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Herten, Burstein, Sheridan, Cevasco,
Bottinelli, Litt, Toskos & Harz, LLC
REPORT FROM COUNSEL
SUMMER ISSUE 2007
WHAT HAPPENS TO YOUR E-MAIL AFTER YOU DIE?
When a young Marine died in Iraq and his parents
wanted to retrieve his e-mail as a memorial to him, they came up
against the privacy policy of the Internet service provider (ISP),
which declined to provide the information. Ultimately, a probate
court ordered that the parents be allowed to retrieve the e-mails.
When a prominent poet died without leaving the
password for his e-mail account, where he kept virtually every
significant piece of personal information, his daughter had no means
of gaining access to that information so that she could notify
others of her father's death. Citing privacy concerns, the ISP for
the account refused to divulge the information to the daughter.
These real-life stories are the leading edge of
what may become a wave of litigation concerning ownership of e-mail
information upon the death of the account holder. The competing
interests are the privacy of the account holder, coupled with the
ISP's interest in preserving that privacy, and the survivors' rights
to the property of the deceased.
Most of us think of e-mail as the modern
equivalent of a box of letters belonging to us, when, technically,
e-mail is an intangible form of property owned by the ISP.
Nonetheless, if it is possible to spot an early trend on the issue,
that tendency is to treat e-mail information as the account holder's
property upon his or her death. In most states, the issue is still
unresolved and without clear case precedents. At least one state has
passed a law directing ISPs to turn over the e-mail of a decedent to
the personal representative for the decedent's estate.
Steps to Take Now
It will be some time before legislatures and
courts catch up with the reality that millions of people use their
e-mail accounts as repositories for all sorts of information having
sentimental, historical, or economic value. In the meantime, there
is some practical advice for facilitating access to e-mail
information "left behind":
* Read your ISP's privacy policy to determine what
your survivors may have to contend with to get access to your
e-mails. The policies run the gamut from providing e-mails to next
of kin upon showing a power of attorney over the account and a death
certificate, to treating e-mail accounts as non-transferable and
with no right of survivorship.
* As strange as it may sound, consider dealing
directly with the issue in your estate planning by including e-mails
specifically in your will, especially if they have monetary value.
In connection with this, you should archive the information to your
hard drive and be sure that your survivors have any necessary
passwords. Conversely, if you want to take your e-mails with you, in
effect, stipulate in your will that no one is to have access to your
account.
* Get good legal advice, including information as
to whether there are any new laws in your state on the subject. They
could trump, or at least affect, whatever arrangements you have made
or may be considering for disposing of your e-mails after your
death.
BEWARE OF FAKE CHECKS
You have responded to a work-at-home offer in
which you will be an account manager for a foreign company,
depositing checks from its U.S. customers. It seems simple: You
deposit the checks, take your pay out of them, and send the
remainder to the foreign company. Or . . . you have reason to
believe you have won a sweepstakes or lottery prize. You receive a
check for your winnings, with instructions to cash it, then return a
portion of the money to cover taxes or other fees. Or . . . having
sold something through a newspaper ad or online, you receive a check
for much more than the purchase price. Calling it an accounting
error, the buyer apologizes for the mistake and asks that you return
the excess amount.
If these scenarios activate your fraud antennae,
there is a good reason for that. Each is a typical example of
circumstances in which people are victimized by fake checks. This is
a growing problem, perhaps because of the ways in which strangers
are brought together for transactions by new technologies and the
Internet. If there is a single best piece of advice for not becoming
a victim, it is to accept no check if it is accompanied by a request
that you return some of the money.
Of course, the sting from the scam occurs when the
victim deposits the check he receives, then withdraws funds and
sends off money or merchandise before his bank discovers that the
deposited check is fraudulent. Even when the bank is vigilant, that
discovery could take days, or even weeks. Your first reaction might
be to blame the bank, but, generally, the depositor is on the hook,
as he is considered to have taken responsibility for the funds spent
or sent before the fraud is discovered.
In addition to the big red flag in the form of
being asked to return part of the money sent by check to you, here
are some more warning signs and protective measures:
* Upon receiving a check from a stranger, explain
the situation to your bank manager and ask the manager when the
check is likely to be considered "good." Then wait until you get the
go-ahead before using the funds. If, in the meantime, the check
writer pesters you about the delay, that may just be one more sign
that you were targeted to be a fake check victim.
* Scam artists are often clever and skillful,
making it difficult to detect a false check from the check itself.
