassumed withoutdeciding the


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projectsputon hold. ECF No. 136 at 125. This is incorrect. The FifthCircuit inElfantassumed withoutdeciding the
plaintiffspled an injury-in- fact but heldthey did not have standingbecausethe causation and redressability elements
were notmet. See 52 F.4th at 255.
12
Case 2 :22- cv- 00223- Z Document137 Filed 04/07/23 Page 13of 67 4435
diverted valuable resources away from advocacy and educational efforts to compensate for the
lack of information.See ECF No. 1at 91. Such diversions expend considerable time,energy,and
resources,to the detriment of other priorities and functions and impair Plaintiffs ability to carry
out their educational purpose.Id at 92; N.A.A.C.P. v. City ofKyle, Tex.,626 F.3d 233, 238 (5th
Cir.2010) Similarly, Plaintiffs allege their efforts to respond to actions have tak[en]
them away from other priorities such as fundraising and membership recruitment and retention.
ECF Nos.1-4 at 6, 1-5 at 11. Consequently, Plaintiffs have re-calibrated their outreach effortsto


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them away from other priorities such as fundraising and membership recruitment and retention.
ECF Nos.1-4 at 6, 1-5 at 11. Consequently, Plaintiffs have re-calibrated their outreach effortsto
spend extra time and money educating their members about the dangers of chemical abortion
drugs.Combined,these facts are sufficient to confer organizational standing.See OCA,867 F.3d
at 612 (finding organizational standing even where the injury was not large ); Fowler, 178 F.3d
at 356 (injuries in fact need not measure more than an identifiable trifle ) (internal
marks omitted).</p>
</blockquote>
<p>It is to this that I am referring: given the legal argument here, does it give PETA standing? I am not asking about cause of action or anything else, nor am I advocating that PETA <em>should</em> have standing. I am simply asking, if PETA does not have standing, why logic would distinguish it from this case.</p>


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Answer 1: <p>There is no parallelism between <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/myvmojgodvr/ND%20Texas%20Abortion%20Pill%20Ruling%202023-04-07.pdf" rel="nofollow noreferrer">the Texas decision</a> and the proposed lawsuit. In the anti-mifepristone lawsuit, there exists a statute granting the FDA authority to regulate and review new drugs, and a <a href="https://www.ecfr.gov/current/title-21/chapter-I/subchapter-A/part-10/subpart-B/section-10.30" rel="nofollow noreferrer">petition procedure</a> whereby citizens can state ground for the Commissioner of Food and Drugs to consider a regulatory action. There is no statutory basis on which a ban of meat-eating could be created by executive action. Congress cannot be sued for not passing a law (failure or refusal of Congress to pass a particular law is not justiciable). If, for example someone were to submit a petition to the FDA urging such a regulation, the petition would have to be denied because the FDA does not


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to pass a particular law is not justiciable). If, for example someone were to submit a petition to the FDA urging such a regulation, the petition would have to be denied because the FDA does not have statutory authority to issue such a regulation.</p>


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<p>As argued <a href="https://adamunikowsky.substack.com/p/mifepristone-and-the-rule-of-law-9c4" rel="nofollow noreferrer">here</a>, the anti-mifepristone plaintiffs lack standing in that case, so one can expect that to be a substantial issue in the subsequent appeal.</p>


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Question Body: <p>I live in a very homophobic country and I'm afraid my state's police will eventually get unleashed and start prosecuting LGBT people for engaging in &quot;criminal offenses&quot; only because they identify as LGBT and want to hook up. They don't do it currently, or rather I haven't known of any case when people got punished with real prison terms. Unfortunately, being an LGBT person, I have to use dating platforms showing no sign of care about their users's privacy. They require full-fledged set of information about the registrant including government-issued ID, commonly known as mobile phone number. As you can see, I don't trust those people who care only about profits from data mining. I must use their services because there are no alternatives</p>


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<p>Has it already happened that an LGBT dating site released information upon request about one of its users to a government of homophobic country so it can prosecute or harass their citizens? Note that I talk about data requests to service providers through subpoenas. I am not interested in cases in which dating sites users voluntarily shared their data to everyone who has access to the dating platform as registered user. Consider that dating platform's owner and servers located outside those homophobic countries.</p>


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Answer 1: <p>The basic legal principles are as follows. First, a government may pass a law criminalizing an act, for example <a href="https://uploads.guim.co.uk/2023/03/01/Motion_Seeking_Leave_of_Parliament_to_Introduce_a_Private_member%27s_Bill_Entitled_%27Anti-Homosexuality_Bill%27_(1).pdf" rel="nofollow noreferrer">this Ugandan law</a> which penalizes homosexual acts, their attempt, and aiding and abetting same. Second, a government has the subpoena power to compel a party to provide evidence to be used in a criminal prosecution, unless there is some specific restriction enacted in the country – I find no applicable restrictions in Uganda. In principle, the government could subpoena records of an internet service, in order to find violations of the law.</p>


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<p>Enforcement of the subpoena is relatively simple within the country, but enforcement against a website in Norway, for example, would be virtually impossible, in that Ugandan courts do not have authority in Norway and Norwegian courts will not recognize such an order. Uganda is not a party to the <a href="https://en.wikipedia.org/wiki/Hague_Service_Convention" rel="nofollow noreferrer">Hague Service Convention</a>, so the Norwegian courts will simply not consider the subpoena.</p>


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Answer 2: <p>If being homophobic is in the nature of a government, and in the nature of a majority of voters (irrelevant in a dictatorship) then they can change laws according to their prejudices. So they might not be able to subpoena such a dating site successfully today, but they may be able to change laws so that it is possible in the future.</p>
<p>Note that many western governments had homophobic laws in the past, which means it would possible to them to create homophobic laws again, except at this point in time they wouldn't get support from their voters. In 1950 there were no LGBT dating sites, but if there had been, I'm quite sure there would have been subpoenas.</p>


Tags: international, harassment, subpoena


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Question Title: What is the color of caution or warning of hazard sign?

Question Body: <p>Is the following caution or warning of hazard sign orange or yellow? My impression is that it's color yellow, but the <a href="https://www.alberta.ca/sign-shapes-and-colours.aspx" rel="nofollow noreferrer">link</a> says it's color orange. And even though the aforementioned link says caution or warning of hazard sign only has one color, in this other <a href="https://www.alberta.ca/warning-signs.aspx" rel="nofollow noreferrer">link</a> there is more than one color (yellow, green). In addition, there is more than just one shape (diamond shape, rectangular). Thank you!</p>
<p><a href="https://i.stack.imgur.com/tqFmF.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/tqFmF.png" alt="enter image description here" /></a></p>


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Answer 1: <p><strong>The picture you posted is of a yellow sign mislabeled as orange.</strong></p>
<p>While some tints can be distorted depending on computer screens and color settings and individual perceptions may vary, verification of this specific example can be made by the context provided in your link.</p>
<p>Below you can see the published example of a construction area sign:</p>
<p><a href="https://i.stack.imgur.com/D6LjO.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/D6LjO.png" alt="enter image description here" /></a></p>
<p>Several places below that is the one you posted in your question:</p>
<p><a href="https://i.stack.imgur.com/PxbIO.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/PxbIO.png" alt="enter image description here" /></a></p>


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<p><a href="https://i.stack.imgur.com/PxbIO.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/PxbIO.png" alt="enter image description here" /></a></p>
<p>As you can clearly see the colors are distinctly different, yet the color description is the same.  It's apparent that the graphic artist who created this copied their work and changed the color, but forgot to change the text.  <em>Trust your eyes!</em></p>


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Question Title: Why 12 Jurors, why not 11, 10, 9, 1?

Question Body: <p>The question might seem basic, but why do juries in the United States consist of 12 members? </p>

<p>Was there an experimental determination of this number? </p>

<p>Would the addition or removal of a juror operate more effectively?</p>


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Answer 1: <p>The <a href="https://en.m.wikipedia.org/wiki/History_of_trial_by_jury_in_England" rel="noreferrer">origin of the jury</a> is a complex mix of Saxon, Danish and Norman custom which morphed and melded along with English Common Law, which is the basis of the law in all ex-British colonies including the USA.</p>
<p>Danish towns in the north and east of England had hereditary “law men”, often 12 in number who decided legal disputes. In parallel the West Saxons (Wessex) in the south and west charged 12 theigns in each area with keeping the peace. When the Normans conquered (who were also of Viking origin) they adopted and adapted the existing legal structures.</p>


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<p>In the 12th century, Henry II established that a jury of 12 should decide land disputes. Meanwhile other juries of various sizes were formed to investigate crimes and bring charges - this is the origin of the Grand Juries that still live on in some jurisdictions in the USA although they have been replaced by a judge in other common law jurisdictions (and some states in the USA).</p>
<p>Ultimately the jury that brought charges and the jury that decided guilt were split and the size was standardised. However, it is incorrect to say that it is always 12: some jurisdictions have different numbers for different purposes. For example, <a href="https://www.law.cornell.edu/rules/frcp/rule_48" rel="noreferrer">rule 48</a> of the US Federal rules for civil procedure sets the number at not less than 6 and not more than 12.</p>
<p>The jury system continues to evolve with various jurisdictions adopting different numbers, majority verdicts and judge only trials.</p>


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<p>The jury system continues to evolve with various jurisdictions adopting different numbers, majority verdicts and judge only trials.</p>
<p>There is nothing special or “scientific” about 12: it is what it is because it is what it is.</p>


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Answer 2: <p>It isn't 12, for federal trial courts it's at least 6 and no more than 12. <a href="https://www.law.cornell.edu/rules/frcp/rule_48" rel="nofollow noreferrer">https://www.law.cornell.edu/rules/frcp/rule_48</a> For grand juries it's more <a href="https://www.uscourts.gov/services-forms/jury-service/types-juries" rel="nofollow noreferrer">https://www.uscourts.gov/services-forms/jury-service/types-juries</a>. In az it's 6,8, or 12 depending on the matter being considered. <a href="https://law.justia.com/codes/arizona/2005/title21/00102.html" rel="nofollow noreferrer">https://law.justia.com/codes/arizona/2005/title21/00102.html</a>. I can't go through all the states but it's not always 12. </p>


Tags: united-states, jury, legal-history


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Question Title: Can someone summarize the ruling in Texas Mifepristone ruling?

Question Body: <p>I started reading the ruling in <a href="https://int.nyt.com/data/documenttools/court-decision-invalidating-approval-of-mifepristone/0bb045930a649567/full.pdf" rel="nofollow noreferrer">Alliance for Hippocratic Medicine v. FDA</a>, but it's 60 pages long and full of the expected legalese.</p>
<p>Can someone summarize the argument of the plaintiffs and the legal basis of the judge's ruling in plain language? How can a judge with no medical background invalidate the FDA's approval of a drug?</p>


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Answer 1: <p>Some interesting reasoning about standing aside (which antivaxxers etc. will love though, because it stipulates that the FDA refusing to collect <em>all</em> side effects statistics [even starting 16 years later] gives standing to sue on the original approval), the Texas' judge estimation of success on the merits is essentially relying on the finding that &quot;Pregnancy is not an illness&quot; (p. 40) and essentially repeated on p. 44 as &quot;Chemical Abortion Drugs do not provide a Meaningful Therapeutic Benefit&quot;, so that in the Judge's estimation drugs for terminating pregnancy can be held to a [much] higher safety standard than the FDA decided by itself. This ultimately phrased as (p. 57):</p>
<blockquote>
<p>The Court does not second-guess FDA's decision-making lightly. But here, FDA
acquiesced on its legitimate safety concerns in violation of its statutory duty based on plainly unsound reasoning and studies that did not support its conclusions.</p>


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acquiesced on its legitimate safety concerns in violation of its statutory duty based on plainly unsound reasoning and studies that did not support its conclusions.</p>
</blockquote>
<p>It's followed by another finding that there was likely political interference by the Clinton administration with the FDA's decision.</p>
<p>This a rather partial summary since the order involves several FDA decisions, the details of which which I'm glossing over here (like the fact that the decision to not collect all side effects stats for mifepristone is rather more recent, being taken in 2016--but nonetheless the judge found that consequently the original 2000 decision was reopened as well, and can the object of the suit too.)</p>


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Answer 2: <h2>This is an order for a preliminary injunction</h2>
<p>It requires the FDA to temporarily suspend its approval of the drug until the case is resolved on its merits; nothing of substance has been decided yet.</p>
<p>The judgement is well laid out and easy to follow with headings telling us what each part is about. It starts with background facts and the legal issues to be decided are in the first paragraph on page 6. The judgement then goes onto issues of standing (the plaintiffs have standing), if the action is too early or too late (no), if the plaintiffs are likely to succeed on the merits (yes), if there is a substantial risk of harm (yes), if an injunction would serve the public interest (yes), if what the plaintiffs asked for is the appropriate solution (no), therefore the injunction is granted (in part).</p>


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<p>I can’t see anything that indicates bias. I can see a judge that is pissed off that the FDA apparently failed in its statutory duty to respond to complaints in the time the law requires. That was, rightly, held against the FDA in their arguments that the proceedings were time barred - you can’t delay a process by your own inaction and then say “you can’t sue me because you’re too late.”</p>


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Answer 3: <p>Contrary to how much of the media has been been presenting it, the judge was not ruling on the medical safety or effectiveness of the drug. There were 2 main issues that the plaintiffs claimed:</p>
<ul>
<li>The FDA did not follow the proper processes when they approved the drug and subsequently relaxed the conditions for dispensing it (increasing the availability from the first 7 weeks of pregnancy to the first 10 weeks).</li>
<li>They violated the <a href="https://en.wikipedia.org/wiki/Comstock_laws" rel="nofollow noreferrer">Comstock Act</a> when they approved sending abortion pills by mail.</li>
</ul>
<p>KFF.org has a summary of this decision, as well as the contrary ruling in Washington state, <a href="https://www.kff.org/policy-watch/q-a-implications-of-two-conflicting-federal-court-rulings-on-the-availability-of-medication-abortion-and-the-fdas-authority-to-regulate-drugs/" rel="nofollow noreferrer">here</a>.</p>


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<p>Yesterday (April 14, 2023), the Texas ruling was put on temporary hold by US Supreme Court Justice Samuel Alito. One of the contentious issues is whether the plaintiffs have standing to make this complaint.</p>


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Question Title: Is a sent email in someone else’s inbox subject to data subject rights of the sender?

Question Body: <p>Suppose Bob emails Alice, and both use Hotmail for their e-mail provider. Bob then deletes the message from his sent mail folder. Could Bob issue a subject access request (SAR) to Hotmail for the message (provided it is in fact still) held by Hotmail in Alice's inbox?</p>
<p>Or suppose Charlotte emails Dave, who uses a different email provider from him. Could she submit an SAR to Dave’s email provider for the message she sent to him, provided it is held by them?</p>


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Answer 1: <p>An Art 15 Subject Access Request (SAR) “shall not adversely affect the rights and freedoms of others.”</p>
<p>It would be a grave violation of privacy for an email provider to search its users' account contents. It is therefore likely that the email provider would refuse to fulfil that subject request, unless required to perform a search via a court order. Instead, the SAR could be directed to the account holder (Alice or Dave), if they are subject to the GDPR.</p>


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<p>Depending on the exact legal framework, emails might be protected under confidentiality of communications rules, making such searches similarly illegal to wiretapping. At least in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>, I am fairly certain that an email provider would be criminally liable if they were to disclose emails from their users' email accounts to a third party.</p>


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Answer 2: <p>I am not a lawyer and I am not aware of such a case being decided in court yet. So this i my interpretation of the law:</p>
<blockquote>
<p>Suppose Bob emails Alice, and both use Hotmail for their e-mail provider. Bob then deletes the message from his sent mail folder.</p>
</blockquote>
<p>You are assuming the inner workings of Hotmail. The law does not care what is visible in your &quot;sent mail&quot; folder. The law cares about what is in Hotmails databases.</p>
<blockquote>
<p>Could Bob issue a subject access request (SAR) to Hotmail for the message</p>
</blockquote>
<p>Yes, Bob could. If this email Bob wrote is still saved in Hotmails system in connection to Bobs personal data (in this case their email address in the &quot;from&quot; field clearly identifying it as valid personal data).</p>
<blockquote>
<p>(provided it is in fact still) held by Hotmail in Alice's inbox?</p>
</blockquote>


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<blockquote>
<p>(provided it is in fact still) held by Hotmail in Alice's inbox?</p>
</blockquote>
<p>Again, you are assuming Hotmails data structure is an exact copy of your user interface. I can guarantee you, it is not. Whether it is visible in Alice's inbox is not relevant here. The only relevant point is whether PII was saved. It was, so an SAR should be able to retrieve it. Even if the email is no longer visible in <em>either</em> persons inbox, if it is still held in Hotmails database, it is subject to an SAR.</p>
<p>So with the SAR, no data about Alice would be given out. As the sender (or even receiver) of the mail, you already know it's contents, and you will only get to know whether hotmail still holds a copy of it. That says nothing about whether Alice read it, deleted it, printed it out and put it on display. Anything. It doesn't even say if Hotmail ever delivered it to her or if their email address even exists at Hotmail. Privacy of Alice is not breached here.</p>


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<blockquote>
<p>Or suppose Charlotte emails Dave, who uses a different email provider from him. Could she submit an SAR to Dave’s email provider for the message she sent to him, provided it is held by them?</p>
</blockquote>
<p>Yes, she could. Assuming she can prove that the PII (email address in the &quot;from&quot; field) is hers, she should get that email as a reply to the SAR.</p>
<hr />


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<p>Now, these were the clear cut cases. Where obvious PII in a field to hold that PII was concerned. It does get muddier down the road. What if Alice forwards the mail, and her mail program puts Bob's original sender email in the emails message text like &quot;forwarded from Bob@example.com:&quot;. Is that still PII? It certainly still is Bob's email address that identifies Bob. But it is not in a field that identifies it as an email address to Hotmail. Hotmail is not required to search their customers non-PII fields (so any field that the provider did not ask for PII and is not using for purposes that would make it obvious they expect PII, for example &quot;favorite pizza toping&quot; or &quot;message text&quot;) for accidential PII insertion. A SAR is about what <em>Hotmail</em> knows about you, not what Alice or the person she forwards this information too, knows about you. To Hotmail, this is message text. Could it potentially contain PII? Sure. Literally anything <em>could</em>.


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you, not what Alice or the person she forwards this information too, knows about you. To Hotmail, this is message text. Could it potentially contain PII? Sure. Literally anything <em>could</em>. Do they know it does? No. That is what counts.</p>


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<p>Lets take an example here. 1673. That is a random number I just typed. By the nature of 4 digit numbers only being available for 10000 unique instances, I can practially guarantee you that this is somebodies credit card PIN. So is it PII? If I enter it into a field where the data holder <em>knows</em> it's a credit card PIN, sure. Right now, in this post? No. Even if someone reads this post and goes &quot;what, wait, how did they know <em>my</em> PIN?!?&quot; It's not PII. It's just a number. Only the accompanying information that this number indeed <em>is</em> somebodies PIN would make it PII.</p>


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<p>A good example of this might be Facebook or other invasive no-privacy corporate entities. If they <em>do</em> parse message texts, and they <em>do</em> have a table that says &quot;this message from Alice contained Bob's email address&quot; then that could be part of an SAR. I guess a judge would have to decide where Alice's rights to privacy end and Bob's start to take priority. My personal guess is that if Alice <em>agreed</em> to have her data spyed on this way by their message service, they would side with Bob, who is not even a party to that contract and had his PII taken and saved without his consent.</p>


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Question Title: Home Appraisal Appeal

Question Body: <p>We recently applied to have our PMI dropped, and the bank hired an appraiser to do an appraisal on our home. The comparisons they used were nothing like our home and were not in our subdivision, and the homes he did use to make their assessment were near a trailer park. We had our realtor do a market analysis for us and by his estimation, the home is worth $120,000 over what they quoted. We filed an appeal but were wondering what to do if they deny our request. Can I hire a real-estate lawyer and fight their appraised amount?</p>


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Answer 1: <p>It is possible. Your basis for legal action would be the <a href="https://ncua.gov/regulation-supervision/manuals-guides/federal-consumer-financial-protection-guide/compliance-management/lending-regulations/homeowners-protection-act-pmi-cancellation-act" rel="nofollow noreferrer">Homeowner's Protection Act</a>, <a href="https://www.law.cornell.edu/uscode/text/12/chapter-49" rel="nofollow noreferrer">12 USC Ch. 49</a>, which requires removing the PMI requirement in circumstances that relate to the 80% interest threshold. The specific requirements are in <a href="https://www.law.cornell.edu/uscode/text/12/4902" rel="nofollow noreferrer">§4902</a>. One of the triggers is the <a href="https://www.law.cornell.edu/uscode/text/12/4901" rel="nofollow noreferrer">&quot;cancellation date&quot;</a>, which relates to the initial amortization schedule, basically the day when by making regular payments the loan is reduced to 80% of the initial value (not the loan amount). This


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date&quot;</a>, which relates to the initial amortization schedule, basically the day when by making regular payments the loan is reduced to 80% of the initial value (not the loan amount). This completely ignores later appraisals, though the bank can require proof that the value of the property has not declined (and that evidence is &quot;of a type established in advance and made known to the mortgagor by the servicer promptly upon receipt of a request under paragraph (1))&quot;). The law excludes inflationary changes in equity, where e.g. one has an initial 5% interest that swells to a 20% interest over a few years because of inflation. Refinancing is always a legal option, but maybe not the ideal financial choice depending on interest rate differences and refinancing costs.</p>


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Question Body: <p>Imagine a small social media chat platform is hosted in Sweden and subject to GDPR. Party A sends personal information to party B using the platform, using a private message. The information was provided directly to party B, and was not collected using any automated means. Party B publishes this personal information on the same platform in the form of a public message. Neither party A nor party B are in a country subject to GDPR.</p>
<p>Does party A have any recourse against the platform through the GDPR?</p>
<p>Consider a <em>hypothetical</em> series of events:</p>
<ul>
<li>Alice contacts Bob in a private message over Platform and provides him with her full name</li>
<li>Alice pisses Bob off and Bob, in a petty act of revenge, publishes Alice's personal information in a public space on Platform to &quot;name and shame&quot; her</li>
<li>Platform refuses to delete the message Bob posted as it is not against their terms of service</li>


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<li>Platform refuses to delete the message Bob posted as it is not against their terms of service</li>
<li>Alice is gets angry at this action and tries to take legal action against Platform, claiming a GDPR violation for Platform's refusal to remove the information</li>
</ul>


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Answer 1: <p>I don't think that GDPR applies here.</p>
<p>There are three actors: Alice, Bob, and the Platform. Bob published Alice's personal data through the Platform. Then, we have to consider who of them would be the data controller for this processing activity. Only the controller would be responsible under GDPR for compliance and for handling data subject requests.</p>
<p>I will take it as a given that the scenario involves the processing of Alice's personal data.</p>
<p>I also want to highlight the detail that neither Alice nor Bob are in a country where GDPR applies.</p>
<p>Clearly, the Platform is the data controller for most aspects of their service. However:</p>
<ul>
<li>Controller is whoever determines the purposes and means of processing (Art 4(7)).</li>


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<p>Clearly, the Platform is the data controller for most aspects of their service. However:</p>
<ul>
<li>Controller is whoever determines the purposes and means of processing (Art 4(7)).</li>
<li>The GDPR does not apply to processing by a natural person in the course of a purely personal or household activity (Art 2(2)(c)), which includes “social networking and online activity undertaken within the context of such activities” (Recital 18).</li>
<li>The GDPR would only apply to processing activities that occur in the context of an European establishment of the controller, or when those activities are related to the offering of goods or services to people who are in Europe.</li>
</ul>
<p>This leads me to the following conclusions:</p>
<h3>Only Bob is the data controller for message contents.</h3>


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</ul>
<p>This leads me to the following conclusions:</p>
<h3>Only Bob is the data controller for message contents.</h3>
<p>When Bob posts a message, the Platform does not exert control over the message contents. The Platform is controller for how they process Bob's and Alice's messages, but it does not control the purposes and means for processing conducted via such messages.</p>
<p>Bob used the Platform for the processing activity of publishing Alice's personal data, and is the controller of that activity.</p>
<h3>Alice cannot rely on GDPR against Bob due to issues of territorial scope.</h3>
<p>In a nutshell, Art 3 GDPR says that GDPR can only apply if one end of the subject–controller relationship is in Europe. Since the Platform is EU-based, both Alice and Bob are protected by GDPR with respect to the platform's processing activity.</p>


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<p>However, this is irrelevant when considering the Alice–Bob relationship. Bob does not have an European establishment, so is not subject to GDPR per Art 3(1). Bob does not offer goods or services to people who are in Europe, so is not subject to GDPR per Art 3(2).</p>
<p>Even if Bob were to offer goods or service to people in Europe, Alice wouldn't be covered by GDPR because Bob's processing of Alice's data wouldn't be “related” to such offering, unless perhaps this Platform is some kind of marketplace.</p>
<h3>Bob might have to comply if he was EU-based.</h3>
<p>If Bob was EU-based, things would be more interesting. Now, Bob would clearly be in the GDPR's Art 3 territorial scope, but we must also consider the Art 2 material scope.</p>


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<p>If Bob was EU-based, things would be more interesting. Now, Bob would clearly be in the GDPR's Art 3 territorial scope, but we must also consider the Art 2 material scope.</p>
<p>If Bob is an individual and not a company, Bob might invoke the household exception that exempts normal social media use. However, taking into account CJEU case law from <em>Rynes</em> and <em>Lindqvist</em>, making the data public is unlikely to fall under this narrow exemption.</p>
<p>So in this alternative scenario, Bob might be in scope of the GDPR as a data controller, and would then have to comply with its requirements.</p>
<h3>Even if GDPR were to apply, deletion may not be required.</h3>
<p>“Only a Sith deals in absolutes”, and the GDPR is very much not a Sith. It is based around foundational principles in Art 5, and these must be carefully balanced with other rights.</p>


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<p>“Only a Sith deals in absolutes”, and the GDPR is very much not a Sith. It is based around foundational principles in Art 5, and these must be carefully balanced with other rights.</p>
<p>Bob might have an Art 6(1)(f) <em>legitimate interest</em> in publishing a “name and shame” post. This would depend on the specific context, though.</p>
<p>Bob might be covered by an Art 85 GDPR exception for <em>freedom of expression and information</em>, in particular if the data was published for journalistic purposes. However, such exemptions must be provided by member states.</p>
<p>Bob might not have to fulfil an Art 17 erasure request if none of the deletion criteria are met, in particular if Bob's legitimate interest in publication would override Alice's objection, or if publication is necessary for exercising the right of freedom of expression and information.</p>


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<p>These carve-outs for freedom of expression are important, e.g. to prevent a public figure from abusing GDPR to silence public criticism.</p>
<h3>The Platform <em>might</em> have an obligation to provide safety features.</h3>
<p>As discussed above, I don't think that the Platform is a controller regarding Bob's publication.</p>
<p>However, data controllers have general obligations to ensure the compliance and security of their own processing, which requires the adoption of appropriate technical and organizational measures. In particular, the Platform must ensure data protection by design and by default (Art 25).</p>
<p>Perhaps this could be interpreted to require safety features on the Platform, such as content visibility settings and moderation flags. However, it is not reasonable to interpret this in a way that would force the Platform to censor or delete otherwise-legal content.</p>
<h3>GDPR is the wrong mechanism here.</h3>


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<h3>GDPR is the wrong mechanism here.</h3>
<p>GDPR is a fairly high-profile law, and is sometimes used in ways that it wasn't designed for. For example, the right to access is sometimes used as a kind of Freedom of Information device, and misunderstandings about the GDPR's territorial scope often see international data controllers being wrongly threatened with it.</p>
<p>This scenario is different in that it could be legitimately viewed as a data protection issue between Alice and Bob, if that relationship were subject to GDPR.</p>


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<p>This scenario is different in that it could be legitimately viewed as a data protection issue between Alice and Bob, if that relationship were subject to GDPR.</p>
<p>But it is not appropriate to use the GDPR against the Platform here, since the Platform is not the data controller for the processing activity in question. Instead, Alice would have to find some other reason why the Platform would be liable in some way. For example, if Bob's message were to constitute some kind of illegal doxxing, and Swedish rules were to hold platforms liable when they are informed of illegal user content, then Alice would likely be able to get Bob's content taken down.</p>


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<p>Alice could also consider whether some other rights were violated by Bob's message. For example, if Bob's message was defamatory, violated personality rights, or breached some duty to confidentiality of communications, then Alice might be able to get Bob to take the content down. But this would depend primarily on the laws in Bob's location.</p>
<p>Someone mentioned the issue of copyright. Mere data such as a name is not covered by copyright. However, if Bob published material written by Alice, and this publication is not covered by a copyright exception, then it might be possible to get Bob's post taken down. There is a small hiccup here that Alice might have already given the Platform the necessary rights to publish her writing via the Platform terms of service.</p>


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Answer 2: <p>Edited. As the question was initially asked, I assumed that Bob had simply re-posted the message from Alice with personal details. Since that is not the case, the copyright to the original message does not help here.</p>
<p>What is left is a case of <a href="https://en.wikipedia.org/wiki/Doxing" rel="nofollow noreferrer">doxing</a>, and it should be irrelevant <em>where</em> Bob got Alice's contact details and that Alice is also a user of the platform.</p>


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<p>To comply with GDPR in a structured way, the platform will have documented what data they store, and why, and how they process and handle it. For instance, they might have IPs in their access logs, and keep those just for a day for technical troubleshooting. Afterwards, there is no more reason to have them, so there is every reason to delete them. Billing information might be kept a certain number of years, <em>even if the data subject makes a deletion request</em>, to comply with tax regulations. Account information is kept until the account is deleted, and so on.</p>


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<p>In this documentation, the content of a message by some user (i.e. Bob) would be <strong>associated with that user's account</strong>, even if it is about a different person who may or may not be a user of the platform (i.e. Alice). The platform did stop there, not even trying to make a judgement if the content did disclose Alice's personal data. I'm not quite convinced by the suggestion by <a href="https://law.stackexchange.com/questions/91532/publishing-personal-data-obtained-on-a-swedish-server-gdpr-implications/91552#91552">amon</a> that Bob is the data controller and the platform is merely the data processor regarding this content, but the (usually reasonable) classification of the data keeps it out of scope for Alice's requests.</p>
<p>Various countries have anti-doxing laws, usually criminal laws to prevent harassment and intimidation.</p>


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Question Title: legal limit for a tender in a B2B cooperation

Question Body: <p>Is there a legal limit, above which all B2B transactions must be carried out by tender?  (And below which there is no need for a tender, and a company can use the services of any company of their choice?)</p>
<p>If so, what is the amount?</p>
<p>I am interested in mostly EU countries.</p>


Answer 1: <h2>Purchase by tender is optional</h2>
<p>Businesses can and do by from each other on many basis - they may pay a list price, they may place an order without knowing the price, they may ask for quotations (from one or many suppliers), they may negotiate a price, they may hold an auction, they may hold a formal tender process.</p>
<p>There is no law that says which they may use in what circumstances. If they want to have a formal tender for the supply on 1 paperclip, they can. If they want to order 78 A380 Airbuses without agreeing an upfront price, they can.</p>


Tags: legal-tender


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Question Title: Is it possible for a court to adjust damages awards upward beyond what is asked for?

