Mississippi Lawyer Blog

Lately I have been receiving a lot of calls from people who have been terrified by debt collectors. The collectors pretend to be police officers or make threats to have you arrested today you if you don't send them some money right now. They won't give you an address to mail in money because they want access to your bank account.
Read this carefully - You will not go to jail for an ordinary debt like a credit card, personal loan, internet loan or even a payday loan. Don't believe the tricks and lies of these debt collectors. This is a scam. These are not real police officers or law enforcement organizations. They will try to get you to give them personal information about yourself. Do not give them any information. They may already have information about you and the name of a debt you might actually owe, but they may not have any connection with the original creditor. Even if you do owe the money, it is against the law for for creditors and collectors to make threats or to threaten to have you arrested.

Across the United States a new trend has developed. Teenagers have been using social media to communicate with one another on where groups will be "hanging out" during the summer nights. While this sounds like a simple way to just "spread the word" amongst teenagers, law enforcement has been eavesdropping with their own social media profiles and finding out where and when these "impromptu parties" are being held. Obviously, some residents of a particular area don't particularly like large groups of kids hanging out around their neighborhood. So they cal the cops if they aren't there already.

Well, to some cities, this isn't enough. City Council Members have banded together and have started passing city ordinances providing curfews in an effort to keep people under 18 years of age at home. Curfews are nothing new. Parents and teenagers are getting upset because some of these curfews are set as early as 6:00 p.m. The language of these ordinances are so vague that they basically allow any law enforcement officer to pull over a vehicle for no reason whatsoever other than the driver or passengers "look like they are under 18" and out past curfew.

The ACLU has had a field day with these curfews. They write letters and explain to City Officials that ordinances that seem to be protecting residents can actually be violating teenagers First Amendment Rights.

Every parent and teenager should be familiar with ordinances enacted during the summer months, regardless of where they live. If you need help understanding the ordinance of your area, give me a call and I'll be glad to help you.

Eric Brown

This is a shocking and sobering story. The homes of three separate individuals were raided by FBI agents for allegedly downloading child porn on their computers. The feds accused the three of being "creeps" and urged them to come clean of their crimes.

However, the Feds were wrong. Neighbors of the three innocent parites had utilized their unsecured wireless network address and downloaded the child porn. I'm sure the Feds apologized for their actions towards these innocent persons. Yeah right.

Continue reading "Hey Mississippi: FBI child porn raid a strong argument for locking down WiFi networks" »

We've all seen the comic books and movies where Superman uses his x-ray vision to peer through the walls of buildings and containers. To view modern day x-ray vision all one has to do is pass through an airport security check point. In 2007, the Transportation Security Administration ("TSA") began developing Advanced Imaging Technology ("AIT"). The machines make use of x-ray backscatter technology and pass "narrow, low intensity x-ray beams" over the body's surface at high speed. The resulting images clearly show hidden weapons and other secreted contraband. The images also clearly show intimate and private details about an individual's physical features. The use of this technology at airports is allowed because of safety and national security concerns.

AIT, however, is no longer limited to just airports. American Science & Engineering, Inc. ("AS&E") recently developed a mobile-screening system, the Z Backscatter Van ("ZBV"). The ZBV combines AIT with the maneuverability and discreteness of a common work van. Operating in stationary or "drive-by mode," the ZBV produces photo-quality imaging; clearly identifying whether a vehicle contains such contraband as stowaways, drugs, or explosives. Law enforcement's use of vans like the Z Backscatter Van is just a matter of time. Just like Superman, police officers will soon be using x-ray vision to peer into the glove compartments and trunks of vehicles on the road.

When they do . . . will it be legal? We don't know. We all have a constitutional right - found in the Fourth Amendment - to be free from unreasonable searches and seizures by the government. Unlike Superman, however, the law does not "move faster than a speeding bullet" and it traditionally lags behind advancements in technology.

Whether Advanced Imaging Technology sees through the Fourth Amendment as easily as it does everything else is yet to be seen. Inventors have already created x-ray proof underwear for those passing through airport scanners. Are x-ray proof glove compartments and trunks next?

