Billy’s Blog

The Industrial Hemp Reclassification Act Proposal

Billy's Blog, Industrial Hemp / December 31, 2013

Bill Wohlsifer drafted the two proposed industrial hemp bills and a proposed industrial hemp resolution with the intent that these drafts would find legislative sponsorship in the 2014 legislative session. The three drafts work together or each can implement new law standing alone. Please read and comment on these draft proposals. If one or more meet your approval, please ask your State Representatives and State Senators to consider filing these drafts or language of similar import in the upcoming 2014 legislative session.

This proposed draft bill defines Cannabis with a THC level of not greater than 3/10 of 1% as industrial hemp; clarifies that hemp is not marijuana; provides a definition for marijuana (yes, our statutes do not contain one); and provides an affirmative defense for growers of industrial hemp against prosecution for marijuana cultivation.
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PDF Version – The Industrial Hemp Reclassification Act

This proposed bill is an unsponsored draft prepared by William R. Wohlsifer, Esq., Region 3 Representative for the Libertarian Party of Florida. This draft has not been approved by or endorsed by any committee or party as of the date of last revision shown below.

Last revised on October 10, 2013.

William R. Wohlsifer, Esq. – William R. Wohlsifer, PA

1100 East Park Ave, Ste B – Tallahassee, FL 32301

Tel: (850) 219-8888 – Fax: (866) 829-8174

[email protected] – www.infringement-attorney.com

Chapter 2014 – ____________

House Bill No. _____________

A bill to be entitled:

THE INDUSTRIAL HEMP RECLASSIFICATION ACT

An act relating to controlled substances; amending 893.02 F.S. to create a definition for “Hemp,” amending the definition of “Cannabis,” and creating a definition for “Marijuana;” amending 893.03 F.S., the Florida Comprehensive Drug Abuse Prevention and Control Act, Standards and Schedules, to exclude hemp from the definition of Cannabis; to remove low level delta-9 Tetrahydrocannabinol from Schedule I controlled substance designation; and providing an effective date. Industrial hemp that has no more than 0.3% Tetrahydrocannabinol is considered an agricultural crop in this state and is herewith removed from its prior classification as a controlled substance under s. 893.03(1)(c).

Be It Enacted by the Legislature of the State of Florida:

CHAPTER 893 DRUG AB– USE PREVENTION AND CONTROL

Section 1. Section 893.01, Florida Statutes, is unchanged. 893.01 Short title.—This chapter shall be cited and known as the “Florida Comprehensive Drug Abuse Prevention and Control Act.”

Section 2. Section 893.011, Florida Statutes, is created to read:
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893.011 Legislative findings and intent.—

(1) The Legislature finds that although hemp is a variety of the genus Cannabis, the same plant species as marijuana, hemp is genetically different and distinguished by its use and chemical makeup. Hemp has long been cultivated for non-drug use in the production of industrial and personal care products. Some estimate that the global market for hemp consists of more than 25,000 products, including fabrics and textiles, yarns and raw or processed spun fibers, paper, carpeting, home furnishings, construction and insulation materials, auto parts, and composites.

(2) The Legislature finds that the inclusion of hemp with marijuana under the definition of Cannabis is based upon reliance on outdated norms, without any reasonable distinction between the delta-9 Tetrahydrocannabinol levels in the different species of Cannabis plants and without distinction between the psychoactive and medicinal uses of marijuana and the agricultural and industrial applications of hemp.

(3) The Legislature finds that on August 29, 2013, the United States Department of Justice issued a memorandum updating its federal marijuana enforcement policy, in response to recent state laws that have legalized the possession, production, processing, and sale of marijuana under strict state regulatory systems. In light of such updated federal policy, and after this state’s imposition of strict regulatory requirements for hemp cultivation, it is reasonable to expect a similar non-interference policy with regard to the cultivation, processing, and sale of hemp in this state, despite the categorical scheduling of hemp as an illegal drug under the federal Controlled Substances Act. (4) Reclassification of industrial hemp is expected to generate agribusiness activity that will lead to new innovations, products, businesses and jobs throughout the state. This economic impact can be accomplished using this state’s existing infrastructure without the need for new appropriations.

Section 3. Section 893.02, Florida Statutes, is amended as follows: 893.02 Definitions.—The following words and phrases as used in this chapter shall have the following meanings, unless the context otherwise requires:

(1) “Administer” means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a person or animal.

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(2) “Analog” or “chemical analog” means a structural derivative of a parent compound that is a controlled substance. (3) “Cannabis” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin with a delta-9 Tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis.

. . .

(11) “Hemp” means a variety of the Cannabis sativa plant that is primarily grown as an agricultural crop (such as seeds, leaves and fiber, and byproducts such as oil, seed cake, hurds) and is characterized by plants that are low in THC (delta-9 Tetrahydrocannabinol). THC is the primary psychoactive chemical in marijuana. Hemp is of the same plant species as marijuana, but is genetically different and distinguished by its chemical makeup. Hemp plants have a THC concentration level of not more than 0.3 percent on a dry weight basis.

. . .

(17) “Marijuana” means a pistillate hemp plant whose scientific name is Cannabis sativa. Although the plant contains hundreds of compounds, its dried leaves and flowering tops yield the pharmacologically active ingredient Tetrahydrocannabinol (THC) that can be ingested, vaporized, smoked, sprayed, applied topically, or manufactured as a component ingredient in food, drink, pill or hemp oil form, or to produce an intoxicating or physiological healing effect.

. . .

Section 4. Section 893.03, Florida Statutes, is amended to modify 893.03(1)(c)7. and 893.03(1)(c)37. as follows:

893.03 Standards and schedules.—The substances enumerated in this section are controlled by this chapter. The controlled substances listed or to be listed in Schedules I, II, III, IV, and V are included by whatever official, common, usual, chemical, or trade name designated. The provisions

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of this section shall not be construed to include within any of the schedules contained in this section any excluded drugs listed within the purview of 21 C.F.R. s. 1308.22, styled “Excluded Substances”; 21 C.F.R. s. 1308.24, styled “Exempt Chemical Preparations”; 21 C.F.R. s. 1308.32, styled “Exempted Prescription Products”; or 21 C.F.R. s. 1308.34, styled “Exempt Anabolic Steroid Products.”

(1) SCHEDULE I.—A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and in its use under medical supervision does not meet accepted safety standards. The following substances are controlled in Schedule I:

. . .

(c) Unless specifically excepted, or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following hallucinogenic substances or that contains any of their salts, isomers, and salts of isomers, if the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

. . .

7. Cannabis, except any part of plant, whether growing or not, with a delta-9 Tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

. . .

37. Tetrahydrocannabinols, except when present in any part of plant, whether growing or not, with a delta-9 Tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Section 5. This act shall take effect upon becoming a law.

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Paid political advertisement by Committee to Elect Bill Wohlsifer, 1100 East Park Ave Ste B, Tallahassee FL 32301. Approved in advance by Bill Wohlsifer.

Industrial Hemp as an Agricultural Crop Resolution Proposal

Billy's Blog, Industrial Hemp / December 31, 2013

Bill Wohlsifer drafted the two proposed industrial hemp bills and a proposed industrial hemp resolution with the intent that these drafts would find legislative sponsorship in the 2014 legislative session. The three drafts work together or each can implement new law standing alone. Please read and comment on these draft proposals. If one or more meet your approval, please ask your State Representatives and State Senators to consider filing these drafts or language of similar import in the upcoming 2014 legislative session.

This proposed draft bill creates chapter 575, a comprehensive plan to initiate industrial hemp growth in Florida, without awaiting change in the Controlled Substances Act, but with respect for federal limitations. The governing authority is assigned to the Florida Department of Agriculture and Consumer Services. The draft can made more appealing to a larger pool of voters (but significantly delay its impact) by adding a provision that delays the effective date until after hemp cultivation becomes legal under federal law. This is what several states have done. Another alternative is to draft the bill so that it only permits university testing of hemp cultivation’s viability and to forecast its economic impact. Several states have done this also.

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PDF Version – Florida Hemp Bill

This proposed bill is an unsponsored draft prepared by William R. Wohlsifer, Esq., Region 3 Representative for the Libertarian Party of Florida. This draft has not been approved by or endorsed by any committee or party as of the date of last revision shown below.

Last revised on October 10, 2013.

