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law-stackexchange-questions-answers.json

law-stackexchange-qa-33818

Do the HIPAA regulations in the United States prevent medical providers from disclosing relevant health information on patient A to patient B?

If a medical provider is aware of some health information on patient A that can affect patient B, do the HIPAA regulations still prevent the medical provider from conveying that information to patient B? For example, if patient A is patient B's father, and patient A has some genetic disorder that may impact patient B and that is known to the medical provider, do the HIPAA regulations prevent the medical provider from disclosing that information to patient B? This issue has recently been raised in the United Kingdom: Legal action over non-disclosure of father’s Huntington’s disease could lead to huge changes in patient confidentiality (mirror)

HIPAA does not legally protect physicians from disclosing PHI to another party, although there are a few exceptions: HHS provides an excellent resource on these, but the regulation most relevant to your question is Permitted Uses and Disclosures (5) Public Interest and Benefit Activities, which includes "Required by Law. Covered entities may use and disclose protected health information without individual authorization as required by law (including by statute, regulation, or court orders)." These statues, regulations, and court orders vary from state, but almost all of them refer to STDs and not genetic conditions (in some states, physicians are required to disclose positive STD test results to known sexual partners, but I can't find similar legislation for genetic tests). Here's an example of a voluntary patient information disclosure form – you'll notice that an individual has to specify the parties to whom they're willing to have PHI disclosed. The example you provided is still a violation of the Privacy Rule in the U.S., but this is a very curious grey area in bioethics and law. Disclosure of Genetic Information Within Families: How nurses can facilitate family communication. Gallo et al. Am J Nurs. 2009 Apr; 109(4): 65–69. (Emphasis mine.) HIPAA and Genetic Disclosure Does the law affect families? The privacy rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) went into effect on April 14, 2003. The rule created new requirements for health care providers, third-party payers, and health care clearinghouses to protect the privacy and security of health information, including genetic information, that could identify a person. A person's decision not to disclose her or his risk of developing a genetic condition to a family member may pose a dilemma for the health care professional, who has to choose between ethical obligations to inform the at-risk party and legal requirements to respect and protect the patient's privacy. The potential for harm to family members often plays a large role in the decision. For example, in rare cases, the use of a certain surgical anesthesia can cause death in people with the mutation that disposes them to malignant hyperthermia. Likewise, strenuous exercise can bring on sudden death in people with hypertrophic cardiomyopathy. In such cases, clinicians should carefully explain the reasons for sharing information with family members, strongly encourage patients to notify at-risk relatives, and offer to help develop a plan for notifying them. When patients choose not to notify family members, clinicians typically respect the decision. There are situations, however, in which the clinician may consider overriding the patient's preferences because the family member is judged to be in danger of serious or immediate harm or there is a high likelihood that a dangerous condition will occur that can be either prevented or adequately treated with early recognition. Clinicians who believe it is necessary to override a patient's wish regarding the notification of family members, should consider consulting an ethics committee or legal council. In most situations, though, the risk of serious harm associated with nondisclosure is not clearly immediate. For instance, if a woman has tested positive for the BRCA1 or BRCA2 mutation but doesn't want to upset her two sisters by sharing that information with them, the need for disclosure isn't clearly urgent. Each sister has a one in two chance of carrying the same mutation. It would be understandable for the patient to try to learn more about what the mutation means for her and her children and to give careful thought to whether and how she'll share her test results with her sisters. Clinicians can best help family members by clearly informing patients who test positive for genetic conditions or the mutations that cause them about the risks faced by their family members, discussing the value of disclosure and offering assistance with it. The "Duty to Warn" a Patient's Family Members About Hereditary Disease Risks. Offit et al. JAMA. 2004;292(12): 1469–1473. (I can send you the full-text of this if you want it; it contains an excellent overview of cases and their outcomes relating to disclosing genetic information in the U.S. under HIPAA.) In general, the special nature of genetic tests has been viewed as a barrier to physicians' breaching the confidentiality of personal genetic information. However, the failure to warn family members about hereditary disease risks has already resulted in 3 lawsuits against physicians in the United States. While the findings of case law and the state and federal statutes that bear on the issue of "duty to warn" of inherited health risk are still being defined, we believe that health care professionals have a responsibility to encourage but not to coerce the sharing of genetic information in families, while respecting the boundaries imposed by the law and by the ethical practice of medicine. ...in considering whether to breach patient confidentiality to warn of risks of a genetic disease, clinicians need to balance the actual risk of that disease, the efficacy of potential preventive interventions, as well as emerging legal considerations and potential liabilities. Overriding patient confidentiality and genetic privacy might very well mean violation of HIPAA and certain state regulations, with attendant civil or criminal liability. At the same time, in one state appellate court decision that has not been overturned, the estate of a physician was held liable for his failure to warn relatives of hereditary disease risk.