Question Body: <p>When a plaintiff (or counter-claimant) has only sought $1 in relief, do courts ever adjust that upward to reflect the true value of damages?</p>


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Answer 1: <p>I don't know of any cases where a court <em>has</em> done this, but the law would permit it in an appropriate circumstance.</p>
<p>Under <a href="https://casetext.com/statute/united-states-code/title-28-appendix/federal-rules-of-civil-procedure/rules-of-civil-procedure-for-the-united-states-district-courts/rule-54-judgment-costs" rel="noreferrer">Fed. R. Civ. P. 54(c)</a> federal courts in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a> may grant relief beyond what the complaint demands:</p>
<blockquote>
<p>Final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.</p>
</blockquote>


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<blockquote>
<p>Final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.</p>
</blockquote>
<p>The same is true in <a href="/questions/tagged/new-york" class="post-tag" title="show questions tagged &#39;new-york&#39;" aria-label="show questions tagged &#39;new-york&#39;" rel="tag" aria-labelledby="tag-new-york-tooltip-container">new-york</a> under <a href="https://casetext.com/statute/consolidated-laws-of-new-york/chapter-civil-practice-law-and-rules/article-30-remedies-and-pleading/section-3017-demand-for-relief" rel="noreferrer">N.Y. C.P.L.R. Law § 3017</a>:</p>
<blockquote>
<p>The court may grant any type of relief within its jurisdiction appropriate to the proof <em>whether or not demanded</em>.</p>
</blockquote>


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Answer 2: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Yes, it is possible for the jury to award more than is asked for, whether it was one dollar or another value.</p>
<p>In fact, in <a href="https://en.wikipedia.org/wiki/Bollea_v._Gawker" rel="noreferrer">Bollea v. Gawker</a>, the plaintiff asked for $100 million.  The jury awarded $115 million in compensatory damages and $25 million in punitive damages.</p>
<p>(I will note that there was a lot of discussion that this showed the jury was uncommonly disgusted with Gawker.)</p>


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Answer 3: <p>In <a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a>, the court is bound by the parties’ claims. See <a href="https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070716/LEGISCTA000006149635/#LEGISCTA000006149635" rel="noreferrer">articles 4 and 5 du code de procédure civile</a>:</p>
<blockquote>
<p>L'objet du litige est déterminé par les prétentions respectives des parties. (...)
Le juge doit se prononcer sur tout ce qui est demandé et seulement sur ce qui est demandé.</p>
</blockquote>
<blockquote>
<p>The dispute is determined by the claims of all parties. (...)
The judge must rule on all which is asked, and only that which is asked.</p>
</blockquote>
<p>Say I borrow your car, I return it with a broken window, and we end up at trial.</p>


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The judge must rule on all which is asked, and only that which is asked.</p>
</blockquote>
<p>Say I borrow your car, I return it with a broken window, and we end up at trial.</p>
<p>You claim that (1) you had to pay a mechanic €500 to fix the window and (2) you underwent significant emotional distress when seeing the broken window, worth €1 million. I claim that the window was already damaged when I borrowed the car, so I should not be held liable for anything; furthermore, in any case, the window could have been fixed for €100, and you did not have any significant emotional damage worth paying for.</p>
<p>The judge must rule within the bounds of your claims (1) and (2) (in that example I have not put forward any counterclaim). All the following would be grounds for a successful appeal:</p>
<ul>


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<p>The judge must rule within the bounds of your claims (1) and (2) (in that example I have not put forward any counterclaim). All the following would be grounds for a successful appeal:</p>
<ul>
<li>the judge rules I owe you €250 for the broken window, and does not say anything about emotional distress. Or alternatively, that €1m for emotional damages is absolutely ridiculous and dismisses the case without saying anything about the repair cost. That would be <em>infra petita</em> (ruling on less than what was asked); each claim must be addressed separately (if only to say, &quot;and because of the same reasoning, claims 2, 7 and 11 also fail&quot;).</li>
<li>the judge rules I owe you €1000 for the broken window, and nothing for emotional distress. That would be <em>ultra petita</em>: they cannot give you more than what you asked for each item (even if the combined result is within the claim).</li>


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<li>the judge rules I owe you €300 for the broken window, nothing for emotional distress, and €200 in lost wages for the day you missed work due to having to fix the car. That would be <em>extra petita</em>: they cannot rule on anything that was not raised specifically by the parties (again, even if it fits within the &quot;global envelope&quot; of the claims).</li>
</ul>
<p>I have never seen a general claim &quot;for any relief that would be just and proper&quot; (or similar). I suspect such a claim would be dismissed, but could not quickly find any case law on the subject. I would say it violates a combination of article 4 and <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006410099/2017-09-01" rel="noreferrer">article 6</a> - you must make specific claims and bring proof to establish each claim.</p>


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Answer 4: <p>Typically, a Prayer for Relief (the part of the lawsuit documents that includes the listed Relief) will request &quot;Any other damages as the court sees fit&quot; which allows for this.  To my knowledge, it's not usually given beyond the damages sought, but does give the judge the ability to add on damages not directly sought.</p>


Tags: civil-law, any-jurisdiction, civil-judgment, civil-damages, nominal-damages


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Question Title: USA Private School Law. Could disrespect of State regulation be constructed as a breach of an enrollment contract?


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Question Body: <p>I am trying to understand the main, basic tenets of USA public vs. private school law. (See <a href="https://law.stackexchange.com/questions/91235/usa-private-school-law-how-is-contract-law-relevant">my previous question</a> of a series).</p>
<p>In the case of a private school, I understand that  the relationship between a student (/family) and a private school is framed by an enrollment contract.</p>
<p>I have been explained that quite often private schools are regulated (and regulations vary extremely widely in the USA). I did check the <a href="https://www2.ed.gov/about/inits/ed/non-public-education/regulation-map/pennsylvania.html" rel="nofollow noreferrer">Pennsylvania case</a>, and I see a number of regulations about teacher certification, curriculum, length of school year and days, and so on.</p>


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<p>My question is, could those regulations  be somehow constructed as clauses of the contract between the family and the school? To say in a different way, if a school does not respect a regulation toward a student, could that be constructed as a breach of the contract?</p>


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Answer 1: <p>If it is not actually in the contract, it cannot be considered to be a breach of contract.</p>


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<p>There are two kind of private schools: approved, and non-approved. An approved private school is subject, in Washington State, to <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=28A.195&amp;full=true" rel="nofollow noreferrer">Chapter RCW 28a.195</a>. The state board of education can take action against an approved private school which does not conform to the applicable regulations. This does not create a private cause of action, so you cannot sue the school for violating the regulation, instead you <a href="https://app.leg.wa.gov/wac/default.aspx?cite=180-90-170" rel="nofollow noreferrer">complain to the BoE</a>, who may take action, and if the issue is not corrected, the approval may be withdrawn. The advantage of being an approved school is that this satisfies the <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=28a.225&amp;full=true" rel="nofollow noreferrer">compulsory education statute</a>, unlike your local Sunday school, nursery school, or any other kind of


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rel="nofollow noreferrer">compulsory education statute</a>, unlike your local Sunday school, nursery school, or any other kind of things calling itself a school. This does not preclude the possibility that a contract with a private school will include some clause to the effect that the school promises to comply with BoE regulations. <a href="https://defendinged.org/resources/private-school-rights/" rel="nofollow noreferrer">This page</a> provides a collection of possibly real enrollment contracts – my cursory reading did not locate any promise to adhere to state regulations</p>


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<p>There is a separate question herein, that it may be <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=9.04" rel="nofollow noreferrer">deceptive advertising</a> to imply that you are an approved school when you are not approved.</p>


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Answer 2: <h2>No</h2>
<p>Unless the breach of the law is <em>also</em> a breach of contract. This is the general position under contract law and is not specific to private schools.</p>
<p>So, for example, if the school does not pay the taxes it is required to pay then, unless and until it causes them to fail to perform their obligations under the contract, it is not a breach. It is also not a breach of contract if their actions cause you to be in breach of the law, although, here you may have remedies outside contract law.</p>
<p>Of course, a contract can make compliance with the law a contractural obligation and such clauses are common in B2B and G2B contracts. For <a href="https://www.finance.gov.au/government/procurement/clausebank/compliance-laws" rel="nofollow noreferrer">example</a>.</p>


Tags: school-law


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Question Title: What is it called when a suspect is questioned without their lawyer?

Question Body: <p>To elaborate, I know it is illegal for authorities to question a suspect when their lawyer isn’t present. Is this a crime or just illegal? If it is a crime, what is it called?</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<blockquote>
<p><em>&quot;I know is it illegal for authorities to question a suspect when their lawyer isn’t present&quot;</em></p>
</blockquote>


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<blockquote>
<p><em>&quot;I know is it illegal for authorities to question a suspect when their lawyer isn’t present&quot;</em></p>
</blockquote>
<p>This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying &quot;Maybe I should talk to a lawyer&quot; (ie <a href="https://supreme.justia.com/cases/federal/us/512/452/" rel="nofollow noreferrer">Davis v. U.S. (512 U.S. 453 (1994)</a>) isn't enough, they have to say &quot;I want a lawyer&quot;. Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See <a href="https://en.wikipedia.org/wiki/Miranda_warning" rel="nofollow noreferrer">Miranda Rights</a>).</p>
<p>So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that.</p>


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<p>So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that.</p>
<p>With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly.</p>


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Answer 2: <h1><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a></h1>
<p><strong>I know it is illegal for authorities to question a suspect when their lawyer isn’t present.</strong></p>
<p>This is not really true, at least in England and Wales.</p>
<p>The right to free and independent legal advice (FILA) is defined by <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/58?timeline=false" rel="nofollow noreferrer">s.58 of the Police and Criminal Evidence Act 1984</a> (PACE), but it is not an absolute right. It may be <em>delayed</em> - but not totally denied - under certain circumstances such as when a senior police officer reasonable believes that a consultation with a solicitor may, inadvertently or otherwise, lead to interfering with evidence, causing harm to others, tipping off other not yet arrested suspects, or hindering the recovery of property.</p>


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<p>Similar criteria also apply when an &quot;urgent interview&quot; is necessary to secure time-critical evidence.</p>
<p>Any prosection evidence obtained unfairly by significant or substantial breaches of PACE may be excluded following a defence application under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/78?timeline=false" rel="nofollow noreferrer">s.78 of PACE</a>.</p>
<p>One example of when access to a solicitor was unfairly denied is the investigation in to the <a href="https://en.m.wikipedia.org/wiki/Murder_of_Sian_O%27Callaghan" rel="nofollow noreferrer">murder of Sian Callaghan</a>.  In essence, the officer concerned did not have an &quot;urgent&quot; need to conduct an interview.</p>
<p><strong>If it is a crime, what is it called?</strong></p>


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<p><strong>If it is a crime, what is it called?</strong></p>
<p>Unfair denial to FILA is called a &quot;<em>Breach of PACE</em>&quot; which is not a crime in-and-of-itself although there is the possibility of, for example, <a href="https://www.cps.gov.uk/legal-guidance/public-justice-offences-incorporating-charging-standard" rel="nofollow noreferrer">perverting the course of justice</a> or <a href="https://www.cps.gov.uk/legal-guidance/misconduct-public-office" rel="nofollow noreferrer">misconduct in a public office</a> offences.</p>


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Answer 3: <p>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, at least, there isn't a special term to capture this.</p>
<p>If the suspect has requested a lawyer, but the police continue questioning, you could call that a &quot;<em>Miranda</em> violation,&quot; but tthat phrase could also refer to several other actions, such as failing to notify the suspect of his <em>Miranda</em> rights, or questioning him when he has not asked for a lawyer, but has invoked his right to remain silent.</p>


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Answer 4: <p>In the United States, if someone who has requested a lawyer is questioned by police despite their desire not to do so, in violation of their <em>Miranda</em> rights under the 6th Amendment, this is a &quot;civil rights violation&quot;.</p>
<p>There are several remedies for this civil rights violation.</p>
<p>It can trigger the exclusionary rule to exclude any statement obtained in that fashion from being used at trial against the person questioned. This happens routinely.</p>
<p>It can be a basis for a lawsuit against the interrogating officer for money damages for violating a well established constitutional right. This would be in the form of a 1983 action if the official is a state or local officer, and in the form of a common law <em>Bivens</em> action is the official is a federal official. This would be quite rare.</p>


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<p>It could, in theory, also be the basis for a federal criminal prosecution of the interrogating officer for intentionally violating civil rights, although this would be almost unheard of unless the practice was pervasive.</p>
<p>A civil rights violation such as this would also provide a valid basis for disciplining or even firing the law enforcement officers for good cause. This also almost never happens.</p>


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Question Title: How far does the fruit of the poisonous tree doctrine extend?

Question Body: <p>Suppose that an individual has been arrested, multiple times, for possession of controlled substances (i.e. illegal drugs), but has managed to get the charges dropped or dismissed by a court after a hearing each time because the searches leading to the arrest were blatantly unlawful under the 4th Amendment prohibition against unlawful search and seizure. These bad searches are the only evidence available that the person is a drug user/dealer. There is no informant evidence available.</p>

<p>Generally, the "fruit of the poisonous tree" doctrine forbids using evidence only obtained as a result of an unlawful search or seizure to convict someone. But, where does the chain of causation end?</p>


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<p>Can the past arrests serve as a basis for reasonable suspicion to stop a person? As probable cause for a future search warrant or arrest warrant or wiretap? As basis for active surveillance without a stop or arrest or search warrant? As a basis for inclusion of the person on an informal watch list? </p>

<p>What if law enforcement set up a string operation targeted at this individual? Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)? Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before?</p>

<p>Are there any cases that serve as good examples of these limits?</p>


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<p>Are there any cases that serve as good examples of these limits?</p>

<p>(FWIW, this question was inspired by an incident in the TV show "The Santa Clarita Diet", in which a cop enters a house without a warrant or permission to enter and discovers a protagonist smoking pot in California without a medical marijuana exception, but is not limited to those circumstances.)</p>


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Answer 1: <p>You have raised two broad questions. The question about reasonable suspicion asks: <strong>when is evidence illegally obtained?</strong> That's difficult to answer, because it depends on the nature of the evidence and any statute which controlled the way in which it should have been collected. However, the focus of your question seems to be the second issue: <strong>what use can the government make of illegally obtained evidence?</strong> This is the subject of the exclusionary rule. The short answer is this:</p>
<blockquote>
<p>The exclusionary rule is a judicial remedy created for the purpose of deterring future unlawful conduct. The rule prohibits both direct and indirect use of illegally obtained evidence (&quot;fruit of the poisonous tree&quot;) in a criminal prosecution, but will only be applied where its deterrence benefits outweigh its substantial social costs.</p>
</blockquote>


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</blockquote>
<p>To give more insight into how the courts have applied this balancing test, I will summarise its history and rationale. I will then set out the modern formulation of the rule, and try to answer some of your specific hypothetical questions.</p>
<h2>History and rationale of the exclusionary rule</h2>


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<h2>History and rationale of the exclusionary rule</h2>
<p>The exclusionary rule originated in <a href="https://supreme.justia.com/cases/federal/us/232/383" rel="nofollow noreferrer"><em><strong>Weeks v. United States</strong></em></a>, 232 U.S. 383 (1914). The government searched Weeks' house without a warrant, seized letters and other property, and charged him with operating an illegal lottery. Weeks applied for the return of the property, but the district court held that &quot;the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but if competent would keep them and permit their use in evidence.&quot; Weeks was convicted. The Supreme Court reversed, holding that:</p>
<blockquote>


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<blockquote>
<p>If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution ... <strong>The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures</strong> and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, <strong>should find no sanction in the judgments of the courts</strong> which are charged  at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.</p>
</blockquote>


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</blockquote>
<p>In <a href="https://supreme.justia.com/cases/federal/us/251/385" rel="nofollow noreferrer"><em><strong>Silverthorne Lumber Co. v. United States</strong></em></a>, 251 U.S. 385 (1920), the doctrine was extended to prevent <strong>indirect use</strong> of information derived from illegally obtained evidence, unless the information comes from an independent source. The government illegally searched Silverthorne's offices, and copied the records seized before the district court ordered their return. The district court also impounded the copies, so the government issued a regular subpoena to produce the original documents. The district court held Silverthorne in contempt for failure to comply with the subpoena. The Supreme Court reversed, holding that:</p>
<blockquote>


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<blockquote>
<p>The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely <strong>evidence so acquired shall not be used before the Court but that it shall not be used at all</strong>. Of course this does not mean that the facts thus obtained become sacred and inaccessible. <strong>If knowledge of them is gained from an independent source they may be proved like any others</strong>, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.</p>
</blockquote>


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</blockquote>
<p>The Court acknowledged the 'complexities' of this distinction in <a href="https://supreme.justia.com/cases/federal/us/308/338" rel="nofollow noreferrer"><em><strong>Nardone v. United States</strong></em></a>, 308 U.S. 338 (1939). This case introduced the term 'fruit of the poisonous tree,' and an exception to the doctrine where the connection between the illegality and the evidence presented is 'so attenuated as to dissipate the taint.' Nardone had been convicted of defrauding the revenue twice. The first conviction was based on evidence obtained from an illegal wiretap, and was reversed by the Supreme Court. Nardone was convicted again after a retrial, and argued that the conviction should be set aside because he was not permitted to &quot;examine the prosecution as to the uses to which it had put the [illegally obtained] information.&quot; Frankfurter J, delivering the opinion of the Court, quoted the above passage from <em>Silverthorne</em> and said:</p>


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<blockquote>
<p>In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, <strong>such connection may have become so attenuated as to dissipate the taint</strong> ... The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a <strong>fruit of the poisonous tree</strong>. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.</p>
</blockquote>
<h2>Development of modern limits to the exclusionary rule</h2>


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</blockquote>
<h2>Development of modern limits to the exclusionary rule</h2>
<p>The Court clarified the purpose of the doctrine in <a href="https://supreme.justia.com/cases/federal/us/414/338" rel="nofollow noreferrer"><em><strong>United States v. Calandra</strong></em></a>, 414 U. S. 338 (1974), declining to extend it to grand jury proceedings. The Court held that Calandra was required to answer questions put to him by a grand jury, even though the questions had been informed by the fruits of an illegal search. The Court said:</p>
<blockquote>


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<blockquote>
<p>The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... Instead, <strong>the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures</strong> ... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved.</p>
</blockquote>
<blockquote>
<p>Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons ... the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.</p>
</blockquote>


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<p>The Supreme Court endorsed a <strong>good faith exception</strong> to the exclusionary rule in <a href="https://supreme.justia.com/cases/federal/us/468/897" rel="nofollow noreferrer"><em><strong>United States v. Leon</strong></em></a>, 468 U.S. 897 (1984). Drugs were found in a search of Leon's house and car pursuant to a facially valid search warrant, but on review the district court found that there was no probable cause to issue the warrant. Therefore, the search was illegal although the officers executing it had acted in good faith. After reviewing the cases in which the Court had declined to apply the rule, the Court held that the evidence against Leon should not have been excluded:</p>
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<blockquote>
<p>The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern ... We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, <strong>suppression is appropriate only if the officers were dishonest or reckless in
preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause</strong>.</p>
</blockquote>


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preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause</strong>.</p>
</blockquote>
<p>In <a href="https://supreme.justia.com/cases/federal/us/524/357" rel="nofollow noreferrer"><em><strong>Pennsylvania Bd. of Probation and Parole v. Scott</strong></em></a>, 524 U.S. 357 (1998), the Court cited <em>Leon</em> and explicitly endorsed the use of a balancing test in declining to extend the rule to State parole proceedings:</p>
<blockquote>
<p>[B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its <strong>deterrence benefits outweigh its
&quot;substantial social costs&quot;</strong> ...</p>
</blockquote>
<blockquote>
<p>A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole


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<blockquote>
<p>A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole
revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of
the Fourth Amendment.</p>
</blockquote>
<p>The Court endorsed an even more circumspect approach to the rule in <a href="https://supreme.justia.com/cases/federal/us/579/14-1373/" rel="nofollow noreferrer"><em><strong>Hudson v. Michigan</strong></em></a>, 547 U.S. 586 (2006). The police executed a valid search warrant and found guns and drugs in Hudson's house, but the search was unlawful because the police did not knock and announce before entering. The Court declined to exclude the evidence obtained in the search, holding that:</p>
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<p><strong>Suppression of evidence, however, has always been our last resort, not our first impulse.</strong> The exclusionary rule generates &quot;substantial social costs&quot;, which sometimes include setting the guilty free and the dangerous at large. We have therefore been &quot;cautio[us] against expanding&quot; it, and &quot;have repeatedly emphasized
that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.&quot; We have rejected
&quot;[i]ndiscriminate application&quot; of the rule, and have held it to be applicable only &quot;where its remedial objectives are thought most efficaciously served,&quot;—that is, &quot;where its deterrence benefits outweigh its 'substantial social costs.'&quot; (citations omitted)</p>
</blockquote>
<h2>Current state of the law</h2>


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</blockquote>
<h2>Current state of the law</h2>
<p>As of June 2017, the last word on the rule is the Supreme Court's decision in <a href="https://supreme.justia.com/cases/federal/us/579/14-1373/" rel="nofollow noreferrer"><em><strong>Utah v. Strieff</strong></em></a>, 579 U.S. 232 (2016). Again, the Court reversed a State court's decision to suppress unlawfully obtained evidence in a criminal trial. The Court identified three exceptions to the exclusionary rule:</p>
<blockquote>


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<p>First, the <strong>independent source doctrine</strong> allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the <strong>inevitable discovery doctrine</strong> allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the <strong>attenuation doctrine</strong>: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that &quot;the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.&quot; (citations omitted)</p>
</blockquote>


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<p>Strieff was illegally stopped and asked for ID after leaving a house under surveillance by narcotics police. After discovering an outstanding arrest warrant for a traffic violation, the police lawfully arrested and searched Strieff and found him in possession of methamphetamine. The Court found that the exclusionary rule did not apply because of the attenuation doctrine:</p>
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<p>The three factors articulated in <a href="https://supreme.justia.com/cases/federal/us/422/590" rel="nofollow noreferrer"><em><strong>Brown v. Illinois</strong></em></a>, 422 U.S. 590 (1975), guide our analysis. First, we look to the &quot;<strong>temporal proximity</strong>&quot; between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider &quot;<strong>the presence of intervening circumstances</strong>.&quot; Third, and &quot;particularly&quot; significant, we examine &quot;<strong>the purpose and flagrancy of the official misconduct</strong>.&quot; (citations omitted)</p>
</blockquote>
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<blockquote>
<p>[W]e hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct.</p>
</blockquote>
<h2>Specific scenarios</h2>
<ul>
<li><strong>Can the past arrests serve as a basis for reasonable suspicion to stop a person?</strong></li>


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</blockquote>
<h2>Specific scenarios</h2>
<ul>
<li><strong>Can the past arrests serve as a basis for reasonable suspicion to stop a person?</strong></li>
<li><strong>As a basis for inclusion of the person on an informal watch list?</strong></li>
</ul>
<p>As mentioned in the introduction, this question is not really about &quot;fruit of the poisonous tree.&quot; It is an anterior question about whether or not a police stop was unlawful. The court asks: would the facts available to the officer at the moment of the search warrant a man of reasonable caution in the


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belief that the action taken was appropriate? <a href="https://supreme.justia.com/cases/federal/us/392/1" rel="nofollow noreferrer"><em><strong>Terry v. Ohio</strong></em></a>, 392 U.S. 1 (1968). Officers are permitted to consider criminal history, as the Fourth Circuit held in <a href="http://caselaw.findlaw.com/us-4th-circuit/1200285.html" rel="nofollow noreferrer"><em><strong>United States v. Sprinkle</strong></em></a>, 106 F.3d 613 (1997):</p>
<blockquote>
<p>A prior criminal record &quot;is not, alone, sufficient to create reasonable suspicion.&quot; Nevertheless, an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity. (citations omitted)</p>
</blockquote>
<ul>
<li><strong>As probable cause for a future search warrant or arrest warrant or wiretap?</strong></li>
<li><strong>As basis for active surveillance without a stop or arrest or search warrant?</strong></li>


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<li><strong>As basis for active surveillance without a stop or arrest or search warrant?</strong></li>
<li><strong>What if law enforcement set up a sting operation targeted at this individual?</strong></li>
</ul>
<p>As with reasonable suspicion, evidence of the suspect's reputation and criminal history can be taken into account in establishing probable cause for an arrest or search warrant. However, a history of past arrests would probably not suffice in itself to &quot;warrant a man of reasonable caution in the belief that an offense has been or is being committed&quot;: <a href="https://supreme.justia.com/cases/federal/us/338/160" rel="nofollow noreferrer"><em><strong>Brinegar v. United States</strong></em></a>, 338 U.S. 160 (1949).</p>
<ul>
<li><strong>Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)?</strong></li>


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<ul>
<li><strong>Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)?</strong></li>
<li><strong>Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before?</strong></li>
</ul>


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<li><strong>Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before?</strong></li>
</ul>
<p>If the evidence is <em>suppressed</em> then by definition it cannot be used adversely to the defendant. However, if the evidence is shown to have been obtained illegally, it will only be excluded where the deterrence benefits of exclusion outweigh its substantial social costs: <em>Pennsylvania Bd. of Probation and Parole v. Scott</em>. The evidence is more likely to be admitted if it falls into one of the three exceptions set out in <em>Utah v. Strieff</em>: independent source, inevitable discovery or attenuation. In considering attenuation, the court will pay particular attention to 'the purpose and flagrancy of the official misconduct.'</p>


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<p>Clearly, it is impossible to say, in general, whether unlawfully obtained evidence could be admitted to counter an entrapment defence or attack the defendant's character and credibility. Not only will the application of the exclusionary rule depend on a wide range of considerations, other rules of evidence may need to be applied (such as the rules against character evidence and extrinsic evidence on a collateral matter). Nevertheless, the cases cited above should give some insight into how the court will approach the fruit of the poisonous tree doctrine.</p>


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Question Body: <p>My question: Does Perverting the Course of Justice 'apply' to those who try and garner 'evidence' using somewhat deceptive means, even if the evidence they intend to gain is accurate and lawful?</p>
<p><strong>Hypothetical Example:</strong></p>
<p>John has a need to prove his employment history. Perhaps he is being questioned on it by his current employer and that employer is threatening to go through with civil action. This context is irrelevant really.</p>
<p>John then decides to ask his employer to write a reference in case any future employers come asking for one. He isn't looking for a job. The ex-employer agrees and states something along the lines of 'certainly, you always were a great employee' - the proof John wanted to prove that he worked at this place all along.</p>


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<p>The example is a little backwards, not making much sense in the real world, but I hope you understand the point I'm trying to get at. Is it illegal to lie or deceive in order to gain evidence?</p>


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Answer 1: <h2>There must be a course of justice on hand that can be <a href="https://en.wikipedia.org/wiki/Perverting_the_course_of_justice" rel="nofollow noreferrer">perverted</a></h2>
<p>It has been held that until: police start an investigation, prosecutors lay charges, or a plaintiff serves a claim on a defendant, there is no “course of justice” so no ability for it to be perverted. The threat of a lawsuit is <em>not</em> a lawsuit. So, for your example, whatever John does is not perverting the course of justice until he is advised that his employer <em>has</em> started civil action.</p>
<p>Let’s assume that the dates John worked at his previous place are material and relevant to the case. All John has to do is ask his ex-employer to confirm those dates and, if the ex won’t cooperate, subpoena them - that is, have the court issue an order requiring the ex to produce the evidence.</p>


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<p>Similarly, if John needs to prove that his previous employer thought “you were always a great employee”; perhaps he had claimed us much in an interview to get his current job, he would just need to have the ex testify to that.</p>
<p>It’s only if John suborns false evidence in the course of a legal proceeding that we are getting anywhere near perverting the course of justice.</p>


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Answer 2: <p>Would the reference be genuine and truthful? Using any false document in legal proceedings or to get or keep employment can lead to legal consequences.</p>
<p>Using false documents or lying to get a job (exam results, qualifications, fake employment history, etc) is fraud, and can lead to criminal charges.</p>
<p>If the reference is false or misleading in some way, for example the person never worked for the previous 'employer', or if they did but false dates are given, or the reference is untrue about the worker's conduct (perhaps if it says they were a good employee and they were fired for poor conduct or performance) then the previous employer and employee could face charges of perverting the course of justice <strong>if</strong> the documents are later submitted or used in a civil or criminal court case, or in a case before an Employment Tribunal.</p>


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<p>An employer in Scotland fired a female employee after she made accusations of sexual harassment. She had no written contract of employment. When she took him to an Employment Tribunal, he created a false contract of employment, and a false warning letter. When the deception was proved, he was prosecuted for perverting the course of justice, and sentenced to 4 months in prison.</p>
<p><a href="http://news.bbc.co.uk/1/hi/scotland/tayside_and_central/8359390.stm" rel="nofollow noreferrer">Boss jailed for lying to tribunal (BBC News)</a></p>
<p>Because of issues around the risk of even minor legal complications, most employers are very wary of supplying very much in the way of references, and will only confirm start and finish dates from their records.</p>


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<p>If the 'reference' the person obtained is truthful, there would be no legal penalty for obtaining it. If the person is trying to get the former employer to cook up a false or misleading document, then both could face criminal charges.</p>


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Answer 3: <p>It seems you are confusing &quot;breaking the law&quot; and &quot;perverting the course of justice&quot;. Lying to get yourself an illegal advantage is usually fraud; fraud is &quot;breaking the law&quot; but not &quot;perverting the course of justice&quot;.</p>
<p>&quot;Perverting the course of justice&quot; is doing things in court that are designed to make the court make the wrong decision. Let's say you are in court for robbery, and you did indeed commit it. &quot;Justice&quot; would be declaring you guilty if you committed the robbery, and &quot;not guilty&quot; if you didn't. Now if you pay someone to give you a false alibi, with the intent that instead of justice = guilty the court declares you &quot;not guilty&quot; which is not justice, that is perverting the course of justice.</p>


Tags: england-and-wales, common-law, rules-of-evidence


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Question Body: <p>Gwyneth Paltrow was subject to a merit less claim for however much, and she defended it while bringing a symbolic counter claim for $1, which I understood that she won on that order.</p>
<p>This brings up a whole bunch of questions about the principles on which courts entertain or don’t entertain lawsuits, but the real question here is (in one way, why wasn’t it dealt with in any of a handful of seemingly more sensible ways, while in another) why was it accepted and heard in the way that it was?</p>


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<p>On the one hand it seems as though $1 ought generally to be caught under de minimis, or be considered frivolous, if it really is a realistic appraisal of the impact that the civil wrong deemed to have been committed actually had. She said it cost her an entire afternoon of skiing with her family. So is $1 really a fair value for one afternoon of Gwyneth Paltrow skiing and enjoying time with her family? Surely it is worth more even if only on the basis of what she would have paid to the ski resort etc in order to facilitate that leisure activity. That’s not even touching the hedonic value of it which I imagine would apply even if it would have been an afternoon spent enjoying the free sunshine with her family in a public park. In any case, how often do courts hear claims for $10mm that succeed, but actually only for $6mm or $8mm, because that’s what the court feels the damages suffered were actually worth?</p>


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<p>So why didn’t the court adjust the damages sought upward in this case, and if it had thought that $1 was actually an accurate assessment of the damages suffered, then why wasn’t the case thrown out as frivolous litigation or de minimis?</p>
<p>For Paltrow’s part it seems that the counterclaim was undertaken largely to prove a point, but do judicial service and courts exist for people to use in maintaining their pride or in making points? Is that what (part of) what courts are there for?</p>


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Answer 1: <p>Without her counter claim, many people watching the case would be thinking &quot;I bet she was guilty, but the poor victim didn't have enough evidence&quot;. With the judge ruling in her favour with the $1 award, many of these people will instead say &quot;So she was innocent, and the guy was guilty. How nice of her to only ask for $1 instead of all his money&quot;.</p>
<p>So that explains why she made that counterclaim: Legally it doesn't make much difference (although it improves her chances of getting awarded lawyer costs), but the outcome in the public opinion is much better for her.</p>
<p>The important thing with the counterclaim is that when successful, it shows she was innocent (not just &quot;not guilty because we can't prove it&quot;), so it's neither frivilous nor can it be rejected as &quot;de minimis&quot; because she doesn't need the money, but she was defending her reputation.</p>


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<p>(Now everyone here hopefully knows that this was a civil case, so &quot;guilty&quot; and &quot;not guilty&quot; should normally not be used, but in the public eye they exist. )</p>
<p>Re comments: So what were her true damages? According to the ruling, someone drove into here on the ski slope, and according to what she said herself she wasn't harmed in any way. So there would be very little in damages. Still, you are not allowed to drive into people on a ski slope, so $1 is not that far away from the correct amount. Maybe she could have asked for $1,000. She could have been injured, then she could have asked for a lot more.</p>


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Question Title: What remedies can a witness use to satisfy the &quot;all the truth&quot; portion of their oath?

