Cyber Crime - Listener Questions and More!

Coming up next on The Outlaw Lawyer, Joe and I talk about power of attorneys.

Next. And now, the Supreme Court has said, unanimously, this was wrong, fact-based. Your belief at the time doesn't necessarily jive with what the actual law is.

It's reasonable, informative. Now if you take in facts and you think about them and you don't jump to an instant opinion, you're the outlaw. And now, Outlaw Lawyer with Josh Whitaker. All right, we're back on The Outlaw Lawyer.

I'm Josh Whitaker. With me, as always, is Joe Hamer. Joe, how was your weekend? My weekend was fantastic, Josh.

I was just a nice, relaxing weekend. And I was very excited to get back into the studio with you, my co-host, and discuss some good legal topics. Well, it's always interesting. There's always legal news. There's always things going on that, again, don't get covered by the, I wouldn't even say the mainstream media, just the media in general, don't pick up on that really affect everyday life for every North Carolinian in North Carolina.

Every person. And even though the media may not pick these things up, we will pick these things up. So we are very excited. We have got two listener questions and they're both very good questions.

And we're going to talk about them before we get to legal news, before we get to the cases we like to talk about. And so our first listener question is from, I've just got Dave. I don't have a last name. I just got Dave. Dave. But Dave asked, he says, his mother is aging. She is competent, but we are having to put her into assisted living. The assisted living center mentioned she needed some documents, including a power of attorney.

Does she need one? And so that is our listener question. And that is fine advice that they're getting because I would answer that. Yes, everybody needs a power of attorney, but definitely his mother, Dave's mother in this situation, she's going to need one. But before we even get that far, what is a power of attorney?

Fantastic question, Josh and Dave. So generally speaking, a power of attorney is basically a mechanism that's going to allow you to essentially nominate what we would call an attorney in fact. You're going to nominate someone who can basically act as you act, do what you can do and handle your affairs. And there's a couple of nuances to that.

We'll talk about it and we'll discuss it because I think a discussion of that is necessary to really adequately answer Dave's question. But that's basically what it is. You are appointing a person that is going to be able to handle your affairs, to make decisions on your behalf, and to do things that you would otherwise be able to do if you were present or acting on those things. And I think it's important, Joe, the reason that you can have a power of attorney, the reason that you can name an attorney in fact is because there is a state statute that allows you to do it. Otherwise you couldn't do it. So everything that we talk about goes back to a statute or goes back to case law.

There's something that allows this to happen. And so every state has a statute that talks about what you're allowed to appoint an attorney in fact to do for you, how it's to be done, what the form should look like. Does it have to be notarized?

Does it have to be recorded? And so all this is just laid out in the statutes. And so depending on your needs, you would meet with an attorney and an attorney would figure out what's going on. And then we would determine what kind, how complicated, how simple of a power of attorney you need. The statute provides for different forms.

So there's a short form, which is just very basic. It's going to itemize things, powers you want your attorney in fact to do. And most of the time, when we talk to people, we're talking to someone who's appointing a child or their child, or their children to act as their attorney. In fact, that's not always the case. You don't have to name a relative. You can name your attorney, your financial advisor, your neighbor, a guy at church, your preacher.

There's no, but usually we're talking to someone who is getting advanced in age and wants their children, the next generation, to be able to help them do things that they may not be able to do as easily. That's correct. And so you covered it. We've got the short form version, which is literally just designated in the statute. We talk about statutes a lot. We encourage all of our listeners, spend three, four hours a week, just reading your state statutes. I think it's a good practice to familiarize yourself with the law. But yeah, so the short form is literally set out in the statute. It's literally a form that is statutorily designed to just kind of be straightforward. It covers the basics. It's going to meet most needs for the common person.

Yeah. That short form will just have you say, Hey, I want, you know, my son, Joe, whoever, or it's a great name for a child to be my, my attorney. In fact, to act on my behalf. And it has a list of items that powers you can give to that person. So, uh, inner real estate contract, banking transactions, alter life insurance, you know, there's just a big, long list and you kind of go through and you initial, um, you know, what powers you want to bestow upon that person.

And then, and so that's kind of the, the simplest form. And that works for the majority of people, a lot of people. Exactly. So, and there's definitely folks have more complicated issues, uh, that we have to address. Um, one thing that comes up a lot, again, when we're talking to people is they have more than one child. And so they're, they're doing this as part of an estate plan. They want all their children to serve as their jointly to serve as their attorney. In fact, and that people don't want to upset their children.

And that's cumbersome. We usually try to advise people not to do that. You really want to nominate just one person, you know, and, and maybe you can make a requirement, uh, that they have to report back to certain people, or there has to be some, some reporting mechanisms. So they don't, I don't know, go rogue.

Yeah. I think the reporting mechanism is a good check. And, uh, if you don't want to, to, to, to upset your kids, then just pretend like you drew straws, come up with some way to reduce the number of attorney and facts that you have. I have seen people, I've seen, I have seen people with up to like four and then, and then the power of attorney says they can't act independently. So it's not like one of each, you know, could do something. They all have to join in.

And so you're not, you know, they can't, the result is they can't do anything. Yeah. The purpose of the power of attorney is to reduce stress and to make things easier for everyone. And that's just going to make things harder for everyone and including you, because you're ultimately going to get dragged into it in some fashion. And you may not even be competent at that point.

Who wants that? Yeah. Competency is a big thing. And so competency means different things for different legal documents and, and, and here for a power of attorney, uh, you know, a lot of times we're getting called because the person who wants to give the power is aging is infirmed.