This makes it all the more important to pay attention to, and to be
guided by, suspicious circumstances. Some of these include offers
that defy common sense (if you really won a prize, wouldn't they
just deduct taxes or fees from the check for your winnings?); being
asked to send money outside of the U.S. (thus making it harder to
find the culprit and the money); and being warned not to discuss the
transaction with anyone else.
* Consider accepting payment not by personal
check, but only in the form of a money order or a cashier's check
drawn on a local bank, so that you can take it there to ensure that
it is legitimate. Another option is a money order from the U.S.
Postal Service.
* Especially when dealing with a stranger over the
Internet, try to confirm the person's name, address, home phone
number, and work number through some independent means, such as
directory assistance or an online database.
If the worst happens, and you have reason to
believe that you have been had by the writer of a fake check,
contact your bank and the local office of the FBI. Then resolve to
keep an eye out for the red flags next time.
DOES THE ADA APPLY TO WEBSITES?
Recently a federal trial court became the first
court to find that a commercial website must be accessible to the
disabled, and to blind customers in particular, because of the
prohibition against disability discrimination by places of public
accommodation contained in the Americans with Disabilities Act
(ADA). Whether the retailer would, in fact, be liable on the
particular facts of the case remained to be decided, but the court
declined to dismiss the class action complaint.
Requiring businesses to make their websites fully
accessible by the blind will likely involve adding computer code for
"alternative text" that permits screen-reading software used by
blind individuals to vocalize the text and describe the contents of
the webpage. Using this code when the site is initially designed is
less expensive than retrofitting a website later.
The retailer argued to no avail that the demands
of the ADA do not apply, because a website, since it is not really a
physical place at all, is not a "place of public accommodation"
within the meaning of the ADA. The court reasoned that the ADA
requires full and equal enjoyment of the services "of" any place of
public accommodation, not services "in" a place of public
accommodation. The ADA is not only about physical access to places.
The court found that the retailer's many
brick-and-mortar stores constituted the "places" of public
accommodation. The retailer's website serves as a "gateway" to such
stores, especially for blind customers. If the website is not fully
accessible to them, it impedes those customers from coming through
the gateway, that is, from having the "full and equal enjoyment" of
the stores' goods and services that the ADA mandates. The court drew
an analogy to a case in which a telephone screening process for
prospective contestants for a television game show violated the ADA
by discriminating against the hearing disabled, even though the
discrimination took place away from the studio where the show was
produced.
Although the decision broke new ground in ADA
jurisprudence, the court's "gateway" reasoning relied on the
connection between the business's website and its many retail
stores. The court did not have occasion to address the variation on
the same issue posed by the websites of retailers who have no
brick-and-mortar stores. Such a situation presents a closer question
as to whether the ADA applies. For a website-only business to come
within the ADA, a court would have to find that a "place of public
accommodation" does not have to include a physical place at all, but
can, instead, be the virtual world in which website transactions
occur.
WATCH YOUR LANGUAGE, DEBT COLLECTORS
In a letter to a debtor intended to prompt payment
of $250 in debts, a collection agency's choice of words entangled it
in protracted litigation under the federal Fair Debt Collection
Practices Act (FDCPA). The theme of the dunning letter was honesty,
or the lack thereof, on the debtor's part. In all capital letters,
the letter informed the debtor: "YOU ARE EITHER HONEST OR DISHONEST
YOU CANNOT BE BOTH." It proceeded to question the debtor's good
intentions in allowing the account to become past due and in
supposedly ignoring all prior requests for payment.
The debtor struck back with a lawsuit under the
FDCPA that was at first dismissed by a federal trial court, but then
reinstated when the debtor appealed. The letter violated the FDCPA
in more than one respect. A debt collector may not falsely represent
or imply, in order to "disgrace" the consumer, that the consumer
committed any crime or other misconduct. It was true that a check
written by the consumer did not clear, but there was no evidence as
to why this happened, or that the debt collector had, in fact,
previously made communications to the consumer that were ignored.
Since there could have been an innocent, or at
least honest, explanation for the unpaid bills, the letter's
comments impugning the consumer's honesty and claiming that other
collection attempts were ignored could be shown to be both false and
intended to shame the debtor into payment. This violated not only
the letter of the FDCPA, but also its underlying rationale that even
defaulting debtors deserve to be treated in a reasonable and civil
manner.
