Monthly Archives: November 2016

Now Private Investigator on Cellphone Spyware

There are all types of various private investigator tools that can help track information, including cellphone spyware. These tools may help private investigators monitor a target’s activity. However, using such programs may not always be legal.

What Is Cellphone Spyware?

Cellphone spyware is an app or software that is installed by a third party so that the third party can monitor activity on the cellphone. Typically, this software enables the third party to record conversations, track the phone user’s location and monitor additional data that is used on the cell phone.

Reasons to Use Spyware

Many people who are interested in using cellphone spyware do it because they are afraid that their spouse is cheating or they otherwise want to spy on their romantic partner. Parents may use cellphone spyware to learn about who their child is talking to, what websites the child is accessing, what types of pictures the minor is sending and where the child is located. Companies that provide their employees with business cell phones may use this type of program to track employee movements, anticipate legal problems, monitor their use and anticipate possible problems.

Capabilities of Cellphone Spyware

Cellphone spyware may allow a person to monitor text messages. Typically, a person can delete text messages. Some cell phone providers do not keep a secondary record of such messages. Cellphone spyware may allow a third party to see the text messages sent and received from the phone that has the spyware installed on it. Additionally, the spyware may be able to show the date and time stamps for cell phone activity.

Cellphone spyware may also be able to monitor the call logs between the person who is using the phone and other parties, including the phone numbers, dates, times and duration of each call. Depending on the sophistication of the program, the spyware may be able to record voice calls in real time.

Cellphone spyware may also be able to track the location of the phone in real time. The third party that installed the spyware may be able to see where the phone is at any point in time on a map and see where the phone has been moved from. Cellphone spyware may also be able to track, monitor and record other data such as the websites that were visited on the phone, the emails that were sent and received on the phone and other data that is stored on the phone, such as photos, videos, calendar information and contacts.

Advanced Features

Advanced cellphone spyware may allow a third party to record voice calls, download them and play them back later. The software may also be able to record text messages that are used on different messaging apps, record surroundings and activate the phone’s microphone to record information and listen to later. Some spyware is so advanced that a person may be able to set an alert so they know when a certain word or phone number is used. Remote control settings may allow a person to remotely lock the phone, unlock the phone or pause the spyware functions.

Legality of Cellphone Spyware

The determination of cellphone spyware’s legality depends on a number of factors. Relevant considerations include why the spyware is being used, state law and ownership principles. Generally, a person must be the owner of the phone in order to legally install the cell phone. For example, a parent who buys the child’s phone and pays for its continued use is likely the listed owner of the phone. A company that buys employee phones may also be considered the owner of the phone. For married couples, all property purchased during the marriage is likely marital property and the spouses are co-owners of the phone.

However, if the phone was purchased prior to the marriage or pursuant to an agreement by the parties, it may not be considered the property of the other spouse. Absent owning the phone, the person who wants to install the spyware must inform the person that he or she is installing the software and that this allows for monitoring. For example, a business may have to inform employees that the cell phones may be monitored.

Another consideration is state laws pertaining to recorded conversations. Some states require informing both parties involved on a phone call that they are being recorded for the recording to be legal.

A licensed private investigator can discuss the possible implications of using cellphone spyware and may be able to assist with completing this type of surveillance in the case.

Difficulties in Factory Registration at Egypt

The new ministerial decrees 991/2015 and 43/2016 issued by the Minister of Trade introduced new measures concerning the registration and certification requirements of the qualified factories/companies which export their products to Egypt.

According to the above-mentioned decrees any foreign factory or company, which exports any of the regulated products is obliged to submit the requested documents (after translating into Arabic and legalizing up to the Egyptian consulate in the exporting country) to the General Organization for Import and Export Control (GOEIC). Such measures represent some difficulties to foreign companies exporting to Egypt due to the complexity of the process. Further, failure in submitting the right authorized documents leads to the rejection of the factory/company file by GOEIC. This article aims to highlight some difficulties that face foreign companies in the registration process.

List of Products

The factory should issue this document on its printed papers, letterhead to mention the factory products, their brand and trademark. Simply, this list is to clarify if such products is among the regulated products or not, it should be real, valid and legalized.