It's going into the hospital for surgery is going into assisted living. And so one of the things that an attorney has to do, um, Dave may call into our office to schedule a consult, but we don't want to meet with Dave. We want to meet with the, his mother. We have to ask some questions that we, we feel good as her attorney, that she knows what she's doing. Exactly. And that competency piece is key. And the important thing is don't wait too long. You know, a lot of people, you may want to put a power of attorney off until you really need it. But when you really need it, especially in this scenario that we're discussing, you could potentially lack the capacity and the competency to even execute one effectively. And so don't wait.

Yeah. And if you wait, if so, if you wait too long and then you're no longer competent, uh, to, to, to sign a power of attorney, then it's too late. And so what your, your children or the folks who are taking care of you, they're going to have to go to the court. They're going to have to apply for a guardianship. There's a court process. There's a hearing. Um, it is much more convoluted than a nice, easy document prepared by your attorney at your, your direction is a much more complicated process. Everybody in the family gets served.

There's a lot of things going on. So you want to avoid, that's the whole point is you do these power of attorneys while you're competent as part of your estate plan. And then you, no one has to do this guardianship step. You have to report things to the state.

It's a public record, just not a good thing to have to do. Everyone in your family gets served. Yeah. And we have to do it. I mean, we, we have clients that that's just what they have to do. You know, if you're 42 years old and something happens and you weren't, your estate plan's not complete because you're only 42 years old and, um, you have a medical emergency or something happens, then, you know, we kind of have to go that guardianship route, but it is more expensive, more expensive, much more of a hassle, not preferred ways. And it's not going to be what, you know, you're, you lack the capacity at that point to tell what you want and who you want to do it. So just do it.

Don't wait. Um, you touched on competency and I think it's important to make the distinction between durable and non durable powers of attorney and how those two interplay. Can you talk a little bit about that, Josh?

Yeah. So there's two types of power of attorney. There's durable and non durable. So, uh, basically the way I would explain it as a durable power of attorney is one that survives your incompetence. So the, we all draft these power of attorneys for the day that we're not competent and a durable power of attorney is, is the one we almost never do non durable.

We almost always do durable because it survives your incapacity and it allows your attorney in fact to do what they, uh, what you want them to do to handle your affairs, pay your daily bills. And again, you know, we're talking about the situation where you're infirm, where you're unable to act. There's people who use these POAs just for assistance in daily affairs.

They may be out of the country. They may, they may limit them. That's again, there's a lot of flexibility when you're drafting the POA. You can get as specific with what you want to delegate. You can get as broad with what you want to delegate as you'd like.

Um, so there's a whole lot of room to kind of tailor that POA for your needs. One of the things that come up a lot is, um, let's, let's say you're setting up your power of attorney. Your attorney in fact is your only child and you want them to be able to make gifts. You know, you can, you know, I'm no CPA, but you can make certain tax-free gifts as you do your estate planning and want to get things out of your estate. And if you want your attorney in fact to be able to give to themselves, you can allow them to, to self gift. It's a specific language you put in your power of attorney, but without that specific language, your, your attorney in fact is not going to be gifting to themselves. That's a very important, uh, distinction. Yes.

It's a little thing, but it's a big little thing, right? So that the default is that your, your attorney in fact cannot self gift to themselves. So that is the default. So if you want them to be able to do that and exercise that power, that is going to be a specific power you add to the short form might not be the best option for you. We might have to do some drafting for you on that one. And, uh, w you know, we could spend a lot of time talking about the nuances of power of attorney and, uh, the distinctions.

And, you know, we've, we've talked a lot about just the, this general power of attorney, and there's a whole nother subsection of the topic where we, we could talk about healthcare power of attorneys, which probably honestly deserves its own segment because it's a, it's also a dense topic that, that has a lot more things we can get into. I think the main thing is, is again, don't wait. Uh, you know, go ahead act. Um, we would love to be the, the folks that help you out with that. Um, again, we always encourage you, uh, anytime you got a question, anytime you got any follow up, give us a call 1-800-659-1186. Um, we're happy to talk to you about, again, any of the things we've discussed today, we're happy to talk to you about helping you out with your own power of attorney. And, um, we just encourage you guys to, to reach out to us. When you call that number, when you call 1-800-659-1186, um, two things can happen. You can leave us a question you want us to talk about on air, just a general question like we're doing for Dave.

Um, or if you need to talk to one of our attorneys, we can certainly get you over to one of our attorneys to set up, to talk about any questions or issues you may have. But Dave, I hope we, I hope we answered your question. I wish we had your last name so we could, we could know you better. Dave question mark.

That's right. Next up we'll, uh, we've got one more listener question I want to tackle. And so we'll do that next.

Welcome back to the Outlaw Lawyer. Um, we're here, Josh and I, we're answering a couple of listener questions. Again, we encourage all of the listener questions. We, we love to hear what you guys are thinking. We love to, to, to interact with the folks that are listening to the show and to really engage you guys.

And that's the, that's what we're here for is to talk about things you're interested in and help you guys any way that we can. So we've got a listener question here. This is from an Ashley, again, no, no, just Ashley. We need to start getting last names.

At least the letter. This is Ashley D. I'm going to go with Ashley D. Uh, Ashley asks, I'm single without children. What happens if I die without a will? This is a morbid question.

It is. I hope Ashley's doing all right. I think Ashley's question is, is more, is I think what Ashley's probably trying to ask is, is should she have a will? What happens if I die without a will?