William R. Wohlsifer, Esq. – William R. Wohlsifer, PA

1100 East Park Ave, Ste B – Tallahassee, FL 32301

Tel: (850) 219-8888 – Fax: (866) 829-8174

[email protected] – www.infringement-attorney.com

Chapter 2014 – ____________

House Bill No. _____________

A bill to be entitled

INDUSTRIAL HEMP AS AN AGRICULTURAL CROP

An act to allow a person who holds a license issued by the Commissioner of Agriculture to grow industrial hemp for commercial purposes. Upon meeting the licensure requirements, an individual in this state may plant, grow, harvest, possess, process, or sell industrial hemp if the hemp does not contain more than 0.3% delta-9 Tetrahydrocannabinol. Industrial hemp shall be subject to testing during its growth. A criminal history record check must be completed on an applicant for licensure, but a prior criminal conviction shall not render a person ineligible for licensure. Creates license exemption for employees of the State University System of Florida that are actively involved in research and related activities and allows for license exemption for non-state university employees to facilitate market research, evaluation, and recommendations to the legislature.

Be It Enacted by the Legislature of the State of Florida:

CHAPTER 575

INDUSTRIAL HEMP AS AN AGRICULTURAL CROP

Section 1. Section 575.01, Florida Statutes, is created to read:

575.01 Legislative findings and intent.—

(1) The Legislature finds that although hemp is a variety of the genus Cannabis, the same plant species as marijuana, hemp is genetically different and distinguished by its use and chemical makeup. Hemp has long been cultivated for non-drug use in the production of industrial and CODING: Words stricken are deletions; words underlined are additions.

Page 2 of 8

Personal care products. Some estimate that the global market for hemp consists of more than 25,000 products, that will have long-term economic benefits to both the farmers who grow hemp and the persons who utilize hemp in the production of yarns and raw or processed spun fibers, twine, rope, fabrics, textiles, paper products, animal bedding, automobile parts, plastics, cosmetics, food, nutritional supplements, body care products, fuels such as biodiesel, ethanol, and butanol, building materials including plywood, concrete, composites, roofing and insulation, carpeting, home furnishings, auto parts, and consumable foods.

(2) The Legislature finds that the inclusion of hemp with marijuana under the definition of Cannabis is based upon reliance on outdated norms, without any reasonable distinction between the delta-9 Tetrahydrocannabinol levels in the different species of Cannabis plants and without distinction between the psychoactive and medicinal uses of marijuana and the agricultural and industrial applications of hemp.

(3) The Legislature finds that on August 29, 2013, the United States Department of Justice issued a memorandum updating its federal marijuana enforcement policy in response to recent state laws that have legalized the possession, production, processing, and sale of marijuana under strict state regulatory systems. In light of such updated federal policy and this state’s ability to impose strict regulatory requirements for hemp cultivation, it is reasonable to expect a similar non-interference policy with regard to the cultivation, processing, and sale of hemp in this state, despite the categorical scheduling of hemp as an illegal drug under the federal Controlled Substances Act.

(4) The economic impact of this act is expected to generate agribusiness activity that will lead to new innovations, products, businesses and jobs throughout the state. This economic impact can be accomplished using this state’s existing infrastructure without the need for new appropriations.

Section 2. Section 575.02, Florida Statutes, is created to read:

575.02 Definitions.—The following words and phrases as used in this chapter shall have the following meanings, unless the context otherwise requires:

(1) “Agribusiness” means nonconsumable products used in the producing, processing, distribution, and marketing of consumable farm products, including, but not limited to, machinery, equipment, and supplies. CODING: Words stricken are deletions; words underlined are additions. Page 3 of 8

(2) “Agricultural crop” means plants useful to humans, including to a variable extent the preparation of products made from such plants.

(3) “Cannabis” means all parts of any plant of the genus Cannabis sativa, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin with a delta-9 Tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis.

(4) “Commissioner” means the Commissioner of Agriculture.

(5) “Department” means the Department of Agriculture and Consumer Services.

(6) “Hemp” means a variety of the Cannabis sativa plant that is primarily grown as an agricultural crop (such as seeds and fiber, and byproducts such as oil, seed cake, hurds) and is characterized by plants that are low in THC (delta-9 Tetrahydrocannabinol). THC is the primary psychoactive chemical in marijuana. Hemp is of the same plant species as marijuana, but is genetically different and distinguished by its chemical makeup. Hemp plants have a THC concentration level of not more than 0.3 % on a dry weight basis.

(7) “Industrial hemp” means all parts and varieties of a cannabis plant containing no greater than 0.3% delta-9 Tetrahydrocannabinol on a dry weight basis that is grown in this state for commercial purposes.

(8) “Marijuana” means a pistillate hemp plant whose scientific name is Cannabis sativa. Although the plant contains hundreds of compounds, its dried leaves and flowering tops yield the pharmacologically active ingredient delta-9 Tetrahydrocannabinol (THC) that can be ingested, vaporized, smoked, sprayed, applied topically, or manufactured as a component ingredient in food, drink, pill or hemp oil form, to produce an intoxicating or physiological healing effect.

Section 3. Section 575.03, Florida Statutes, is created to read:

575.03 Industrial hemp growing permitted.—Notwithstanding any other provision of law, a person may plant, grow, harvest, possess, process, or sell industrial hemp for commercial purposes if that person holds a license issued pursuant to s. 575.04.

Section 4. Section 575.04, Florida Statutes, is created to read:

575.04 Application for license.— CODING: Words stricken are deletions; words underlined are additions.

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(1) A person desiring to grow industrial hemp for commercial purposes shall apply to the commissioner for a license on a form prescribed by the commissioner.

(2) Each application for a license required by the provisions of this chapter shall be filed in writing with the department.

(3) The application for a license must include the legal description of the land area to be used for the production of industrial hemp.

(4) Each application shall require, as a minimum, the full name, date of birth, place of birth, physical description of the applicant, residence address and telephone number, and business address and telephone number of the applicant. Each application shall be accompanied by an accurate and current photograph of the applicant and a complete set of fingerprints of the applicant taken by an authorized law enforcement officer; however, a set of fingerprints shall not be required if the applicant has possessed a valid Florida license under this chapter during the prior license year if such Florida license has not lapsed or been suspended or revoked. If fingerprints are required, the set of fingerprints shall be submitted to the department for state processing. Each application shall be in such form as to provide the data and other information set forth therein, shall be sworn to by the applicant or, if the applicant is a corporation, a limited liability company or a partnership, shall be sworn to by each director, member or partner. The directors, members or partners applying on behalf of a same shall provide all their personal data and other information required.

(5) The department may require an applicant to furnish such other information or data not required by this section if the information or data is deemed necessary by the department.

(6) It is unlawful for any person to knowingly withhold information or present to the department any false, fictitious, or misrepresented application, identification, document, information, or data intended to or likely to deceive the department in connection with a license.

(7) Nothing in this section should be construed to exclude electronic filing.

Section 5. Section 575.05, Florida Statutes, is created to read:

575.05 Industrial hemp licensing exemptions.—

(1) The provisions of this section do not apply to employees of the State University System of Florida that are actively involved in research and related activities. CODING: Words stricken are deletions; words underlined are additions.

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(2) The department may, in its own discretion, issue letters of exemption outside of the State University System of Florida for the lawful growth, cultivation, and processing of industrial hemp under this section to facilitate market research, evaluation, and recommendations to the legislature for the purpose of furthering the intent of this chapter.

(3) The department may adopt reasonable rules regulating persons engaged in the lawful teaching, researching, or testing of industrial hemp and hemp products.

Section 6. Section 575.06, Florida Statutes, is created to read:

575.06 License to be displayed.—

(1) Each person to whom a license is issued under this chapter shall keep such license conspicuously displayed in his or her office, place of business, or place of employment and, whenever required, shall exhibit such license to any member or authorized representative of the department.

(2) A licensed industrial hemp agricultural business may use the words or terms, “hemp,” “industrial hemp,” or “agricultural hemp” or any combination thereof in connection with the licensee’s name or place of business to denote licensure under this chapter.

(3) Licenses issued by the department shall be valid beginning on October 1 of the year for which they are issued and shall expire on the following September 30.

(4) Each licensee shall renew his, her or its license annually, prior to its expiration date. If a renewal application and fee are not filed by the expiration date of any year, the license may be reinstated only upon payment of a delinquent fee that shall not exceed $750, plus the required renewal fees, within 30 days after the date of expiration. If any person who is subject to the requirements of this chapter fails to comply with the renewal, the department shall have the authority to seize the expired licensee’s raw or processed industrial hemp and dispose of same in any manner deemed appropriate by the department as of November 1 of the year the license expires. Any funds collected from the disposal of raw or processed industrial hemp under this section shall be deposited in the Florida Agricultural Promotional Campaign Trust Fund. Nothing in this section shall be deemed to prevent an expired licensee from re-applying for a license. CODING: Words stricken are deletions; words underlined are additions.