Question Body: <p>Hypothetical:
A witness took an oath to tell the whole truth. The adversarial cross-examiner abruptly cuts off the witness's testimony in the middle of a statement, leaving the train of thought incomplete and possibly leading to a misunderstanding by the jury.</p>
<p>The witness wishes to finish that statement and more. Their objective is to fulfill the &quot;whole truth&quot; portion of their oath. What can the witness do during trial to fix this situation?</p>
<p>Can they appeal to the jury? Raise an objection? Or is the witness at the mercy of the (either side's) lawyers' whims? Does the witness have a right to finish their statement even though the cross-examiner has cut them off?</p>


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Answer 1: <p>&quot;The whole truth&quot; is part of a formulaic phrase which has been operationalized to mean merely &quot;don't commit perjury.&quot;</p>
<p>A witness simply answers the questions asked and is not permitted to go further.</p>
<p>The witness is at the mercy of the lawyer's whims. The witness does not have a right to testify beyond the scope of the question asked.</p>
<p>It is improper for a lawyer to cut off a witness when in the middle of providing an answer to the question asked, but those points are for the other side's lawyer and the judge to raise, not the witness.</p>
<p>If the answer of a witness to the question asked on cross-examination leaves a false impression, it is up to the other side's lawyer to correct that by asking additional redirect examination questions of the witness in our adversary system.</p>


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<p>Asking questions that when answered truthfully leave a false impression because the answer presents an incomplete version of the whole story is standard practice in lawyering. This tactic is less effective, however, in jurisdictions like Colorado where judges and juries can also ask their own questions of witnesses once the lawyers are finished asking their questions.</p>


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Answer 2: <p>The defendant in <a href="https://supreme.justia.com/cases/federal/us/409/352/" rel="noreferrer">Bronston v. United States</a>, 409 U.S. 352 told a partial truth but not the whole truth, and got away with it. The crucial feature of his testimony is that he only answered part of the question asked, and it was the duty of the opposing lawyer to detect the discrepancy. This gave rise to the &quot;literal truth&quot; standard, which has then been clarified in various ruling such as <a href="https://caselaw.findlaw.com/us-6th-circuit/1281551.html" rel="noreferrer">US v. De Zarn</a> which focus on the entire context of testimony, not just on the absolute truth value of an isolated sentence.</p>


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<p>The problem with the concept &quot;the whole truth&quot; is that it is impossible to testify to everything that you know to be true, you can only testify to that which you know to be true <em>and relevant</em>. The form of the question can dictate what is relevant, for example if the question asks &quot;did you see Smith on the night of June 30&quot;, then not mentioning anything about June 29 or the morning of June 30 would not be &quot;failing to tell the whole truth&quot;, and it would not be perjury if you answered &quot;No&quot; even when you say Smith on the morning of June 30. If the question was more broadly &quot;Have you ever seen Smith&quot;, then in those circumstances, &quot;No&quot; would be perjury. In other worth, you are entitled to assume a certain scope of relevance, <em>if</em> not clearly contradicted by the whole of the testimony (which is why you need a lawyer to watch out for your interests).</p>


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<p>If, ill-advisedly, you say &quot;No.&quot; intending to continue &quot;Well, actually, yes, I did see him on the morning of the 30th&quot;, you might get dismissed by the attorney. Before you leave the stand, you can address the court and ask permission to correct your testimony.</p>


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Answer 3: <p>Court contains two parties.  You look dead square at <em>the other</em> counsel and go &quot;HELP!&quot; in whatever way you can signal that.</p>
<p>They write a note.</p>
<p>At appropriate time, they say &quot;Redirect, your honor&quot;.</p>
<p>&quot;Go ahead.&quot;</p>
<p><strong>And then they ask you to finish your thought.</strong></p>
<p>But no, other than that you don't get to tamper with the court's flow in real time.  If you don't feel the story has been told to your satisfaction, you can talk to the friendly counsel off-line and tell them what was missed, and they can recall you to the witness stand.</p>
<p>I suppose in some circumstances, you could file an <em>amicus</em> brief, which is how a 3rd party injects legal input into a proceeding.</p>


Tags: united-states, trial, witnesses, testimony, oath


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Question Title: How &quot;risky&quot; it is if I lose my passport? Will police investigate how I lost it?

Question Body: <p>I have some stamps on my passport that are not really good, and I don't want any of my family members to see it.</p>
<p>Now, if I lose my passport somehow, and apply for a new passport, would I get a clean passport, without any travel history on it?</p>
<p>Would police investigate if passport is actually lost, or is it carelessness or other reason for its loss?</p>
<p>Any other thing I should worry about if I take this route?</p>


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Answer 1: <h2>Losing your passport is fine, happens all the time</h2>
<p><strong>But that’s not what you are talking about, is it?</strong></p>
<p>You’re intending to deliberately destroy it.</p>
<p>While destroying a passport is not a specific offence under the <a href="https://passportindia.gov.in/AppOnlineProject/online/PassportAct" rel="nofollow noreferrer">Act or the Rules</a>, your proposed course of action is still illegal.</p>
<ol>
<li>The passport doesn’t belong to you. It belongs to India and deliberately destroying other people’s stuff is illegal.</li>
<li>To get a new passport you would necessarily be lying and giving false information on a passport application <em>is</em> an offence.</li>
</ol>
<p>Of course, one wonders why your family are looking at your passport; just don’t show it to them.</p>


Tags: india, indian-penal-code


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Question Title: Is there a minimum speed limit on US hwy 60 in OK? Are bicycles legal on US hwy 60 in OK?

Question Body: <p>I had this experience about 4 years ago (which actually culminated a series of <strong>many</strong> similar experiences) where I was cycling my way back home (Missouri) from a bicycle trip to Cancun MX.   </p>

<p>In Washington county of Oklahoma, just east of Bartlesville on US hwy 60, while observing  (and respecting) all applicable laws, hwy patrol officer stops me because I am "obstructing the traffic". He then asks for my ID.</p>

<ul>
<li>I respectfully asked "did I break any law?"  </li>
<li>Officer: "in Oklahoma bicycles have the same rights as the cars and also same responsabilities. That means you need to have the same speed as the cars"  </li>
</ul>


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<p>Thinking that he was just mocking the law, I refused to hand him the ID. He could not articulate any reasonable suspicion. He then took me to jail for obstructing an investigation (where the cops stole/took some of my most treasued memories from my bag because they found some Tylenol and Ibuprofen


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in the same jar) and the next day I posted bail (about $300 in full, cash) I was notified that I had to come back to Oklahoma for a court appearance. Seing that things get more complicated I decided to just pay them to get them off my back, go home and never return to that state. They would not accept my payment as it had been decided I had to come back. I came back, full of hope that the judge would listen and dismiss the case as it was based on a lie. Instead, he said that if I wanted to plead not guilty, I'd have to come back for a new court date to argue my case.  At this point I found myself back at square one, so I decided I'd pay them and get it over with (with a "no contest plea") as the trips back and forth to OK would have cost me more that the ticket.  </p>


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<p>Later in the hallway I told the judge the cop's reasoning and his reply was: "He may have been wrong on the bicycle law, but you still should have handed him your ID"  </p>

<p>Needless to say, I have not taken my bike on any trips ever since.</p>

<p>Now after 4 years I still can't get it off my mind and it's consuming me thinking that I was fooled into believing that the rule of law was the norm in this country (not the jungle law) and the beautiful constitution we have is not there just to look pretty, but something we can rely on.  </p>


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<p>My questions are:<br>
1 - Is making up a law on the spot an acceptable alternative to the requirement that the cops have to have a reasonable suspicion in order to detain a civilian?<br>
Remember, "<em>Injustice anywhere is a threat to justice everywhere</em>"<br>
2 - Was the cop right? Does anyone know of a "minimum speed limit" on US hwy 60 ? (there were no signs about minimum speed limit or any signs regulating bicycle trafic on that road)<br>
3 - Was the judge right to make me come back to OK (under threat of arrest warrant) just to tell me that he can not dismiss the case (in case I was to plead not guilty) ?<br>
<img src="https://i.stack.imgur.com/vsisv.png" alt="us hwy 60 screenshot">
This is a screenshot of US hwy 60 (Limestone). It is clearly not a "controlled access highway"</p>


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Answer 1: <blockquote>
  <p>Now after 4 years I still can't get it off my mind and it's consuming
  me thinking that I was fooled into believing that the rule of law was
  the norm in this country (not the jungle law) and the beautiful
  constitution we have is not there just to look pretty, but something
  we can rely on.</p>
  
  <p>So, at this point, do I need legal help? Or mental help or some kind
  of miracle pill to help me cope with the situation (?) I know that 6'
  under we can have peace, but can I live a peaceful (bully free) life
  here too?</p>
</blockquote>

<p>We do have rule of law as a powerful norm in this country. But, we also live in a very complex society and the exact content of the law will always be the subject of fierce dispute.</p>


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<p>We do have rule of law as a powerful norm in this country. But, we also live in a very complex society and the exact content of the law will always be the subject of fierce dispute.</p>

<p>The solution is, pretty much, to lower your expectations. The vast majority of the time the law works. Your beliefs about exactly how far you are allowed to disobey an order from a law enforcement officer as a matter of practical reality, were miscalibrated. But, you did get out of jail the next day and the punishment you received was very survivable. In much of the world, this wouldn't be true.</p>

<p>The rule of law doesn't mean that everyone perfectly obeys the law. It means that when the law is seriously broken in a manner that has big consequences that there is usually a way to legally mitigate the harm or to obtain a remedy.</p>


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<p>Pushing the limits of the freedoms the law gives you is rarely wise. But, that is no reason to refuse to live your life. It is one thing to learn from experience. But, sometimes, you can overlearn from experience and need to recognize that your anecdotal experience on a single occasion is not all that there is the law.</p>


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Answer 2: <p>The main issue here seems to be uncertainty as to when you can refuse to obey an order by the police. You need to know how to distinguish between an order and a suggestion or request. The words used can tell you directly that you have been given an order: verbs in the imperative are unambiguously orders. Statements like "It would help us if you would let us look in the trunk" is a suggestion; "I need you to step out of the car" is on the cusp between a suggestion and an order. The case of <a href="https://scholar.google.com/scholar_case?q=387%20So.2d%20913&amp;hl=en&amp;as_sdt=6,47&amp;case=18398649418949817342&amp;scilh=0" rel="noreferrer">Sly v. Alabama</a> (where the court referred to the statement "I need to see your driver's license" as a request) clarifies that a request coupled with a legal obligation to do something is in fact an order.</p>


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<p>You also need to know whether the order is "lawful", which is about the officer and not you. If it would violate the law for the officer to force you to comply, the order is not lawful. But, as the court pointed out in <a href="https://caselaw.findlaw.com/or-court-of-appeals/1541950.html" rel="noreferrer">Oregon v. Ruggles</a>, "Whether a particular police order is 'lawful' is frequently a complex question involving some of the most vexing and intractable issues in constitutional law". It is unreasonable to expect an ordinary citizen to have the depth of knowledge of case law that would be required to know with absolute certainty that an order is unlawful (barring the hypothetical situation where an officer orders you to commit a crime).</p>


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<p>What this means, then, is that if you do not comply with a officer's order, you run a substantial risk of being arrested. On appeal you might prevail in your argument that the order was unlawful, if you are willing to spend the time and money to make a point. That seems not to be the case here, since you didn't pursue justice to the end, instead you pleaded no contest (so the judge could not find in your favor). Pleading no contest extinguishes all hope of getting your money back. It is not clear to me what that deeper philosophical point would be, but I suppose that it would be that officers should be vigorously instructed in some of the finer points of Title 47 as it applies to bicycles and the fact that the "show ID" requirement applies to <em>motor</em> vehicles, not all vehicles. There are many subtleties in law that are not commonly understood by officers, and while it would be highly desirable for officers to have lawerly expertise in the law, that is an unrealistic


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There are many subtleties in law that are not commonly understood by officers, and while it would be highly desirable for officers to have lawerly expertise in the law, that is an unrealistic expectation. For one thing, what you need is a political solution coming from the legislature (a law about legal training for police), and you can't get a court order demanding that.</p>


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Answer 3: <p>So I did some digging and found the website for <a href="https://www.okbike.org/content.aspx?page_id=22&amp;club_id=86708&amp;module_id=157621" rel="nofollow noreferrer">BikeOklahoma</a>, an advocacy group for cyclists, which has several laws and some interpretations of specific situation.  The best interpretation is that as Bicycles are not <strong>motor vehicles</strong>, it has to be explicitly stated that the law applies to bicycles or refers to a <strong>vehicle</strong>, which is defined as any device for transportation does not use rails (i.e. anything not a train... don't ask how a train could accidently get onto the road.).  All vehicles count as <strong>traffic</strong> as defined by law.  The one gray area that was discussed is it seems U.S. 60 is a limited access highway, which could mean bikes are not allowed, but I don't see any specific rule on that... lets set that aside for a moment.  Without that, I will say that yes, the Officer probably misread the law


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which could mean bikes are not allowed, but I don't see any specific rule on that... lets set that aside for a moment.  Without that, I will say that yes, the Officer probably misread the law and thought that a bicycle counted as a motor vehicle (which cannot drive at a low speed) when it in fact does not.</p>


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<p>Now, this is not to say you did not do anything wrong, because you did.  Per Oklahomala law §47-11-103:</p>
<blockquote>
<p>No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control or regulate traffic.</p>
</blockquote>
<p>This means that any lawful request by the officer you refused is an infraction of this law.   So the question becomes was the officer giving you a lawful order?  BikeOklahoma offers §47-6-112:</p>
<blockquote>
<p>License to be Carried and Displayed on Demand of Peace Officer A. Every licensee shall have his or her driver license in his or her immediate possession at all times when operating a motor vehicle and shall display the same upon demand of a peace officer. Any person violating this subsection shall, upon conviction, be guilty of a misdemeanor.</p>
</blockquote>


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</blockquote>
<p>While it is true that bike is not a motor vehicle, there is one other element that comes into play, §47-10-104 A (likely paraphrased but I can't say if it is true rule as written):</p>
<blockquote>
<p>If you are involved in an accident or stopped for a traffic violation, you are required to identify yourself.</p>
</blockquote>


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<blockquote>
<p>If you are involved in an accident or stopped for a traffic violation, you are required to identify yourself.</p>
</blockquote>
<p>Since you do qualify as &quot;Traffic&quot; by the definition of the law, and you were stopped for a traffic violation (even if the cop misread the rule) you are still required to identify yourself to the officer.   As the officer was invested by law to regulate traffic, which includes all legal vehicles, motor or not, and he did make a stop on you (even if the law was incorrectly applied) he is within his legal authority to lawfully request you to identify yourself, and request a form of identification (it need not be a drivers liscense... it could be a passport or a state ID) to validate that you are the person you are claiming to be.  The judge is correct that you did break the law in this respect and since you paid bail, you are required to return to court.</p>


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<p>BikeOklahoma lists several remedies to a cop who misinterprets the laws, none of which involve contesting them at the traffic stop.  Had you offered your ID and taken the ticket, you could return to court to plead your case to the judge, who likely would have likely found you innocent.  Mistakes in the enforcement of the law do happen (And in fact, I had a similar mistake on the states part happen to me...  essentially, I had paid a traffic ticket several months previous and had recieved a reciept to that effect... however, the DMV did not properly check all the boxes and accepted the fact that I had paid, but forward the notice that I had not to the Police... flash-forward several months when I was pulled over for driving on a &quot;suspended license&quot;.  Despite the fact that it was clearly an error, the officer had to &quot;arrest me&quot; (legally yes, but he released me on my own recognizance and I was given a date to go to booking office to properly file these facts)...


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was clearly an error, the officer had to &quot;arrest me&quot; (legally yes, but he released me on my own recognizance and I was given a date to go to booking office to properly file these facts)... and I had to go to court and prepare my case...  in the end, the prosecution found the same issue and dropped it.).  Even though state and thereby the officer were incorrect in my violation of the law, the side of the road, at 2 am on a holiday weekend was not the place to argue with the cop... the court date was.  Had I failed to comply, I would have been arrested for an actual crime, rather than been released to still go about my life until the judicial system did it's own thing.).</p>


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Answer 4: <p>There's not an explicit minimum speed limit, but note that the officer didn't say you were below the limit - he said you obstructed traffic. The limit on that highway is probably about 70 mph, and in the picture it's a single lane with double lines. If any cars need to use the highway while you bike, they will very quickly end up stuck behind you driving at ~20 mph (if that) with no way of legally passing you. So you really would be obstructing traffic.</p>

<p>This isn't specific to bikes - a car driving 20 mph would come under the same rule. Even if the car was driving that slow due to damage, it might still be considered obstruction because the driver didn't choose a slower road. Even if the damage was caused on the road, the officer might tell you to get a tow truck instead. Of course in the realistic situation of getting a flat tire and having to drive 40 on your spare they would probably be more understanding.</p>


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<p>Generally the solution to such situations is that the slow vehicle pulls right into the shoulder (and maybe even stops), letting the faster traffic go around. It is technically an illegal pass (not if you pull over and stop) but rarely punished. Possibly you could have also biked on the shoulder or the grass. In any case, when a cop does tell you to stop doing something, your best option is to comply (as you've found out). Keep in mind that riding bikes on a highway is not a constitutional right.</p>


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<p>The arrest and ensuing court case was clearly not caused solely by biking, but also refusing to show ID as well as the Tylenol. In all, it doesn't sound very fair, but it's one of those grey areas where you technically didn't do anything illegal, but did get clever with the cop/system, and as a result the system exercised its bureaucratic power to give you the run around. Again, I don't see how your constitutional rights are violated here - if you do, feel free to go to the Supreme Court (and I'd be happy for you if you did - as I said, the situation is unfair and I wish it didn't happen). Unfortunately, the founding fathers did not have the wisdom to include freedom from bureaucracy in the bill of rights. The right to speedy and fair trial is unfortunately subject to reinterpretation of what exactly counts as speedy or fair, just as many other parts of the constitution. In any case, this slow creep of judicial activism is not something you can fight by annoying cops, you can only


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of what exactly counts as speedy or fair, just as many other parts of the constitution. In any case, this slow creep of judicial activism is not something you can fight by annoying cops, you can only fight it by voting and possibly practicing in the Supreme Court. I say possibly because I'm skeptical that any legal professional ultimately has much power over the Supreme Justices.</p>


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<p>Alternatively, you can also try to sway public opinion so that the police departments change policy, which has actually been happening for bike related law over the past years, but that is not very related to your objections on constitutional grounds.</p>

<blockquote>
  <p>Is making up a law on the spot an acceptable alternative to the requirement that the cops have to have a reasonable suspicion in order to detain a civilian?</p>
</blockquote>


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<blockquote>
  <p>Is making up a law on the spot an acceptable alternative to the requirement that the cops have to have a reasonable suspicion in order to detain a civilian?</p>
</blockquote>

<p>In theory, no. In practice, this is pretty common in the US. Police often don't know the law or they are wrong about it. Whether it is still a reasonable suspicion if the cop misunderstood the law is for the court to decide - and in cases such as yours where there is injustice but not gross injustice and no significant political issue is served by siding with you, the courts tend to default to siding with the police. Also the courts really don't like people making light of the court's rules, so if you flout them, they can "make an example" by throwing the book at you just to ensure that nobody else gets funny ideas in the future.</p>

<blockquote>
  <p>Remember, "Injustice anywhere is a threat to justice everywhere"</p>
</blockquote>


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<blockquote>
  <p>Remember, "Injustice anywhere is a threat to justice everywhere"</p>
</blockquote>

<p>Injustice is indeed bad, but in your last election, did anyone run on a platform eliminating injustice (legal, not economic or social) and upholding constitutional rights? Did you vote for them? Did they win? Did they do what they promised? If not, then as an ideal it is nice, but not very useful to understanding the legal reality.</p>

<blockquote>
  <p>Was the cop right? Does anyone know of a "minimum speed limit" on US hwy 60 ?</p>
</blockquote>


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<blockquote>
  <p>Was the cop right? Does anyone know of a "minimum speed limit" on US hwy 60 ?</p>
</blockquote>

<p>Right to stop you? I'd say yes, based on the first part of my answer. Right to arrest you? Per se, no, it seems unnecessarily heavy-handed. But then you did provoke him by disobeying. I still don't think needlessly harsh treatment from police is justified just because you annoyed the cop, but realistically, you can't expect to annoy a person with power and have no repercussions. You could claim you were harassed, but you wouldn't have a case because the harassment was very minor and debatable.</p>

<blockquote>
  <p>Was the judge right to make me come back to OK (under threat of arrest warrant) just to tell me that he can not dismiss the case (in case I was to plead not guilty) ?</p>
</blockquote>


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<p>It's certainly <em>mean</em> of him to do that, but then he doesn't owe it to you to be nice. As for legally, he is perfectly within his rights. Missouri isn't that far and expecting you to appear in court for the arrest is not unreasonable. Granted, for such a trivial thing it's a bit unnecessary - which is why if you are cooperative the police <em>will</em> often offer you the opportunity to "just pay the fine and make it go away". But then we come back to the issue of your attitude to the officer.</p>


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<p>I'm not saying that you're not in the right here, but you have to consider that cops are not robots but human beings, as are the courts. Even if it is illegal for him to arrest you, he might arrest you anyway if you give him a reason (such as annoying him). Yes, legally you could then seek restitution and punishment for the cop. But you will have to convince the court of your case, in which you may or may not succeed. Either way, it can cost you money and time. So you have to think of the law not as a law of nature, but as a guideline that will <em>probably</em> be followed <em>more or less</em>, and eventually the courts will ensure some measure of justice (although justice according to them, not you, and based on what they <em>think</em> the situation was, and not reality). But in terms of the here and now, you have to also consider the human factor, which might dominate over the legal in determining what will happen next and whether you'll be happy with it.</p>


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Answer 5: <blockquote>
<p>Later in the hallway I told the judge the cop's reasoning and his reply was: &quot;He may have been wrong on the bicycle law, but you still should have handed him your ID&quot;</p>
</blockquote>


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</blockquote>
<p>That is correct.  The officer was mistaken about the speed limit, but you snatched defeat from the jaws of victory by botching the police encounter.  Probably, because you had not been properly trained on <strong>how to conduct yourself in a police encounter</strong>. You'd think that would be part of official university curriculum along with financial education - bah, probably a bad idea as the authorities would tamper with the curriculum. However, it <em>is</em> available, in a manner analogous to <a href="https://harrypotter.fandom.com/wiki/Dumbledore%27s_Army" rel="nofollow noreferrer">&quot;The D.A.&quot; in <em>Harry Potter</em></a> -- taught ad-hoc by people passionate about civil rights bringing in guests like the ACLU to teach seminars.  As such, to call it an &quot;elective&quot; is an understatement.</p>


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<p>Get up to speed on how to conduct yourself in police encounters. The ACLU has pages and pages of quality analysis -- <a href="https://www.aclu.org/know-your-rights/stopped-by-police" rel="nofollow noreferrer">and all this stuff</a> is &quot;memory checklist items&quot; for any citizen.</p>
<blockquote>
<p>Now after 4 years I still can't get it off my mind and it's consuming me thinking that I was fooled into believing that the rule of law was the norm in this country (not the jungle law) and the beautiful constitution we have is not there just to look pretty, but something we can rely on.</p>
</blockquote>
<p>I understand the hurt feelings and <em>l'esprit d'escalier</em> of wishing you had done something different... but honestly, bicycling <em>across a huge nation</em> is more ambitious and bold than perhaps you know, and it hurts my heart to think a bad experience has turned you into a shrinking violet.</p>


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<p>If I may be brutally honest, there's some vanity in what you say.  You have nurtured your hurt feelings and wrapped yourself in a feeling of injustice, but you have not displayed one ounce of admitting to error, and certainly not owned the mistakes and grown better by them.</p>
<p>You botched the traffic stop badly due to lack of education. The result was your fault.  You should forgive yourself and use the burn as motivation to school up on how to do this.    You're going to have to write the experience off - there's nothing you can do about it now. In law, you only get one bite at the apple.   You could have lawyered up and fought the good fight, but you went another way for reasons. And that's it, the end.</p>
<h2>DO NOT litigate &quot;at the side of the road&quot;</h2>
<blockquote>


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<h2>DO NOT litigate &quot;at the side of the road&quot;</h2>
<blockquote>
<p>1 - Is making up a law on the spot an acceptable alternative to the requirement that the cops have to have a reasonable suspicion in order to detain a civilian? <em>Remember, &quot;Injustice anywhere is a threat to justice everywhere&quot;</em></p>
</blockquote>
<p>Of course not, but again according to ACLU etc. advice, <strong>you do NOT litigate THAT at the side of the road</strong>. You follow the narrow &quot;script&quot; as their consumer lawyers have defined it, and then you <strong>get to the end of the encounter</strong> and move on.</p>
<p>Finish the police encounter without error on your part, and then, if there's a problem like an improperly applied law, sort that out later with the court.  As cops famously say, &quot;tell it to the judge&quot;.   That is correct, cops aren't lawyers.</p>


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<p>Typically the results of an improper police action are &quot;fruit of the poisoned tree&quot; and will be thrown out in court.</p>
<p>Expecting cops to be perfect is unrealistic. Do they &quot;game&quot; the fact that they're not lawyers by accidentally-on-purpose making &quot;errors&quot;? You bet they do, but this is not fixable <em>at the side of the road</em>.</p>
<h2>The Vulcan &quot;hello&quot;</h2>
<blockquote>
<p>2 - Was the cop right? Does anyone know of a &quot;minimum speed limit&quot; on US hwy 60 ? (there were no signs about minimum speed limit or any signs regulating bicycle trafic on that road)</p>
</blockquote>
<p>No, see Oklahoma 47-11-804.  To set a minimum speed limit requires a special procedure, and set of underlying circumstances which would be <em>extremely unlikely</em> on the type of road a bicyclist would consider a suitable rural bicycle route.</p>


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<p>But you missed the entire point of that stop, because you're seeing red about civil rights. Better to have more &quot;street smarts&quot; than that.</p>
<p>The actual purpose of the stop was to &quot;get to know ya&quot;.  They wanted to find out <em>who you are</em>, this random person going through their area of responsibility.  And that stop was a whole bunch of &quot;get to know ya&quot; things at once:</p>
<ul>
<li>To see if you're a fugitive.</li>
<li>If you were thinking of committing any crimes, to rattle you so you think of taking a pass on this county.</li>
<li>To have your ID in case any local crimes happen connected to a mystery bicyclist, and/or to know who you are if they find your body in a ditch with ID missing.</li>
<li>To do a welfare check (are you OK/ in distress?).</li>
<li>To see if you're actually a local they don't know about.</li>
<li>To see if you need help/advice / give you a chance to ask about wher things are.</li>


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<li>To see if you're actually a local they don't know about.</li>
<li>To see if you need help/advice / give you a chance to ask about wher things are.</li>
<li>So you become a &quot;known quantity&quot; they can take off their radar.</li>
</ul>
<p>I'm not endorsing that as a police practice, but it's a reality of how some  police work, especially in places where &quot;everybody knows everybody&quot;.   Also, actually, <em>crime is worse per-capita</em> in rural areas - that's not widely known, <em>but the cops sure know it</em>.</p>
<p>Of course because they're police they do that uniquely cop-ish way, the &quot;Vulcan hello&quot; (not quite, but it's catchy if you've seen Star Trek: Discovery).  Rattling your cage is part of <em>sizing you up</em>.  And you would be better off having the &quot;street smarts&quot; to roll with that, and perform your side of the script correctly <strong>but be a nice person</strong>.</p>
<p>Put them at ease.  Yes, it's an annoying chore.</p>


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<p>Put them at ease.  Yes, it's an annoying chore.</p>
<blockquote>
<p>On a single ocasion&quot; ? As I was saying, this incident &quot;culminated a series of many similar experiences&quot; with &quot;funny&quot; excuses for harassment.</p>
</blockquote>
<p>Well, it's not that often they see a Mars Rover!</p>


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<p>Seriously, you're <strong>unusual</strong>.  It's not every day they see a long haul biker coming through their county. So they're just as interested as all the other people who say &quot;hi&quot; and ask you questions.  <strong>They just do it in their uniquely cop-ish way.</strong>   For best success, recognize that is what is happening, and <strong>deal with it kindly</strong>.  They are regular folk, probably a fair bit <em>nicer</em> than your peers, because &quot;nice&quot; is a social prerequisite in a small town, and they don't like having to do the &quot;cop-ish&quot; thing any more than you do.  So yes, it's <em><strong>galling</strong></em> to have to &quot;break the ice&quot; when they open the conversation with red and blue lights, but they don't enjoy their role in that Kabuki theater any more than you do, and <em>when you successfully break the ice</em>, things will probably go pretty well.  Of course, never forget it's a traffic stop, and do not violate the rules of


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theater any more than you do, and <em>when you successfully break the ice</em>, things will probably go pretty well.  Of course, never forget it's a traffic stop, and do not violate the rules of those.</p>


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<p>I regularly do this (granted, when I'm pulled over I'm not innocent) but as soon as possible I drop that I spend summers here volunteering at a local charity.  I can't tell you how many &quot;nice to meet you/don't worry about it&quot;s I get. Likewise for you, &quot;Yeah, am I on the right road for &lt;perfectly respectable local lodging or dining here&gt;?&quot;  That immediately lets them tick a bunch of the above boxes and puts them at ease - you're regular folk, just odd in a way that's not their problem.</p>


