Category Archives: General

Marijuana Legalization is Growing Like Kudzu

Georgia is set to join the 23 states and the District of Columbia that legalized what is called medical marijuana. The Georgia Assembly passed Haliegh’s Hope Act near the end of its recent session. Haliegh’s Hope Act legalized under state law the use and possession of “low THC oil” to treat certain conditions and for medical research. The Act is on the Governor’s desk and the Governor is expected to sign it into law.

The fight over marijuana legalization invokes images, such as:

pot combo 1

Spin set aside, legalization at the state level creates a conflict with federal law because federal law still criminalizes marijuana regardless of the intended use. The fuel for the legalization movement came in 2009, when the federal government took a hands-off approach to medical marijuana used under state law.  The feds loaded its announcement with caveats that the feds still can enforce the federal laws that criminalize marijuana.

Existing case law is that federal drug laws trumps state laws legalizing medical marijuana. As a result, banks, for example, resist knowingly doing business with them because of federal drug, money laundering, and RICO laws. Anyone else who does business with the marijuana operations faces similar risks, regardless of the state law.

The spreading of legalization has spurred new court challenges over the conflict between federal law barring marijuana and state laws permitting marijuana use.  The states of Oklahoma and Nebraska sued Colorado over its marijuana legalization in late 2014. A group of sheriffs from Colorado, Nebraska, and Kansas filed a separate suit in 2015 against Colorado over the state laws permitting marijuana.

Individuals are getting into the act, too.  Debtors who filed for bankruptcy in Colorado had their case tossed because the debtors wanted to use their medical marijuana business to fund the bankruptcy plan. The bankruptcy court rejected the case because the bankruptcy trustee cannot use illegal income to fund a plan, and a medical marijuana business remains illegal under federal law. The debtors appealed their case to the 10th Circuit Court of Appeals, arguing that the feds hands-off approach means the trustee can use the medical marijuana income to fund a bankruptcy plan. That case remains pending.

An earlier blog post (Dude, Pass the Chips) discussed a case pending in Colorado over whether an employee can sue his employer for wrongful termination after the employee failed a drug test because the employee used medical marijuana as allowed by state law. The Colorado Court of Appeals answered “no” and the employee took the case to the Colorado Supreme Court. The Colorado Supreme Court has not issued a ruling as of this post.

Also in 2015, a bipartisan trio of U.S. Senators made a proposal to move marijuana from Schedule 1 to Schedule 2 under the federal Controlled Substance Act, among other changes. A Schedule 2 substance can be prescribed after it meets certain standards, but a Schedule 1 substance generally cannot be prescribed legally at all. Testing whether marijuana actually has medical benefits makes sense. If it works, let doctors prescribe it as with any other drug.

Will we see marijuana sitting on pharmacy shelves along with narcotics, antibiotics, and other drugs? Will marijuana join alcohol and tobacco (Marl-bud? Camel Green?) on store shelves, or will the growing legalization movement be snuffed out? Grab some chips and brownies; it will be an interesting show, dude.

This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation. Laws change and your situation may be different. You should consult with a licensed attorney for legal advice specific to your circumstances.

“Damn the Legalities! Full Speed with the Remote Wiping!”

     Dorothy, the new IT Director for the Golden Brick Road Company, took one look at the computer security protocols and said, “Hackers, spammers, and scammers, oh my!” A hole she saw was Golden Brick’s BYOD (Bring Your Own Device) practice. Golden Brick cut costs by ceasing to provide smartphones to its employees. Golden Brick instead allowed employees to use their personal devices to access company email, cloud storage accounts, etc.

     Dorothy thought it would be a good idea for Golden Brick to wipe those devices when an employee left the company or if the employee’s device was lost or stolen. She went to Golden Brick’s in-house attorney, the Wicked Witch of the West, and the CEO, the Wizard, with her suggestion. The Wicked Witch and the Wizard agreed that it was a good idea. Dorothy had a remote wipe program automatically upload onto the employees’ devices as they accessed the company’s systems.

