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LEGAL AFFAIRS A Cleveland Jewish News Special Section
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Cyberbullying laws more reactive than proactive BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
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ullying and harassment come in many forms. Thanks to the internet, bullies are using cyberspace to target victims, and potentially ruin their lives with a few keystrokes. Attorneys Ian Friedman with Friedman & Nemecek Attorneys at Law in Cleveland; Roger Friedman Synenberg, founding attorney with Synenberg, Colleta and Moran LCC in Cleveland; and Larry Zuckerman, managing partner at Zukerman, Daiker & Lear Co. in Cleveland, said many Synenberg cyberbullying victims could explore legal options. The attorneys said there are different laws and ways victims could proceed if they decide to press charges, depending on how the cyberbullying was done. Zukerman Telecommunications harassment and menacing by stalking carry different punishments. Telecommunications harassment, which is when someone anonymously uses a device with the purpose of harassing someone, it is a misdemeanor for the first offense. Menacing by stalking is when there have been two acts in which the victim believes the bully is trying to cause physical or mental harm, and it could lead to a felony. “I’ve dealt with both sides, victims and defendants,” Synenberg said. “The defendants that I’ve dealt with have been of high school age and it’s really kids making stupid mistakes, like downloading nude photos of other students. If the victim can find the person who originated it, they may prosecute that person. (Cyberbullying) is incredibly widespread and that may be surprising. Kids are sharp and they know how to hide this. As a parent, you have to be sensitive to this issue and tell them that it’s OK to talk to you about it.” While cyberbullying is increasing, this kind of harassment is relatively new
and Friedman, Synenberg and Zukerman said the laws have been more reactive than proactive. “I think that we are now experiencing the full enjoyment of social media through phones, tablets and portable computers, and our entire lives revolve around social media and these devices,” Zukerman said. “It’s so easy for someone to publish a thought, a video or audio. If we look at the effect that one person can have on the other just by posting online, there has to be a level of legal restraint to prohibit that and regulate it. “We are really just now catching up to what we’re doing with social media. (The laws) are reactive as opposed to proactive because they are being established as things happen. That’s why I think it’s taken time for the criminal laws to come into being.” Friedman said the first step once cyberbullying has occurred is for parents and victims to simplify the situation. “Anytime you talk about technology, there are people who may not be familiar with it and may be intimidated by it,” he said. “We only used to worry about our kids when they left the house, in terms of being bullied. It’s different now because you have to worry about your kids being bullied within your house as well. But, the process is still the same.” According to Friedman, parents should start this process by recognizing that something is happening. Next, parents should make sure their child’s online activity is monitored and any evidence of harmful messages or content is saved. “Everything needs to be screenshotted or saved,” he said. “When you go to a lawyer, it needs to be presented to them in an organized way. The parent has the duty to educate and watch their kid – and if something happens, to preserve that evidence so a proper remedy can be solved with a lawyer.” Synenberg said victims can file a lawsuit, but that should be a last resort. Bigger criminal cases can put that victim “on front street” and they would have to testify, he said, so they should be comfortable with that. “Hopefully, suing would be the last resort,” he said. “If you’re a victim of a bully, you have to take a stand. Friends can’t let friends be bullied. You have to stand up and say something. That is not so much a legal issue, but a general social issue.”
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AUGUST 18, 2017
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Advice offered for identity theft victims BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
S
omeone in this country is the victim of identity theft each day. According to the 2017 Identity Fraud Study conducted by Javelin Strategy and Research, $16 billion was stolen from 15.4 billion Americans in 2016, including with 15.8 percent of it done through credit card fraud. Stovsky According to Mike Stovsky, partner and chair of innovation, information technology and intellectual property at Benesch Attorneys at Law in Cleveland, the commonality of identity theft depends on what led to the theft and what kind of theft the victim suffers from. “If we’re talking about a data security breach, they are most likely going to get a notice by whomever got breached,” he said. “That notice will spell out what actions they should take in order to protect themselves.”
