The EU's Spyware Conundrum

MEPs are concerned that eavesdropping with Pegasus-type software is escalating, but the bloc is unlikely to impose rules as the final word rests with member states who dislike such oversight, experts said.

Pegasus and other software, such as Predator, have gained significant notoriety in recent years after it came to light they were being used by governments and politicians against political rivals, journalists, and activists, amongst others...

Jeroen Lenaеrs, chair of the PEGA European Parliament’s Committee of Inquiry to investigate the use of Pegasus and equivalent surveillance spyware, said it was “pretty scary” how much information about personal life the Pegasus-type spyware can get...

“The Commission realises that something must be done,” said Lenaеrs... But he lamented the lack of political will from many capitals. more

Trade Secret Litigation 101

Trade secrets, and their associated value, are an understated facet of commercial activity. The intellectual property owned and protected by businesses carry with them enormous economic weight and are often the target of inappropriate corporate activities such as espionage and theft. 

Too often, these pieces of property are insufficiently protected, misunderstood, and do not get the attention they deserve. As such, trade secret litigation has evolved into a niche, but growing area of law practice.

Below, we will explore some of the key elements of trade secret litigation, its scope and magnitude, distinctions between trade secrets and other types of intellectual property, as well as several other important considerations... more

Wiretapping and Eavesdropping Research Paper

EARLY RESTRICTIONS ON ELECTRONIC SURVEILLANCE

The Supreme Court first considered the constitutionality of wiretapping in the 1928 case of Olmstead v. United States, 277 U.S. 438 (1928). The Court ruled that governmental wiretapping of telephone conversations fell outside the protection of the Fourth Amendment. The Court based its conclusion upon a narrow, textual reading of the amendment. First, the Court found that words spoken into a telephone were not tangible things and thus could not be subjected to a search or seizure. Second, it reasoned that because wiretapping could be accomplished without a trespass, there was no physical invasion of property to justify invoking the Fourth Amendment. Finally, the Court assumed that one who uses the telephone ‘‘intends to project his voice to those quite outside.’’

The ruling in Olmstead was controversial. more

LAWS ON RECORDING CONVERSATIONS IN ALL 50 STATES

2022 Update by MATTHIESEN, WICKERT & LEHRER, S.C.

Individuals, businesses, and the government often have a need to record telephone conversations that relate to their business, customers, or business dealings. 

The U.S. Congress and most states’ legislatures have passed telephone call recording statutes and regulations that may require the person wanting to record the conversation to provide notice and obtain consent before doing so. Most states require one-party consent, which can come from the person recording if present on the call. However, some states require that all parties to a call consent to recording.

Laws governing telephone call recording are typically found within state criminal statutes and codes because most states frame call recording as eavesdropping, wiretapping, or as a type of intercepted communication. State laws may not explicitly mention telephone call recording because of these technical definitions. Accordingly, counsel may need to infer when and under what circumstances a state permits telephone call recording by reviewing prohibited actions.

The big issue when it comes to recording someone is whether the jurisdiction you are in requires that you get the consent of the person or persons being recorded... more

MA - Lawmaker Hopes to Change Wiretapping Law

MA - A Massachusetts state lawmaker outlined his reasons for updating the state wiretapping law to allow victims of domestic violence to record their abusers...

Alex Fopiano was in court today as his lawyer asked the judge to dismiss the criminal charges against him. He is accused of attempting to suffocate his wife, Shauna Fopiano, with a pillow...

She was criminally charged with eight counts of illegal wiretapping for making secret recordings of her husband, her alleged abuser. In a deal approved earlier this month, the charges will be dismissed in six months as long as she commits no other crimes.

"I was shocked that this is something that could still actually happen to somebody in Massachusetts," said state Sen. Patrick O'Connor, R-Weymouth.

The state's wiretapping law makes it a criminal offense to record someone without their permission. O'Connor said it should be updated to include an exemption to give victims of domestic violence the chance to record their abusers. more

Series: Types of Industrial Espionage

Industrial espionage refers to various activities performed to gain an unfair competitive advantage, rather than for national security purposes. As we discussed in a previous article, the ways in which industrial espionage can affect a company are numerous and include theft of trade secrets and disruption to operation.