But I'm going to take that as I'm single without children. Should I have a will? Maybe Ashley's looking for a will. Should Ashley have a will? Simple, simple answer to Ashley. Anyone's question. Yes. Yeah.

I think as a, as, as attorneys, any attorney is going to tell you, yes, you should, if you own anything that's worth anything, you should have a will. And here, Ashley's telling us she's single. So she doesn't have a, have a spouse. Um, she may not, she may have a significant other, but she doesn't have a spouse. And that's an important distinction in North Carolina. You know, we don't have in North Carolina, we don't have common law, uh, marriage. You know, we don't have anything like that. You know, if you're, you're either married or you're not in North Carolina. And so she's saying, I'm not married and I don't have any children.

So what happened? You know, what happens if I die without a will? And the question is, if you die without a will, then the statutes take over.

There's always, there's always a statute, but, uh, Joe, maybe the, maybe the first question we should answer, and it may sound basic, but basic questions are always the best ones to start with. What is a will? What is a will? Simply put a will is a, it's a written statement of how you want your property distributed upon your death. Um, it's going to let your heirs, let your kids, let the folks you leave behind know what do you want to be done with the things that you accumulated in this life? What are your wishes?

Uh, what are your desires? And, and it's just going to give you some level of control over the disposition of your estate after you've passed away. So it's not just, again, left up the chance or left up to the statutes or the state to decide what happens to the things that you have worked very hard to accumulate over your lifetime.

Right. So you're, you know, in, in, in estate planning, we have two types of assets. We have real real property and we have personal property. And so real property is land, your house, you know, anything, you have a deed to grave plot, you know, uh, you got real property and then absolutely everything else almost is personal property. So your bank accounts, cash on hand, your furniture, your clothes, your gun collection, your cars, um, almost anything else is personal property. Um, and so that's what we want to deal with.

We want to say, Hey, what do you, we always look at what do you have now? What are your assets? So anytime I sit down with somebody and we're doing an estate plan, what do you got?

What don't you have? So we talk about real property and personal property, and we talk about probate assets and non probate assets. And that's a real complicated way of just saying, Hey, well, will these, this class of assets end up in your estate if you died tomorrow or would they pass automatically? I always say by operation of law, that's kind of how it's a good phrase.

So that's kind of how I always, how I always say it. So we'll sit down and we'll talk with him like, well, what do you want to happen to your house? And he'll say, okay, well, I won't, I won't, I want that to go to my children. And so in your will, we'll have a clause, you know, the real property I own at one, two, three fake street goes to my son, Joseph, the, uh, and I'll say, okay, well, what about your personal property, bank accounts, things like that. And so we'll say, okay, we want that to go here.

We want that to go there. Your will can be as simple as everything I own to this guy, you know, or everything I own to this and we don't, but we usually like to look at asset classes. Yeah. And so you, you, you, again, you touched on the probate versus non-probate. Um, and again, probate just meaning anything that is subject to your estate, like you said, that will pass. Um, I think the goal would be, you know, for us, if someone comes to see us or, you know, really just, it, it makes practical sense to have as few probate assets as possible and to have no probate assets if at all possible. And that doesn't mean you have no things, you have no stuff. It just means that you are going to plan your estate in such a way that you are going to, to avoid the, whether it be your will or whether it be the, you know, the statutes that are going to dictate, you don't want to have to have any of your things disposed that way. And there's ways around it. There's creative estate planning methods to basically avoid the probate process, which I think is, is really ideal for a lot of people.

Yeah. I think the goal of any estate planner. So if I was doing estate planning for myself, my goal would be that when I pass away at 128 years old or 140, medical advances, you look healthy. When I skin, when I pass away, I don't want to have anything in my name. That's my goal of my estate plan. And that's the attitude I take when I talk to people.

Josh is giving one lucky listener, all of his property. First person that calls 1-800-659-1186. The, but that's always the goal and is to get it to the next generation. Normally, you know, I'm, I am just a lowly attorney.

I am not a CPA and we don't give tax advice, but if you have a CPA, we often work with your CPA and try to figure out good strategies to get everything to the next generation in a way. And you still want access to that property, right? I mean, I may want to spend every penny I have before I die at 140 and I may need every penny I have.

Zero out that last day at 139. And I think that's that, you know, we've got different vehicles we can use. You can create a, you can create a trust, a revocable trust, irrevocable trust. There's, there's all kinds of things that we can do.

And we're not, we're not doing a very good job of answering Ashley's questions. So we won't get into that now, but to answer Ashley's questions, if you die without a willy, if you die without this written statement of how you want your property distributed, then you're stuck with the laws of intestate succession. And so that's a legal word, but there are statutes that say, Hey, here's where your property would go, depending on your marital status, depending on how many kids you have, your part, this part of personal property goes here, this part of real property. So it's written into the statutes, what happens to your property if you don't leave a direction.

So again, yeah, it's not going to be what you want. It's not going to be what you would like to have happen to your property. It's going to be what the legislature has decided and codified and the statute is the most appropriate way for your property to be distributed. So it is again, going to just strictly, you're going to be looking at black letter law, there's formulas and, and everything is going to be divided and distributed pursuant to literally just what has been written in the statute. So again, get a will.