Certificate of the legal entity of the manufacturer and the license of the factory

It is an official certificate of the legal status of the factory that is issued from the country of the factory. In such case, the commercial register of the factory will be sufficient, but it should be valid (not expired) and if any amendments happened regarding the name of the Factory/company the commercial register before and after such amendment shall be provided. However, some factories/companies that has no commercial register in their countries; in this case, the article of association will be accepted by GOEIC. The factory license is an official document that entitles the factory the permission to operate, some factories that have no license according to domestic laws will need in this case to provide an official certificate to prove that. It is worth mentioning that both of the above documents shall be certified at the commercial chamber and the Egyptian consulate in the factory/company country.

Products brands and the Trademark produced under a license from the owner himself

Here we must differentiate between three cases:

Case 1: The factory has its own brand, so the factory has to present the official certificate that proves the ownership of the trademark.

Case 2: The factory has its own brand and manufactures products under another trademark, here the factory has to submit three documents:

The ownership certificate of his own trademark, the trademark license as a proof that the owner of such a trademark grants him a license to manufacture under this trademark, and the official certificate of such trademark ownership registration to prove his ownership of the trademark.

Case 3: The factory does not own a trademark and manufactures with another trademark of another owner. Here the factory has to submit two documents:

The trademark license as a proof that the owner of such trademark grants him a license to manufacture by this trademark, and the official certificate of such trademark ownership registration to prove his ownership of the trademark.

In all cases, the certificate of trademark must include the company name and its logo clearly (it should be translated with the company name into Arabic), trademark number, and to check the expiry date of the certificate in order to renew it before submission if it is expired. In addition, trademark license shall state that the owner of the trademark has entitled the licensee the right to manufacture/produce, export and distribute.

Quality Certificate

One of the most important documents that must be included with the registration documents is the quality certificate. According to the ministerial decree, this certificate is to prove that the factory has a quality control system. The quality certificate must be issued by a certification entity that is accredited by one of the accredited entities recognized by the International Accreditation Forum (IAF) or the International Laboratory Accreditation Cooperation (ILAC).

On GOEIC website there is a list of the certification bodies approved by GOEIC. If the entity issued the certificate not recognized by IAF or ILAC then a request may be submitted to get this entity approved by GOEIC. Such request may be accepted or rejected by GOEIC according to its own evaluation to the issuing body. Further, the ISO certificate 9001/2008 will be accepted by GOEIC for manufacturing factory/company and not for their distribution centers.

The registration process will proceed on the base of providing the required documents authorized and valid as per the decree. Accordingly, to avoid wasting of time and lengthy procedures, every document must be checked very well especially the validity dates and the approval of the competent authorities, and all documents must be legalized and translated into Arabic.

Some Overview of License Defense for a Physician

[P]rofessional discipline for a physician [involves] the process by which your medical license comes under attack and your defense of it.

Violation. The process of professional discipline starts with your violation of law. California statutes contain a large list of prohibitions for physicians, the violation of which triggers professional discipline against the physician’s license. Some examples include:

o Excessive use of alcohol or drugs,
o Billing fraud,
o Dishonesty,
o Disciplinary action taken against you by other regulatory agencies,
o Unprofessional conduct, which includes, among other generalities, violation of a provision of the Medical Practice Act.

Notice that these violations incorporate other laws, and also disciplinary action taken against you by other agencies. This creates an infinite pool of possible violations. The laws applicable to physicians are voluminous and growing, with most of the laws being unknown to you and everyone else, but your violation of any one of them can start the process of professional discipline.

Reporting. The CA Medical Board learns of your violation from a number of sources, including from informants (beware employees). CA law also requires reporting from certain persons. For example,

o A physician must report his own felony charge, or misdemeanor or felony conviction. [Doesn’t it feel unfair to force people to rat on themselves?]
o A district attorney must report a physician’s felony charge.
o 805 Report—A hospital must report actions taken against physicians.
o Professional liability insurers must report settlements and judgments for claims for death or personal injury.

The ideal scenario is to stop the process before a report is made. Once the report gets made, you’re in the system, and the system has a life of its own.

License Defense Proceedings. As outlined above, the legal proceedings flow like this:

Investigation – Suspension – Hearing / Plea Bargain – Sentence

For the Medical Board, the investigation is an appetizer, leading to the first course — whether a suspension is warranted. From there you can demand a hearing, or you can immediately start to plea bargain for a reduced sentence. Usually the physician’s violation is an established fact (like a DUI), so the discussion isn’t whether you violated the law, but what’s the punishment.

The Medical Board has standard ranges of discipline for each offense. For example, the range for excessive treatments is a minimum of 5 years probation up to a maximum of license revocation; the range for dishonesty related to patient care, billing etc. is a 1 year suspension + from 7 years probation up to license revocation. For some offenses, e.g. billing fraud, the Medical Board imposes permanent revocation of your license. You argue your case hoping for a sentence closer to the minimum.