Section 1832 of the Economic Espionage Act of 1996 (the “Act”) criminalizes the theft of trade secrets “intended for use in interstate or foreign commerce, to the economic benefit of anyone other than the owner.” The trade secret owner is required to take “reasonable measures” to keep the information secret. 

For individuals, convictions in violation of 18 U.S.C. § 1832 can result in a prison sentence of up to 10 years or a monetary penalty, or both. For organizations, the fine may be “not more than the greater of $5,000,000 or 3 times the value of the stolen trade secret . . . including expenses for research and design and other costs of reproducing the trade secret.” Section 1832 requires that the products be “produced for” or “placed in” interstate or foreign commerce. more

One excellent reasonable measure is the Technical Surveillance Countermeasures (TSCM) inspection, conducted periodically. 

School Principal Arrested - Facing Felony Eavesdropping Charge

The Lee County Virtual School Principal faces charges for illegally recording a meeting.

It is an unusual case of consent because Florida Statute 934.03 talks specifically about the interception and disclosure of wire, oral or electronic communications prohibited. “Florida is a two-party consent state,” said FGCU Professor Dr. David Thomas. Lee County Sheriff’s deputies arrested (him) for recording a meeting without permission. more

CO Supreme Court - Nonstop Hidden Camera Spying Violated Fourth Amendment

Using a hidden pole camera without a warrant to spy on and record a man’s home for more than three months violated the Fourth Amendment, the Colorado Supreme Court unanimously declared last month. “A camera monitoring all of a person’s backyard activities,” Chief Justice Brian Boatright wrote for the court, “provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state.”

With its decision, the Colorado Supreme Court widens a growing split on the constitutionality of long-term pole camera surveillance. The Fifth Circuit U.S. Court of Appeals, as well as the South Dakota Supreme Court, have both ruled against warrantless surveillance, while the Sixth and Seventh have ruled the opposite. more

Recording Conversations And Phone Calls - A Quick Primer

by Gary L. Wickert

One-Party Consent

If the consent of one party is required, you can record a conversation if you’re a party to the conversation. If you’re not a party to the conversation, you can record a conversation or phone call provided one party consents to it after having full knowledge and notice that the conversation will be recorded...

All-Party Consent

Twelve (12) states require the consent of everybody involved in a conversation or phone call before the conversation can be recorded. Those states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. These laws are sometimes referred to as “Two-Party” consent laws but, technically, require that all parties to a conversation must give consent before the conversation can be recorded.

Consent

What constitutes “consent” is also an issue of contention when you are considering recording a conversation. In some states, “consent” is given if the parties to the call are clearly notified that the conversation will be recorded, and they engage in the conversation anyway. Their consent is implied. For example, we have all experienced calling a customer service department only to hear a recorded voice warning, “This call may be recorded for quality assurance or training purposes.” It is usually a good practice for practitioners to let the witness know they are recording the call in order to accurately recall and commemorate the testimony being given – such as during the taking of a witness’ statement.

Exceptions

Nearly all states include an extensive list of exceptions to their consent requirements. Common exceptions found in a majority of states’ laws include recordings captured by police, court order, communication service providers, emergency services, etc... 

Interstate/Multi-State Phone Calls

Telephone calls are routinely originated in one state and participated in by residents of another state. In conference call settings, multiple states (and even countries) could be participating in a telephone call which is subject to being recorded by one or more parties to the call. This presents some rather challenging legal scenarios when trying to evaluate whether a call may legally be recorded. A call from Pennsylvania to a person in New York involves the laws of both states. Which state’s laws apply and/or whether the law of each state must be adhered to are questions parties to a call are routinely faced with...

Federal Law

In most cases, both state and federal laws may apply. State laws are enforced by your local police department and the state’s attorney office. Federal wiretapping laws are enforced by the FBI and U.S. Attorney’s office. It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given their prior consent. This means that if you are initiating a recording on a call that you are participating in, the other party does not need to be notified that the call is being recorded. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. more

More information on the laws in all 50 states regarding the recording of phone conversations found here.

