Delaware Law Office
of Larry D. Sullivan, Esquire

A Weblog?
The column to the right, is a news/editorial/comment column. It is a weblog, also know as a blog.

The weblog thing comes from www.blogger.com, which offers us a convenient way to manage the posting, administratively. You don't really need to know all of that, but we have included this explanation so that you won't be confused by the term "blog".

Another important topic here is that since the column includes editorials and comments, you can be sure that we are just exercising our free speech rights as guaranteed by the Constitution and as not yet abridged by a reactionary opportunistic vocal minority.

opinions, everybody's got one...
If you would like your opinion published here, forward it for consideration and editorial review to: info@delawoffice.com.
Or add a comment. Comments by: YACCS

We encourage the exchange of responsible ideas.

Thursday, January 10, 2002

Around the Law

 
Human Barcodes?
Radio-frequency identification chips compatible with human tissue may be used for pacemakers, defibrillators and artificial joints. How would this be useful?
"If you're a pacemaker user and you're in an accident and in shock, an ambulance attendant could scan the body and retrieve information about the device," Bolton said. 'The chip could provide information about the [pacemaker's] settings, who its manufacturer is and whether you have any medical allergies.'"


Fake euro note found
It didn't take long for someone to start funny business with funny money.


Economics of Intellectual Property
A thought provoking discussion of the conflict that arises when you consider the ownership of intellectual property, and the benefits that society reaps when information can be shared freely. (from Kuro5hin)


Franchise Regulation: Past, Present and Future
An excellent introduction to franchises, the growth of the franchise business model, problems facing franchises, and their regulation.


IRS' Case of the Missing Laptops
These guys crunch a lot of numbers, and you would expect that they've gotten pretty good at it by now. But when an audit revealed that a large amount of equipment appeared to be missing... This is news much in the same way that a "man bites dog" story might make the front page of the newspaper. You hear of the IRS auditing people, but rarely of the IRS being audited.


The Many Futures of Music, Maybe One of Them Real
(NYTimes - free registration required) There are so many directions that musical artists, the recording industry, and the internet can go in that it's difficult to tell which path will be followed. A nice analysis of the possible futures of recorded music, and of some of the artistic, business and government forces shaping that future.

- William Slawski


Wednesday, January 09, 2002

Delaware and Spam

 
...from Title 11 of the Delaware Code

931. Definitions.

As used in this subpart:

(1) "Access" means to instruct, communicate with, store data in or retrieve data from a computer, computer system or computer network.

(2) "Computer" means a programmable, electronic device capable of accepting and processing data.

(3) "Computer network" means:
a. A set of related devices connected to a computer by communications facilities;
b. A complex of 2 or more computers, including related devices, connected by communications facilities; or
c. The communications transmission facilities and devices used to interconnect computational equipment, along with control mechanisms associated thereto.

(4) "Computer program" means a set of instructions, statements or related data that, in actual or modified form, is capable of causing a computer or computer system to perform specified functions.

(5) "Computer services" includes, but is not limited to, computer access, data processing and data storage.

(6) "Computer software" means 1 or more computer programs, existing in any form, or any associated operational procedures, manuals or other documentation.

(7) "Computer system" means a computer, its software, related equipment and communications facilities, if any, and includes computer networks.

(8) "Data" means information of any kind in any form, including computer software.

(9) "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association and any other legal or governmental entity, including any state or municipal entity or public official.

(10) "Private personal data" means data concerning a natural person which a reasonable person would want to keep private and which is protectable under law.

(11) "Property" means anything of value, including data.

(12) "Electronic mail" or "e-mail" means any message that is automatically passed from an originating address or account to a receiving address or account;

(13) "Originating address" or "originating account" means the string used to specify the source of any electronic mail message (e.g. company@sender.com);

(14) "Receiving address" or "receiving account" means the string used to specify the destination of any electronic mail message (e.g. person@receiver.com);

(15) "Electronic mail service provider" means any person who:
a. Is an intermediary in sending and receiving electronic mail; and
b. Provides to end-users of electronic mail services the ability to send or receive electronic mail.