hipaa,medical,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-34070

Someone broke my laptop, how should I handle this situation?

I am attending college in Wisconsin and I had my backpack leaning against the side of my desk. It was on the edge of the walkway between desks in the class room. Somebody walking by kicked my backpack hard enough to bend the USB ports so much I can't plug anything into them. Now my laptop won't turn on. I saw them do it, but I didn't get a look at their face at the time since I didn't think it was anything but a harmless accident. However, I took my laptop out that class, and I'm sure many people saw it wasn't functioning. I asked my professor if she had seen who did it, and she gave me their name and email. This is the first time I have been in this sort of situation. I am looking for somebody to tell me if there's anything I can do, and how to handle this situation.

Small claims court is a simple way to litigate money claims, as this would be. One side would argue that the other party owes them money; the other side would dispute the claim. In general, a person does it have the right to damage another person's property, so if B damaged your property, you might have a valid claim. The advantage of small claims court is that it's quicker and cheaper. However, one may need to hire an attorney anyhow, in order to correctly present your claim that B should be made to pay. If you can prove that B maliciously kicked your backpack in order to cause you damage, the matter will probably be resolved easily in your favor. More likely, this was an accident (that was what you thought), so now the question is whether this was negligence on their part, or on your part. B's negligence could have been in not using ordinary care when walking, your negligence would be in putting the backpack in the walkway. The judge would listen to your explanation of the surrounding facts, and then lay blame. In Wisconsin, the judge would compare the contribution of the two parties and come up with a percentage. In this situation, B would not have a basis for counter-suing you, which simplifies the matter a bit. If you more than 50% responsible for the damage, you cannot recover from B. If you are found to be e.g. 49% responsible and the defendant is 51%, then he is liable for 51% of the damage that you have suffered. If you consult with an attorney, they can give you a good estimate of the likelihood that you'll lose on the grounds that your negligence was greater than B's.

property,small-claims-court,wisconsin

law-stackexchange-questions-answers.json

law-stackexchange-qa-55742

What is the benefit of a large lawyer team?

A pretty common trope in different kinds of media is the idea that large corporations or rich people can screw people like they want and get away with it, because they have oh so many lawyers at their disposal. Mr. Burns from the simpsons comes to my mind immediately. Is there any truth behind this assumption? Can a large lawyer team render you invulnerable to certain lawsuits? I have no experience with any real applications of jurisprudence, so I find it really strange. Some points I can think of: When the lawsuit is so large and complicated that you need the manpower to sift through all its aspects. Still, if you poisoned an ecosystem your guilt should be provable and you would be condemned no matter the number of lawyers. Intimidating your opponent with the number of your lawyers to make them concede to a extrajudicial solution. It's just a code for bribing the judges. But none of those would explain this phenomenon properly. Is it even a real thing?