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<p>And as you get better than this, you get good at following the script with panache so it doesn't offend the officer.  For instance, &quot;I need you to _______&quot; is standard form because case law says it's a police order you must obey <em>if it's a valid order</em>, otherwise it's a request. But that allows them to &quot;play it both ways&quot; giving plausible deniability of accused of an illegal order. The proper reply is&quot; Is that a police order?&quot; calling their bluff and making them commit. However this is confrontational; you're calling them a bad cop. Much smoother is to say &quot;do I <strong>really have to?</strong> (glances at gear) It'll take some digging&quot;.  That calls their bluff exactly the same, but <em>gives them</em> a face-saving &quot;out&quot;: aw, don't worry about it.  That's what I mean about skill and street smarts.</p>


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<p>I know it's <em>grating</em>, but it's like Sun Tzu says: always give your enemy a retreat path (unless you're prepared for a fight to the death).</p>
<h2>When you dig the hole deep enough, you need to go to court.</h2>
<blockquote>
<p>3 - Was the judge right to make me come back to OK (under threat of arrest warrant) just to tell me that he can not dismiss the case (in case I was to plead not guilty) ?</p>
</blockquote>
<p>Yes, even presidents have to appear at arraignments.  However given the distance you'd been better off retaining a local lawyer, who would a) probably have been able to make <em>the whole thing</em> go away (and then, no arraignment at all), or b) would have at least been able to appear in court for you, saving you most of the trips. Country lawyers often aren't nearly as expensive as city lawyers.  Have you heard the one about the person who represents oneself has a fool for a client?</p>


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<p>They don't arraign for traffic tickets. This was a serious matter and you don't even realize it.  You were in the soup.  You got into it by botching the police encounter, which opened the door to their searching your belongings, which then &quot;compounded&quot; your trouble with your mishandling of the drugs. <em>Come on, man, you've crossed national boundaries. Each drug always in a pharmacy-supplied container.</em></p>
<p>The drug thing would have resolved itself once they tested, but probably polarized them into pressing charges they might not have otherwise pressed. I'm sure your aggressive but ill-informed conduct did not help matters.</p>
<p>This could've been much worse.  Learn to behave at police encounters.</p>
<blockquote>
<p>I was fooled into believing that the rule of law was the norm in this country (not the jungle law) and the beautiful constitution we have is not there just to look pretty, but something we can rely on.</p>
</blockquote>


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</blockquote>
<p>I was raised to believe that <strong>freedom isn't free</strong>, and it's something you have to fight for.  There are a lot of people fighting the good fight, and you should stand on the shoulders of these giants instead of what you've been doing.   And ask anyone who's been the victim of a predatory lawsuit or civil asset forfeiture, you don't get to volunteer, you get drafted.  That's how it is.   And I think you know it has to be that way.  I'm sorry you got drafted.</p>
<p>By the way, there's not a small chance the cop feels the same way about freedom.  But the job of a police officer is to catch bad guys, and they depend pretty heavily on them not being all that bright.  If you stick up for your rights friendly but firmly, you're likely to get respect.</p>


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Question Body: <p>If a technology that reads minds existed, would it be legal for authorities in the United States to use that technology to extract incriminating information from a defendant's mind against their will?</p>
<p>Although mind reading technology is currently limited, it is improving rapidly. See, for example, the following article in MIT technology review:</p>
<p><a href="https://www.technologyreview.com/2023/03/17/1069897/tech-read-your-mind-probe-your-memories/" rel="nofollow noreferrer">https://www.technologyreview.com/2023/03/17/1069897/tech-read-your-mind-probe-your-memories/</a></p>
<p>and the following wikipedia article:</p>
<p><a href="https://en.wikipedia.org/wiki/Brain-reading" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Brain-reading</a></p>
<hr />


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<p>and the following wikipedia article:</p>
<p><a href="https://en.wikipedia.org/wiki/Brain-reading" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Brain-reading</a></p>
<hr />
<p>I was inspired to ask this question after reading the related question: <a href="https://law.stackexchange.com/questions/91415/why-is-knowledge-inside-ones-head-considered-privileged-information-but-knowled">Why is knowledge inside one&#39;s head considered privileged information but knowledge written on a piece of paper is not?</a></p>


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Answer 1: <p>In the US at least, there is no mention of &quot;mind reading&quot; in the Constitution.  But should such a technology be developed and actually used to read someone's mind and then that information was used against them in court, I can certainly see an appeal on at least 5th Amendment grounds.</p>
<p>It's also possible that should such a technology become viable, that state legislatures and even the US Congress passing prohibitions on using it under certain circumstances.</p>


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Answer 2: <p>I assume that the mind-search is accompanied with a warrant, making it analogous to a search of your home for evidence. Such a search requires probable cause – let's assume we have probable cause. A search of your home for incriminating evidence does not require your cooperation, which then raises the question about the technology for mind-reading. If the technology &quot;just reads&quot; without require cooperation from the victim, then an appeal to the 5th Amendment is less likely to be successful. If the technology requires the victim to somewhat-voluntarily do something, then a 5th amendment objection is more likely to succeed. In <a href="https://supreme.justia.com/cases/federal/us/168/532/" rel="nofollow noreferrer">Bram v. United States</a>, SCOTUS provided a 5th Amendment basis for the doctrine that you cannot beat a confession out of a person,</p>
<blockquote>
<p>commanding that no person &quot;shall be compelled in any criminal case to


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<blockquote>
<p>commanding that no person &quot;shall be compelled in any criminal case to
be a witness against himself.&quot;</p>
</blockquote>
<p>A beating is a clear case of compulsion – force is used to compel you to testify against oneself. Seizing papers which are used as evidence against a person is not the same as forcing the person to <em>testify</em> against themselves. Non-forcefully copying the contents of a mind could be seen as analogous to seizing documents: or not. I don't see that the matter is cut and dried, although if this ever becomes a real issue in the courts, you can be sure that both sides will see this as already having a clear-cut answer.</p>


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Question Title: difference between work and contractual obligations

Question Body: <p>In an employment contract, what is the difference between &quot;the course of work&quot; and &quot;performance of contractual obligations&quot;?</p>
<p>For example, in the Swiss Code of Obligations:</p>
<blockquote>
<p>Art. <a href="https://www.fedlex.admin.ch/eli/cc/27/317_321_377/en#art_332" rel="nofollow noreferrer">332</a> [...] 2. By written agreement, the employer may reserve the right to acquire
inventions and designs produced by the employee in the course of his
work for the employer but not in performance of his contractual
obligations.</p>
</blockquote>
<p>What happens if, for example, the employer has reserved such a right and the employee came up with something relevant while doing work for another employer or client?</p>
<p>Thank you!</p>


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Answer 1: <p>Regarding inventions in performance of contractual obligations, these are inventions that are closely connected to the services described in the employment contract or related contractual documents. The creativity of the employee is why the employer pay them to create these inventions. Examples of service inventions include product designs for business purposes of the employer produced by a designer whose work contract includes &quot;producing graphics design and other visual components&quot; as one of their duties. The key factor in determining whether an invention is a service invention is its close connection to contractual responsibilities in the employment contract, rather than the location or timing of the invention's creation.</p>


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<p>Incidental inventions are inventions that are not created in exercise of a listed contractual duty, but are still closely connected with the employee's employment. In such cases, the employer can reserve the right to acquire the employee's incidental inventions for fair compensation. An invention is likely incidental to employment if it is created in connection with work resources or during work time. However, even if the invention is created during the employee's free time, it may still qualify as an incidental invention if it is closely related to the employee's employment generally, even if the work contract does not explicitly foresee it. For example, a salesperson at a clothing store designs a better coat hanger, whether during work time or not, may be subject to the incidental invention rules. The invention or design is owned by the employee. But if the work contract reserved the right of acquisition, the employee must notify the employer, who then have six months to declare


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rules. The invention or design is owned by the employee. But if the work contract reserved the right of acquisition, the employee must notify the employer, who then have six months to declare its intention to abandon the right or acquire the invention for a fair compensation. Otherwise, the salesperson is free to do whatever they want with their invention, subject to their other obligations. For example, the salesperson cannot use their invention rights in detriment to their current employer (e.g. selling the design to a competitor) due to their duty of loyalty under employment (but once the employment ceases, the duty ceases).</p>


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<hr />
<p>The situation where an employee has similar intellectual work for multiple employers is rare in Switzerland. If a conflict of interest arises because a work can be argued to be the result of contractual obligations of more than one employer, the employee is likely in violation of their duty of loyalty to the employers unless consent was given. In the case of a service invention created pursuant to the contractual responsibilities to one employer only, that employer is the owner of the invention from the beginning. The incidental case does not apply since the first employer only has the right of acquisition from the employee, not the other employer.</p>


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<p>In the case of incidental inventions, I did not find any cases settled by court.  If an incidental invention was produced on the premises of the other employer or used the resources of the other employer, the other employer probably has the priority claim, possible conflict of interests notwithstanding. If the invention is created during the employee's free time and can be reasonably seen as within the general missions within the framework of both employers, it would be difficult to decide and the whole circumstance would need to be taken into account.</p>
<p>If the invention is created during the employee's free time and can be reasonably seen as within the general missions within the framework of both employers, it would be much more difficult to decide and the whole circumstance would need to be taken into account.</p>
<hr />


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<hr />
<p>Just as a sidenote, softwares as such are protected by the copyright law, and do not usually qualify as an invention or design. The employer has the exclusive usage right of softwares created in employement duties. Incidental creations of softwares on the otherhand are not regulated by law, but usually dealt with in employement contracts.</p>
<ol>
<li><a href="https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/inventions-faites-par-le-travailleur/" rel="nofollow noreferrer">https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/inventions-faites-par-le-travailleur/</a></li>
<li><a href="https://www.lausanne.ch/vie-pratique/travail/protection-des-travailleurs/travailleur/contrat-de-travail-regles/droit-sur-inventions-et-designs.html" rel="nofollow noreferrer">https://www.lausanne.ch/vie-pratique/travail/protection-des-travailleurs/travailleur/contrat-de-travail-regles/droit-sur-inventions-et-designs.html</a></li>


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<li><a href="https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/droits-immateriels-questions-reponses-issues-de-la-pratique/" rel="nofollow noreferrer">https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/droits-immateriels-questions-reponses-issues-de-la-pratique/</a></li>
</ol>


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Question Title: What identification must police officers provide to compel someone to follow their orders?


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Question Body: <p>As I understand it, in the USA it is the law that if a police office gives one a lawful order it is a crime to not comply with that order.  What does the police officer need to do to identify them as a police officer for this law to apply?  Is any statement that they are police sufficient, and people are required to believe anyone who says they are police?  Is there a specific form of words they must use, perhap similar to the <a href="https://www.gov.uk/police-powers-of-arrest-your-rights" rel="nofollow noreferrer">UK arrest requirements</a>?  Is it a question of the state of mind of the subject of the order, perhaps similar to the legal standards of preponderance of evidence or beyond reasonable doubt?</p>


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<p>The case that made me think of this was the <a href="https://www.bbc.co.uk/news/world-us-canada-65197857" rel="nofollow noreferrer">case of a child who was shot by a police office who was in the back seat of the car</a>.  In this case it would be impossible for the subject to see the officer, so would have no way of knowing if the speaker was police.  I am also reminded of the <a href="https://www.nytimes.com/2020/07/17/us/politics/federal-agents-portland-arrests.html" rel="nofollow noreferrer">federal police in portland</a> who drove around in unmarked cars wearing camouflage pattern clothing that makes me think of the proud boys more than police officers.  There are also many movies in which the undercover police protagonists will wave a gun and a badge around and expect people to do what they say.  In all these cases it would appear to be legitimate doubt as to the identity of the police officer.  What are the requirements of a member of the public in such a situation?  At which


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what they say.  In all these cases it would appear to be legitimate doubt as to the identity of the police officer.  What are the requirements of a member of the public in such a situation?  At which point does it become a crime to not comply with orders given by someone who is not obviously a police officer but claims to be?</p>


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<p>The United States is the most prominent country with such a law, and the one I am most interested in.  The situation in other countries with similar laws would also be interesting, especially if they contrast with the USA.</p>
<p>This is different from <a href="https://law.stackexchange.com/questions/360/how-can-you-tell-if-you-have-to-follow-a-police-officers-instructions">this question</a> as that is about how do I tell if an order given is a legal order.  This is different from <a href="https://law.stackexchange.com/questions/8130/how-must-undercover-police-officers-identify-themselves">this question</a> as it is about a requirement for undercover officers to identify themselves, not about the threshold for the requirement for the public to follow orders.</p>


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<a href="https://casetext.com/statute/alaska-statutes/title-28-motor-vehicles/chapter-2835-offenses-and-accidents/article-03-miscellaneous-offenses/section-2835180-disobedience-to-signals-of-officer-regulating-traffic-prohibited" rel="nofollow noreferrer">Alaska</a>, <a href="https://codes.findlaw.com/ca/vehicle-code/veh-sect-2800.html" rel="nofollow noreferrer">California</a>, <a href="https://oregon.public.law/statutes/ors_162.247" rel="nofollow noreferrer">Oregon</a> and <a href="https://oregon.public.law/statutes/ors_811.535" rel="nofollow noreferrer">also</a>, and <a href="https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&amp;ttl=75&amp;div=0&amp;chpt=31&amp;sctn=2&amp;subsctn=0" rel="nofollow noreferrer">Pennsylvania</a>. In these states, if a person is uniformed (AK,CA,PA) or wearing a badge (AK,OR), or if the defendant &quot;knows&quot; that the person is an officer, they are penalized if they do not obey the order. In other states, you are simply


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uniformed (AK,CA,PA) or wearing a badge (AK,OR), or if the defendant &quot;knows&quot; that the person is an officer, they are penalized if they do not obey the order. In other states, you are simply penalized if the person giving the order is a police officer. In those states where there is no statutory limit on police power to give commands, it depends on what the courts have ruled. In North Carolina, following <a href="https://casetext.com/case/glenn-robinson-v-acker" rel="nofollow noreferrer">Glenn Robinson v. Acker</a> there is a burden on off-duty officers to establish their authority, and</p>


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<blockquote>
<p>an officer may not assume that others will know he is a police officer
where he simply states as much and flashes &quot;something,&quot; while wearing
civilian clothing, working off-duty, and acting &quot;out of control.&quot;</p>
</blockquote>
<p>But in Alabama, following <a href="https://scholar.google.com/scholar_case?case=18398649418949817342&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr" rel="nofollow noreferrer">Sly v. State</a>, 387 So. 2d 913 referring to the statutes,</p>
<blockquote>
<p>Neither section makes any reference to whether the peace officer was
on or off duty</p>
</blockquote>
<p>so there is no requirement to <em>prove</em> that you are an officer.</p>
<p>The majority of states give this power to officers with traffic control powers. Maryland, Missouri, Nebraska, Oregon,
Pennsylvania, South Dakota, Texas and Utah grant that power with no restriction, and Alaska, California, Florida, Michigan,
Montana, Nevada, New Jersey, North


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Pennsylvania, South Dakota, Texas and Utah grant that power with no restriction, and Alaska, California, Florida, Michigan,
Montana, Nevada, New Jersey, North
Carolina and Vermont limit police command power to specific circumstances (traffic or emergencies). <a href="https://www.yalelawjournal.org/pdf/MooneyComment_6w54gon8.pdf" rel="nofollow noreferrer">This article</a> lists various cases in states that bear on the question – there is no clear and uniform law on the matter in the US. Some courts have limited the power to traffic related matters, others (where it is not part of the statutory law) have extended the power to outside of traffic stops. For example, in Ohio which is in the majority &quot;can issue traffic tickets&quot; set of states, <a href="https://casetext.com/case/state-v-thigpen-13" rel="nofollow noreferrer">State v. Thigpen</a>, 62 N.E.3d 1019 ruled that</p>
<blockquote>
<p>nothing in the plain language of R.C. 2921.331(A) limits it solely to


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<blockquote>
<p>nothing in the plain language of R.C. 2921.331(A) limits it solely to
orders or signals of police officers actively engaging in traffic
direction, control, or regulation.</p>
</blockquote>
<p>It is more likely that if the statute refers to <em>willfully</em> failing to comply, that creates some obligation for the officer to identify themselves.</p>
<p>To simplify this, here are a few ordered generalizations. In 4 states, there is some requirement to be identifiable as a police officer via a uniform or badge, as noted above. In some states, it is a crime to <em>willfully</em> fail to comply – not complying with an officer whom you have reason to believe to be a LEO (e.g. he is wearing his uniform). Otherwise, if the person is in fact an officer, it is a crime to not comply.</p>


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Question Body: <p>I am looking at the definition of a related party at <a href="https://www.irs.gov/instructions/i5472#en_US_202301_publink1000283641" rel="nofollow noreferrer">https://www.irs.gov/instructions/i5472#en_US_202301_publink1000283641</a>
and the definition includes further references to some sections? What are these sections, where are they? I would have appreciated a link to the relevant sections at least. Can someone point me to the right direction?</p>
<ul>
<li>Any direct or indirect 25% foreign shareholder of the reporting   corporation,</li>
<li>Any person who is related (within the meaning of section    267(b) or
707(b)(1)) to the reporting corporation,</li>
<li>Any person who is<br />
related (within the meaning of section 267(b) or 707(b)(1)) to a 25%
foreign shareholder of the reporting corporation,  or</li>
<li>Any other person who is related to the reporting corporation within the meaning of section 482 and the related regulations.</li>
</ul>


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Answer 1: <blockquote>
<p>the definition includes further references to some sections? What are
these sections, where are they? I would have appreciated a link to the
relevant sections at least. Can someone point me to the right
direction?</p>
</blockquote>
<p>&quot;Any direct or indirect 25% foreign shareholder&quot; is defined in the publication linked in the question and that provides further links with addition detail for that definition.</p>
<p>While link only answers are normally not appropriate, this is all that the question seems to be asking for. So the relevant links are to Internal Revenue Code §§ <a href="https://www.law.cornell.edu/uscode/text/26/267" rel="nofollow noreferrer">267</a>, <a href="https://www.law.cornell.edu/uscode/text/26/482" rel="nofollow noreferrer">482</a>, and <a href="https://www.law.cornell.edu/uscode/text/26/707" rel="nofollow noreferrer">707</a> a.k.a. 26 U.S.C. §§ 267, 482, and 707.</p>


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<p>&quot;Internal Revenue Code&quot; is another way of say &quot;Title 26 of the United States Code&quot;, and references in federal tax materials to section numbers without further attribution are to sections of the Internal Revenue Code.</p>
<p>In general, IRS Form 5472 is a form that is only filled out by people acting with help from specialist tax attorneys or CPAs. It is highly technical and not something that a lay person should attempt themselves in anything but the most trivial factual situations.</p>
<p>Section 267(b) states:</p>
<blockquote>
<p>(b)Relationships</p>
<p>The persons referred to in subsection (a) are:</p>
<p>(1)Members of a family, as defined in subsection (c)(4);</p>
<p>(2)An individual and a corporation more than 50 percent in value of
the outstanding stock of which is owned, directly or indirectly, by or
for such individual;</p>
<p>(3)Two corporations which are members of the same controlled group (as
defined in subsection (f));</p>


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for such individual;</p>
<p>(3)Two corporations which are members of the same controlled group (as
defined in subsection (f));</p>
<p>(4)A grantor and a fiduciary of any trust;</p>
<p>(5)A fiduciary of a trust and a fiduciary of another trust, if the
same person is a grantor of both trusts;</p>
<p>(6)A fiduciary of a trust and a beneficiary of such trust;</p>
<p>(7)A fiduciary of a trust and a beneficiary of another trust, if the
same person is a grantor of both trusts;</p>
<p>(8)A fiduciary of a trust and a corporation more than 50 percent in
value of the outstanding stock of which is owned, directly or
indirectly, by or for the trust or by or for a person who is a grantor
of the trust;</p>
<p>(9)A person and an organization to which section 501 (relating to
certain educational and charitable organizations which are exempt from
tax) applies and which is controlled directly or indirectly by such
person or (if such person is an individual) by members of the family


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tax) applies and which is controlled directly or indirectly by such
person or (if such person is an individual) by members of the family
of such individual;</p>
<p>(10)A corporation and a partnership if the same persons own—</p>
<p>(A)more than 50 percent in value of the outstanding stock of the
corporation, and</p>
<p>(B)more than 50 percent of the capital interest, or the profits
interest, in the partnership;</p>
<p>(11)An S corporation and another S corporation if the same persons own
more than 50 percent in value of the outstanding stock of each
corporation;</p>
<p>(12)An S corporation and a C corporation, if the same persons own more
than 50 percent in value of the outstanding stock of each corporation;
or</p>
<p>(13)Except in the case of a sale or exchange in satisfaction of a
pecuniary bequest, an executor of an estate and a beneficiary of such
estate.</p>
</blockquote>
<p>Section 482 states:</p>
<blockquote>
<p>In any case of two or more organizations, trades, or businesses


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estate.</p>
</blockquote>
<p>Section 482 states:</p>
<blockquote>
<p>In any case of two or more organizations, trades, or businesses
(whether or not incorporated, whether or not organized in the United
States, and whether or not affiliated) owned or controlled directly or
indirectly by the same interests, the Secretary may distribute,
apportion, or allocate gross income, deductions, credits, or
allowances between or among such organizations, trades, or businesses,
if he determines that such distribution, apportionment, or allocation
is necessary in order to prevent evasion of taxes or clearly to
reflect the income of any of such organizations, trades, or
businesses. In the case of any transfer (or license) of intangible
property (within the meaning of section 367(d)(4)), the income with
respect to such transfer or license shall be commensurate with the
income attributable to the intangible. For purposes of this section,


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respect to such transfer or license shall be commensurate with the
income attributable to the intangible. For purposes of this section,
the Secretary shall require the valuation of transfers of intangible
property (including intangible property transferred with other
property or services) on an aggregate basis or the valuation of such a
transfer on the basis of the realistic alternatives to such a
transfer, if the Secretary determines that such basis is the most
reliable means of valuation of such transfers.</p>
</blockquote>
<p>The citation to the relevant regulations under Section 482 are to &quot;Treas. Reg. § 1.482-X&quot; for X= 0, 1, 2, 3, 4, 5, 6, and 8 (Treas. Reg. § 1.482-7 was repealed while it was still a temporary regulation rather than made permanent). All of the Section 482 regulations can be found <a href="https://www.irs.gov/pub/irs-apa/482_regs.pdf" rel="nofollow noreferrer">here</a>.</p>
<p>Section 707(b)(1) states:</p>
<blockquote>


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<p>Section 707(b)(1) states:</p>
<blockquote>
<p>(b)Certain sales or exchanges of property with respect to controlled
partnerships</p>
<p>(1)Losses disallowed</p>
<p>No deduction shall be allowed in respect of losses from sales or
exchanges of property (other than an interest in the partnership),
directly or indirectly, between—</p>
<p>(A)a partnership and a person owning, directly or indirectly, more
than 50 percent of the capital interest, or the profits interest, in
such partnership, or</p>
<p>(B)two partnerships in which the same persons own, directly or
indirectly, more than 50 percent of the capital interests or profits
interests.</p>
<p>In the case of a subsequent sale or exchange by a transferee described
in this paragraph, section 267(d) shall be applicable as if the loss
were disallowed under section 267(a)(1). For purposes of section
267(a)(2), partnerships described in subparagraph (B) of this
paragraph shall be treated as persons specified in section 267(b).</p>


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were disallowed under section 267(a)(1). For purposes of section
267(a)(2), partnerships described in subparagraph (B) of this
paragraph shall be treated as persons specified in section 267(b).</p>
</blockquote>


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Question Title: How long can you be detained before the police are legally required to feed you?

Question Body: <p>Just like the title says, I'm wondering how long somebody can be held in custody before the police are legally required to feed them. Is there any legal limit, or is it at the discretion of the officers?</p>

<p>As a bonus/optional question: are there any legal precedents of people starving to death (from not being fed, not by them deciding not to eat) while being held by the police?</p>

<p><strong>Update</strong> Specifically in regards to the USA (although info about more places is always welcome).</p>


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<p><strong>Update</strong> Specifically in regards to the USA (although info about more places is always welcome).</p>


Answer 1: <p>There appears to be no specific number of hours. <a href="http://www.aele.org/law/2007JBJUL/2007-07MLJ301.pdf" rel="noreferrer">This article</a> touches on the matter, presenting a slew of cases where e.g. the prisoner was on a hunger strike (self-imposed starvation is not cruel and unusual punishment).  <a href="http://law.justia.com/cases/federal/district-courts/FSupp/780/1073/1444986/" rel="noreferrer">Gardener v. Beale</a> upheld a 2-meal plan with 18 hours between dinner and brunch to be allowed. This was, however a temporary exception rather than a long term policy which was to provide 3 meals not spaced further apart than 12 hours. There does not seem to be any period deemed to be legally too long, however a prison system may have (probably does) have a policy, which cannot simply be ignored. </p>


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Answer 2: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a></p>
<p>English custody requirements are that prisoners are fed three times per day, plus any reasonable request for drink during meals or between meals.</p>
<blockquote>
<p>The law (<a href="https://www.legislation.gov.uk/ukpga/1984/60/contents" rel="nofollow noreferrer">PACE 1984</a>) requires us to provide at least 2 light and one
main meals per day, as well as responding to reasonable requests. That
said, it is normal practice to provide meals when detainees are
hungry, regardless of how much they have had, within reason. As an
example, some homeless detainees may well be far hungrier that those
more fortunate, so we do our best to look after their needs by
providing more food than some others. In short, we do what is right in
compliance with the code of ethics, as opposed to delivering the
minimum.</p>


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providing more food than some others. In short, we do what is right in
compliance with the code of ethics, as opposed to delivering the
minimum.</p>
<p><sup><sup><a href="https://www.essex.police.uk/foi-ai/essex-police/other-information/previous-foi-requests/custody-meals.-what-detainees-eat-and-drink-in-custody/?__cf_chl_captcha_tk__=UaJrvpIer04XkENl9EJnLIsGxaWZtq2jYFzz750eR.4-1641558233-0-gaNycGzNCL0" rel="nofollow noreferrer">'Custody meals. What detainees eat and drink in custody' - Essex Police</a></sup></sup></p>
</blockquote>
<blockquote>
<p><strong>8.6</strong> At least two light meals and one main meal should be offered in any 24-hour period. See
Note 8B. Drinks should be provided at meal times and upon reasonable request between
meals. Whenever necessary, advice shall be sought from the appropriate healthcare
professional on medical and dietary matters. As far as practicable, meals


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meals. Whenever necessary, advice shall be sought from the appropriate healthcare
professional on medical and dietary matters. As far as practicable, meals
provided shall offer a varied diet and meet any specific dietary needs or religious beliefs the
detainee may have. The detainee may, at the custody officer’s discretion, have meals
supplied by their family or friends at their expense.</p>
<p><sub><Sup>POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE) – CODE C</sub></Sup></p>
</blockquote>
<p>There is no listed <em>maximum</em> amount of time given between detention and feeding (or between meals) but in practice meals seem to be provided approximately every 6-7 hours in order to meet the legal requirement as well as snacks and drinks for those who express a desire to eat immediately.</p>


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Question Body: <p>Tucker Carlson has often shown much bias in his reporting and opinions. It has now been reported that a Russian internal memo shows that they too consider him a good 'asset' because he is the western voice who echoes the Russian sentiments. It is interesting to note that he is the only westerner mentioned in this memo in this context.  now that RT America has <a href="https://en.wikipedia.org/wiki/RT_America" rel="nofollow noreferrer">ceased operations of all live programming</a>, what are the chances of the US government sanctioning Tucker Carlson and can it actually be done?</p>


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<p>Kindly asking the senior users to advise here. With the recent developments of the dominion case against FOX, in which some of the statements from Tucker Carlson are directly related to the question asked, I am wondering how to draw attention to the earlier question. More information is now available, and more thought has been put into the issues recently by many more people than previously. Maybe someone who posted previously would like to revise a post or other people may want to respond too. Is just editing (me asking a question) the way to add the post back to draw attention to it? Or is there a for me unknown approach which SE prefers?</p>


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Answer 1: <p>The first amendment to the US constitution says:</p>
<blockquote>
<p>Congress shall make no law [...] abridging the freedom of speech, or of the press; [...]</p>
</blockquote>


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<p>This constitutional hurdle is a very high obstacle to preventing the media from publicly saying something that is detrimental to the interests of the US government. Giving people the freedom to say &quot;our government is wrong&quot; without being afraid of repercussions is the reason why this amendment exists. And yes, freedom of speech includes the freedom to be wrong. When someone makes false claims in public to sway public opinion, then it's the responsibility of their peers to <a href="https://www.politifact.com/personalities/tucker-carlson/" rel="nofollow noreferrer">point out those falsehoods</a> and let people decide by themselves who to believe. The government can of course also engage in counter-speech, for example by holding a press conference where they address claims made about them and present their side of the debate. But it is not the job of the government to use force to suppress falsehoods, because the government can not be expected to be impartial in this


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made about them and present their side of the debate. But it is not the job of the government to use force to suppress falsehoods, because the government can not be expected to be impartial in this matter.</p>


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<p>The government not suppressing public discourse is one thing which separates libertarian states like the United States from <a href="https://politics.stackexchange.com/questions/71414/which-statements-about-the-war-in-ukraine-are-now-criminal-in-russia">authoritarian states where uncomfortable speech is suppressed</a>.</p>
<p>There are <a href="https://en.wikipedia.org/wiki/United_States_free_speech_exceptions" rel="nofollow noreferrer">a couple exceptions</a>. But as long as Carlson doesn't make any statements which are defamatory, obscene, fraudulent, violate copyrights or explicitly incite physical violence, the government's hands are tied.</p>


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Answer 2: <blockquote>
<p>what are the chances of the US government sanctioning Tucker Carlson
and can it actually be done?</p>
</blockquote>
<p>Nil.</p>
<p>The memo does not allege collusion with Russia or any other foreign power, or working as its agent, either of which requires registration. Independent expression of views sympathetic to another country prominent enough to gain the other country's attention in connection with a media platform is not actionable or sanctionable under U.S. law under the 1st Amendment. It might, however, prompt an investigation by legal means to determine if he was, in fact, an unregistered Russian agent.</p>
<p>The analysis would change slightly if the U.S. declared war on Russia, but only slightly so and still probably wouldn't justify action without a more targeted basis for it.</p>


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Answer 3: <p>I suspect that the legal threshold for such sanctions is very high. This is not surprising, given that the freedom of expression is an acknowledged value in the US: one can express whatever views they want, as long as it doesn't pose a direct threat to the national security. Since Tucker Carlson is not a government official, his personal opinions are unlikely to affect anything but how people vote (and even this is doubtful, given the degree of voter polarization in the US).</p>


