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Cyber Crime - Listener Questions and More!

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
June 18, 2021 12:00 pm

Cyber Crime - Listener Questions and More!

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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June 18, 2021 12:00 pm

Attorneys Josh Whitaker and Joe Hamer discuss the U.S. Supreme Court ruling on cyber crime and how it limits tools that federal prosecutors have in their arsenal to go after cyber crime; FISA and the soon to be Supreme Court case FBI v Fazaga  and listener questions.  To reach the law firm, call 800-659-1186 or visit 

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Mount Laurel lawyer Joe and I talk about power of attorneys next spring court has said is wrong on this and this is what you think about him and you will now outlaw law, you Josh Whitaker back outlaw lawyer, I'm Josh Whitaker with me as always Joe Aylmer, Joe. I was awaken. My weekend was fantastic. Josh and I was just nice relaxing weekend and I was very excited to get back into the studio with you. My cohost and discussed some good legal topics what's it's always interesting that there's always legal news, there's always things going on that again.

Don't get covered by the eye when you say the mainstream media just the media in general don't pick up on that really affect every day life for every North Carolinian, 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 to listener questions and they're both very good questions and were going to talk about them before we get to legal news before you get to are the cases we like talk about and so our first listener question is from. I just got Dave. I don't have a last name. I just got Dave Dave Dave ask he says his mother is aging. She is confident 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 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 a situation she's going to need one. But before you get that far. What is a power of attorney fantastic question Josh and Dave so generally speaking, a power of attorney is is 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 and handle your affairs and there's a couple of nuances that will will talk about it will 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 if you were present or acting on those things and I think it's important. The reason that you can have up power of attorney to reason you can name entering things because there is a state statute that allows you to do otherwise you couldn't do it. So in everything we talk about goes back to a statute or goes back to case law there something that allows this to happen 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 with the form should look like. Does it have to be notarized.

Doesn't have to be recorded. As always, it is laid out in the statutes and so depending on your needs. You would meet with an attorney and attorney would figure out what's going on and then we would we would determine what kind, how complicated, how simple the power of attorney you need the statute provides for different forms. So there's a short form which is just very basic itemize things it powers you want your attorney-in-fact to do and most the time when we talked people were talking to someone who's appointing a child or their children to act as their attorney-in-fact is not always the case. You don't have to name a relative you name your attorney, your financial advisor your neighbor guy at church or preacher eat. There's no but usually were talking to someone who is is getting advanced in age and wants their children.

By the next generation to be able to help them do things that they may not be able to do is that's correct.

And so you covered it, we we got the short firm verb form version which is literally just designated in the statute. We talk about statutes a lot. We encourage all of our listeners spent 34 hours a week just reading your states practice to familiarize yourself with the law, but just of the short form is literally set out in the statute it's it's literally a form that is statutorily designed to just kinda be straightforward and it covers the basics and meet most needs for for the common person in a short form will just have you say I want you know my my son Joe. Whoever is a great name for it to be my my attorney-in-fact to act on my behalf and it has a list of items that you powers you can give to that person. So in real estate contract banking transactions alter life insurance and see others as big long list and you can go through new initial you know what powers you want to bestow upon that person and then and so that's kind of the simplest form that works for the majority of people a lot of people exactly. So there's deftly folks have more complicated issues that we have to address.

One thing that comes up a lot again were talking to people as they have more than one child, and so there there doing this as part of an estate plan. They won't all their children to serve as their jointly to serve as their attorney-in-fact and that people want to upset their children is going to pick favorites and it'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 that they have to report back to certain people or there has to be some some reporting mechanism so they don't go Road.

Yeah, I think the reporting mechanism is a good check and if you don't want up to two to upset your kids then just pretend like you drew straws come up with some way to reduce the number of attorney-in-fact that you have. I've seen people I've seen. I've seen people like for it and then in the power of attorney so they can act independently so as not like one of each unit could do something they all have to join in and so you're not unit that you can't do. The result is they can't do anything yet.

