Trump Administration plans social media screening for all non-immigrant visa applicants

Over the last five (5) years, many states have passed legislation protecting the social media usernames and passwords of individual users. Who knew that these protections could also apply to visitors coming to the United States by way of a visa?

Last week, the Trump Administration announced it’s plan to require nearly all applicants for visa to enter the United States to submit their social-media-usernames for the past five (5) years. This plan could affect approximately fourteen (14) million visitors to the United States. Not only would the plan cover applicants seeking immigrant status, it would also include applicants seeking non-immigrant status. A person applying for an immigrant visa is wishing to live in the United States permanently. A person applying for a non-immigrant visa is a person, who permanently resides outside of the United States, who wishes to be in the United States temporarily for a specific reason, tourism, medical treatment, employment or business.

Does a non-citizen applying for a visa ( immigrant or non-immigrant) have any rights when it comes to protecting her social media presence? The first step in this analysis is to address the current rights of U.S. citizens and/or persons, who are employed in the United States. Although there is currently no federal law in place protecting the privacy of an individual’s social media presence, twenty-six (26) states have passed laws, which protect an individual’s username(s) and/or password(s). Pursuant to many of these social media laws, an employer is prevented from requesting from prospective employees and, in many cases, current employees, their usernames and/or passwords. For instance, the states of New Jersey, Arkansas, Colorado, Connecticut, Illinois, Louisiana, Montana, Nebraska, Oklahoma, Utah, Vermont, Virginia, and West Virginia, protect both usernames and passwords.

Maine, Rhode Island, Tennessee, Washington, and Wisconsin, only protect passwords, while Delaware, Michigan, and New Hampshire, protect usernames.

Should a non-citizen applying for a visa be afforded any of these rights? Let’s start with answering a different question first- do they have any rights under our Constitution? Many people believe and would argue they do not, but they would be wrong. Non-citizens have a wide range of rights under the Constitution even if they are outside of U.S. borders, particularly in regard to immigration issues. Some examples are the 1st Amendment, which prevents the government from censoring a non-citizen’s speech or suppressing the practice of religion, the 4th Amendment, which protects against unreasonable search and seizures, and the 5th Amendment, ensuring that a non-citizen’s property can only be taken by the government for public use and after paying fair compensation for the taking.

It is debatable whether the Constitution gives the federal government general, unrestricted powers over immigration. Even if it does, it does not follow that this authority is exempt from constitutional limitations. Based upon the foregoing, a court challenge could be mounted by arguing that the proposed plan of social media screening violates the 1st Amendment referencing the various state social media protection laws in support of the argument.

Opponents to the social media screening plan will argue that the collection of huge amounts of social media information will infringe on the rights of all those applying for visas, as well as U.S. citizens, by chilling the freedom of speech because applicants will be worried that what they say, or have said, online will be misconstrued or misinterpreted by government officials.

As Oliver Wendell Homes, a former Supreme Court Justice and strong 1st Amendment advocate, once said:” When men have realized that time has upset many fighting faiths, they may come to believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.”

The government has legitimate interests and motivations in proposing this policy. However, opponents will also argue that the plan is overly broad and too intrusive. The government’s interests could be met by a policy that more narrowly targets information that is readily available and highlights circumstances in which more social media information would be required. Examples of this tailoring can be found in the exceptions contained in most of the state laws which prohibit access to usernames and passwords. For example, public posts and comments are not protected by these state laws. Additionally, if the government has a reasonable belief, or specific information, that the individual is engaging, or participating, in activities or actions which could affect the government’s compelling and legitimate interests, then access to usernames and, even in some cases, passwords would be justified.

Proponents of the social media screening plan will claim that it is necessary to meet emerging and current threats to national security and the safety of our citizens. Proponents will point to the Plenary Power Doctrine arguing that this doctrine gives the federal government broad power to adopt otherwise unconstitutional policies in the treatment of immigration matters. Some will argue that this doctrine is sound because an alien has no legal right to enter the United States in the first place, entry is within the sole discretion of the United States government.

The court challenge will ultimately pit these two (2) competing interests against each other. The Supreme Court is already considering the balance between these competing interests with regard to President Trump’s executive order of a revised “travel ban.” This executive order attempts to bar individuals from several Muslim-majority countries from entering the United States. At least two (2) federal courts have ruled against the executive order and one (1) federal court has ruled in it’s favor. The Supreme Court recently announced it will decide the legality of the revised travel ban.