(16) The "Internet" is a hierarchy of computer networks and systems that includes, but is not limited to, commercial (.com or .co), university (.ac or .edu) and other research networks (.org, .net) and military (.mil) networks and spans many different physical networks and systems around the world.

(17) "Commercial electronic mail" or "commercial e-mail" means any electronic mail message that is sent to a receiving address or account for the purposes of advertising, promoting, marketing or otherwise attempting to solicit interest in any good service or enterprise.

(64 Del. Laws, c. 438, 1; 72 Del. Laws, c. 135, 3.)


937. Unrequested or unauthorized electronic mail or use of network or software to cause same.

A person is guilty of the computer crime of unrequested or unauthorized electronic mail:

(1) When that person, without authorization, intentionally or recklessly distributes any unsolicited bulk commercial electronic mail (commercial E-mail) to any receiving address or account under the control of any authorized user of a computer system. This section shall not apply to electronic mail that is sent between human beings, or when the individual has requested said information. This section shall not apply to the transmission of electronic mail from an organization to its members or where there is a preexisting business relationship. No Internet/interactive service provider shall be liable for merely transmitting an unsolicited, bulk commercial electronic mail message in its network. No Internet/interactive service provider shall be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any unsolicited, bulk electronic mail which it believes is, or will be, sent in violation to disconnect or terminate the service of any person that is in violation of this article; or

(2) When a person uses a computer or computer network without authority with the intent to: Falsify or forge electronic mail transmission information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers; or

(3) When a person sells, gives or otherwise distributes or possesses with the intent to sell, give or distribute software which:
a. Is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information;
b. Has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or
c. Is marketed by that person or another acting in concert with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.

(4) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time he or she received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility.

(72 Del. Laws, c. 135, 1.)


938. Failure to promptly cease electronic communication upon request.
(a) A person is guilty of the computer crime of failure to promptly cease electronic communication upon request when that person intentionally, recklessly or negligently, fails to stop sending commercial electronic mail to any receiving address or account under the control of any authorized user of a computer system after being requested to do so. All commercial electronic mail sent to any receiving address within the State shall have information to the recipient on how to unsubscribe or stop further receipt of commercial electronic mail from the sender.

(b) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time he or she received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility.

(72 Del. Laws, c. 135, 1.)



939. Penalties.

(a) A person committing any of the crimes described in 932-938 of this title is guilty in the first degree when the damage to or the value of the property or computer services affected exceeds $10,000.

Computer crime in the first degree is a class D felony.

(b) A person committing any of the crimes described in 932-938 of this title is guilty in the second degree when the damage to or the value of the property or computer services affected exceeds $5,000.

Computer crime in the second degree is a class E felony.

(c) A person committing any of the crimes described in 932-938 of this title is guilty in the third degree when:
(1) The damage to or the value of the property or computer services affected exceeds $1,000; or
(2) That person engages in conduct which creates a risk of serious physical injury to another person.

Computer crime in the third degree is a class F felony.

(d) A person committing any of the crimes described in 932-938 of this title is guilty in the fourth degree when the damage to or the value of the property or computer services affected exceeds $500.

Computer crime in the fourth degree is a class G felony.

(e) A person committing any of the crimes described in 932-938 of this title is guilty in the fifth degree when the damage to or the value of the property or computer services, if any, is $500 or less.


Computer crime in the fifth degree is a class A misdemeanor.

(f) Any person gaining money, property services or other consideration through the commission of any offense under this subpart, upon conviction, in lieu of having a fine imposed, may be sentenced by the court to pay an amount, fixed by the court, not to exceed double the amount of the defendant's gain from the commission of such offense. In such case, the court shall make a finding as to the amount of the defendant's gain from the offense and, if the record does not contain sufficient evidence to support such a finding, the court may conduct a hearing upon the issue. For the purpose of this section, "gain" means the amount of money or the value of property or computer services or other consideration derived.

