Is money the root of all evil?

This is one of those Facebook memes that you read, smile or laugh at, click Like, and move on. It's meant to demonstrate, by referencing something in the Bible, that churches are hypocritical by for asking for money. It may reinforce what you already believe. There's a problem with it, though. The actual verse says: "For the love of money is a root of all kinds of evil. Some people, eager for money, have wandered from the faith and pierced themselves with many griefs." 1 Timothy 6:10. This is part of a larger letter from the Apostle Paul to Timothy, and here he's talking about obsession for money, not money itself. Paul is not demonizing money. This is an important distinction, and leaving these words out of the meme makes a big difference. But maybe that's the point. Whether you believe in the Bible or not is not important here. Instead, it's about the lack of nuance; the loss of understanding that comes with 140-character limits or trying to make a statement with a picture. I'd like to think that if we want to make a point, we should find a more accurate way to do it. I know, too much to ask. I can hope, right?

Law in Plain English: Elonis v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Elonis v. United States

Argument: Dec 1 2014 (Aud.)

Background: After being fired from his job, Anthony Elonis made several posts on Facebook threatening former co-workers, his wife (who had a protection from abuse order against him), and federal law enforcement officers (who had visited him earlier that day to ask about his previous posts) (click here to read some of Elonis's threats). At trial, Elonis was convicted under 18 U.S.C. § 875(c) for "transmit[ing] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injury the person of another ... " The Third Circuit affirmed, finding that Elonis's Facebook threats were not protected by the First Amendment if a reasonable person would regard the statements as threatening.

Issue: The questions before the Court are (1) whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

Holding: In an 8-1 decision, the Supreme Court ruled that the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.

Elonis Facebook Threats

This page is a supplement to my case page on Elonis v. United States. It contains an except from the Third Circuit's opinion that includes some of the threats Elonis posted on Facebook. For a summary of the case, click here.

Following the issuance of the state court Protection From Abuse order, Elonis posted several statements on Facebook expressing intent to harm his wife. On November 7 he wrote:

Did you know that it's illegal for me to say I want to kill my wife?
It's illegal.
It's indirect criminal contempt.
It's one of the only sentences that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.
I'm not actually saying it.
I'm just letting you know that it's illegal for me to say that.
It's kind of like a public service.
I'm letting you know so that you don't accidently go out and say something like that
Um, what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife.
That's illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that's its own sentence.
It's an incomplete sentence but it may have nothing to do with the sentence before that. So that's perfectly fine. Perfectly legal.
I also found out that it's incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal.
Yet even more illegal to show an illustrated diagram.
Exhibit
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle of the night and they will lock me up.
Extremely against the law.
Uh, one thing that is technically legal to say is that we have a group that meets Fridays at my parent's house and the password is sic simper tyrannis.

Tara Elonis testified at trial that she took these statements seriously, saying, "I felt like I was being stalked. I felt extremely afraid for mine and my children's and my families' lives." Trial Tr. 97, Oct. 19, 2011. Ms. Elonis further testified that Elonis rarely listened to rap music, and that she had never seen Elonis write rap lyrics during their seven years of marriage. She explained that the lyric form of the statements did not make her take the threats any less seriously.

On November 15 Elonis posted on his Facebook page:

Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place Me thinks the judge needs an education on true threat jurisprudence
And prison time will add zeroes to my settlement
Which you won't see a lick
Because you suck dog dick in front of children
* * *
And if worse comes to worse
I've got enough explosives to take care of the state police and the sheriff's department
[link: Freedom of Speech, www.wikipedia.org]

This statement was the basis both of Count 2, threats to Elonis's wife, and Count 3, threats to local law enforcement. A post the following day on November 16 involving an elementary school was the basis of Count 4:

That's it, I've had about enough
I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a kindergarten class
The only question is . . . which one?

