MSBA Computer and Technology Law Section

Facebook: We Will Protect Young Users

We had previously posted about a Facebook lawsuit over privacy implications related to its Beacon marketing program. On a related note -- one that  Kate Andresen discussed at the Section's April CLE -- Facebook has also received some criticism regarding application of its privacy polity to young users.

The NY Times reports that Facebook has recently announced an agreement reached with state attorneys general that it will require users under 18 years old to affirm -- when they sign up -- that they have read safety tips. This aligns with Miguel Azar's sentiments that privacy information directed to youth should not be buried in the fine print of often-lengthy privacy policies. 

It appears that Facebook's move will balance legally binding assent with a healthy dose of pragmatism.

Reasonable Suspicion not Required for Laptop Search at Int'l Airport

Generally, border search agents are given wide lattitude to conduct searches relative the reasonableness of suspicion¹ and, which provides an exception to the warrant requirement.² 

Some time ago, I posted a story concerning a border exception to the warrant requirement, where a border agent inspected a laptop and discovered contraband (click here).  From the Ninth Circuit, U.S. v. Arnold, we have a similar underlying fact situation, except that the question before the court concerns the reasonableness of the intrusion:  In its April 21st opinion, the Court held that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.  The Court found unavailing defandant's numerous arguments --some bearing stretch marks-- such as that “laptop computers are fundamentally different from traditional closed containers,” and analogizes them to “homes” ² and the “human mind.”³  Consequently, the Court reversed the trial court's suppression order, thereby permitting prosecution to proceed.

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¹ See, generally, United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

² Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant.  For Fourth Amendment purposes, an international airport terminal is the "functional equivalent" of a border.

³  Defendant’s analogy of a laptop to a home was based on a conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home.

⁴  Defendant urged that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits.

Facebook and Privacy: Blockbuster Sued Over Alleged Privacy Breach

An interesting privacy lawsuit has been filed, in what seems to be perfect timing for our section -- between Kate Andresen's CLE at our April meeting, "Is Privacy a Realistic Goal in the Digital Age of the Internet and Social Networking Sites?" and Michael Fleming's CLE for our upcoming Annual Meeting, "Privacy Regulation by Proxy: How Customers Can Ensnare Their Vendors in Data Security Laws."

A Dallas woman has sued Blockbuster over its participation in Facebook's Beacon marketing program.  According to the complaint, the woman rented videos from Blockbuster, who passed along her rental info to Facebook, who then distributed the rental info on the Internet through its Beacon system. The plaintiff alleges that this was a violation of the Video Privacy Protection Act, 18 U.S.C. § 2710 (summary).

This is a fascinating glimpse into the types of privacy issues that may arise when companies jump into the "next big thing" -- here, social networking -- without fully considering potential adverse effects. This case will be closely watched by other players in this area (e.g., MySpace), as well as their partner companies.

Technologically Challenged Lawyer Suspended

An attorney was suspended for three months by the Kansas Supreme Court for, among other things, failing to obtain a login name and password to comply with the U.S. Bankruptcy Court's e-filing requirements.¹

The respondent-attorney attempted to file a bankruptcy case by submitting paper pleadings rather than e-filing. The bankruptcy court sent Respondent an order advising that petitions and other pleadings must be filed electronically. The court ordered Respondent to attend the required training, pass the examination, and obtain a login name and password within 30 days. Respondent failed to comply with the order.

Subsequently, Respondent attempted to file another (separate) bankruptcy case. A bankruptcy judge advised Respondent in writing that he was not permitted to file a bankruptcy case using paper pleadings and that all pleadings must be filed electronically.

Respondent not only failed to obtain a log in name and password and failed to file the case to comport with court rules, but also did not return the advanced fee after discharge.

The dicsiplinary Memorandum Opinion is here.

Hat tip to The Legal Profession Blog for this story.

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¹Pursuant to a rule change, the United States Bankruptcy Court required that all pleadings be filed electronically. In order to file electronic pleadings with the bankruptcy court, an attorney must have a login name and password.

Four online law school grads admitted to SCotUS

Four graduates of an entirely online law school became the first attorneys to be admitted to the U.S. Supreme Court last week. Read full story. To be admitted to the U.S. Supreme Court, each attorney must be a member with good standing of the bar for three years and be sponsored by two attorneys already admitted to the Supreme Court.