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(5) If the department fails to issue a response to a valid license application submitted pursuant to this chapter within 60 days of its submission, the license shall be deemed issued and a copy of the license application shall be deemed as valid as a department issued license.

Section 7. Section 575.07, Florida Statutes, is created to read:

575.07 Rulemaking; fees.—

(1) No later than 90 days after the effective date of this act, the department shall promulgate rules that strictly regulate the industrial hemp industry in this state, including but are not limited to rules that govern:

(a) Testing of hemp crop by the department during growth for delta-9-Tetrahydrocannabinol levels.

(b) Supervision of the growth and harvest of the industrial hemp.

(c) Requirement that all licensees shall file with the department documentation indicating that the seeds planted by licensee were of a type and variety of hemp certified to have a concentration of no more than 0.3% delta-9-Tetrahydrocannabinol.

(d) Requirement that all licensees shall file with the department copies of any contract to grow industrial hemp.

(e) Requirement that all licensees shall maintain records of the sale or distribution of industrial hemp grown by the licensee and the dates, names of the persons to whom the industrial hemp was sold or distributed.

(f) Requirement that all licensees shall comply with all reporting requirements consistent with this chapter.

(g) Any other reasonable rules or procedures that demonstrates to the United States Department of Justice this state’s ability to self-regulate hemp cultivation in this state.

(2) To provide sufficient funds to pay costs associated the department’s monitoring and testing of industrial hemp growth, the department shall assess fees that include but are not limited to:

(a) An annual per applicant license fee to grow industrial hemp shall be set by the department, subject to change annually; the license fee for the first effective year of this act shall be $1,100. CODING: Words stricken are deletions; words underlined are additions.

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(b) An annual per applicant fee of $25 per acre, in addition to the annual license fee. The minimum annual acreage fee assessed shall be $150 per applicant, subject to change annually by the department.

(c) Fees that are commensurate with the costs of the department’s activities in licensing, testing, and supervising industrial hemp production.

Section 8. Section 575.08, Florida Statutes, is created to read:

575.08 Disposition of fees.—Other than the funds collected from the disposal of raw or processed industrial hemp under section 6, any fees collected pursuant to this chapter shall be applied first toward the cost of administering this act.

Section 9. Section 575.09, Florida Statutes, is created to read:

575.09 Affirmative defense for possession or cultivation of marijuana.—

(1) It is an affirmative defense to a prosecution for the possession or cultivation of marijuana under s. 893.13(1)(a)1, s. 893.13(1)(a)2, s. 893.13(1)(c)2, s. 893.13(1)(e)2 or s. 893.13(6)(a) and an affirmative defense to a prosecution for the possession of equipment that meets the definition provided in s. 893.145(7)(a)1, that:

(a) The defendant was growing industrial hemp pursuant to this chapter;

(b) The defendant had valid applicable controlled substances registrations from the United States Department of Justice, Drug Enforcement Administration; or

(c) The defendant fully complied with all of the conditions of controlled substances registration.

(2) This section is not an affirmative defense to a charge of criminal sale or distribution of marijuana.

Section 10. Section 575.10, Florida Statutes, is created to read:

575.10 Severability.—If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or application of this chapter, which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. CODING: Words stricken are deletions; words underlined are additions.

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Section 11. Section 575.11, Florida Statutes, is created to read:

575.11 Request for federal change or waiver.—

(1) The department shall send, if approved, a copy of this assembly’s Resolution Concerning the Recognition of Industrial Hemp as an Agricultural Commodity, along with a request to the Florida congressional delegation and to the director of the United States Department of Justice, Drug Enforcement Administration, for a change in federal law or a waiver that will allow persons in this state to grow industrial hemp as an agricultural crop for commercial purposes without federal preemption.

(2) Nothing in this section, nor the categorical scheduling of hemp as an illegal drug under the Controlled Substances Act, 21 U.S.C. § 801, shall be deemed to prohibit or prevent this state from implementing the provisions of this chapter.

Section 12. This act shall take effect upon becoming a law.

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Paid political advertisement by Committee to Elect Bill Wohlsifer, 1100 East Park Ave Ste B, Tallahassee FL 32301. Approved in advance by Bill Wohlsifer.

Industrial Hemp Production Bill Resolution to Congress

Billy's Blog, Industrial Hemp / December 31, 2013

Bill Wohlsifer drafted the two proposed industrial hemp bills and a proposed industrial hemp resolution with the intent that these drafts would find legislative sponsorship in the 2014 legislative session. The three drafts work together or each can implement new law standing alone. Please read and comment on these draft proposals. If one or more meet your approval, please ask your State Representatives and State Senators to consider filing these drafts or language of similar import in the upcoming 2014 legislative session.

This proposed draft is a Resolution asking the U.S. Dept. of Justice, Drug Enforcement Agency, to remove hemp containing low levels of THC from its Controlled Substances List, or grant Florida a waiver for industrial hemp growth to allow our state to self-regulate industrial hemp agribusiness under strict state regulatory guidelines.

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PDF Version – Recognition of Industrial Hemp

This proposed bill is an unsponsored draft prepared by William R. Wohlsifer, Esq., Region 3 Representative for the Libertarian Party of Florida. This draft has not been approved by or endorsed by any committee or party as of the date of last revision shown below.

Last revised on October 10, 2013.
William R. Wohlsifer, Esq. – William R. Wohlsifer, PA
1100 East Park Ave, Ste B – Tallahassee, FL 32301
Tel: (850) 219-8888 – Fax: (866) 829-8174
[email protected] – www.infringement-attorney.com

RESOLUTION CONCERNING THE RECOGNITION OF INDUSTRIAL HEMP AS A VALUABLE AGRICULTURAL COMMODITY
A RESOLUTION CONCERNING THE RECOGNITION OF INDUSTRIAL HEMP AS A VALUABLE AGRICULTURAL COMMODITY, AND, IN CONNECTION THEREWITH, URGING THE U.S. DEPARTMENT OF JUSTICE AND THE U.S. CONGRESS TO CLARIFY THE FEDERAL DEFINITION OF INDUSTRIAL HEMP, FACILITATE DOMESTIC PRODUCTION OF INDUSTRIAL HEMP, AND REMOVE BARRIERS TO STATE REGULATION OF THE PRODUCTION OF INDUSTRIAL HEMP FOR COMMERCIAL PURPOSES.

WHEREAS, industrial hemp refers to varieties of Cannabis that contain less than 0.3% delta-9 Tetrahydrocannabinol (THC), genetically distinct from drug varieties of Cannabis (marijuana), cultivated exclusively for fiber, stalk, oil, and seed; and

WHEREAS, Industrial hemp should not be confused with varieties of Cannabis that contain high concentrations of THC and that are commonly referred to as marijuana; and

WHEREAS, Congress never intended to prohibit the production of industrial hemp when restricting the production, possession, and use of marijuana; and

WHEREAS, the legislative history of the “Marijuana Tax Act of 1937,” in which the current federal definition of marijuana first appeared, indicates that the act posed no threat to industrial hemp farmers and manufacturers; and

WHEREAS, The United States Court of Appeals for the Ninth Circuit ruled in Hemp Industries v. Drug Enforcement Administration, 357 F.3d 1012, 9th Cir. 2004, that the Controlled Substances Act, 21 U.S.C. § 801, enacted in 1970, 21 U.S.C. sec. 812(b), explicitly excludes non-psychoactive industrial hemp from the definition of marijuana, and the federal government declined to appeal that decision; and

CODING: Words stricken are deletions; words underlined are additions.

