by: Hayes Hunt and Jonathan Cavalier
Over the past decade, many European countries have passed laws mandating that individuals and employers report criminal conduct. In the United States, however, individuals are typically not required to report criminal conduct that they have observed. Likewise, employers have no general duty to report criminal conduct by their employees. Often, this lack of an affirmative duty or any other incentive to report criminal conduct will lead an employer to simply look the other way, rather than risk disrupting workflow, losing a valuable employee, bringing negative publicity on the company or facing liability for invasion of privacy or defamation. Consider the following scenario:
SCENARIO: A salesperson for a manufacturing company is having a record-setting year. His sales are continually the best in the company. Another employee notices a competitor’s price list and contacts sheet on his desk. When asked about these materials, the employee reveals that he used to work for the competitor and that, when he left, his former supervisor failed to disable his computer access. He has since continued to log in to his former employer’s system to gain access to information that enables him to undercut his competition on price. What should his current employer do?
The employee above is likely breaking at least two federal laws. First, he is certainly violating the federal Computer Fraud and Abuse Act, which prohibits, among other things, knowingly accessing a protected computer with intent to defraud and to obtain anything of value. He is also likely violating Section 1832 of the Economic Espionage Act of 1996, which criminalizes misappropriation of a trade secret with the intent to convert the trade secret to the economic benefit of someone who is not the rightful owner. He is also likely violating a slew of state laws regarding computer fraud and trade secret protection.
It goes without saying that the employee should be severely disciplined for his conduct, which has subjected the employer to potential civil and criminal liability. The best course of action may be to terminate the employee. Should the employer report his conduct to the authorities? On one hand, if the employer keeps the conduct of the employee in-house, the situation could blow over. This is a huge risk.
If, however, the conduct is discovered by the competitor, a lawsuit is sure to follow and the competitor may report the individual’s actions to the appropriate authorities. In the latter situation, reporting the employee to the authorities would have gone a long way toward establishing that the employer does not authorize or condone such trade secret theft and that, when confronted with a rogue employee, the employer took swift and decisive action to prevent the conduct from reoccurring.
The key to avoiding this kind of dilemma is to prevent the criminal conduct from occurring in the workplace. Employers should institute a trade secret policy which clearly specifies that employees are not encouraged, authorized or permitted to use trade secrets or confidential information belonging to competitors and that, if an employee is caught using such information, he will be subject to severe discipline. By establishing and enforcing such a policy, employers can gain significant protection against suits for trade secret misappropriation and unfair competition.
Published in The Legal Intelligencer on 4/18/12.
Over the past decade, many European countries have passed laws mandating that individuals and employers report criminal conduct. In the United States, however, individuals are typically not required to report criminal conduct that they have observed. Likewise, employers have no general duty to report criminal conduct by their employees. 
In all states with such laws, daycare centers are designated as mandatory reporters of suspected child abuse, as are any persons paid to care for a child in a public or private facility. Pennsylvania expressly mandates that any staff of a daycare center that has reason to believe that a child enrolled in the facility has been abused is required to report it. These laws cover and apply to daycare centers run as a benefit for company employees, even though the company is not in the “daycare business,” and even though only company employees may take advantage of the program.
Finally, employers should be aware that, depending on the state in which their business resides, mandatory reporting requirements for suspected child abuse may apply even if their business is not typically one associated with child care. Employers should know whether they are subject to mandatory reporting requirements in their state and advise their employees accordingly.
Over the past decade, many European countries have passed laws mandating that individuals and employers report criminal conduct. In the United States, however, individuals are typically not required to report criminal conduct that they have observed. Likewise, employers have no general duty to report criminal conduct by their employees. Often, this lack of an affirmative duty or any other incentive to report criminal conduct will lead an employer to simply look the other way, rather than risk disrupting workflow, losing a valuable employee, bringing negative publicity on the company or facing liability for invasion of privacy or defamation.
In addition to these reporting requirements, at least one employer has been found liable in a civil lawsuit for failing to report child pornography found on a work computer. In the New Jersey case of 
The key to avoiding this conflict is to have clear policies on the use of electronic devices in the workplace. An employer should include in its company handbook clear language notifying the employee that (a) any employer-issued equipment remains the property of the employer; (b) that the employee has no right of privacy in anything he does on that equipment; and (c) that the employer may access and search the equipment at any time and without notice. Ideally, employees will be reminded of their lack of a privacy interest each time they log on to their computers. 
By: Hayes Hunt and Calli Varner
The Stand Your Ground law becomes even more controversial when the defense is claimed by members of neighborhood watch groups. Florida is considering a bill that would require neighborhood watch groups to register, since there are no laws or regulations governing such organizations. The purpose of these groups is to promote safety and reduce crime by reporting suspicious activity to local law enforcement. One concern over Florida’s Stand Your Ground law is that it allows these groups to go even further — and use deadly force to prevent the commission of a forcible felony. Opponents argue that this portion of the statute encourages vigilantism by providing a broader justifiable defense for pursuing and shooting another person. 
