Saturday, January 11, 2014

MIRLN --- 15 Dec - 11 Jan 2014 (v17.01)

MIRLN --- 15 Dec - 11 Jan 2014 (v17.01) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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NEWS | RESOURCES | LOOKING BACK | NOTES

Top Ten Internet Law Developments of 2013 (Eric Goldman on Forbes, 9 Jan 2014) - A look back at the Internet law highlights of 2013: * * *

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9th Circuit to provide live Internet coverage of en banc oral arguments (ABA Journal, 4 Dec 2013) - In what is believed to be the first such effort by a federal appeals court, the 9th U.S. Circuit Court of Appeals will launch live streaming Internet coverage of its en banc oral arguments in San Francisco on Monday. "The 9th Circuit has a long history of using advances in technology to make the court more accessible and transparent," said Chief Judge Alex Kozinski said in a written statement provided to Courthouse News . "Video streaming is a way to open the court's doors even wider so that more people can see and hear what transpires in the courtroom, particularly in regard to some of our most important cases." A page on the court's website provides further details.

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New Creative Commons licenses released for intergovernmental organizations (TechDirt, 13 Dec 2013) - Even though Creative Commons licenses have only been in existence for just over a decade, it's now hard to imagine the online world without them. The ability they offer to modify or even cancel copyright's monopoly has led to all kinds of innovation, and given that success (as well as one or two failures ), you might think there's no need for any more CC licenses. Creative Commons begs to differ : "We're pleased to announce a new suite of Creative Commons licenses specifically designed for intergovernmental organizations (IGOs). IGOs produce a wide array of valuable information and content, ranging from scholarly and scientific papers to environmental data. Just like other creators who seek wide dissemination of their works to achieve maximal impact, IGOs benefit from using CC's well understood and widely adopted licenses." A new license is needed, apparently, because IGOs have one or two special requirements. For those who are interested, Andres Guadamuz has a useful post on his Technollama blog explaining what's new and why.

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Boston Police indefinitely suspends license plate reader program (ArsTechnica, 14 Dec 2013) - The Boston Police Department (BPD) has indefinitely halted its use of license plate readers (LPR) following an investigation into their use published on Saturday by the investigative journalism organization MuckRock and the Boston Globe . David Estrada, a BPD spokesperson, confirmed to Ars that the department had stopped using its LPRs for now and asked that further questions be submitted in writing, which Ars has done. This suspension likely makes Boston one of the largest cities in America to stop using this sort of technology, which for years has been in wide use by thousands of law enforcement agencies nationwide. At present, BPD uses 14 individual LPRs, which enables them to scan "as many as 4 million vehicles a year," the Globe noted. The cameras typically scan at an extremely high rate, usually around 60 plates per second. Law enforcement policies vary widely as to how long that information can be retained. Different agencies keep that data anywhere from a few weeks to indefinitely. Some cities have even mounted such cameras at their city borders, monitoring who comes in and out.

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Copyright Office calls for congress to reconsider royalties for artists (NYT, 16 Dec 2013) - The last time the United States Copyright Office examined the issue of whether visual artists should receive a share of the profits when their work is resold, in 1992, it concluded that resale royalties - known internationally by the French term droit de suite - were not a good idea. Now, after a recent re-examination of the issue, the Copyright Office has reversed itself. In a report issued Friday, it recommended that painters, illustrators, sculptors, photographers and the like deserve a royalty when their work is resold at a profit. Acknowledging that the current system leaves visual artists at a practical disadvantage relative to other creators such as writers or composers, the office urged Congress to "consider ways to rectify the problem" and give artists a financial interest in the future sale of their work. The office noted that in the past two decades, resale royalties have become more common around the globe, with more than 70 countries adopting some version of the droit de suite rule. A bill to institute a resale royalty was introduced in 2011 by New York Representative Jerrold Nadler, but it failed to gain support. Mr. Nadler is supporting a revised version of his bill, named the Equity for Visual Artists Act. The only state to have a resale royalty law was California, but in 2012, a federal judge struck down the law as unconstitutional.

