What is a Cybercrime?

Cybercrime or computer crime is defined as any crime that involves a computer and a network where the computers may or may not have played an instrumental part in the commission of a crime. Netcrime differs in that it refers more precisely to criminal exploitation of the Internet. Such crimes include: hacking, copyright infringement, child pornography and child grooming.

Cybercrime encompasses a broad range of activities. These activities are typically divided into two categories: 1) crimes that target computer networks or devices directly 2)crimes facilitated by computer networks or devices, the primary target of which is independent of the computer network or device. Crimes that target computer networks include computer viruses, denial-of-service attacks and malware.

Computer Viruses – A computer virus is a computer program that can copy itself and then infect a computer. The term virus and malware are often confused in these instances.  A true virus can spread from one computer to another in some form of executable code, when its host is taken to the target computer. Viruses can increase their chances of spreading to other computers by infecting files on a network file system or a file system that is accessed by another computer.

Malware – Malware or malicious code includes computer viruses such as computer worms, Trojan horses, rootkits, spyware and dishonest adware. Computer worms can exploit security vulnerabilities that spread to other computers through networks. Worms and Trojan horses, like viruses, may harm a computer system’s data or performance. Others do nothing to call attention to themselves. Software is considered to be malware based on the perceived intent of the creator rather than any particular features. The prevalence of malware as a vehicle for organized Internet crime, along with the general inability of traditional anti-malware protection platforms (products) to protect against the continuous stream of unique and newly produced malware, has seen the adoption of a new mindset for businesses operating on the Internet: the acknowledgment that some sizable percentage of Internet customers will always be infected for some reason or another, and that they need to continue doing business with infected customers. The result is a greater emphasis on back-office systems designed to spot fraudulent activities associated with advanced malware operating on customers’ computers.

Denial of Service Attacks – These attacks are an attempt to make a computer resource unavailable to its intended users. Although the means to carry out, motives for, and targets of a DoS attack may vary, it generally consists of the concerted efforts of a person or people to prevent an Internet site or service from functioning efficiently. Perpetrators of DoS attacks typically target sites or services hosted on high-profile web services such as banks, credit card payment gateways, and even root nameservers. The term is generally used with regards to computer networks , but is not limited to this field.

With computer crimes, the computer can be a source of evidence. If the computer was not directly used for criminal purposes, it can be an excellent device for record keeping, particularly given the power to encrypt the data. If this evidence can be obtained and decrypted, it can be of great value to criminal investigators.

Other types of cybercrime range from small crimes such as spam, to larger crimes such as cyberterroism. How are such crimes defined?
Spam – The unsolicited sending of bulk email for commercial purposes, is unlawful to varying degrees . As applied to email, specific anti-spam laws are relatively new, however limits on unsolicited electronic communications have existed in some forms for some time.
Fraud – Computer fraud is any dishonest misrepresentation of fact intended to let another to do or refrain from doing something which causes loss. In this context, the fraud will result in obtaining a benefit by altering computer input, destroying or suppressing output, altering or deleting stored data and altering or misusing existing system tools for fraudulent purposes.
Obscene or offensive content -The content of websites and other electronic communications may be distasteful, obscene or offensive for a variety of reasons. In some instances these communications may be illegal.
Many jurisdictions place limits on certain speech and can ban racist, blasphemous, politically subversive, libelous or slanderous, seditious or or inflammatory material that tends to incite hate crimes.
Harassment – Obscenities and derogatory comments at specific individuals focusing for example on gender, race, religion, nationality, sexual orientation.

Crimes are committed each day, with respects to the cyber world. Each crime is defined at different levels, although each is punishable in a court of law.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Hospital and Medical Malpractice

Hospital malpractice is defined as “Any physical injury to a patient, negligence or malpractice that takes place in a hospital. Hospital malpractice can be the result of the negligence of any physician, pharmacists, hospital staff member, nurses, and hospital technicians.” Medical malpractice is as a similar term, in that it is defined as “Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.” One takes place in a hospital, and the other is based on the negligence itself.

Accusations of malpractice have been controversial and a growing issue since the 1970s. Physicians feel there are too many malpractice suits being litigated, and in that, have urged legal reforms to curb large damage awards. Tort attorneys have argued that negligence suits are an effective way of compensating victims of negligence, as well as policing the medical profession.

How does one prove they have been a victim of medical malpractice? To have a case, one must prove four elements: (1) a duty of care was owed by the physician; (2) the physician violated the applicable standard of care; (3) the person suffered a compensable injury; and (4) the injury was caused, or proximately caused, by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit.

The same elements are applied for hospital malpractice. One has to prove that the hospital staff engaged in incorrect or negligent treatment which in turn caused suffering or emotional, physical or financial harm as a result. For this specific type of malpractice to occur, the care provided by a hospital staff member has to be proven that it was not within the reasonable standards of other professionals practicing in the same manner.

Hospital malpractice generally  includes these elements:

Mistaken Diagnosis:  When a diagnosis is wrongfully determined it may prolong the time to necessary treatment for the correct diagnosis. Additional physical harm may also occur because of faulty recommendations for an incorrect diagnosis. This could create more pain, suffering, or emotional distress.

Failure to Treat a Patient:  All patients must be treated in a timely and a professionally correct manner upon entering a physician or hospital environment if a hospital fails to treat a patient, they could be held liable in the court of law.