I am one of the people in this country who thinks police powers have gone to far over the past twenty (20). We don't have Constitutional rights and protects to protect who commit crimes, we have them to protect our freedom.

The truth is though some people commit crimes. These people have to have the same rights as everyone else, at all times, just like people who adide by the law. Otherwise where do we drawn the line? Who makes the decison of who gets what rights when? A computer? A bunch of politicans? A group police? I don't think so! Rights are Yours. Know them, understand them, and use them.

Your graduating senior may still be your baby, but in the eyes of the law he or she is an ADULT!

That means you can no longer make important medical or financial decisions for your child without their permission. But your job of being a PARENT doesn't stop just because your child turns 18. If there's a medical emergency or your child asks for financial help, you NEED the ability to cut through the legal red tape and get involved.

FACT: Doctors, hospitals or financial institutions (i.e. college business offices, student loan processing agents, banks, etc) will NOT bend the rules on this! It's against privacy laws. You must have 3 KEY DOCUMENTS in place to make important medical or financial decisions on your child's behalf. Even something as simple as a status update would be refused!

It's easier to see this need in case of medical emergencies, but financial decisions are as equally concerning. Millions of college students fall prey to the "predatory" lenders on campus, all promising money through student credit cards and student loans. You need to be legally able to assist and safeguard the financial wellbeing of your new adult.

You need to ensure you do not fall prey these lenders yourself through cosigning for credit cards, student loans, etc. As a Mississippi bankruptcy attorney, I often I see young adults who have run up enormous debt during college and are now facing lawsuits and garnishments. I also see parents and grandparents are also facing the same due to cosigning for their childrens loans. Student loans cannot be discharged through bankruptcy.

I call these 3 key documents the Parent Child Protection Kit, as they will give you the legal permission you need to HELP your child! Seeking the counsel of an attorney is always recommended, however these forms are all available on the internet, free of charge, and do not require an attorney.
• Advance Health Care Directive
• Financial Power of Attorney
• HIPPA Medical Release Form

Here's wishing your new adult a hearty congratulations on their big graduation day and hoping that, through your guidance, they will never need my services!!

My recollection is that the divorce rate in Mississippi is approximatley 51-52% for first marriages. It is slightly higher with second marriages. With the divorce rate that high it is no wonder the private detective and spyware business is booming. In this Bog I would like to bring some legal issues to your attention if you find yourself about to engage a detective or buy spy equipment. You should be careful you do not violate any criminal laws or commit some serious invasion of privacy.

Over 40 years ago Congress passed a wiretap act prohibiting law enforcement or anyone else from secretly recording another person's telephone calls if that person has a "reasonable expectation of privacy." The term reasonable expectation of privacy" came from a U.S. Supreme Court case and it is an important term discussed, written about, and fought over in Federal and State Courts every day across the United States. In a nutshell it means you should not record another person's phone calls if a reasonable person would expect the calls to be private. So making a call from a public phone or from a cell phone where other people can hear you talk and maybe hear the person on line with you does not give you a reasonable expectation of privacy. Using your home landline in a closed bedroom does give you a reasonable expectation of privacy with one big exception in Mississippi.

When Congress passed the Omnibus Crime Control Act of 1966 there were no computers or cell phones. The law seemed clear-no recording of other's phone calls. But the various federal courts that began interpretating the Omnibus Crime Control Act did not agree on what the new terms and definitions meant. A few federal courts across the country created an exception for recording phone calls between spouses that take place in the home on a landline. This has been called by the Fifth Circuit Court of Appeals the domestic relations exception to the wiretap act. It simply means this: If you can pick up an extension in your house and listen to a phone call then you can record the phone call.

The opinion of the Fifth Circuit which created the domestic relations exception has been criticized because there is no domestic relations exception in the wiretap act passed by Congress. What the opinion allows is one spouse to record the phone calls of the other spouse inside the marital home on a landline. Some Interesting quesions not fully answered by the Fifth Circuit are: What if there are no extensions in the house? Can a spouse still record the other spouse's telephone conversation? What if the phone is just in the name of one spouse who pays for it completely with his/her own money? These could be questions still subject to debate and change.