By this point FBI Agent Denise Stevens was monitoring Elonis's public Facebook postings, because Dorney Park contacted the FBI claiming Elonis had posted threats against Dorney Park and its employees on his Facebook page. After reading these and other Facebook posts by Elonis, Agent Stevens and another FBI agent went to Elonis's house to interview him. When the agents knocked on his door, Elonis's father answered and told the agents Elonis was sleeping. The agents waited several minutes until Elonis came to the door wearing a t-shirt, jeans, and no shoes. Elonis asked the agents if they were law enforcement and asked if he was free to go. After the agents identified themselves and told him he was free to go, Elonis went inside and closed the door. Later that day, Elonis posted the following on Facebook:

You know your shit's ridiculous when you have the FBI knockin' at yo' door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch ghost
Pull my knife, flick my wrist, and slit her throat Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin'
[BOOM!]

I had no faith in my own Breaking Bad prediction (spoiler)

Sunday morning, I took a guess at how I thought the Breaking Bad finale might turn out. I (and I assume many others) thought it was too obvious to happen, so I foolishly qualified it with just that point:

Well, needless to say, I was pretty close. :-)

Is it illegal to put the names of competitor's businesses in meta tags to draw more traffic to a website?

On Friday night, I was chatting with Bill Mihan on Facebook. He mentioned to me that he had noticed a local plumber's website that had 'roto rooter' and many other business names in his meta tags. This prompted the question: is it illegal to put the names of competitor's businesses in meta tags to draw more traffic to a website?

You know I can't avoid not knowing the answer to such interesting legal questions. :-)

A few courts have squarely considered the issue. Consider the case of N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008):

NAM designs and manufacturers physiotherapeutic spinal devices, commonly known as traction devices, which are used, for example, to treat lower back pain. Adagen is an authorized distributor of NAM's devices. Axiom, a competitor of NAM's, manufacturers a physiotherapeutic device known generally as the DRX 9000. Gibson and Exharhos are, respectively, the president and vice president of Axiom. In the present lawsuit, NAM and Adagen allege that Axiom engaged in unfair competition by infringing NAM's trademarks and by issuing false advertising regarding the DRX 9000.

The trademark infringement claims stem from Axiom's use of two of NAM's registered trademarks: the terms “Accu–Spina” and “IDD Therapy.” Axiom included these terms on its website within meta tags. Although Axiom's website never displayed NAM's trademarked terms to visitors and never mentioned NAM or NAM's products, Axiom nonetheless included the terms within its meta tags to influence Internet search engines. For instance, evidence in this case indicated that, before Axiom removed these meta tags from its website, if a computer user  entered the trademarked terms into Google's Internet search engine, Google listed Axiom's website as the second most relevant search result. In addition, Google provided the searcher with a brief description of Axiom's website, and the description included these terms and highlighted them.

After analying the use of Axiom's use of NAM's trademarks, the court concluded that

...the plain meaning of the statutory language [of the Lanham Act] clearly indicates that Axiom's use of NAM's trademarks as meta tags constitutes a “use in commerce ... in connection with the sale ... or advertising of any goods” under the facts of this case.

...

Because Axiom's use of NAM's trademarks as meta tags caused the Google search to suggest that Axiom's products and NAM's products had the same source, or that Axiom sold both lines, or that there was some other relationship between Axiom and NAM, Axiom's use of the meta tags caused a likelihood of actual source confusion.

However, in a different case (Standard Process, Inc. v. Banks, 554 F.Supp.2d 866 (E.D. Wisc. 2008)), a court came to a different conclusion:

Standard Process also alleges that Dr. Banks is liable for trademark infringement because of “initial interest confusion.” “Initial interest confusion” occurs when a customer is lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated. For example, in Promatek, the plaintiff used a direct competitor's trademark in its metatags. A metatag is HTML (Hyper Text Markup Language) code that describes the content of a website, and search engines used to use them to identifying the content of a website. The Seventh Circuit found that the use of the competitor's trademark in the plaintiff's metatags diverted customers to the plaintiff's website and likely caused customer confusion.

Like the plaintiff in Promatek, Dr. Banks used Standard Process trademarks in the metatags of his website. However, today “modern search engines make little if any use of metatags.” As more and more webmasters “manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.”Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it. 

