Magnum PI: Renters Rights & Contracts in Paradise

By

Josh Gilliland

-

April 13, 2013

0

Hawaii. Fast cars. Beautiful women.

Internal monologues.

And one always broke Navy SEAL.

Magnum, PI was one of the definitive shows of the 1980s. The stories focused on doing what was right and highlighted the honor of those who served in the United States military.

It also raised many legal issues….like was Thomas Magnum a tenant or guest on Robin Masters’ estate, “Robin’s Nest”?

In the first episode of Magnum PI, Magnum is staying in Robin Masters’ guest house, driving the [awesome] Ferrari 308 GTS and serving as the head of security of the estate. This was an unpaid position that included Magnum testing the security systems of the property. Other duties included rescuing the daughter of one of Robin’s friends in Italy and helping with security of Robin’s mansion in England (in different seasons). Would these services constitute rent for staying at the Robin’s Nest?

Under Hawaiian law, a “landlord and tenant may agree to any consideration, not otherwise prohibited by law, as rent.” HRS § 521-21. Additionally, if there is not a written rental agreement between the parties as to the tenancy of a lease, the tenancy is a month to month lease. HRS § 521-22.

The unwritten security services for staying in the guest agreement between Robin Masters and Magnum appear to form a rental agreement. However, there is one structural problem with this agreement: No written document, meaning the lease could be unenforceable under the statute of frauds. HRS § 490:2A-201. However, since there was contract performance by Magnum in his security duties, this arguably would eliminate the statute of frauds issue. See, Shannon v. Waterhouse, 58 Hawai’i 4, 5-6, 563 P.2d 391, 393 (1977).

If Magnum was a valid tenant, this would mean Magnum could exclude others from entering the guest house. However, Higgins virtually never knocked before entering the guest house, which arguably would violate the renter’s rights to have uninterrupted use of the property.

This Reminds Me of One Time…

Magnum frequently entered into oral contracts with Higgins.

The contracts usually included specific use of Robin’s Nest, such as use of the tennis courts, wine cellar, cars and other parts of the property.

These oral contracts were arguably lease modifications that present statute of frauds issues.

However, since both Higgins and Magnum were men of honor that performed their promises, the performance would remove any enforceability issues for the lack of a written document.

The Island Hoppers

Magnum called on his friend TC for helicopter flights in numerous episodes.

These flights, agreements for payment and repairs for small arms fire, should have all been in writing.

One episode had TC’s “tab” up to $800 for all the flights.

However, since TC performed the flights, he would be entitled to payment from Magnum for services rendered.

Why Oral Contracts?

It is a surprise that a billionaire author would not have an attorney write up a lease agreement with a renter acting as his chief of security. However, perhaps because Robin had such honor and prestige, the idea of not performing simply was not the behavior of those he befriended. Regardless, the only compensation for employment being a place to stay and a car to drive might be a great deal for Robin, but might violate some employment laws.

Doctor Who: An Adventure in Cyber-Security & Identity Theft

By

Josh Gilliland

-

April 1, 2013

1

The new season of Doctor Who opened with questions about the impossible girl who died twice. The Bells of Saint John also offered excellent examples of cyber-security, computer forensics and social media investigations for all the lawyers on the planet.

New Form of Identity Theft

The story involved the villain “uploading” the souls of WiFi users who clicked on an unknown WiFi connection.

This rendered the body lifeless, with the souls trapped in an online purgatory known as the “data cloud.”

What legal issues can we we surmise from such wrongdoing?

First, never click on an unknown WiFi Connection.

It can subject you to other individuals accessing your data.

This unauthorized access brings us to the first possible legal issue: Identity Theft.

“Identity Theft” under California law is defined as follows (other states and countries have similar provisions):

(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.

Cal Pen Code § 530.5

Would uploading someone’s soul to be trapped in an unholy cloud sever count as identity theft? While every byte of someone’s life is literally being stolen, it is not being taken with the intent to defraud to acquire a good or service. However, this act would still be considered an “unlawful purpose” because it would be a very unique form of kidnapping and murder.