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WHEREAS, the Controlled Substances Act, enacted in 1970, specifies the criteria for classifying a substance as a Schedule I drug, which include a high potential for abuse, no accepted medical use, and a lack of accepted safety for use, none of which apply to industrial hemp; and

WHEREAS, section 2 of article 28 of the United Nations’ Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol, states, “This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fiber and seed) or horticultural purposes”; and

WHEREAS, United States Attorney General Eric Holder has stated, with regard to medical marijuana, that the Drug Enforcement Administration (DEA) does not have the authority to interfere with growers in states where medical marijuana is legal, as long as they comply with state law; and

WHEREAS, industrial hemp is commercially produced in more than 30 nations, including Canada, Great Britain, France, Germany, Romania, Australia, and China; and

WHEREAS, at least ten states (California, Colorado, Kentucky, Maine, Montana, North Dakota, Oregon, Vermont, Washington, and West Virginia) have redefined hemp and removed barriers to its production; three states (Hawaii, Kentucky, and Maryland) have passed bills creating commissions or authorizing research on hemp cultivation and use; nine states (California, Colorado, Illinois, Montana, New Hampshire, New Mexico, North Dakota, Vermont, and Virginia) have passed hemp resolutions; and eight states (Arkansas, Illinois, Maine, Minnesota, New Mexico, North Carolina, North Dakota, and Vermont) have passed hemp study bills; and

WHEREAS, industrial hemp is a versatile and valuable agricultural commodity. Some estimate that the global market for hemp consists of more than 25,000 products, that will have long-term economic benefits to both the farmers who grow hemp and the persons who utilize hemp in the production of yarns and raw or processed spun fibers, twine, rope, fabrics, textiles, paper products, animal bedding, automobile parts, plastics, cosmetics, food, nutritional supplements, body care products, fuels such as biodiesel, ethanol, and butanol, building materials including plywood, concrete, composites, roofing and insulation, carpeting, home furnishings, auto parts, and consumable foods; and

WHEREAS, the production of industrial hemp would provide new jobs and promote new industries in Florida, increase support to agriculture and agricultural communities, and increase

CODING: Words stricken are deletions; words underlined are additions.

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the sustainability of various manufacturers and producers, and improve nutritional content in foods and feed; and
WHEREAS, industrial hemp is a high-value, low-input crop that is not genetically modified, requires no pesticides, can be dry land-farmed, and uses less fertilizer than wheat and corn; and

WHEREAS, industrial hemp lessens environmental impact by providing nitrogen to the soil, sequestering carbon, and growing without the use of toxic chemicals; and

WHEREAS, industrial hemp provides a practical transition to sustainable agricultural practices and the conservation of precious groundwater resources in this state,

NOW THEREFORE,
Be It Resolved by the House of Representatives of the State of Florida that this legislative body compels the United States Congress to:

(1) Recognize industrial hemp as a valuable agricultural commodity;
(2) Define industrial hemp in federal law as a non-psychoactive and genetically identifiable species of the genus Cannabis;
(3) Acknowledge that allowing and encouraging farmers to produce industrial hemp will improve the balance of trade by promoting domestic sources of industrial hemp and lessen this state’s demand on foreign imports thereto; and
(4) Assist U.S. producers by removing barriers to state regulation of the commercial production of industrial hemp.
Be It Further Resolved: That copies of this Resolution be sent to President Barack Obama; Tom Vilsack, U.S. Secretary of Agriculture; Senator Debbie Stabenow, Chair of the U.S. Senate Committee on Agriculture, Nutrition and Forestry; Representative Frank D. Lucas, Chair of the U.S. House Committee on Agriculture; and to each member of Florida’s Congressional Delegation

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Paid political advertisement by Committee to Elect Bill Wohlsifer, 1100 East Park Ave Ste B, Tallahassee FL 32301. Approved in advance by Bill Wohlsifer.

Real ID and Federal Overreach

Billy's Blog, General Commentary, Immigration Reform, Press Coverage / December 30, 2013

In 2005 the Real ID Act, also known as H.R. 1268, was passed. This law places stringent requirements on the states to issue drivers licenses and state ID cards in a specific format, and requiring specific types of documentation to demonstrate a person’s identity.  Additionally, Real ID requires that all existing ID cards and licenses be compliant by December 1, 2014 for persons born after December 1, 1964, by December 1, 2017 for persons born before December 1, 1964, and that all the basic information from these licenses and ID cards be copied to a “national database”.  The national database could be accessed by the Department of Homeland Security (DHS) and the Transportation Safety Administration (TSA).

The Real ID Act was prompted by a recommendation by the 9/11 Commission and the DHS to help combat “terrorism” by having applicants “prove” that they were U.S. citizens. The theory goes, that by having applicants supply a birth certificate, social security card, photo ID, and additional proof of legal U.S. citizenship (if not already proven by the previously mentioned documents), the Real ID card  confirms the identity of its holder and that the cardholder is, therefore, not a known terrorist. Non-compliant cards will bar holders from being able to fly on commercial flights, to gain security clearances, or to enter certain buildings.

The requirement of Real ID is essentially an infringement on state and individual rights. Driving is considered a privilege granted by the states, obtained through qualification for a driver license. In order to demonstrate competency to drive in Florida, a previously unlicensed applicant must pass a 4-hour drug and alcohol traffic awareness course, a DMV road signs & rules exam, and must perform basic driving tasks on a road test. Through reciprocity, our Florida Driver Licenses are recognized in other states. A license was never intended to be used as a passport or as a means to secure top secret clearance. The only function a Driver License should serve is to demonstrate competency to operate a motor vehicle and to help locate a driver who may be liable for personal injury or property damage caused while driving. The Real ID Act takes advantage of people’s desire to drive, infringes on their privacy, and places an unfunded financial burden on the state, which is then passed along to the licensee.

The Real ID privacy concerns arise out of the mandate for the creation of a national database that could be readily accessed by the TSA and DHS. A national database could expose one’s information to additional tracking and scrutiny without the necessity of a showing of probable cause.  Additionally, the documentation requirement would affect many immigrants with temporary work visas or students who may not have a social security number. Without the requisite social security card, persons would not be able to drive by car in order to take part in gainful employment or to obtain formal education.  As with the concealed carry laws, here the federal government grants the “privilege” (to drive) in exchange for the surrender of the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and therewith, infringes upon our Fourth & Tenth Amendment rights. It is interesting that some political factions accuse other political factions of voter discrimination in requiring a voter to show minimal forms of photo ID, but have not objected to the huge burden of proof placed upon Floridians simply to obtain a Florida Driver License.

By Bill Wohlsifer

Sources:

Florida Department of Motor Vehicles (December 28, 2013). Florida Driver License.

U.S. Congress (2005). H.R. 1268 Real ID Act – Title II. 

Lauren McClure (May 22, 2013). The Real ID Act: Are You Ready for a National ID?

Anne M. Gannon Constitutional Tax Collector (2013). About Real ID.

U.S. Department of Homeland Security (2013). Secure Driver’s Licenses.

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Pam Bondi Disregards U.S. Marijuana Patent Showing Medicinal Benefits

Billy's Blog, General Commentary, Medical Marijuana, Press Coverage / December 24, 2013

How can any logical person read the claims made in U.S. Patent 6630507 and not see the hypocrisy of the federal government’s prohibition against medicinal use, when the U.S. itself attests to its efficiency to treat many known diseases?

The U.S. owns the patent to medical marijuana. They (we) obtained the patent in 2003, when the U.S. DHSS government found “cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases such as; ischemia, age-related, inflammatory and autoimmune. The cannabinoids are found to have particular applications as Neuro-Protectants, for example in limiting neurological damage following ischemic insults, such as stroke and traumatic injury. It has also had an impact in the treatment of neurodegenerative diseases, such as Alzheimer’s disease, Parkinson’s disease, Dementia, and Human Immunodeficiency Virus (HIV) and AIDS. Non-psychoactive cannabinoids, such as cannabidoil (CBD), are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention.” Paraphrased from the text of the Abstract of the US Patent, Please see for yourself at: USTPO

Marijuana is listed as a Schedule I (the most restrictive) drug under section 893.03(1), Florida Statutes (2013). A drug is classified for Schedule I of Florida’s controlled substance list if scientific evidence shows that the drug: 1) has a high potential for abuse; 2) has no currently accepted medical use in treatment in the United States; and 3) its use under medical supervision does not meet accepted safety standards.

Section 893.0355(2), Florida Statutes, delegates authority to the Florida Attorney General “to adopt rules rescheduling specified substances to a less controlled schedule, or deleting specified substances from a schedule . . . .” On December 12, 2012,

Florida Attorney General Pam Bondi, responding to petitions received from the Cannabis Action Network (CAN), flatly refused to reschedule marijuana or to even consider the proposal. If I am elected to the Office of Florida Attorney General, I will use the power vested in that office to remove marijuana for medicinal purposes from Schedule I. I tried to do this when I drafted the Cathy Jordan Medical Cannabis Act, which the Republicans buried in committee. Elect Bill Wohlsifer for Attorney General, and I will get it done, without the need to amend the constitution or lobby the legislature. Now ask yourselves, how could Pam Bondi read U.S. Patent 6630507 and not find sufficient support in favor of rescheduling?

