Another Court Says the Fourth Amendment Doesn’t Apply to Credit Card Swipes

credit card and wallet iStockThe U.S. Eighth Circuit Court of Appeals is among the latest courts to consider whether the police need a legal justification in order to swipe someone’s credit card. In a June decision, it took the popular view that examining a card in this way isn’t a Fourth Amendment “search.” According to this position, there’s no real difference between looking at the information on the front of a card and using a device to examine the magnetic strip on the back of it. (United States v. DE L’Isle, No. 15-1316 (8th Cir. 2016).)

To the Eighth Circuit and several other courts, an officer doesn’t need a warrant or other legal justification in order to swipe or scan a card. An officer who has legitimately accessed a card—as opposed to one who has, say, arbitrarily stopped someone on the street and snatched the card away—can run it through a machine in order to investigate its legitimacy.

In the case that led to the ruling, law enforcement came by a stack of credit, debit, and gift cards during a search after a traffic-stop-turned-arrest. Suspicious, as they tend to be when encountering big bunches of cards, officers scanned the plastic. The scans confirmed their suspicion of identity theft, exposing the cards as having either stolen information or no account information at all.

For more on the case, including the court’s rationale and potential differences in court rulings on this issue, see Can the Police Swipe or Scan Your Credit Card?

Check Out the Writing-Award Winners From the 2016 National Association of Real Estate Editors’ Conference!

The Annual National Association of Real Estate Editors (NAREE) Conference just concluded in New Orleans, bringing together real estate writers, journalists, and industry experts from around the United States.

As always, the announcements of NAREE’s 2015 journalism and book award winners were event highlights.

Here’s a sampler of the writings that caught the judges’ eyes:

  • Josh Salman, of the Sarasota Herald Tribune, discussed flaws in administration and oversight of the EB-5 investor visa program, which many non-citizens use as a way to get a U.S. green card, in many cases by buying into sometimes dubious real estate investments.
  • Ken Harney, Washington Post Writers Group, revealed “Why an agent might refuse to show a house (the low commission).”
  • Jonathan O’Connell of The Washington Post examined the idyllic plans to upgrade Washington for the 2024 Olympics, and explained why, even without having won, the effort could still transform the city.
  • Emilie Rusch, Denver Post, looked into how legalization of marijuana has gobbled up empty commercial real estate in Denver, Colorado.

sell1_1_1And Nolo picked up an award as well: The book “Selling Your House: Nolo’s Essential Guide,” by Ilona Bray won gold in the annual Robert Bruss competition, which recognizes excellence in books covering the field of real estate.

NAREE’s judges commented that the book is a “clear, thorough handbook on selling a house” and noted that the helpful tips serve as “good preparation for those who may not have been in the market for a while.”

Fewer Employees Will Qualify as Exempt From Federal Overtime Laws Under New Rule

Last Overtime2summer, the Department of Labor (DOL) issued a proposed rule that would increase the minimum salary requirement for workers to qualify as exempt from federal overtime rules. The DOL recently finalized the rule, which will go into effect on December 1, 2016. The DOL estimates that 4.2 million workers will now be eligible for overtime pay as a result of the changes.

Federal law requires employers to pay employees time-and-a-half when they work more than 40 hours in a workweek. However, employers can avoid paying overtime if employees fall within certain exemption categories. Some of the most common exemptions are the “white collar” exemptions for executive, administrative, and professional workers. In addition to meeting other requirements particular to each exemption, these employees must all be paid a minimum salary. The minimum salary has remained at $455 per week (or $23,660 annually) for many years.

Under the new rules, the minimum salary will increase to $913 per week for the white collar exemptions, which is the equivalent of $47,476 per year. The minimum salary will be automatically adjusted every three years, beginning on January 1, 2020, to make sure that it is consistent with increases or decreases in workers’ average weekly earnings in the U.S.

The new rule also increases the minimum salary necessary to qualify for the highly compensated employee exemption. This exemption is reserved for employees who perform office or nonmanual work and perform at least one of the duties required by the executive, administrative, or professional exemptions. The minimum salary will increase from $100,000 to $134,004 on December 1, 2016 and will receive automatic updates every three years as well.