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Costs of keyword searching, data analysis, not recoverable, Federal Circuit rules (Robert Ambrogi, 18 Dec 2013) - To what extent can the costs of e-discovery be recovered by a prevailing party in federal court? The U.S. Federal Circuit Court of Appeals has just issued an opinion that provides a detailed analysis of that question, concluding that the answer hinges on which costs fall within a 21st Century definition of "copying." In CBT Flint Partners, LLC v. Return Path, Inc. , the Federal Circuit considered the extent to which e-discovery costs fall under 28 USC § 1920 , the federal statute that lists the costs that can be recovered in federal litigation. The only provision of that statute that would apply to e-discovery, the circuit concluded, is one that allows recovery of copying costs. Thus, e-discovery costs are recoverable only to the extent they fall within the statutory meaning of copying. [W]e conclude that recoverable costs … are those costs necessary to duplicate an electronic document in as faithful and complete a manner as required by rule, by court order, by agreement of the parties, or otherwise. To the extent that a party is obligated to produce (or obligated to accept) electronic documents in a particular format or with particular characteristics intact (such as metadata, color, motion, or manipulability), the costs to make duplicates in such a format or with such characteristics preserved are recoverable. … But only the costs of creating the produced duplicates are included, not a number of preparatory or ancillary costs commonly incurred leading up to, in conjunction with, or after duplication. That means that the costs of imaging hard drives and source media and processing those images would be recoverable in most cases, the court said. Also recoverable would be the costs of creating load files and copying responsive documents to production media. But the costs of decryption, deduplication, keyword searching, data analysis and project management are not recoverable, the court concluded.

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Florida allows competitive keyword advertising by lawyers (Eric Goldman on Forbes, 18 Dec 2013) - In March, the Florida State Bar's Standing Committee on Advertising proposed an ethics opinion (Proposed Advisory Opinion A-12-1). The opinion was designed to help Florida lawyers understand what they could ethically do with online marketing. It targeted a melange of now-outdated search engine optimization (SEO) practices, such as hidden text and keyword metatags. It also restricted competitive keyword advertising-"[l]awyers may not purchase the name of another lawyer or law firm as a key word in search engines"-even though it's becoming increasingly clear over the years that such competitive keyword advertising purchases are legal and legitimate (see, e.g., Habush v. Cannon ). Rather than enlighten attorneys about their ethical obligations, this proposal was both hopelessly antiquated and potentially detrimental to legitimate competition. Normally, a proposal like this get rubber-stamped through a state bar's review process, so its approval seemed inevitable. Nevertheless, working with two law professors in Florida, Faye Jones and Lyrissa Lidsky , and my student research assistant, Jake McGowan, we submitted comments opposing the proposal . My prior blog post . I also made two telephonic appearances before one of the reviewing bodies, the Board Review Committee on Professional Ethics (the BRC), and Google submitted comments as well. Last week, in a surprising development, the BRC rejected the proposal (voting 6-2), and the Florida Bar's Board of Governors-the ultimate decision-maker-accepted that conclusion (voting 23-18). As a result, the Standing Committee on Advertising's proposed opinion is dead. The Florida Bar's Ethics Counsel explained that the BRC: is of the opinion that the purchase of ad words is permissible as long as the resulting sponsored links clearly are advertising, and because meta tags and hidden text are outdated forms of web optimization that can be dealt with via existing rules prohibiting misleading forms of advertising. Still, much work remains. North Carolina has a similar ban on lawyers' competitive keyword advertising that was quietly enacted last year ( 2010 Formal Ethics Opinion 14 ). I'll be tackling that next. And Florida has plenty of other ill-advised restrictions on Internet marketing by lawyers, such as restrictions on lawyers making "garden-variety" descriptions of their practices on blogs and websites (see the complaint ) and letting LinkedIn members endorse the lawyer for "skills and expertise" (although at the same Board of Governors' meeting, that position was reversed and sent for further study).

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Disclosure of search terms does not compromise the work product privilege (RideTheLightning, 18 Dec 2013) - I love it when my friend Craig Ball gets worked up about something. On Monday, he was energized by an article in the New York Law Journal which suggested that search terms in e-discovery are protected by the work product privilege. The resulting energized post is well worth reading. Personally, we have seen search terms protected as work product just once, years ago, by a magistrate judge who clearly knew very little about e-discovery. But we continue to see lawyers and judges talk about this issue as though the matter had not been pretty much settled. There may be rare instances when the privilege might apply, as you will note in a comment to Craig's post. But ordinarily, transparency will be required by the court, as well it should be. How else can the other side know whether potentially responsive material has been excluded by the terms? It is precisely in search terms that one so often finds that "hide the ball" tactics are being employed. As Craig notes "Disclosure of mechanical filters doesn't compromise counsel's mental impressions, conclusions, opinions or legal theories." It would only be in the rarest of scenarios that a compromise might exist - and in the real world, we have never seen such a scenario.