The purpose of the power of attorney is to reduce stress and to make things easier for everyone is to make things harder for everyone and concluding you because you're ultimately going to get dragged into it in some fashion and you may not even be confident that point. Who wants that down competency is a big thing and so competency means different things for different legal documents and then here for a power of attorney. You know, a lot of times were getting called because the person who wants to give the power is aging is infirmed going in the hospital for surgery is going into assisted living and so one of the things that attorney has to do. 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 had asked some questions that we we feel good as her attorney that she knows what she's doing exactly and that competency peace is key and the important thing is don't wait too long, you know a lot of people you may want to put up power of attorney off until you're really needed, but when you really needed, especially in this scenario that were discussing. You could potentially lacked the capacity and the competency to even execute one effectively and said only yet and if you wait it. So if you wait too long and then you're no longer confident to to sign a power of attorney that is too late. And so what your your children are the folks taking care of you didn't have to go to the court and have to apply for guardianship. There's a court process. There's a hearing is much more convoluted nice easy document prepared by your attorney at your your direction is a much more complicated process.

Everybody in the family could serve as a lot of things going on so you want to avoid is the whole point is you do these power of attorney's wire confident as part of your estate plan and then no one has duties guardianship step have to report things to state at the public record, just not a good thing to have to do everyone in your family get served and we have to do it coming.

We we have clients that that's just what they have to do you know if your 42 years old and and something happens and you want your estate plan is not complete is only 42 years old and you have medical emergency or something happens, then you become happier that guardianship route, but is more expensive. Much more of a hassle not preferred ways and it's not to be what you know your you lacked capacity that point to tell what you want and who you want to do it to just do it now. Don't wait you test on competency and I think it's important to make the distinction between durable and nondurable powers of attorney and and how those two interplay can you talk a little about that Josh yes so there's two types of power trainers, durable nondurable. So basically the way out explains a durable power of attorney is one that survives your incompetence so that we all draft these power of attorney's for the day that were not confident in a durable power of attorney is is the one we almost never do nondurable. We almost always do durable as it survives your incapacity and allows your attorney-in-fact do what they what you wanted to handle your affairs by your daily bill and again you know were talking about the kid that the situation where you're infirm, we are unable to act there's people who use these POA's just for assistance in daily affairs.

They may be out of the country. They may, they may limit and that's again there's a lot of flexibility when you're drafting the POA.

You can get a specific with what you want to delegate you can get as broad with what you want to delegate as you'd like.

So there's a whole lot of room to cannot tailor that POA for your needs.

One of the things that come up a lot is split 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 that you can I move CPA but she can make certain tax-free gifts as you do your estate planning. I want to get things out of your state and if you want your attorney-in-fact to be able to gift to themselves. You can allow them to to self gift. It does specific language you put your power of attorney, but without that specific language. Your your attorney-in-fact is not going to be gifted to themselves. That's very important 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. That is the default.

So if you want them to be able to do that and exercise that power. That is to be 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 you know we could spend a lot of time talking about the nuances of power of attorney and the distinctions and you know we we talk a lot about just this general power of attorney and there's a whole another subsection of the topic where we talk about healthcare power of attorney's would probably honestly deserves its own segment because it's 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 you know, go ahead act. We would love to be the the folks that help you out with that again. We always encourage you anytime you got a question anytime you got any follow-up.

Give us a call 1-800-659-1186 were happy to talk to you about again any of the things we discussed today were happy to talk to you about helping you out with your own power of attorney and we just encourage you guys to reach out to us when you call that number when you call 1-800-659-1186 two things can happen. You can leave us a question you want us to talk about on air just in general?

Were doing for Dave 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 talk about any questions or issues you may have. Dave, I hope we hope the answer to question. I wish you had your last name so we could know you better. Dave? Next up will we got one more listener question I want to tackle and so will do that next Josh and I will answer a couple of listener questions. Again, we encourage all of listener questions we we love to hear what you guys are thinking would love to to interact with the folks that are listening to the show and to really engage you guys nested.

That's what we're here for is to talk about things you're interested in and help you guys anyway that we can so we got listener question here. This is from and actually again, no, no, just Ashley menu start and last names deletes the letter. This is Ashley D. McGough, Ashley D Ashley asks I'm single without children.

What happens if I die without a will question it is out of Ashley's donor and I think Ashley's question is, is more as I thing which Ashley is probably trying to ask is, it should Schiavo will what happens if I die without a will, but I minute take that as I'm single without children should have a little maybe Ashley is looking for should actually have a will. Simple. Simple answer to Ashley anyone's question yes yeah I think as as as attorneys any attorneys in the tell you yes you should. If you own anything that's worth anything, you should have a will and here Ashley telling us she's single so she doesn't have a have a spouse. 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 inner, we don't have common law marriage. You know, we don't have anything like that, you know, if you're either married or not. In North Carolina, so she sang 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 than the statutes take over. There's always there's always a statute, but just maybe, may be 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 it's a written statement of how you want your property distributed upon your death.