In the past, employers could only count regular wages towards the salary threshold requirement. However, the new rule allows employers to count commissions and nondiscretionary bonuses (bonuses for meeting production goals, for example) towards up to 10% of the salary requirement, as long as such payments are made on at least a quarterly basis.

Charity Navigator Eases Pressure on Nonprofits to Show Minimal Overhead

starsA back-end change to the rating system metrics used by a watchdog organization for nonprofits may not sound like a big deal, or make for snazzy headlines. But the recent announcement by Charity Navigator that it is “upgrading” the way it evaluates charities and ultimately decides how many “stars” each one merits (one a one to four scale) represents a huge change in attitude, and one that will hopefully trickle down through the entire philanthropic community.

The main change to which I’m referring is in the way Charity Navigator will evaluate a nonprofit’s so-called “administrative expenses” going forward.

Currently, only charities that can claim to have no overhead expenses at all can earn Charity Navigator’s top score for that particular measurement, or ten points. Unless yours is an entirely volunteer-run organization, or never has to actually ask donors for financial support or hire people to handle accounting, development, or other management, that’s almost impossible to achieve.

Under Charity Navigator’s newly announced system, a nonprofit can score ten points if it comes within a given range of overhead expenses, taking into account the type of organization.

It’s a change that seems infinitely more realistic. For years, commentators have noted that, while excessive overhead may mean that someone is lining his or her pockets, some level of overhead is a necessary part of simply running an organization. (What for-profit corporation exists without management?!)

A quote in The York Times sums it up nicely: Elizabeth A.M. Searing, assistant professor at the Rockefeller College of Public Affairs & Policy at the University of Albany and a member of the Charity Navigator task force, explains that the change will make it easier for charities to avoid having to “starve themselves” so as not to appear as if they are spending excessively on overhead.

Yes, Even Charitable Organizations Must Abide By U.S. Trademark Law

pillowfightPlanning a fun theme for a special charity event is an opportunity to exercise one’s creativity, attract a new audience, and . . . receive future nasty letters from lawyers.

Just ask Newmindspace, a Toronto-based nonprofit dedicated to organizing free, fun, all-ages events in places like subway cars and city streets. The organization had to change the theme of its popular lightsaber battles to the “Cats in Space Tour” after receiving a cease-and-desist letter from the attorneys at Lucasfilm (owner of the Star Wars brand).

At least the nonprofit seems to have come to an agreement without going to court or suffering direct financial losses (other than the costs of hiring its own lawyers and rebranding). A worse fate appears to have been a possibility: Newmindspace co-founder Kevin Bracken reportedly said that, after receiving the letter, the threat of a multimillion-dollar lawsuit kept him up at night.

Still, it’s a cautionary tale for any nonprofit. How do you make sure not to step on any toes?

First, understand that simply being a nonprofit is not a defense. It might help in certain situations (particularly if you’re such small potatoes that it’s not worth the larger entity’s time to go after you), but you can’t count on that. In fact, giant, unfeeling corporations aren’t even the only ones to go after trademark violators: Remember the reports of the Susan G. Komen foundation sending its lawyers after smaller charities that try to use the phrase “For the cure?”

Fortunately, simply developing some awareness of the existence of trademark and copyright laws, and how they work, will go a long way toward protecting your nonprofit from missteps.

Briefly summarized, trademark infringement occurs when someone uses the trademark or service mark of another when selling competing or related goods and services; particularly if the use might cause confusion for the average consumer. (See Nolo’s articles on Is It Trademark Infringement? for more on this.) If you’re hoping to piggyback on the success of a theme, character, or design that someone else came up with an is actively using, better think twice.

Relatedly, a copyright violation occurs when someone reproduces, distributes, adapts, or performs a work (art, literature, theatre, music, and so on) whose creator still owns the rights to it. As Nolo author Rich Stim explains, “Some people incorrectly believe that if the purpose of the infringement is not for profit, there is no infringement. For example, if a nonprofit charity uses a copyrighted character in its donation drive and mailings, the charity may be liable for infringement.”

Thankfully for Newmindspace, no one seems to have claimed trademark protection for its most popular event: International Pillow Fight Day.