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<p>It is also worth looking at the historical examples: all kinds of Communist and Soviet sympathizers were common in the Cold War era, and certainly were a tool of political influence used by Moscow. Yet very few of them were legally sanctioned, unless they engaged in open espionage. True, some lost jobs through <a href="https://en.wikipedia.org/wiki/McCarthyism" rel="noreferrer">McCarthyism</a> - but these are not legal sanctions. Moreover, there are many high-profile examples who hardly ever suffered from their communist sympathies, such as Bernie Sanders (who studied Marx and campaigned for a communist party as a young man, as he acknowledges) or Angela Davis (twice a vice-presidential candidate for the American Communist party, who openly entertained contacts with high-profile Soviet and East German officials).</p>
<p>From <a href="https://en.wikipedia.org/wiki/Angela_Davis#Soviet_Union" rel="noreferrer">Wikipedia article on Angela Davis</a>:</p>
<blockquote>


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<p>From <a href="https://en.wikipedia.org/wiki/Angela_Davis#Soviet_Union" rel="noreferrer">Wikipedia article on Angela Davis</a>:</p>
<blockquote>
<p>In 1971, the CIA estimated that five percent of Soviet propaganda efforts were directed towards the Angela Davis campaign. In August 1972, Davis visited the USSR at the invitation of the Central Committee, and received an honorary doctorate from Moscow State University.</p>
</blockquote>
<blockquote>
<p>On May 1, 1979, she was awarded the Lenin Peace Prize from the Soviet Union. She visited Moscow later that month to accept the prize, where she praised &quot;the glorious name&quot; of Lenin and the &quot;great October Revolution&quot;.</p>
</blockquote>
<p>Finally, it is worth bringing up the term <a href="https://en.wikipedia.org/wiki/Useful_idiot" rel="noreferrer"><em>useful idiot</em></a> (usually attributed to Lenin):</p>
<blockquote>


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<p>Finally, it is worth bringing up the term <a href="https://en.wikipedia.org/wiki/Useful_idiot" rel="noreferrer"><em>useful idiot</em></a> (usually attributed to Lenin):</p>
<blockquote>
<p>In political jargon, a useful idiot is a derogatory term for a person perceived as propagandizing for a cause without fully comprehending the cause's goals, and who is cynically used by the cause's leaders.</p>
</blockquote>
<p>I do not intend to insult anybody, but merely pointing out that political positions in opposition to the government, can be often used by the enemies of the country.</p>


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Answer 4: <p>Others have already pointed out the First Amendment issue, but I would also like to point out a potential Fifth Amendment issue (with the disclaimer that I'm not a lawyer):</p>
<blockquote>
<p>No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, <strong>nor be deprived of life, liberty, or property, without due process of law</strong>; nor shall private property be taken for public use, without just compensation.</p>
</blockquote>


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</blockquote>
<p>You're not too specific about what you mean by &quot;sanctions,&quot; but I assume that you mean sanctions similar to ones that have been imposed on Russian Oligarchs. In any case, it's hard to imagine any specific sanction that would not result in Tucker Carlson being deprived of &quot;life, liberty, or property&quot;. That being said, since he's a U.S. citizen, the only way they could do this is by him being convicted of a crime.</p>
<p>Reporting in a biased way and expressing opinions that the government doesn't like are not crimes. Therefore, they cannot deprive him of life, liberty, or property.</p>


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Question Body: <p>The title question no doubt has an obvious answer (you could be evicted) but please keep reading, it's a complex situation and I have a few questions that I couldn't sum up easily into one title.</p>
<p>I'm trying to move my partner into my flat in London. The situation is as follows:</p>
<p>I have lived in the flat I rent for a bit over 2 years. This started as a 1 year Assured Shorthold Tenancy (AST) and became periodic after.</p>
<p>At the two year mark (August), the landlord asked me to renew as a fixed-term again with a rent increase of about 9%. I agreed. I had moved in during covid when rents were very low and the new rate was reasonable.</p>
<p>My partner is a joint tenant in a rented flat. Her tenancy ends at the start of December.</p>


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<p>My partner is a joint tenant in a rented flat. Her tenancy ends at the start of December.</p>
<p>When my landlord reached out to me about resigning with the rent increase in August, I mentioned that we would like to move in together. I made it clear that this would not happen until Nov/Dec when her tenancy ended. They agreed and asked for a £30 referencing fee, which I paid.</p>
<p>They immediately attempted referencing via their estate agents. This failed as what they tried to do was sign her as a co-tenant, which would have meant she was a tenant on 2 AST rentals at the same time. Apparently that's an issue (though I couldn't get a straight answer on this).</p>
<p>Her landlords also refused to give a reference because she hadn't given notice, and refused to accept notice as she had more than two months left on her tenancy.</p>


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<p>Her landlords also refused to give a reference because she hadn't given notice, and refused to accept notice as she had more than two months left on her tenancy.</p>
<p>I suggested they instead just make an amendment to give me permission to sub-let to her, as the intention was always that I would continue to pay the rent and be responsible for the flat. I was just told that the referencing had failed and we could try again once my partner was in the final two months of her tenancy and had given notice. I didn't receive a refund for the referencing fee, and didn't chase for one as I thought it would just cover the costs when we resumed the process.</p>
<p>We're now in the final months of my partners tenancy and she's put her notice in. A new tenant has been found to replace her, so it's too late to back out.</p>


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<p>We're now in the final months of my partners tenancy and she's put her notice in. A new tenant has been found to replace her, so it's too late to back out.</p>
<p>I reached out to the landlord to let them know this and that we could therefore pick up the referencing again and amend the contract. Their response summarised is as follows:</p>
<p>The referencing is now &quot;£50 plus VAT&quot; i.e. £60. I've pointed out the original £30 and received no acknowledgement. I've confirmed they do indeed mean &quot;plus VAT&quot;.</p>
<p>Due to an unexpected increase in the fee for the building shared boiler, they want to increase the rent by up to an additional 6% a month. I stress, they have not said this is because of an additional tenant and that I had already flagged a second tenant well in advance of agreeing the first rent increase. I've seen no proof of this increased cost to them.</p>
<p>Needless to say I'm unhappy as I would not have resigned knowing all this.</p>


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<p>Needless to say I'm unhappy as I would not have resigned knowing all this.</p>
<p>We're intending to move out next August anyway and at this point I'm past caring about maintaining a good relationship with the landlord. Looking for advice on the following:</p>
<p>What could happen if we simply moved in together? I'm aware the landlord could pursue eviction, but how long would this take. If we're intending to move out anyway, I wouldn't be bothered if it meant leaving earlier. Could it affect our deposit? Could they sue? Would it have longer term implications to referencing for us when say, buying a home?</p>
<p>Am I right to contest the referencing cost? My understanding is that they aren't allowed to charge for referencing, only a tenancy amendment which should not be withheld unreasonably. My contract does not state an amendment cost.</p>


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<p>Is there a means to complain about a landlord's behaviour to a third party? If so, what should the focus of my complaint be? Are there any grounds here?</p>
<p>Sorry for the long post and thanks in advance for any help!</p>


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Answer 1: <p>You won't get a reference from your landlord if you don't maintain a good relationship with them. I say just move her in and if you keep  paying your rent they shouldn't care or maybe even know about it. If you're still living there she's basically your guest and they likely couldn't do anything and if she reimburses you for some of the rent that's none of LLs business. If they want to evict you on section 8 for breach of tenancy by unlawful subletting they would take a number of months and also they world accrue legal costs so might not even bother. You could then still argue that you aren't subletting as she is just your short term or indefinite guest and the eviction claim might even be thrown out by the court. In any case I think it would take anywhere from 3-8 months to evict you but this is all quite fuzzy in actuality.</p>


Tags: england-and-wales, rental-property, tenancy-rules, assured-shorthold-tenancy


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Question Title: How to sign a prenup when marrying a foreign lady?

Question Body: <p>My girlfriend lives in China. She is a Chinese citizen. I'm an American. We want to get married </p>

<p>My concern: I have kids so I want to protect them. So naturally i want to sign a prenup. If she was here in America, that would be a piece of cake. But how do I sign it there. Or is there any way to bring her here and then get married? </p>


Answer 1: <p><strong>Applicable Law</strong></p>

<p>A marital agreement can be entered into both before marriage (a prenup) and after marriage (a postnup). And, it will have the same legal effect in either case once entered into by the parties.</p>


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<p>In practice, marital agreements are usually proposed by a more affluent spouse and are reviewed by a less affluent spouse who will be giving up many of the legal economic rights usually associated with being married because the alternative is to not get married at all and the less affluent spouse thinks that marriage is still worth it even with fewer economic rights.</p>

<p>The governing principle of marital agreements is that they must be entered into with the highest level of voluntariness, good faith, and full disclosure.</p>

<p>Typically, a prenup with (1) limit the rights of the less affluent spouse in a property division upon divorce, (2) limit the less affluent spouse's inheritance rights, (3) limit the less affluent spouse's right to maintenance (a.k.a. alimony) upon divorce or legal separation, and (4) limit the less affluent spouse's rights to attorneys' fees in the event of a divorce. </p>


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<p>Often, these limitations are phased in superficially more equal terms, but the agreement only has a practical affect limiting a spouse's legal economic rights in marriage on the less affluent spouse, when it is recognized that one spouse is starting out affluent and the other spouse is starting out less affluent.</p>

<p>The question states that: "I have kids so I want to protect them." So, determining precisely what you want to protect your kids from and how, in a manner that your spouse, courts evaluating the agreement in the future, and immigration officials, would consider to be legitimate, would be critical. </p>

<p>You should know what impact a death or divorce would have during a short lived marriage for someone in your shoes because you start trying to change the rules, because you might be surprised to learn that the status quo is less unfair than you believe it to be. </p>


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<p>For example, in many states, property owned by one party before the marriage was commenced is not subject to division as marital property upon divorce and often the right to alimony following a short marriage that does not produce children is quite modest.</p>


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<p>Also, if you are extremely worried about the possibility that your new marriage could fail and that this would force you to make economic sacrifices that you do not think would be acceptable under the status quo in the absence of a prenup, you might want to think twice about whether getting marriage in the way that you are planning to get marriage is really a good idea. Excessive worries about a break up that is damaging to you may be your subconscious's way of telling you that you have grave concerns about this marriage that could be deal breaking, as well as your outward positive hopes and dreams that may be unrealistic. You had a relationship or marriage that failed once. You may be ready for a more successful relationship now, but you need to be comfortable that the circumstances that caused your previous marriage to fail are unlikely to recur.</p>


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<p>No prenup will ever make a divorce easy or painless, although it can bring some predictability to the process, if a prenup is well drafted and reasonable.</p>

<p>Typically, <a href="http://www.fiduciarylawblog.com/2014/06/colorados-new-uniform-premarital-and-marital-agreements-act.html" rel="noreferrer">to prepare a valid marital agreement</a>:</p>


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<ul>
<li><p>it must be in writing;</p></li>
<li><p>it will contain no invalid terms (e.g., in most cases, terms relating to child support or parental responsibilities, or terms that make marital fault relevant to the economic rights of the parties);</p></li>
<li><p>both parties will have reviewed a complete disclosure of the other party's financial circumstances;</p></li>
<li><p>each party will have had an opportunity to consult with a lawyer familiar this these agreements (at the other party's expense if the person agreeing to it can not afford a lawyer of their own);</p></li>
<li><p>each party will review the terms of the agreement in a language that they can understand, and </p></li>


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<li><p>each party will review the terms of the agreement in a language that they can understand, and </p></li>
<li><p>the circumstances under which the agreement is signed will not be under duress broadly defined (for example, to include presentation of the agreement on the eve of the wedding day without adequate time to consider its terms without undue negative consequences if the spouse does not agree). </p></li>
</ul>


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<p>Typically, the lawyer for each party would sign the agreement to confirm that all formal requirements and counsel regarding the agreement has taken place.</p>

<p>A marital agreement that doesn't meet the applicable legal standards (which vary state to state). I have cited the law in Colorado which requires parties to follow what would only be considered "best practices" in many other states, although there would be plenty of states where these legal standards would apply.</p>

<p>A marital agreement is still not valid if it is unconscionable to a spouse at the time it is to be enforced, for example, leaving one spouse unable to meet her basic needs and the other spouse wealthy after a long marriage.</p>


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<p>There is no requirement that a prenup be signed in any particular country or place, so long as the person signing it understands that their signature is intended to be binding. There is no requirement that a prenup be signed by both spouses at the same time, as long as both spouses sign it before it is to become effective.</p>

<p>Realistically, as of 2017 in an average cost of living U.S. area, you are probably looking a legal expenses and related expenses involved in making a prenup happen given the need for Chinese speaking legal professionals and logistical issues, at an expense of $7,500 to $15,000 or more to get a prenup done under this circumstances. You would need to decide if this expense was worth the benefit to you.</p>

<p><strong>Options</strong></p>


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<p><strong>Options</strong></p>

<p>It could be signed by your spouse while your spouse to be is in China, if the proper formalities are observed. In terms of the enforceability of the agreement, and the likelihood that it will be executed, this is probably the best option. But, as a practical matter this may be difficult to accomplish this because lawyers knowledgeable about U.S. law who can communicate in the spouse's topolect of Chinese may be hard to find, and Chinese attitudes towards prenups may be different from those of people in the U.S. </p>


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<p>Negotiating a prenup in the face of a quite new relationship that often doesn't have a lot of depth at the start and is based upon mutual hope and a belief that the couple has shared interests as much as an actual long term relationship prior to getting engaged (which is common in marriages of the kind described in this question) can present a difficult challenge for the couple as they develop a marriage relationship very early on in their process when they don't have a lot of communication and relationship foundation to build upon.</p>


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<p>Of course, there are exceptions to every rule. Suppose that you've known your girlfriend continuously since she was 14 years old and she is now 24 (you are 25) and both of you are fluently bilingual, because you grew up next to an embassy and she was the daughter of an embassy official and you went to prom together, and then the two of you went to college and graduate school together living together for five of those years. Suppose that she is from a wealthy family and needs the pre-nup to protect her family's wealth, and you are not very affluent despite being the U.S. spouse. Suppose that she's was a paralegal in a family law firm that draws up prenups when she was in college before moving back to China when she finished her studies, while you are a divorce lawyer, and that the two of you have talked about marital agreements for years. This might not be much of a relationship issue and might not pose the kinds of immigration questions raised below. But, if you fell into one of


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of you have talked about marital agreements for years. This might not be much of a relationship issue and might not pose the kinds of immigration questions raised below. But, if you fell into one of the exceptions to the general rule, you wouldn't be asking this question in the first place in all likelihood.</p>


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<p>It is possible <a href="https://www.uscis.gov/family/family-us-citizens/fiancee-visa/fiancee-visas" rel="noreferrer">to obtain a financee visa</a> which allows a foreign spouse to immigrate to the United States with an intent to marry upon arrival. But, in that situation there would be real doubt about whether a marital agreement signed upon arrival would be truly voluntary because failing to agree to the prenup and not getting marriage as a result would result in the financee's immediate deportation and terminate a wedding that the wife had already moved half way across the world and given up everything to participate in.</p>

<p>It is possible to execute a post-nup, but in that case, if it was truly voluntary, the wife probably wouldn't sign it because it would mean that she would be giving up rights that she had already acquired as a result of the marriage for nothing in return, and if it was involuntary, then it wouldn't be valid. </p>


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<p>(There are circumstances when a post-nup can make sense for a spouse to voluntarily enter into after marriage, for example, to make rich relatives comfortable including a person in their Will or making a large gift to one of the spouses that is intended to stay in the family but will benefit the spouse during the marriage and the couple's children, but the facts in the question don't naturally suggest any of those circumstances.)</p>

<p><strong>Immigration Concerns</strong></p>

<p>Unlike an ordinary marriage, which is presumed to be valid and in good faith, marriages which afford a spouse the right to immigrate to the U.S. and in due course, to become a U.S. citizen if certain other requirements are met, are carefully scrutinized for signs that it is a "sham marriage" and immigration judges can be quite skeptical in determining whether or not a marriage is a sham. </p>


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<p>Couples go to great lengths to prove otherwise, and the burden is effectively placed upon them to show that they are not engaged in marriage fraud and instead actually married for love.</p>

<p>If a marriage with an immigrant is found to be a sham, the immigrant's visa will be revoked, the immigrant's citizenship application will be denied, and the immigrant may become deportable. There may also be sanctions for the citizen or permanent resident spouse who sponsored the immigrant.</p>

<p>One factor among many that can be considered <a href="http://www.humanrightsattorney.com/the-prenuptial-agreements-effect-on-a-marriage-green-card-case/" rel="noreferrer">when determining if a marriage is a sham marriage or not</a> is the existence of a prenup or postnup, and even more importantly, its terms. </p>


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<p>The more unfavorable the terms of the prenup or postnup are to the immigrant spouse, the more likely it is that an immigration official will conclude that a marriage is a sham for immigration purposes. There isn't a hard and fast rule, but it is one factor that is considered among others in reaching that determination. The key factors in evaluating a prenup for immigration purposes are the terms of the agreement. The more the immigrant spouse's legal rights in the marriage are limited, the more likely immigration officials are to view the marriage as a sham and the couple as engaged in marriage fraud.</p>

<p>On the other hand, if all a prenup does is to insure that a new spouse and children from a former relationship have equal inheritance rights and no rights upon divorce are modified at all, immigration officials may view the prenup as relatively innocuous. </p>

<p><strong>Conclusion</strong></p>


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<p><strong>Conclusion</strong></p>

<p>There are a lot of good reasons not to get a prenup in the circumstances you identify if most of my hunches about the usual circumstances involved when someone asks a question of the kind that you have are true.</p>

<p>Before taking this step, you would be wise to consult with a lawyer to see what the likely economic and legal consequences of a divorce or death in the absence of a prenup would likely be in your case, as I suspect that your fears may be exaggerated or may involve issues that a prenup can't address. It could be that once you are well informed it is still clear to you that a prenup is a good decision. </p>

<p>But, given multiple indications that this may not be a good choice for you, I would strongly suggest thinking twice about this decision after conferring with a lawyer about your individualized circumstances before going forward with this plan.</p>


Tags: united-states, immigration, marriage, family-law


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Question Title: Would it be legal to hold this sign up outside the White House or another government building?

Question Body: <p>Would it be legal for me to hold up this sign in front of the White House, the Capitol, or the SCOTUS building?</p>
<blockquote>
<p>MENE MENE TEKEL UPHARSIN</p>
</blockquote>


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Answer 1: <h2>Yes</h2>
<p>The case you want to know about is <a href="https://en.wikipedia.org/wiki/Cohen_v._California" rel="nofollow noreferrer">Cohen v. California</a>: A young man was arrested for wearing a jacket with the words &quot;Fuck the Draft&quot; and SCOTUS decided, that that was First Amendment-protected speech and the arrest illegal.</p>


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<p>The phrase <strong>מנא מנא תקל ופרסין</strong> is in Akkadian or Aramaic language but Hebrew script (as opposed to the Akkadian Cuneiform) and can be transcribed as Mene Mene Tekel Upharsin. It is also known in German as &quot;Menetekel&quot; or in English as the &quot;Writing on the wall&quot;. It stems from the biblical episode of <a href="https://en.wikipedia.org/wiki/Belshazzar%27s_feast" rel="nofollow noreferrer">Belshazzar's feast</a>. Literally, the text would be read as &quot;counted, counted, weighed, distributed&quot;. Its meaning elaborated in <em>Daniel 5</em> is generally understood as &quot;Your days are numbered; Your days are numbered; You have been measured and found wanting; Your kingdom will fall and be divided&quot;. While stemming from religious texts, in the depicted situation it is more likely meant as political speech, and in that fashion indistinguishable from a <a href="https://law.stackexchange.com/q/78237/10334">flag</a>.</p>


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<p>It also does not call for imminent lawless action - the so-called Brandenburg Test after <a href="https://en.wikipedia.org/wiki/Brandenburg_v._Ohio" rel="nofollow noreferrer">Brandenburg v Ohio</a> - and thus remains in the protected speech area. Remember, that <a href="https://law.stackexchange.com/q/90142/10334">even preaching genocide can be First amendment protected</a>, as long as that line of imminent lawless action is not overstepped.</p>
<p>As this phrase does neither, it is protected speech.</p>


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Question Title: Call from detective

Question Body: <p>say hypothetically someone committed a the crime of stealing a public sign and being publicly intoxicated under the age of 21..</p>
<p>The next day a detective calls asking to talk in person and says they &quot;are not going to get arrested&quot;</p>
<p>What should the person do?</p>
<p>Show up alone?</p>
<p>Show up with a lawyer?</p>
<p>Show up but don't say anything and then ask to speak with a lawyer?</p>
<p>Don't show up at all?</p>
<p>This is all hypothetically in the united states in Pennsylvania</p>


Answer 1: <h3>You don't have to talk to the police.</h3>
<p>All taking a lawyer with you will do is have someone to remind you not to talk to the police, and short your bank account a couple hundred dollars.</p>
<p>Tell the detective you're busy.  The detective saying you &quot;are not going to be arrested&quot; means absolutely nothing.  When they show up to talk to you, don't go to the door unless they have a warrant.</p>


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Question Title: Is an edited version of a trademark covered through the original trademark in the UK?

Question Body: <p>Is a shortened or edited version of a trademark covered by the initial trademark.</p>
<p>Take the following for example: <a href="https://i.stack.imgur.com/aiGHA.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/aiGHA.png" alt="enter image description here" /></a></p>
<p>If someone were to use this name <em><strong>or</strong></em> logo while removing the 'studio', would this be in violation of the trademark?</p>
<p>I ask this in reference to a scenario in the UK with a UK trademark, although I'm aware that there may be an international standard for this.</p>


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Answer 1: <p>Trademarks protect against consumer confusion.  Ask yourself if a consumer seeing that image with the &quot;studio&quot; portion removed might think that the altered image represents the same company as the original image.  Of course, the answer will be &quot;yes.&quot;</p>
<p>But in the end it also depends on how the trademark is used.  You've used the original image in the question; have you violated the trademark?  No.  Do you violate Tesco's trademark when you say &quot;I went shopping at Tesco&quot;?  No.  Do you violate their trademark when you sell food using the name &quot;Tesco&quot;?  Yes.</p>
<p>A distinctive graphic design such as this will also be protected by copyright, so you will also have to consider whether your intended use infringes copyright.</p>


Tags: copyright, united-kingdom, intellectual-property, trademark, trade-name


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Question Title: Is giving back a voucher instead of a refund legal?

Question Body: <p>In the UK there is a sport accessories and outfits retailer called SportsDirect.</p>
<p>They have this strange practice that I have never seen in any other UK retailer before, which is basically if you bought something from them but later you wanted to return it, they don't give you your money back, but instead they give you a voucher with the value that you can spend in the store.</p>
<p>I am wondering if this is legal or not, doesn't this violate consumer rights?</p>


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Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>The government grants <a href="https://www.businesscompanion.info/node/469/mid/1488" rel="nofollow noreferrer">limited rights of return</a> (thanks Jen), for which you are <strong>entitled</strong> to a cash or cash-like refund (e.g. reversal of a credit card charge as described below).</p>
<p>The vendor has the option to go <em>above and beyond</em> that statutory minimum as a courtesy to the customer.  In that non-compulsory zone, <a href="https://www.businesscompanion.info/node/469/mid/1488" rel="nofollow noreferrer">they have the liberty</a> to offer store scrip rather than a cash refund.</p>


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<p>Of course, any business can <em>try to cheat you</em>, and then you have to stick up for your rights by insisting or reporting to relevant authorities.</p>
<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>


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<p>If you buy <em>with a credit card</em>, <a href="https://blog.unibulmerchantservices.com/credit-card-rules-for-returns-refunds-and-exchanges-you-need-to-know/" rel="nofollow noreferrer">the rules and contractual obligations of the credit card companies</a> oblige the merchant to accept returns by doing a refund to the card. It's important to understand how this happens: the merchant isn't just picking an arbitrary amount of money and doing a new &quot;sale in reverse&quot;... they are identifying a specific past transaction that already happened, and modifying or reversing it.  That is a system safeguard so they don't credit the wrong person or be tricked into a reversal on a transaction that never happened. That's why they want your receipt.</p>


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<p>On a cash transaction, it is sellers prerogative whether to issue cash or store credit.  Issuing store scrip is a reasonable option to deter theft and fraud.  For instance someone who wanted an item could get it for free, by buying the item, taking it home, returning the next day without the item, grab <em>another</em> identical item off the shelf and sneak over to the CS line and &quot;return&quot; it with yesterday's receipt.  <strong>With cash sales, that would be completely untrackable, and the thief is gone</strong>.  With credit card, they have your identity; with scrip they can &quot;flag&quot; the scrip in their system to either prevent its use and/or have a security officer detain you if you try to use it.</p>


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<p>For instance American home stores will cheerfully take re-saleable condition items back even without a receipt, but will issue a store voucher for the value rather than cash. That policy would be a disaster if they refunded cash. As it is, I find it rather convenient!</p>
<p>So if you want the convenience of cash refunds, you can just use credit cards - gaining the feature at the expense of anonymity.</p>


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Question Title: Why is knowledge inside one&#39;s head considered privileged information but knowledge written on a piece of paper is not?

Question Body: <p>At least in the US, one can refuse to reveal information contained inside one's head by pleading the Fifth Amendment. However, the same protections don't apply to papers (or computer files) with information you might not want to share with the government. But why does this distinction exist at all? Why does the law make a distinction as to the medium in which certain information is contained?</p>


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Answer 1: <p>The Fifth Amendment protection relates to a repugnant act, that of forcing a person to testify against themselves, and it is not about ways of looking at &quot;information&quot;. The relevant (legally-ancient) distinction is between a general inquiry and an accusation. The courts have always had the power to make a general inquiry, but there have been limits on the ability of the courts to make accusations. It is a fundamental requirement of law that there must be an accuser, if there is to be a criminal proceeding. But is it also considered to be morally repugnant to force a person to accuse themselves.</p>
<p>The difference lies not in the informational content in question, it is in what act – compelled self-accusation – is excluded from the legal system.</p>


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Answer 2: <p>The relevant language of the Fifth Amendment is:</p>
<blockquote>
<p>No person ... shall be compelled in any criminal case to be a witness against himself.</p>
</blockquote>
<p>This Fifth Amendment privilege &quot;bars the State only from compelling 'communications' or 'testimony'&quot; (<em>South Dakota v. Neville</em>, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep459/usrep459553/usrep459553.pdf" rel="noreferrer">459 U.S. 553</a>, 559 (1983), citing <em>Schmerber v. California</em>, 384 U.S. 757 (1966)). The Court has also acknowledged the trouble you're noting: &quot;the distinction between real or physical evidence, on the one hand, and communications or testimony, on the other, is not readily drawn in many cases&quot; (<em>Neville</em>, p. 561).</p>


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<p>The distinction though is based in the principle that &quot;no man is bound to accuse himself.&quot; It is a reaction against the practice of forcing people to affirm their own culpability in <a href="https://en.wikipedia.org/wiki/Star_Chamber" rel="noreferrer">Star Chamber</a> proceedings and ecclesiastical courts (<em>Constitution Annotated</em>, <a href="https://constitution.congress.gov/browse/essay/amdt5-4-1/ALDE_00000864/" rel="noreferrer">Amdt5.4.1</a>) It is an <em>exception</em> to the general common law principle that all relevant evidence can be compelled for production to the court, in furtherance of its truth-seeking function.<sup>1</sup></p>
<p>For a comparative look, Canada makes the same distinction:</p>
<blockquote>


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<p>For a comparative look, Canada makes the same distinction:</p>
<blockquote>
<p>Both the common law and the <em>Charter</em> draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communications. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former.</p>
<p><em>Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)</em>, <a href="https://canlii.ca/t/1frk2#par28" rel="noreferrer">[1995] 2 S.C.R. 97 at para. 28</a>.</p>
</blockquote>
<hr />


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</blockquote>
<hr />
<p><sup>1. This is a general common-law principle, but for language from the Canadian context: &quot;The truth-seeking function of the trial creates a starting premise that all relevant evidence is admissible.&quot; See <em>R. v. Grant</em>, <a href="https://canlii.ca/t/ggjsm#par18" rel="noreferrer">2015 SCC 9 at para. 18</a>.</sup></p>


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Answer 3: <p>The privilege against self-incrimination in the US 5th amendment isn't a right to not testify if you don't feel like it. It doesn't say &quot;a person may not be compelled to testify&quot; it says &quot;nor shall [a person] be compelled in any criminal case to be a witness against himself&quot;. It's not that the information in your head is privileged in the way that communication with a lawyer is. Rather the 5th amendment confers the right to not be <em>forced</em> to testify against yourself.</p>
<p>The right isn't intended to protect against revealing information you don't want to reveal, but rather to protect against the government putting you in a position where you are legally compelled to give criminal evidence against yourself or else suffer some penalty for refusing to give the evidence (such as the penalties for perjury, or by having the refusal to testify itself taken as evidence of guilt).</p>


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<p>As such it isn't simply &quot;this information is in my head, therefore it's privileged and I don't have to give it to the state if I don't want to&quot;. There has to be a real danger that responding to a specific request would incriminate you:</p>
<blockquote>
<p>To be self-incriminating, the compelled answers must pose a “substantial and ‘real,’ and not merely a “trifling or imaginary hazard” of criminal prosecution.</p>
<p>Source: <a href="https://www.law.cornell.edu/wex/fifth_amendment" rel="noreferrer">https://www.law.cornell.edu/wex/fifth_amendment</a></p>
</blockquote>
<p>A judge can overrule a claim of the privilege if it is clear that complying with the request cannot possibly self-incriminate. And if a witness has been granted immunity from prosecution for some criminal act, answering questions about that crime can no longer pose any danger of leading to criminal prosecution and thus they can no longer &quot;plead the 5th&quot; to those questions.</p>


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<p>Also, while the <em>contents</em> of pre-existing documents generally cannot be protected by the right against self-incrimination (because you weren't legally compelled to write those documents), it <em>is</em> possible to refuse to hand over documents when revealing the <em>existence</em> of the documents is itself giving the government new self-incriminating evidence:</p>
<blockquote>
<p>What the privilege protects against is the compulsion of testimonial disclosures. … A person may be compelled to produce specific documents even though they contain incriminating information. If, however, the existence of specific documents is not known to the government, and the act of production informs the government about the existence, custody, or authenticity of the documents, then the privilege is implicated.</p>
<p>Source: <a href="https://constitution.findlaw.com/amendment5/annotation04.html#who" rel="noreferrer">https://constitution.findlaw.com/amendment5/annotation04.html#who</a></p>


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<p>Source: <a href="https://constitution.findlaw.com/amendment5/annotation04.html#who" rel="noreferrer">https://constitution.findlaw.com/amendment5/annotation04.html#who</a></p>
</blockquote>
<p>Basically, it's not the information <em>itself</em> that is privileged, nor a distinction of what medium the information is stored in. It's the specific <strong>act</strong> of self-incrimination that is privileged, so that the government cannot compel you to do that.</p>


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Question Title: Is a witness on the stand allowed to take notes?