Stovsky said that those actions are pretty standard – like monitoring your credit report, making sure there are no unauthorized activities on your bank or credit cards and putting fraud notices on the victims’ account, though he said that these are things any consumer should be doing regularly anyways. “I would also take it a step further, and the notice might not even say this, but I would recommend that you put a security freeze on your credit reports,” he said. “A security freeze is one step beyond that and prevents anyone from accessing your credit. Most of the damage that can be done to your identity when it’s stolen is to your credit and financial standing. I recommend that people do those security freezes all the time because by the time you notice something out of place, it’s too late.” Stovsky noted identity theft doesn’t always have to be so formal and can happen at any point of sale – even more commonly online. We buy things online all the time and use our credit cards at the mall and restaurants.
“There are many things that lead to identity theft all of the time and some of those things will never lead to a formal report,” he said. “If you believe you’ve suffered identity theft when you notice unusual charges, those same steps apply. I also would never use a debit card as a credit card. Whenever someone is finding unauthorized purchases, it’s because they are using their debit card at a point of sale register.” As for how often identity theft takes place, Stovsky said it usually occurs when a consumer information breach happens as opposed to an isolated incident. “As a law firm, we tend to handle large data breaches and our experience has been that the amount of identity theft that typically results from a breach isn’t that high, unless it’s a consumer breach,” he said. “What people don’t know, data breaches don’t tend to be consumer ones. They are everyday businesses and their employee data is taken.” Stovsky said when consumer
breaches happen, it is typically in the health care sphere. “Health care data is the most valuable data on the black market,” he said. “Credit cards have a limited value because most times, you can shut them down quickly. Health insurance values go much higher.” Because of the birth and growing popularity of the internet and our constant access to data, Stovsky said he thinks the commonality of identity theft and scam calls have risen and will continue to rise. “We have a lot more personal data now than we’ve ever had before,” he said. “The amount of data that can be stolen is exponentially higher than it was when the internet first began. “At the same time, the laws and regulations that companies have to follow have increased as well. We have a lot more security and laws in place to protect your data. But, it’s a moving target because hackers continue to grow and excel as well. It’s a cat-and-mouse game, protecting your sensitive data.”
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STEPHEN H. GARIEPY
E
veryone makes gifts, whether it’s a birthday present motivated by love and affection, or stock in the family business motivated by tax planning goals. The gift tax, when it applies, is a flat rate of 40 percent. But few know the ins and outs of the gift tax rules. Six prevalent myths deserve debunking. Gariepy Myth No. 1: The recipient of a gift must pay income tax on the gift. Generally, not true. There’s a specific exclusion of gifts from income tax. And it makes no difference whether the gift is in the form of real estate, an automobile, jewelry, stock or cash. However, a gift by an employer to an employee is taxable income unless made entirely for personal reasons not related to past or future services. Myth No. 2: The donor pays gift tax if annual gifts to a recipient exceed $14,000. Almost never the case. Although a donor is limited to an annual exclusion of $14,000 per recipient per year, a donor is also entitled to a large lifetime exemption, currently $5,490,000. For example, if a donor makes a $100,000 gift, the donor uses the $14,000 annual exclusion and $86,000 of the lifetime exemption. Further, the annual exclusion and lifetime exemption can be doubled for married donors if both spouses take the required steps to “split” their gifts. There’s also an unlimited gift tax deduction for qualifying gifts to a spouse. So there’s no excuse for skimping on your next anniversary present. Myth No. 3: The lifetime gift exemption is a hard ceiling. The ceiling can be punctured. There are sophisticated estate planning strategies that can leverage the exemption many times over. There are even devices that can zero out the gift tax on the future
appreciation on large holdings. Just ask Sheldon Adelson (Las Vegas Sands), Mark Zuckerberg (Facebook), Lloyd Blankfein (Goldman Sachs), and Charles Ergin (Dish Network), who have transferred millions, even billions, free of gift tax. Myth No. 4: A gift always saves estate taxes. Not with an estate exemption that matches the lifetime gift exemption of $5,490,000. Only one-tenth of 1 percent of estates are subject to estate tax in the first place. Moreover, if a donor dips into the lifetime exemption, it’s a wash because it reduces the estate exemption dollarfor-dollar. Ways a donor can come out ahead include leveraging the exemption, paying gift tax (the same 40 percent rate as the estate tax, but it’s tax-exclusive), taking advantage of valuation discounts for lack of marketability and control, shifting ownership but not income tax responsibility, and gifting assets that appreciate in value between the date of the gift and the date of death. Myth No. 5: There’s no tax disadvantage to making a gift. A trap for the unwary. In the case of a gift of an appreciated asset, such as stock, the recipient takes over the donor’s low-cost basis and the recipient pays capital gain tax on a later sale. On the other hand, if there is no gift and the stock passes on the donor’s death to the recipient, the recipient takes a stepped-up basis equal to the stock’s, then market value and all pre-death appreciation escapes capital gain tax. Always compare the projected estate tax savings to the income tax cost. Myth No. 6: The most important gifts are material. Not if we step back to look at the big picture. The most valuable gifts – family, friendship, health, the wonders of nature, peace – are priceless – and tax-free.