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Law school's online-hybrid degree program gets first-ever approval from ABA (ABA Journal, 19 Dec 2013) - In September, the American Bar Association Task Force on the Future of Legal Education called on law schools (PDF) to innovate and embrace technology as a means for educating future attorneys. William Mitchell College of Law in St. Paul, Minn., has answered the call. The ABA Council of the Section of Legal Education and Admissions to the Bar has approved the school's plan to offer a hybrid curriculum, scheduled to begin in 2015, that includes both online and in-person classes. School officials met with the council two weeks ago to request a variance from ABA accreditation standards (PDF) which state that no more than one-third of an accredited law school's curriculum can take place outside of the traditional classroom setting. The council announced yesterday (PDF) that it had granted the variance to William Mitchell's proposed program, which provides for a 50-50 split between online and in-person class work. The program, which has a four-year duration, will be offered alongside the traditional full-time and part-time J.D. programs. In addition to web-based lectures, discussion boards and chat rooms for students and faculty, the program will emphasize skills training over lectures. Classroom sessions will include simulations as to what law students can expect when they're practicing attorneys. The program will also include externships. Under the terms of the ABA's variance, the school will be allowed to admit four entering classes of students under this program, and must limit individual class sizes to 96 students. The school must also provide detailed reports to the council, providing information such as applications and admissions, attrition, course evaluations and skills training. Barry Currier, the ABA's managing director of accreditation and legal education, says they considered several factors before granting the variance, including the school's 113-year history and experience with part-time law students. Currier said that the school's application for a variance was highly detailed and very well-thought-out, and it was clear to him that the school was extremely dedicated to making the program work.

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Elsevier ramps up its war on access to knowledge (Techdirt, 20 Dec 2013) - We just recently wrote about the terrible anti-science/anti-knowledge/anti-learning decision by publishing giant Elsevier to demand that Academia.edu take down copies of journal articles that were submitted directly by the authors, as Elsevier wished to lock all that knowledge (much of it taxpayer funded) in its ridiculously expensive journals. Mike Taylor now alerts us that Elsevier is actually going even further in its war on access to knowledge. Some might argue that Elsevier was okay in going after a "central repository" like Academia.edu, but at least it wasn't going directly after academics who were posting pdfs of their own research on their own websites. While some more enlightened publishers explicitly allow this, many (including Elsevier) technically do not allow it, but have always looked the other way when authors post their own papers. That's now changed. As Taylor highlights, the University of Calgary sent a letter to its staff saying that a company "representing" Elsevier, was demanding that they take down all such articles on the University's network: The University of Calgary has been contacted by a company representing the publisher, Elsevier Reed, regarding certain Elsevier journal articles posted on our publicly accessible university web pages. We have been provided with examples of these articles and reviewed the situation. Elsevier has put the University of Calgary on notice that these publicly posted Elsevier journal articles are an infringement of Elsevier Reed's copyright and must be taken down. [ Polley : Inside Counsel has another useful piece on this: Publisher cracks down on authors of academic articles (Inside Counsel, 10 Jan 2013)]

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How will Santa know who's naughty or nice? (Steptoe, 26 Dec 2013) - Early this month, the Wassenaar Arrangement, a group of 41 countries, decided to implement new controls on the export of computer intrusion and surveillance software, equipment, and technology. The new restrictions affect two Wassenaar categories on the dual-use goods and technologies control list. The first addition would restrict the transfer of equipment, software, and technology for the "generation, operation or delivery of, or communication with, 'intrusion software'" under Category 4 - Computers. The second addition would restrict the transfer of "IP network communications surveillance systems or equipment" and "specially designed components thereof" under Category 5 - Part 1 - Telecommunications. Adopting the Wassenaar Control List is optional for participating countries, but, if a country implements the restrictions, companies that want to export controlled software and equipment will likely have to obtain an export license first. In addition, some countries impose import restrictions based on the Wassenaar Control List, so that is also a possibility with regard to these new provisions.

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Senders' Fourth Amendment rights in e-mails seized from the e-mail accounts of recipients (Volokh Conspiracy, Orin Kerr, 26 Dec 2013) - A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person's Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection? To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender's rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient's server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient's server before the recipient has accessed the copy? At what point does the sender's Fourth Amendment rights in the sent copy expire? * * *

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Japan warns of security risk in software for language input (Bloomberg, 26 Dec 2013) - Japan's government warned that certain software used for writing Japanese characters could lead to security leaks, including some programs made in China. The National Information Security Center asked all central government ministries to avoid the programs when making confidential documents because a record of the writing can be sent to servers outside the country. The programs, made by Beijing-based Baidu Inc. (BIDU), Microsoft Corp. (MSFT) and Google Inc. (GOOG), allow people to use an English-language keyboard to write Japanese characters by spelling them phonetically.

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New industry contracts say "no data in the USA," report says (GigaOM, 27 Dec 2013) - Is this the backlash? A handful of companies are requiring cloud service providers to promise - in writing - that they won't store any client data in the United States, according to Bloomberg . The report says that a British grocery chain and a Canadian pharma company have responded to the ongoing US surveillance scandal by adding language to existing contracts that mandate suppliers to segment their data and keep it out of America. The report of the revised contracts comes as the cloud computing industry continues to digest news that America's National Security Agency is tapping underwater cables and infiltrating the servers of storage providers as part of a sweeping counter-terrorism program. In August, shortly after news of the surveillance was leaked by Edward Snowden, a Forrester analyst reported that it could cost the U.S. cloud computing industry up to $180 billion as a result of foreign firms bolting American providers. The $180 billion figure (which appears plucked from the air) was cited as a worst case scenario and so far there has been no systemic exodus from American cloud companies. But the fear and anger in Europe and elsewhere over America's surveillance activities are very real; a recent PWC report said that 15 percent of German companies are looking for cloud providers that promise not to cooperate with U.S. or U.K. intelligence services. So does the Bloomberg report portend the start of a trend? It's too soon to say. The report, which also claimed a Canadian agency had asked for the "no data in USA" clause, was based on a single source (an Indiana security firm known as Rook Consulting ) and did not name any of the companies involved.