The majority of the Federal Circuit Courts do not recognize any domestic relations exception. In fact over the years since the Simpson case was decided by the Fifth Circuit Court of Appeals the majority of the other Federal Courts that have dealt with spousal wiretapping have not held there was any spousal or domestic relations exception. When the Fifth Circuit Court of Appeals was split and the Eleventh Circuit Court of Appeals was created, the Eleventh Circuit Court of Appeals rejected the domestic relations exception to the wiretape act.

With the development of the computer and other means of communication Congress moved to provide additional protection for wire or e mail communications as e mails travel through the internet and as e mails are stored. These Federal Laws provide privacy rights and protections against intercepting e mails while they move through the internet and while they are stored with third party repositories (ISP's). There are even laws against violating the terms of service of the internet providers. Here is a good source for identifying what may be legal and what may be illegal. If you have enough interest be sure to review the Appendix.

In addition to the Federal Laws the State of Mississippi has a law called the Interception of Wire or Oral Communications Act. (MIss. Code Ann. Section 41-29-501, et seq). This law makes it illegal and provides for civil penalties for intercepting wire or oral communications if the person who has had them intercepted had a reasonable expectation of privacy in either the calls or wire transmissions. However, in the case Wright v. Stanley, 700 So. 2d 274, (Ms. Sp Ct, 1998) the Mississppi Supreme Court held there was no prohibition against a spouse secretly recording the phone calls of another spouse or children in the marital home.

In addition to the Federal and State criminal laws that might be violated by the interception of telephone calls or e mails, the right of privacy may also be violated. The "outer limits" of the right of privacy have never been established by the Mississippi Supreme Court and this may be a new up and coming civil right. I have heard of spouses installing spyware on a joint computer or family computer. This type of spyware records every website visited, it records the passwords, and e mails sent from or received into the computer. I have heard of spouses putting spy cameras in their homes to surreptiously spy on their spouse. If a computer has a camera on it the camera can be activated from out side the home and set to record inside the home. There are also electronic tracking devices that can be placed on an automobile allowing the auto to be tracked day and night. Almost any type of tracking device or spyware is availble and for purchase these days.

In this Blog I am not stating which of these types of activities are legal and which may be illegal. Some may be very gray and by that they may be capable of appearing both legal and illegal depending on the interpretation of the relevant court. What I am suggesting is that anyone considering the use of these types of spy equipment should probably consult an attorney first! I have an opinion that sooner or later some of the actions of a spouse who uses some of this spyware or devices may find themselves charged with a crime or at the other end of a civil lawsuit charging an invasion of privacy, and included in that lawsuit is anyone who helped the spouse use the spyware.

Continue reading "Spying on a Spouse in Mississippi" »

Have you had a chance to read the latest story about Michael Jordan's underage son bragging about how much money he lost in a casino in Vegas? Even the papers in Mississippi have reported the story. If you haven't had a chance to read it yet, click here. In Madison Mississippi the local police department arrested two men for harassing a bike rider on the Natchez. Guess how they caught the two men? They posted their video of the incident on a social media sight!

The real headline isn't that 19 year-old Marcus Jordan lost $35,000 in one night; instead it's how the media (and the Nevada gaming officials) found out about Jordan's alleged illegal gambling - Twitter.

As I read the story, I could not help from thinking about the times I have heard people say in conversation, "Yeah, I heard about that on Facebook," or "did you see what (insert friend's name here) said on Twitter?"

Sure, most information posted on social networking sites like Facebook and Twitter are harmless. Most people really aren't that interested what you had for lunch or that a millionaire's son lost thousands of dollars while gambling. But gaming officials, who know Michael Jordan's son is not old enough to gamble yet, really do care.

All of this begs the question: Why would anyone post information like this?

Yes, you could argue that people are addicted to the media and especially by the constant, fingertip access to information. You could even go so far to say that some people like to talk about their lifestyle choices as a way of drawing attention to themselves. But I think the real answer is that people don't even consider the idea that law enforcement would use social networking sites to gather evidence against someone accused of a crime. Well, let me be the first to tell you if you don't already know - they do. And if law enforcement doesn't think to use them, then victims of crime definitely will.

