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According to MSNBC, Matt Weaver is a “college junior running for president of the student government at California State San Marcos, north of San Diego” who has been “arrested on March 15 on suspicion of election fraud, unlawful access to a computer and 10 counts of identity theft.” (MSNBC – Source Link).

The article mentions that Weaver was purportedly caught in the act while working on a computer belonging to the school, and allegedly operating a “device used to steal passwords.” (MSNBC – Source Link). Based on the information in the article, it is not certain whether the device allegedly used by Weaver was a physical recording machine or digital software, such as a key logger or other similar recording program, which records and saves the key strokes of users.

The Federal Bureau of Investigation (FBI) is involved in the investigation of the incident, as it “appears there may be violations of federal laws.” (MSNBC – Source Link). Although there have not yet been any charges against Weaver as of this posting, it seems that the statute that is likely at issue is 18 USC § 1030, which pertains to FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COMPUTERS.

Of the different types of activities punished under this federal statute, the following sub-sections are particularly relevant: 18 USC § 1030(a)(2)(C) creates criminal liability for persons who “intentionally access computers without authorization or exceed authorized access, and thereby obtain information from any protected computer”; 18 USC § 1030(a)(4) deals with individuals who “knowingly and with intent to defraud, access a protected computer without authorization, or exceed authorized access, and by means of such conduct further the intended fraud and obtain anything of value”; 18 USC § 1030(a)(5)(A) punishes those that “knowingly cause the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.”

The punishment varies greatly depending on the damage or injuries caused by the digital intrusions, as well as other factors. It is also important to note that the relevant definition of “protected computer” is a computer “which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States’ — which is a seemingly broad definition.

It will be interesting to see how the federal authorities choose to proceed.

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Mr. Dharun Ravi was charged with invasion of privacy, bias intimidation, as well as other relatively less onerous criminal charges related to allegations of witness and evidence tampering. As a general overview, the invasion of privacy charges arose out of Ravi allegedly utilizing a webcam to personally view the alleged victim, Mr. Tyler Clementi, preparing to have sex with another man, as well as transmitting the video feed to other third parties. Ravi and Clementi shared a dorm room at Rutgers University. Clementi had committed suicide some time later. The Middlesex County Prosecutor’s Office pursued criminal charges against Ravi following an investigation and discovery of the circumstances surrounding the suicide of Clementi.

Ravi was found guilty on March 16, 2012 of numerous charges, most notably invasion of privacy and bias intimidation. Although Ravi was found guilty of both third and second degree bias intimidation for observing Clementi on Sept. 19, it should be noted that the justifications for the third degree guilty verdict are slightly contradictory to the second degree findings of guilt for bias intimidation.

As to the third degree bias intimidation charge for the incident on Sept. 19, the jury only found Ravi guilty under the NJSA 2C:16-1(a)(3) sub-section and not guilty on the other bias intimidation sub-sections. In contrast, as to the second degree bias intimidation charge for the very same incident on Sept. 19, the jury found Ravi guilty under both NJSA 2C:16-1(a)(2) and 2C:16-1(a)(3). This is interesting, considering that under the lesser third degree charge of bias intimidation, the jury specifically found Ravi not guilty under the NJSA 2C:16-1(a)(2) sub-section, according to the reviewed verdict sheet made available by the media.

Had the defendant been found not guilty on the third degree grading of the bias intimidation charge, it is likely that the second degree guilty verdict would not stand, as it is a lesser included grading of the crime. But this is not the case here.

Ultimately, it is likely that the jury’s choice of sub-section in finding guilt for bias intimidation, will be irrelevant, as the statute only requires either one of the three sub-sections of NJSA 2C:16-1(a) for holding a defendant liable for bias intimidation.

In order to clarify the terms and statutory provisions for the readers, pursuant to NJSA 2C:16-1, bias intimidation essentially acts to aggravate a variety of underlying offenses and crimes, increasing the penal repercussions for defendants. I have added the following excerpt for your consideration.

a. Bias Intimidation. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,

(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

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If a litigant is seeking judicial relief in connection to “an instrument for the payment of money only” or “upon any judgment,” the Civil Practice Law and Rules (CPLR) in the State of New York offers a swift procedural method, commonly used by major financial entities like banks, for disposing of such cases. Monetary instruments and the like are ripe for quick disposition as these matters often involve written expressions of agreement that are difficult to contest.

The complaining party is given an opportunity to institute a dispositive motion at the outset of the case. This particular motion is dispositive as it can lead directly to disposition. Under CPLR § 3213, the usual course of starting a suit turns into an amalgamation of commencement procedure and motion practice. This procedural tool aspires to speed up the process. It can cut a few days, or perhaps even weeks, off of the time it takes for the judiciary to bring resolution to other forms of civil actions.

When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. If the plaintiff sets the hearing date of the motion later than the minimum time therefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise. CPLR § 3213.

It is important to be aware of the minimum notice requirements for CPLR § 3213, as timing and service of process can become quite complex. Providing the non-movant with insufficient time to respond can lead to a dismissal of the matter.

For guidance on service of process and return time, you may consult Malament v Jong Kim, 22 Misc 3d 1110(A).

CPLR 3213 gives the plaintiff an option to either make the motion returnable as soon as possible and permit the defendant to file its opposition papers on the return date or demand opposition papers in advance and give the defendant additional time in which to oppose the motion. Id. at 1028. Plaintiff cannot give defendant the minimum amount of time permitted to oppose the motion and demand opposition in advance. Because Malament demanded service of answering papers by September 26, 2008, Defendants were not provided with the statutorily required time in which to respond. Malament v Jong Kim, 22 Misc 3d 1110(A).

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Inferior courts are not bound to follow dicta propounded by courts that stand in higher authority. Even though one may hope that a clearly defined issue before a court will result in straightforward precedent, it is usually difficult to discern dicta from binding case law. The path that any given superior court takes in reaching a decision is quite important and the path is arguably binding law, as it can be seen as necessary for the reasoning or the analytical framework of the precedent.

In McDonald v. Chicago, the Court discussed Heller and how it recognized the right to possess a firearm in the home for self-defense purposes. McDonald goes further. SCOTUS affirmed the notion that the Second Amendment encompasses a fundamental individual right and that the Second Amendment, as a consequence, binds the Federal, State and Local governments. However, the Court reiterated that even fundamental rights have inherent limitations.

“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’” McDonald.

The excerpt above may or may not be obiter dictum, but the Court used the opportunity to flesh out this fundamental right. The underlying issue was the constitutional meaning of the Second Amendment. It is wholly within the purview of SCOTUS to define the constitutional limits of the Second Amendment, and this excerpt above may prove to be a binding guide for future Second Amendment litigation. Without saying anything more of substance, the Court reversed the inferior court, acting in accordance with the legal analysis it put forth in McDonald.

Finding that the Second Amendment is a fundamental right, SCOTUS has essentially guaranteed that judicial review of statutory law will be undertaken with ‘Strict Scrutiny’ in accordance with U.S. Supreme Court precedent.

Additionally:

As elucidated in the excerpt, the following categories of laws/statutes (in no particular order of importance) likely fall within the framework of permissible limitations on the Second Amendment, so long as they are ‘reasonable’ and comport with the ‘Strict Scrutiny’ standard of review for statutory law infringing on fundamental rights:

1. Prohibitions on felons and mentally ill individuals;
2. Carrying of Firearms in sensitive places like schools and government buildings, and potentially other places; and,
3. Regulation of Commercial sale of firearms.

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