By Bill Wohlsifer

Sources:

United States Patent and Trademark Office (October 7,2003). uspto.gov.

Florida Legislature (December 24, 2013). leg.state.fl.us.

2012 Florida Statutes. Flsenate.gov.

Jodi James (December 12, 2012). Florida’s Attorney General Responds to FLCAN.

Florida House of Representatives (2013). HB 1139.

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“Certifying” Documents via Third-party Software: Binding on the Court?

Billy's Blog, BW's Journal Publications / December 24, 2013

William R. Wohlsifer, and Tyler L. Thomas (August 27, 2013)
The Florida Bar Journal – September/October, 2013 Vol 87, No. 8. 

“Does the use of third-party software to certify documents or signed contracts outweigh the time and costs allocated to the process?” is a common query from corporate clients. As an attorney, a more pertinent question in need of answering would be: “Is the third-party software certification process necessary in order to meet today’s evidentiary standards regarding electronic copies of documents as business records?” The specific focus of this article is the admissibility into evidence of the conversion of original paper documents and contracts to digital image files, then back to paper form for use in court. Although digital image copies are widely recognized at federal and state levels to be admissible, in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), the court identified a “growing recognition that more care is required to authenticate . . . electronic records than traditional ‘hard copy’ records.”1 Determining the answers to these questions requires an examination of federal and state laws and court precedence in place regarding use of digital image copies as evidence.

Uniform Photographic Copies of Business and Public Records as Evidence Act
One of the first federal laws to recognize the evidentiary issue of photographic copies was the Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA)2 enacted in 1949. The UPA authorizes the destruction of original paper records that have been accurately reproduced.3 Codified in Title 28, Ch. 115, U.S.C. §1732, it provides:

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence.4

All original paper copies and digital copies of documents and contracts or other documents that are responsive to a filed or reasonably foreseeable lawsuit should not be destroyed, even if such destruction is part of an organization’s established records retention policy as the court stated in In re the Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997).5

The Lorraine Analysis of Fed. R. Evid. 901 and 902
While documents can be destroyed once they are copied, except for the circumstances enumerated above, the electronic copies must still meet evidentiary standards in compliance with state and federal rules of evidence. The Lorraine court took on the challenge of analyzing the evidentiary rules and case law that control the admissibility of electronic evidence.6 The court found that Fed. R. Evid. 901(a) requires that the electronically stored information be shown to be authentic by showing that it is what the party claims it to be — not a particularly difficult obstacle to overcome.7 However, the court noted that “the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.”8

The Lorraine court further found that Fed. R. Evid. 901(b) provides examples of how authentication may be accomplished.9 In particular, Rule 901(b)(4) provides: “Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”10 The third-party software certification process does not necessarily contribute to satisfying these examples. When discussing this particular subsection, the court in Lorraine noted:

This underscores a point that counsel often overlook. A party that seeks to introduce its own electronic records may have just as much difficulty authenticating them as one that attempts to introduce the electronic records of an adversary. Because it is so common for multiple versions of electronic documents to exist, it sometimes is difficult to establish that the version that is offered into evidence is the “final” or legally operative version. This can plague a party seeking to introduce a favorable version of its own electronic records, when the adverse party objects that it is not the legally operative version, given the production in discovery of multiple versions.11

It is reasonable to expect the time-stamp feature of third-party software certification to assist a proffering party when a witness (the business records custodian) is called upon to proffer a document as indeed, the “‘final’ or legally operative version.”12 Although the certification may add to the business records foundation, inclining the court to admit the proffered evidence, it is not dispositive on the ability to overcome objections of the opposing party and your client should be advised as such. Courts may eventually expressly recognize third-party software as a self-authenticating means or at least deem it a rebuttable presumption, but they do not uniformly do so at this time.

The Lorraine court also discussed the issues surrounding Fed. R. Evid. 902 and its 12 methods by which documents or contracts may be authenticated without extrinsic evidence (self-authentication).13 Rule 902(7) provides that exhibits may be self-authenticated by “[i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.”14 This method reflects the mandates of Rule 901(b)(4), but with more specificity. The court also evaluated Rule 902(11) and found it to be “extremely useful because it affords a means of authenticating business records under Rule 803(6) . . . without the need for a witness to testify in person at trial.”15 Rule 902(11) provides:

(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.16

According to the Lorraine court, the rule “was intended to set forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness.”17 As convenient as this may sound, some courts take a more demanding approach for authentication and still require a witness.


IN RE VEE VINHNEE: THE STRICT STANDARD

Currently, “there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed” and “more courts have tended towards the lenient rather than the demanding approach.”18 Since for the most part you cannot pick and choose your court, the prudent records custodian must balance the cost of preparation for the strictest court against the value of full and complete preparation. In one case in particular, In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005), the court established the more stringent approach:

The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created . . . ; Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.19

In order to meet the stricter standard for authenticating electronic business records, the court adopted an 11-step foundation proposed by Professor Edward Imwinkelried:

1) The business uses a computer.

2) The computer is reliable.

3) The business has developed a procedure for inserting data into the computer.

4) The procedure has built-in safeguards to ensure accuracy and identify errors.

5) The business keeps the computer in a good state of repair.

6) The witness had the computer readout certain data.

7) The witness used the proper procedures to obtain the readout.

8) The computer was in working order at the time the witness obtained the readout.

9) The witness recognizes the exhibit as the readout.

10) The witness explains how he or she recognizes the readout.

11) If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.20

As can be seen, to meet this strict standard, counsel should advise his or her client to implement a number of safeguards to preserve the latter use of purposely destroyed hard copy evidence. The third-party software certification process provides an added layer of proof when establishing the foundation for admissibility in court. The Lorraine court believes that, “[t]he methods of authentication most likely to be appropriate for computerized records are [Federal Rules of Evidence] 901(b)(1) (witness with personal knowledge); 901(b)(3) (expert testimony), 901(b)(4) (distinctive characteristics); and 901(b)(9) (system or process capable of producing a reliable result).”21 However, it should be noted that the method of authentication is somewhat less stringent for the governmental client.

Florida Law
F.S. §92.29 (2012) provides statutory admission of electronically reproduced documents for government entities.

Photographic or electronic copies. — Photographic reproductions or reproductions through electronic recordkeeping systems made by any federal, state, county, or municipal governmental board, department or agency, in the regular course of business, of any original record, document, paper or instrument in writing or in an electronic recordkeeping system, which is, or may be, required or authorized to be made, filed, or recorded with that board, department or agency shall in all cases and in all courts and places be admitted and received as evidence with a like force and effect as the original would be, whether the original record, document, paper, or instrument in writing or in an electronic recordkeeping system is in existence or not.

Private sector litigants in Florida do not enjoy the benefit of this bright-line rule. The evidentiary standard for digital image copies of documents and signed contracts when introduced by a private litigant remains reliant upon the business records foundation and the best evidence rule.22 To this end, Florida, like most states, has adopted uniform federal acts, such as the UPA. F.S. §90.951(3) provides: “If data are stored in a computer or similar device, any printout or other output readable by sight and shown to reflect the data accurately is an ‘original.'”23 Clearly, this language provides that digital images can satisfy the best evidence rule. “[A] memorandum, report, record or data compilation, in any form, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity” may be admitted into evidence under the best evidence rule.24 The court in Jackson v. State, 738 So. 2d 382 (Fla. 4th DCA 1999), held:

In order to be admissible, a business record pursuant to section 90.803(6)(a) must be shown to have been: 1) [m]ade at or near the time of the event; 2) [b]y or from information transmitted by a person with knowledge; 3) [k]ept in the course of a regularly conducted business activity; and 4) [t]hat it was the regular practice of that business to make such a record.25

It should be emphasized that the witness or records custodian does not need to have personal knowledge of the contents of the record being proffered, but rather personal knowledge of the business’ record-keeping practice.26 As Florida evidence scholar Charles W. Ehrhardt opines, “[a]lthough some require stricter foundational standards for electronic records focusing on the reliability of the system, the better view is that demonstrating each of the elements traditionally required for the [business records] exception is sufficient to demonstrate the underlying reliability of the record.”27

The Uniform Electronic Transaction Act (UETA) is adopted by Florida in F.S. §668.50. This statute applies to transactions in which each party has agreed by some means to conduct electronic transactions.28 Notably, this statute states that “evidence of a record or signature may not be excluded solely because the record or signature is in electronic form.”29 Therefore, it may be beneficial for your client to include a clause in its multi-party documents that specifically provides for application of the UETA. For example, the following suggestive language could be inserted to show the parties’ intent to bring the anticipated electronic version of the document into the purview of the UETA:

Party A hereby acknowledges that it is an ordinary and regular record-keeping business practice of Party A to ultimately scan or otherwise convert this written Agreement into digital form for the purpose of electronic storage and thereupon destroy the original. Party B hereby agrees that any subsequent reproduction of Party A’s electronically stored version of this written Agreement that may later be produced by Party A in the ordinary course of its record-keeping procedure, shall have the same full force and effect as the destroyed original, for all purposes, including admissibility into evidence in all jurisdictions and tribunals.