And so there's, there's some, there's some, we keep seeing the same kind of, I call them horror stories. We know any of our stories from the firm, but, but where this comes into play big time is, is when you have a blended family. So you've got two individuals who've come together, maybe they're second, each is their second marriage. They've got children from prior marriages and they come together. And without a will that gets really messy when you leave it up to the statutes. Very, very messy. Usually in these blended family situations, you're, you're dealing with estranged spouses, uh, people who don't care for each other all that much anymore.

Ideally, everyone would get along. Everyone would be happy, but a lot of times you're going to see, you know, you could have a situation where you have gotten divorced and you greatly dislike your, your ex-spouse, but that, that person is who is taking under your current estate plan. So in a, it's very important in addition to having an estate plan, to having a will, uh, have it reviewed, you know, your life changes, your situation changes. And with those changes comes, you know, the need to review these things, uh, and to make sure that what you want to have happen is what is going to happen upon your death. Another note for blended families, you know, one thing that we see, we see people who get remarried, but they never update their life insurance beneficiaries.

They never update their work pension plan beneficiaries or investment account or 401k. And you'll see something happens and they pass away before they expected to. And you'll see an ex-spouse, you know, uh, still there who could still in theory, there's some laws to protect you and there's some other things going on. So it's not as simple as that, but you need to update all your beneficiaries. I've seen a lot of folks with blended families, um, who may have stepchildren who they fully treat as their own children, but have never been formally adopted. And if you die without a will, well, stepchildren don't take anything under intestate succession.

Your, your heirs are your, your blood lineage. Exactly. And you know, the statutes do as good of a job as they possibly can of, you know, catching all of these situations. But again, you're the only one that, that truly knows what you want. Every situation's different. Everyone's got a unique situation.

So the statutes can't account for all of that. And it's going to do the best job it can of providing for this disposition of your property. But a lot of times it's gonna, it's gonna vary from what you would pick if you were actually alive and not dead at the time. And Joe and I, again, our attorneys with the law firm of Whitaker and Hamer, both alive, both currently living. We are giving, we're having a general discussion right now. We're not giving anybody legal advice. And that's always important. You'll hear attorneys say that on our show and other shows.

This is just a general discussion. You really have to talk, even if it's not us, you have to talk to an attorney. That attorney needs to take into account everything that's going on.

Everybody's got nuances. Most people don't fit into the perfect cookie cutter, you know, will you get online or what have you. Sometimes those can work, but most of the time you just need to talk to an attorney. And like I said, we're always happy to help. If you have a question for the show for us here at the Outlaw Lawyer that we can talk about, or you need to talk to an attorney at the law firm of Whitaker and Hamer, you can give us a call 1-800-659-1186.

That's 1-800-659-1186. Just like Josh said, you are a unique individual. Your situation does not fit into a cookie cutter mold. Get some individual legal advice, really individualize something where you can ask the questions you need to ask and get the answers that you need. Coming up on the Outlaw Lawyer next, we are going to talk about how the Supreme Court has narrowed the scope of the nation's main cyber crime law. Cyber crime is a big issue.

It's something that's popping up increasingly in our day-to-day lives. And we're going to talk a little bit about how this Supreme Court ruling could potentially affect all of our lives. All right, we're back at the Outlaw Lawyer. Josh Whitaker here with Joe Hamer, your co-host of the Outlaw Lawyer. Again, if you have any questions for us, you can reach us anytime 1-800-659-1186.

That's 1-800-659-1186. We would love to hear from you, love to be able to talk to you about legal issues. And so now we want to switch gears. The Supreme Court, the U.S. Supreme Court, I should say, has just recently come down with a new decision on a very important case regarding how authorities track, prosecute, investigate cyber crime. And so the newest decision that came down, basically, really, the way I read it, the way a lot of people read it, limits a couple of tools that federal prosecutors have in their arsenal to kind of go at cyber crime. But Joe, you're more familiar with the facts than I am.

What happened in this case? Joe Hamer Cybercrime. Cybercrime is a new-ish term. But again, I think it's going to become more relevant, more prevalent every day.

We live in an increasingly online society. And we've seen huge effects from cybercrime here recently, which we'll kind of get into. But yeah, so the case is Van Buren versus the United States. The case basically involved, there was a former police officer who was convicted of violating the 1986 Computer Fraud and Abuse Act, or the CFAA for short. This cop basically searched a license plate database in exchange for a bribe as part of an FBI sting operation. The officer ended up appealing his conviction as he was convicted under the act, again, for the misuse of that system. And his lawyers argued that the law didn't cover the unauthorized use of a computer system that the user was already allowed to access as part of his job.

And the Supreme Court actually agreed with his lawyer's arguments, and they held that Van Buren's conviction under the CFAA was actually invalid. And that's essentially where we're at. Let me make sure I understand the facts, Joe. So we have an employee who has access to, I don't remember what state this was happening in, but basically an employee of some government entity that had access to a license plate database. So that's what he did every day. That was part of his job.

Exactly. So he's permitted access to the license plate database. He's allowed to look at it, but obviously looking up license plate information as a bribe, not a permitted use.

So we've got an FBI officer agent representative who comes in and offers to bribe our guy here to look up certain things and he does it and he gets his bribe. And so then there was a conviction under this act that's not, we don't see it used a whole lot. So I don't know that we see it in our day-to-day lives being used a whole lot, but I think the critics of the way that this was being used, there was a lot of advocates. There was a lot of people that spoke out in support of Van Buren, not because people love to see a guy getting bribed by federal officers to provide license plate information, but because the way that this law has been used historically, a lot of people feel like there's been exceedingly harsh penalties handed out for relatively minor things.