The school, Concord Law School, was founded in 1998 and is one of only two or three entirely online law schools.  None, however, is ABA accredited. (The ABA’s general policy under Standard 304(f) states that “a law school shall not grant credit for study by correspondence.” Click here ).

Four graduates were admitted in open court: Larry David, an international businessman and attorney in Pasadena, Calif., who volunteers at the Los Angeles County Bar Association Barristers Domestic Violence Project; Michael Kaner, a dentist in Newtown, Pa., who is a consultant on risk management and forensic dentistry; Ross Mitchell, a computer systems consultant in West Newton, Pa., who is advocating online legal education and the expansion of the multijurisdictional practice of law; and Sandusky Shelton, a retired telecommunications manager from Clio, Calif., who handles court-appointed juvenile dependency cases.

Internet Archive (archive.org) may provide inculpatory forensic evidence

In case now pending in the district court of Colorado, presided over by that court's embattled Chief Judge Edward Nottingham, the Internet Archive may prove to be a source of incriminating forensic evidence.

Briefly, the case arises from allegations that a resort's ski instructor raped a teenage girl. The girl and her family have sued the resort, noting that it gave assurances that any ski instructor working with children must have a "clean criminal record."  Read full story. The accused instructor, in fact, has a lenghty rap sheet.

In its response to the lawsuit, the resort contended that it never promised that criminal checks were performed on employees and supplied copies of its Web pages to support the contention.  However, the family's attorney said that the supplied offers-of-proof are phony, noting that a search of old Web pages on www.archive.org revealed that the resort had, in fact, made such representations since 2002.  Moreover, he said, the archive site contained no pages similar to the ones that the resort supplied. "As the record now stands before the court, it appears that [the resort's] affidavits are false and misleading, the alleged copy of [the resort's] Web site is fabricated and [the resort] has attempted to destroy evidence."

Technology Advocate Appointed to MN Chief Justice

Gov. Tim Pawlenty announced the Minnesota Supreme Court’s next chief justice, naming Eric J. Magnuson of Briggs and Morgan, P.A., formerly of Rider Bennett, LLP.  Read full story.

Eric is co-author, along with David Herr, of Appellate Rules Annotated, 2007 ed. (Vol. 3, Minnesota Practice Series), a co-editor and chapter author for the fourth edition of Eighth Circuit Appellate Practice Manual, and co-editor of Matthew Bender’s The Art of Advocacy: Appeals. He also co-authored CM/ECF On Appeal– The Eighth Circuit Affirms (Oct., 2007).

Eric is recognized nationally as an advocate for technology in the field of appellate advocacy. He's given many technology presentations, including "Making the Law of E-Discovery - Seeking Appellate Review of Non-Appealable Discovery," Minnesota Chapter of the Federal Bar Association Federal Practice Seminar (June 2007); "Technology and Appeals," DRI Annual Meeting (October 2006); "Technology Tools and Resources for Appellate Advocates," 16th Annual Trial Practice Seminar, North Dakota Trial Lawyers Association (May 2006); "Technology and Appeals," Appellate Practice Institute, Minnesota CLE and 8th Circuit Bar Association (May 2005); "Electronic Advocacy," American Academy of Appellate Lawyers Spring Meeting (April 2005); and  Technology Tools and Resources for Appellate Advocates (2006). 

Eric also presented my firm's digital brief technology at the The Fifth Circuit Summit: Exploring Technology to Serve the Appeals Process (September 25, 2006).

Hopefully, with Eric at the helm, and Bob Hanson's continuing leadership, technology in appellate practice, including e-filing and digital briefs, will be ushered in.

Cool Tool: Google Cheat Sheet

Google has become a sort of Swiss army knife of web-based services, making it a daunting task for one to become familiar with the dizzying array of free tools they offer.  Some clever third party understands this, and has offered a free, downloadable, PDF Google Cheat Sheet, packed with company info, lists of domains, services, calculators, search tips and more.  This is a quick, go-to guide for getting up to speed with many of Google's web tools.

Cheers.