Again, the proffering party must still satisfy the business records foundation in order to overcome the best evidence rule. However, including a clause allowing for coverage under the UETA may stifle an objection to the electronic form of the document.

CONCLUSION
The admissibility of electronic copies of documents comes down to a showing of the trustworthiness and accuracy of the reproduction of the original. While most courts now tend toward a more lenient rather than a demanding approach to authenticate electronic records, it appears better to err on the side of caution until the evolution is complete. Certifying documents and signed contracts via third-party software adds to the predicate required under F.S. §90.803(6)(a) to lay down the foundation required to overcome an objection to admissibility and aid in establishing the trustworthiness and accuracy of the digital reproduction. In some instances, third-party software certification may alleviate the need for the in-person appearance of the proffering party’s records custodian, but in the opinion of the author, most times it will not. Third-party software certification (including time-stamping) does not presently rise to self-authentication and is not binding on the court.

Based on the understanding that the time and costs associated with a third-party software certification process are considerable, your client should be advised on balancing the beneficial return on such costs. Because third-party software certification only adds to the business records foundation, it is not uniquely probative. Your client’s sound records retention policy may add to the admissibility of electronically stored records in the same manner that evidence is traditionally proffered, i.e., by laying down a foundation through the testimony of a witness with personal knowledge of the document’s history. Indeed, even the original document, when available, is put to the same scrutiny, but for statutorily self-authenticated evidence.

The underlying challenge to the authenticity of an electronically stored document is to overcome the possibility that it could have been altered sometime during the interval between when it was digitally reproduced and the time of trial. Although the same concerns as to alteration can be raised in an objection to the admissibility of original hard copies, the North Carolina Supreme Court in State v. Springer, 197 S.E.2d 530 (1973), aptly noted that “[t]he rules of evidence governing the admissibility of computerized business records should be consistent with the reality of current business methods and should be adjusted to accommodate the techniques of a modern business world, with adequate safeguards to insure reliability.”30 Third-party software certification provides such a safeguard by facially comparing and time-stamping the document, professing to certify that it is the same as the original, and by the custodian of records e-signing it; but is not by itself probative of the accuracy of the reproduction.

“Does the cost outweigh the benefit?” For government attorneys the answer is a simple, “yes,” because of the reduced burden made available under F.S. §92.29 (2012). For private litigants this is a business decision for the client to make, taking into account the advice of counsel with knowledge of these evolving trends.

1Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 557 (D. Md. 2007).

2 28 U.S.C. §1732 (2012), available at http://www.law.cornell.edu/uscode/text/28/1732.

3 Id.

4 Id. (emphasis added).

5 See, e.g., In re the Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 615 (D.N.J. 1997).

6 Lorraine, 241 F.R.D. at 534.

7 Id. at 541-42 (citing Fed. R. Evid. 901(a)).

8 Id. at 542.

9 Id. at 544 (citing Fed. R. Evid. 901(b)).

10 Fed. R. Evid. 901(b)(4).

11 Lorraine, 241 F.R.D. at 547.

12 Id.

13 Id. at 549-52 (citing Fed. R. Evid. 902).

14 Fed. R. Evid. 902(7).

15 Lorraine, 241 F.R.D. at 552 (citing Fed. R. Evid. 902(11)).

16 Fed. R. Evid. 902(11).

17 Lorraine, 241 F.R.D. at 552.

18 Id. at 558.

19 In re Vee Vinhnee, 336 B.R. 437, 444 (B.A.P. 9th Cir. 2005) (this analysis is relevant, but more applicable to internal business records, such as invoices, ledgers, etc., rather than mutually executed contracts).

20 Id. at 446-47 (citing Edward J. Imwinkelried, Objections at Trial §4.03(2)).

21 Lorraine, 241 F.R.D. at 559.

22 See Fla. Stat. §90.952.

23 Fla. Stat. §90.951(3).

24 Fla. Stat. §90.803(6)(a).

25 Jackson v. State, 738 So. 2d 382, 386 (Fla. 4th DCA 1999).

26 See Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1122 (Fla. 2d DCA 1988).

27 Charles W. Ehrhardt, West’s Florida Practice: Florida Evidence §803.6b (2013).

28 See Fla. Stat. §668.50 (2012).

29 Fla. Stat. §668.50(13).

30 State v. Springer, 197 S.E.2d 530, 536 (1973).

 

By William R. Wohlsifer and Tyler L. Thomas

William R. Wohlsifer is a commercial litigation attorney with the law firm of William R. Wohlsifer, P.A. He practices in both Florida and Washington, D.C., with an emphasis on copyright and trademark infringement. Wohlsifer received his B.A. in political science from The University of Central Florida and his J.D., cum laude, from The St. Thomas University School of Law.

Tyler L. Thomas is a third-year student at the Florida State University College of Law and a clerk at William R. Wohlsifer, P.A. His studies focus on commercial litigation, real estate law, intellectual property, and corporate law. A graduate of the University of Florida, he is a member of both the Journal of Land Use & Environmental Law and the Business Review.

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Proving Publication in Cyberspace

Billy's Blog, BW's Journal Publications / December 24, 2013

Proving Publication in Cyberspace
E-Commerce Law, Aspen Law and Business, New York, NY (Oct. 2001); Republished in Business Law Quarterly, The Florida Bar Association, Tallahassee, FL (Nov. 2002).

PROVING PUBLICATION IN CYBERSPACE

Increasingly, content published in digital format over the Internet creates legal rights and relationships. Internet content is forming the basis of numerous legal disputes, ranging from Internet fraud and defamation to simple breach of contract where a contract and its terms have been established through electronic commerce. Oddly enough, the actual electronic communication is the only true form of original evidence of such content or communication. When digital data is ultimately reduced to a tangible physical form, issues arise regarding its admissibility and its reliability.

The essential problem with proving digital content is that what you see or rely on today may not exist tomorrow. Internet publications are not tangible and, therefore, defy traditional means of authentication.

THE PROBLEM WITH INTERNET PUBLICATION

Although the growth and use of digital content has certainly exploded, this information is intangible, ephemeral and constantly in flux. It can be frequently changed, updated, or deleted by its authors. In addition, it can be downloaded by a reader and altered on the reader’s computer either by changing the content or by manipulating the time stamp indicating the date of the download. However, authentication of such evidence can be accomplished by obtaining the evidence through neutral disinterested third-party authentication services. Such diligence will enhance the evidence’s probative value and will contribute toward maintaining social justice in alignment with technological advancement.

The magnitude of content published and disseminated daily over the Internet is enormous, and it continues to grow. The number of pages on the World Wide Web in 2000 was estimated to be in excess of 1 billion. In the United States, e-commerce was estimated to exceed $235 billion in 2000 and $830 billion by 2005.2 America Online subscribers alone spent $6.7 billion while shopping on the Internet during the first quarter of 2001.3 Consumers and online viewers trustingly rely on the warranties and representations made within a Web site, while retailers rely on their disclaimers and click-agreements. Meanwhile, insurance companies are writing exemptions and limitations into policies that exclude coverage for losses arising out of Internet exposure. Consequently, business clients are being exposed to unforeseen risks and liability as a result of their publishing of content on the Internet.

Furthermore, with the advent of the Internet, countless brick-and-mortar businesses, both large and small created Web sites that advertise their goods and services. Thus, “Mom and Pop” became authors and publishers. Many also have become copyright and trademark infringers, being unaware of what they cannot reproduce without permission. Counsel should be aware and advise such clients that they will be held to the standards of a publisher and, accordingly, that they should be aware of and exercise the same due diligence as the traditional publishing community.