It's going to let your ears, let your kids let the folks you leave behind no what you want to be done with the things that you accumulated in this life. What are your wishes. 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 passed away so it's not just again left up the chance are left up to the statutes of the state to decide what happens to the things that you have worked very hard to accumulate over your lifetime right so you're doing in an estate planning. We have two types of assets we have realist real property, personal property and real property is land your house anything you have a deed to grave plot you know yet real property and it absolutely everything else almost as personal property so your bank accounts, cash on hand furniture you close your gun collection your cars almost anything else personal property and so that's what we want to deal with. We want to say hey when you we always look at what do you have now. What are your assets mean time I sit down somebody and were doing an estate plan.

What he got what we talk about real property and personal property, and we talk about probate assets and nonprobate assets.

Natural complicated way of just saying hey will will ease this class of assets in the bin your state if you died tomorrow, or would they pass automatically. I was saved by operation of law. That's kinda how is a good phrase that's less, how is how a sensor will sit down and talk with you like will what you want to happen to your house is okay while I won't want that to go to my children and so in your will will have a clause in the real property iron 123 Thick St. goes to my son Joseph the and is okay what about personal property, bank accounts, things like that so will say okay will let you here won't get you there. You will can be as simple as everything I own to this guy you know everything I own to this, we don't but we usually like to look at classic classes yeah and so you you you get you touched on the probate versus nonprobate and again probate just meeting anything that is subject to your estate. Like you said, that will pass. I think the goal would be enough for us. If someone comes to see us or you 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. None of the media have no things you have no stuff it just means that you were going to plan your estate in such a way that you are going to to avoid the weather it be your will or whether it be the keynote statutes that are going to dictate you don't want to have to have any of your things disposed that way 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 planners of I was doing estate planning for myself. My goal would be that when I pass away at hundred and 20 years older at 140 x-ray medical advances and you look healthy skin when I pass away. I don't 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 in Josh is giving one lucky listener all first person that calls 1-800-659-1186 the that's always the goal is to get to the next generation normally you know I am I am just a lowly attorney I'm 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 and in a way and you still little access to that property right me. I may want to spend every penny I have before I die one for you and I may need it.

I stayed on zero out that last day right at 139 and I think that's that you know we got different vehicles we can use. You can create create a trust or revocable trust of your revocable trust there's there's all kinds of things. What we can do in and were not at every are not doing a very good job of answering Ashley a lesson so we won't get into that now. But to answer Ashley's questions. If you die without a will you die without this written statement of how you want your property distributed in your stuck with the laws of intestate succession is as a legal orbiter statutes and 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 as part of real property so it's written to the statutes. What happens to your property. If you know leave a direction so again yeah it's not going to be what you want. It's not can it be what you would like to have happened. Your property is to be what the legislature has decided and codified in the statute is the most appropriate way for your property be to be distributed so it is again going to just strictly urine 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 it will and so there's there's some their sins that we keep see in the same account are: horror stories we know any of our stories from the firm but but where this comes in the play big-time as is when you have a blended family see you got to individuals who come together.

Maybe their second aged as their second marriage and got children from prior marriages and they come together and without a will that gets really messy when you leave it up to the statute's very very messy. Usually in these blended family situations that your you're dealing with strange spouses, 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 can 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 on your current estate plan so minute is very important.

In addition to having an estate plan to having a will have it reviewed. You know your life changes your situation changes and with those changes comes you know the need to review these things and to make sure that what you want to have happen is what is going to happen upon your death by another note for blended families, and one thing that we see we see people who get remarried and never update their life insurance beneficiaries. They never update their work pension plan beneficiaries or investment account or 401(k) and you'll see something happens and they pass away before they expected to and you'll see an ex-spouse still there who could still in theory there some laws to protect you and there some other things going on so is not as simple as that. But you need update all your beneficiaries. I've seen a lot of folks with blended families may have stepchildren who they fully treat as their own children, but have never been formally adopted, and if you die without a will will stepchildren take anything under intestate succession. Your your heirs are your your blood lineage exactly any note, the statutes do as good of a job as they possibly can. Of note, catching all of these situations, but again you're the only one that that truly knows what you want. Every situation is 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 the disposition of your property, but a lot of times it's gonna it's going to vary from what you would pick if you are actually alive and not dead.