Stephen H. Gariepy is a partner with Hahn Loeser & Parks, LLP in Cleveland. Content provided by our advertising partner.
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Debunking six gift-tax myths
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magine you’re blissfully driving down the road on a beautiful, sunny day in Cleveland, one of the few we Northeast Ohioans get each year. All of a sudden, flash, someone, something, somewhere, has just taken a picture of your vehicle. Then, it dawns on you that it was a pesky red light or Zukerman speed traffic camera. For most drivers, after a few choice words, the reality of the unsolicited photo op sinks in fairly quickly – you can expect a hefty ticket in the mail. On July 26, 2017, the Supreme Court of Ohio held that laws restricting or limiting the ability of municipalities to use red light and traffic cameras is unconstitutional. See City of Dayton v. State, 2017 Ohio 6909 – Ohio: Supreme Court 2017. In short, the high court struck down three laws passed by the Ohio State Legislature in 2014: the first law required an officer to be physically present with the traffic camera for a valid ticket to issue; the second law permitted camera-issued speeding tickets only if the driver traveled 6 mph (or 10 mph in certain areas) or more over the speed limit or the driver was speeding in a school zone; and the third law required cities to conduct safety studies and public information campaigns before using traffic cameras to issue fines to drivers. The Ohio Supreme Court ruled these laws unconstitutional because they violated “home-rule powers” granted to a municipality under the Ohio Constitution. The home-rule amendment essentially provides that for a state law to override a local, municipal law, the state law must be a “general law” that regulates the conduct of citizens. Essentially, the Ohio Supreme Court found that the 2014 state traffic camera laws were not general laws because they did not regulate the conduct of
citizens, but merely placed restrictions on local authorities’ ability to use traffic cameras. Therefore, the Ohio Supreme Court found that the 2014 state traffic camera laws were unconstitutional. Prior to 2014 when the Ohio legislature passed the three now invalid laws stated above, traffic cameras were everywhere, autonomously producing hundreds of thousands of dollars of revenue for cities throughout the state. Those in favor of the cameras argue that their presence promotes safe driving, reduces vehicle accidents and increases revenue for cities in which the traffic cameras sit. Other drivers, (generally those with a bit of a lead foot), curse the cameras’ existence and equate them to nothing more than hidden, roadside pests, collecting fines through trickery and subterfuge. For many, the 2014 state laws limiting the usage of traffic cameras’ came as welcome relief to what many felt was merely a pesky, annoyance and government money grab. The 2014 laws largely reduced cities’ usage of the traffic cameras due to the restrictions and regulations then required by the laws. Many cities simply could not justify the cost of the traffic enforcement cameras in light of the increased costs to legally operate and maintain them. So what does all of this constitutional talk and legalese mean as a practical matter for everyday drivers? Watch out. Red light and speed cameras are likely to make a triumphant and largely unwelcome return. In conclusion, for the benefit of everyone on the road, always follow the traffic laws when driving. They are designed to keep all of us safe. If you drive with a lead foot however, then I suggest that you slow down or that you drive with a smile … because you’re likely to be on camera.