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FinCEN issues Bitcoin-friendly ruling for miners (CoinText, 27 Dec 2013) - The US Department of Treasury, Financial Crimes Enforcement Network ( FinCEN ) has issues ruling that clears up an issue for Bitcoin mining. The issue involves whether someone who mines Bitcoins for themselves can trade them for cash at an exchange or spend them directly without being classified as a Money Services Business (MSB) and register with FinCEN. Many miners were concerned that the rules would require compliance with extensive regulations (see Jerry Brito, FinCEN explicitly stated in a personal letter that bitcoin miners need to register with FinCEN ). The rules could require miners to have things like an auditor on staff making it impossible for individuals to mine Bitcoins and stay within the regulations. Atlantic City Bitcoin operates several ASICs miners at its facility in New Jersey and asked FinCEN to clarify the rules. The owner of AC Bitcoin is a former federal employee who worked on anti-terrorism and security programs and took early retirement to work on Bitcoin. According to the formal Administrative Ruling miners do not have to register with FinCEN as previously thought as long as they mine for themselves. AC Bitcoin had frequent contact with FinCEN staff and pointed out that if FinCEN had required miners to register they would need to comply with the "Administrative Procedures Act" which would require them to consider public comments before making the requirement.

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Voxgov aggregates and analyzes government news and media (Robert Ambrogi, 27 Dec 2013) - Keeping track of an issue within the U.S. government can be daunting. The government is gargantuan, with thousands of entities publishing a constant flow of news and information across many thousands of websites and social media platforms. Say you have a client who has an interest in food labeling law. To track everything concerning food labeling that the government is putting out through press releases and policy statements and speeches and through Twitter and Facebook and YouTube would be a full-time job, if even that would get it done. A new web platform developed by a lawyer, Voxgov , aims to make it easy for users to track and analyze this constant flow of U.S. government news and media. It describes its mission as becoming "the established site of record for unedited media, news and information from all official government sources." What that means is that it aggregates in real time all the information flowing out of the federal government and delivers it to you in a single platform. If the Federal Trade Commission posts a press release, it shows up in Voxgov within three minutes, they say. Voxgov came out in beta six months ago. It will formally launch out of beta on Jan. 6. And while it currently collects only federal government information, it plans to add all 50 states by the end of March.

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Information Governance - 2013 in Review (Baker Hostetler, 27 Dec 2013) - 2013 was the year that the term "Information Governance" or "IG" began to be widely used outside of technical circles. Despite that fact, the concept of IG is not well understood. Gartner, a premier information advisory company, defines IG as the specification of decision rights and an accountability framework to ensure appropriate behavior in the valuation, creation, storage, use, archiving, and deletion of information. It includes the processes, roles and policies, standards, and metrics that ensure the effective and efficient use of information to enable an organization to achieve its goals. Information management is not the same as IG. IG represents a strategic, as opposed to tactical, enterprise-wide approach to the governance of the entity's information. It requires coordination across all business units, as well as IT, security, compliance, privacy, and legal. A successful IG program will avoid siloing and require strategic coordination among all stakeholders. This, of course, may be easier said than done. A centralized, global approach to IG is necessary so that entities can maximize the value of their data while also reducing risks and costs. Implementation of an IG steering committee or the creation of a Chief Data Officer position should be considered so that a holistic result can be achieved. We anticipate the development and maturation of different IG models in the coming years as entities become more aware of the importance of these issues, and believe that those models will start with a common strategic seed and seat of individual responsibility, likely at a C- or near-C-Level position, but will be further refined based on organizational and even division-based risk assessments.

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Court upholds willy-nilly gadget searches along US border (Wired, 31 Dec 2013) - A federal judge today upheld a President Barack Obama administration policy allowing U.S. officials along the U.S. border to seize and search laptops, smartphones and other electronic devices for any reason. The decision (.pdf) by U.S. District Judge Edward Korman in New York comes as laptops, and now smartphones, have become virtual extensions of ourselves, housing everything from email to instant-message chats to our papers and effects. The American Civil Liberties Union brought the challenge nearly three years ago, claiming U.S. border officials should have reasonable suspicion to search gadgets along the border because of the data they store. But Judge Korman said the so-called "border exemption," in which people can be searched for no reason at all along the border, continues to apply in the digital age. Alarmingly, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation's actual border . The judge said it "would be foolish, if not irresponsible" to store sensitive information on electronic devices while traveling internationally. [ Polley : ABA members might read my article on international travel with e-devices here .]