And then we'll talk about how really it's not so much what's happened already, it's just the super strict interpretation that had been used in the past. It would essentially make every single one of us, me and you and our wonderful listeners included cyber criminals that could potentially be prosecuted under the CFAA. So it was a six to three decision and basically like we've discussed, that decision prevents federal prosecutors from using the CFAA to charge anyone who misuses a database that they are otherwise entitled to access. So it was actually kind of an unusual lineup in the way that the votes broke down because you actually had the three Trump appointees who were the newest justices that sided with the court's three liberals to reject what the justice department had interpreted the statute as. And that's always interesting when we talk about these Supreme Court cases and we actually have a judgment. It is fascinating to see, because we kind of all, the people who follow the Supreme Court, we kind of have every justice profiled. You know, this is the president that appointed, this is probably their political affiliation, this is what we think they stand for based on other things they've done. But here, yeah, we're so used to, you know, five, four decisions right now and party lines and things like that. But this was an odd six, three decision.

Yeah. And so Justice Barrett is actually who issued the majority ruling. And she stated that the government's interpretation, just like we talked about, if we go with the government's interpretation of the statute, it's going to attach criminal penalties to just a crazy amount of commonplace computer activity that every one of us does every single day. So again, we would all be cyber criminals. She basically argued that if the clause that states that it exceeds authorized access, if that clause criminalizes every violation of a computer use policy, then all of us would essentially be unwittingly made criminals. You know, the majority ruling rejected that broad interpretation of the statute, which would have basically criminalized everything from embellishing an online dating profile, that would become a crime. And some of us who've maybe been burned by online dating profiles that have been lied on, maybe that's triggering to us.

But it could also criminalize the use of a pseudonym on Facebook. So anyone, there's a lot of those out there. I see a lot of them. So you had a lot of, you know, I don't know if our listeners are intimately familiar with amicus briefs, but when you have a case like this at the Supreme Court level, you know, you've got your your petitioner and you know, you've got your basically your, I guess, for lack of a better word, your plaintiff and your defendant filing motions and filing briefs.

But since the Supreme Court can affect everybody, even people that aren't directly involved with the case, it allows people to come in and file briefs for for one side or the other who aren't parties to the current lawsuit. Exactly. And so you had you had a lot of those here, just a few notable instances of that. You had the National Whistleblower Center, which basically said that if we apply that CFAA to any unauthorized use of computer data, that you're inviting all kinds of retaliation against whistleblowers because you're you're looking at that becomes criminalized. Anyone who's blowing the whistle on someone that's doing wrong and is misusing whatever database they're they're pulling from could potentially become a criminal.

Yeah. You've got folks who who need to be protected, who are coming forward to blow the whistle on behavior that that most Americans wouldn't find acceptable. And then, yeah, under this this broad interpretation, they're they're not protected.

Exactly. So you've got the majority of justices. Again, it was a six three decision. But but you got three justices who who dissented. And just to summarize the dissent, they basically argued that there's many areas of the law where, you know, permission not to do something for one purpose doesn't imply permission for an unrelated purpose.

So basically, they said, like, you can have a valet who is authorized to go and drive and park your car, but they're not authorized to go on a hundred and fifty mile per hour high speed chase, rob a bank with your vehicle. So that, you know, the dissent kind of took that approach. They just basically wanted to say that just because we may be uncomfortable with a large swath of conduct being criminalized, that doesn't give the judicial branch the ability to alter the statute. They were basically saying the law is the law. If we want it to be revised, that needs to be revised by the legislature. It's not the judicial branch's place to modify what is the clear intent of the law itself. Right. Right. You'll see the Supreme Court do that a lot when they're presented with something like this, where they they're being asked to limit or expand the reach of a federal statute.

And you'll you'll see that a lot. We're not lawmakers, you know, that that we are not the legislature. We're not making laws. We're interpreting what's already there.

Yeah. So supporters of that broad use that's been been, you know, now shut down, they basically said that it was it was necessary to interpret this so broadly in order to combat insider threats that face businesses and government agencies, sensitive computer systems, and that by narrowing the law, which is which is what's now been done. But by doing that, you're basically allowing any person who has legitimate access to the data carte blanche to access and use or in many cases destroy that data for really any manifestly manifestly blameworthy reason that they choose, which again, I mean, that's it's it's something to consider. But I mean, at least the pseudonyms on Facebook will will survive. Right, right.

We can all still be different people online. The it's always a balancing act for the Supreme Court. It seems like almost no, no matter what the situation is, you're balancing civil liberties with the interest of the government to fight crime to protect us from cyber terrorism, cyber attacks.

So it's it's always a balancing act with the Supreme Court. And it's just it's always fascinating to see how they get to where they're going. Exactly. And you know, we this is a very narrow area of cybercrime. But cybercrime is a big developing thing that we have seen increasing, like just instances of every day. And I think, again, like, like I said, it's only going to increase in prevalence as we move forward into the future as we become, you know, more interconnected online.

There's just a whole lot of really scary possibilities there. And, you know, what we what we're going to continue to discuss because this is a long discussion, because again, this cybercrime affects us in ways we may not even realize. But we're going to talk a little bit coming up next about how cybercrime currently affects our lives, how it's kind of ever evolving and how it just continues to have an impact on the things we do every day. We're going to talk a little bit about some things we've seen in our practice. We see a stunning amount of cyber fraud attempts literally every single day.