Don't Own the Trade Secret But Still Want to Sue for Misappropriation?

You may be able to bring a misappropriation of trade secrets claim even if you do not actually own the misappropriated trade secret. A growing number of federal cases indicate ownership of a trade secret may not be required in order for a plaintiff to sue for misappropriation; possession alone may be enough to confer standing.

In Advanced Fluid Systems, Inc. v. Huber, the Third Circuit affirmed a district court ruling holding that a plaintiff suing for misappropriation under the Pennsylvania Uniform Trade Secrets Act (“PUTSA”) need only demonstrate lawful possession of the trade secret at issue, and not legal ownership, to maintain a claim. There, Advanced Fluid Systems (“AFS”), a designer and installer of hydraulic systems, filed suit against defendants alleging they had conspired to misappropriate AFS trade secret information to divert business to a competitor.  

In a twenty-six page opinion, the Court concluded that fee simple ownership of a trade secret is not a prerequisite to recover for its misappropriation. more

Some Eavesdropping Okay in All Party Consent State (PA)

Recently, in Commonwealth v. Mason, J-44-2020 No. 69 MAP 2019 (March 25, 2021), the Pennsylvania Supreme Court held that audio interceptions, made in the bedroom of toddler-aged victims of a nanny’s physical and verbal abuse, when such interceptions were captured by a camera hidden in a bedroom of the house by the father (and house owner) of the toddler-aged victims, did not violate the rights of the defendant (the nanny) under the Wiretapping and Electronic Surveillance Act (Wiretap Act), 18 Pa.C.S. Sections 5701-5782, and so were admissible. The Supreme Court drew a proper and logical conclusion from the facts and the law and, hopefully, brought us closer to a reasonable look at the issue... more

China Steps up Monitoring of Foreigners in Anti-Spying Push

Chinese social groups, enterprises and public entities will have increased responsibility to combat foreign espionage under new regulations issued by the country’s ministry of state security.

The regulations, which were released and took effect on Monday, come amid deepening hostilities between China and some western governments, including over the detention of foreigners accused of national security crimes.

According to state media, state security will work with other government departments to “adjust” the list of groups susceptible to foreign espionage and to develop measures to safeguard against it, including Chinese Communist Party and state organs, social groups, enterprises and public institutions. more

Recording Calls Without Consent Still Illegal, California Supreme Court Rules

California’s prohibition on secretly recording phone calls applies to both parties on the call and not just third-party eavesdroppers, the California Supreme Court ruled Thursday.

The court’s unanimous decision reverses the Fourth Appellate District’s opposite interpretation from 2019 that the law applies only to nonparties and does not forbid those on the call from recording each other without consent.
California’s penal code Section 632.7 makes it a crime to record or intercept a phone call “without the consent of all parties.”

This was the basis for a 2016 lawsuit by Jeremiah Smith, who claimed the loan provider LoanMe Inc. recorded him without his consent during an 18-second call in violation of Section 632.7. more

Lawmakers: Fund Tech to Thwart Telco Spies

Lawmakers want Biden to fund technology they say could secure American telecommunications companies from spies.

A bipartisan group of lawmakers is urging President Biden to include $3 billion in funding for technology it says would reduce American reliance on Chinese telecommunications equipment that could provide a back door for spying.

The money would go to funds established by Congress last year to encourage more American companies to switch over to Open Radio Access Network (OpenRAN) technology. The technology is essentially the software version of the hardware components needed to connect phones within 5G networks. more

Iowa Passes New Electronic Surveillance Law

IA - New penalties for those found guilty of trespassing to set up electronic surveillance equipment on someone else's property to secretly capture images or video have passed in the House.  

Iowa legislators have been trying to enhance trespassing laws for nearly a decade in response to undercover operations in large-scale livestock operations. Republican Representative Jarad (JAIR-ud) Klein of Keota says the bill addresses somebody that has ill intentions and wants access to somewhere where they don't have a reason to be. 

Critics say the bill could be used to shield those who are mistreating animals or it could prevent reporting of unsafe working conditions in Iowa meatpacking plants. more

Russian Hack Changes Court Rules on Handling Sensitive Information

Trial lawyer Robert Fisher is handling one of America’s most prominent counterintelligence cases... Under new court rules, he’ll have to print out any highly sensitive documents and hand-deliver them to the courthouse.