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Tattoo artists are asserting their copyright claims (ABA Journal, 1 Jan 2014) - One day you're feeling bold, or perhaps temporarily insane, and you walk into a tattoo parlor to get inked up. Congratulations, you're the proud owner of the art now displayed on your skin and you can flaunt it however you wish. Not so fast. A growing body of case law derived from a series of high-profile lawsuits suggests that ultimately it's the tattoo artist-not the person who bears the tattoo-who owns the rights to that tattoo. Copyright law protects original works of authorship fixed in any tangible medium of expression, including anything from paint on a canvas to sculpted clay to a piece of music. And now it's increasingly clear that the law also applies to ink on skin. In 2012, a tattoo artist who inked mixed-martial-arts fighter Carlos Condit sued video game maker THQ Inc. for depicting Condit's lion tattoo on a game character resembling the fighter. Also, the National Football League Players Association has warned players to seek copyright waivers from their tattoo artists to guard against lawsuits in the event images of the tattoos are used-intentionally or not-in advertisements, video games and other media. Lawyers foresee copyright waivers becoming a fixture in tattoo parlors. "I don't doubt that in many larger tattoo parlors it will become standard that some type of document is presented to those who are going to have tattoos put on them stating that those tattoos have been created by the tattoo artist or the parlor," says entertainment lawyer Jerry Glover of Leavens, Strand, Glover & Adler in Chicago.

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New decision shows how businesses can challenge warrantless records collection, even if you can't (EFF, 3 Jan 2014) - Much of the debate over modern surveillance-including the NSA mass spying controversy-has centered around whether people can reasonably expect that records about their telephone and Internet activity can remain private when those records belong to someone else: the service providers. Courts have disagreed on whether the 1979 Supreme Court case Smith v. Maryland , which ruled people have no expectation of privacy in the phone numbers they dial, should be extended to cover newer, more invasive forms of technology. But a decision released on December 24th by the Ninth Circuit Court of Appeals looks at the issue from the point of view of businesses, providing a glimpse into how service providers and technology companies could challenge the government's unconstitutional surveillance. In Patel v. City of Los Angeles , the Ninth Circuit found a city ordinance that required hotels and motels to turn over guest records without any judicial process violated the Fourth Amendment . The ordinance mandated hotels and motels keep a record for 90 days containing things like a guest's name and address, the make, model and license plate number of the guest's car, and the room number assigned and rate charged. The ordinance allowed police to inspect guest records without a search warrant or the hotel's consent at any time. The city believed that collecting the records would deter drug dealing and prostitution, as people would be less inclined to rent a room if police could get access to guest information at any time. Failure to turn the records over was a misdemeanor crime. The court found that the hotels and motels had an expectation of privacy in their business records, even if those records didn't contain anything of great personal value to the hotel. This was true even if the users themselves didn't have an expectation of privacy in the records. Because the ordinance didn't have a mechanism to allow the hotels and motels to obtain judicial review of whether the demand was reasonable before applying criminal penalties for non-compliance, the Ninth Circuit ruled the ordinance violated the Fourth Amendment. This procedural requirement-obtaining judicial review-is important, so that companies aren't at the mercy of the "unbridled discretion" of officers in the field, who would be free to arbitrarily choose when, whom, and how frequently to inspect a particular business. This decision provides ammunition for companies to challenge receipt of other forms of surveillance requests, including National Security Letters which are issued without any oversight or judicial review and require the recipient to remain silent about the fact it even received a request.

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National security letters in foreign intelligence investigations: a glimpse at the legal background (CRS, 3 Jan 2014) - Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act (107-56) expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held that the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect. A report by the Department of Justice's Inspector General (IG) found that in its pre-amendment use of expanded USA PATRIOT Act authority the FBI had "used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies," but that no criminal laws had been broken. A year later, a second IG report confirmed the findings of the first, and noted the corrective measures taken in response. A third IG report, critical of the FBI's use of exigent letters and informal NSL alternatives, noted that the practice had been stopped and related problems addressed. The USA PATRIOT Improvement and Reauthorization Act (P.L. 109-177, and its companion, P.L. 109-178) amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater congressional oversight. Following amendment, a federal district court found the amended procedure contrary to the demands of the First Amendment. The U.S. Court of Appeals for the Second Circuit, however, ruled that the amended statutes could withstand constitutional scrutiny if the government confined itself to a procedure which requires (1) notice to the recipient of its option to object to a secrecy requirement; (2) upon recipient objection, prompt judicial review at the government's petition and burden; and (3) meaningful judicial review without conclusive weight afforded a government certification of risk. Using this procedure, the district court upheld continuation of the Doe nondisclosure requirement following an ex parte, in camera hearing and granted the plaintiff's motion for an unclassified, redacted summary of the government declaration on which the court's decision was based. More recently, a district court in the Ninth Circuit agreed the amended nondisclosure and judicial review provisions were constitutionally defective, but could not agree to the Second Circuit's narrowing construction or that the NSL statute could be saved by severing the deficient disclosure provisions. The district court stayed its order enjoining issuance of further NSLs or enforcement of any accompanying nondisclosure provisions, however, pending appeal to the Ninth Circuit. The President's Review Group on Intelligence and Communications Technologies recommended several NSL statutory adjustments designed to eliminate differences between NSLs and Section 215 orders (under P.L. 107-56), including requiring pre-issuance judicial approval of NSLs.