The law uses two factors in locating your punishment between the minimum and maximum. You should ague both factors, that is, (1) you do not pose a risk to patient safety, and (2) you are in rehab and getting appropriate treatment and education.

Collateral Damage. The scariest thing in license defense is the cascade effect among the various agencies that regulate the medical industry. The agencies cross-default their violations, meaning that a violation of one agency’s regulations will trigger discipline by another agency, which triggers discipline by still another agency. Everyone’s coming to the party, and you’re the piñata.

Information Is That a Patent, Trademark or Copyright?

If you wouldn’t know a patent if one bit you [1], you are not alone. Most of the public doesn’t know the difference, and there are lawyers who are uncertain of the differences. Today, though, you are lucky enough to have this article in front of you to learn the difference. Bear in mind, however, this is just an overview. If you want to know more, refer to the footnotes.

Patents

First – a patent provides a patent owner with the exclusive right to exclude others from making, using, offering for sale, or selling the process, machine, manufacture, or composition of matter throughout the United States.[2] In other words, if the idea isn’t a process, machine, manufacture, or composition of matter that can be made, used, offered for sale or sold, a patent won’t cover it.

Trademarks

Second – a trademark is a word, term, name, symbol, or device, or any combination thereof used to distinguish the goods or services of one person in commerce from the goods or services of another person.[3] So, if the idea is used as a brand of a company’s goods or services, it is a trademark.

Copyrights

Third – copyright applies to literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, and motion pictures and other audiovisual works, sound recordings; and architectural works in any tangible medium of expression[4]. Copyright thus applies only if (1) the idea is within one of these 8 areas and (2) the idea is recorded in a tangible medium of expression.

So, what is the ‘takeaway’ from these definitions.

One – Ideas alone are not protectable. To apply for a patent, trademark registration, or copyright registration, the idea must be made into something tangible, or at least recorded onto paper or into an electronic file for people to see.

Two – Ideas are not protectable if describing an act by a person. A common mistake by untrained people preparing a patent application is to refer to an act performed by a person. Something done by a person is not a process, machine, manufacture, or a composition of matter so a patent does not apply. The same applies for copyright. A registration for choreography or other act performed by a person (such as yoga) applies to what is on the document. If someone sees you or someone else perform your choreography or yoga, and then based on memory does your choreography or yoga, or even teaches someone else the moves, they are not infringing your copyright.[5]

Three – Patents apply to useful items created by people – not to laws of nature nor equations, nor to illegal items. There have been, over the years, patents for various machines, patents for the things that come out of machines, and even design patents for shoes, but not for burglary tools, as those not legally useful. Be aware, also, that a patent application for a process or software must not rely solely on a law of nature or an equation describing a nature process. A patent application not claiming a tangible output or reference to a tangible item is likely abstract.[6] In addition, the output should be capable of being identified back to the process or software to avoid source vagueness.

Four – Trademarks protect the public – not the company. The purpose of trademarks is for the public to have reasonable certainty to the identity of the company supplying the purchased goods and services. The trademark registration process (and in court for infringement determination) includes a review of whether there is a likelihood of confusion by the relevant public as to the source of the goods.[7]

Five – Copyright protects creativity, not effort. For this reason, instructions, tables, lists, software syntax, fonts, and the processes within software do not have copyright protection. Copyright does, though, protect the creative material within them, such as comments and even made-up text.[8]

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[1] See U.S. Patent 6,836,994 for a ‘Fish biting indication device’

[2] This is a mash-up of 35 U.S. Code sections 101 and 154 (a)(1).

[3] This is a mash-up of 15 U.S. Code sections 1125 (a) (1) and 1052.

[4] This is 17 U.S. Code § 102 rephrased to be succinct.

[5] See Bikram’s Yoga College v. Evolation Yoga, No. 13-55763 (9th Cir. 2015).

[6] In Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014), the U.S. Supreme Court said that software is not eligible for a patent if the process fails to “offer a meaningful limitation beyond generally linking ‘…the [method] to a particular technological environment’.” Though the law here is abstract.

[7] Again a mash-up. See 15 U.S.C. §1052, TMEP §1207 and the Model Civil Jury Instructions, 15.18 of the Ninth Circuit,

[8] We can then prove copying of the comments and made-up text, and thus of infringement!