There are times when having a large law firm work on a case can be an advantage. It is rare for the number of lawyers working on a particular case to be more than three or four plus a few paralegals, even in a case where there are virtually unlimited resources at a party's disposal. In those cases, the primary benefit of having a large law firm at your disposal is that by paying top dollar for those attorneys, you may (but certainly don't always) get particularly competent attorneys at firms that have good systems in place. If you are willing to spend the money you can also have the attorney and paralegal team work exhaustively to leave no stone unturned in terms of legal research, style and proofreading, "wild goose chase" factual and legal research of matters like trial court arguments from other cases that the opposing counsel has participated in, and trial presentations with lavish presentation quality. For example, in one case where my firm was litigating against a large law firm in state supreme court arguments, the firm had seven law firm partners who had served as clerks in that court earlier in their careers participate in mock oral arguments to help the appellate lawyer who would be presented the case in oral arguments to the Colorado Supreme Court prepare (with four members of your core team and seven mock justices plus some paralegals participating this was a $5000+ per hour activity). A typical run of the mill appellate brief prepared competently might take 100 hours, while a large firm might devote 800 hours to the same task (both of these are hypothetical round numbers suggested just to get the point across). This incredibly intense working up of cases, moreover, often involves attorneys who aren't really starting from scratch as they has handled many similar cases before in their careers, while their smaller firm competition may have only encountered the issues presented for the first time. You are also paying for connections and experience. For example, a large law firm may have an easier time retaining the most decorated expert witnesses to argue on their behalf. These attorneys may also have handled numerous cases in front of the judge or judges who will be deciding the case (and if they haven't someone else in the large firm probably has) and thus can better predict what approach will be received best by that particular judge. The exception to the rule that the maximal economies of scale are reached with a quite small group of lawyers is that in addition to this core group of lawyers, some cases, such as class action lawsuits, or cases involving complex transactions (e.g. construction project disputes in a large project with hundreds of contractors) may require an immense amount of factual discovery in the trial court in the form of depositions of dozens or hundreds of people with relevant knowledge, and/or review of vast volumes of documents (e.g. I've had several cases with whole rooms stacked floor to ceiling with relevant documents in banker's boxes). In cases like those, you need an army of senior paralegals and junior attorneys to interview witnesses, take depositions and review and summarize documents to get to the bottom of the factual matters needed to prove a case. The down side of this approach, however, is that it is extremely expensive relative to the alternatives per task, and frequently impossible to recover your costs and attorney fees from the other party, perhaps because they aren't permitted to be awarded, perhaps because a judge would find some or all of your fees and costs to be unreasonable, or perhaps because the other side simply can't afford to pay them. So, using a firm like this really only makes sense if the stakes involved are very high, or if there are long term strategic reasons to litigate. Spending $1,000,000 on attorneys' fees and costs is a very expensive way to litigate a $100,000 one off dispute. But spending $1,000,000 on attorneys' fees and costs is perfectly sensible if there is $100,000,000 in controversy in the case at hand, or if a favorable outcome will influence the outcome of a large number of future disputed of the same type. The other dirty little secret is that lots of the work done by large law firms for which their clients pay an immense amount of money isn't done very well. One inherent down side of being large is that a large law firm is bureaucratic and prone to the kinds of mistakes that all large organizations have, for example, in diffusing responsibility for mistakes that can allow mistakes to fall through the cracks. Also, while the typical large law firm lawyer is typically more knowledgable than the typical small firm lawyer about the field at issue, this doesn't always happen. Sometimes junior attorneys get assigned too much responsibility on cases in areas where they have blind spots in their knowledge, and sometimes a large firm attorney ends up working a case due to personal connections with the client rather than because that attorney is the most qualified person in the firm to handle it. Also, while some very brilliant lawyers do indeed work at large law firms, technical competence isn' the only consideration in hiring. Successful large firm lawyers need to be team players, need to conform and function well in a large bureaucracy, and need to have the social capital to be comfortable on a day to day basis with the firm's other lawyers and their affluent and big business clients. Many large firm lawyers have those soft skills while having only competent rather than excellent legal acumen. Further, since most large law firm lawyers go straight from law school to a big firm (sometimes with a detour clerking for a judge for a couple of years), and large law firms handle mostly very big cases that are usually settled by lead attorneys before going to trial, most large law firm attorneys aren't particularly experienced at trial work. Some large law firms compensate for that by laterally hiring former prosecutors, former criminal defense lawyers and former high volume personal injury litigators to do that work, but often, large law firms have few lawyers in the courtroom with much trial experience relative to how many years they have practiced law. They may be very well prepared, but often there is no substitute for hands on trial experience. Still large law firms tend to fight extremely hard in trial, but tend to be pushovers in settlement discussions. This is driven by the reality that the client will incur huge amounts of attorneys fees and costs to go the distance, and by the fact that professionally, the worst thing that a large firm lawyer can do it to have an unexpected and unpredictable bad outcome at trial. So, large firm attorneys seek to give their clients low expectations about what is possible in litigation in order to make it possible to make cases with significant uncertainty go away with settlements larger than would really have been necessary to settle the case with a more total client litigation and settlement cost sensitive law firm.