In any event, even if search engines still made significant use of metatags, this case is different than Promatek. Consumers who enter “Standard Process” in a search engine may be diverted to Dr. Banks's website where, unlike the plaintiff's site in Promatek, it actually provides an opportunity to purchase the trademark holder's goods. Dr. Banks is not a direct competitor to Standard Process. Consumers will still be able to purchase unaltered SP Products on his site, so the likelihood of consumer confusion is not present here. (citations omitted)

So what sort of rule can we develop from these cases? There are two parts to this test, with a series of subparts. First, the plaintiff must demonstrate use in commerce in connection with the sale or advertising of any goods, consistent with the Lanham Act. In doing so, the plaintiff must show (1) they possessed a valid mark, (2) that the defendant used the mark, (3) that the defendant's use of the mark occurred “in commerce,” and (4) that the defendant used the mark “in connection with the sale ... or advertising of any goods.” Second, the plaintiff must demonstrate the likelihood of confusion. Seven factors are relevant when determining whether a likelihood of confusion exists: (1) the strength of the plaintiff's mark; (2) the similarity between the plaintiff's mark and the allegedly infringing mark; (3) the similarity between the products and services offered by the plaintiff and defendant; (4) the similarity of the sales methods; (5) the similarity of advertising methods; (6) the defendant's intent, e.g., does the defendant hope to gain competitive advantage by associating his product with the plaintiff's established mark; and (7) actual confusion.

As you can tell, the answer to Bill's question is not straightforward. With as little information as we have, the best answer is maybe, or it depends (don't you hate when that happens?). But what we do know now, is that it is certainly possible.

Edited to add (4/13/13): As has been suggested, many companies buy their competitor's names as Google AdWords. These decisions suggest that, at least in some circumstances, that it might be a trademark violation. However, here's an article that suggests plaintiffs rarely win trademark infringement claims involving Google AdWords. Additionally, the financial stakes don't make much sense.

A phone call, a death threat, and WTF just happened?!

A few nights ago, my wife answered my cell phone and the caller (whose ID was either unknown or blocked) asked for me by name. I wasn't immediately available so she asked if she could take a message. The caller did in fact, leave a message (paraphrased):

"You tell that fuckin' asshole that I can have him and his whole family murdered."

Yikes.

I reported the phone call to the police.

But who was it?

I have no idea, but I can speculate (and I say speculate because I have no evidence to back this up). As many of you know, I post a lot of politically-related things on Twitter and Facebook. And as many of you know, political discussions online are often very toxic. Recently, they've spilled over into real life: several conservative bloggers have been SWATted. Now I don't blog nearly as often as some of these folks, nor do I don't have nearly the audience (and I consider myself more of a libertarian than a conservative, but that's really not important). But I think (and again, I am only speculating) that I probably said something on Twitter that tweaked someone and they felt the need to respond. With a life threatening phone call. A little overboard, don't you think?

I served nearly 9 years in the Navy, fighting for this country, so that we can enjoy the freedom of speech. Nice way to repay me, thank you very much. Either way, and regardless of the reason why someone did it, I won't allow anonymous threats from a coward to intimidate me or my family.

Vacations and social media opsec

I just returned from five days of vacation in Florida. Chances are that (unless you follow me on Foursquare and scrutinize my check-ins) you probably didn't know I was gone. We posted no pictures of our vacation activities, didn't make any comments or posts related to what we were doing. One exception that I noted above was Foursquare, where I did check in partly to record our trail of activities and also because I have less followers there and was less concerned about word getting out.

Sites like Please Rob Me (if perhaps a bit over-hyped) highlight the concerns about posting your activities on social media. Especially important is when you're away from home for an extended period of time. Thus, this was a deliberate strategy that Tracy and I followed explicitly for this purpose.

But this is probably not enough. I post a lot on both Twitter and Facebook and if I suddenly disappeared for a while, someone might take notice of that, too. So, step two: Using Buffer (or some other similar application), each night I scheduled a series of tweets and posts spread out during the next day on subjects that I usually talk about. From a third party perspective, things ought to seem just plain ordinary. So when you thought I was tweeting about some infosec article, I was probably riding a roller coaster. :-)

The idea here wasn't or isn't to trick anyone or orchestrate some elaborate deception campaign, just to be careful about what you're posting in similar circumstances; and follow that up with the same sort of content and material that people already expect of you.

Now that we're home again, you can expect to see pictures from the vacation in the near future. I also have some notes about some of our interesting experiences over the last week to flesh out into blog posts.

Now, I need some sleep...