Don’t Pass Go: How Password Sharing Sent Someone to Jail

By: Francis Cullo Over the summer, the Ninth Circuit handed down an opinion in United States v. Nosal that generated several fear-mongering headlines. At first blush, the Ninth Circuit seemed to outlaw a common digital practice—password sharing. But are you really committing a federal crime if you use someone else’s password when you Netflix and chill? The short answer is no. So what produced this flurry of headlines? The Ninth Circuit wrestles with password sharing. In United States v. Nosal the Ninth Circuit issued an opinion finding that an employee acted “without authorization” when he requested and used a former co-worker’s login despite having that co-worker’s permission. David Nosal was charged under the federal Computer Fraud and Abuse Act (CFAA). The CFAA is an anti-hacking statute. It creates a private right to action, allowing both private individuals and businesses to sue and recover damages when someone “intentionally accesses a computer without authorization or exceeds authorized access.” In 2004, Nosal was a big-wig in Silicon Valley when he left his employer to start a rival executive recruiting company. Two other employees from his former employer joined him a year later at his new firm. After joining Nosal’s new company these employees [read more]

The Truth About Your Makeup Routine

By Arielle Padover If you’re among the two-thirds of Americans who believe that the government regulates the chemicals that go into your personal care products, think again. According to the Environmental Working Group, American women use an average of twelve personal care products that contain 168 different chemicals every day, while American men use an average of six personal care products that contain 85 different chemicals. These chemicals are currently regulated by the Food, Drug, and Cosmetics Act, which has not been substantially updated since it was introduced in 1938, almost 80 years ago. The 1938 legislation gives the Food and Drug Administration (FDA) very limited control over the chemicals that go into personal care products. According to the FDA’s website, the “FDA does not have legal authority to approve cosmetic products and ingredients (other than color additives) before they go on the market” under the existing law. The FDA cannot mandate testing of ingredients or recall products, and cosmetic companies do not have to register with the FDA, submit ingredient lists, or report adverse events. Currently, only 11 toxic ingredients are specifically banned by statute from use in beauty products in the United States, two of which are mercury [read more]

Why it’s time we talk about “That Time of the Month”

By Danielle Bernstein   Don’t worry about paying sales tax the next time you go to CVS to pick up a prescription, buy some condoms, or stock up on sunscreen. These items are exempt from sales tax because they are considered medical necessities that are “intended for use, internally or externally, in the diagnosis, cure, mitigation, treatment, or prevention of illnesses or diseases in human beings.” But go to CVS to pick up a package of tampons? Time to pay up. Under the current tax code tampons and pads are not medical necessities, instead they are classified as items “used to maintain cleanliness.” This designation places tampons and pads in the same category as cosmetics like lipstick and shampoo. Interestingly, dandruff shampoo made the cut for a “necessity” and is not taxed. Any woman who has ever had to ask a stranger for an emergency tampon in the bathroom (and most of us have) knows this designation is incorrect. Tampons and pads are not luxury items. As one woman put it, “[They are] one of the most important things for a woman to have available.” And insofar as there is a spectrum of “necessity,” tampons are certainly more necessary that treating [read more]

523(a)(8): The Elusive Student Loan Debt Discharge

By Sam Gamer   This past summer, the total student loan debt owed by Americans crested up to $1.2 trillion. For those staring down their own slices of that staggering sum, the options available to pay it off can seem daunting. A lucky few of these former students might be able to find high-paying jobs that enable them to easily handle their debts. For most, however, the path likely includes some combination of sacrifice, payment plans, multiple jobs, and refinancing. And for those who have an appetite for uphill battles, an additional tool might make sense: bankruptcy. The discharge of one’s debts is a hallmark of the consumer bankruptcy system. Whether filing for chapter 7 or chapter 13, the debtor emerges from the process with his debts forgiven. Well, most of them. Contained within section 523 of the federal bankruptcy code is a list of certain debts that, even in a bankruptcy context, a borrower can’t escape from. Student loans are on this forbidden list. Specifically, the law says that, unless the former student can prove that keeping the loans will impose an “undue hardship” on him or her, the loans will not be discharged even after a bankruptcy filing. [read more]

The Converse Shoe Case: Why We Should “Chuck” the Aesthetic Functionality Doctrine