It is possible that the legality of this social media screening plan will ultimately be a companion case. The court will have to decide if the plan is legal and enforceable or whether it is unenforceable because it is unnecessarily intrusive.

A court challenge is worthwhile and likely necessary to protect the rights of all.

NOTE: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by jurisdiction, and the information on this blog may not apply to every individual reading it. You should not take, or refrain from taking, any legal action based upon the information contained in this blog. You should first seek professional counsel of your choice. Your use of this blog does not create an attorney-client relationship between you and the author or his firm.

April 5, 2018 social media law

ESTATE TAX – FED and STATE- DISAPPEARING???

FEDERAL ESTATE TAX

Hillary Clinton, in her aborted quest to become our 45th President, proselytized that she would reduce the federal estate tax exclusion from its 2016 level of $5,450,000 down to its 2009 level of $3,500,000; this would, in all likelihood, have increased the number of federally taxable estates from around 1 to 2% to 3 or 4%. A true tempest in a teapot it seems unless you exceed that level due to increases in home values, pension plan accretions, business interests or life insurance; then the overage would be taxed at 40% – a true confiscatory tax.

Part of President Trump’s tax package calls for the elimination of the entire federal estate tax – a much better deal, no? Well, actually yes and no!! A very important part of federal estate taxation was the “stepped-up” basis wherein most assets you die owning will no longer look to the original purchase price to determine your taxable basis (from which federally taxable capital gains are measured on a sale) to the new basis, i.e., the Date of Death value. Since, as we’ve seen above, most estates are not federally taxable, it may logically be assumed that the “stepped-up” basis rules wouldn’t apply, BUT such is NOT the case.

Let’s use the instance of your home which you purchased as husband and wife in the early ’60’s for $50,000; your spouse predeceased you with no estate tax payable, federally or statewise, due to the unlimited marital deduction, and I do mean “unlimited” be your estate $100,000 or $100,000,000. Your home at the time of your death is now $500,000 and passes via Will to your children, none of whom reside in the marital home. Were it not for the step up in basis your children would pay capital gains tax on the sale of the home – in our example the gain (forgetting minor costs of sales offsets) would be $450,000. The income tax bite, state and federal, might amount to as much as 25% to 30% of the gain, or $112,500 to $135,000. Thank the Lord for the “stepped-up basis” wherein a sale for $500,000 on a home valued at $500,000 as of date of death would result in NO income tax whatsoever. The “stepped-up basis” comes about even if your estate falls below the federal estate tax exclusion amount – this year $5,490,000 (2017). A very nice benefit for all taxpayers I think you will agree. Of course certain items fall outside the “step up in basis” rules such as pensions where federal income taxes will be levied regardless on the original contributions and growth thereto since these items engendered income tax deductions when contributed to your retirement plans or IRA.

I feel sure that IF the Federal estate tax dies under the new President Trump tax bill, then so will the stepped-up basis – it’s too closely tied to the federal estate tax to survive as a separate death benefit though it would be nice, like having your cake and eating it too. We can hope!

NEW JERSEY DEATH TAXES

Now that we have briefly examined the federal estate tax picture as it is developing let us look at New Jersey’s death tax which are 2 in number – the Inheritance Tax and the Estate tax – both can exist in an estate but, luckily (?), only the highest of the two computed taxes is paid. Let’s take a look at each tax individually.

The Inheritance Tax is based solely on bloodlines with A, C, D and E being the classes utilized to determine the extent of the tax, if any, for Class A beneficiaries (spouse, parents, grandparents, children, grandchildren, great grandchildren, and now domestic or civil union partners (the latter two as defined by NJ statutes) are totally tax exempt from this tax. Class C are essentially brothers and sisters, wife or husband of a deceased child, etc. with the tax here being exempt on the first $25,000 and 11% on the remainder up to $1,100,000 with excesses over that amount charged from 13% to 16%. Class D beneficiaries are just about all others and are taxed at the rate of 15% up to $700,000 and 16% over that amount. Class E are charitable beneficiaries paying no tax. As you can see, the most common beneficiaries – spouse and children/grandchildren – pay no Inheritance Tax whereas others, save charities, do from 11% to 16%.