The upload of a person would be a form of kidnapping, because it is the forcibly detainment of a “person” in online storage. This would be a untested reading of California Penal Code § 207, because the body of the person is normally taken in a kidnapping.

Despite the soul surviving in the data cloud, the human body dies after the upload. This opens up murder and wrongful death claims against the Great Intelligence and fellow co-conspirators in the cyber-kidnapping conspiracy. Additionally, there could be attempted murder charges for those who were downloaded back to their bodies.

A Note On Computer Forensics

The Bells of Saint John showed the uploading of a human soul in a matter of minutes. The bandwidth and processing speed must have been alien to have been done so quickly. While I am not a computer forensic expert, I have seen the byte-by-byte capture of a 500GB hard drive take several hours.

Scientists have estimated based on the number of neurons combinations in the brain that the human brain’s memory storage capacity is around 2.5 petabytes of information (1 million gigabytes is equal to one petabyte or 13.3 years of HD-video).

Capturing the content of the human mind, let alone the soul, would require an extreme amount of processing power and WiFi bandwidth to upload a “soul” in a matter of minutes. Greg Kipper, computer forensic expert and author of Augmented Reality: An Emerging Technologies Guide to AR, estimated to collect 2.5 petabytes over WiFi, it would take weeks, if not months. As Greg said, it would be like “pouring the ocean through a straw” for just the raw data.

Social Media Investigations

Social media is a hot topic in eDiscovery, with the issues covering everything from privacy rights to profile preservation. Clara Oswald, the new companion, provided an excellent example of social media investigation to identify the corporate “villain” in the story. The investigation included hacking into the corporate webcams to take photos of users and matching the faces on social media sites to see who the individuals listed as their employers. While most private eyes do not break anti-hacking laws to take webcam photos, the character of Clara Oswald brilliantly demonstrated how to use social media to identify a key fact in a dispute. In most cases, the issue can be anything from photos in a worker’s compensation case showing a purportedly injured person water skiing to trademark infringement to when someone “checked in” at a location.

I have a feeling it was not Steven Moffat’s intent to write an episode about social media investigations (which would also be awesome on Sherlock). However, the episode was a wonderful example for attorneys on how social media can be used in a lawsuit to prove a party’s knowledge or location when an incident occurred.

Where will the 50th Anniversary of Doctor Who take us legally? Who knows, but Chapter 11 may cover the Rule Against Perpetuities.

Doctor Who: An Adventure in Cyber-Security & Identity Theft

By

Josh Gilliland

-

April 1, 2013

0

The new season of Doctor Who opened with questions about the impossible girl who died twice. The Bells of Saint John also offered excellent examples of cyber-security, computer forensics and social media investigations for all the lawyers on the planet.

New Form of Identity Theft

The story involved the villain “uploading” the souls of WiFi users who clicked on an unknown WiFi connection.

This rendered the body lifeless, with the souls trapped in an online purgatory known as the “data cloud.”

What legal issues can we we surmise from such wrongdoing?

First, never click on an unknown WiFi Connection.

It can subject you to other individuals accessing your data.

This unauthorized access brings us to the first possible legal issue: Identity Theft.

“Identity Theft” under California law is defined as follows (other states and countries have similar provisions):

(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.

Cal Pen Code § 530.5

Would uploading someone’s soul to be trapped in an unholy cloud sever count as identity theft? While every byte of someone’s life is literally being stolen, it is not being taken with the intent to defraud to acquire a good or service. However, this act would still be considered an “unlawful purpose” because it would be a very unique form of kidnapping and murder.

The upload of a person would be a form of kidnapping, because it is the forcibly detainment of a “person” in online storage. This would be a untested reading of California Penal Code § 207, because the body of the person is normally taken in a kidnapping.

Despite the soul surviving in the data cloud, the human body dies after the upload. This opens up murder and wrongful death claims against the Great Intelligence and fellow co-conspirators in the cyber-kidnapping conspiracy. Additionally, there could be attempted murder charges for those who were downloaded back to their bodies.