     The Wizard instructed the Wicked Witch to draft a BYOD policy. It was the end of day and the Wicked Witch had to rush out to get to the Flying Monkeys’ soccer game. She planned to write the policy the next day. Unfortunately, it rained at the soccer game and the Wicked Witch was no more. No one drafted a BYOD policy.

     The Scarecrow, a Golden Brick employee, used his smartphone to access the company systems. A week after the Wicked Witch’s passing, the Scarecrow told Dorothy over lunch that he thought he lost his smartphone. Dorothy remotely wiped the Scarecrow’s smartphone. Fortunately (or not), the Scarecrow found the smartphone between his couch cushions. Everything on it was gone, from personal files to company data. The Scarecrow denied that he gave anyone permission to access his smartphone in that way. He hired a lawyer and sued Golden Brick.

     What is an employer to do? It is becoming more frequent for employers to allow employees to use their personal devices to access the employer’s systems. This may improve efficiency and cut costs while creating a potential security hole and a legal headache. The use of personal devices raises questions of what rights the employer may have to access or wipe the personal device. A BYOD policy may help. A well-written policy in place should outline for both employer and employee the rights and expectations either have when an employee uses a personal device to access the employer’s systems.

      Will the Scarecrow win his lawsuit over the remote wiping of his smartphone? Will Dorothy get her Ruby Slippers Bonus? Will the Wizard hire an attorney who is not water-soluble? A written policy could have helped answer one of those questions.

This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation. Laws change and your situation may be different. You should consult with a licensed attorney for legal advice specific to your circumstances.

Caught on Tape – Mouth Meet Foot

            Free speech creates a wonderful mess.  People generally are free to let their words fly.  Their words could be profound, mundane, offensive, or downright stupid.  Cell phones and smart phones capable of recording sound, and other recording devices, makes it relatively easy to have those words caught on tape and exposed to the world.  Donald Sterling recently found this out with the leak of a recording of him making racially charged comments.

            The furor over his comments overshadows other commentators asking whether the recording was legal.  State and federal wiretap laws, the right of privacy, and other factors outline when someone can record a conversation without facing liability.  I will focus on the wiretap laws.

Is That a Digital Recorder in Your Pocket or are You Happy to See Me?

            Getting everyone involved to knowingly consent to the recording of the conversation is a way to avoid violating the wiretap laws.  How about doing it without everyone’s consent?  Whether the wiretap laws require everyone to consent depends on whether the laws of a “one party” state or a “two party” state apply.  In a “one party” state, at least one person known to be present in the conversation must consent to the recording.  In a “two party” state, everyone known to be present in the conversation must consent to the recording.  There are exceptions, such as law enforcement acting with a warrant or when a court order allows for the secret recording or monitoring.  Just because you feel like doing it, or doing it could help you prove a point, are not likely to be exceptions.

Are You OK That I Secretly Recorded You or are You Happy to Sue Me?

           Who remembers Linda Tripp of the Clinton-Lewinsky scandal in the 1990’s?  Linda Tripp recorded phone calls she had with Monica Lewinsky, and those recordings caused a stir.  However, at least one of them was in a “two party” state when Linda recorded the calls without Monica’s knowledge.  Linda faced criminal charges for recording the calls without Monica’s knowledge.

            Linda Tripp’s experience highlights an additional risk involved when recording phone calls.  If the people on the call are in different states, whomever decides to record the call would be wise to check beforehand the laws of the state of each participant.  What may be legal in one state may not be legal in another.  It becomes more complicated if one of the participants is in another country.

Watch Out for “Gotcha!” Turning Into “Oh Fudge, What Have I Done?”

            For anyone hot to record someone secretly – beware.  Failing to follow the law can cause you real trouble.  Technology is making it easier to capture the moment both in picture and in sound, but just because you can does not mean you should.

This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your circumstances.