Last week, the Supreme Court heard nearly six hours of oral argument from some of the brightest legal minds in the world in deciding the constitutionality of the Patient Protection and Affordable Care Act a/k/a Obamacare. The Court’s decision in this case will directly touch nearly all of the 310 million people in the nation. However, only 250 people had a chance to witness last week’s historic argument before the Supreme Court.
Historically, the Court has been inaccessible. Early Justices primarily “rode circuit,” bouncing from town-to-town, holding sessions wherever they could. When the federal government moved to Washington D.C., the Court did not receive its own building but was eventually settled into a basement room in the Capitol with barely enough seats for the lawyers, clerks, and court reporters in regular attendance. The current 400-seat chamber must have seemed gargantuan when the Court finally moved into its own building in 1935. 
As a Supreme Court Justice, Elena Kagan as well as the other members of the Supreme Court will ultimately decide the propriety of the health care legistration. At her confirmation hearing, Justice Kagan called watching Supreme Court oral arguments “an inspiring sight.” Fortunately, she was lucky enough to get a seat.
by Hayes Hunt and Brian Kint
There are similar impediments to imposing criminal liability for such conduct. Can a legal hit in a football game ever be criminal, even if it was intended to hurt an opposing player? It is one thing to carry brass knuckles onto the field and use them to harm another player — think Burt Reynolds and the “Mean Machine” in The Longest Yard. Such behavior is clearly outside the scope of the rules and would invite criminal liability. On the other hand, even if a player intends to hurt another player, a legal hit is unlikely to be criminal. But what if the player “uses his helmet as a weapon” and injures another player? The league has tried to stop these types of hits in recent years, but are they so far outside the rules as to be considered criminal?
The ongoing NFL investigation has yet to determine just how and whether bounty systems are pervasive, or whether the practice was limited to the Saints. Any player who wishes to pursue a claim for a ‘bounty-caused’ injury may be obligated to proceed with arbitration under the NFL Collective Bargaining Agreement. As a result, neither civil claims nor criminal charges are likely to ever see the inside of a courtroom. That is, unless Congress decides bounty hunting in football is a crime. 
By Hayes Hunt and Jonathan Cavalier
The S.E.C. has followed this practice for decades with the justification that it promotes quicker settlements and allows the agency to focus its resources on preventing and correcting other fraudulent activities. Citigroup was, of course, eager to settle the case without admitting wrongdoing, since by doing so, the company could avoid a finding of liability which would have collateral estoppel effect. Such a finding would have made it much easier for fund investors to sue Citigroup, since Citigroup would be estopped from denying that it violated the law.
Judge Rakoff closed with some harsh words for the S.E.C., which he viewed as gaining nothing from the settlement but a “quick headline”: “But the S.E.C., of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if fails to do so, this Court must not, in the name of deference or convenience, grant judicial enforcement to the agency’s contrivances.” Consequently, Judge Rakoff found that the settlement was “neither fair, nor reasonable, nor adequate, nor in the public interest” and set a date for trial.
Computer encryption software is no longer for the technologically advanced. This readily available software allows average computer users to transform plain text into indecipherable symbols, inaccessible to anyone without a password. With a few clicks of a mouse, computer hard drives become impossible to break into for advanced hackers and, even, FBI cyber squads. In response to this technology, prosecutors in Colorado were recently successful in obtaining a court order requiring a woman, charged with a crime, to meet with FBI agents and unlock files found on her laptop. 
The Colorado decision comes after the 11th Circuit’s ruling that a suspect in a Florida case did not have to unlock his computer because doing so would be a violation of his Fifth Amendment right against self-incrimination. In that case, the court determined that requiring a child-pornography suspect to unlock his computer would force him to “use the contents of his mind to incriminate himself or lead the Government to evidence that would incriminate him.” This case is distinguishable from Fricosu’s because the suspect had not yet been charged with the crime and the government did not know what, if anything, was on the suspect’s hard drive. A decryption revealing child-pornography, possession of which is a crime in itself, would result in criminal charges against the suspect. 
By: Hayes Hunt and Brian Kint
Although the tension between intellectual property rights and free speech has always been present, in the past it largely was reconciled through limited enforcement. In the late 18th century, only the most dedicated infringers would have taken the time to undertake the arduous process of reproducing another’s work. For example, early printing presses could reproduce a few hundred pages an hour, at best, and the operator had to set the type by hand for each page.
Technological changes created new challenges in criminal enforcement as well, as illustrated by a recent case. On Jan. 19, federal prosecutors seized and shut down the website Megaupload.com and charged seven of its executives with internet piracy. Megaupload is a website that allows users to upload and transfer large files, often music or movies. The website is based out of Hong Kong, but some of the allegedly pirated content was hosted in Virginia. None of the seven executives charged is a U.S. citizen or resident. If convicted, they face up to 20 years in prison. The case raises three of the most pertinent issues of contemporary anti-piracy law.