PROFFERING INTERNET EVIDENCE

In the traditional world of tangible documents, legal norms can be readily applied to show ownership or to offer admissible evidence of such material. Hardcopy of tangible writings and even recordings can be physically deposited with the US Copyright Office, a court clerk, or a private registry to establish authorship and publication. Rules of evidence can be applied to admit tangible documents into evidence. However, the transient nature of electronic communications results in new problems that require solutions.

For example, how can counsel defend against challenges to a client’s claim to ownership in content appearing within the client’s published Web site, especially when the content can be appropriated or misappropriated with a simple click of a mouse? Are you confident that a copy of an electronic publication will be admitted into evidence in support of your client’s defamation claim when opposing counsel objects to it as hearsay or as unreliable? What do you do when you return to the subject Web page and find the content you intended to proffer has disappeared before you credibly captured and authenticated it? Is that professional negligence?

Are you prepared to overcome objections to introducing only portions of a Web site, even though it is beyond your means to capture the whole site? How do you introduce proof of content that is technologically unrecordable? Although almost anyone can capture and store a digital file on a tangible medium, such as a floppy disk or magnetic tape, and offer the medium as evidence of the existence of the embedded content, a number of deficiencies result when an interested party attempts to preserve cybercontent.

A Web site may include embedded graphic and sound files, the capturing of which may be beyond the technical capabilities of many users, their attorneys, and investigators. Counsel should be aware that data that appears on a monitor screen might not reside within the Web page or Web site; rather, it might be purposefully and legally generated and imposed by another server and another source, or it might be linked to a database that is not be recordable by ordinary downloading processes. As the underlying technology of Web sites evolves, more technology-based objections become available and should be used when appropriate.

USING NEUTRAL DISINTERESTED THIRD-PARTY SERVICES TO PROVE INTERNET PUBLICATION

Because the Internet is currently without a centralized publication recordation system, Internet content should be collaborated to enhance credibility and admissibility. In one instance a court reporter documented Internet evidence by taking a sworn statement from a witness as she navigated the Internet. The attorney deposing the witness said, “Please tell the court reporter the URL you are typing at this time.” The attorney then asked the witness to tell the court reporter which Web page the URL retrieved. Finally, the attorney asked the witness to print the Web page and directed the court reporter to attach the printout to the sworn statement. This method of authentication can be effective, but it is costly and cumbersome.

To overcome the technological challenges and objections, particularly the commonly used hearsay objection (based on the grounds that the Internet publication is an out-of-court statement offered for the truth of the matter asserted), counsel should be aware of independent disinterested third-party services that purport to authenticate Internet evidence for use in litigation as part of their regularly conducted business activity. Third-party authentication services help overcome multiple objections to admissibility and always increase the weight of the proffered evidence. Such services are founded on the business records exception to the hearsay rule. Under Rule 803(6) of the Federal Rules of Evidence, “records of regularly conducted activity” such as a “memorandum, report, record, or data compilation, in any form of acts, events, conditions, opinions, or diagnoses, made at or near the time, by or from information transmitted by a person with knowledge, if kept in the regular practice of that business activity to make the memorandum report, record, or data compilation” are deemed credible and are not bared by the hearsay rule.

Cyberight Corporation4 is one company that provides authentication services. Cyberight developed its Proof-of-Publication in Cyberspace process in response to the lack of a central depository and records custodian available to verify publication of text, images, and sounds appearing on the Web. The Cyberight process is modeled after the method sovereigns use to record liens on real property and to register copyrights and trademarks. In contrast to the method used by sovereigns in which the recording party provides the copy of the material, in the Cyberight process, a neutral, disinterested third party creates and records the original copy. Specifically, Cyberight captures archives, indexes, and preserves and entire Web site offline in the same manner as court clerks assign book and page numbers to deeds and recorded liens. The entire Web site is printed and bound like a deposition transcript. Each Web page is followed by a printed page showing a table of links of all URLs associated with the particular Web page. The bound copies and a CD-ROM of the entire recorded Web site are sent to the requesting party, along with an affidavit from Cyberight’s records custodian providing the predicate for the business records exception and attesting to the authenticity of the downloaded material.

When authenticating Internet content, it is important to capture the whole Web site to show the relevant hierarchy of the disputed information, the number of other Web pages that refer to the page(s) containing the subject content, and the links to other topics, products, or entities that are associated in any way with the subject matter. Such information will often allow counsel to expand a client’s claim for damages by showing a broader scope of impact. The content should be captured from the site available to the general rather then obtained directly from the server or archive of the Web site’s host. Capturing what was available to the public assures that the captured content is a true and correct copy of what was actually presented at the time of recording. The evidence can be obtained without discovery, without a court order, without costly invasion of a hard drive, and even without filing a legal action.

USING NEUTRAL, DISINTERESTED THIRD-PARTY SERVICES TO PROVE DIGITAL FILE CREATION

Several Internet-accessible companies, including FirstUse.com and Surety.com, authenticate third-party files by encoding a digital “fingerprint” into the submitting party’s digital file. After the file is fingerprinted, the hash code is then transmitted via a secure Internet connection to a remote server, where it can be stored for 10 years. When the fingerprint is matched to the third-party file, the date and time that the fingerprint was created is verified, thus providing a method for establishing the existence of a document at of a given time, provided that the file is never changed, lost, or revised in any manner. Throughout the process, neither company copies or views the fingerprinted file.5

There are several disadvantages to relying on digital fingerprinting alone. Encryption purports to prove creation of a file, but it does not establish whether the file was ever published. Fingerprinting is disfavored as proof of origination for two additional reasons: First, it fails to provide proof of who was in actual possession of the key when the fingerprint was created. The “key,” usually being no more than a series of passwords and PIN codes, can be voluntarily shared or otherwise accessed by someone other than the key holder. Second, absent a land-based agreement that a digital fingerprint will be binding on the parties, it should not be given full effect under standard contract law.

PROVING WARRANTIES AND REPRESENTATIONS MADE IN CYBERSPACE THROUGH THIRD-PARTY ENDORSEMENTS

“The next phase of Internet endeavor will be about bringing order to the wild, wild Web [by replacing] the anonymity of the early Internet [with] a set of badges and labels that identify the netizens.”6 Businesses are increasingly subscribing to services that purport to acknowledge the credibility of or endorse their Web site subscribing to these services generally displays the third-party’s icon on its homepage or privacy page. When the icon is clicked, a notice is displayed that corroborates or endorses certain representations being made by or pertaining to the subject Web site. Generally, the displayed notice actually resides in the third-party’s server. Counsel should refer to these endorsements because they may support or rebut presumptions pertaining to the reasonableness of a viewer’s reliance in the relevant Web content.

Consider the following examples:

> The Better Business Bureau, at BBBOnLine.org, allows Web sites to display the “BBB OnLine Reliability Seal.”
> Truste, at Trust-e.org, allows Web sites to display the Truste “Licensee Validation Page.” This page advises online viewers that “Trust-e is an independent, non-profit initiative whose mission is to build users” trust and confidence in the Internet by promoting the principles of disclosure and informed consent.”
> Good Housekeeping offers the GoodHousekeeping.com seal of approval, signifying that the site “Meets Standards for Good Housekeeping Web Site Certification.”
> Veri-Sign.com’s “The Sign of Trust on the Net” indicates that “All information sent to this site, if in an SSL session, is encrypted, protecting against disclosure to third parties.”
> Gomez.com allows a Web site to claim that they are “Gomez Certified,” which means that they meet the minimum standards for “shoppability” and that the merchant has a reasonable Internet store.”
> BizRate.com allows Web sites to display the “BizRate.com Report Card,” which provides the e-store’s profile and customer evaluations.
> WebAssured.com allows Web sites to display the WebAssured.com seal to “tell prospective customers that the site subscribes to ethical standards of conduct.”

WHO PUBLISHES THE INTERNET?

The Internet is self-published. US Supreme Court Justice Stevens has written, perhaps in dicta, that “[a]ny person or organization with a computer connected to the Internet can “publish” information.7  “Publishers” include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.”8 The uploading of files or Web pages is similar to the printing and distribution traditionally performed by large-scale book and music publishers. As a result of the ease of publication and distribution, the Internet inadvertently failed to include any form of notice of publication on Web sites.

