Staff Writer

Americans are increasingly turning to software programs to prepare their income tax returns.  But before clicking ‘E-file,’ taxpayers should be aware of a recent line of Tax Court cases indicating that software programs don’t offer the same penalty protections as your friendly, neighborhood accountant.

One penalty provision every taxpayer should be aware of is found in I.R.C. § 6662, the accuracy-related penalty section. This provision says that whenever a taxpayer understates their tax liability because of negligence, the I.R.S. can add a penalty to the taxpayer’s bill equal to 20% of the taxpayer’s deficiency.  I.R.C. §6662(b)(1).  Similarly, anytime a taxpayer substantially understates their tax liability, defined in the internal revenue code as an understatement by the greater of $5,000 or 10% of the liability required to be reported on the taxpayers return, the I.R.S. can assert the same 20% penalty. I.R.C. §6662(b)(2), I.R.C. §6662(d).  When faced with these penalties, taxpayers can argue that they qualify for an exception from the penalty because they had a reasonable cause for the understatement and acted with good faith.  I.R.C. §6664(c).  In determining whether a taxpayer acted with reasonable cause and good faith, a court will look at all the pertinent facts and circumstances. Treas. Reg. § 1.6664-1(b)(1).  Continue reading →

By Julie R. Severson, Ph.D.

At the nexus of technology, business, and free speech an interesting story always seems to percolate.  Well, this summer is no exception; a rift has appeared between the U.S. Supreme Court and the Ninth Circuit on the matter of a state’s right to control commercial speech pertaining to pharmacy records.  Let me explain.  In June, the Supreme Court protected commercial free speech rights in Sorrell v. IMS Health, when in a 6-3 decision it held that Vermont may not restrict data-mining companies from selling pharmacy records revealing “prescriber identifiable data” without prescribers’ consent—despite Vermont’s agenda in passing the legislation in 2007 of lowering the costs of medical services and promoting public health.  (For those who need a 0 to 60 update, such data mining companies often serve as the middle-man between pharmacies and the pharmaceutical industry, buying from the former and selling to the latter records of individual physician prescribing practices so that pharmaceutical companies can fine-tune their commercialization of mostly name brand—as opposed to generic—drugs, and ultimately maximize profit.)  Despite the loophole Vermont provided allowing doctors to opt in and both make their records available for such purposes and receive targeted information based on their prescribing history, the majority remained poignantly sensitive to any ostensible infringement on speech.  Quoting the Second Circuit’s holding, it affirmed that the “First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression.”  Sorrell v. IMS Health Inc., — U.S. — at —, 131 S.Ct. 2653, 2666, 180 L.Ed. 2d 544 (2011). 

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Staff Writer

Companies are using the internet to spy on you, and often without your knowledge or consent. Tracking technology has gotten smarter and more intrusive: businesses collect data on websites visited, shopping habits, and even medical conditions. Through the growth of social networking websites and geolocation applications on mobile phones, this data increasingly contains information about your activities in the offline world. This information is most often used to target advertising towards particular users. Should companies be allowed to accumulate unlimited statistics about anyone who uses the internet, or should our privacy be protected in some way?  In a recent report on privacy, the FTC proposed recommendations on protecting consumer privacy, including simplifying consumer choice through the use of a “Do Not Track” option. A “Do Not Track” option could be offered up by the industry or required by legislation.

At least two bills have been proposed that would require a “Do Not Track” option that would require internet browsers to include an opt-out feature that would tell website operators that you do not want to your online movements tracked.

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Staff Writer

In a recent case, Facebook users alleged that Facebook knowingly forwarded personal information to online advertisers without its users’ consent, in violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq., the Wiretap Act, 18 U.S.C. § 2510, et seq., and various California state laws.  See In re Facebook Privacy Litigation, 2011 WL 2039995 (N.D. Cal. May 12, 2011). After finding that Facebook merely transmitted users’ information to the intended recipient, the district court dismissed the plaintiffs’ claims against the social media giant.

The Electronic Communications Privacy Act forbids providers of “electronic communications services” from knowingly divulging the contents of a stored electronic communication to any entity other than the intended recipient or addressee. See 18 U.S.C. § 2702(a)(1), § 2511(3)(a); In re Facebook, 2011 WL 2039995, at *4-5. Similarly, the Wiretap Act provides a civil cause of action for “any person whose electronic communication is ‘intercepted, disclosed, or intentionally used in Violation of the Act.” In re Facebook Privacy Litigation, 2011 WL 2039995, at *4 (citing 18 U.S.C. § 2520(a)). Importantly, neither Act forbids communications providers from transmitting information to the intended recipient of the communication. Continue reading →

Staff Writer

The Supreme Court, last Thursday, handed a substantial win to data-miners, brand name pharmaceutical companies, and First Amendment advocates. With a 6-3 decision in Sorrell v. IMS Health Inc, the Court held that a Vermont statute prohibiting data mining of doctor records for prescription information is an unconstitutional infringement of First Amendment rights. Specifically, the Court found that the Vermont law (both on its face and in its practical operation) imposed a burden based on the content of speech and the identity of the speaker. The state, moreover, failed to meet the standards of heightened scrutiny, as it was unable to show that the statute directly advanced a substantial governmental interest and that the statute was drawn to achieve that interest.

According to the Court, the provision of Vermont’s 2007 Prescription Confidentiality Law (Vt. Stat. Ann. tit. 18, §4631(d) (2007)) at issue in this case has three crucial components: (1) it prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent; (2) it prohibits pharmacies, health insurers, and similar entities from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents; and (3) it bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriber-identifying information for marketing, again absent the prescriber’s consent.

This prescription information, including the type and amount of drugs issued by specific doctors, is often used in the “detailing” work of pharmaceutical companies, in which they carefully examine a doctor’s prescribing records and patient information to determine marketing strategy and to whom to pitch what drug.

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