At the time and Joe and I again are attorneys of the law firm of love would occur name or go to live both currently living. We are given were having a general discussion right now not giving anybody legal advice that's always important where attorneys say that on our show and another shows is just a general discussion. You really have to talk, even if is not us yet to talk to an attorney attorneys to take into account everything is 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 the time. You just need to talk to an attorney if they were always happy to help if you have a question for the show for us here at outlawed or that we can talk about or you need to talk to an attorney at the law firm of Whitaker tamer give us a call 1-800-659-1186 is 1-800-659-1186 just I just said you were 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 you need to ask and get the answers that you need coming up on the El Al are your next we are going to talk about how the Supreme Court has narrowed the scope of the nations main cybercrime law. Cybercrime is a big issue is something that's popping up increasingly in our day-to-day lives and talk a little bit about how this Supreme Court ruling could potentially affect all of our lives. It's 59 1186 2000 659-1186 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 Supreme Court the US Supreme Court. I should say just recently come down with a new decision on a very important case regarding how authorities track, prosecute, investigate cybercrime and so the newest decision that came down basically really the way I read it the way a lot of people read it limits limits a couple tools of federal prosecutors have in their arsenal to come and go at cybercrime but Joe, you're more familiar with the facts and I am what happened in this case cybercrime cybercrime is a newish term but again I think it's going to go to become more relevant, more prevalent every day we live in an increasingly online society and unit we seen huge effects from cybercrime here recently which we will come to get into, but yes, I think the case is is is Van Buren versus the United States it the case basically involved. There was a former police officer who was convicted of violating the 1986 computer fraud and abuse act or the see FAA for short. This this cop basically search the 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 you know his is 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 lawyers, arguments, and they held that Van Buren's conviction under the sea.

FAA was actually invalid and and that's essentially where were at literature. I understand the factors we have an employee who has access to. I don't remember what state this was happening in the Basie employee of some government entity that had access to license. A license plate database. That's what he did every day. That was part of his exactly. So he's permitted access to the license plate database he's allowed to look at it, but obviously looking the license plate information as a bribe right so we got in and not a permitted use. So we get an FBI officer or agent representative who comes in and offers to arrive. Our guy here to look up certain things and he doesn't need gets his broad answer than he was.

There was a conviction under this act.

That's not we'll see used a whole lot so so you don't. We see it in our day-to-day lives being use the whole lot but I think the critics of the way that this was being use. 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 a 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 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. I mean, 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 see FAA there was a 63 decision and and basically like. We discussed that decision prevents federal prosecutors from using the see FAA 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 in the way that the votes broke down because he actually had the three trump appointees who were the newest justices that sided with the courts three liberals to reject what the Justice Department had interpreted the statute as is always interesting.

We talk about the Supreme Court cases we actually have a judgment is.

It is fascinating to see as we can all people of all, the Supreme Court, we can have every justice profile. This is the present had appointed this is pride or political affiliation. This is what we think they stand for. Based on other things they've done, but here yeah you you were super so used to verify for decisions right now and and and party lines and things like that.

This was a this was an odd 63 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 attach criminal penalties to just the crazy amount of commonplace computer activity that every everyone 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 the 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've basically criminalized everything from embellishing an online dating profile that would become a crime and some some of us who maybe been burned by online dating profiles that have been lied on. Maybe that that's triggering us, but it can 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 got your your petitioner and you got your basically your I guess, for lack of better word to plaintiff in 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 are parties to the current lawsuit, exactly.

And so you had a 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 see FAA to any unauthorized use of computer data that you're inviting all kinds of retaliation against whistleblowers because your 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 there pulling from could potentially become a criminal yeah you you got folks who who need to be protected who are coming forward to get a boy that was on behavior that that most Americans wouldn't find acceptable.

And then the under this this broad interpretation there not protect exactly so you you got the majority of justices Wiggin was a 63 decision but but you got three justices who who dissented in 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 part a 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 150 mph high-speed chase Rabobank with your vehicle so that you know that the dissent kind of took that approach basically wanted to say that just because we may be uncomfortable with a large swath of conduct being criminalize. That doesn't give the judicial branch. The ability to alter the statute. They're basically saying the law.