Law enforcement can gather enough circumstantial evidence through Facebook, MySpace, or even Twitter to build a case against a suspect. Don't believe me?
Ask her.

Or this guy.

Or even this guy.

No one needs a social networking site. Everyone just feels like they do. If you feel the need to stay in touch with friends through Facebook or share with your family what you are doing through Twitter, just be careful about the information you place out there for public consumption. If you even have a question about the information you want to share, then just don't post it.

I promise you it's not worth it.

Eric Brown
Associate
Coxwell & Associates

PROTECTING CLIENT DATA IN COURT FILINGS

There is sufficient personal and private data revealed in a majority of court pleadings for a thief to hijack a individual's identity and use it to commit identity frauds. These can take many forms, from simple larceny to complex identity crimes. An individual may not find out about the identity theft until they review their credit report or they are contacted by a debt collector. Although you can't really steal someone's identity, you can only use it, identity theft has become the commonly accepted term for this type of crime and fraud. The Federal Trade Commission estimates that each year up to 9 million Americans have their identities stolen. While some identity theft victims can resolve their problems quickly, others spend thousands of dollars and years repairing the damage to their good name and credit record. Victims of identity fraud lose out on job opportunities, are denied loans and pay more for credit because of negative information on their credit reports. They may also be arrested for crimes they did not commit. Experts say terrorism and identity theft go hand in hand. The al-Qaida training manual includes provisions for trainees to leave camp with five fake personas, says Judith Collins, an identity theft expert and a professor at Michigan State University. Terrorists are regularly schooled in the art of subsisting off credit card fraud while living in the United States, Collins said.

Crimes and fraud resulting from the unauthorized use of personal identifying information, like full names, Social Security numbers, credit card numbers and medical records, can be divided into five categories:
Financial Identity Theft, using another's identity to obtain goods and services;
Criminal Identity Theft, posing as another when apprehended for a crime;
Identity Cloning, using another's information to assume his or her identity in daily life;
Business/Commercial Identity Theft, using another's business name to obtain credit;
Medical Identity Theft, accessing medical information for insurance fraud or to obtain medical care or drugs.
Medical identity theft and misuse of medical information doesn't get the national attention that other types of identity theft receive, but it can wreak havoc on an individual's health insurance and there is the added danger that an individual's medical records may become altered and lead to mis-diagnosis and life threatening treatment. When medical records, statements of medical procedures and detailed bills or statements of account are not protected a number of abuses take place, such as: unauthorized secondary use of medical records, inaccuracies that are not corrected, discovery and disclosure of medical records by hackers and vendors, use of medical records by employers for employment decisions, and disclosure of medical records by and to individuals who do not have medical training.

Privacy Protection For Court Filings

Protection of individual personal, sensitive and private data in court filings is not a new or novel concept. The E-Government Act of 2002, 44 U.S.C. §§ 3500, et seq., contains provisions governing privacy of case file information. Federal courts were formally directed to immediately conform their local rules and practices to the Act by the Committee on Court Administration and Case Management, Judicial Conference of the United States. On May 16, 2003, the Uniform Local Rules of the United States District Courts for the Northern and Southern Districts of Mississippi enacted the Standard Operating Procedure Governing Protection of Personal and Sensitive Information and Public Access to Court Files in Accordance with the E-government Act of 2002.

These rules provided in part that personal identifiers are prohibited. The categories of information that were deemed by statute to be "personal identifiers" are not to be stated in pleadings or other court-filed documents, including exhibits, except as provided by the standard operating procedure. The rules also describe the Judicial Conference's policy that certain other personal data identifiers must be partially redacted from the case file or pleading whether it is filed traditionally or electronically. Specifically listed as examples of "personal data identifiers"are:
1. Social Security Numbers;
2. Financial Account numbers;
3. Birth Dates.
The policy and local rules also contain cautions and restrictions on the disclosure of Sensitive Information and Data. The following categories of information were deemed "sensitive information" or "sensitive data":
1. Personal identifying numbers, such as driver license numbers;
2. Medical records, treatments, and diagnoses;
3. Employment histories;
4. Personal financial information;
5. Proprietary or trade secret information.
The cautions, prohibitions and restrictions pertaining to personal identifiers presented in the standard operating procedure are equally applicable to this sensitive information and data.