Question Body: <p>I have read that witnesses in a court are allowed to refer to notes when they are testifying, but, without regard as to why they might feel a need to, are they allowed to take notes while they are being questioned?</p>
<p>(Inspired by the question <a href="https://law.stackexchange.com/q/91448/25504">What remedies can a witness use to satisfy the &quot;all the truth&quot; portion of his oath?</a> here on Law.SE, but I am not looking for any specific country.)</p>


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Answer 1: <p>I've never heard of a rule specifically addressing this in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, but I expect most courts would disallow it.</p>
<p>I suspect a court would believe that the note-taking would be a distraction to the witness, whose focus should be on listening to the questions and providing truthful answers. The note-taking may be perceived as a distraction from the testimony for others in the courtroom, as well.</p>
<p>If I were examining the witness, I would probably be entitled to see what the notes say, dragging out the witness's examination. Then the witness would want to take notes about my questions about her notes, and I'd want to see those notes, and you can see how it can get out of control.</p>


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Answer 2: <p>By &quot;referring to notes&quot;, I don't believe that means notes that have been taken by the witness during the trial.  In certain cases, the witness can refer to notes prepared ahead of time to <em>refresh their memory</em> about something. They can't simply read content directly from the notes, though, they have to have an &quot;independent recollection&quot; of the facts.  &quot;Notes&quot; here can actually refer to more than just something the witness wrote for the purposes of the trial, it could also be a report, a photograph, or a physical item.  As an example, in <a href="https://www.leagle.com/decision/1999570513se2d571570" rel="nofollow noreferrer">State v. Brown, 350 N.C. 193 (1999)</a> a witness saw a letter she had previously written, which refreshed her memory about certain statements she had made.</p>


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<p>If this is done during testimony, <a href="https://ncpro.sog.unc.edu/manual/705-08" rel="nofollow noreferrer">Rule 612</a> of the Federal Rules of Evidence enables the opposing party to inspect the notes in question, cross-examine the witness about the notes, and enter any relevant portions of the notes into evidence.  That means you have to be careful about what notes you use because if you (for example) had <a href="https://www.wklaw.com/dont-bring-your-notes-to-the-witness-stand-or-the-prosecution-can-see-them/" rel="nofollow noreferrer">notes of a conversation between yourself and your attorney</a>, you would waive attorney-client privilege the moment you use them on the stand.</p>
<p>From a practical standpoint, I'd imagine this makes it very difficult for a witness to take notes while on the stand.  Opposing counsel will see you with notes, they'll demand they be turned over for inspection, and now you don't have anything to write on any more.</p>


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Question Title: Issues with asking if legal action have been taken?

Question Body: <p>I was working for a forum and have since left. To cut a long story short, I have an intrusive thought all day every day that he's going to take legal action against me, since we had a data breach(I've informed him since, he was understanding). I have little reason to believe this, other than that he may be dishonest and lie about me, but honestly it's wearing me down. So I have 2 questions:</p>
<ol>
<li>May I ask him if he's taking legal action, be it criminal/civil? Is there anything wrong with this, I just want to understand my options. Moreover, does he have to be honest with his response?</li>
<li>May I ask him for an honest statement regarding my role and what my duties were whilst I worked there? Or could this be considered interfering with an investigation? Would this be impacted by the answer to number 1?</li>
</ol>


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Answer 1: <p>They don't owe you a thing, and could ignore or lie to you.</p>
<p>To file a lawsuit against you, they must <strong>Serve</strong> you.  Read up on what legal service is - you probably will notice if it happens! (though things can get a little weird if you have a PMB or Registered Agent for your LLC etc - they can serve the PMB/Agent, who may fail to notify you!)</p>
<p>You can also check court records every week or two, to see if a case has appeared.</p>
<p>Now... who is your lawyer? If you have one and they know who your lawyer is, they're absolutely going to serve your lawyer; it would be negligent for them not to, and your lawyer will make them regret it.  So it could be as simple as sending  them a change of address: <em>Hi, I'm sending this note to everyone I've done business with in the past.  FYI, my new address is X, my phone is Y, email is Z, and my attorney is A</em>.</p>


Tags: criminal-law, england-and-wales, civil-law


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Question Body: <p>In simple terms, any AI system will consist of three elements:</p>
<ol>
<li>Code, written by humans, that defines the mathematical model</li>
<li>The mathematical model itself, as it exists within the computer</li>
<li>The model weights, millions or billions of parameters that are tuned by the training process</li>
</ol>
<p>As far as intellectual property law is concerned, I think I know how the first two would be handled:</p>
<p>The code is a creative expression by the coders, and so copyright would apply.</p>


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</ol>
<p>As far as intellectual property law is concerned, I think I know how the first two would be handled:</p>
<p>The code is a creative expression by the coders, and so copyright would apply.</p>
<p>The mathematical model is defined by the code, but can be expressed in other ways.  Here is a diagram of the structure of such a model, <a href="https://www.nature.com/articles/s41598-019-47193-6" rel="nofollow noreferrer">that along with the paper it is in</a> should allow one to recreate the model without creating a derivative work of the actual code that was used to create it in the first place.  I THINK patent law not copyright would apply to this element.</p>
<p><img src="https://media.springernature.com/m685/springer-static/image/art%3A10.1038%2Fs41598-019-47193-6/MediaObjects/41598_2019_47193_Fig1_HTML.png" alt="Image of AI model used for cell types" /></p>


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<p>The weights I am not sure of.  These have been generated without any human creativity, the model has been run against large amounts of data and the weights built up.  This is however a very expensive process, costing lots of computer time with means electricity.  Would there be any intellectual property law that applies to these weights?</p>


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<p>This is particularly relevant now as the 65B weights for Facebook LLAMA have leaked.  My understanding is that Meta has released the code under a <a href="https://github.com/facebookresearch/llama/blob/main/MODEL_CARD.md" rel="nofollow noreferrer">non-permissive no commercial use licence</a>, and only released the trained weights for much smaller model.  This leak allows anyone technically to run the full model (if they have a $20k graphics card, or do it &quot;on the cloud&quot;).  However could they do it legally?  Assuming they could recreate the model without creating a derivative work (perhaps using <a href="https://en.wikipedia.org/wiki/Clean_room_design" rel="nofollow noreferrer">clean room techniques</a> ) could someone use this model without restrictions?</p>


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Answer 1: <h2>there might be patents to the methodology used to get the AI to learn</h2>
<p>A methodology can be patented, and thus limited in who may use this particular way.</p>
<h2>The base code is copyrighted</h2>
<p>The base code of the AI, which makes the computer evaluate different outcomes and test the inputs against its outcomes is copyrighted by the making company.</p>
<h2>The pure product of AI is uncopyrightable and unpatentable</h2>
<p>the US Copyright office declared that AI products do not have an author. <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/klpygnkyrpg/AI%20COPYRIGHT%20decision.pdf" rel="nofollow noreferrer">As such, AI-generated expression does not benefit from any copyright.</a></p>


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<p>Likewise, the USPTO has declined multiple <a href="https://www.brookings.edu/blog/techtank/2022/08/25/patents-and-ai-inventions-recent-court-rulings-and-broader-policy-questions/" rel="nofollow noreferrer">applications in which an AI was listed as the sole inventor</a>. <a href="https://www.federalregister.gov/documents/2023/02/14/2023-03066/request-for-comments-regarding-artificial-intelligence-and-inventorship" rel="nofollow noreferrer">Their current stance is, an AI can't be an inventor, if anything the human feeding the AI could be one.</a> This is based on a 2012 case, <a href="https://scholar.google.com/scholar_case?case=8123691441658588112" rel="nofollow noreferrer">in which the SCOTUS decided that an individual is always a human.</a></p>
<p>As such, AI-generated weigts can <strong>not</strong> be copyrighted or patented.</p>
<h2>The weights might be trade secrets</h2>


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<p>As such, AI-generated weigts can <strong>not</strong> be copyrighted or patented.</p>
<h2>The weights might be trade secrets</h2>
<p>It's unclear if the weights are the product of a human maker using an AI as a tool, or a pure AI work. As such, their copyright status is unclear.</p>
<p>However, they might be protected as <a href="https://www.wipo.int/tradesecrets/en/tradesecrets_faqs.html" rel="nofollow noreferrer">trade secrets</a>, and as such disclosure, acquisition and usage of them could be illegal. Trade secrets and their products are generally licensable.</p>


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Question Title: Drinking whilst driving but remaining under the limit

Question Body: <p>Now, I understand all of the below is ill advised, I'm just curious as to the legality of it.</p>
<p>Unlike in the US, to my knowledge, the UK has no open container laws. It's perfectly legal for every person in the car bar the driver to be blind drunk and continuing to drink as long as they aren't causing a nuisance to the driver and are wearing a seatbelt etc.</p>
<p>The threshold for drink-driving in the UK is also based off of blood alcohol content and is reasonably high compared to other countries: one can be fairly sure that a reasonably sized person could have two beers and probably still be under the limit.</p>
<p>So, is it illegal to drink those two beers <em>whilst</em> driving as long as one's BAC remains below the legal limit?</p>


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Answer 1: <h2><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></h2>
<p>As a driver, you are not permitted to do things that reasonably impact your ability to steer and react while driving. If it wouldn't be called out explicitly, then operating a phone would fall under this general provision. However, consuming any drink is not generally considered one of those acts... as long as you don't do so in a way that risks you losing control of the car. Any act that risks losing control would be negligent. For example, consumption of extra hot coffee from flimsy cups risks pouring hot coffee over your lap, and such has to be avoided. Similarly, using a bottle as a knob on the wheel is not allowed, because you could block the wheel and steer off the road.</p>


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<p>Now, in <em>general</em> the allowed BAC at the wheel is 0.5 promille. That's not too bad. Yet that limit is when you do not engage in any act that might be considered endangering traffic. If you do, the limit falls to 0.3. If you are generally a bad driver, or the method of how you hold the beer impacts your driving in such a way... you have to deal with the lower limit. If you still manage? all ok.</p>
<p>But even if you don't break the 0.5/0.3 promille, and something happens, you are in for pain: the mere fact that you have consumed any alcohol can give you a partial fault for the accident.</p>
<p>Also remember, if you're below 21 or have had your driving license for less than a year, you have a 0.0 limit anyway.</p>


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Question Title: Can a police officer lie about a consequence of a traffic violation they charge you with?


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Question Body: <p>I was pulled over for allegedly speeding less than 15 mph over the posted speed limit. As I was traveling on a minor highway a car coming from the opposite direction turned off the highway and just as I passed the turn a highway patrolman was revealed directly behind the person turning off the highway. He immediately made a u-turn across a solid double yellow line and began following me with his lights on. Upon pulling me over the police officer immediately had an aggressive body language, manner of speech and eye contact. I had a 7 month old infant in the car and my wife, and I became nervous that he would further lose control of his emotions. He asked if I knew what speed I was going at the time that I was pulled over I said I couldn't recall what my exact speed was at the time he pulled me over. He then repeatedly asked said &quot;well that means you were either purposely driving over the speed limit or you were carelessly driving&quot;. Not wanting to incriminate


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the time he pulled me over. He then repeatedly asked said &quot;well that means you were either purposely driving over the speed limit or you were carelessly driving&quot;. Not wanting to incriminate myself I kept repeating that I was not doing either of those things. He then said &quot;there are three options, I can take you to jail, write you a citation or give you a warning&quot;. At that point I knew this was getting serious as I had never been threatened with jail time for a traffic offense before. I kept repeating that I did not intentionally drive over the speed limit and couldn't recall the exact speed I was going at the time he pulled me over.</p>


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<p>Honestly, I've replayed the situation countless times since it happened. I felt powerless to protect my wife and child from someone. I have two goals after this situation:</p>
<ol>
<li>Get out of the ticket.</li>
<li>Prevent this individual from harming other people (which I believe the only reason he didn't escalate the situation to violence is because of my calm and respectful demeanor during the entire situation)</li>
</ol>
<p>I've been advised my best course of action is to plead guilty and ask for a reduction from the judge. I honestly fear for the safety of others that this officer pulls over. I'm trying to get over my personal anger towards this officer but I also feel some level of duty to ensure this doesn't happen to someone else.</p>


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Answer 1: <p>Despite the lengthy background, the only question seems to be:</p>
<blockquote>
<p>Can a police officer lie about a consequence of a traffic violation
they charge you with?</p>
</blockquote>
<p>As a matter of constitutional law in the United States, that answer is generally &quot;yes.&quot; States can impose more limitations if they like. Only a small minority of states actually do so.</p>
<p>Incidentally, an attorney, such as a deputy district attorney, is not allowed to lie about the consequences of a traffic violation, or anything else (even in extreme circumstances like a hostage situation). This violates the rules of professional conduct applicable to all attorneys.</p>
<p>This sounds like a classic &quot;driving while black&quot; situation and is probably involves unconstitutional discrimination by a government official, although proving that in an individual case is virtually impossible.</p>


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Answer 2: <h3>Police can lie to you</h3>
<p>and</p>
<h3>You can be arrested for many traffic offenses</h3>
<p>It is well established that police have no duty to tell you the truth either intentionally or unintentionally.</p>
<p>It is also well established that in most jurisdictions there are traffic offenses that you can be arrested for.  The happens infrequently, but the option is there for the officer.  Texas, for example, states that you may not be arrested only for speeding or for open container violations.  Virginia is famous for arresting people for speeding more than 20 over or 85 regardless, which is defined in Virginia as a type of reckless driving.  This may be different in your jurisdiction.</p>


Tags: united-states, police, traffic


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Question Title: For what causes can a judge dismiss a juror? E.g. 17 year old defendant, juror said she believes video games contribute to violence

Question Body: <p>Is something like that prejudicial enough that the juror should be dismissed by the judge? Because it feels like that juror is just a sympathetic peer; do we dismiss people who are sympathetic? I think judges can dismiss jurors in death penalty cases if a juror is against the death penalty. Is that actually true, because if it is, that seems like a miscarriage of justice. So if an entire town hates the death penalty and would not convict, we just keep looking for jurors who will convict? Will they literally just find the last nine people in the state who are not opposed to the death penalty?</p>


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Answer 1: <p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<h2>Juries are governed by the <a href="https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-018#:%7E:text=An%20Act%20to%20amend%20and,the%20Supreme%20Court%20Act%201970.&amp;text=This%20Act%20may%20be%20cited%20as%20the%20Jury%20Act%201977." rel="nofollow noreferrer">Jury Act</a> 1977</h2>
<p>Part 7A deals with the discharge of jurors.</p>
<p><a href="https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-018#sec.53A" rel="nofollow noreferrer">s53A</a> makes it mandatory for a judge to discharge a juror who:</p>
<ul>
<li>was mistakenly or irregularly empanelled,</li>
<li>has become excluded from jury service,</li>


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<ul>
<li>was mistakenly or irregularly empanelled,</li>
<li>has become excluded from jury service,</li>
<li>has engaged in misconduct in relation to the trial or coronial inquest.</li>
</ul>
<p><a href="https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-018#sec.53B" rel="nofollow noreferrer">s53B</a> gives the judge or coroner discretion to discharge a juror who:</p>
<ul>
<li>has become ill, infirm or incapacitated,</li>
<li>may not be able to give impartial consideration because of their familiarity with the witnesses, parties, or legal representatives, or creates an apprehension of bias or a conflict of interest,</li>
<li>refuses to take part in deliberations,</li>
<li>for any other reason appears to be unable to act as a juror.</li>
</ul>
<p>Note that we are not talking about challenges by the parties themselves but only by dismissals from the bench.</p>


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<li>for any other reason appears to be unable to act as a juror.</li>
</ul>
<p>Note that we are not talking about challenges by the parties themselves but only by dismissals from the bench.</p>
<p>Beliefs held by a juror about video games, or the death penalty, or any other thing are not, of themselves, grounds for dismissing a juror. Jurors do, and are expected to, hold a wide variety of beliefs. They are also expected to, and mostly do, put those beliefs aside and vote on the evidence impartially and without bias.</p>


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<p>Only when &quot;it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason&quot; [s53B(b)] or &quot;it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror&quot; [s53B(d)] should the judge consider discharging them.</p>


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Answer 2: <p>The right to an impartial jury requires that both sides be given fair hearing by the jury and that the jury weigh all evidence before them when determining the verdict and the jurors should not use any preconceived notions.  While an opinion in and of itself is not a grounds for dismissal, it can become grounds if the case touches on that aspect of a political opinion.  In the case you are describing, it is likely that the 17 year old defendant was playing a video game prior to committing the crime.  Whether or not you believe video games, you may be liable to aquitt because of a preconcieved biased against the game, when the game being played in question had no tangential relationship to the crime that was committed (I.E. If the defendant was playing Mario Cart and then went out and robbed a convivence store, which is a crime which has little relationship to any Mario Cart mechanics.  The prosecutor may seek dismissal because, despite the game having no narrative


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went out and robbed a convivence store, which is a crime which has little relationship to any Mario Cart mechanics.  The prosecutor may seek dismissal because, despite the game having no narrative similarities to the crime other than it was part of the timeline of the event, a belief that ALL video games increase violence is going to introduce a bias that shouldn't be there.  &quot;Mario Cart made me do it&quot; is not a valid excuse for Armed Robbery.)  But the reverse situation could happen.  Suppose the defendant will be using his play time of Grand Theft Auto online as his alibi for why he couldn't possibly have committed an armed robbery at the time in question?  Allowing someone on the jury who believes video games leads to violence would risk a juror who turns a blind eye to the fact that there are records of his activity in GTA that could prove he didn't do because GTA is a game that glorifies violent criminal behavior and would be biased against the defendant, who has never


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that there are records of his activity in GTA that could prove he didn't do because GTA is a game that glorifies violent criminal behavior and would be biased against the defendant, who has never committed an actual crime in his life.</p>


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<p>With respect to your question on the death penalty, it is true that those people who have a moral objection to the death penalty are excused because the fear is that justice will not be served because a juror will hold out to get the defendant acquitted and deny the use of the punishment because it is a possible outcome of a guilty verdict.  They also keep an eye out for potential jurors who are in favor of expanding the death penalty as well, as they might be too eager to convict.</p>
<p>Ignoring evidence of guilt because you disagree with the level of punishment the defendant is facing is just as bad as ignoring evidence of innocence because of any other preconceived opinion you have on the situation.  What Justice is done by the release of a person who all evidence says is guilty of horrible crimes... because one person believed the potential punishment was too harsh.</p>


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<p>Incidentally, Capital punishment cases are unique in the U.S. Legal system in that the Jury actually has some weight in the sentancing.  Unlike non-capitol offenses, where the judge is the sole arbiter of sentancing those found guilty, it often falls to the jury to decide if first if the defendant is guilty of a crime for which the Death Penalty is authorized, and then if that person's crimes rise to death penalty levels.  In U.S. Law, it is unconstitutional for any crime to have a mandatory death penalty.  Those that do usually have a list of aggravating circumstances that will allow for the death penalty to be used.  For these cases, the jury must first determine if the accused is guilty of a crime that could carry a capitol offense, then must determine if the aggravating factors in that crime warrant the use of the death penalty (was the prosecution able to prove beyond a shadow of a doubt that the aggravating circumstances occurred.) and make a recommendation to the judge of


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that crime warrant the use of the death penalty (was the prosecution able to prove beyond a shadow of a doubt that the aggravating circumstances occurred.) and make a recommendation to the judge of capital punishment based on that... the judge has the ultimate determination during the sentencing phase of the trial, by which point the jury is dismissed.</p>


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Question Title: In the United States, what decides whether a case should go to the state courts or the federal courts?

Question Body: <p>The United States has a dual judiciary system with a state court system and a federal court system with the US Supreme court.</p>
<p>If there is a person who is accused of breaking both state and federal laws because of an action(in this case, both state and federal laws agree with each other on the action being a breach of law) and they wish to take the matter to court, how do they decide which system to take it to?</p>


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Answer 1: <p>State crimes must be prosecuted by state prosecutors in state courts. Federal crimes must be prosecuted by federal prosecutors in federal courts. <a href="https://law.stackexchange.com/a/91409/46948">hszmv's answer describes</a> the DOJ's policy where there is overlap.</p>
<p>In <a href="https://en.wikipedia.org/wiki/Indian_country" rel="nofollow noreferrer">Indian country</a> (this is a term of art in U.S. law), jurisdiction is <a href="https://www.justice.gov/ko/node/1375341" rel="nofollow noreferrer">much more complicated</a>. In brief, there is often exclusive tribal jurisdiction when the alleged offence has an Indian accused and Indian victim. For a listed set of major crimes, jurisdiction is exclusively federal (except in states where that jurisdiction has been granted to the states), even if incorporating as federal law the state's definitions of particular crimes.</p>


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Answer 2: <p><strong>Criminal Cases</strong></p>
<p>In criminal cases, federal prosecutors decide which cases to prosecute under federal law, while state prosecutors decide independently which cases to prosecute under state law. Sometimes there is coordination between the two, but there doesn't have to be. Under the dual sovereignty doctrine, the federal government and the state government can both prosecute and punish someone for the same crime without regard to each other's actions.</p>
<p>Federal crimes are always prosecuted in federal courts by federal prosecutors. State crimes are always prosecuted in state courts by state prosecutors (or by private citizens in rare instances).</p>


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<p>About 2% of all criminal cases (depending upon how you measure it - by charges brought, by number of criminal defendants, by trial conducted, by time spent incarcerated, etc.) are brought in federal court. Federal court criminal dockets are highly distinct from the overall mix of crimes prosecuted in the U.S.</p>
<p>Federal courts mostly handle immigration offenses (over which federal courts have exclusive jurisdiction since states are forbidden from enacting immigration crimes under the U.S. Constitution), white collar crimes, regulatory offenses (e.g. violations of federal environmental and security and tax crimes), crimes with high mandatory minimum federal sentences (mostly related to drugs and possession of firearms by felons), terrorism, bank robbery, and serious ordinary crimes arising on Indian Reservations.</p>


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<p>Less serious crimes committed on Indian reservations involving Indian tribe members (basically misdemeanors and petty offenses and punitive civil violations like traffic tickets) are enforced in the tribal courts of the relevant Indian tribe, rather than in state courts or in federal courts. The <a href="https://law.stackexchange.com/a/91408/9517">answer by Jen</a> to this question discusses this and links to discussions of when tribal courts have jurisdiction which is a complicated subject.</p>
<p>Notably, the death penalty can be imposed for violation of a federal crime by a federal court even if the crime is committed in a state that has no state death penalty.</p>
<p>State courts handle all other crimes. In particular, the state courts handle the overwhelming majority of serious violent crimes committed outside Indian Reservations (much more than 98% of such cases).</p>


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<p>A side consequence of this reality is that federal prisons are much less scary places to be incarcerated than state prisons, because they have so many fewer people convicted of serious violent crimes.</p>
<p>One exception to the strong general rule that state courts exclusively handle state criminal cases, is that after all direct appeals are exhausted in a state criminal cases, the convicted defendant can appeal his or her case to the U.S. Supreme Court if the defendant alleges that the U.S. Constitution or a federal law was violated in connection with the conviction, and in habeas corpus review in federal courts to collaterally attack such a conviction (e.g. for reasons not discernible from the trial court record) after all state court appeals and collateral attacks have been exhausted.</p>


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<p>The D.C. courts of the District of Columbia, and territorial courts in other U.S. territories including Puerto Rico, function essentially like state courts for most purposes, although there are some subtle differences legally between them and state courts (e.g. the Bill of Rights applies directly and not merely via the 14th Amendment in these courts because they are part of the federal government).</p>
<p><em>Military Justice and Military Tribunals</em></p>
<p>As an aside, there is also a whole separate justice system under the Uniform Code of Military Justice that mostly applies to quasi-criminal offenses committed by soldiers (a small number of cases involving civilians on military bases or traveling with military units are also handled in these forums). This system is also a federal one but is not connected except at the U.S. Supreme Court level at the very top, to the civilian federal criminal justice system. It even has its own jails and prisons.</p>


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<p>Finally, there is also a U.S. system of anti-terrorism military tribunals created after 9-11 and based at a U.S. military base in Guantanamo Bay, Cuba. This was basically a failed system and only dozens of inmates with cases a couple of decades old continue to be processed in this system with new case filings in this system having ended long ago. No or almost no cases there have been resolved with final trials on the merits convicted defendants of the charges against them.</p>
<p><strong>Civil Cases</strong></p>
<p>In civil cases, the person bringing the lawsuit decides whether to bring it in  the federal courts or the state courts in the first instance.</p>
<p>But some cases (e.g. copyright and patent enforcement, bankruptcy, cases between U.S. states, and cases involving diplomats) have to be brought in the federal courts, while other cases (domestic relations, probate, and junk fax cases) must be brought in state courts.</p>


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<p>The junk fax law is weird since it is the only federal law of which I am aware that authorizes private lawsuits that can be brought only in state courts.</p>
<p>Federal courts have jurisdiction (usually concurrent with state courts except as noted above) over cases with a U.S. government party, over cases with a party who is a foreign country or diplomat from that country, over cases between U.S. states, over cases in which the claims in the original complaint arise under federal law including treaties to which the U.S. is a party (federal law defenses and federal law counterclaims don't give rise to federal court jurisdiction), over real estate ownership disputes arising under the laws of more than one state. Note that with the few exceptions noted above (e.g. intellectual property cases) cases arising under federal law can be tried in state courts if none of the defendants remove the case to federal court.</p>


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<p>Federal courts can also consider cases where there is a question of state law over which state courts don't have exclusive jurisdiction (e.g. probate and domestic relations) if it is related in some way to a claim above over which the federal courts do have jurisdiction (this is called pendent and supplemental jurisdiction).</p>
<p>Federal courts in civil cases also have jurisdictions over &quot;diversity cases&quot; arising under state law where the amount in controversy exceeds $75,000, in large class action lawsuits, and in interpleader lawsuits (i.e. suits between parties from different states with competing claims to own property that the person who possesses the property have asked a court to resolve for them).</p>
<p>Unless a case brought in state court is removed by a defendant to federal court in a timely fashion, it stays in state court.</p>


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<p>Unless a case brought in state court is removed by a defendant to federal court in a timely fashion, it stays in state court.</p>
<p>Federal court civil cases are less skewed relative to the state courts in the mix of civil cases that they handle than in the sphere of criminal cases. But civil lawsuits by federal government plaintiffs enforcing regulatory laws and federal government legal rights (notably actions to collect student loans administered by the U.S. Department of Education), bankruptcy cases, cases against government officials alleging civil rights violations, copyright and patent infringement cases, and large class actions make up a significant part of the civil docket in federal courts.</p>


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<p>Another very important subset of federal civil cases (numerically) are habeas corpus petitions and other petitions by prison inmates. The federal courts have jurisdiction over collateral attacks on state court criminal convictions after all state court remedies to attack the convictions are exhausted, and over civil rights lawsuits against prison officials.</p>


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<p>The vast majority of federal habeas corpus petitions and prisoner's petitions are dismissed summarily on the recommendations of federal magistrate judges (deputy federal judges appointed by federal judges) to federal district court judges. But the cases that survive are a major relief valve in death penalty cases, other very long sentence cases in state court whose correctness is disputed (especially in states with dubious quality state criminal justice systems). They also regulate the worst of the worst state prison mistreatment situations. Ultimately, close to half of U.S. death sentences are overturned in some phase of appeal or collateral attack on the sentence, often in federal court habeas corpus petitions.</p>


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Answer 3: <p>The U.S. Department of Justice (DOJ) has adopted what is called the <strong>Petite Policy</strong> which holds that the Federal Government will presume that any state prosecution of facts applicable to federal charges vindicates the Federal Justice system in those facts, even if the state prosecution results in an acquittal.</p>


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<p>The Petite Policy is not law but a self-imposed DOJ Policy and as such, it is invoking it's right to Prosecutorial Discretion in cases to justify the stance.  Additionally, the DOJ has a list of criteria they must meet to prosecute at the Federal Level an act that was prosecuted at the state level.  Typically these deal with laws that the state can not prosecute but the Feds can (For example, a person who entered the country illegally and kills a county sheriff deputy in the process will be tried for murder by the state, but the state is not empowered to charge him for any immigration offenses, which would mean the DOJ would file charges for that portion of the defendant's crime, but would be satisfied with the outcome of the state's murder trial for the charges related to the murder.).  Criteria are the existence of corruption or incompetence in the State's prosecution, or Jury Nullification in clear violation of evidence or the law <a


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trial for the charges related to the murder.).  Criteria are the existence of corruption or incompetence in the State's prosecution, or Jury Nullification in clear violation of evidence or the law <a href="https://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Petite_policy" rel="nofollow noreferrer">Source</a>.</p>


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<p>Edit:  In some cases, the Feds will have exclusive jurisdiction, such as crimes that are interstate in nature, crimes related to the mail, crimes that take place in U.S. territory but not within the jurisdiction of state, territorial government, or district jurisdiction (i.e. Territorial Waters), crimes that occur on Federal property and immigration crimes.  A state cannot prosecute these crimes as they do not have the power to do so.</p>


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<p>While the U.S. does have a constitutional ban on Double Jeopardy, this only applies to the courts of a jurisdiction.  If you try someone at the state level and fail to secure a conviction, legally, there is no law preventing the Federal government from trying the same person for the same crimes other than their self-imposed policy.  It should also be pointed out that the Petite Policy is also a cost saving measure that will prevent duplication of work (why try someone who someone else already found guilty of the same crime.).  In addition to the states, all 5 U.S. Permanently Inhabited Territories, The District of Columbia, and all Tribal Governments (found on Native American Reservations) are considered separately sovereign from the Federal Government, and thus may conduct trials.</p>


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Question Title: Is the opportunity and/or potential to get tenure in the Texas State university system contractable?


