The Other E-Sig

Your signature is one of the key elements of your identity.  It represents your approval or acknowledgement of a document, be it physical or electronic, initialed or John Hancocked.  You probably sign something every single day!  And with the rise of online businesses such as Amazon or Ebay, electronic signatures have become nearly omnipresent.

Forty-seven (47) states including North Carolina have signed the Uniform Electronic Transactions Act (UETA) which governs the authority of the ever-more-common e-signature and, at the federal level, this is regulated by the Electronic Signatures in Global and National Commerce Act (ESIGN).  Let's see how they define an electronic signature:

““Electronic signature” means an electronic sound, symbol, or process attached to, or logically associated with, a record and executed or adopted by a person with the intent to sign the record.”

— UETA

The definition may seem incredibly broad, but it is written that way because e-signatures take on a plethora of forms.  Look at the following examples:

Personal Identification Number

You may be signing more documents than you think! Your PIN is actually the perfect example of your signature.  Every time you enter your PIN at the store or online when you use your debit card, you are signing and agreeing to the transfer of funds in exchange for the goods or services purchased.  As a signature, this number is incredibly valuable; anyone that knows your PIN could authorize transactions without anyone being the wiser as the code is always the same and always perfect (no matter who enters it!). This is why banks have begun tracking your spending habits: to better track identity theft.  Your signature is your identity!

E-Pen

Lets say the delivery man comes to your door and asks for your to sign for a package.  Very rarely do they come up to you with a piece of paper and a pen, but instead he has a neat gadget called a graphics tablet which allows you to sign just as you would with a regular pen.  This use of technology most closely resembles a standard physical signature, but accuracy and consistency are still common issues.

Clickwrap Agreement

Lesser known but just as present in everyday life, a clickwrap agreement is fairly common when downloading software.  You may see a little button saying "I Agree" or "I Consent" or the infamous "I Have Read the Terms and Conditions of Use" naturally accompanied by "I Agree to the Terms of Service."  The little box that you click is an example of your signature--you agree and approve of the document. 

E-signatures no longer face the battle of authority.  

"A record or signature may not be denied legal effect or  enforceability solely because it is in electronic form."  

However, the question of "is it YOUR signature" is still being figured out in modern legal disputes.  Be wary of the way you use your signature or you may find yourself bound by limiting contracts without your knowledge. 

Loud and Proud

Have you ever had a neighbor play his music at 2am?  Have you ever woken up to the screeching of garbage trucks, the contemporary cockcrow?  Have you been kept awake by a nearby resident who decided that midnight is the perfect time to mow his lawn?  

In this post, we are going to look at what North Carolina says about loud noises and what constitutes as unlawful noisemaking.  

“A county may by ordinance regulate, restrict, or prohibit the production or emission of noises or amplified speech, music, or other sounds that tend to annoy, disturb, or frighten its citizens. (1973, c. 822, s. 1.)”

— § 153A-133. Noise regulation.

To insure that you are operating in a legal and respectful manner, check your individual county's noise ordinance.  Like the previous posts, we will be using Charlotte-Mecklenburg as the example. Both the city of Charlotte and Mecklenburg County have their own noise ordinance.  

The county ordinance deals with "unincorporated areas." In other words, if no other legal document governs the noise regulation in an area, the default is the county's ordinance. 

REsidential Areas

Charlotte's ordinance renders unlawful many activities between 9pm and 7am such as:

• Operation of a front-end loader for refuse collection
• Operation of construction machinery
• Operation of garage machinery
• Operation of lawmowers or out-door tools
• Any mechanical noise that exceeds 70 db (A)

The sound level in decibels on a A-weighted scale (examples of such are found to the right) is measured at the property line of the nearest complainant (and not where he/she heard the noise!).  

Just remember, decibels is measured logarithmically: eg. a garbage truck that is 80 db (A) loud is twice as loud as a vacuum cleaner that registers at 70 db (A).

Animals

The laws regarding animals are much more broad.  The city ordinance states the following: 

"It shall be unlawful for any person to own, keep or have in his possession, or harbor, any dog, other animal or bird which, by frequent or habitually howling, yelping, barking or otherwise, causes loud noises and produces seriously annoying disturbance to any person or to the neighborhood."