Yeah, it's it's it's amazing. As attorneys, we spend more on IT security than when we first started when I spent money on rent initially, you know, back when we started back in 2004. But again, here at the Outlaw Lawyer, we really want to hear from you. Any questions or comments you have on any segment of the show, give us a call 1-800-659-1186. If the law firm of Whitaker and Hamer can do anything for you, if you need to talk to an attorney, give us a call 1-800-659-1186. Our folks will get you connected with an attorney who can help you.

That's right. We'll be right back. We're going to continue our discussion of cybercrime and talk about some terrible, terrible things that happen in the cybercrime world and how you can identify and take steps to prevent them. We're back at the Outlaw Lawyer.

Josh Whitaker, Joe Hamer here with you. We just discussed a important Supreme Court case that in theory could limit how authorities track, investigate, prosecute folks who commit cybercrimes. The examples of cybercrime are it seems like there's something every day right now.

It's ever evolving. And there's probably cybercrime out there that that we don't even realize is cybercrime. Well, I think that I think the thing that scares me the most, you know, you've got we're gonna talk about cyber fraud on an international level, but also on a very, very local level.

And that's just what we see in our in our everyday practice. But, you know, we've we've had, of course, the shutdown of the pipeline, which, I mean, the feeling I got reading on the the pipeline shutdown was that it was it was some rank amateur cybercrime folks who pulled that off. I think Yeah, I think a lot of the cyber criminals are, you know, young, the youth, the youth has a lot of free time these days. And increasingly more and more tech savvy as the older generations are increasingly less and less tech savvy. So you have that you have the pipeline, which was big news.

And we're I think we're still feeling the effects of that on gas prices and still some limited availability and some places where it hasn't gotten back restored to what it was. There was the water treatment facility in Florida that got hacked into and they were going to try to put in way more chlorine and Yeah, they were going to basically try to poison the water supply, which is that's a devious plant. That's like James Bond villain. It's like it's like a Lex Luthor or and and not for money. You know, that that was just there was no just for fun.

Like that was just to see if they could do it, I would think. And then, you know, you've got the folks that that's in the fish. We can't give legal advice on the show, but we do not recommend hacking and poisoning your town's water supply. I just can't imagine, you know, and a lot of these people that are doing it, they're not I mean, I don't want to say they're not under American jurisdiction, but they're not here. It's hard to get it's hard for the authorities to get their hands on them. And it almost seems just from not even a lawyer's perspective, just a citizen's perspective that, you know, lately, it seems like we're almost powerless to to stop or prosecute some of these things. Yeah, I think that's I think one thing that if you're savvy enough to hack into a system, a lot of times you're savvy enough to cover your tracks, to use, you know, VPNs to kind of hide where you're at. And I think that I think we'll see that changing as the cybercrime world develops, as we see more and more of it, there's going to be techniques, there's going to be ways to combat that. But then at the same time, you're going to see these cyber criminals continue to evolve as well. And, you know, we've seen that evolution ourselves, we, you know, doing real estate transactional work doing dealing with with money and wire transfers, I would estimate we see five to 10 wire fraud attempts come in, you know, every couple of weeks, would you say that's a fair estimate?

Yeah, we know we're, when you when you're doing a real estate transaction, you're dealing with a buyer, a lender, a seller, some real estate agents, a lot of third party, some that are never coming to our office, some that we won't meet in person. And that opens itself, you know, to to people, you know, we have we have a situation where you will have someone that you're interacting with on email, and their emails been compromised, they have a at yahoo.com, or, you know, there's a couple of ways. So you can have the compromised email, which is literally someone has gotten into your email and is using your actual actual email. And that's usually going to be the result of you getting caught in either some type of phishing scam, where you, you know, without even really realizing and have provided this person with all the information they need to log into your account, or you could have fallen victim to, you know, one of these wide scale breaches where your passwords and information, something you've plugged into a website or an app has been breached, and hackers have that information, and then you're just the unlucky person that gets drawn.

But it's really amazing. The the the number of attempts that we see. And these are all these are all attempts, you know, we've, we've taken great care, we spend a lot of money, we deal with a lot of people far smarter than ourselves, to protect us from these threats. So you're talking about a very large portion of the population who have compromised email, and who have bad actors that are in their email and gathering enough information about their day to day life to, you know, pose as them with some level of accuracy. It's kind of scary.

Yeah, there are people out there who are in your email, and that are watching it, they're figuring out that, okay, you're buying a house, these are the players, you know, we've we it hasn't happened to us, but I've had other attorneys who, you know, I've had buyers wire their their down payment, their cash to close overseas, you know, someone has figured out someone has been in their compromised email, they have figured out what's going on, and they have interjected themselves as a as a as a player in the game, somebody who works for the lender, someone who works for the closing attorney, and they've given you some fake wiring instructions, and they they get you to wire a significant amount of money overseas. And it's happened several, I mean, several times happened probably hundreds and hundreds of times. I think it's increasingly, you know, it's something that happens more and more. And I think the reason for that is used to be as it used to be like this was years ago.

This is all relatively new and developing. But even with something this new, the attempts have gotten more sophisticated. When I first started practicing law back in 2004, back in the olden days, there was, we preferred certified checks, like if somebody wanted to wire us money, we wouldn't even and you've still got attorneys who do that who've been burned or who are just terrified of this prospect, which it's a scary prospect. But we moved away as an industry, we moved away from taking certified checks, because they became too easy to, you could just fraud, I mean, you could just make a convincing looking fake of a certified check, you know, and so fraud concerns drove us kind of to wires. And then once we got to where wires was kind of the standard way to move a decent amount of money around, then yeah, you have these, these people who sit out there and I think because it's it's hard to catch them. It's hard, you know, they're not gonna really feel penalties from it.