Improper Use of Medical Equipment:  If medical equipment is used incorrectly by any staff or personnel employed within a hospital, this could be cause of hospital malpractice.  If the improper use further injures a patient, or does not correct the problem as per the staff’s belief, additional medical injury could occur as a result.

Over ninety thousand patients die each year due to medical error and/or hospital malpractice.  In 2001, The Bureau of Justice Statistics published a  report that cited 1,156 medical malpractice suits were litigated in the 75 most populous counties. Nine out of ten of the cases involved a patient who was permanently disabled or had died as a result of negligent medical care. And yet, the win rate in medical malpractice cases was 27%, significantly lower than the 52% average in tort cases. However, the median damage award of $425,000 was much higher than the average tort award of $27,000. It is important to note that these are only the cases that went to trial, and does not include cases settled out of court.

Not every failure of treatment or of a procedure is malpractice. Often doctors and hospital staff can prove that they did everything they could for a patient and that the patient still suffered pain or died.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Age Discrimination

The Age Discrimination in Employment Act or ADEA, is defined a that which prohibits any employer from refusing to hire, discharge or otherwise discriminate against any individual because of age. Within the act specifically prohibits age-based discrimination against employees who are at least 40 years of age and covers compensation, terms, conditions and other privileges of employment including health care benefits.

The ADEA law started in 1964 along side the Civil Rights Act. This law prohibited those who were discriminating in employment based on color, sex, national origin or religion. The statute helped women and minorities begin to gather some footing in the job industry. The original act omitted Title VII which focused on age discrimination. After three more years, the U.S. Senate and the House of Representatives passed the act focusing on age.

The ADEA ruling applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. ADEA protections include:

Apprenticeship Programs – It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.

Job Notices and Advertisements – The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.

Pre-Employment Inquiries -The ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

Benefits – The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.

Waivers of ADEA Rights – An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must:: be in writing and be understandable; specifically refer to ADEA rights or claims, not waive rights or claims that may arise in the future; be in exchange for valuable consideration; advise the individual in writing to consult an attorney before signing the waiver; and provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it

Some positions certainly have requirements that one of a certain age could not meet, for this reason, the ADEA does allow employers to provide for a bona fide occupational qualification defense. An employer seeking to use this defense must show that its age classification is reasonably necessary to the safe and proper performance of the job in question. The employer must also show either:1) that it is reasonable to believe that all or most employees of a certain age cannot perform the job safely, or 2) that it is impossible or highly impractical to test employees’ abilities to handle all tasks associated with the job on an individualized basis.

ADEA also allows employers to discharge or otherwise discipline an employee for good cause, and to use reasonable factors other than age in their employment decisions.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

The Value of A Contract

A contract by definition is an agreement between two or more parties, which if it contains the elements of a valid legal agreement, is enforceable by law or a binding arbitration. A contract is also an exchange of promises with specific legal remedies for breach. A breach of contract can include compensatory remedy if one of the parties within the contract defaults.

An oral agreement between two parties can constitute a legal binding contract as much as a written. The limitation is that with a written agreement, parties have material evidence to prove the terms.

Contract law is classified as a general law of obligations. The contract defines the obligations between two or more parties.

The eight key requirements for the creation of a contract are:

* Agreement (Offer and Acceptance)
* Capacity to contract
* Consideration
* Legal purpose
* Legality of form
* Intention to create legal relations
* Consent to contract
* Vitiating factors: Mistates, undue influence, misrepresentation, duress

A contract is also an offer and acceptance. One party makes an offer and the other accepts. This is also called a concurrence of wills or ad idem. There are also unilateral contracts whereupon obligations are imposed upon one party upon acceptance by performance of a condition.  With this type of contract, offer and acceptance, it does not always need to be expressed orally or in writing. It can also be considered an implied contract. An implied contract can take two forms. The first, a contract which is implied in fact. This means, the circumstances imply that parties have reached an agreement even thought they have not done so expressly. An example would be if a person goes to a doctor for a checkup and agrees to pay a fair price for the service. If that person refuses to pay, he or she has breached a contract implied in fact. If one refuses to pay after being examined, they have breached a contract implied in fact.
A contract that is implied in law is also called a quasi-contract due to it not truly being a contract but rather a means for the courts to remedy situations in which one party would be unjustly enriched we he or she not required to compensate the other.

Other contracts that are not written include verbal exchanges, which again can be either implied in fact or implied in law and are legally binding. Some jurisdictions have rules or statues that may render valid oral contracts unenforceable. This is typically the case in oral contracts involving large amounts of money or real estate. Such oral contracts violate the common law statue of frauds which state statues require certain contracts to be in writing. For example, if a person agrees to buy a car for $9,000 in a jurisdiction which requires a contract for the sale of goods over US $500 to be in writing to be enforceable.

Contracts that do not meet the requirements of common law or statutory Statutes of frauds are unenforceable but are not necessarily thereby void.

Getting a contract in writing, even though it may qualify as a verbal agreement, can reinforce both parties stance and help them stay out of courts in cases of disagreements. Most contracts should cover a few key points that include: if a contract for the purchase or sale of goods, terms involved such as time and place of delivery, time and method of payment, product description and unit price. Contracts should also outline clearly who is doing what and when, what parties are not going to do, how much is being charged and when payment is due.

You may also detail what the parties will do should something unexpected occur. For example, under what circumstances may a party cancel the contract? Who bears the risk of damage or loss during shipping? How will disputes be resolved?

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com