A Note On Computer Forensics

The Bells of Saint John showed the uploading of a human soul in a matter of minutes. The bandwidth and processing speed must have been alien to have been done so quickly. While I am not a computer forensic expert, I have seen the byte-by-byte capture of a 500GB hard drive take several hours.

Scientists have estimated based on the number of neurons combinations in the brain that the human brain’s memory storage capacity is around 2.5 petabytes of information (1 million gigabytes is equal to one petabyte or 13.3 years of HD-video).

Capturing the content of the human mind, let alone the soul, would require an extreme amount of processing power and WiFi bandwidth to upload a “soul” in a matter of minutes. Greg Kipper, computer forensic expert and author of Augmented Reality: An Emerging Technologies Guide to AR, estimated to collect 2.5 petabytes over WiFi, it would take weeks, if not months. As Greg said, it would be like “pouring the ocean through a straw” for just the raw data.

Social Media Investigations

Social media is a hot topic in eDiscovery, with the issues covering everything from privacy rights to profile preservation. Clara Oswald, the new companion, provided an excellent example of social media investigation to identify the corporate “villain” in the story. The investigation included hacking into the corporate webcams to take photos of users and matching the faces on social media sites to see who the individuals listed as their employers. While most private eyes do not break anti-hacking laws to take webcam photos, the character of Clara Oswald brilliantly demonstrated how to use social media to identify a key fact in a dispute. In most cases, the issue can be anything from photos in a worker’s compensation case showing a purportedly injured person water skiing to trademark infringement to when someone “checked in” at a location.

I have a feeling it was not Steven Moffat’s intent to write an episode about social media investigations (which would also be awesome on Sherlock). However, the episode was a wonderful example for attorneys on how social media can be used in a lawsuit to prove a party’s knowledge or location when an incident occurred.

Where will the 50th Anniversary of Doctor Who take us legally? Who knows, but Chapter 11 may cover the Rule Against Perpetuities.

Veronica Mars: awesome show…spotty legal record

By

Jessica_alegalgeek

-

March 29, 2013

0

The recent Kickstarter campaign for a Veronica Mars movie inspired me to go back and start rewatching the show again from the beginning. It’s the first time I’ve done this since it was canceled and it’s fun to watch everyone now, knowing who Lily’s murderer turned out to be in the end. I’m also enjoying watching the development of Dick Casablancas, the best d-bag ever put on the small screen.

As I rewatch the show I’m also amazed at the fact that, while the sheriff and his deputies are always around, there appears to be very little concern for the letter of the law. Just in watching the first few episodes again I’ve already “issue-spotted” several acts that seem highly questionable and should certainly expose people to liability, including:

Vandalism. There’s a lot of vandalism all around, but Logan smashing in Veronica’s headlights is a particurally clear example of property destruction. On a side note, now knowing how Logan’s dad punished him, I felt really bad for him when he talked about getting in trouble with his father after the bong was found in his locker.

Bullying: Poor Wallace was taped naked to the school flag pole and not one school official reacted, despite the fact that enough time had passed that there was a huge crowd gathered around him. Nor did the school ever follow up and expell or suspend Eli. So much for zero tolerance policies.

Evidence tampering: Veronica actually started a fire (or a smoke-out of some sort) in the evidence room at the police station…and then had a firefighter switch out actual evidence that was to be used in a criminal trial for another videotape (that also showed possibly criminal – and certainly unethical – behavior by certain police officers). That’s huge and all she got was a dirty stare from the sheriff.

And these are only a few examples…just from the first disk I received from Netflix! There are more as the show goes on and while I understand that the law can’t be applied too strictly in Hollywood, the almost complete lack of a balanced legal system is a bit problematic. But, even with that legal thorn in my side, I still forgive VM because she is my favorite detective, her dad is probably only second to Spy Daddy in fatherly awesomeness, and I cannot wait for the movie to finally happen!

Could President Nixon Really Blow Up Great Britain in Dr Who Prisoners of Time?

By

Josh Gilliland

-

March 26, 2013

0

There really is no Hallmark Card for ordering a nuclear attack on an ally country because of an alien invasion. That is exactly what [the fictionalized] President Richard Nixon did in the third issue of the comic book Doctor Who Prisoners of Time celebrating the 50th Anniversary of Doctor Who.