(g) Amounts included in violations of this subpart committed pursuant to 1 scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the degree of the crime.

(h) For the purposes of this subpart, the value of property or computer services shall be:

(1) The market value of the property or computer services at the time of the violation; or
(2) If the property or computer services are unrecoverable, damaged or destroyed as a result of a violation of this subpart, the cost of reproducing or replacing the property or computer services at the time of the violation.

When the value of the property or computer services or damage thereto cannot be satisfactorily ascertained, the value shall be deemed to be $250.

(i) Notwithstanding this section, the value of private personal data shall be deemed to be $500.

(64 Del. Laws, c. 438, 1; 67 Del. Laws, c. 130, 8; 72 Del. Laws, c. 135, 1, 2.)


940. Venue.

(a) In any prosecution for any violation of 932-938 of this title, the offense shall be deemed to have been committed in the place at which the act occurred or in which the computer system or part thereof involved in the violation was located.

(b) In any prosecution for any violation of 932-938 of this title based upon more than 1 act in violation thereof, the offense shall be deemed to have been committed in any of the places at which any of the acts occurred or in which a computer system or part thereof involved in a violation was located.

(c) If any act performed in furtherance of the offenses set out in 932-938 of this title occurs in this State or if any computer system or part thereof accessed in violation of 932-936 of this title is located in this State, the offense shall be deemed to have occurred in this State.

(64 Del. Laws, c. 438, 1; 72 Del. Laws, c. 135, 1, 2.)


941. Remedies of aggrieved persons.

(a) Any aggrieved person who has reason to believe that any other person has been engaged, is engaged or is about to engage in an alleged violation of any provision of 932-938 of this title may bring an action against such person and may apply to the Court of Chancery for: (i) An order temporarily or permanently restraining and enjoining the commencement or continuance of such act or acts; (ii) an order directing restitution; or (iii)an order directing the appointment of a receiver. Subject to making due provisions for the rights of innocent persons, a receiver shall have the power to sue for, collect, receive and take into possession any property which belongs to the person who is alleged to have violated any provision of this subpart and which may have been derived by, been used in or aided in any manner such alleged violation. Such property shall include goods and chattels, rights and credits, moneys and effects, books, records, documents, papers, choses in action, bills, notes and property of every description including all computer system equipment and data, and including property with which such property has been commingled if it cannot be identified in kind because of such commingling. The receiver shall also have the power to sell, convey and assign all of the foregoing and hold and dispose of the proceeds thereof under the direction of the Court. Any person who has suffered damages as a result of an alleged violation of any provision of 932-938 of this title, and submits proof to the satisfaction of the Court that the person has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent the person has sustained out-of-pocket losses. The Court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.

(b) The Court may award the relief applied for or such other relief as it may deem appropriate in equity.

(c) Independent of or in conjunction with an action under subsection (a) of this section, any person who suffers any injury to person, business or property may bring an action for damages against a person who is alleged to have violated any provision of 932-938 of this title. The aggrieved person shall recover actual damages and damages for unjust enrichment not taken into account in computing damages for actual loss and treble damages where there has been a showing of wilful and malicious conduct.

(d) Proof of pecuniary loss is not required to establish actual damages in connection with an alleged violation of 935 of this title arising from misuse of private personal data.

(e) In any civil action brought under this section, the Court shall award to any aggrieved person who prevails reasonable costs and reasonable attorney's fees.

(f) The filing of a criminal action against a person is not a prerequisite to the bringing of a civil action under this section against such person.

(g) No civil action under this section may be brought but within 3 years from the date the alleged violation of 932-938 of this title is discovered or should have been discovered by the exercise of reasonable diligence.

(64 Del. Laws, c. 439, 1; 70 Del. Laws, c. 186, 1; 72 Del. Laws, c. 135, 1, 2.)


Tuesday, January 08, 2002

How Much Faith Should you Place in that Poll?

 
It's not uncommon to come across a poll on the internet, or in a newspaper, and read that a certain percentage of the public believes X when you believe Y. You survey friends and acquaintances, and most people you know disagree with the results of the poll. Does that mean the poll is invalid?