The Fifth Circuit Court of Appeals recognized in Sherman v. U.S. Dept. of Army, 244 F.3d 357, C.A.5 (Tex.), 2001, "...that individual citizens have a substantial informational privacy right to limit the disclosure of their SSNs, and consequently reduce the risk that they will be affected by various identity fraud crimes." The court spoke at length about privacy concerns, stating "the harm that can be inflicted from the disclosure of a social security number to an unscrupulous individual is alarming and potentially financially ruinous."

Rules for Redacted Filings

Rule 5.2 of the Federal Rules of Civil Procedure and Rule 9037 of the Federal Rules of Bankruptcy Procedure are equivalent and contain, among others, sections on redacting, filing under seal, protective orders, and waiver. The most pertinent sections of the rules for this article are the Redacted Filings and Waiver of Protection of Identifiers.
(a) Redacted Filings.
Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
(h) Waiver of Protection of Identifiers.
A person waives the protection of the Rule as to the person's own information by filing it without redaction and not under seal.

The Gramm-Leach-Bliley Act

The Gramm-Leach-Bliley Act (GLBA), was designed to prohibit the disclosure of nonpublic personal information, finding that it is the policy of Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information. The GLBA includes provisions to protect consumers' personal financial information held by financial institutions. There are three principal parts to the privacy requirements: the Financial Privacy Rule, Safeguards Rule and Pretexting Provisions.

The GLBA gives authority to eight federal agencies and the states to administer and enforce the Financial Privacy Rule and the Safeguards Rule. These two regulations apply to "financial institutions," which include not only banks, securities firms, and insurance companies, but also companies providing many other types of financial products and services to consumers. Among these services are lending, brokering or servicing any type of consumer loan, transferring or safeguarding money, preparing individual tax returns, providing financial advice or credit counseling, providing residential real estate settlement services, collecting consumer debts and an array of other activities. Such non-traditional "financial institutions" are regulated by the Federal Trade Commission.

The Financial Privacy Rule governs the collection and disclosure of customers' personal financial information by financial institutions. It also applies to companies who receive such information, whether or not they are financial institutions. The Safeguards Rule requires all financial institutions to design, implement and maintain safeguards to protect customer information. The Safeguards Rule applies to financial institutions that collect information from their own customers and to financial institutions "such as credit reporting agencies" that receive customer information from other financial institutions. The Pretexting Provisions protect consumers from individuals and companies that obtain their personal financial information under false pretenses, a practice known as "pretexting."

The Health Insurance Portability and Accountability Act

The Health Insurance Portability and Accountability Act (HIPAA), was enacted by the U.S. Congress in1996. The Administrative Simplification provisions, Title II of HIPAA, establish the national standards for the security and privacy of health data. These regulations create the appropriate standard of care for the protection of Individually Identifiable Health Information and were designed to prohibit the disclosure of Individually Identifiable Health Information, finding that it is the policy of Congress that medical information of individuals be protected, secure and confidential.

The shift of medical records from paper to electronic formats has increased the potential for individuals to access, use, and disclose sensitive personal health data. Although protecting individual privacy is a long-standing tradition among health-care providers and public health practitioners in the United States, previous legal protections at the federal, tribal, state, and local levels were inconsistent and inadequate. The Privacy Rule section, which took effect on April 14, 2003, established regulations and standards for the use and disclosure of Protected Health Information. Protected Health Information is any information about health status, provision of health care, or payment for health care that can be linked to an individual. This is interpreted rather broadly and includes any part of a patient's medical record or payment history. A covered entity may disclose protected health information to facilitate treatment, payment, or health care operations or if the covered entity has obtained authorization from the individual. However, when a covered entity discloses any protected health information it must make a reasonable effort to disclose only the minimum necessary information required to achieve its purpose. HIPAA also provides that the standards, regulations and requirements established by the Secretary may not supersede any contrary State law that imposes more stringent privacy protections.