And if they succeed, even one time, it's a it's a big score. Who among us hasn't gotten the Nigerian Prince email? Yeah, those those those emails are out there. We had a client who it wasn't an email, we had a client who got it got a call the power, we're going to cut your power off.

And they had actually been having problems with their power company, they weren't getting bills. And again, this is what the the bad actors they, they have enough knowledge about what you're going through, especially if you're corresponding by email, and they can see your email, they're going to have enough information to really take advantage of you if you let them. So we at the firm, I don't know, five or six years ago, we went to an IT contractor factor, you know, authentication authentication, thank you for for email.

And so that went from five years ago, we didn't spend much money on that at all. And now it's one of our biggest expenses is it server database security. Thanks a lot hackers. So and we went out, we've got the firm carry cyber insurance. Now, just in case something happens, there's a there's a cyber fraud, a cyber insurance policy, in addition to the standard errors and omissions malpractice coverage that attorneys carry. So this is it, and it's getting worse every day, just like Joe said, every day, we see more attempts, and some of them are even close. I mean, some of them are so clumsy, anybody can can pick up on them, you can usually pick up, I mean, you kind of develop it as a skill.

And we spend a lot of time training our employees as well. But uh, you know, like you said, a lot of these, a lot of these people are not here, you know, a lot of them don't speak English as a first language. And so I just encourage everybody to be extremely vigilant and look at every single thing. If you if someone reaches out to you, asking for money, asking for any kind of personal information, nine times out of 10, just immediately assume it's a scam. That that's step one, but but look closely at it, you know, you in almost 100% of these these fraud attempts, they may look relatively convincing, but you're going to spot grammatical errors. Pay close attention to the email, we talked about the situation where your actual email is compromised. And then there's also the more common situation where someone's going to take your email, and then they're going to reproduce it with one minor variation. I think it's called spoofing spoofing.

Yeah, that's the technical term. But But again, pay very close attention to that. Just pay close attention to everything. Assume you're getting scammed.

I think that's a safe assumption. Assume you're getting scammed until you have conclusively proven we you're not at Whittaker and Hamer, we handle a lot of real estate transactional. So you have a lot of people who are buying maybe their first home, they're not really familiar without escrow accounts work. But that's going to be that transactions of public records in North Carolina, you buy a house, it's a it's a transaction that's public, the data in those documents, including your name, your address, who your lender is, that's all going to be mined and sold to, you know, anybody who wants it. And so you're going to get flooded after you buy a house, you get flooded with scammy, scammy junk mail, you know, folks pretending to be the county pretending to be the courthouse, you have this money, you didn't do this at closing, you should have. And it's just one scam after another.

And they get a lot of people, they get a lot of people. And, you know, be vigilant. That's, that's what we encourage all of our listeners to do. If you have any questions, if you've got any, any kind of thoughts about, you know, fraud prevention, or anything we've talked about, we always encourage you guys to give us a call 1-800-659-1186.

Again, that's 1-800-659-1186. Coming up next on the Outlaw Law Year, we're going to talk a little bit about a Supreme Court case that deals with, you know, counterterrorism measures and surveillance, and a couple of competing principles that are just now being fleshed out. And we're going to talk about that next.

Josh Whitaker and Joe Hamer are here with you on the Outlaw Law Year. And then we've got another case. This one is, has not been decided by the Supreme Court just yet. This is a case that has been out there for a long time. It's 9, 10 years old, and it is just making its way to the Supreme Court. The Supreme Court just announced earlier this month that they were going to put this on the schedule for 2022. And this is going to be something they hear.

And this one is, this one's going to be a big one. You know, you hear us talk about how the Supreme Court, they're always balancing liberties and what the government can do. It's always a balancing act. This case is going to be a big balancing act. Joe, what are the facts on this one? Yeah, so again, we're here talking about that delicate balancing act.

And so we've got two kind of concepts that are competing here. We've got the Federal Intelligence Surveillance Act or FISA. And we've got the state secrets privilege. The case at issue here is the FBI v. Fazaga. The Supreme Court, their review stems from a long running case that was actually brought by Southern California Muslims in 2011, and was filed by the ACLU. And it regards the surveillance of mosques by the FBI as part of a counterterrorism operation that actually originated more than a decade ago.

The petitioners allege that the targeting and tactics used in the FBI's undercover probe violated the Constitution and federal law. And the investigation involved, it involved an informant that would enter into mosques and make recordings while speaking to attendees and clerics. And the informant ultimately had a falling out with the FBI.

That relationship turned bad. And all the facts of this case kind of spilled into public view. And he kind of just put it all out there. He actually had some pretty crazy allegations. He alleged that he was actually instructed to date Muslim women and record those conversations and report back information about that. And he apparently planted a lot of recording devices. And the allegations include allegations that he was actually instructed to give the FBI a set of keys to this recording equipment and recording devices so that they could actually listen in to these conversations and what was taking place in these mosques without the informant even being present. So this is, it looks like we got a lot of warrantless activity. You know, if our informant gone rogue here is to be believed, FBI has got some questionable activities. Questionable activities. And again, it comes back to that balance of where do you draw the line at protecting, you know, national security and protecting the individual liberties of the people that you're protecting?