Larry Zukerman is the managing partner at Zukerman, Daiker and Lear in Cleveland. Content provided by our advertising partner
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AUGUST 18, 2017
Take common sense precautions with social media ANDREW ZASHIN
A
www.zrlaw.com
lthough social media has been around for decades, the benefits – and pitfalls – of it continue to make headlines. Facebook, Snapchat, Instagram, Twitter, LinkedIn, Google+ and Pinterest are household names and just a sampling of the many available services. All of this social connectedness has spawned considerable research and opinion, but also some unexpected legal questions. In relatively recent headlines was the case of a British nature photographer whose equipment captured a number of selfies taken by a group of Celebes crested macaque monkeys. Those images have since been widely distributed and reproduced and a number of lawsuits regarding ownership of their copyright have been fought. The photographer has claimed financial ruin as a result. In 2014, singer Courtney Love won a landmark suit regarding alleged libel posted on her Twitter account. Ultimately, her statements that her lawyer had been “bought off” were determined by a Los Angeles jury to be untrue, but they did not constitute libel because she did not know them to be untrue at the time she made them. Earlier this year, a number of so-called
celebrity “influencers” were sued for using their social media presence to promote the now-infamous Fyre Festival, allegedly in violation of federal law. In the context of family law, social media posts have uncovered wrongdoing, including bigamy. Smart litigants and attorneys will mine an opposing party’s social media presence for useful nuggets. Photos that go viral and become internet memes are especially tricky and their subjects unintentionally find their lives altered in unexpected ways. Sometimes this is for the better (such as “Success Kid,” who was able to leverage his image’s popularity for a GoFundMe campaign to pay for his father’s kidney transplant), but often it is for the worse, when an unflattering image is ridiculed or given a fake backstory and is
ZASHIN | 38
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Consulting attorney for disability makes process smoother BECKY RASPE | SPECIAL SECTIONS STAFF REPORTER @BeckyRaspeCJN braspe@cjn.org |
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pplying for disability benefits can be a long process for those that have never done it. And doing it alone can be time-consuming and confusing. An attorney can help expedite the matter. Glen Richardson, attorney at Bentoff and Duber Co. in Cleveland, and Marsha Margolius, head of the Social Security and disability section at Margolius and Associates in Cleveland, said the process could be simplified when people consult an attorney. Margolius “Even though an attorney may not take on a disability case until an appeal needs to be filed, it is important to consult with him or her to find out what specific steps need to be taken to file that initial application,” Richardson said. “The attorney can walk the client through the process and explain the length of time it may take for a decision to be made and the steps that can be Richardson taken on appeal if the initial claim is denied.” Margolius said one should consider consulting an attorney during the application process because being disabled not only brings serious medical problems, but
also serious financial problems. “You want the case as strong as possible and as well prepared as possible in the first case,” she said. “Most cases are denied at those first two levels and that’s where most people try the process on their own. “That first level takes about three to five months and reconsideration takes another three to five months and the hearing can take up to 18 months. By that time, homes and cars can be repossessed. The sooner the attorney can get involved, the better.” Richardson said when an attorney works through the application process with a client, they encourage them to make sure all of the paper work, treatment and hospital visits are up to date to create a strong and “accurate evidentiary record.” These records could help a disability application get approved. “I have found that we have been able to take the burden off of our clients so that they don’t have to worry whether an appeal is filed, if medical records are submitted or if a form was submitted properly,” he said. “Obtaining proper forms and evidence in an expeditious way helps the process move on. Unfortunately, with Social Security, you are dealing with a large federal system that takes a significant amount of time as it works through those various stages.” Margolius said the process should begin by assembling all medical evidence together. If the person has arthritis, they would want records and evaluations from their doctor and specialist. “After that, (attorneys) can identify which information would be the most persuasive and helpful in their case,” she said. Though a client may want them to, Richardson said
that it’s not common practice for attorneys to review a disability benefits application before it is sent. “This is an application that the client does online or in the Social Security office or over the phone with a Social Security worker,” he said. “People worry that they can fatally impact their case based on what they say in their application. That is not usually true. “Most people explain that they believe they are unable to work and outline the reason for their contention and Social Security usually takes it from there. The key in these cases is obtaining the necessary evidence to prove that the individual meets the requirements of the law and that the evidence is usually what has been developed by their medical provider.” But Margolius said the most important aspect of the process is that applicants shouldn’t get discouraged if the process is taking longer than they thought, especially in current times. “Because of budgetary constraints, Social Security is very backlogged and things aren’t being processed as quickly as they dissipate,” she said. “It doesn’t mean Social Security isn’t working on the claim, there just isn’t enough hands and minds to handle all of the claims. People shouldn’t get discouraged because it’s taking longer than usual. “It’s not that the judges aren’t doing their job, it’s just not enough support. Discouragement on the applicant’s end is the biggest problem. You can’t give up – be a good patient. With an attorney, you can have someone focus on the law and the disabled individual can focus on their health.”