lawyer

law-stackexchange-questions-answers.json

law-stackexchange-qa-23102

Employer forcing everyone to sign new contract which significantly affects working hours

My employer has recently undergone a number of changes internally, involving the move to different premises (with the argument about the new building being larger, however will accommodate roughly the same number of staff as the current building will occupy). As part of this, they have sent around an update to the employment contract which basically nullifies the flexible working hours which previously has been in effect. Many people I work with vary their working hours to fit in with their lives, and has been accepted - up to this point. The business operated a core working hours of 10am to 4pm, but are changing this to 9am - 5pm, with a 30 minute "flexible start/end" that employees can start and end their working day (e.g; 8.30am to 5pm, or 9am to 5.30pm) - effectively removing the concept of flexible working hours completely. This affects many people's lives, and some of my colleagues are petitioning to retain their flexible working hours, of which are being met with strict rules surrounding a mandatory lunch hour/half hour, no option to work less than this to make up the time (despite being willing to), and one has been forced to drop their hours to 36/week. They also put in a clause to the portion that they're wanting everyone to sign which says that everyone must specify when, between the hours to 12pm to 2pm, they will take their lunch, and must be rigid over this (unless a meeting is occurring, in which case that overrides your lunch hour and you must take it later). This was also met with protest, and they eventually caved and relaxed this rigidity slightly, then sent across some minutes from that meeting ratifying this. They will not, however, update the contract to reflect this as they've said that the meeting minutes ratifies it. However, we don't believe this would ever stand up in court if a dispute ever arose. Is this true? The final part of this demands flexibility from the employee for the business's requirements (e.g; if a meeting runs late/starts early, the employee is expected to be there), but will not offer the same level of flexibilities to staff who currently have lives (unless they offer a rigid, business-valid justification for doing so). It's almost as if they're "offering" this 30 minutes of flexibility to save face because on paper the revision is a load of rubbish. Many people do not want to sign this, as it significantly affects their lives (I myself work earlier in the morning to finish at 4pm to miss rush hour traffic in both directions, and so I have a little bit of daylight left at the end of the day - however I've been told that I would not be able to petition for flexible working hours with these reasons as they are not valid and would be rejected..and have also been told that I would be one of the worst affected by the change in rules). The move to the new building also offers no car parking space, so those that currently park on the company's property are effectively having to take a pay cut in order to pay for parking, or obtain an alternative means of getting to the office - usually at the additional expensive of significantly increased commute times. My question is basically this - Can they legally do this? What are the options for employees if they disagree to the new rigid rules and will (or have) get a formal request for flexible working hours rejected because their reasons are not "valid" in the eyes of the business? If the company lets staff go as a result of not agreeing to these rigid terms, are there grounds for constructive/unfair dismissal? Sorry I've rambled on a bit, but it's quite difficult to get a lot of this across. Hope someone can help. Edit: sorry, jurisdiction is England & Wales. Company is based in England.

Forcing (as opposed to offering) anybody to sign a contract/agreement (or an update to existing one) is never legal in the context of Common Law and any legislation derived from it (which is certainly the one in England). However, the question is: how are they forcing? Holding a gun to your head? That said, you are free to not sign anything and just keep obeying the existing contract. The employer is equally free to do the same: if they are no longer happy with the old contract and you do not want to sign the new one, they have two options: try to negotiate a new contact that you are happy with; or look at the "Termination" section of the old one and see how they can legally stop employing you. If "many people do not want to sign this" it might be sensible to organise them to not sign the new contract and start negotiations instead. The more employees do this the more flexible the employer will be.

employment,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-5306

What legal reasons prevent this software vendor from including encryption in their code?