And what surely will give people pause on realpolitik, it worked. The aliens threw up their “hands” and left Earth because of the oncoming nuclear attack.

So, could the [fictional] President Nixon simply order a nuclear attack on Great Britain? First, let’s understand the basic facts of the story.

Prisoners of Time is perhaps the only “all Doctor” story we will see for the 50th Anniversary of Doctor Who in 2013.

The story so far has focused on the first three Doctors.

There is a hooded villain with weathered skin wearing a Vortex Manipulator kidnapping the Doctor’s different traveling companions.

I suspect that the final story will have all the Doctors saving all of the traveling companions from whoever the villain is (It might be the Valleyard given the personal nature of the kidnappings, but the Master or another classic villain are possibilities).

The third issue of Prisoners of Time had members of UNIT taken over by Remoraxians, who were trying to flood the planet with rain storms, causing the oceans to rise. A CIA Agent helping the Third Doctor tells President Nixon of a failed rescue, thus Nixon orders the attack on Great Britain to save the Earth.

The US Constitution, Article I, gives the Congress the power to declare war. Article II of the Constitution names the President at the Commander-in-Chief of the military. In 1973, after Vietnam and the Tonkin Gulf Resolution, Congress passed the War Powers Act over President Nixon’s veto. The relevant part of the Act states:

Presidential Executive Power as Commander-in-Chief; Limitation The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

There is still debate whether Congress could limit Presidential power, which has not yet been litigated (the debate about using Drones in Libya without Congress authorization highlights the issue is still alive).

As to our story, there is no mention of President Nixon consulting Congress other than ordering the bombers (most likely B-52’s) to conduct a nuclear attack on Great Britain. However, the attack arguably was legal under section three of the quoted War Powers Act passage, because the Remoraxians had attacked the United States, and the rest of the planet, with a weather attack. This created national emergency, enabling the President to order an attack without Congressional authorization….and ironically help save the world.

Spoiler: They did turn the bombers around and did not nuke England. Good thing Nixon did not launch ICBM’s.

A Woman's Best Friend

By

Jessica_alegalgeek

-

March 22, 2013

0

I had to say goodbye to Tiga, my darling dog, last week. She was fourteen years old and had been by my side almost her entire life and I miss her terribly. When we got her she was covered in fleas and ticks, had hookworms and an upper respiratory infection, and was skin and bones. We fed her, loved her, and fixed her up and in return she was the most devoted, loving, protective, loveliest friend a girl could have. And even though I know I was lucky to have her by my side for so long, it’s still hard to start and end each day without seeing her sweet face.

So, in honor of my adorable pooch, I wanted to dedicate this week’s post to the pets of some of my favorite science fiction and comic book heroes…

There aren’t a lot of pets in science fiction and superhero stories, although there are a few prominent ones that come to mind. My favorite is Woola, the Martian “dog” that John Carter befriends shortly after landing on Mars. Robert Heinlein incorporated pets into some of his sci fi books, including a cool snake in Stranger in a Strange Land and the titular cat from The Cat Who Walks Through Walls (his second best book, in my opinion, after The Moon is a Harsh Mistress).

In Star Wars, my favorite pet has to be the annoying creature, Crumb, that Jabba keeps as a pet (or court jester), who reminds me of a cross between a chihuahua, a monkey, and a crow (I had a pet crow once – it was awesome). Of course, the rancor that ate the dancer in Return of the Jedi was also apparently Jabba’s pet, but he’s not cute or funny.

As a child, Spock had a popular Vulcan pet named I-Chaya, a six-legged carnivore known as a sehlat. And, of course, it’s thanks to Star Trek that we have the adorable but dangerously fruitful Tribble.

Through the years Superman’s had a loyal friend in Krypto. Krypto was also from Krypton and, therefore, once he reached Earth, he had powers similar to that of Superman.