Unlike Copyright Management Information (CMI), Web pages do not contain publication information. Publication notices appear on sound recordings (compact discs, cassettes, and their packaging) and in printed materials (books and magazines) in the form of the stated year of publication and the name and location of the publishing company, often accompanied by the publication notice symbol (P). The notice of publication that appears with both sound recordings and printed matter appears in addition to the copyright notice and symbol (�) and documents the fact of publication. (Note: The inclusion of the geographical location claiming or indicating where a Web site purports to be published likely will resolve certain Internet-based jurisdictional issues.) The omission of such publication information makes it virtually impossible to prove the event of past Internet publication, absent a timely recording of the content from the World Wide Web by private citizens or companies that specialize in documenting such proof.

THE FIFTH INTELLECTUAL PROPERTY

The World Wide Web possesses a unique form of protectable intellectual property. I refer to this phenomena as “the fifth intellectual property.”  Historically, there were three major components of intellectual property – patents, trademarks, and copyrights – and sub-components, such as trade dress and trade secrets. With the advent of the Internet, domain names have become a form of intellectual property in that domain names no longer serve simply as electronic addresses; rather, they have become clear identifiers of sources of goods or services, much like trademarks and service marks.

Web pages are similarly emerging as a form of intellectual property. An evolved Web page is often a combination of original works of authorship, borrowed and licensed works, extraneously imposed content, text, graphics and sounds with look-and-feel and navigational features all compiled into a single medium. It is highly likely that such particularized combinations and compilations do not appear as a singular form anywhere else but as Web pages. This frequently changing combination of proprietary and non-proprietary material is a form of intellectual property in and of itself. Copyright protection of this intellectual property depends on the owner’s ability to prove publication in cyberspace, including significant changes to the Web site. Thus, a third-party Web capturing service should be used to corroborate the event of electronic publication.

IS CONTENT DISPLAYED IN CYBERSPACE DEEMED PUBLISHED?

It is unclear whether material posted on the Internet is deemed “published,” as that term is used in US copyright law. The 1976 Copyright Act defines “publication” in part as “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display.”9 However, the “public performance or display of a work does not of itself constitute publication.”10 In this author’s opinion, posting content on the Internet clearly falls within this definition of publication.

However, the US Copyright Office stated that one consideration should be whether the computer viewing the Internet is connected to a printer.11 Register of Copyrights, Mary Beth Peters, indicated that downloading an entire Web site should constitute publication, but she believes it is unlikely that anyone downloads an entire site.12 In the author’s opinion, whether the viewing computer is connected to a printer or the full site is downloaded should have no effect on determining whether the online work is deemed published. Such scenarios can not be reasonably proved; thus, the caveat is illusory. Further, a viewer can read the publication from the monitor and then respond to it, reasonably rely on it, or infringe it without either printing or downloading the displayed material. A better rule is to recognize that by the very nature of the World Wide Web, all content made available over the Internet is essentially being used in commerce and, as such, should be deemed “published.”

Although proof and preservation of this “fifth intellectual property” can be obtained through formal copyright registration (and arguably through the common law), most Web sites in the United States are not registered with the US Copyright Office. On average, less than 600,000 statutory copyrights are obtained each year.13 Of those 600,000 applications, only 180,000 are Form TX.14 (Form TX refers to the form used for copyright application of text, the most likely application to be for a Web site). Of those 180,000, it is estimated that only 100 per week apply for copyright registration.15 This is far below the immeasurable, but believed to be approximately 3 billion, Web pages and multi-million Web sites now published daily on the World Wide Web.

Registration with the US Copyright Office greatly affects the rights of the content owner. For example, registration is necessary before an infringement action may be filed. If made before or within 5 years of publication, registration is prima facie evidence of the validity of the copyright and of the facts stated in the copyright certificate. Moreover, if registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner. Otherwise, only an award of actual damages and profits is available to the copyright owner. The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works (when the author’s identity is not revealed in the records of the Copyright Office) and for works made for hire. Thus, counsel should advise clients to register their Web sites with the US Copyright Office. For Web sites that change frequently, counsel secure credible proof of publication in cyberspace and be aware of the availability of the following copyright registration options for Web sites:

> Serial registration (group registration for works updated weekly for up to three months under a single application);
> Newsletters registration (daily changes up to one month under a single application);
> Database registration (up to three months of traditional compilation database updates under a single application); and
> Derivative works registration (per each cumulative change to the a prior registered Web site).
REGULATORY COMPLIANCE AND INDUSTRY STANDARDS

In response to the lack of unified standards regarding Internet publication, regulatory agencies, self-regulated trade associates, the legal community and the business community are creating mechanisms to control content displayed over the Internet and imposing Internet publication standards. Consider the following:

> The Securities and Exchange Commission is seeking federal regulations designed to protect investors who are influenced by journalistic content appearing on the same Web page as broker-sponsored advertisements.16

> The FBI conducted a sting operation, known as “Operation Cyber Loss,” during which it charged 88 people within 10 days with Internet fraud. Operation Cyber Loss was part of a nationwide investigation into schemes that victimized more than 56,000 people, causing losses in excess of $117 million through fraudulent Internet representations.17

> The Beer Institute promulgates a voluntary code that provides guidance to Institute members on the placement of advertisement in relation to the type of content presented on Web sites. The Institute’s goal is to avoid advertising beer near content likely to be viewed by minors.18

> Lawyers increasingly rely on Web pages as evidence in court.19

> Over-the-counter software, such as Adobe’s Web Capture, offers users the ability to record Web sites in a manner that may enhance the credibility of Internet evidence captured.20
CONCLUSION

Counsel should use the utmost diligence to identify and capture evidence that is or was published on the Internet, and opposing counsel should aggressively challenge the proffering party to enable the fact-finder to fully consider the credibility of the downloaded evidence. The legal communities’ commitment to diligently document the fact of Internet publication will ultimately curtail fraudulent Internet transactions, protect ownership rights in intellectual property, prove virtual contractual terms, provide online consumer protections, enhance confidence in electronic commerce, and advance social justice in the Internet’s commercial environment. This can best be accomplished through the use of neutral, disinterested third parties that specialize in authenticating digital evidence or Internet publication. Proper capturing and authenticating of content that was published over the Internet facilitates the application of existing laws to cyberspace. With hard copy in hand, cyberspace can touch down to the ground.

1  The Internet and Computers, World Almanac and Book of Fact 2001 (World Almanac and Education Group, Inc. 2001), at 566.)

2  Id. at 567.

3  Staff Writers, “In Brief:  AOL Time Warner” The Washington Post, May 24, 2001, at E5.

4   William R. Wohlsifer is one of the founders of Cyberight Corporation.

5  See Uniform Computer Information Transactions Act (UCITA) §105 cmt 3 and § 503 cmt 4.

6  Sebastian Mallaby, The Washington Post, April 2, 2001.

7  Reno v. ACLU, 521 U.S. 844 (1997).

8  Id.

9  17 U.S. C. § 101.

10  Id.

11  Circular 65, Copyright Registration for Automated Databases, US Copyright Office (June 1999).

12   Mary Beth Peters, US Register of Copyrights, Remarks at the Annual Meeting of the American Intellectual Property Law Association, October 2000.

13   Peter Vankevich, Head, Information Section, US Copyright Office, Results of FOIA Request, February 27, 2001.

14   Id.

15  Jeff Cole,  Head of Literary Section, Examining Division, US Copyright Office, Remarks at the Annual Meeting of the American Intellectual Property Law Association (October 2000).

16   Neil Irwin, “Finance Web Sites May Face Regulation,”  The Washington Post, May 24, 2001, at E4.

17  Tamra Santana, “FBI Charges 88 in Internet Fraud Sweep,” The Washington Post, May 24, 2001, at E4.

18  Mary M. Luria and Craig M. Mersky, “Beer Advertising and Sweepstakes on the Internet,”  6 E-Commerce Law 28 (June 2001).

19  James L. Dam, “Lawyers Are Getting Website Admitted as Evidence at Trial,” Lawyers Weekly USA, May 28, 2001, at 1, 18.

20  Paul Bernstein, “Perform Litigation Tricks with Adobe Acrobat,” Trial,  at 90, 92 (Feb. 2001).

By William R. Wohlsifer, Esq.

Reprinted with permission from E-Commerce Law. October 2001. [Vol. 1, No. 10]. Published by Aspen Law & Business, 1185 Avenue of the Americas, New York, New York, 10036. To order a subscription, please call (800) 638-8437; Republished in Business Law Quarterly, The Florida Bar Association, Tallahassee, FL (Nov. 2002).

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