The law, if you wanted to be revise the need to be revised by the legislature is not the judicial branch is now place to us and modify what is the clear intent of the law itself right right you see the Supreme Court do that a lot when they are presented with something like this where they are being asked to limit or expand the reach of a federal statute and then you'll see that a lot. We're not lawmakers you know that that we are not the legislature were not making laws were interpreting what's already there. Yes, so supporters of that broad use.

That's been when 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, which is what's now been done but by doing that your basically allowing any person who has legitimate access to the data carte blanche to access and use or in many cases destroy that data 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. We can all still be different people online. The it's always a balancing act for the Supreme Court. Seems like almost no matter what situation is your balancing civil liberties with the interest of the government to fight crime to protect us from cyber terrorism, cyber attack, so it's that there is always a balancing act with Supreme Court is 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 everyday and I think again like I like I said it's only going to increase in prevalence as we move forward into the future as we become no more interconnected online. There's just a whole lot of really scary possibilities there, and you know what we were going to continue to discuss because this is a long discussion because again the cybercrime affects us in ways we may not even realize.

But when you talk a little bit coming up next about how cybercrime currently affects our lives and how it's kind of ever evolving and how it just continues to have an impact on the things we do every day were to talk a little bit about things we see in our practice we see it 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 and then when we first started on that. When I spent money on on on rent. Initially, you know, back when we started back in 2004, but again here at outlaw lawyer we really want to hear from you any questions or comments you have on any segment of the show gets call 1-800-659-1186. If the law firm of Whitaker Hamer can do anything for you if you need to talk to an attorney gives a call 100-659-1186 our forecastle to connect with an attorney who can help you.

That's right will be right back really continue our discussion of cybercrime and talk about some terrible terrible things that happen in the cybercrime world and how you can identify take steps Josh Whitaker Joe Hamer here with you. We just discussed Supreme Court case that in theory could limit how authorities track, investigate and prosecute folks who commit cyber the examples of cybercrime are similar something every day. Right now it's ever evolving and there's probably cybercrime out there that that we don't even realize it. Cybercrime why thing. I think the thing that scares me the most. You knew you got word from cyber fraud on the international level but also on a very very local level much what we see an error in our everyday practice. But it we've we've had that course, the shutdown of the pipeline which I mean that the feeling I got reading on the pipeline shut down was that it was some rank amateur cybercrime focusing pull that off. I think yeah I think a lot of that cyber criminals are no young the youth the youth as 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 in and where I think were still filling the effects of Adam on gas prices and still some limited availability and in some places where hasn't gotten back restored to what it was. There was the water treatment facility in Florida that got hacked into the arena tried putting way more chlorine and yeah they were going to basically try to poison the water supply, which is that the devious plants like James Bond billing is related slightly and it's like a Lex Luther and in the end, and not for money that that was just there was no just for fun light that was just to see if they could do it out. I would think in and then you know you've got the folks that that's in the fish 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 are doing it. They're not met on the site are not under American jurisdiction, but they're not here it's it's hard to get. It's hard for the authorities to get their hands on a minute, almost seems just from David, a lawyer's perspective. Just as citizens perspective that you know.

Lately it seems almost powerless to to stop her 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, VPN stood to cannot hide where you're at it, and I think that I think will see that changing.

As the cybercrime world develops as we see more more of it.

There's been a be techniques.

There can be ways to combat that.

But then at the same time you can see the cyber criminals continue to evolve as well and you we sing that evolution ourselves. We are doing real estate transactional work doing dealing with with money in an wire transfers. I would estimate we see 5 to 10 wire fraud attempts come in unit every couple weeks. I would you say that's a fair estimate. Yeah, we know where when you do when you're doing a real estate transaction you're doing with the buyer a lender or seller or some real estate agents, a lot of third-party, some that are never coming to our office on that we will meet in person and that opens itself you know to two people and we have we have a situation where you will have someone that you're interacting with an email their emails been comparable as they have or couple away so you can have the compromise email which is literally someone has gotten into your email and is using your actual actual email that's usually in a be the result of you getting caught in either some type of phishing scam where you know without even really realize and have provided this person with all the information they need to log into your account or you could have fallen victim to know one of these widescale breaches where your passwords and information something you've plugged into a website or an app has been breached in and hackers had that information and then you're just the unlucky person that gets drawn down, but it's really amazing. The, the, the number of attempts that we see and these are all these are all attempting to weave. We've taken great care. We spent a lot of money we deal with a lot of people far smarter than ourselves to to protect us from these threats.