Finally, it being science fiction, the pets are sometimes robots. Most notably, in Dr. Who there is frequently a robot dog named K-9. And K-9 can actually shoot lasers out of his nose, which is pretty freakin’ cool.

So pets are important, not just to me and millions of other humans, but even to space and time travelers. How does the law protect our pets?

Caring for pets: Everyone’s heard the story about the millionaire who dies and leaves their fortune to their beloved pet. It happens often and courts will allow it. Generally, of course, pets are considered property so it’s difficult to leave money directly to the pet. Instead, the will can establish a caretaker for the pet and leave money to that person for care of the pet. Another option, however, that’s available in most states is to actually create a trust for the pet.

Hurting pets: A few years ago, people were horrified by a man, consumed with road rage, who tore a woman’s dog out of her lap and threw the dog onto a busy freeway, killing the dog. In that case, the man was charged with animal abuse and faced years in prison. Pets are still property, so claims for property damage are also possible, although many courts have recognized that a pet’s value is more than what would ordinarily attach to property. As a result, pet owners have been allowed to recover costs representing medical costs and the intrinsic value of the pet.

Suffering the loss of a pet: Several years ago the Washington Court of Appeals decided that a pet owner could recover emotional distress damages for malicious injuries to their pets. The New Jersey Supreme Court, on the other hand, recently rejected an attempt to create a new cause of action for emotional distress for witnessing the death of a pet. McDougall v. Lamm, 211 N.J. 203, 227, 48 A.3d 312, 326 (N.J. 2012). In doing so, it noted that most courts have rejected such attempts because of concerns about opening the door for other types of personal property losses, the difficulty of determining who could recover and for what types of animals, and the challenges in evaluating damages for such a subjective loss.

Losing a pet is never easy, and sometimes can be incredibly difficult. I’m not ready to turn in living, breathing, furry pets for a robot companion just yet, but the pain of saying goodbye to a dear friend makes me understand the appeal of a robot pet.

A Lawyer's St Patrick's Day

By

Josh Gilliland

-

March 17, 2013

0

St. Patrick’s Day is a holiday celebrating the life of one man and all things Irish.

I had the good fortune a few years ago to celebrate St. Patrick’s Day in Chicago, with a front row seat to seeing the river dyed green.

Sadly, the way some people celebrate ignores the real meaning of St. Patrick’s Day.

Instead, the celebrations keep many defense attorneys busy with new clients from irresponsible behavior.

By the nature of the adversarial system, District Attorneys in criminal cases and Plaintiff attorneys in civil ones may also find themselves with new cases. The Judges do not end up finding a four leaf clover under any circumstances.

Let’s review cases involving St. Patrick’s Day and leprechauns in honor of St. Patrick’s Day.

As a preliminary matter, if a city aids a St. Patrick’s Day Parade, would that violate the First Amendment’s prohibition on establishing a religion?

No, as one Court explained, “aid by the city of New Haven to the St. Patrick’s Day parade is not an establishment of religion because, even though the practice of honoring St. Patrick may be rooted in religious belief, a parade named after him is not necessarily religious and has possibly ‘evolved into a secular celebration by Irish-Americans and their friends.’” Commack Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 206 (2d Cir. N.Y. 2012), citing Curran v. Lee, 484 F.2d 1348, 1349-50 (2d Cir. 1973) (Emphasis added).

The next legal issue is why do people want to hold a parade to celebrate St. Patrick’s Day. One Court explained the meaning of parades and the First Amendment:

The tradition of a parade as a public event means that a street march commands our attention in a way that a sidewalk procession does not. As a community, we look forward to parades, we are attentive to them, and we interrupt our everyday lives to accommodate them. A parade is a significant community event — whether its purpose is to recognize Irish heritage on St. Patrick’s Day, to celebrate a sports championship, or to express gratitude to soldiers on Veterans Day. A marcher confined to the sidewalk is thus denied the public forum that we historically have used to express our collective sentiment. See Timothy Zick, Space, Place, and Speech: The Expressive Topography, 74 Geo. Wash. L. Rev. 439, 460 (2006) (hereinafter “Zick”) (“In terms of communicative behavior, place is as critical