Another "Blogger Beware" development

Patent Troll Tracker Blogger and lawyer Richard Frenkel is now a defendant in two defamation suits: one by John Ward Jr., a partner in Ward & Smith in Longview, Texas (and son of U.S. District Judge T. John Ward (E.D. Tex.)) and another by Eric Albritton of the Albritton Law Firm in Longview, Texas.  Both plaintiffs contend that Frenkel injured their reputation by making false factual assertions on his Patent Troll Tracker blog during the course and scope of his employment at Cisco that plaintiffs conspired with the "Clerk of the U.S. District Court for the Eastern District of Texas" to "alter documents to try to manufacture subject matter jurisdiction where none existed" and that plaintiffs "conspired with others to alter the filing date on a civil complaint," according to the complaints filed in both cases.

One of plaintiff's attorneys asserts that Frenkel's allegations in the blog are not "protected speech" under First Amendment law.

Read full story here.

Bill Proposes Internet "Network Neutrality"

"This is the essence of the Ed Markey's (D., Mass.) Orwellian-named Internet Freedom Preservation Act of 2008, which would foist network neutrality on the wild and woolly Internet."  So begins this February, 25 2008 Wall Street Journal article, entitled, Internet Wrecking Ball, discussing the bill that proposes to regulate or "ration" TCP/IP packets and internet bandwith.

Markey's press release (here) states, in pertinent part:

The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered.  H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers.

The full text of the proposed bill is here.

A summary of the Act is here.

Minneapolis Photographer Uses Metadata to Successfully sue for Copyright Infringement

Minneapolis photographer Chris Gregerson recently prevailed in a copyright infringement suit against a real estate photographer who used his photos on a Website and in advertising.  More interesting than the $19,462 award: (1) the plaintiff won at trial even though he was pro se and (2) the photos at issue used digital watermarking, where a copyright notice was placed inside the EXIF metadata. Judge Montgomery found that the defendant willfully removed both the visibible watermark, as well as the EXIF metadata, resulting in an award of statutory damages.  The findings include some other good flavor: the defendant allegedly forged a falsified contract with an allegedly fictitious seller, and the notary for the contract resigned his notary license. 

Prior to digital watermarking, photos just had to look the same.  Add Metadata to the mix, and a plaintiff can have near-conclusive proof of infringement.

Decision, coverage, and Gregerson's site documenting the ordeal.

Third Category of Personal Information: "Partially Personal Info"?

The NY Times blog Bits discusses whether IP addresses constitute personal information under privacy law.  Google argues that IP addresses cannot, in isolation, identify a person. But the author counters that the IP address, when used in conjunction with other information (e.g., from an ISP), can identify a person. The author likens an IP address to a retail closed-circuit camera that does not, alone, identify shoppers. But when the video is connected with a shopper's purchase, or with government-provided photos (e.g., drivers license), they can easily identify the person.

The author contends that because IP addresses can personally identify users, it does not fall within the two realms currently considered by privacy law: (1) personally identifiable information and (2) that which is not.  As such, lawmakers should consider whether a third category is appropriate: "partially personal information."

This is an intriguing concept that would change the privacy area's current black-and-white thinking: from a binary "yes" or "no" response to a system with a middle ground. Google's global privacy counsel apparently agrees that a sliding scale within this third category is a good idea, pointing to scholarship in this area.

One thought that readily comes to mind is this: isn't a huge swath of relevant evidence "partially personal information"?  If an investigator talks to the cashier at my favorite lunch spot, he can identify me. Did he just divulge "partially personal information"? The cash-register receipt has partially personal information (the last four digits of my credit-card number).  In nearly every criminal or civil case, litigators daily put together this "partially personal" evidence to connect the dots for the decision-maker. Would my cash-register receipt be subject to state or federal privacy law?  If I tell the cashier to keep it, should he be required to throw it in a shredder, lest this "partially personal information" get into the wrong hands?

The concept of a sliding scale is good, but it would take careful crafting of definitions for this idea to get traction.

I.P. Address: Partially Personal Information [NY Times]

Researchers Developing Software to Detect Photoshopping

Wired is running an article discussing how computer scientists are developing software that attempts to detect when a photograph has been altered. The article discusses legal ramifications of such software -- particularly with regard to criminal defense matters. It appears that the software would not distinguish between arguably permissible alterations (e.g., lightening a scene) and impermissible falsifications (e.g., cloning away evidence). As these tools become more widely available and affordable (one set of tools costs $25,000/year), they may constitute another arrow in the wise litigator's quiver.