This means that the complainant only needs to claim that the animal is disturbing or annoying for the complaint to be filed. 

Motor Vehicles

Charlotte bans three very simple uses of motor vehicles:

• Muffle-exhaust removed or altered or maintained in a state of disrepair so as to cause unreasonably disturbing noises
• Jackrabbit starts, spinning tires, or racing engines which create unreasonably disturbing noises
• Other operations causing unreasonably loud or disturbing noises

The violations vary based on the nature of the disturbance. The violator may be assessed a $100.00 civil penalty. He/She may also be charged with a misdemeanor and be subject to further penalties.  You may seek civil action against someone creating or allowing unlawful noises. Should the violator be the city or a corporation, additional penalties may be invoked.  

Remember that the easiest way to nip the problem in the bud is to have active communication with those living around you.  A five-minute conversation with your neighbor can save you time and money.

Driving while Intalksicated

Note: Any use of a cellular device or associated driving leads to distracted driving equal or worse than driving while drunk.  Please drive safely.

As technology continues to permeate everyday life, phone usage on the road is on the rise. But the question appears: who can use their phone and how can they use it?

Type of License	Telephone	Additional Technology	Texting and Email
Level 1 Limited Learner's Permit	No	No	No
Level 2 Provisional License	No	No	No
Level 3 Full Provisional LIcense	No	No	No
Full License	Yes	Yes	No

“(1) Additional technology. - Any technology that provides access to digital media including, but not limited to, a camera, music, the Internet, or games. The term does not include electronic mail or text messaging.
(2) Mobile telephone. - A device used by subscribers and other users of wireless telephone service to access the service. The term includes: (i) a device with which a user engages in a call using at least one hand, and (ii) a device that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of the mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate, or initiate a function of such telephone.”

— NC Department of Transportation

To summarize the above material from the NC Department of Transportation (NCDOT), a mobile phone includes all cell phones including those that allow hands-free calling.  It does not matter if the phone is voice or touch activated (though some exceptions exist).

Additional technology allows the NCDOT to cover everything else but mail or text messaging which reserve their own special category as they are forbidden no matter the license.  

For drivers under the age of eighteen (18), any use of cellular technology is banned.  If you are found in violation of this rule, you are subject to a $25 fine but no points are added to your license nor should you experience any surcharge in your insurance.  That being said, the holder of a provisional license can use their cell phone if a) it is an emergency situation or b) if the caller is calling parents, legal guardians, or spouse. 

For drivers over the age of eighteen, the main concern is the use of text messaging services (and that means any means of entering text to communicate with someone).  If you are found in violation of this rule, it is considered an infraction with a fine of $100 plus court fees.  The primary exceptions to this rule are the use of a GPS and the use of voice operated technology.  

While NC does allow the use of cell phones while driving a vehicle, please remember that doing so can result in distracted driving: the reason for about 25% of motor vehicle accidents (only behind alcohol and speeding).  Schedule stops in your daily commute if you really need to answer your phone or just wait until you've arrived at your destination. Be safe on the roads.

Know Your Laws: Dogs

Dogs are man's best friend and can be a source of great happiness to its owner.  

But do not forget that owning a dog is a great responsibility and you are liable for your pet's actions.  Let's delve deeper into the Mecklenburg County laws so that you know for what you are responsible.

Charlotte and Mecklenburg County have one of the strictest leash laws in the state of North Carolina which apply to all animals except cats.  The pet must be on a leash, contained within a fence, or an operable and marked invisible fence, this being represented by a sign from the company in the property.   

The animal can be off its leash in the owner's yard, if, and only if, an adult is within the immediate proximity and the animal responds to direct verbal commands.  When the animal is not on the property or in a designated dog park, it must be physically restrained at all times.  (This means that the animal must be on the leash and the owner cannot just have the leash in hand.) 

Should you violate any of the aforementioned rules, you can be subject to fines starting at $50.00 up and increasing up to $500.00 or even seizure of the animal for a fifth violation.  

Just remember: you are responsible for your pet at all times.

New office look for the New Year!

Traffic Stop? Never Talk To Police!

What many people fail to realize, is that you aren’t obligated to have casual conversations with police when you have been pulled over.