I am working on a software project that requires the use of a setup program. The one my company is using is InnoSetup. On their downloads page towards the bottom, under the section titled Encryption Module it says: "For legal reasons, encryption code is not built into Inno Setup. You must download a separate "encryption module" if you wish to utilize Inno Setup's encryption capabilities..." What legal reasons are they referring to?

It may be an anachronism, see https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States

software

law-stackexchange-questions-answers.json

law-stackexchange-qa-21491

Job offer withdrawal because of non-compete

My problem is the following: I have signed a contract with a company in the UK with an effective start date which has to be defined. Now my previous company has claimed they can enforce a non-compete clause because the new company works in the same area as them. They told me after I signed the contract with the new company and they changed their mind after they initially said that they would not enforce that clause. Is it possible that the new company may decide to withdraw the offer that I have signed because of this clause? They told me this should not be an issue for them but they are taking a very long time to confirm my starting date and I am a bit worried they may change their mind. Many thanks to anybody who can give me some insight on this.

New company first. You and they have a binding contract and neither of you have legitimate grounds to terminate it. If your new employer repudiates the contract you can sue them for damages at contract law and unfair dismissal under employment law if that is a thing where you are. Similarly, if ultimately the restraint clause with your former employer is found to be enforceable, they can sue you for repudiation. Old company. They have two difficulties is enforcing the restraint of trade clause: To be enforceable these clauses must be as narrow as possible to protect legitimate business interests. That means they must be limited in market, geography and role so that you can still earn a living: they are more likely to be enforceable on executives than line workers. They said they wouldn't enforce the clause in relation to the job offer (and you can, of course, prove this): this raises issues of promissory estoppel. People are not allowed to make representations that they will or will not do something knowing someone could act on their promise to their detriment if they break it.

contract-law,employment,non-compete,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-47014

Why's it paradoxical that Wrotham Park damages protect the claimant’s performance interest by enforcing a sale of the claimant’s right?

I scanned both pages. Mindy Chen-Wishart. Contract Law (2018 6 edn). p 538. Paradoxically, Wrotham Park damages protect the claimant’s performance interest by enforcing a sale of the claimant’s right. How do "Wrotham Park damages protect the claimant’s performance interest by enforcing a sale of the claimant’s right"? Why's this paradoxical? Anson's Law of Contract (2016 30 ed). Having said that, one can perhaps defend the view that the damages in Wrotham Park were compensatory on the basis that it was the loss of the opportunity to sell the right in the future that was being compensated; or that the claimant was being compensated for a non- pecuniary loss (ie the claimant valued the right so much— to protect the views over that land— that it would not have been willing to sell it).78 78See above pp 566– 8.

I rectified a typo in the last sentence in this r/lawcanada comment. The quantum of damages is the amount required to release the restrictive covenant. The paradox is (from the perspective of the party benefiting from the covenant) is that the "protection" is just the cost to release the covenant. Think of it this way (real estate context) a developer owns a bunch of land. He develops it into a subdivision, but retains one lot (to build his own home) and puts in place a covenant that the other owners cannot cut down the mature trees on the developed lots (as the developer enjoys the looks of the trees). Is it then fair to say that the developer is "protected" because if a landowner cuts down a mature tree, they will have to pay Wrotham Park damages? (being an amount required to get permission to cut down the trees...) If the developer really just enjoys the aesthetics of the trees - no monetary award is truly fair compensation. The paradox being - that the only "protection" is the cost to give a release of the covenant.

contract-law,england-and-wales

law-stackexchange-questions-answers.json

law-stackexchange-qa-3629

Can I teach those careless kids a lesson and destroy their ball?

As we learned from the hypothetical In California, if a baseball lands in my yard, is it legally mine? I could face detinue for not returning the baseball upon request. But what if: I accidentally destroy the baseball, without knowledge whatsoever that it was on my property, by running over it with my lawnmower before its return is requested? I intentionally destroy the baseball before its return is requested? Is there a common law tort that clearly applies to either of these scenarios?