Researchers Look to Spot Photo Hoaxes [Wired via AP]

Free Public Access to U.S. Court Decisions

Carl Malamud's latest online "public works" project, public.resource.org, is reported to make available later this week all Supreme Court opinions dating back to the 1700s and all U.S. appeals courts decisions dating back to 1950. Some commentators speculate that Malamud's efforts potentially represent a challenge to paid legal research services Thomson and LexisNexis.  His northern California-based non-profit group last week took delivery of content from Fastcase, which agreed in November to sell the information with no strings attached. Malamud's group has spent the past several days reformatting the data to post on the Web site.

"We're about getting bulk data and making it available," free of charge, to the public, Malamud told the Conneticut Law Tribune. "I want to see all federal case law downloadable in bulk."  He asserted that there are no restrictions on the use of the information after it's downloaded and that it's up to individuals to create Web sites that utilize the information.

Any initiative that "makes case law available for free in new and different ways is something all librarians are in favor of," said Darcy Kirk, associate dean for library and technology and law professor at the University of Connecticut. Read Full Story.

Malamud also recently launched a "PACER recycling site," where users, who have downloaded federal case information at 8 cents per page can upload them to the recycling site to be accessed later free of charge.

Cool Tool: LinkBunch

Most of us are familiar with TinyURL, which converts an unwieldy URL string to a short one.  When the short link is accessed, TinyURL acts as a redirect, sending the visitor to the designated site.

A new site, LinkBunch, enables you to consolidate multiple URLs into one link.  The service is quite simple: paste in each URL and click the "Bunch" button.  LinkBunch creates a unique URL that, when accessed, launches a window containing all of your selected links.  This could be useful in siutuations where space is at a premium, such as IM, texting, email, blogging, etc.  One particularly useful application that comes to mind would be to bundle a number of links to photos stored on a site like Photobucket or Flickr. 

Public Library of Law: Cheap Westlaw/Lexis Alternative

For many laypersons who cannot (or do not want to) spend money for a lawyer, the Internet seems like a good alternative to simply do it yourself.   Of course, those good intentions do not always end well.  That said, plenty of organizations are providing free and cheap services for non-lawyers to have the same electronic resources that were reserved for big-budget firms only 10 years ago.  A new entrant is the  Public Library of Law, which is partnered with the low-cost Westlaw/Lexis alternative, Fastcase. The PLoL provides searches of case law, statutes, regulations, court rules, and legal forms. The site appears to bring a Google simplicity to searching the law.  After briefly browsing the service, it appears that while searches are free, many of the cases require registration with the PLoL (free) or with FastCase (low fee), and many of the legal forms must be purchased from a third-party provider.

Notably, members of the Minnesota State Bar Association have free access to FastCase through the MSBA website. While it may not be as comprehensive as Westlaw or Lexis, it may serve as a good start for cost-sensitive or pro bono clients.

Lawyers will probably want to stay with their research tools of choice, but the Public Library of Law is worth noting, as a service that clients (or future clients) may be relying upon before seeking your advice.

Public Library of Law
http://www.plol.org/

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Law Firm's Faulty IT Policy Not Excusable Neglect to Avoid Sanctions

In this U.S. Magistrate's July, 2007 Order (which I just discovered today), the court found that attorneys' non-receipt of emails from the U.S. Court, District of Colorado, caused by a firewall setting, was not excusable neglect to avoid the sanction of attorney fees for the firm's attorneys' failure to appear at a settlement conference.

The court heard evidence from the firm's IT administrator that the firewall setting was modified —without notice to these particular attorneys— in response to complaints from some of the firm's employees concerning sexually explicit junkmail.  Moreover, although the administrator added the Colorado state courts to the whitelists, he failed to add the cod.usCourts.gov (U.S. Court, District of Colorado) domain.

Although the magistrate found that the neglect was not willful or wanton, he nevertheless found that the attorneys were, "the responsible persons to adopt internal office procedures that ensure the court’s notices and orders are brought to their attention once they have been received."  Thus, under Fed.R.Civ.P. 16(f), they were jointly and severally sanctioned for attorney fees and costs relating to the settlement conference and the additional hearings incident thereto.

This decision, `though not a precedent, is another salient reminder that attorneys are increasingly being required to keep up with technology that often is out-of-scope for their training and expertise or, alternatively, to retain competent staff.