During a routine highway stop for a minor traffic violation, there is NO good reason why it would ever be in your interest to continue chatting with a cop.

In fact, such conversations are often used solely to manufacture an excuse for further action against you.  Highway police are trained to use the chats as an opportunity to take stock of alleged “indicators” of criminal activity, including nervous speech patterns, a pulsing carotid artery and inconsistencies in stories.  They are also trained to seek permission for warrantless searches.

For example, here is the excerpt from the recent Washington Post article, Highway Seizure in Iowa Fuels Debate about Asset-Forfeiture Laws:

Simmons said he was issuing a warning for the failure to signal.  After handing over the paperwork, he said the stop was over. Then he asked the driver, Newmerzhycky, if he had “time for just a couple quick questions.”

Police who specialize in highway interdiction use casual conversations to avoid triggering legal questions about the length of stops.  If the conversations are consensual, courts consider the added delay to be legal.

The following exchange between the police officer and the driver is rather instructive:

“Do you got any drugs? ” Simmons asked on the video recording that was later obtained by his lawyer. “Any large amounts of U.S. currency?”

“Absolutely not,” Newmer­zhycky said.

“Nothing in there? Could I search your car?”

“I don’t see any reason to.  I’m not going to consent to that.”

“Okay. I’m just asking you if I can,” Simmons said.

“No.”

At this point, the stop is supposed to come to an end and the driver allowed to leave, unless during the consensual conservation the officer has developed a suspicion — one that can be articulated — that a crime has occurred.

Scholars of constitutional law say that a refusal to consent cannot count as suspicious behavior. Nervousness on its own also is not sufficient to justify continued detention, they said.

But rather than release the motorists, Simmons told them he wanted to bring in an officer with a drug-sniffing dog.

“Could I just call him? Do you want to wait? I’ll call him and just run a dog around it real quick.”

“I’d prefer to be on my way. I mean, I’m telling you the truth, there’s nothing in my car,” Newmerzhycky said.

“I’m just asking you if you want to wait for me to run a dog around,” Simmons said. “I’d like to.”

“Do I have the right to say ‘no’ to that?”

“You do.”

“I’d prefer to be on my way.”

At that point, the stop had gone on for almost half an hour. Simmons told Newmerzhycky that you “seem like you were really nervous” and that “I’ve seen your pulse running here.”

Minutes later, Trooper Vanderwiel arrived with the dog, which alerted on the back area of the car. That gave Simmons and Vanderwiel probable cause to search the vehicle without a warrant or the driver’s consent.  They found more than $100,000 in cash, most of it shrink-wrapped in plastic. 

“I’ll be honest with you, we didn’t find anything illegal, so you are not arrested, right?” Simmons said on the video. “But you are being detained.”

In a recent interview with The Post, Davis, the passenger in the car, said the men lied because they were concerned the police might take the money.

The troopers took the men to a state highway maintenance facility, where they were joined by two state investigators and continued to question the men about the money and examine the car. Two hours later, they let the men go — without their cash.  

Davis and Newmerzhycky hired a lawyer and challenged the seizure in Iowa, citing the video of the stop.  In September 2013, authorities reversed course and cut a deal to give back 90 percent of the money.

The length of a warrantless stop must be reasonable.

Imagine a police officer pulls over a car for a routine traffic violation, such as speeding or driving with a broken taillight.  During the stop, the officer develops a hunch that there may be drugs in the car.  He contacts a local K-9 unit and requests a trained drug-sniffing dog; when the unit arrives, another officer will walk the dog around the car to see if it alerts to drugs inside.

Although the Supreme Court has held that the use of the dog is not a search, the length of a warrantless stop must be reasonable.  The officer can’t delay the driver forever.

This raises a question of Fourth Amendment law that has led to a lot of lower court litigation: If the officer has no reasonable suspicion that drugs are in the car — that is, he only has a hunch — how long can the traffic stop be delayed before the dog arrives and checks out the car?

Lower courts have generally answered the question by adopting a de minimis doctrine.  Officers can extend the stop and wait for the dogs for a de minimis amount of time.  But exactly how long is that?

The U.S. Court of Appeals for the Eighth Circuit held in United States v. Rodriguez that seven to eight minutes is de minimis.  On the other hand, the Supreme Court of Nevada held a few months ago in State v. Beckman that nine minutes is too long.