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Question Body: <p>According to this news item of March 30, 2023 about Texas Senate Bill 18 - <a href="https://www.tpr.org/education/2023-03-30/public-universities-could-no-longer-offer-tenure-for-professors-under-texas-senate-bill" rel="nofollow noreferrer">Public universities could no longer offer tenure for professors under Texas Senate bill | TPR</a> - public universities in Texas would not be able to offer tenure to professors after Sept. 1.</p>
<p>If eventually signed into law by the governor, faculty in the University of Texas system who have tenure will retain it; but faculty who do not have tenure will not be able to apply because there will no longer be tenure.</p>
<p><strong>Questions:</strong></p>
<p>Is the opportunity and/or potential to get tenure contractable?</p>


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<p><strong>Questions:</strong></p>
<p>Is the opportunity and/or potential to get tenure contractable?</p>
<p>Do current faculty who have taught, published and worked towards tenure under the assumption they will be able to apply for tenure - do they have a case for breach of contract if the law goes into effect and they cannot apply for the benefits of tenure?</p>
<p><strong>University of Texas System documents:</strong></p>
<p><a href="https://www.utsystem.edu/board-of-regents/rules/31007-tenure" rel="nofollow noreferrer">Rule 31007: Tenure | University of Texas System</a></p>
<p><a href="https://provost.utexas.edu/the-office/faculty-affairs/promotion-tenure/2022-23-promotion-tenure/" rel="nofollow noreferrer">2022-23 Promotion &amp; Tenure - Office of the Executive Vice President and Provost - University of Texas System</a></p>


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Answer 1: <p>The state legislature does get to say how the governmental institutions of higher education are run, so they can stipulate what is in the contract. There is no aspect of the current contract which guarantees future tenure, and it is standard that the rules of tenure can change and untenured faculty must follow whatever the current rule is at the time one is reviewed for tenure. That would include the elimination of tenure. The university rules say that the university rules can be changed (and describe how those changes are made). However, university rules are subordinate to the statutes governing the universities, and you can't sue the legislature for breach of contract. The law, <a href="https://capitol.texas.gov/tlodocs/88R/billtext/pdf/SB00018I.pdf" rel="nofollow noreferrer">as proposed</a>, specifically limits the duration of any employment contract to 3 years.</p>


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<p>Incidentally, there is no corresponding House bill, and the deadline for filing such a bill in this session has passed, so this specific piece of legislation will not be enacted.</p>


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Question Title: Personal Misconduct That May Result in a Lawyer&#39;s Censure or Disbarment

Question Body: <p>Is there some type of Code of (Personal) Conduct that lawyers in the United States must abide by under the penalty of either censure of disbarment? What personal kinds of personal misconduct might result in such penalties?</p>
<p>I am especially interested in rules of personal conduct for members of the Texas bar.</p>
<p>I have found lots of documentation regarding code(s) of <em>professional</em> ethics but not for <em>personal</em> ethics and behavior.</p>


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Answer 1: <p>The <a href="https://www.texasbar.com/AM/Template.cfm?Section=Home&amp;Template=/CM/ContentDisplay.cfm&amp;ContentID=27271" rel="nofollow noreferrer">Texas Disciplinary Rules of Professional Conduct</a> govern the issue of the grounds upon which lawyers admitted to practice in Texas may receive professional discipline such as censures, suspension from practice, or disbarment. The appropriate severity of professional discipline for particular kinds of conduct is largely a matter of case law and separate law provides for the procedural framework for administering the Rules of Professional Conduct. The Rules themselves specifically disavow the task of decided what kind if professional discipline is appropriate for any particular kind of conduct of an attorney.</p>


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<p>Personal ethics and behavior are governed primarily by rules 8.02 (defamatory speech about judges and other legal officials), and 8.04 (various kinds of misconduct including personal misconduct), although there are some stray bits that can come up in connection with other rules.</p>
<p>Rule 1.08 involves improper conduct in transactions with clients that do not pertain to the matter in which the client is represented (e.g. unfair business deals with clients). Texas is among a minority of states that does not automatically treat having sex with client that commences only after the attorney-client relationship is formed as a violation of the Rules of Professional Conduct.</p>


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<p>Rule 8.04 is sometimes called the &quot;officer and a gentleman&quot; clause of attorney professional ethics after an analogous provision, <a href="https://www.armfor.uscourts.gov/digest/IIIA59.htm" rel="nofollow noreferrer">Article 113</a>, of the Uniform Code of Military Justice that applies to members of the United States armed forces. It is a residual misconduct provision that covers lots of misconduct in a lawyer's personal affairs that isn't otherwise regulated by the Rules of Professional Conduct.</p>
<p>Rule 8,04 and its official comments are as follows:</p>
<blockquote>
<p>Rule 8.04. Misconduct</p>
<p>(a) A lawyer shall not:</p>
<p>(1) violate these rules, knowingly assist or induce another to do so,
or do so through the acts of another, whether or not the violation
occurred in the course of a client-lawyer relationship;</p>
<p>(2) commit a serious crime or commit any other criminal act that
reflects adversely on the lawyers honesty, trustworthiness or fitness


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occurred in the course of a client-lawyer relationship;</p>
<p>(2) commit a serious crime or commit any other criminal act that
reflects adversely on the lawyers honesty, trustworthiness or fitness
as a lawyer in other respects;</p>
<p>(3) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;</p>
<p>(4) engage in conduct constituting obstruction of justice;</p>
<p>(5) state or imply an ability to influence improperly a government
agency or official;</p>
<p>(6) knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law;</p>
<p>(7) violate any disciplinary or disability order or judgment;</p>
<p>(8) fail to timely furnish to the Chief Disciplinary Counsels office
or a district grievance committee a response or other information as
required by the Texas Rules of Disciplinary Procedure, unless he or
she in good faith timely asserts a privilege or other legal ground for
failure to do so;</p>


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required by the Texas Rules of Disciplinary Procedure, unless he or
she in good faith timely asserts a privilege or other legal ground for
failure to do so;</p>
<p>(9) engage in conduct that constitutes barratry as defined by the law
of this state;</p>
<p>(10) fail to comply with section 13.01 of the Texas Rules of
Disciplinary Procedure relating to notification of an attorneys
cessation of practice;</p>
<p>(11) engage in the practice of law when the lawyer is on inactive
status, except as permitted by section 81.053 of the Government Code
and Article XIII of the State Bar Rules, or when the lawyers right to
practice has been suspended or terminated, including, but not limited
to, situations where a lawyer’s right to practice has been
administratively suspended for failure to timely pay required fees or
assessments or for failure to comply with Article XII of the State Bar
Rules relating to Mandatory Continuing Legal Education; or</p>


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assessments or for failure to comply with Article XII of the State Bar
Rules relating to Mandatory Continuing Legal Education; or</p>
<p>(12) violate any other laws of this state relating to the professional
conduct of lawyers and to the practice of law.</p>
<p>(b) As used in subsection (a)(2) of this Rule, “serious crime” means
barratry; any felony involving moral turpitude; any misdemeanor
involving theft, embezzlement, or fraudulent or reckless
misappropriation of money or other property; or any attempt,
conspiracy, or solicitation of another to commit any of the foregoing
crimes.</p>
<p>Comment:</p>
<ol>
<li><p>There are four principal sources of professional obligations for lawyers in Texas: these rules, the State Bar Act, the State Bar Rules,
and the Texas Rules of Disciplinary Procedure (TRDP). All lawyers are
presumed to know the requirements of these sources. Rule 8.04(a)(1)
provides a partial list of conduct that will subject a lawyer to
discipline.</p>
</li>


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presumed to know the requirements of these sources. Rule 8.04(a)(1)
provides a partial list of conduct that will subject a lawyer to
discipline.</p>
</li>
<li><p>Many kinds of illegal conduct reflect adversely on fitness to practice law. However, some kinds of offenses carry no such
implication. Traditionally in this state, the distinction has been
drawn in terms of those crimes subjecting a lawyer to compulsory
discipline, criminal acts relevant to a lawyer’s fitness for the
practice of law, and other offenses. Crimes subject to compulsory
discipline are governed by TRDP, Part VIII. In addition, although a
lawyer is personally answerable to the entire criminal law, a lawyer
should be professionally answerable only for criminal acts that
indicate a lack of those characteristics relevant to the lawyer’s
fitness for the practice of law. A pattern of repeated criminal acts,
even ones of minor significance when considered separately, can


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indicate a lack of those characteristics relevant to the lawyer’s
fitness for the practice of law. A pattern of repeated criminal acts,
even ones of minor significance when considered separately, can
indicate indifference to legal obligations that legitimately could
call a lawyer’s overall fitness to practice into question. See TRDP,
Part VIII; Rule 8.04(a)(2).</p>
</li>
<li><p>A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief, openly asserted, that no valid obligation
exists. The provisions of Rule 1.02(c) concerning a good faith
challenge to the validity, scope, meaning or application of the law
apply to challenges to legal regulation of the practice of law.</p>
</li>
<li><p>Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can
suggest an inability to fulfill the professional role of attorney. The
same is true of abuse of positions of private trust.</p>
</li>


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suggest an inability to fulfill the professional role of attorney. The
same is true of abuse of positions of private trust.</p>
</li>
</ol>
</blockquote>
<p>With respect to the portion of the question asking:</p>
<blockquote>
<p>What personal kinds of personal misconduct might result in such
penalties?</p>
</blockquote>
<p>Some of the most serious violations of the rules that are likely to lead to disbarment include misappropriation of client property, abandonment of a legal practice with active clients, revealing highly prejudicial client confidences with no color of justification for doing so, committing a crime involving fraud or a felony, or failure to cooperate with a disciplinary investigation.</p>


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<p>Of those, committing of a crime involving fraud or a felony would be the one most likely to result in disbarment that involves <em>personal conduct</em>, as opposed to professional conduct. Other kinds of personal conduct might result in a lesser sanction, however, as noted in Rule 8.4. Of course, it isn't all that hard to imagine some circumstance &quot;involving dishonesty, fraud, deceit or misrepresentation&quot; (think &quot;<a href="https://en.wikipedia.org/wiki/George_Santos" rel="nofollow noreferrer">George Santos</a>&quot; absent any criminal conduct) that isn't strictly speaking a crime, or &quot;conduct constituting obstruction of justice&quot; in a matter unrelated to client matters (e.g. obstructing an investigation of a family member of the lawyer in connection with an academic institution's investigation) that could rise to this level as well.</p>


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<p>But, again, the matching of punishment to particular conduct is rooted in case law. Also, a pattern of various kinds of misconduct or repeat offenses are often treatment more seriously than a single instance of misconduct by a first offender would be in isolation.</p>
<p>Incidentally, every U.S. jurisdiction has a set of Rules of Professional Conduct with the same numbering system, although the substantive content of different states' rules with the same number is not always the same.</p>
<p>So, for example, Rule 8.4 covers the same subject-matter in every U.S. state, the District of Columbia, Puerto Rico, and every other U.S. territory, even though there may be important substantive differences between the versions of Rule 8.4 adopted in different states.</p>


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Answer 2: <p>All state bar associations have written ethical standards - personal and professional - for any attorney who has been admitted to practice, as well as disciplinary processes for enforcing those standards.</p>
<p>As for <strong>personal</strong> behavior, in Texas, the <a href="https://www.texasbar.com/AM/Template.cfm?Section=Home&ContentID=27271&Template=/CM/ContentDisplay.cfm" rel="nofollow noreferrer">Texas Disciplinary Rules of Professional Conduct (pdf)</a> state that (my bold)</p>
<blockquote>
<ol start="4">
<li>A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business
and <strong>personal</strong> affairs...</li>
</ol>
</blockquote>
<p>and</p>
<blockquote>
<ol start="9">
<li>Each lawyer's <strong>own conscience</strong> is the touchstone against which to test the extent to which his actions may rise above the disciplinary
standards prescribed by these rules. The desire for the respect and


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standards prescribed by these rules. The desire for the respect and
confidence of the members of the profession and of the society which
it serves provides the lawyer the incentive to attain the highest
possible degree of ethical conduct. The possible loss of that respect
and confidence is the ultimate sanction.</li>
</ol>
</blockquote>
<p>As well as the extensive <strong>Rule 8.04. Misconduct</strong> as pointed out by ohwilleke in his answer.</p>
<p>Ideally, in the interest of their profession, attorneys will police themselves. Any personal activity by an attorney that is clearly illegal (theft, DUI, etc.) is certainly an ethical problem under these rules; but behavior that is not clearly illegal but is possibly or clearly unethical (boorish behavior, money and billing issues, etc.) can also be a problem for the attorney.</p>


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<p>The &quot;bar&quot; for disciplinary action and disbarment can be high, though. Many disciplinary committees are composed of attorneys themselves, and sometimes the committees can shy away from disciplining their own.</p>
<p>In Texas, members of the public can file a complaint with the <a href="https://www.texasbar.com/AM/Template.cfm?Section=cdrr&Template=/cdrr/home.cfm" rel="nofollow noreferrer">Committee on Disciplinary Rules and Referenda</a> and can watch <a href="https://pbvideo.vids.io/videos/7c9bdeb31d1ce3c3f4/cdc-how-to-file-a-grievance" rel="nofollow noreferrer">How to File a Grievance</a>.</p>
<p>In my own experience, simply threatening to file an ethics complaint against a city attorney for a very clear and ongoing ethical violation very quickly fixed the ethical problem.</p>


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Question Title: Contesting Mojang&#39;s forced migration

Question Body: <p>Mojang is forcing their users to migrate their account with their Microsoft account. Personally, I don't agree with this migration and especially the way they are forcing it on their users: if you don't migrate, you will lose access to the game.</p>
<p>I have my reasons for not wanting to cooperate. For example, some people think it will even make the game <a href="https://www.reddit.com/r/Minecraft/comments/kd7fkl/the_javatomicrosoft_account_migration_is_going_to/" rel="nofollow noreferrer">less secure</a>. In any case, I demand to either have access to the game or to get a refund. The latter is not going to happen as long as it's up to Mojang, since my refund request does not meet their refund requirements.</p>
<p>Is there anything I can do about this? Can I force them to issue a refund?</p>


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Answer 1: <p>You agreed to terms of use when you started using Mojang, posted at <a href="https://www.minecraft.net/en-us/terms" rel="noreferrer">https://www.minecraft.net/en-us/terms</a>  and including:</p>
<blockquote>
<p>We may change these Account Terms from time to time, if we have reason
to. For example, there might be changes to our games, our practices,
or our legal obligations. We'll inform you of the change before it
takes effect, either by posting a notice on our Website or some other
reasonable way. If you use the Website or your account after the
change, that means you agree to the changes. If you do not agree to
the changes, stop using the Website. The changes will apply to your
use of the Website when you next use it.</p>
</blockquote>


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change, that means you agree to the changes. If you do not agree to
the changes, stop using the Website. The changes will apply to your
use of the Website when you next use it.</p>
</blockquote>
<p>That means Microsoft and Mojang can make a decisions like moving/merging your account without asking your permission. Website and product Terms of Service agreements are legally binding contracts, and you agreed to them when you started using their services.</p>
<p>And refunds are part of the terms:</p>
<blockquote>
<p>RETURNS, REFUNDS AND CANCELLATION
You or we may cancel your Mojang Account at any time or access to
Minecraft.net, Mojang.com or any Mojang game titles using a Microsoft
Account. When your account terminates or access is terminated, your rights
under these Account Terms terminate.</p>
</blockquote>
<p>They can cancel your account at any time and not give you a refund.</p>
<blockquote>
<p><em>Can I force them to issue a refund?</em></p>
</blockquote>


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</blockquote>
<p>They can cancel your account at any time and not give you a refund.</p>
<blockquote>
<p><em>Can I force them to issue a refund?</em></p>
</blockquote>
<p>You can attempt to make your case in court, but a) you agreed to the contract, and 2) Microsoft has more money for lawyers than you do.</p>


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Answer 2: <p>It depends on your contract. <a href="https://www.minecraft.net/en-us/terms" rel="nofollow noreferrer">Here is the contract</a> that I would have if I signed up right now. First, nothing in the contract indicates that you can remain MS-Free, indeed they say</p>
<blockquote>
<p>Note that some players access mojang.com and minecraft.net using a
Microsoft Account. Terms of use with a Microsoft Account can be found
here. Some countries may have restrictions on who and how a Microsoft
Account can provision an Xbox Live Profile</p>
</blockquote>
<p>The section on refunds says &quot;If you can't use a game or a product because it doesn't work, let us know and we'll try to help you out&quot;, which is not a promise to give a refund, so they do not offer refunds. They say &quot;We <em>might</em> also cancel or suspend a transaction if there has been an error&quot;, which is an option and not a commitment. They also say</p>
<blockquote>


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<blockquote>
<p>We may change these Account Terms from time to time, if we have reason
to. For example, there might be changes to our games, our practices,
or our legal obligations. We'll inform you of the change before it
takes effect, either by posting a notice on our Website or some other
reasonable way. If you use the Website or your account after the
change, that means you agree to the changes. If you do not agree to
the changes, stop using the Website. The changes will apply to your
use of the Website when you next use it.</p>
</blockquote>
<p>Hence the prospects for a refund based on them migrating to MS is extremely slim, at least give that version of the contract.</p>


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Answer 3: <p>Further to @user6726's answer, I figured I should thrown in a <a href="https://web.archive.org/web/20101221093644/http://www.minecraft.net/copyright.jsp" rel="nofollow noreferrer">link to the original &quot;contract&quot;</a> (to be specific, this is dated post-20/dec/2010 (as close as I could find) since that's when it went beta, and the beta is when most ppl bought minecraft. You can find an earlier version for the alpha if you got back in time.</p>
<p>Of note, nothing about that (or anywhere else I could find on the site) mentions anything about selling the &quot;game as a service&quot; or anything like that, and most definitely no mention of reserving the right to alter the terms in any way (though it <em>does</em> mention they <em><strong>unreserve</strong></em> the right to make an EULA later on). It quite clearly says you buy the game imo.</p>


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<p>The earliest version of that page does however seem to mention something along the lines that you only bought the rights for up-to-and-including the final version? And the linked version that you buy the current state of the game, and that future updates are a bonus? (with a note about how it's so they reserve the right to abandon the software)</p>


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Question Title: Is it illegal for a driver to ask a young lady to get in?

Question Body: <p>This question has been induced by <a href="https://www.stuff.co.nz/national/crime/109790435/attempted-abduction-of-girl-16-on-aucklands-north-shore" rel="nofollow noreferrer">this news</a> where the police is apparently searching for a driver who asked a 16-year-old lady to get into his car.</p>

<p>The age of consent in New Zealand is 16, therefore it would not have been a crime for an adult to date her. On the face of it, there was no force involved: he asked, she rejected and walked away — something that routinely happens all the time. Were there any laws broken?</p>

<p><strong>Clarification</strong></p>


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<p><strong>Clarification</strong></p>

<p>As the answers and comments point out, the news article may well be omitting details/evidence that would affect whether any laws were broken. However, this question does not aim to find out whether any laws were broken in that particular incident. It aims to discuss a <strong>hypothetical case</strong> where all that happened is what described in the article, nothing more nothing less. Specifically, let's assume:</p>

<ol>
<li>A guy in his 30s-40s driving a car stops by a 16-year-old girl and asks for directions;</li>
<li>He then asks her inappropriate questions;</li>
<li>Finally, he opens the passenger door and asks her to get in;</li>
<li>The girl quickly walks away.</li>
</ol>

<p>At no point the guy threatens or tries to force her in, and at no point she has to "fight back" as the police communicates what happened.</p>


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Answer 1: <h2>Broadly speaking no crime was committed.</h2>
<hr />
<p>I don't know if harassments is a crime in New Zealand. If it is, then he committed it.</p>
<p>Being a creepy pervert to people above the age of consent is not a crime. As long as he didn't expose himself. (sadly).</p>
<p>The young girl in question was 16 which is the age of consent in New Zealand, and it seems like the guy didn't press further when rejected, and was rather open about his intentions. So I would say it would be hard to prove that he had intentions to kidnap the girl.</p>
<h3>That being said</h3>
<p>I think this individual needs help. And a warning from an officer about what is/isn't acceptable behavior could prevent this individual from doing somethin bad. This is called proactive law enforcement. As knowing that the law has their eye on you can curb bad behavior.</p>
<h3>On what you are really asking</h3>
<blockquote>


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<h3>On what you are really asking</h3>
<blockquote>
<p>This question is basically about whether it was just to presume that the man indeed had criminal intention -- Greendrake</p>
</blockquote>
<p>I think you are confused about something... the police wanting to speak to you in no way implies that they presume that you have committed a crime.</p>
<p>You do not have have committed a crime to be a person of interest to the police. The police are allowed to look for people who committed a crime, were a witness to a crime, or just need a little heart to heart talk to remind them of the straight and narrow way.</p>
<p>To put it another way... The police wanting to speak to someone <strong>does not mean that they think the person has committed a crime</strong>.</p>
<h3>What do I think of this incident?</h3>


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<p>To put it another way... The police wanting to speak to someone <strong>does not mean that they think the person has committed a crime</strong>.</p>
<h3>What do I think of this incident?</h3>
<p>The polices response, is good. Exactly what they should do. I would hope that the police would try to find an older individual who is driving around town and asking inappropriate questions/making what sounds like sexual suggestions to young teenage girls... Regardless of said teenage girls being over the age of &quot;consent&quot;. Sounds like this individual is a bit of a pedophile... And I do not use that term lightly. Frankly, I don't think that someone should behave that way any lady regardless of age, manner of dress, etc... And hope to live in a place/time where crime is low enough that the police can address that sort of harassment.</p>
<p>I would not want such an individual driving around in my neighborhood.</p>


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Answer 2: <blockquote>
  <p>Were there any laws broken?</p>
</blockquote>

<p>That will be a matter for the judge and the jury.</p>

<p>However, in the total context, there are certainly grounds for charges to be laid:</p>

<blockquote>
  <p><strong><a href="http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329775.html" rel="nofollow noreferrer">209 Kidnapping</a></strong></p>
  
  <p>Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,—</p>
  
  <p>(a) with intent to hold him or her for ransom or to service; or</p>
  
  <p>(b) with intent to cause him or her to be confined or imprisoned; or</p>
  
  <p>(c) with intent to cause him or her to be sent or taken out of New Zealand.</p>
</blockquote>

<p>and</p>


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<p>and</p>

<blockquote>
  <p><strong><a href="http://www.legislation.govt.nz/act/public/1961/0043/137.0/DLM328517.html" rel="nofollow noreferrer">72 Attempts</a></strong></p>
  
  <p>(1)
  Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.</p>
  
  <p>(2)
  The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.</p>
  
  <p>(3)
  An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.</p>
</blockquote>


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<p>Offering someone a lift is not a crime. Offering someone a lift after asking them "inappropriate questions" may very well be.</p>


Tags: minor, consent, new-zealand


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Question Title: What recourse do I have if my car was broken into while in police impound?

Question Body: <p>My car was being held as part of an investigation, while it was in police custody, it was broken into and personal effects were stolen along with the catalytic converter, it was one of several cars.</p>
<p>A week or so ago a random boy showed up to the house with an ID card that belonged to one of my family members, and a couple other personal items, all of which were in the car, in the impound.</p>
<p>What recourse do I have in a sitaution like this?</p>


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Answer 1: <p>A person who impounds your vehicle has a duty to keep the vehicle secure until it is released, so you might be able to sue the operator of the lot for damages. An exception would be if the lot is actually operated by the government. Under the doctrine of sovereign immunity, you can't sue the government for messing things up, unless they have passed a law allowing themselves to be sued, which is unlikely. So it depends on who exactly had the vehicle, and in what jurisdiction. Your lawyer could tell you whether you have any recourse. You might be able to take advantange <a href="https://casetext.com/case/baker-v-city-of-mckinney" rel="nofollow noreferrer">Baker v. City of McKinney</a>, which made a federal case out of police property destruction, via the Takings Clause.</p>


Tags: california, police, theft, vehicle, custody


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Question Title: Can a user opt-out of embedded services without prior account-linking?

Question Body: <p>Say I have a mobile app that uses Firebase Crashlytics and Google Maps without requiring a Google Sign-In, I assume that I have to ask for consent as I'm not sure they fall under legitimate interest, since there are possible alternatives.</p>
<p>As far as I know I have to give a possibility to opt-out, which I can provide by giving the user the possibility to delete his/her account on my backend and delete all associated data that I collected, but I can't delete any logs made by Crashlytics or Maps, because they are not tied to an account, but they still collect personal data, since the IP address counts as such.</p>
<p>Do I have to provide an opt-out of log data on third party data processors when I have received a consent before-hand? And if so, how would I approach this problem in the right manner?</p>


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Answer 1: <p>This is going to depend on whether those services act as independent controllers, or as your data processors.</p>
<p>If they are separate controllers, then you need a legal basis for sharing your user's personal data with them, which happens e.g. by loading content from their services. This legal basis will typically be consent, and will typically be implemented in a click-to-load fashion, where the functionality initially has a placeholder that asks for consent, and is later replaced with the embedded content if consent is given. You are not responsible for the independent controller's privacy practices, though. You are not the data controller for the services' logfiles.</p>


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<p>If they are your data processors, then things are very different. You are not sharing your users personal data with another service, you are processing personal data under your authority, and have merely outsourced some aspects of these activities. If a data processor maintains logfiles, these are your logfiles that they just maintain on your behalf. You would be fully responsible for them, including, if appropriate, by facilitating the exercise of data subject rights like access or erasure.</p>


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<p>Since you cannot delegate responsibility for compliance to your data processors, you should only engage data processors where you are confident that using their services allows you to be fully GDPR-compliant. Before integrating their services, you might evaluate what data will actually be processed, whether this is necessary for your purposes, how you can configure the data processing activities, and how you can fulfil data subject rights with regards to these processing activities. For example, a service provider might offer a data protection dashboard where you can export or delete user data, if that service provider wants to make it easy to use their services in a GDPR-compliant manner.</p>


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<p>Even if engaging the service as a data processor, you will need a legal basis for the actual processing activity. This might be consent (opt-in), or a different legal basis like a legitimate interest, in which case an opt-out may be required. When consent is revoked or a legitimate interest is objected to, past processing activities remain lawful. Whether past data will have to be deleted depends on context.</p>
<p>Whether or not an &quot;account&quot; was created on your backend is a red herring. If you can identify the data subject's information on the backend, they can exercise their data subject rights. This is possible without an account e.g. if pseudonymous client IDs are used. However, you are not required to keep identifying data just for GDPR purposes (see Art 11). If it is not possible for you to locate the data subject's records, then the data subject rights like access and erasure don't apply.</p>


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<p>Personal tip for Google services: Google offers a wide variety of services under very different terms. You will have to investigate those services on a case by case basis. For some such as Maps, Google will be the data controller. For other such as Crashlytics, Google will act as a processor. But as of 2023, Google does not guarantee for most of its services that personal data will only be processed in the EU or in countries with an adequate level of data protection. This can make it extremely tricky (or outright impossible) to use their services in a GDPR-compliant manner. Sometimes the use of such possibly-noncompliant services can still be a valid business decision, but the safer approach would be to avoid Google services whenever possible. Crashlytics is closely related to the Analytics product, for which some European data protection authorities have explicitly stated that it cannot be used in a compliant manner.</p>


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Question Body: <p>I once had a talk with a teacher in which I mentioned to her that when I used to teach 9 year olds music theory I would hold their hands while we drew treble and bass clefs together.</p>
<p>Then slowly I would wean them off my assistance until they could write the clefs themselves. I never thought much of this because I had a 100% distinction record all the way through the decade I taught, so I assumed my methods were validated by the extended spell of high achievements as made clear by multiple music examination boards, both local and international, on my candidates' certificates. I only ever asked to have the quality of my instruction be judged by my results.</p>


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<p>She then told me that this would be unacceptable in the UK. That there have been developed whole methods of piano instruction that teach teachers how to teach the piano without any touch. That the associate board of the royal schools of music holds seminars in the UK to better equip music teachers in teaching like this. You would also find multiple articles in their quarterly newsletter about the subject.</p>
<p>I then asked her if it would surprise the English that if I were to touch a child to help him to learn the specific notation of a treble clef that my motivation for doing so is not to abuse the child, but in fact only to teach the child the subject matter that his or her parents employ me to do.</p>
<p>To which she sarcastically replied it would surprise every member of parliament in the UK who could not teach an apple how to fall off a tree but make the policies that govern the teaching profession.</p>


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<p>So that made me wonder if this is true, what would happen if a primary school child arose from his desk a little too vigorously and fell and started crying. I'm assuming there is no way to console a crying child without touching him, so I guess the teacher's only recourse would be to call the nurse and get her to remove the crying child. I now better understand why the UK government has to import teachers.</p>
<p>So in closing what exactly is the policy regarding this?</p>


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Answer 1: <p>There is no nationwide prohibition on physical contact between teachers and children. But there are positive duties for child safeguarding which might result in a local policy that is more restrictive. The exact legal background is different depending on whether this is happening in England, Scotland, etc., or on whether it's a state or private school, but the net result is the same. For music tuition which takes place outside school, bodies such as the Independent Society of Musicians (the UK's main professional association for musicians and music teachers) will have their own policies for members.</p>


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<p>For example, for state schools in England, the governors must &quot;make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school&quot; (Education Act 2002 s.175(2)). This is a bit of a mouthful, but the rough idea is that the school has to implement certain policies in the interests of the child, including protecting them from sexual abuse and grooming. The school has to take account of <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101454/Keeping_children_safe_in_education_2022.pdf" rel="noreferrer">statutory guidance from the Department for Education</a>. In addition, there are <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101454/Keeping_children_safe_in_education_2022.pdf" rel="noreferrer">standards for teachers' conduct</a>


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rel="noreferrer">standards for teachers' conduct</a> which are used to assess their performance, and include language around safeguarding duties as well as &quot;proper and professional regard for the ethos, policies and practices of the school in which they teach&quot;.</p>


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<p>Now, there is nothing here to say that a teacher can never make physical contact with a pupil. There <em>are</em> rules about how allegations of abuse are meant to be handled, as well as the general employment law around unfair dismissal, which would mean that accidentally touching a child ought not to result in immediate sacking. A particular school could decide that on balance, the appropriate policy is one of no physical contact at all, or they could be more nuanced (which is likely). Whatever policy they do have must be communicated to the teaching staff, who naturally are meant to follow it - although again, there are requirements of fairness on the employer as to how they handle noncompliance.</p>


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<p>Given that overall framework, scenarios of accidental touching, or administering first aid, or breaking up a dangerous situation, are different from physical contact as part of normal instruction. Even a local policy which ostensibly says &quot;no touching ever&quot; would have to give way to the <a href="https://www.legislation.gov.uk/ukpga/2006/40/section/93" rel="noreferrer">Education and Inspections Act 2006, s.93</a> which specifically authorises our hypothetical teacher at an English state school to use reasonable force to stop a pupil injuring someone else, among other examples. That is also in line with the teachers' duty of care towards the wellbeing of their pupils. These examples are not really the same as what is happening in an ordinary music lesson.</p>


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<p>Meanwhile, outside the school gates, the <a href="https://www.ism.org/advice/ism-members-code-of-conduct" rel="noreferrer">Independent Society of Musicans has its own Code of Conduct</a> which includes specific rules about touching in Annex 2, paragraph 20.</p>
<blockquote>


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<blockquote>
<p>Physical contact between teachers and pupils is only appropriate in very limited circumstances. Teachers should consider using other strategies such as demonstrating for the student to copy or using a mirror. If a teacher intends to use any physical contact in their teaching, they should state this in writing before lessons begin and ask the parent or guardian to sign that they have read the document. Explain the type of touch involved, where on the body and why, and make sure the pupil is aware of the reason for physical contact. Explain this orally to parents, guardians and pupils, and keep them informed of any need to modify the type of touch required as pupils progress. It is not advisable to touch a child on the trunk of the body unless there is a justifiable reason (e.g. to administer first aid). It is not appropriate to touch a child around the chest, waist, diaphragm or ribs in order to teach breathing.</p>
</blockquote>


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</blockquote>
<p>These rules are also made in the context of safeguarding, with the threat of terminating ISM membership (at least in principle). Note that this does not say that touch is disallowed, but does ask it to be limited and respectful, and clearly signalled to the child and their parents or guardians. Other professional societies may well have their own rules.</p>
<p>All of this is happening at the level of law and policy, and so it's a little removed from the highly emotive <em>social</em> question of what sorts of behaviour are considered acceptable. Someone who teaches music in the UK would be exposed to a range of strongly-held views on the topic, which don't necessarily relate very clearly to the legal minimum requirements.</p>


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Question Title: If you let a thief into the building, are you liable?