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Can law blogging qualify for CLE credits? (Kevin O'Keefe, 4 Jan 2014) - Historically, education has taken place in the classroom with live speakers or recordings. With the advent of the Internet lawyers are now taking CLE classes online as well. Beyond classes, some states allow lawyers to earn credits by writing legal articles. The articles need not be law review or law journal quality or length. The articles need not be exclusively for other lawyers. In my first company, Prairielaw.com, the precursor to lawyers.com's content and community, we had lawyers author content for consumers and small business people. Lawyers practicing in states which allowed it, earned a CLE credit for each of their articles. Such content was written and contributed by the lawyers, in part, as a means of enhancing their reputation as a reliable and trusted authority. The lawyers also contributed their articles as way to gain additional exposure online. Sounds an awful lot like lawyers publishing a blog. Would law blog articles/posts qualify for CLE credits? I took a quick look at various states' positions on allowing lawyers to claim CLE credits for writing legal articles.

  • Tennessee : Writing articles concerning substantive law, the practice of law, or the ethical and professional responsibilities of attorneys may qualify for CLE credit if the articles are published in approved publications intended primarily for attorneys.
  • Maine : The writing of law related articles for publication will not be automatically approved for CLE credit. Authors requesting such credit must submit a copy of the article after publication for evaluation by the Board to apply toward only the self-study portion of the attorney's annual CLE obligation.
  • Georgia : May earn credits in researching and writing articles provided that (1) the article or treatise's content and quality are consistent with the purposes of CLE, (2) it is published in a recognized publication which is primarily directed at lawyers, and (3) the project was not done in the ordinary course of the practice of law, the performance of judicial duties, or other regular employment.
  • California : May get credit for articles published or accepted for publication that contributed to your legal education, exclusive of activity which is part of your employment.

You get the idea. Yes, lawyers may and do earn CLE credits for writing articles. At the same, though blog posts are arguably legal articles, you can see the hurdles and how states are apt to respond. [ Polley : A Canadian regulator emailed me: " Canadian provinces permit MCLE credit for writing but not for blogging. The distinction is difficult. In BC, the writing must be for a publication or course materials. Blogging is excluded on the basis of variability in rigor and quality. "]

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French-UAE Intel satellite deal in doubt (Defense News, 5 Jan 2014) - A United Arab Emirates (UAE) deal to purchase two intelligence satellites from France worth almost 3.4 billion dirhams (US $930 million) is in jeopardy after the discovery of what was described as "security compromising components." A high-level UAE source said the two high-resolution Pleiades-type Falcon Eye military observation satellites contained two specific US-supplied components that provide a back door to the highly secure data transmitted to the ground station. * * * In Paris, one defense specialist found it intriguing that France had drawn on US technology for the satellites under the Falcon Eye program. "That is surprising," the specialist said. France operates the Pleiades spy satellite in what is viewed as a critical piece of the nation's sovereignty. Given that core competence, it seemed strange that France would use US technology, although there is an agreement between Paris and Washington over transfer of capabilities, analysts said.

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70% of large firm lawyers don't know if their firm has been breached (RideTheLightning, 6 Jan 2014) - "Fully 70% of large firm respondents reported that they didn't know if their firm had experienced a security breach," according to the 2013 survey, entitled "Security Snapshots: Threats and Opportunities" conducted by the ABA's Legal Technology Resource Center. Of course, the fact that they don't know does not indicate a breach (easy to overlook that point). According to the survey, 15 percent of survey respondents had experienced a security breach, and respondents of mid-size firms (10-99 attorneys) were most likely to know about the breach. That makes sense because mid-size firms are more attuned to anything major happening that might affect the firm. * * * Our own experience, and conversations with other friends in information security, confirm how often law firms don't tell their attorneys that there has been a breach. They seem to operate on a "need to know" basis concluding that their attorneys don't need to know. We often hear "we have no proof that anything was done with client data" in spite of the fact that the intruders had full access to their network. Our encounters with these breaches indicate that if law firms can keep the breach quiet, they will.