The Fair and Accurate Credit Transactions Act

The Fair and Accurate Credit Transaction Act of 2003 (FACTA) is most familiar for the required redaction of credit card numbers and expiration dates on credit card receipts, along with the $100 to $1,000 statutory penalties, punitive damages, attorneys' fees and the absence of a cap on the total recovery. But FACTA also added new sections to the Fair Credit Reporting Act that were intended to help consumers fight identity theft. Privacy, accuracy, limits on the sharing of financial and medical information and new consumer rights to disclosure are included in FACTA. A careful reading of FACTA may yield violations and claims that can be used against parties who reveal private and personal data in court pleadings, filings and exhibits.

No Private Right of Action under The GLBA or HIPAA.

There is no private right of action for individuals under The Gramm-Leach-Bliley Act or The Health Insurance Portability and Accountability Act. Any allegation for violation of GLBA or HIPAA should refer to the statute as the appropriate standard of care for the protection, security and confidentiality of the nonpublic personal information and private data of the defendant's customers or patients. Once the particular statute is asserted as the standard to which the defendant should adhere, you can use common law and tort claims such as invasion of privacy, intentional or negligent infliction of emotional distress, or enablement of identity theft as the means to enforce the standard. All businesses, corporations and entities subject to the GLBA and HIPAA are required to have their own privacy policy. Any disclosure of personal, financial or medical information would also be a failure to comply with their own privacy policy.

Claims and Damages

The recognition of the cause of action for invasion of privacy was explicitly recognized in Mississippi in Deaton v. Delta Democrat Publishing Co., 326 So.2d 471, 473 (Miss.1976), and in Young v. Jackson, 572 So.2d 378, 382 (Miss.1990), in which the Court adopted the Restatement (Second) of Torts § 652 D, which covers the public disclosure of private facts:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
An individual's Social Security Number and other private nonpublic information are of no use and not legitimate concerns of the public. Interfering with the private concerns or affairs of a individual by disclosing this type of sensitive and personal information intrudes upon his or her right to privacy and creates an increased risk of identity theft. In addition to the financial chaos, this highly offensive conduct can be unhealthy to an individual's mental and emotional well being. In many of these cases an award of punitive damages may be warranted.

A plaintiff who has suffered an increased exposure to identity theft is entitled to damages. These damages may consist of future credit monitoring, fees for security freezes and obtaining periodic credit reports and civil contempt and sanctions for violating the established policies, rules and orders of the court, injunctive relief to render the offending document inaccessible to the general public and compensatory and punitive damages, attorney fees, expenses and suit money. In collection type cases and bankruptcy cases you would want the underlying debt canceled as part of a settlement or judgment, thereby insuring additional claims and a future lawsuit when the creditor sells the debt to a new debt buyer or collector. The new lawsuit would include claims against the old creditor for violation of the settlement agreement or judgment and the new collector for Fair Debt Collection Practices Act violations in trying to collect the canceled debt.

A consent judgment in an Ohio lower court case ordered a law firm filing collection suits on behalf of a credit union to pay $350.00 per year to the plaintiff for a period of 10 years for credit monitoring. The plaintiff's attorney found pattern and practice evidence that the law firm had revealed the private data of individuals in 57 other cases in the same court. The law firm was required to notify individuals in all 57 cases of the exposure of their private data and to redact the disclosures at their own expense.

Conclusion

There are free public access computers available in every federal clerk's office. Pleadings are available on the internet through search engines and to anyone with a PACER account. State court paper files are open to the public and the Chancery Clerk's office is a genuine treasure chest of identity information. Mississippi has no civil or consumer protection statutes for the safeguard of personal and private information. As plaintiff and consumer representatives we must be vigilant in protecting our clients' information. Just think about how many people have access to a deponent's Social Security number and other private data at a deposition and later when it is printed in a deposition transcript. We must be meticulous and defend against disclosure of this private data by the other side. It is no longer safe to put this information in pleadings or to automatically provide it to the other side in response to discovery requests.

About the Editor
Frank Coxwell is a partner at Coxwell & Associates PLLC, in Jackson, MS., where he concentrates on consumer protection, consumer bankruptcy and predatory mortgage lending and servicing. He presents topics on bankruptcy, mortgages and foreclosure, consumer issues and technology at seminars across the country.