The same letter also ran afoul of the prohibition
in the FDCPA against using "unfair or unconscionable" means to
collect or to attempt to collect a debt. By way of example, the Act
lists eight forms of conduct that constitute unfair or
unconscionable means. The letter in question did not fit neatly into
any of the examples, but the debtor's claim could still proceed
because the list was not meant to be exhaustive.
It was conceivable that impugning a debtor's
honesty and good intentions could be regarded as an unfair or
unconscionable collection method. Since, by law, a court views a
claim under the FDCPA through the eyes of an unsophisticated debtor,
the plaintiff was planning to support her claims by conducting a
consumer survey to determine if such debtors would find the letter
she received to be false, misleading, unfair, or unconscionable.
The practical lesson to be derived from this case
is that debt collectors should steer away from any inclination they
may have to try to enhance the impact of collection communications
by casting aspersions on the debtor's character and intentions.
Collection letters should stick to the provable facts and should be
direct and simple. Opting for spicy language over plain vanilla only
invites legal indigestion.
ZONING LAWS AND THE EXERCISE OF RELIGION
The federal Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA) provides that the
government may not implement a land use regulation in a manner that
imposes a substantial burden on the religious exercise of a person,
including a religious assembly or institution, unless the government
demonstrates two things: that imposition of the burden on that
person, assembly, or institution is both in furtherance of a
compelling governmental interest, and is the least restrictive means
of furthering that interest.
In applying the standards of the Act, courts have
held that various activities, whether or not central to an
individual's belief system, are a "religious exercise" within the
meaning of the RLUIPA. If individuals are forced to modify the
religious exercise, courts have tended to find that the governmental
regulation has created a substantial burden within the meaning of
the Act. Nevertheless, where an individual is still left with the
ability to choose another method that will not seriously affect the
religious practice, or the action taken only tangentially impacts
the religious exercise, courts have held that there is no
substantial burden.
Compelling Interest?
In deciding whether or not to uphold the
governmental regulation, courts have analyzed the interest the
governmental unit had in creating the regulation to see if it is a
compelling one. For example, significant health and safety
considerations may be found to be compelling public interests. Even
a finding of a compelling interest does not end the analysis. The
regulation employed must be the least restrictive means to meet that
interest, as required by the Act.
The governmental entity may change its regulations
to alleviate the burden on religious exercise and thereby avoid the
prohibitory effects of the Act. For example, the government may
escape the prohibitions by retaining most of its land use policies
or practices, but adding exemptions for applications that
substantially burden the exercise of religion. In addition, the
RLUIPA will not apply in the first place if the governmental unit
acted pursuant to some authority other than a law on zoning or the
designation of landmarks.
In the Courts
A recent case demonstrates that it is not enough
to invoke the protections of the RLUIPA that a proposed land use is
connected in some way with a church or religious group. A church
brought an action under the RLUIPA challenging a municipality's
refusal to permit it to operate a day-care facility with a component
of religious instruction in a low-density residential neighborhood.
According to the federal court that decided the
case, the RLUIPA does not require the religious activity that was
substantially burdened by the land use regulation at issue to be
"fundamental" to a religion. Still, the church's claim failed
because the jury found that the church did not prove that it was
engaged in a "sincere exercise of religion" in seeking a variance to
operate the day-care center.
The church's case was hurt by its bishop's
admissions, in a letter responding to the church pastor's request
for help, that the day-care center appeared to be more of a
traditional commercial venture and less of a religious function.
UNSIGHTLY APPEARANCES
A property owner operated a business variously
described as a flea market, a second-hand store, and a repair
service for lawnmowers and tillers. After the city inspected his
property, it cited him for violating a public nuisance ordinance,
listing a variety of items ranging from baby strollers to automobile
seats. The property owner argued that the city ordinance against an
"unsightly appearance" was so hard to pin down as to be
unenforceable. The state supreme court, however, rejected his
argument.
The challenge to the ordinance rested on the
contention that the term "unsightly" is so vague that a reasonable
person could not know which conditions were prohibited and which
were not. The city's winning response to this argument was that the
court was not to look at the ordinance section on "unsightly
appearance" in a vacuum, but was required to consider it in the
context of the entire public nuisance ordinance.
The city had the power to prohibit conditions that
debase the appearance and character of its neighborhoods. An
ordinance regulating aesthetic conditions must use some general
terms because it is impossible to describe every conceivable
circumstance that the ordinance is meant to address.
Ugliness, like beauty, is in the eye of the
beholder.
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