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Navy mistakenly sends FOIA plans to reporter (Politico, 7 Jan 2014) - The Unites States Navy inadvertently sent a memo to a local NBC News reporter this week detailing how it intended to try and deter requests he had filed under the Freedom Of Information Act. Scott MacFarlane, a reporter for NBC 4 in Washington, D.C., tweeted out a screenshot of a portion of the memo on Tuesday morning, where the name of Robin Patterson, the Navy's FOIA Public Liaison is visible. The Navy FOIA office confirmed that MacFarlane had made the FOIA requests mentioned in the memo. In the memo, the Navy discusses how to negotiate with MacFarlane and tell him the request would be a "fishing expedition." At one point, the memo states that obtaining the documents may be costly, which might encourage MacFarlane to "narrow the scope" of his request. "Again, another 'fishing expedition,'" the memo states. "[J]ust because they are media doesn't mean the memos shed light on specific government activities." Officials in the Navy's FOIA office told us at first that the memo was sent as an "administrative error," then later said they could not comment on the veracity of the document.

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Confide: an app for execs who want sensitive messages to vanish Snapchat-style (GigaOM, 8 Jan 2014) - Many people associate "disappear" apps like Snapchat with young people who want to send each other bong or boob shots. But kids are hardly the only ones who want to relay sensitive or silly messages without leaving a permanent trace on the internet. That's the thinking behind " Confide ," a new app aimed at professionals who want to message each other about job references, corporate intrigue or other subjects that could cause trouble if a written record landed before HR or the legal department. Messages sent via Confide disappear on reading and can't be retrieved later. Available for Apple devices as of January 8, Confide is the brainchild of Jon Brod, a co-founder of local news site Patch, and Howard Lerman, the CEO of marketing start-up Yext. Brod says the app came about after Lerman contacted him by email about a potential employee who Brod did not want to discuss in writing. He suggested they speak by phone instead. "We're busy and it took us six days to connect," he said in a phone interview, explaining why they created the app. "Professional relationships require tools for impermanence and confidence. We wanted to take the proven model of meeting for an off-the-record cup of coffee and bring it online." To address the issue of screenshots, which can provide a way to preserve disappearing messages, Confide uses a "wand" feature that requires recipients to pass their fingers over the message to reveal additional words. The app also includes a notice feature, common among other disappear apps, that alerts the sender if the recipient took a screenshot of the message. Confide also includes another feature that might appeal to paranoid executives: end-to-end encryption that means Confide doesn't possess a retrievable copy of the message. As for the possibility that professionals could use Confide to skirt legal duties (such as by-laws that require them to preserve corporate communications), Brod said the app is simply a platform and that it would be up to individuals to comply with their obligations.

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NSA and GCHQ activities appear illegal, says EU parliamentary inquiry (The Guardian, 9 Jan 2013) - Mass surveillance programmes used by the US and Britain to spy on people in Europe have been condemned in the "strongest possible terms" by the first parliamentary inquiry into the disclosures, which has demanded an end to the vast, systematic and indiscriminate collection of personal data by intelligence agencies. The inquiry by the European parliament's civil liberties committee says the activities of America's National Security Agency (NSA) and its British counterpart, GCHQ, appear to be illegal and that their operations have "profoundly shaken" the trust between countries that considered themselves allies. Committee MEPs voted overwhelmingly on Thursday to have Snowden testify, defying warnings from key US congressmen that giving the "felon" a public platform would wreck the European parliament's reputation and hamper co-operation with Washington. While 36 committee members voted to hear Snowden, only two, both British Conservatives, voted against.

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Ninth Circuit has second thoughts about intercepting WiFi communications (Steptoe, 9 Jan 2014) - In September, the U.S. Court of Appeals for the Ninth Circuit rejected Google's motion to dismiss a suit based on Google's interception of Wi-Fi communications as part of its Street View program. As we reported then, the court held that payload data transmitted over a Wi-Fi network is not "readily accessible to the general public" and therefore does not fall within an exception to the Wiretap Act's prohibition on intercepting electronic communications. The Ninth Circuit last month granted Google's petition for rehearing in part, but only to delete a section of the opinion dealing with an argument Google had not raised; the court still allowed the suit to go forward. This may not seem like a big deal, but the court's decision means that Google can still try to prove in district court that Wi-Fi transmissions are readily accessible to the public and therefore not protected by the Wiretap Act. The ultimate outcome of this case could thus have significant ramifications for anyone who transmits or receives data over Wi-Fi networks.

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RESOURCES

Building blogs (and law firm web sites) ethically and effectively (Walter Effross, January 2014) - Provides a variety of suggestions to avoid ethical and other legal difficulties, suggests that the ABA spearhead the standardization of certain terms and conditions on law firms' sites, and discusses how law students and lawyers can best use a law firm's blogs to enhance their chances of employment.

