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Monday, May 16, 2011

Legal Implications of IP Addresses

A plethora of recent legal issues ranging from the prosecution of child pornography to the enforcement of civil copyrights have relied upon the IP address of a computer to identify individuals. However, an IP address is not an individual according to the United States District Court of the Central District of Illinois. Prompted by a recent MSNBC article, the legal system is beginning to realize that an IP address does not necessarily link an individual to certain computer use; in fact, the same IP address can be used by many individuals with access to the computer in question, or by visitors with access to the same wireless router. VPR Int'l v. Does 1 - 1017, Case No. 11-2068 (C.D. Ill. 2011).

An IP address (or Internet Protocol Address) is, at its most basic, a series of 4 numbers ranging from 0 to 255, each separated by a period (.). These numbers are used to uniquely identify each and every computer connected to the internet in much the same way that a physical address is used to uniquely identify each and every physical location in the world. When information is sent out over the internet or when information is received on the internet, it is labeled with both the IP address of the sender and of the recipient. Much like a letter is addressed with both the address of the recipient and the return address of the sender.

Complicating this issue is the concept of a subnet. For the sake of simplicity, think of a subnet as the city and state of an address. Every router connected to the internet has a unique IP address within one subnet and then each computer connected to that router has a unique IP address within the router’s subnet. Typically, it is not the IP address of an individual computer that is broadcast over the internet to send and receive information, but rather the IP address of the router. The router, as the name implies, then routes the requested information to the computer that requested it. Think of a router as the mailroom for a large business. All of the employees of the business have access to the mailbox and can receive mail at the business address and the mailroom sorts the mail to go to individual employees.

Of course, this architecture leads to a situation where the IP address visible on the internet as downloading illegal content such as child pornography or posting vicious hate filled threats on Facebook could belong to multiple computers. An internet service provider would only be able to identify the IP address of the router that passed on an individual computer’s request for information; the service provider would be unable to identify the individual computer.

Most households own a wireless router. Many wireless routers are “unsecured”. This means that any person with a laptop, iPad or Wi-Fi device can utilize another person’s wireless router without the use of a password. An unsecured router is like an unlocked mailroom; anyone in the building can go in and send a package or take a package, even if it is a package that is not intended for them.

Imagine trying to identify the sender of a mail bomb based solely on the address of the unlocked mailroom for a large business. Any of the employees of the business are suspects as are any person that could have walked into the mailroom when the package was sent. This is exactly the problem involved in tracking down copyright infringers or child pornographers on the internet. A subpoena directed to an internet service provider to identify the owner of an IP address can only identify the router that requested the information. If the router is unsecured, then the suspects could include all the users of the router, together with the neighbors that are in range of the router’s wireless signal and all the cars that could have been parked nearby or driven through. Even if the router is secured, the suspects include anyone with knowledge of the router’s password and anyone that could have stolen the router’s password.

Therefore, without some other information, such as statements, admissions or other physical evidence, it is nearly impossible to identify the individual that was sitting in the computer chair at the time that the illicit content was downloaded or at the time that the harassing message was posted to Facebook.

Civil Remedies for Online Harassment and Cyber-Bullying

While victims of online harassment or cyber-bullying may find a lack of criminal statutes that protect victims, there are civil remedies for the victims of computer harassment or computer trespass.

The Virginia Computer Crimes Act creates a civil cause of action for criminal violations of Computer Harrassment, Computer Trespass and Computer Invasion of Privacy. See, e.g., Va. Code § 18.2-152.12. This means that individuals aggrieved by online harassment can sue and potentially recover damages from the individuals engaged in the harassment. Obviously, the ability to sue and recover money damages depends upon locating the individuals that engaged in the criminal behavior and those individuals having sufficient assets to pay a judgment against them.

When the online harassment is motivated by racial, religious or ethnic animosity, an aggrieved individual can sue for damages, and can also seek an injunction, punitive damages and recovery of their attorneys’ fees and costs. See, Va. Code § 8.01-42.1. In this way, the civil process does provide a means for individuals to act as a kind of private attorney general and prosecute offensive conduct. While a civil case will not result in the incarceration of the responsible individuals, it may result in the victim recovering tangible assets from the responsible party.

In addition, where the online harassment is motivated by racial, religious or ethnic animosity, the incident is likely to be reported to the Virginia State Police, which maintains a central repository for the collection and analysis of hate crimes. Va. Code § 52-8.5.

Under the right set of facts victims may also utilize traditional civil theories against perpetrators, including defamation, business conspiracy, intentional interference in contracts and other applicable claims.

The attorneys at Gross & Romanick, P.C. have considerable experience in this new and developing area of law. Having handled matters ranging from the defense of copyright violations charged by the Recording Industry of America to criminal matters involving illicit computer content, we are well positioned at the intersection of law and technology to assist our clients in all manner of cases.

Thursday, May 12, 2011

Gross & Romanick Attorney Appears On Fox 5 News

A. Charles Dean, an attorney at Gross & Romanick, appeared on Fox News last night during a story about a Northern Virginia hair care business whose Facebook page was inundated with racist rants, images and videos.

Dean noted, ""Most laws are written for someone who gets beat up because of racial reasons or because of gender orientation reasons. They're not written for problems on the internet because most laws were written before the age of the internet."

Northern Va Hair Care Business Receives Outpouring of Support After Hateful Facebook Posts: MyFoxDC.com


To read the full story, click here.

To contact Gross & Romanick call 703-273-1400 or fill out our online Information Request form.

Wednesday, May 11, 2011

Buildout Allowance - Landlord Gets Slammed

FACTS: Tenant leased property from a commercial Landlord. Part of the lease agreement was a building allowance of $699,000 to be paid by Landlord for improvements. Tenant hired a contractor to do the improvements to the property. The Contractor accidentally demolished an unoccupied improvement on the property. Upon noticing their mistake - the same day, The Contractor offered to remedy by either rebuilding the improvements or allowing for a credit for the value of the improvements. Instead of accepting one of the offered remedies the Landlord decided to withhold $301,000 of Tenant's allowance. When Tenant and Contractor sued for the allowance, the Landlord counter-claimed for lost rent and replacement of the improvement even though the Landlord did not have a tenant for the demolished space and did not replace the demolished improvement.

COURT RULING: The Court determined that the Landlord's counter-claims were without merit; and that the Landlord and its counsel should have known of the meritless nature of the claim. Judgment was entered against the Landlord for $351,057.65 for the withheld allowance plus interest. The Court also sanctioned the Landlord the sum of $251,018.16 for attorney's fees and costs for the baseless counter-claim and defenses, which prolonged the litigation (Va. Code � 8.01-271.1).

ACTION ADVISE: A building allowance is an enforceable right of the tenant. If the landlord withholds payment for the allowance, it will need good cause to do so. Furthermore, if a landlord does not have a tenant for the demolished or damaged space, it should not withhold a building allowance on the basis of lost rent. If the landlord has no intention of rebuilding the damaged improvements, the landlord is not acting in good faith by charging the contractor for the repair cost. Finally, asserting baseless claims in a court proceeding can result in sanctions. Try to resolve these disputes out of court!

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The above is not meant to replace legal counsel. If you'd like to speak to one of the lawyers at Gross & Romanick about building allowances of commercial property law, please fill out our online Information Request form or call 703-273-1400.