The bottom line, do not chat with police office when pulled over and refuse to answer questions.  It will never do you any good.

With all that in mind, I strongly suggest watching the following video with almost 5 million views of Law Professor James Duane, simply titled: Don’t Talk to Police.

Obama's Immigration Policy Changes

On November 20, President Obama outlined a series of executive actions related to immigration reform.  Let's address some of the main questions we have received from clients since the announcement:

Q: What was announced?

The President announced a number of steps through administrative actions to be implemented by the Departments of Homeland Security.  None of the changes rely on congressional approval. The program has four major components:

Enforcement prioritization: The Administration will prioritize border enforcement and focus interior enforcement mainly on individuals who pose security risks;  the implication is that the flow of new unauthorized border-crossers could decrease, while enforcement for most unauthorized immigrants already in the US would be diminished.

Incremental expansion of work visa programs: The program would incrementally expand immigration of skilled workers, by

1. allowing spouses of H1-B visa (high-skilled) workers to work if they have a green card application pending;
2. allowing high-skilled workers to change jobs more easily;
3. "modernizing" the requirements for L-1 visas, which allows companies to transfer existing employees to US offices (this is an important program for parts of the technology industry);
4. granting green cards or temporary status to individuals with "exceptional ability" or inventors, researchers, and founders of start-up enterprises, and
5. expanding the Optional Practical Training (OPT) program, which allows students graduating from US universities to work for up to 29 months in the US following graduation.

Expansion of existing deferred action program: The President's executive order would expand the existing Deferred Action for Childhood Arrivals (DACA) program.  The program was established in 2012 to allow unauthorized immigrants born after 1981 who arrived in the US prior to age 16 to avoid removal and to gain work authorization.  To qualify, individuals must also be at least 15 years old at the time of application and have graduated from high school.  Under current rules, one must have lived in the US continuously since 2007 to qualify, but the Obama Administration is now changing the cutoff date to 2010, and lifting the age requirements. 

Establishment of new deferred action program: Under a new program known as Deferred Action for Parental Accountability (DAPA), unauthorized immigrants who are the parents of U.S. citizens or legal permanent residents (i.e., green card holders) and who have been in the country for more than five years can receive relief from deportation and work authorization for three years, subject to a background check and a $465 fee.

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Q: When would the changes take effect?

Approvals for deferred action are likely to begin in Q2 or Q3 2015.  From the time the President announced the original DACA program in 2012, it took two months to begin accepting applications and four months for approvals to begin in earnest.  This time, the Department of Homeland Security (DHS) has set a deadline in February to begin accepting applications for the expanded DACA program, and in May for applications under the new DAPA program.  Assuming two months to process the applications, work authorizations under the new programs seem likely to start being granted in Q2 or Q3 2015.

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Q: How many people would be potentially eligible for these programs?

In all, the changes look likely to affect around 5 million unauthorized immigrants plus 100k to 200k skilled workers.  The changes to the existing DACA program look likely to increase the eligible population by about 300k, based on estimates by the Migration Policy Institute (MPI). Working-age adults would account for most of this increase.  The new deferred action program for parents of citizens would have a larger effect.  Estimates from the Pew Hispanic Center and MPI suggest that, as of 2012, 3.1 to 3.3 million unauthorized immigrants had lived in the US for at least five years and had minor children who were citizens or held green cards.  However, since the DAPA program also covers parents of adults who are US citizens or permanent residents, the total universe of eligible immigrants may be somewhat greater.

The effect on the number of skilled immigrants with work authorization is somewhat less clear, but the new policies look likely to apply to 100k to 200k individuals in the first year.  According to the Government Accountability Office (GAO), around 125k foreign students were approved to work through the OPT program on average in 2013, but only 25k of these took advantage of the longer 29-month work period for science, technology, engineering and math (STEM) graduates. Details of the changes being contemplated are not yet available, but even if the STEM program doubled it would only add 25k.  DHS estimates that authorizing the spouses of H1-B workers to work would increase the number of potential workers by about 100k at the outset and by about 30k per year thereafter, and that about 10k individuals would take advantage of the new entrepreneurial visa each year.

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