Until recently, even the most secretive material — about wiretaps, witnesses and national security concerns – could be filed electronically. But that changed after the massive Russian hacking campaign that breached the U.S. court system’s electronic case files and those of scores of other federal agencies and private companies.

The new rules for filing sensitive documents are one of the clearest ways the hack has affected the court system. But the full impact remains unknown. Hackers probably gained access to the vast trove of confidential information hidden in sealed documents, including trade secrets, espionage targets, whistleblower reports and arrest warrants. It could take years to learn what information was obtained and what hackers are doing with it. more

Legislation Proposed in NY to Protect Owners from Eavesdropping Devices

New York Governor Andrew Cuomo is proposing ground-breaking legislation that would require companies that make “smart” devices like smart phones and televisions that can record, retain and transmit recordings to clearly display those capabilities to consumers.

The Democrat says the legislation is intended to make sure people know their smartphones, smart speakers and smart TVs that are connected to the internet can record what their owners are doing so they can manage their settings accordingly. 

The Governor says everyone has heard stories about smart devices connected to the internet recording people without their knowledge. Cuomo says people should be better informed about those capabilities and not have to search for that information hidden in fine print.

The Governor’s announcement did not go into detail on how that information would be displayed and what penalties could be levied against companies that failed to clearly disclose recording capabilities. more

Gouverneur Vetos Protective Video Surveillance for Nursing Home Residents

MI - Gov. Gretchen Whitmer opted not to sign a bill allowing nursing home residents to install surveillance cameras in their own rooms...

In a statement opposing Whitmer’s pocket veto,  Sen. Jim Runestad, the bill's sponsor, mentioned the story of 75-year-old Norman Bledsoe, who was severely beaten in May by a 20-year-old patient receiving COVID-19 treatment. Bledsoe suffered four broken fingers, broken ribs, and a broken jaw after the attack.

“Without the benefit of video, no one would have known the truth of how Mr. Bledsoe was injured,” Runestad said in a statement. “The governor had a chance to sign this bill and help stop the type of abuse we’ve seen in nursing homes for years. Instead she chose to turn a blind eye, and now seniors pay the price.” more

Can Two-Party Consent to Record be Obtained Using a False Persona?

Massachusetts' top appellate court said it will review a case over whether a recorded telephone interview between a Barstool Sports podcast host and a local city mayor runs afoul of a law prohibiting secret recordings if one party fraudulently obtains consent for taping...

Having been denied an interview with Curtatone about the mayor's comments on the issue, Minihane tried again, this time claiming to be Boston Globe columnist Kevin Cullen, according to the suit. Minihane, posing as Cullen, was granted the interview, in which he told the mayor he was recording...

Barstool and Minihane's attorney Aaron Moss of Greenberg Glusker LLP said in a statement Thursday that he is confident the SJC will reject Curtatone's arguments and uphold the lower court's ruling. 

"The Massachusetts Wiretap Act is crystal clear that it only prohibits secret recordings. If a recording isn't secret, the question of consent is irrelevant," Moss said. more

Interesting question. How would you decided?

Snitch Culture Redux, or The Hong Kong So Long

Police in Hong Kong have launched a hotline where residents can report breaches of the national security law imposed by Beijing earlier this year.

The law criminalizes secession, subversion and collusion with foreign forces. It has silenced many protesters since it came into force.

Hong Kong residents can send images, audio and video files to the hotline.

Rights groups say they are concerned the service could be used to target those with opposing political views. more

 It is worth remembering that "Citizen Snitch Surveillance" is a tactic of cultures that eventually fail. 

About one in 100 East Germans was an informer for communist East Germany's secret police in 1989, according to a new study. Political ideology was their main motivation, both in East and West Germany.

The Stasi kept detailed files on thousands of East Germans

Around 189,000 people were informers the secret police of the GDR's communist regime, when the Berlin Wall fell in 1989 -- that's according to Thuringia's state office for researching East Germany's Stasi... more

 

See the movie...