By Max Scharf Converse is currently in the midst of litigation which seems to completely depend on the status of the aesthetic functionality doctrine. When consumers think of Converse, they often think of their Converse All Star sneakers (as seen below), also known as “Chuck Taylors.” In October 2014, Converse filed suit against Wal-Mart (and dozens of other companies) claiming these companies were selling knock-off Chuck Taylors. For the sake of brevity, this post will mainly focus on Converse’s claims against Wal-Mart. Converse is claiming trade dress infringement on the grounds that Wal-Mart’s “Stinson Oxford” shoes are likely to cause consumer confusion.     Converse claims Wal-Mart is unlawfully reproducing its “midsole trademark” which consists of a particular design, including stripes, a toe cap, and a toe bumper. Indeed, in 2013, Converse registered this design with the Patent and Trademark Office.   Background on Trade Dress Protection In Two Pesos, the Supreme Court held that the Lanham Act protects trade dress, which includes the “shape, color or color combinations, texture, [and] graphics” of a product. Trade dress, in the form of a product design, can only be registered and protected, under the Lanham Act, if it acquires secondary meaning. Secondary [read more]

Is This Really Legal? Warrantless Entry, Arrest, and Excessive Force in Alabama

A recent post-game celebration in Tuscaloosa, Alabama received national attention after local news reported an altercation between University of Alabama students and local police. Videos of the incident, captured by bystanders, paint a violent picture as police tasered students multiple times, threw them to the ground, struck them with batons and dragged them outside of their apartment. The video caused an immediate uproar on social media, prompting outrage and calls to eliminate excessive force and police brutality. In response, the Tuscaloosa Police Department promised a full investigation of the circumstances depicted in the video. However, after seeing the videos, many people still have questions about what happened. One Twitter user, reported by the Washington Post, asked a simple question: Is this legal? The short answer is no, and here is why. The facts, as shown in the video, actually raise two legal issues. First, was it legal for the police to enter the student’s apartment without a warrant and issue an arrest stemming from a noise complaint? And, second, was the use of force by the police in making the arrest—including the taser—legal? Let’s start with the first issue. The Fourth Amendment protects against unreasonable search and seizure, including warrantless [read more]

Plea Bargains — The Plea Bargainer’s Dilemma

Suppose two of your friends drive over to your house in New Jersey and pick you up for, what you believe, is a night on the town. As their car is pulling out of your driveway, two police cars pull up, sirens blaring, and the officers jump out, weapons drawn. You are arrested and charged as an accomplice in a robbery your friends just committed. You retain counsel, and she has bad news: inexplicably, an eyewitness has identified you at the scene of the robbery, and the case against your friends seems airtight.  She believes you have a strong defense – you have an alibi. The strength of this alibi, however depends heavily on your credibility at trial. She warns you that first degree robbery in New Jersey carries a presumptive sentence of fifteen years, with a minimum sentence of ten years, and you have to serve 85% of the sentence to be eligible for parole. But, there’s a bright side. –The prosecutor recognizes that there’s a possibility you weren’t an accomplice, so he’s willing to offer you a plea bargain: a two year sentence in exchange for your testimony against your friends. Rationally speaking, unless you are almost certain [read more]

Is Daily Fantasy Sports Gambling?

In August of 2015, Forbes published an article highlighting the fast-growing daily fantasy sports (DFS) industry. The rise of fantasy sports and most specifically fantasy football has been truly remarkable. In recent years, fantasy football has absolutely exploded with over 30 million Americans playing fantasy football annually. Fueled by over one billion dollars in venture capital and powered by the internet, fantasy football has been rapidly evolving. It is this evolution that has, in many ways, shaped the controversy surrounding daily fantasy sports sites. Traditional Fantasy Sports: Traditional fantasy football gives players a chance to serve as team owners/managers and compete in a “league” of friends. The fantasy season begins with a “draft” process where each participant is permitted to select players for their team. In the standard league, each “owner” is required to fill a team roster. Each week of the football season, owners are matched up against an opposing owner. Points are then allocated based on various athletic achievements made by the players on their team. The winner of the weekly matchup is the team with the most points. The challenges continue until a winner is declared at the end of the football season. In 2006, Congress passed [read more]
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