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LOOKING BACK - MIRLN TEN YEARS AGO

(note: link-rot has affected about 50% of these original URLs)

You've got courriel (New York Times Editorial, 28 July 2003) - The French government recently decided to ban the use of the term "e-mail" in all of its ministries and official documents because it does not have a French origin. Instead, it will now use the word "courriel," a hybrid of the French words for electronic mail. It's the latest chapter in the long war to keep the French language pure, but we suspect this skirmish is going to be as hard to win as the attempt last year to get the French to call the "@" character "arrobe." Americans, who are generally happy if they can just get the younger generation to put their sentences in something approaching correct grammatical order, tend to be in awe of the idea that the French have had the Académie Française fighting the perceived deterioration of the language since 1635. The Académie is aided and abetted by the General Commission on Terminology and Neology, the government body responsible for creating new words, and the group we have to thank for the "courriel" movement. Obviously, every language grows and enriches itself by borrowing from others, but the Internet-propelled English-language influx has tipped the scales in one direction. During the late, unlamented French fries war earlier this year in the United States, patriots attempting to purge things French from the American culture must have noticed that the pickings were pretty scarce in the non-oenophile sections of the country. France has clashed over its language policies with other nations as well. Last year the European Union made Paris abandon a law requiring that food product descriptions and advertising, including those from foreign countries, be written in French. The government still makes supermarkets provide a translation on the shelf, though. It's persistence like that that makes us confident la belle langue will always be with us - recognizable, if a little less pristine. [Editor in 2003: Touchè! Editor in 2014: Ouch!]

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Intel Loses Decision In E-Mail Case (New York Times, 1 July 2003) -- The California Supreme Court ruled yesterday that a former employee of Intel was free to send e-mail messages to current company employees, overturning a lower court's injunction. The court rejected Intel's argument that the messages represented illegal trespassing to its computer systems. That argument is increasingly used by companies and Internet service providers in the fight against spam, or unsolicited commercial e-mail. "Everyone is trying to figure out ways to solve the spam problem, and this ruling doesn't help," said Jeffrey D. Neuburger, a technology lawyer with Brown Raysman Millstein Felder & Steiner in New York. "This is going to require lawyers to come up with other ways to deal with the issue." The case also attracted the attention of those interested in free-speech rights of current and former corporate employees. But the California court ultimately ruled only on the trespass issue. The case involved Kenneth Hamidi, a former Intel engineer, who had been fired after a dispute related to workers' compensation. He sent six e-mail messages from 1996 to 1998 to a list of Intel employees, criticizing the company and encouraging the employees to visit a Web site he created (faceintel.com) with information critical of Intel. In 1998, Intel received an injunction barring Mr. Hamidi, who now works for the State of California, from sending more messages to Intel employees. The injunction was upheld by an appeals court in 2001. Intel's argument rests on a little used doctrine of common law called trespass to chattels, which allows someone to sue for damages resulting from the inappropriate use of personal property, as distinct from the more common case of trespass to real estate. The doctrine was applied to e-mail messages in a landmark federal ruling in 1977, CompuServe Inc. v. Cyber Promotions, which held that spam could be considered trespass because it misappropriated the company's computer system. In a 4-to-3 ruling, the California Supreme Court said that doctrine did not apply to Mr. Hamidi's e-mail messages because they did not damage its computers or impose a significant cost on the company. Mr. Hamidi "no more invaded Intel's property than does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail, or telephoning to complain of a corporate practice," wrote Justice Kathryn Mickle Werdegar, in the majority opinion.

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NOTES

MIRLN (Misc. IT Related Legal News) is a free e-newsletter published every three weeks by Vince Polley at KnowConnect PLLC. You can subscribe to the MIRLN distribution list by sending email to Vince Polley ( mailto:vpolley@knowconnect.com?subject=MIRLN ) with the word "MIRLN" in the subject line. Unsubscribe by sending email to Vince with the words "MIRLN REMOVAL" in the subject line.

Recent MIRLN issues are archived at www.knowconnect.com/mirln . Get supplemental information through Twitter: http://twitter.com/vpolley #mirln.

SOURCES (inter alia):

1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School, http://cyber.law.harvard.edu

2. InsideHigherEd - http://www.insidehighered.com/

3. SANS Newsbites, http://www.sans.org/newsletters/newsbites/

4. NewsScan and Innovation, http://www.newsscan.com

5. Aon's Technology & Professional Risks Newsletter

6. Crypto-Gram, http://www.schneier.com/crypto-gram.html

7. McGuire Wood's Technology & Business Articles of Note

8. Steptoe & Johnson's E-Commerce Law Week

9. Eric Goldman's Technology and Marketing Law Blog, http://blog.ericgoldman.org/

10. The Benton Foundation's Communications Headlines

11. Readers' submissions, and the editor's discoveries

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