Yeah. So what, the lower courts, where did they land on this? So, you know, just basically we can talk about the central legal question that has made it to this point. And that's whether a law that Congress passed in 1978, which is that Federal Intelligence Surveillance Act, which we again call FISA, that limits and regulates electronic surveillance, whether that precludes the executive branch from invoking one of its most broad and controversial powers, which is the state secrets privilege. The argument that the executive branch retains the ability to shut down some or all of cases on the state secrets grounds, even though Congress created an ability to sue over illegal surveillance and that FISA law is really what's at issue.

So basically you've got the FISA, which sets forth these parameters and kind of delegates what things can and can't be surveilled and how that process goes. And then you've got the state that's alleging, okay, we're, we're basically going to throw that out the window. We're going to claim state secrets privileges because this is necessary to protect all of you people and you shouldn't really care about what happens. And so a lot of these, a lot of these things were happening, you know, not, not right after 9-11, but, but not far after 9-11 and, and, and when the nation was kind of in a different mindset and, you know, who, who's out to get us, where, where do we need to look next? I'm sure, I'm sure the government was, was doing everything they could and here, maybe more than they should.

Yeah. So you really have to divide, if you look at the state secrets privilege and you look at its history, you kind of have to divide it into pre-9-11 and post-9-11. And we do that with a lot of things because that was a, so many things changed overnight. But that, that state secrets privilege essentially just states that even if your allegations that, that the law has been broken or the constitution has been violated is true, that action is exempt if there is a reasonable danger that it could expose matters that would endanger national security. And again, it started out more narrow and basically when it was narrow pre-9-11, you could, you could use that to exempt pieces of evidence, like little pieces of cases, little fragments of evidence. And then after 9-11, it was like the gloves came off and you're talking about entire cases just being completely exempted. And, you know, a lot of the, this is, there's a lot of people involved in this case. This is an expensive case, you know, not everybody who maybe was violated, you know, and by the FBI and something like this under, under FISA can bring this case, can spend nine, 10 years, like, you know, getting this to the Supreme Court.

Yeah, exactly. And you got the ACLU involved here and you got, you got just a large number of people. So we talked about the state secrets privilege. The other competing factor is, is FISA. You know, FISA was passed in 1978 and it, and it came about as a result of a congressional investigation of existing federal surveillance activities. And what FISA attempts to do is to kind of provide some oversight for those surveillance measures and kind of, again, provide a balance between the secrecy that's needed to effectively monitor and protect national security, and then those individual liberties. And so it, it set forth with the goal that it would set out all the procedures for both physical and electronic surveillance that would strike that balance while also allowing us still to combat criminal activity and protect that national security. So it's going to be real, it's going to be real interesting when the Supreme Court hears oral arguments on this and, and I, you know, we got three new justices and, and, and you think you know, kind of where they would fall on certain things, but I, you don't know, you just don't know where they're going to fall on this, where they're going to feel strongly, uh, one way or the other. One way or the other.

Yeah, exactly. You know, so you asked about the history of the case, you know, the appeals in this case have, they kind of lingered for seven years from when it was initially filed in 2011. Um, in 2019, the ninth circuit court of appeals, the panel held that FISA actually trumped the state secrets privilege. Um, they argued that when Congress passed FISA, the intent was to completely displace that state's state secrets privilege with respect to electronic surveillance at least.

Um, and then again, they've, it's been picked up and, and the argument from the government again, is that the counter to that, that that state secrets privilege is essential to protect state secrets. So this is a ninth circuit case. That means it's coming out of the California, uh, court of appeals, the ninth circuit. And there's another case coming out and I'm, and it's kind of been lumped into this category. It has to do with this issue, but it's a Guantanamo Bay, uh, detainee, um, who was held at black sites, um, and, and, and, and, and, and interrogated in ways that probably wouldn't fly today.

And they won't, they want his confessions, they want his, uh, his results. And so that's, uh, that's another case that's going on and it kind of falls in the same, you know, state secrets versus, uh, FISA. Uh, exactly. And it, and it's, if you look at the, the way that this, this, the interplay between these two things has developed, you know, you had nine 11, you had the George W. Bush administration, um, again, overwhelmingly using this, uh, you know, to get those exemptions until, like you said, do, do things that may not fly today.

And there's a lot of criticism, uh, by the, by the Obama administration. Um, but then, you know, you saw a lot of the same, not necessarily the same things, but the same exemptions being claimed. And I think it's, it's one of those things where you get to that point.

Yes. I think we're lucky to not have to, to see everything that's seen behind the scenes and, and know what our country is really dealing with on a daily basis. And I'm sure, I'm sure there's, there's things going on that, that we couldn't even imagine, but, um, but if it comes up, we'll, we'll talk about it here at the Outlaw Lawyer. Again, our number here at the Outlaw Lawyer is 1-800-659-1186, 1-800-659-1186. And you can leave a message for Joe and I, if you have a question you want us to discuss on air, if you have any comments about anything that we've talked about, we'd love to hear from you. We'd love to talk about things that actually interest our listeners. So, uh, definitely give us a call. Uh, a reminder, uh, me and Joe, we are Whitaker and Hamer Law Firm with offices in Garner, Clayton, Raleigh, Goldsboro, Fuquay, Verina. Feel free to reach out to us at 1-800-659-1186.

If you have a legal matter that you don't want discussed on there, but you think you need to talk to an attorney, we'll be glad to get you hooked up with one of our attorneys. Joe, it's always nice to talk to you. I've enjoyed it. I've enjoyed you as well, Josh Whitaker. All right. We'll see you next time. law in North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of the show, contact us directly.