Actions in common law tort exist for both scenarios. Potential torts are negligence, trespass to chattel, and/or conversion. Putting the largely apparent tort of negligence aside, since that is nearly always available when something and/or someone is damaged by another (requiring only the [negligent] act, causation and damages) I'll focus on the other tort potentially applicable to scenario 1. The minority rule concerning trespass to chattel can be established even when the interference is negligent, whereas the majority rule requires intent to deprive. Interestingly, when the Restatement 2d of Torts talks about minority rule vs. majority rule, it really means "least often applied" vs. "most often applied", rather than merely "in some (fewer or greater) defined jurisdiction(s)". With these type of uncommonly pled torts, you could find a huge jurisdiction like California having lower courts (especially small claims or district courts) applying both the minority rule in some courts and the majority rule in others. This, all within one judicial jurisdiction if that state's law court has not weighed in on their interpretation of preference. The Restatement 2d (Second) of Torts § 217 and §218 define liability in trespass to chattel as "intentionally (negligently - minority rule ): (a) dispossess(ing) the other of the chattel, or; (b) the chattel is impaired as to its condition, quality, or value, or; (c) the possessor is deprived of the use of the chattel for a substantial time, or; (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. Trespass to chattel can consist of mere "intermeddling with or the limited use of the possession" and no damage need occur to the property, as damage is per se; however in your scenario, actual liability would occur in the destruction of the possession. The 2nd scenario would lie in the more serious tort of conversion. The tort of conversion will always requires intent to deprive the owner of his property, and the majority view is that the deprivation is intended to be total or forever (whether by continued deprivation or by destruction). There are 3 elements required to establish conversion: plaintiff's ownership or right to possession of the property at the time of the alleged conversion; defendant's conversion by a wrongful act or disposition of plaintiff's property rights; damage(s). While anticipating the follow-up question to either scenario, being "what about the fact that you didn't take the ball, but rather it ended up on your land, and shouldn't that count for something"...the answer (to the unasked question :~) is no. The act of taking possession over property to satisfy the necessary prong in both torts may take any number of forms, but need not be wrongful to begin with. All that is required to establish possessory control over the chattel in a tortious manner is merely interfering with the plaintiff's right of possession, which is a wrongful deprivation of something the owner was entitled to possess (so in other words, even if you didn't go and take it, once you know it's there, it's not yours, and you seek to keep it, either temporarily, permanently – the act of wrongful possession has occurred. The way the property was acquired is not at issue. Conversion and Trespass in Chattel are often spoken of interchangeably despite the fact that they are different. The difference between a cause of action for conversion and one for trespass against chattel is measured only by the degree of interference with the plaintiff's rights in their chattel. While the distinction seems subtle in a vacuum, in the old English cases where these torts were typically decided, conversion was one small step from criminal activity, whereas today conversion may be the civil adjunct to a criminal suit. *for those not familiar: chattel is any possession that is not real estate.

civil-law,common-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-57513

Is there a term for using law as the basis of morality?

Legal moralism is when a society creates laws based on the prevailing morality of that society. Stuff like "we think green houses are immoral, so we made a law to ban green houses". Is there a term for the opposite influence? As in "if Y is legal, I have no problems with doing Y" as an individual viewpoint for moralism?

You're thinking of legalism. It can have different meanings -- especially in Chinese legal/philosophical history -- but is the best match to the concept you're describing.

definition,jurisprudence

law-stackexchange-questions-answers.json

law-stackexchange-qa-21975

Is it legal for a restaurant to not accept cash?

I recently went to Sweetgreen (a make your own salad place) for the first time. When I got to the end of the counter and was ready to pay, I tried to hand the cashier a $20, but he said "I'm sorry sir, we don't accept cash". I was really taken aback and ended up having to pay with a card. After lunch, I did some research and found out that Sweetgreen as a chain is going fully cashless in 2017. Is that legal? Can a restaurant just not accept cash?

Yes This statute means that all United States money as identified above is a valid and legal offer of payment for debts when tendered to a creditor. There is, however, no Federal statute mandating that a private business, a person, or an organization must accept currency or coins as payment for goods or services. Private businesses are free to develop their own policies on whether to accept cash unless there is a state law which says otherwise.

legal-tender,united-states,virginia

law-stackexchange-questions-answers.json

law-stackexchange-qa-56536

Can a US company employ Iranian person outside US?