Now let us consider the New Jersey Estate Tax which came about in 2001 as a gradual disappearance of a federal deduction (State Death Tax Credit) which credit was then paid over to the State of New jersey as a State Estate Tax. The loss of this credit would have cost New Jersey approximately 5% of its total tax revenue yearly. New Jersey put its foot down and, in essence said, “no way”, and the New jersey Estate Tax was born. As the Federal estate tax exclusion was $675,000 at the time, that amount became the base deduction for the New Jersey Estate tax , meaning all estates passing to other than a surviving spouse (totally excluded) which exceeded $675,000 would be taxed at a rate of from 4.8% to 16%. Bequests to children, grandchildren and all others would be taxed once they exceeded $675,000 regardless of bloodline. As you can see this impacted many more estates than would be taxed under the New Jersey Inheritance Tax which exempted all Class A beneficiaries (see above) who are the usual recipients of a decedent’s estate. By the way, though there is both a New Jersey Estate Tax and New Jersey Inheritance Tax, an estate only pays the higher of the two taxes – not both. I just finished a 2016 estate containing assets totaling $4,200,000 which passed solely to class C and D beneficiaries – the New jersey Estate Tax was $260,000, but the New Jersey Inheritance Tax was $537,000, ergo, the larger amount was paid- a not inconsequential bite.

It was the New Jersey Estate Tax which mainly caused the “snowbird” factor, i.e., NJ Residents taking up residence in Florida to avoid the NJ death taxes – Florida has none. New Jersey found itself not only losing the Estate Tax revenue but also the income tax one as well – a fairly untenable situation long term. Even NY which had an estate tax with an $1,000,000 exclusion level (NY’s estate tax came into being a year later than did NJ’s, ergo, the difference in the exclusion amounts), realized it was losing its residents to Florida. New York for the past 4 years increased the annual exclusion amount each year from the $1,000,00 level to where it is now $5,250,000 thru 12/31/2018; thereafter it follows the Federal estate Tax exemption which is $5,490,000 (2017) adjusted for inflation each January 1st – a much more tenable situation, I think you will agree.

Now we’re left with New Jersey and its penurious $675,000 annual exclusion. Finally New Jersey woke up and realized it had better do something for all of a sudden New York became a better place to die, tax wise, than did New Jersey. The New Jersey Legislature for 2017 immediately raised the Estate Tax Exclusion to $2,000,000 for this year (2017) further stating that, in 2018, the New Jersey Estate Tax will totally abolished. Common sense finally prevailed. Now, in New Jersey, only those outside the ambit of Class A beneficiaries will be taxed via the Inheritance tax at the rates shown above depending on bloodline. Lets hope New Jersey doesnt change its mind – time will tell. It seems to me that tax laws are written in sand rather than concrete.

August 16, 2017 Estate Taxes/Planning

After Pietrylo, an update on social media laws

September 25, 2015, was the six (6) year anniversary of the New Jersey District Court decision affirming the jury verdict in Pietrylo v Hillstone Restaurant Group, d/b/a Houston’s, 2009 WL 3128420 (D.N.J. Sept. 25, 2009).

In Pietrylo, the first New Jersey case considering the privacy of employee communications on social media sites, we represented two former employees, who were fired by their employer for allegedly making derogatory comments about their jobs outside of work on a private MySpace group page. Back in the dark ages of the social media explosion (circa 2006- 2009), Myspace was a major player in social media. Now, Myspace is used mainly as a streaming radio service and music news site. At the time, not one state in the union had any laws on their books protecting usernames and passwords for social media accounts.

One of the employees created a MySpace group page called “The Spectator” as a place for Houston’s employees to “vent about any BS” they encountered at work. He selected all of the privacy controls offered by MySpace in setting up the page and designated the page, as “private”, meaning access to the page was limited to MySpace users who received an invitation from him to join the group. Only he, not invited members, could send out invitations. He invited several Houston’s employees, but no managers or upper management personnel. The invitees included a female Houston’s greeter. The greeter accepted the invitation and became an authorized member of the group. Access to the group was through the member’s email address and personal, private password.

Upper management became aware of the group page. A member of upper management called the greeter into his office while she was working and asked her for her email address and personal private password so that he could access the page. She did so, but later testified, that she did so only because she thought something would happen to her if she did not. This manager went on the page using the greeter’s personal information and copied the postings. He also passed the greeter’s personal information up the corporate ladder to other members of upper management. The page was accessed a number of times. Subsequently, Houston’s terminated the two employees based upon their comments on the group page and their involvement in creating it.