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Shurat HaDin lawyer Weiser returns to speak at Oheb Zedek ED CARROLL | STAFF REPORTER @EdCarrollCJN ecarroll@cjn.org |
A
ttorney Rachel May Weiser, who focuses on anti-terrorism cases, will be the guest speaker during Shabbat services at 11:30 a.m. Aug. 26 at Oheb ZedekCedar Sinai Synagogue in Lyndhurst. Weiser, a graduate of Case Western Reserve University Law School in Cleveland and a former Beachwood resident who now lives in Israel, will discuss her work at Shurat HaDin, a Tel Aviv-based civil rights center, which she said uses court systems around the world to “go on the legal offensive against Israel’s enemies.” Weiser, who practiced in the Cleveland area until she and her husband made aliyah in 2010, said there are four main areas where Shurat HaDin, a nonprofit that does not take a fee, works. She said Shurat HaDin goes after the source of funding for terror organizations in both Israel and abroad and works on behalf of terror victims, winning more than $2 billion in judgment and freezing more than $600 million in terror assets. The organization also works to defend Israelis and IDF soldiers from war crimes
Guest speaker Rachel May Weiser on “Fighting against terror and for Israel in court”
WHEN: 11:30 a.m. Aug. 26 WHERE: Oheb Zedek-Cedar Sinai Synagogue, 23749 Cedar Road, Lyndhurst INFO: Visit oz-cedarsinai.org
charges and uses legal tactics to fight the boycott, divestment and sanctions movement, such as challenging the tax-exempt status of companies and organizations that opt to divest from Israel and sending cease-and-desist letters to those who propose BDS resolutions. She also said Shurat HaDin trains lawyers and law students around the world. Weiser said she plans to discuss some of her organization’s successes fighting terror
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WEISER | 38
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forwarded by thousands or millions of nameless and faceless strangers. What does all of this mean to the non-celebrity, non-criminal, non-monkeyphotographing person? Here is some food for thought: Most of us will never have copyright issues from photos that we have taken. Go ahead and post those photos of the Rock & Roll Hall of Fame and don’t
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worry if you caught the Cleveland Indians’ logo in your family photo at the ballpark. Photos taken in public that happen to include bystanders generally will be fine. But, please don’t be like the former model that made headlines and lost gigs for posting negative commentary attached to a photo of someone changing in a gym locker room – a place where people generally have some expectation of privacy. If you are going to take and use a photograph that you did not create, know
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that someone else may own the copyright and someone else may take you to task for using it. Know that you cannot put the toothpaste back in the tube and once that image or language is out there in cyberspace, assume it will live on forever (perhaps even in the U.S. Library of Congress). Always assume that whatever you put out there will have a wider audience than you anticipate. It is impossible to control where the information goes once it is out there, even if your Facebook settings are set at
WEISER | 37 groups in court and efforts to delegitimize Israel with the Oheb Zedek-Cedar Sinai community. Beyond the BDS movement and the obvious challenges of Hezbollah and Hamas, Weiser said one of the most imminent threats is the use of illegal warfare and lawfare by Israel’s enemies against IDF solders. “Our enemies purposely shoot from civilian areas, use civilians as human shields and essentially integrate the civilian population into their warfare plans,”
the strictest level. It’s almost enough to make you want to shut down all your accounts and turn off your devices. Almost. These stories do highlight the importance of taking precautions in posting online, but with precautions, social media can still be a safe place.
Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus. He can be reached at zrlaw.com.
Weiser said. “In this case our army is faced with the challenge of sending our soldiers into extremely dangerous urban fighting to try and limit civilian casualties, while simultaneously endangering our soldiers and almost certainly leading to more death and injury to our troops. The reason that Israel is faced with this dilemma is because our enemies do not follow the laws of war and then use international law to pursue war crimes against our soldiers … Therefore, this lawfare is endangering the lives of our soldiers, our children, as well as our ability to fight wars.”
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