People, Let Me Tell You ‘Bout Your Worst Friend

Tired of the endless political posts on Facebook?  It could be worse. Much worse. With apologies to the late Harry Nilsson (and Bill Bixby), imagine if your Facebook best friend posted something like this:

Hey, those people that you saw on the news killing cops? Yeah, they worked for me. They were confidential informants, so I’m glad they’re dead. But more importantly, I head up a the local group of anarchists and we are going to blow up the courthouse, and kill some cops and judges. We have explosives and a massive arsenal. We will accomplish this no matter the cost!

You would be pretty horrified, right? Not everybody-I-went-to-high-school-with-is-so-old-now horrified, I mean legitimately horrified. That’s essentially what the Samuel Bradbury did in 2014, according to yesterday’s 7th Circuit opinion. I’ve paraphrased his diatribe in my example to starve it of any additional notoriety, but the essentials are there: (1) a shout out to recent, public, violent crimes, and (2) voicing an intent to take similar violent actions (3) against law enforcement and judicial officers.

Then, in the comment section, responding to a question from a friend, Bradbury explained that the entry was “complete satire . . .. This is simply a big mind game and satirical joke. . . . [I]t’s made to get you to think.” Though he deleted the message soon afterwards, the police received screenshots and an investigation followed.

The investigation led to Bradbury’s arrest and a search of his bedroom in his parents’ home. (That Bradbury still lived with his parents is easily the least shocking part of this story.) In the bedroom, police found thermite and magnesium, which probably means Bradbury is either really creepy or enjoys underwater welding in his spare time. Still, the defense must have been partially successful. After a trial, Bradbury was only convicted of maliciously conveying false information, which he appealed.

In any jury trial, the judge gives a set of instructions to the jury members. Think of them as answers to the Frequently Asked Questions the jury may have. These instructions often provide specific definitions of some of the terms used by the lawyers and the judge. In this case, the parties tasseled over the judge’s definition of maliciously. On appeal, Bradbury argued that the definition was too broad and would’ve allowed the jury to convict him even if the jury thought he was joking. But whether Bradbury intended to cause physical harm begs the question: when is a threat that puts people in fear or apprehension itself a criminal “harm”? The Court approved the trial court judge’s definition of maliciously, upholding Bradbury’s conviction:

To make a threat . . . is both intentional and malicious—intentional because [it is] deliberate and malicious because [it is] calculated to inspire fear and provoke a possibly costly response—even if the threatener doesn’t intend to carry out the threat. . . . Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. Sec. 844(e) . . . even if the harm that ensues is fright rather than physical injury.

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The Digital Estate of Confusion

The phrase “Digital Estate” has evolved to include all manner of information and assets, stored locally and online. But you don’t need to have a Ph.D. in Nerdology or drift into an electron-induced coma when the subject of digital assets comes up. The basics are pretty simple.

Dude, Wheres my Digital Estate?

If you’re like me, you use a computer, a tablet, or a smart phone to do just about everything – save and edit pictures, take notes, keep a calendar, communicate with family and friends through email and social media, and research important issues such as how curling became a bona fide sport.

These “digital assets” make up an increasingly larger portion of our stuff. Many of these have value to me and perhaps to my family – such as my Flickr or Facebook account. Some are personal financial records kept on Dropbox, Evernote, iCloud, or any other online storage management system. Others are not online but saved on a hard drive or thumb drive at home. The value of these assets varies widely. While a carefully photoshopped image of Ruth Bader Ginsburg at Sturgis, or the much-coveted Nixon Meets Elvis photo might not be much of a financial investment, how much have I paid to iTunes in the last five years? What about an online store presence on eBay?

The Odd Life of Timothys Green E-book Collection.

Today, physical assets still outpace electronic-only versions for most Americans. Consumers who spend money on music downloads spend on average $13.31 monthly, compared with $17.94 on CDs. In a typical month, consumers who purchase e-books on their mobile devices spend an average of $15.34, compared with $20.23 on paperbacks.

Suppose a 30 year-old music lover has been buying digital and CD music, and e-books and paperbacks for 5 years at these rates. If he continues to spend at these rates, and if prices of CDs and digital music never increase, his purchases would follow this chart, roughly.Image

When this prodigious purchaser is 70 years old, he’ll have nearly $20,000 in digital assets of just music and e-books. Of course, if he gradually buys more digital content, and fewer CDs and paperbacks, that amount would only increase. Most people will want to find ways to protect these assets, and will increasingly demand methods to convey these to their heirs.

License to Illegally transfer your music?

The biggest difference between your weird uncle’s collection of classic rock LPs and your iTunes account is that an LP, cassette tape, or CD allowed for the ownership of a physical medium. While Uncle Shamus’s purchase of Rush: Roll the Bones never entitled him to sell tickets for his friends to listen to the Canadian Power Trio in Grandma’s house – hey, he was a visionary– it did allow him to pass the LP to you in his will.

But iTunes and other digital stores are a bit different. My purchases in iTunes are merely a license. Presently, iTunes does NOT permit any type of transfer. I cannot, consistent with terms of use of my license with iTunes, sell or give you my right to use the music I have downloaded. Without an exception for my probate estate–which does not presently exist–I can’t give it to anyone when I die, either. That might seem unfair, after all, I “own” it. But ownership is a nebulous thing in the world of licenses. So, sadly, that e-copy of the Telly Savalas autobiography cannot be passed onto my beneficiaries. Not legally anyway. It’s toast. But take heart — at least you can still pass on the Kojak VHS tapes collecting dust in the back of your closet. Who loves you, baby?

Hey, You, Get Off of My Cloud-Based Storage Service.

Whatever you might think of online or cloud-based services, they are here to stay. Fortunately for Hoosiers, Indiana allows for the executor of an estate to demand access to any electronically-stored information upon showing of a death certificate or court order. See Ind. Code § 29-1-13-1.1. But rather than have your family wait months after sending formal legal papers to a multinational corporation, only to have the request land on the desk of the Vice President in Charge of Making it Impossible for Regular People to Access Our Server Farms, I suggest a simpler approach. Write down all your passwords. On paper. With ink. Keep a copy with your will. That way, your executor does not have to find the Rosetta Stone to your passwords.

Facebook, Twitter, and other social networking sites have developed policies for dealing with a deceased account holder. Each can delete an account entirely, with proper documentation. While it’s hard to think that when I’m gone, my family will want to preserve all my zinger-tweets made during the Rachel Maddow Show (“Up next, @RachelMaddow fights @Voldemort in the Chamber of Secrets!”), it could happen.

Besides deletion, Facebook also allows you to “Memorialize” an account to allow it to live on but without future changes or updates. I cannot be the only person to think that it’s incredibly creepy to contemplate my Facebook profile living on when I’m gone. Will my timeline continue to register my activity in eternity? Maybe it will. At least then we’ll all know that Mitch Albom is a liar.

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