You see a poll on the internet, and a lot of people have taken part in the poll. The results are totally ridiculous. How scientific is that poll anyway?

How much information does the person reporting about the poll tell you about it? How much faith should you place in the poll. Aren't there guidelines anywhere that should tell people about how a poll should work?

An excellent resource on polls exists on the pages of the National Council on Public Polls (NCPP), called 20 Questions A Journalist Should Ask About Poll Results. They discuss many of the things that a journalist should look for when reporting upon a poll. Even if you're not a journalist, this is an excellent set of questions and answers to look over, because it can give you a sense of the types of things a reporter should be telling you about a poll as they are reporting on it.

The problem with internet polls? Usually the people taking the polls are the ones electing to take polls. There's no selection process on the part of the pollsters to try to get opinions from a broad range of people with different opinions. If you have a small community, and the poll results show that most people voted (only once), then your poll results are going to be pretty good. But when you poll a thousand people to try to gauge the opinions of a few million, it is important to try to get opinions from a broad spectrum of participants.

The next time you see a poll that is used to back an opinion, such as a presidential approval rate on certain issues, take a look at the poll objectively, and see if it follows the guidelines from the NCPP.
- William Slawski


Sunday, January 06, 2002

Criminal Charges for the Delaware River Bay Authority?

 
Delaware's involvement with the multistate Delaware River Bay Authority (DRBA) creates many questions. One of the largest is how much supervisory power the State has over the entity. Is the River Bay Authority above the law? If two states work together to create an extra-state organization that oversees the use of a shared resource, can that created organization be said to be a government agency? Is it subject to the laws of both states? Some of the DRBA's actions give the appearance that they believe themselves to be above the law.

A recently discovered abuse by the DRBA is the disclosure that they have contributed money to a golf tournament that benefits the political action committee of the State Chamber of Commerce. A committee which supports state and local candidates. The money contributed is public money.

Not only does Delaware law forbid a governmental agency contributing to political groups, but it can impose a fine up to $2,300.00 and up to a year in prison.

The Delaware River Bay Authority says that the Delaware law does not apply to them. Since New Jersey doesn't have a similar law on their books, the Authority contends that they are not bound by the Delaware law.

Maybe it's time to sit down with New Jersey, and reconsider different aspects of the charter of the Delaware River Bay Authority.
- William Slawski


Lights, Cameras, Action; Take Two

 
Today's Wilmington News Journal voices their opinion on the subject of cameras in court rooms in Delaware. Their focus is upon recent meetings of the Delaware Bar, Bench Media Conference. The interplay between the Judiciary and the Delaware Bar is one of the strengths of the State. Some of our best laws have been the result of dialogue between the Bench and Bar, the most notable being the Delaware General Corporate Law.

The editorial revisits two of the most highly publicized trials that were televised in the last decade; the 1991 rape trial of William Kennedy Smith, and the 1994 murder trial of O.J. Simpson. The two cases exhibit the extremes that trials can go to, with the Smith case being orderly and the Simpson case turning into a circus. The difference between the two trials wasn't the presence of TV cameras, but rather the control that the Judges maintained in each case.

The New Journal tells us that:
Sometime in the next six months, the Bar, Bench, Media Conference will again petition the Supreme Court to conduct an experiment with cameras and audio equipment in a trial court. Superior Court President Judge Henry du Pont Ridgley, who presided over the Grossberg-Peterson trial, is enthusiastic about such an experiment. Judge Ridgely's willingness is welcome. His forward-looking attitude is exactly what's needed.

This is an experiment that seems to be well worth pursuing. Educating the public by giving them a chance to see the judicial branch in action is an idea that makes sense. If the Bench and Bar can work together to bring us success, without impacting negatively upon the rights of litigants in cases, we all benefit.
- William Slawski








Delaware (Executive Branch) Meetings and Events

Craig's List Delaware

Technorati Delaware Search

New Castle County Crime Map

Business Blogs
Start Blogging