Question Body: <p>In a building with gated entry, if a resident lets a stranger into the building, and he turns out to be a thief, would the resident who let him in be liable for the damages?</p>


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Answer 1: <p>The primary legal question is whether the resident (tenant) has breached a duty of care. There are all sorts of laws establishing duties of care, such as between doctor and patient, which may be created by a legislature or may be part of common law tradition. There is a duty of care imposed on a landlord w.r.t. the tenant, requiring that the premise be &quot;secure&quot;, therefore a landlord might easily be held liable if the main door into the building was not locked. This duty is a specific instance of a general duty from tradesman/businessman to customer.</p>


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<p>As far as I can determine, there is no such statutory duty imposed on tenants in Washington state, and none from case law being revealed by a few cursory searches. In order to be subsumed under general &quot;everybody has a duty to everybody else&quot; law, the damage would have to be foreseeable. It is said that &quot;If something is foreseeable, it is a probable and predictable consequence of the defendant’s negligent actions or inaction&quot;. This mean that a reasonable person would have known that, under the circumstances, the damage is likely to result. Circumstances vary quite a bit, and there is no general rule about holding the door open for another person. If there is abundant signage reminding tenants to never ever let in a stranger no matter that their excuse and/or if the premise is in a crime war-zone, the outcome is more likely to be considered to be foreseeable.</p>


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Question Body: <p>Day 1: I live in MA, USA. Last month I booked my first car from a local, small dealer by paying $300 deposit and signed the contract agreement. I also notified him that I'm going to take loan so I won't be able to give him check immediately. (His behavior was little bit rude and kind of money-oriented.)</p>
<p>Day 3: Dealer gave me a call saying it's ready for pickup. I told him that loan got approved which it did happen at that point and I asked for his help to get insurance suggestion. He asked me to come with check and then he'd help me, instead of helping on the phone.</p>
<p>Day 8: Bank account and loan paperwork was ready expect I needed his details to put on bank's check for the loan. He avoided all my bunch of calls.</p>
<p>Day 10: I called him again, he picked up and said he can't wait for a month. It is written in contract that after he notifies me, I have to give him full amount within 48 hours.</p>
<p>Contract agreement reads as follows:</p>
<blockquote>


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<p>Contract agreement reads as follows:</p>
<blockquote>
<p>In the event I fail to take delivery of the vehicle purchased by me within forty-eight (48) hours after I have been notified by you that it is ready for delivery and pay the total contract price in the manner indicated, my deposit in the amount of $300 may, at your option, be retained by you to compensate you in whole or in part for any loss sustained by you. Your right to retain my deposit shall be in addition to and not instead of any other right or remedy provided by applicable law including, without limiting the generality of the foregoing, the sale of the car or truck I agree to purchase. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me.</p>
</blockquote>
<hr />
<p>I know that he's right according to the contract, but he never notified me before selling to other person.</p>


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</blockquote>
<hr />
<p>I know that he's right according to the contract, but he never notified me before selling to other person.</p>
<p>This is legit scamming people because for someone taking loan, it is almost impossible to give him check within 48 hours.</p>
<p>How can I get my money back? Please help thanks in advance.</p>


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Answer 1: <h2>It's right in the contract</h2>
<blockquote>
<p>In the event <strong>I fail to take delivery of the vehicle</strong> purchased by me <strong>within forty-eight (48) hours after I have been notified</strong> by you that it is ready for delivery <strong>and pay the total contract price in the manner indicated</strong>, <strong>my deposit</strong> in the amount of $300 <strong>may</strong>, at your option, <strong>be retained by you to compensate you in whole or in part for any loss sustained by you</strong>. Your <strong>right to retain my deposit shall be in addition to</strong> and not instead of any other right or remedy provided by applicable law <strong>including</strong>, without limiting the generality of the foregoing, <strong>the sale of the car or truck I agree to purchase</strong>. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me.</p>
</blockquote>


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</blockquote>
<p>The car was ready on day 3. As a result, the Customer was obligated to pay and take delivery of the vehicle until day 5.</p>
<p>Because the customer did not follow through with the purchase, the deposit is used to compensate the salesman in the amount that covers the costs of preparing the sale and having the car on the lot for those days that the salesman could not sell it to someone else.</p>
<p>At the end of day 5, the contractual obligation to hold the car for the customers in exchange for the deposit ended, and the other clauses of the contract (car for rest of payment) become void. The car salesman is in his right to sell the car because the actual sales contract has fallen through and the holding fee/deposit expired, as the very quoted paragraph shows.</p>


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<p>Based on the final sentence of the quoted portion of the contract, to get a part of the deposit back, one would need to establish that the losses are less than the contractually fixed amount of 300 USD. When I had my car at the workshop and could not get it back on the day it was done with repairs, I was also informed that holding my car for more than a day would incur storage fees of up to 15 € per day. Similarly, the last time I bought a car, I was told that the sale included a fresh inspection and oil. Those are costs to the seller and can be accounted for in the deposit. The inspection costs about ~120 € for a new TÜV certificate and exhaust check and the materials for an oil change come for about 70 €. This leaves about 70 € cover for the mechanic and salesman's wages for about one hour. That's 300 €, or about 330 USD today. As such, costs to prepare a contract and transfer, inspect the car for roadworthiness as well as storage fees most likely are reasonably assessed to be in


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hour. That's 300 €, or about 330 USD today. As such, costs to prepare a contract and transfer, inspect the car for roadworthiness as well as storage fees most likely are reasonably assessed to be in the 300 USD area.</p>


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Question Title: in India is there a code that defines civil offences the same way as there is indian penal code?

Question Body: <p>There is 3 main laws regarding offences , Indian penal code , Code of Criminal procedure and Code of Civil procedure. the third law only describes civil procedure but doesn't define what laws count as civil laws , is there a code which deals with what laws are civil ?</p>


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Answer 1: <p>India does not have a comprehensive civil code, although though the Indian constitution allows the government to enact one.</p>
<p>This is a product of two things.</p>
<p>First, India's law are in the common law tradition, so most law that would be discussed in a European or Asian or Latin American civil code would be found in case law precedents rather than a legislatively adopted statute.</p>
<p>Second, India has intentionally not sought uniformity in its laws of family law and inheritance, in which India instead has different laws for these areas depending upon the religion of the people involved. So, these parts of the civil law are codified, but only on a religion by religion basis. The concept of authorizing a uniform civil code was intended to permit the government to abolish these religious distinctions on matters of family law and inheritance, but this authority has not been utilized thus far.</p>


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Answer 2: <p>The Civil Procedure Code, 1908 does have a definition of what constitutes as &quot;civil law&quot; although it is in the form of precedent applicable to Section 9.</p>
<h2>Section 9</h2>
<p>The jurisprudence under <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00051_190805_1523340333624&amp;sectionId=33342&amp;sectionno=9&amp;orderno=9" rel="nofollow noreferrer">Section 9 of the CPC</a> has helpful interpretations of the phrase &quot;all suits of a civil nature&quot; contained in Section 9, and judges often go into applying a definition of civil law, for instance, :-</p>
<ul>
<li><a href="https://indiankanoon.org/doc/634316/" rel="nofollow noreferrer">Most. Rev. P.M.A. Metropolitan and others, etc v. Moran Mar Marthoma and another etc.</a> - in paragraph 28, adopts the definition given by Black's Law Dictionary to the words &quot;civil&quot;, &quot;proceeding&quot; while stating <strong>civil law to simply be the antonym of criminal law.</strong></li>


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<li><a href="https://indiankanoon.org/doc/1350866/" rel="nofollow noreferrer">Sri Keshav Gupta Chhajju Singh vs Ghayur Ali Khan</a> - In this case, the word civil proceeding was stated to imply it's ordinary meaning, whereas the <strong>dictionary definition of civil law</strong> was adopted as follows:- <em>The word &quot;civil,&quot; when used as an adjective to &quot;law&quot;, has been defined in the Shorter Oxford Dictionary as &quot;pertaining to the private rights and remedies of a citizen as distinguished from criminal, political etc.&quot;</em></li>


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<li><a href="https://indiankanoon.org/doc/72503/" rel="nofollow noreferrer">State Of Uttar Pradesh And Ors. vs Mukhtar Singh And Ors.</a> - Where a judge expands on the definition of civil laws for the purposes of the section, stating the <strong>explanation by the jurist, John Austin</strong> - &quot;<em>By civil laws (says he), I understand the laws that men are therefore bound to observe, because they are members, not of this or that commonwealth in particular, but of a commonwealth. For the knowledge of particular laws belonged to them that profess the study of the laws of their several countries : but the knowledge of civil laws in general, to any man.</em>&quot;</li>
</ul>


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</ul>
<p>Thus, one can deduce that Indian courts while applying Section 9 have defined civil law to be in opposition to other branches of law, while there may be some commonalities in the proceedings in case of special enactments governing quasi-criminal matters as well as in writs such as quo warranto. Additionally, civil proceedings administer civil law that regulates the relationship between private right exercising individuals.</p>
<h2>“Civil Rights” as Private Rights for the purposes of Section 9</h2>
<p>Since <a href="https://indiankanoon.org/doc/614594/" rel="nofollow noreferrer">courts have viewed</a> Section 9's definition of civil proceedings to that which claims action against <strong>breach of a civil right</strong>, it is necessary to understand what is a civil right.</p>


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<p>What the Indian courts calls “civil rights” are private rights in modern jurisprudence. Private rights under Indian law are those which are granted by common law or statutory law and governs the rights of persons in their private matters. <a href="https://www.britannica.com/topic/common-law" rel="nofollow noreferrer">The system of common law refers to that which is evolved from caselaw.</a> This is the fundamental basis of the rights granted by the judicial system, say, in cases where there are tortious claims. Further, <a href="https://www.legalserviceindia.com/legal/article-5651-ubi-jus-ibi-remedium.html" rel="nofollow noreferrer">the maxim <em>Ubi jus ibi remedium</em> is instructive here.</a></p>
<p>Statutory laws also provide for civil rights, and may, optionally expressly bar the jurisdiction of the civil court under Section 9 of the CPC before whom every civil proceeding shall ordinarily lie.</p>
<hr />


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<hr />
<p><strong>TL;DR</strong> Hence, Indian courts consider civil law to be that which is :-</p>
<ol>
<li>Not criminal or constitutional (although some writs are also the subject of civil proceedings);</li>
<li>Governs the relationship between private persons;</li>
<li>Grants a remedy against breach of a civil right.</li>
</ol>


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Question Title: What legal recourse do we have against Clearview AI&#39;s collection of our personal data and terrifying privacy policy?


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Question Body: <p><strong>TL;DR:</strong> how do we get the data this company collected on us without also giving them our government-issued IDs that they could potentially keep and tie to our &quot;profiles&quot;?</p>
<hr />


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<hr />
<p>A week ago (January 25th), the <a href="https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html" rel="nofollow noreferrer">New York Times reported</a> that <a href="https://clearview.ai/" rel="nofollow noreferrer">Clearview AI</a>, a neural-network-based facial recognition software, has collected and stored over 3 billion names, photos and addresses. The company's software is marketed to law enforcement officials, but the database is filled with publicly-available data scraped from sites like Facebook, Twitter, etc. Concerns are growing that the database could infringe upon personal freedoms, specifically the right to privacy when used in conjunction with state-of-the-art mathematical facial recognition algorithms recently published. I agree with those sentiments, this technology is dangerous.</p>


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<p>Now <a href="https://www.forbes.com/sites/kateoflahertyuk/2020/01/26/clearview-ais-database-has-amassed-3-billion-photos-this-is-how-if-you-want-yours-deleted-you-have-to-opt-out/#2ed64f1a60aa" rel="nofollow noreferrer">Forbes has reported</a> on it as well and affirmed those beliefs, highlighting the Clearview AI privacy policy's horrible stipulation for <em>obtaining <strong>your own personal data</strong> that they have collected</em>:</p>
<blockquote>
<p><strong>Contact information</strong></p>
<p>If you would like to ask a question about our privacy policy or exercise your data privacy rights please contact us at: privacy-requests@clearview.ai. This address will connect you to our Data Protection Officer. <em><strong>Please submit name, a headshot and a photo of a government-issued ID to facilitate the processing of your request</strong></em>. Privacy requests can also be submitted via (phone or mail).</p>
<p>...</p>


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<p>...</p>
<p>Requests to exercise data protection rights can be submitted here to privacy-requests@clearview.ai. (see below for further instructions)</p>
<p><strong>These rights are subject to limitations that vary by jurisdiction. We will honor such requests, withdrawal or objection as required under applicable data protection rules but these rights are not absolute: they do not always apply and exemptions may be engaged. Clearview does require that persons requesting the sharing or deletion of their personal data provide us with information to verify their identity and to facilitate the processing of data requests. While most of this information is deleted after the completion of the request, Clearview is required to retain some of this information to maintain a record of data rights requests</strong>. If we do not comply with your request, we will explain why.</p>
<p><strong>Updates to this Policy</strong></p>


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<p><strong>Updates to this Policy</strong></p>
<p>Clearview AI regularly reviews our privacy policy and places any updates on this web page. This policy was last updated on <strong>January 23, 2020</strong>.</p>
<p>*<a href="https://staticfiles.clearview.ai/privacy_policy.html" rel="nofollow noreferrer">Clearview AI privacy policy</a></p>
</blockquote>
<p>The language of this policy, combined with the fact that it was updated <em>while the news is breaking about growing concerns about its potential impacts on privacy</em> makes me <strong>very</strong> concerned.</p>
<p>This company, not unlike others in modern history, has scraped or purchased billions of data points containing personally-identifying information (names, photos, addresses, etc.) of American (and likely many other countries') citizens. In order to know what they've collected on us, we have to give them <strong>a government-issued ID</strong>??</p>


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<p><strong>How can I (<em>we</em>) get what data this company has on us without further violating our own personal right to privacy?</strong></p>
<p><em>Side note/bonus question</em>: is this kind of software not a direct violation of our Fifth Amendment rights to privacy of personal information?</p>


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Answer 1: <p><strong>Breach of GDPR</strong></p>
<p>France, Italy and Greece fined Clearview AI 20 million Euros for the following breaches:</p>
<ul>
<li>Unlawful processing of personal data (breach of Article 6 of the GDPR)</li>
<li>Individuals’ rights not respected (Articles 12, 15 and 17 of the GDPR)</li>
<li>Lack of cooperation with the CNIL (Article 31 of the RGPD)</li>
</ul>
<p><a href="https://techcrunch.com/2022/10/20/clearview-ai-fined-in-france/" rel="nofollow noreferrer">https://techcrunch.com/2022/10/20/clearview-ai-fined-in-france/</a>
<a href="https://techcrunch.com/2022/03/09/clearview-italy-gdpr/" rel="nofollow noreferrer">https://techcrunch.com/2022/03/09/clearview-italy-gdpr/</a>
<a href="https://techcrunch.com/2022/07/13/clearview-greek-ban-order/" rel="nofollow noreferrer">https://techcrunch.com/2022/07/13/clearview-greek-ban-order/</a></p>


Answer 2: <p>You appear to be outraged and offended at the <em>terribly dangerous technology</em> in use,</p>


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Answer 2: <p>You appear to be outraged and offended at the <em>terribly dangerous technology</em> in use,</p>

<blockquote>
  <p>but the database is filled with publicly-available data scraped from
  sites like Facebook, Twitter, etc.</p>
</blockquote>

<p>Publicly available data. You - and all of those other billion users - agreed to allow those platforms to publicly share your data with other platforms or scrapers when you opened an account.</p>

<p>Read the TOSs of Facebook, Twitter, etc. When users of those platforms signup, they agree to allow the platforms to share their data with other platforms. That agreement may be in small print, but it is still there, and it is legally binding. You have no legal recourse against them, except to delete your account. (And TOSs can change, without informing you; read that part, too).</p>


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<p>Unless you can show that Clearview broke Facebook Twitter's, or those companies broke their own TOS by allowing Clearview to scrape data, there's nothing to say. Unless you can show that Clearview broke the law or a TOS, you have no legal recourse against Clearview. </p>

<p>If a company did break a TOS, that's more than likely civil law, not criminal.</p>

<p>In any event, Clearview is a different company; you have to abide by Clearview's process to ask them to remove your data. They are not bound by the TOS of another company. They are bound by law, but until the law tries to catch up with technology and privacy (i.e., GDPR), they are free to operate.</p>

<p>If you value your privacy, read the TOS before you sign up with any service, even a library card or driver's license in your own town.</p>


Answer 3: <h2>You can't</h2>


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<p>If you value your privacy, read the TOS before you sign up with any service, even a library card or driver's license in your own town.</p>


Answer 3: <h2>You can't</h2>

<p>There is a practical dimension here - if you don't tell them who you are, how can they identify (and delete) PII that belongs to you? "Please delete all my data" is a request that is impossible to comply with if they don't know who "me" is.</p>

<p>As for identification, the right to have the data deleted (where you have such a right which is by no means universal) requires you to reasonably prove that you are you. Otherwise, you could request the deletion of my data and only I can do that.</p>


Tags: privacy, human-rights, fifth-amendment, security, data


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Question Title: Are unmatched asterisks allowed in ads?

Question Body: <p>I received a flyer which advertises a &quot;free&quot; service trial. The word &quot;free&quot; appears three times overall and each time it has an asterisk, but neither on the front nor on the back is there an explanation for what the asterisk means. Until now I have never encountered this situation so I wonder if this is legal.</p>
<p>I live in Switzerland, but it would be interesting to hear about other countries as well.</p>


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Answer 1: <p>By not providing any material to support the asterisk, the firm placing the ad lost an intended opportunity to clarify what they meant by the word &quot;free&quot; and are now left in the same position as if the asterisk had never appeared at all.</p>
<p>Realistically, somebody connected with the firm publishing the advertisement probably planned to clarify the meaning of the word &quot;free&quot; to give it a more narrow meaning than its undefined meaning without any qualifications. But apparently, somebody failed to get around to doing that or it was lost in a typesetting error. So, any restriction on the meaning of the word &quot;free&quot; that was intended by the firm has been lost, potentially causing the offer to be abused in ways that the firm hadn't bargained to commit itself to.</p>


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<p>It pays to proofread anything that will be distributed to the general public because it can weaken the publisher legally by not saying something it should or by saying something inaccurate, and also because it makes the publishing firm look incompetent.</p>
<p>UPDATE FROM COMMENTS:</p>
<blockquote>
<p>By the way, the flyer came with a gift card sticked onto it. The
matching asterisk is explained on the back of the gift card, which was
not visible while it was sticked onto the flyer. The matching asterisk
reads &quot;with an order value of at least 10.-, only redeemable online&quot;.
Do you think this is still acceptable?</p>
</blockquote>
<p>This is probably still effective to limit the offer. While it isn't readily visible, it is visible before you actually try to use the offer.</p>


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Question Body: <p>There are (at least) two problems possibly stemming from a person testifying in court:</p>
<ul>
<li><p>If they tell the truth, the testimony may have negative consequences they potentially don't like (which is the whole point of 5th Amendment, when the testimony is by the accused or in general detrimental to person testifying).</p>
</li>
<li><p>If they lie, they can be convicted of perjury, which is a nice fallback when you don't care about actual crime but about getting the person damaged at least somehow - US history and especially politics is littered by people who were gotcha-ed by perjury charges and not main charges.</p>
</li>
</ul>


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</li>
</ul>
<p>If that is the case, then <strong>what prevents such a person from simply saying &quot;I do not remember&quot; when testifying</strong>? You can't prove a negative, so they can't be convicted of perjury for lying about whether they remember; they didn't testify about any fact so they can't perjure themselves; and they didn't help the prosecution (or defense) by truth.</p>


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Answer 1: <blockquote>
<p>You can't prove a negative, so they can't be convicted of perjury for lying about whether they remember;</p>
</blockquote>
<p>Yes, they can.  The government can convict the witness of perjury by proving that they <em>did</em> remember.  This may be difficult, but it's not impossible.</p>
<p>Now you may say that we can't ever prove with certainty what a person did or didn't remember.  But the legal standard isn't <em>certainty</em>, it's <em>beyond a reasonable doubt</em>.  So a jury is allowed to draw a <a href="https://www.law.cornell.edu/wex/inference" rel="noreferrer">reasonable inference</a> about whether they remembered, based on evidence of their outward behavior and other circumstances.</p>


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<p>As an extreme example, suppose Alice was overheard chatting freely about topic X an hour before the trial, but when asked about topic X on the stand, said she didn't remember.  When presented with evidence of her earlier conversation, a jury could reasonably infer that she was lying about not remembering.  Is it <em>possible</em> that she truly had a memory lapse in the intervening hour?  Sure, anything is possible.  Is it <em>reasonable</em> to believe that she did?  Probably not.</p>
<p>The <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-1753-perjury-cases-special-problems-and-defenses-evasive-and" rel="noreferrer">US Department of Justice's Criminal Resource Manual</a> has this to say on the subject:</p>
<blockquote>


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<blockquote>
<p>Witnesses who claim not to remember, rather than deny a fact, may be prosecuted for perjury. However, the government must prove both that the witness at one time knew the fact and that the witness must have remembered it at the time he or she testified. United States v. Chen, 933 F.2d 793, 795 (9th Cir. 1991). If the dates of the transaction and testimony are sufficiently close, memory may be inferred. Instances in which the witness remembered other events that occurred at the same time or earlier than the event in question, or mentioned the event either immediately before or after his testimony, would be probative of the witness's memory at the time of the testimony. The two witness rule does not apply to prosecutions based on false memory lapses, and circumstantial evidence is sufficient, since there is no direct evidence possible concerning what the defendant actually believed. Gebhard v. United States, 422 F.2d 281, 287 (9th Cir. 1970).</p>
</blockquote>


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</blockquote>
<p>There's a similar issue in all laws that deal with a person's knowledge or intent.  Suppose Alice hits Bob with a stick and he dies.  To convict Alice of murder, it must be proved that by hitting Bob, she intended to kill him.  Can we ever really know what was in her heart?  Maybe not, but if there is evidence that shortly beforehand, she told someone that she was going to kill Bob, it would be a reasonable inference that this was her intention.</p>


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Answer 2: <p>Anything you say in a court of law can be used against you in a court of law, unless the testimony is given under a grant of immunity. You would need to provide a transcript of the hypothetical testimony to get the understanding that you're looking for, but it is easy for a person to contradict themselves, claiming that you saw Jones on some date, and that you can't remember if you have ever seen Jones. Your &quot;can't remember Jones&quot; testimony can be refuted with physical evidence such as emails, journal entries, photographs or testimony such as a person testifying that they saw you talking to Jones in a manner that clearly indicates that you knew who he was.</p>


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<p>You might avail yourself of the brain-surgery defense, to the effect that you may have done so but in the interim you had brain surgery and you can't remember anything from that month, but the jury will not believe that unless you provide convincing positive evidence that you had such surgery and that there is sufficient medical reason to believe that lack of recollection is possible.</p>
<p>Although this is not ideally how it is supposed to play out, if the prosecution offers some reason to think that you lied on the stand, you have to offer a reason to doubt the prosecution's position. In some jurisdictions, the finders of fact are told that they should be &quot;firmly convinced&quot; of the prosecution's claim, but there is a real tendency for juries to understand &quot;reasonable doubt&quot; as referring to &quot;a reason to doubt&quot;. That is how you &quot;prove a negative&quot;, by offering evidence that contradicts the claim.</p>


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Answer 3: <p>Nothing stops a person from saying just that. Ronald Reagan famously did so when subpoenaed during Iran-Contra.</p>
<p><a href="https://www.chicagotribune.com/news/ct-xpm-1990-02-23-9001160156-story.html" rel="nofollow noreferrer">https://www.chicagotribune.com/news/ct-xpm-1990-02-23-9001160156-story.html</a></p>
<p>It was widely regarded as a dodge at the time. On the other hand he was diagnosed with Alzheimer's a few years later. (But on the gripping hand, his doctors say he didn't start showing signs of that until 1993. <a href="https://www.baltimoresun.com/news/bs-xpm-1997-10-05-1997278112-story.html" rel="nofollow noreferrer">https://www.baltimoresun.com/news/bs-xpm-1997-10-05-1997278112-story.html</a> So maybe it was a dodge.)</p>
<p>Other answers here have give reasons that doesn't always work. But this famous precedent seems relevant.</p>


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Answer 4: <p>What stops them from claiming they don't remember?  Not much can stop them from doing it.  But there can be repercussions.  Another poster rightfully pointed out that someone CAN be convicted of perjury for claiming they couldn't remember something.  And even if the witness is never charged and prosecuted for perjury, the judge or jury is entitled to take everything the witness says (including claims that they can't remember something) into account when deciding whether they believe what the witness is saying.  If the facts and circumstances lead a judge or jury to doubt that the witness is telling the truth about being unable to remember, they might give the testimony of this witness (including unrelated things testified to by the witness) less weight because they doubt the witness's credibility.  And if the witness tries to later claim that they now remember the information they previously claimed to be unable to remember, that can similarly impact their


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they doubt the witness's credibility.  And if the witness tries to later claim that they now remember the information they previously claimed to be unable to remember, that can similarly impact their credibility.</p>


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Question Title: What does Florida state law say regarding probate in real estate transactions?

Question Body: <p>Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing?</p>


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Answer 1: <blockquote>
<p>Does Florida state law require that an estate go into probate in the
event the seller in a real estate transaction passes away prior to
closing?</p>
</blockquote>
<p>Yes, if the seller is the owner of the property which is not in joint tenancy with right of survivorship or something similar (such as a transfer on death deed).</p>
<p>A will is meaningless until it has been admitted to probate (which is a term that in the narrow sense means &quot;validating the authenticity and validity of a will). Likewise, an adjudication that someone had no will cannot be made without a probate proceeding. There is no exception for a clear an uncontested will. &quot;Will&quot; means &quot;probate&quot; pretty much by definition.</p>


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<p>This doesn't mean, however, that the closing of the property has to waive until the probate proceeding including a full administration of the probate estate and closing of the probate estate is required. Often, a will can be admitted to probate and an executor can be appointed to manage the estate in a matter of a few weeks to a few months if there is no contest to either the validity of the will or the appointment of a particular person as an executor.</p>


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<p>Generally, once the executor is appointed in the probate case, the real estate closing can go forward, sometimes with some additional uncontested motion practice. Once the property is sold, the proceeds are put in an estate bank account pending further administration of the estate's assets and liabilities. Indeed, even if the will is contested, as long as a consensus can be reached among the interested parties regarding who the executor should be, the real estate closing could go forward despite the fact that the will is contested.</p>
<p>Powers of attorney are sometimes granted to real estate agents to complete a transaction in the event of a seller's incapacity. But powers of attorney are void no later than the point at which the person with the power of attorney learns of the death. (The common law rule was that a power of attorney was void at the moment of death, even if no one involved in the transaction knew that fact yet.)</p>


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<p>The only person with authority to sign the deed to sell the property, if the property is titled in the name of the seller individually, with no co-owner (or with a tenant-in-common co-owner), is the probate estate's executor.</p>
<p>The real estate contract is a claim in the probate estate, which the probate estate is required to carry out if it is able to do so. But a real estate contract, in and of itself, doesn't transfer the property by operation of law at closing. Until the probate estate is opened, the buyer doesn't even have anyone who can be sued to demand that the real estate contract be performed.</p>


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Question Title: Are times zones, (i.e. a geo-spatial frame of reference) considered in age based regulations?


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Question Body: <p>Bob was born in British Columbia (GMT-7) on March 7th at 11 p.m. local time. Alice was born the next day, March 8th, in Nova Scotia (GMT-3) at 1 a.m. local time, which is 2 hours before Bob was born, due to the time zone difference.</p>
<p>Bob and Alice are in Vancouver (GMT-7). It is Bob's 19th birthday. Bob is of legal drinking age according to Canadian law and the birthdate listed on his driver's license, Alice is not.  They both have a glass of wine with dinner.</p>
<p>The legality of drinking is based on age, so could Alice be arrested for underage drinking based on the birth date listed in her driver's license even though she is technically &quot;older&quot; than Bob based on a geo-spatial frame of reference?  Or would the law consider her to be of legal age based on the time zone of her birth, and the exact time of day she drew her first breath when compared to local time?</p>


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Answer 1: <p><a href="/questions/tagged/british-columbia" class="post-tag" title="show questions tagged &#39;british-columbia&#39;" aria-label="show questions tagged &#39;british-columbia&#39;" rel="tag" aria-labelledby="tag-british-columbia-tooltip-container">british-columbia</a></p>
<p>I am not aware of any judicial consideration of this issue.</p>
<p>The <em>Liquor Control and Licensing Act</em>, <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/15019#section78" rel="noreferrer">s. 78(1)</a> says:</p>
<blockquote>
<p>A minor must not, except as provided under this Act or unless the minor does so with other lawful excuse, ... consume liquor.</p>
</blockquote>
<p>(One of those exceptions are when the alcohol is supplied by the minor's parents, spouse or guardian in a residence for consumption in the residence. There are other exceptions, too. But I'll assume you're asking about a circumstance where no exception applies.)</p>


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<p>The <em>Liquor Control and Licensing Act</em> defines a &quot;minor&quot; to be a person under the age of majority established by the <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96007_01" rel="noreferrer"><em>Age of Majority Act</em></a>, which is age 19 today.</p>
<p>The <em>Liquor Control and Licensing Act</em>, <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/15019#section57" rel="noreferrer">s. 57</a> makes it an offence to contravene s. 78(1).</p>


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<p>The <em>Interpretation Act</em>, <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96238_01#section25.1" rel="noreferrer">s. 25.1</a> states that &quot;A person reaches a particular age expressed in years at the beginning of the relevant anniversary of the person's birth date.&quot; The <em>Interpretation Act</em> also clarifies that the reference to time &quot;is a reference to Pacific Standard Time&quot; (or Pacific Daylight Saving Time, when it is in effect).</p>
<p>Thus, a person is a minor until &quot;the beginning [in Pacific time] of the relevant anniversary of the person's birth date.&quot;</p>
<p>It is most clear in relation to the identification requirements when selling to a minor, but the Regulations (<a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/241_2016#section158" rel="noreferrer">s. 158</a>) refer to the date of birth as displayed on the person's identification card.</p>


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<p>This all suggests that when consuming alcohol in the greater Vancouver area, a person just about to reach the age of majority must wait until the date in the Pacific time zone is that which is displayed on their identification. Or barring any identification, until the date in the Pacific time zone is the date that is the person's birth date.</p>


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Answer 2: <p>I think the key point here is to understand that an &quot;age&quot; is not an attribute of an individual, but a status which an individual enjoys within a particular legal jurisdiction.</p>
<p>The &quot;birth date&quot; of an individual is the calendar date on which they were born (without any importance attributed to the time of birth on that date).</p>
<p>If there were uncertainty in a legal context due to timezones, I expect that the default approach would be to treat the <em>local</em> date at their place of birth, as the date of birth.</p>
<p>The &quot;age&quot; (in years) of an individual is typically reckoned as how many anniversaries have passed since their <em>birth date</em>. The typical legal treatment of a Feb-29 birthday is to treat the anniversary as passing on Mar-01, in those years where the operation of the calendar means no Feb-29 occurs.</p>


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<p>A person's current age in a particular jurisdiction, would be reckoned by considering their <em>nominal</em> birth date (i.e. the date as it was at the time of their birth and in the place of their birth), and then considering how many anniversaries have passed by reference to the <em>local</em> time of the current jurisdiction.</p>
<p>The implication of this is that a person can have different ages in different legal jurisdictions around the world.</p>
<p>And for legal purposes in general, the time or exact ordering of birth is irrelevant. Two children born on the same date, even if at different times, are the same age. No further ordering of their ages is typically recognised.</p>
<p>In the case of the question, Bob is older than Alice because his date of birth is Mar-07, and Alice's date of birth is Mar-08. Alice was born <em>on a later date</em> than Bob, by reference to the local time of the jurisdiction in which they were born.</p>