So you're talking about us very large portion of the population who have compromise email and who have bad actors that are in their email and gathering enough information about their day-to-day life to you know poses them with some level of accuracy. It's kind scary, yet there there are people out there who are in your email that are watching it there figuring out that okay you're buying a house.

These are the players unit. We've way it hasn't happened. So I've had other attorneys who had buyers wired their their down payment or cash to close overseas. If someone has it figured out someone has been in their compromised email they have figured out what's going on in and have interjected themselves as a buzz of basil player in the game's mighty 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 sniff a significant amount of money overseas and it's happened several I mean several times happen.

Probably hundreds and hundreds of times. I think it's increasingly we know it's something that happens more more and I think the reason for that is used to be asked that 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. What when I first started practicing law back in 2004. Back in olden days, there was preferred certified checks.

I like someone the wires money. We went even and you still that attorneys who do that have been burned or who are just terrified of this prospect, which is a scary prospect but we moved away as an industry we moved away from taking certified checks because they became too easy to just fraud and you just make a convincing looking sake of a certified check, you know, and so fraud concerns drove us, to wires and then once we got to where wires was kind of a standard way to move a decent amount of money around, and yet you have these these people who sit out there and then I think because it's it's hard to catch him. It's hard Internet and really fill penalties from it and if they succeed, even one time. It's a that's a big score who among us hasn't gotten the Nigerian Prince email. Yet those those those emails are out there. We had a client who was an email. We had a client who got a got a call the power to cut your power off and they'd actually been having problems with the power company were getting bills and again this is is what the peak that the bad actors they they have enough knowledge about what you're going through, especially if your correspondent by email, and they can see your email that you have enough information to really take advantage of you if you let them. So we at the firm five or six years ago we went to an IT contractor. Thanks a lot hackers so and in and we went out we got the firm carry cyber insurance now just in case something happens.

There's a there's a cyber fraud or cyber insurance policy. In addition to the standard errors and omissions malpractice coverage that attorneys carry so this is it it and it's getting worse every day. Just like Josette every day we see more attempts and ends. Among them are even climbing some of her so clumsy. Anybody can can pick up on them. You can usually pick up. I mean, you cannot develop it as a skill and we we spent a lot of time training our employees as well. But you know like he 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 look at every single thing exam if you if someone reaches out to you asking for money asking for any kind of personal information not found that 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 can spot grammatical errors. Pay close attention to email. We talked about the situation where your actual emails, compromise, and there's also that the more common situation where someone is going to take your email and they're going to reproduce it with one minor variation is called spoofing spoofing. That's the technical term but again pay very close attention to that. Just pay close attention everything assume you're getting scanning is a safe assumption. Assume you're getting scammed until you've conclusively proven. We had or not and what her name or we handle a lot of real estate transactions. We have a lot of people are buying. Maybe their first home are not really familiar without escrow accounts were a blessing to be up the transactions of public records and are telling you by house. It's a it's a transaction that's public data in those documents include your name, your address to your lender is solving the mind and soul to you know anybody wants it so you can get flooded after you by house get flooded with scheming scheming junk mail you know folks pretending to be the county pertaining to be the courthouse. You have this money, you did do this, a closing initiative is just one scam after another, and then they get a lot of people think 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 got any any kind of thoughts about no fraud prevention or anything we talked about wheat we always encourage you guys to give us a call 1-800-659-1186 again that's 1-800-659-1186 coming up next to me all along it wouldn't talk a little bit about a Supreme Court case that deals with counterterrorism measures and surveillance and a couple of competing symbols that are just now being flushed out and talk about Josh Whitaker and Joe Hamer are here with you on the outlaw lawyer and then we got another case. This one is as not been decided by the supreme that this is a case is been out there for a long time. It's 910 years old and 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 is to be something they hear. And this one is it is to be big one. You know you years talk about how the Supreme Court always balancing liberties and and and what the government can do is always a balancing act in this cases is gonna be a big balancing act.

Joe what what are the facts on this one yet so you were here talking about that delicate balancing act and so we got to tooth to kind of concepts that are competing here.

We got the federal intelligence surveillance act, or FISA and we got the state secrets privilege that the case at issue here is the FBI. The saga, 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 in regards the surveillance of mosques by the FBI as part of a counterterrorism operation 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 involving 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 in all the facts of this case, spilled in the public view and he cannot just put it all out there.