We filed suit on behalf of the fired employees, and amongst other things, alleged that Houston’s had violated federal and state statutes involving improper access to stored electronic communications. After three (3) years of contentious litigation, the case went to trial before a jury. The trial lasted a week. The jury returned a verdict in favor of our clients finding that Houston’s managers had accessed the MySpace site “without authorization” and acted “maliciously”. The jury awarded compensatory damages and punitive damages. The case received national attention being featured on ABC: Eyewitness News, CNN: American Morning, Fox News: Fox and Friends, and in the Wall Street Journal, AOL: National News, and the New Jersey Law Journal.

Six (6) years later, we thought it would be interesting to see how far the law as come, if at all, post-Pietrylo. Is social media technology still outpacing, by a wide margin, the law on social media?

The simple answer is not as much as it did at the time of the Pietrylo decision, but the law still has a long way to go before it is on equal footing with social media technology.

Social media continues to explode in popularity and usage; employers are increasingly concerned that what employees say on the Internet and other social media electronic devices could damage their business. The reality is that more and more employees are bringing their personal smart phones and tablets to the office.

Twenty-five years ago, individuals wrote letters as their form of personal correspondence. An employer, during those times, would never ask or demand an employee to turn over their letters for examination if they happened to have some of them in their office. Today, individuals write their “letters” online and employers demand all too often to view those personal correspondence.

Many employers argue that access to personal social media accounts is required in order to protect their brand or reputation, or is needed to protect proprietary information or trade secrets, or to prevent the employer from being exposed to potential liability. Many employees, on the other hand, consider an employer requiring access to personal social media accounts, including the username and password, an invasion of the employee’s privacy.

What happens when these two (2) competing interests collide?

After Pietrylo, Maryland became the first state in the nation to pass a password protection law in 2012. In 2013, New Jersey became the 13^th state to pass a password protection law. Pursuant to NJSA 34:6B-5, referred to as the “Social Media Privacy Bill or Password Protection Act”, an employer is prohibited from requiring or requesting a current or prospective employee to provide or disclose to them any user name or password to any of the employee’s social media accounts accessed through any electronic device.

As of this writing, a total of twenty-one (21) states have now passed special laws restricting employer access to personal social media accounts of applicants and employees. Besides Maryland and New Jersey, Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Michigan, Montana, Nevada, New Hampshire, New Mexico (job applicants only), Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Wisconsin, and Washington, have all passed social media laws.

This means that there are still twenty-nine (29) states that have yet to pass a social media password protection law.

Federal legislation on the subject has been proposed several times, including federal legislation sponsored by senators from New York and Connecticut citing the Pietrylo decision. Efforts to enact a national social media privacy law, however, have not yet been successful.

Although strides have been made since Pietrylo for social media law to catch up with social media technology, there is still a long, long way to go.

December 14, 2015 social media law

Mom sues over breast-feeding video-turned-porn

In a case which garnered national attention, Ramp & Pisani represented a New Jersey mother who appeared in an instructional breast-feeding video, only to have the video taken by a third party, turned into pornography and reposted on the Internet. It is a cautionary tale of the perils of being filmed in the social media age.

In the case, the New Jersey mother and her daughter, less than a month old at the time, voluntarily appeared in an educational and informational video about breastfeeding produced by the Meredith Corporation, the publisher of Better Homes and Gardens, Family Circle, and Parent Magazine. Prior to the video shoot, the mother was concerned about where the video would be shown and if the corporation would use her full name. Prior to the shoot, the mother alleged that the company represented to her that they would only use her first name and would not use her full name.

Based upon this representation, she and her infant daughter appeared in the video. Contrary to this representation, the company used the mother’s and infant’s first and last name in the video.

As a result, a rogue, faceless person, who seripticiously stole the video, was able to link the mother and infant to pornography because the video contained their first and last names.

Ramp & Pisani filed a multi-count complaint on behalf of the mother and infant alleging Common Law Fraud/Misrepresentation, Negligent Misrepresentation, Breach of Contract, Invasion of Privacy, Negligent Infliction of Emotional Distress, and Equitable Fraud. The company responded by filing a Motion to Dismiss the Complaint arguing that they were not responsible for the actions of a third-party.

A year after the filing, the court denied the company’s motion to dismiss. Discovery ensued, and, thereafter, a trial date was set. Prior to trial, the parties resolved the case.

December 10, 2014 General Law