I have seen this link about Iranians working remotely for a US company. But it's (1) old and (2) about working remotely while living in Iran. I want to know that can I, as an Iranian, get employed in the European office of an American company and get the European country's working Visa?

If you are ordinarily an Iranian resident (have not fled the country) then 31 CFR 560.419 still applies, even if you e.g. happen to be working in Europe. The US "virtual embassy" to Iran says this about visas to the US. They mention that an immigrant visa is technically possible, if authorized by the appropriate consular staff (a waiver of the normal travel ban would have to be issued). This basically makes it a matter of consular discretion.

employment,iran,sanctions,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-7686

Is it legal to create a program intended to gain unauthorized access?

If I make a program which is unquestionably intended for other people to use to gain unauthorized access to a network, but I do not use the program myself except on my own network for testing, have I committed a crime? Can I be charged with cooperating to commit a crime?

18 USC 1039(a)(9) states (italics added) that whoever knowingly uses, produces, traffics in, has control or custody of, or possesses hardware or software, knowing it has been configured to insert or modify telecommunication identifying information associated with or contained in a telecommunications instrument so that such instrument may be used to obtain telecommunications service without authorization "shall, if the offense affects interstate or foreign commerce, be punished". I would imagine that whatever your program does to gain access, that satisfies the requirements of this statute. 18 USC 1030(a)(5) also criminalizes producing a program that damages a computer. You might think that simply looking does not cause damage. DOJ has a different view, observing p. 46 that "In the wake of seemingly minor intrusions, the entire computer system is often audited, for instance, to ensure that viruses, back-doors, or other harmful codes have not been left behind or that data has not been altered or copied". They note that this theory has not been applied to criminal cases. If you work alone, there is no conspiracy, but if you conspire with Smith to gain illegal access to a computer, you would have run afoul of 18 USC 371.

criminal-law,hacking,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-33105

What is the legal standard of proof required for US citizenship?

Suppose a person was claiming US citizenship by virtue of being born in the US, but had some difficulty proving that they were born in the US. What would be the legal standard of proof needed to prove citizenship? Let's say they were trying to obtain a passport or avoid deportation and the matter went to court. To make the question more concrete, suppose, for example, that a child was born on a ship or aircraft that was heading to the US and the timing of the birth corresponded approximately to the point where they crossed the 12-mile territorial limit of US waters. Now there is some real uncertainty as to whether or not the birth occurred in the US. The line is not marked and everyone was too busy to keep track of the exact time and location of the birth. Obviously, different pieces of evidence could be provided. Perhaps some witnesses recall seeing land already before the child was born or noted that the aircraft was already descending. This (extreme) example would be a situation where the facts cannot be established with certainty. If only a preponderance of the evidence can be established, would the person be treated as a citizen?

The case of Sanchez v. Kerry provides evidence as to what standard of proof is required in an analogous case. Petitioner sued the Dept. of State, which makes citizenship determinations (22 CFR 50.2), alleging that he was born in Brownsville TX and submitting a birth certificate in support of the claim. The court found that the Texas certificate was not valid evidence (it was alleged to be filed falsely), and instead a competing Mexican birth certificate was valid. The court concludes as a matter of law that "the plaintiff has the burden of proving, by a preponderance of the evidence, that he was born in the United States", with citations (Bustamante-Barrera, 447 F.3d 388, 394 (5th Cir. 2006); Reyes v. Neely, 264 F.2d 673, 674-75 (5th Cir. 1959); Tijerina v. Brownell, 141 F. Supp. 266, 270 (S.D. Tex. 1956); Patel v. Rice, 403 F. Supp. 2d 560, 562 (N.D. Tex. 2005). The district court lays out the comparative evidence pretty clearly, so that you can see how the courts would probably rule (the case was upheld on appeal). The decision would be based on a totality of evidence, and one would have to go beyond the one fact that distinguishes this case from others. In Sanchez there was substantial counter-evidence. In the present case, other facts would be relevant, such as whether a birth certificate had been filed in a timely manner in some state, whether there was a competing birth certificate from another country. Testimony from competent witnesses would be germane, and could easily devolve into a series of competing technical claims (do people on a plane really know where they are relative to the ground?).

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