He actually had some pretty pretty crazy allegation CE allege that he was actually instructed to date Muslim women and and record those conversations and report back information about that and he apparently planted a lot of recording devices and allegations include include allegations that he was actually instructed to give the FBI a set of keys to this recording equipment, recording devices, so that they could actually listen into these conversations and what was taking place in these mosques without the informant even being present. So this is it was, we got a lot of warrantless activity you know if if if if our informant on roof appears to be believed. FBI got some questionable activities, questionable activities, and again it comes back to that balance of where you draw the line at protecting you know national security and protecting the individual liberties of the people that you're protecting Jim so will the lower courts. Where did they land on this so you know, just basically we talk about the that 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 that 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 and that that FISA law is is really what's at issue. So basically you've got that FISA which sets forth these parameters and kinda delegates, what things can and can't be surveilled and how that process goes and then you got the state that's alleging okay. Were we were base can throw that out the window were in a clean state secrets privilege is because this is necessary to protect all of you people, and you should really care about what what happens is that a lot of these a lot of these things were happening, you know not not right after 9/11, but not far after 9/11 and then and when the nation was kind of in a different mindset and you know who is out to get us where where do we need to look Max, I'm sure.

I'm sure the government was it was doing everything they could, and here maybe more than they should yes or you really have to divide if you look at the state secrets privilege and you look at its history can have to divide it into pre-9/11 and post 9/11. 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 is 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 this is there's a lot of people involved this case this is an expensive case you're not everybody who maybe was violated, you know. And by the FBI and some like this under under FISA can bring this case can spin 910 years like getting this to the Supreme Court. Yeah, exactly. And you got the ACLU involved here, and yet you still large number of people that 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 try to provide some oversight for the surveillance measures and cannot 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 set forth with the goal that was set out all the procedures for both physical and electronic surveillance that would strike that balance while also allowing us ~combat criminal activity and protect that national security is really real to be real interesting. When the Supreme Court hears oral arguments on this and and I know we got three new justices and in and you think you know, where they would fall on certain things, but I don't know you just don't know were there in a fallenness where there gonna feel strongly will hold one where the other yeah exactly, you know.

So yes about the history of the casing of the appeals in this case have they kind of lingered for seven years from when it was initially filed in 2011 and 2019, the Ninth Circuit Court of Appeals. That panel held that FISA actually trumps the state secrets privilege. They argued that when Congress passed FISA. The intent was to completely displace that states state secrets privilege with respect to electronic surveillance at least and then again they've it's been picked up and in the argument from the government again is that that the counter that that that's sacred state secrets privilege is essential to protect state secrets.

So this is a Ninth Circuit case that means is, now the California Court of Appeals. The Ninth Circuit and there's another case coming out and I'm kind of been lumped into this category has a do with this issue, but it's a Guantnamo Bay detainee who was held at black sites and and and and interrogated in ways it probably wouldn't fly today and they will. They want his confessions. They want his his results and so that's that's another case it's going on and it kind of falls in the same no state secrets versus FISA did it exactly and in its PE. If you look at the doorway that this this the interplay between these two things develop.

You know you had 9/11 you had the did George W. Bush ministration again overwhelmingly using this Nino to get those exemptions into like you said, do do things that may not fly today and a lot of criticism by that by the Obama administration but then 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 is I think were lucky to not have to to see everything that seemed 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 it that we can even imagine. But but if it comes up will will talk about it here at that that outlaw your again our number here that outlaw lawyers 100-659-1186 or 1-800-659-1186 and you can leave a message for Joe and I have a question you want us discuss on air. Any comments about anything that we talked about would love to hear from you. Would love to talk about things that actually interest our listeners so deftly give us a call. I reminder me and Joe, we are Whitaker and Hamer law firm with offices in Garner Clayton, Raleigh, Goldsboro, Fuquay, Farina, 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 every think you need to talk to an attorney will gladly choked up with one of our attorneys, Joe, always nice to talk to you enjoyed it.

I've enjoyed you as well Josh Whitaker I will see you next time. Only as an attorney licensed to practice law in North Carolina just appearing on the show. Maybe license North Carolina attorneys discussion of the show is meant to be general in nature and in no way should the discussion be interpreted as legal advice.

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