Sunday, February 14, 2016

MIRLN --- 24 Jan - 13 Feb 2016 (v19.03)

MIRLN --- 24 Jan - 13 Feb 2016 (v19.03) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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NEWS | RESOURCES | LOOKING BACK | NOTES

Tagging woman in Facebook post violates no-contact order, judge rules (ABA Journal, 14 Jan 2016) - A court order barring a woman from contacting another woman by "electronic or any other means" prohibited the subject from tagging the protected woman in a Facebook post, a New York judge has ruled. Denying a motion to dismiss a criminal contempt case against Maria Gonzalez, acting Westchester County Supreme Court Justice Susan Capeci said the conduct, if proven, would violate the protective order, the New York Law Journal (sub. req.) reports. A lawyer for Gonzalez argued that the court order didn't specifically ban making contact via Facebook. Gonzalez is accused of writing, in a link to the protected woman's Facebook profile, "You and your family are sad … You guys have to come stronger than that!! I'm way over you guys but I guess not in ya agenda."

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6 ways to prioritize before your law firm invests in IT security (LegalTechNews, 20 Jan 2016) - When it comes to prioritizing, the intricacies and evolutionary speed of digital threats can make cybersecurity seem like a frontier perhaps better left for later exploration. The problem, however, is that the future is now, and given the amount and severity of threats abound on the digital landscape, firms need to begin assembling the blocks of their cybersecurity strategies. That spurs the inevitable question: Where does any firm begin? On the digital landscape, some firms have already laid a foundation. A survey conducted by Chase Cost Management on law firm officials, many of whom were technology officers from Am Law 200 firms, found that the typical firm among those surveyed spent a little over $6.9 million a year on information security. Still, half of the respondents felt that their firms weren't spending enough on security. Regardless of budget, there are overarching considerations that every firm should be making. In attempt to see how firms can begin prioritizing their approaches to cybersecurity, Legaltech News reached out to experts for tips to help firms initiate and prioritize their fights against the threat. * * * [ Polley : and, I'd suggest you also get the ABA Cybersecurity Handbook .]

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Verizon GC: Law firms are prime targets for hackers (BNA, 4 Feb 2016) - Although most people think of Verizon as a telecommunications company, the organization has also become an authority on cybersecurity. In 2015, it issued a report that analyzed 79,790 cybersecurity incidents and 2,122 confirmed data breaches across 61 different countries. "The year 2014 saw the term 'data breach' become part of the broader public vernacular with The New York Times devoting more than 700 articles related to data breaches, versus fewer than 125 the previous year," the introduction to the report states. Verizon General Counsel Craig Silliman said that he thinks law firms are prime targets for hackers. "Firms have to make sure they are not a weak link in the company's overall cyber security profile, which at its most basic level means their standards for protecting data need to be at least equivalent to those of the companies they represent," Silliman said. In a recent interview with Big Law Business, Silliman discussed the cyber threat to companies and law firms, as well as the changing privacy regime in the European Union. Read Part I of the interview, about Silliman's philosophy on hiring law firms, here . Below is an edited transcript of the second installment of the interview. * * *

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Fox Rothschild creates HIPAA privacy officer role (Legal Intellligencer, 22 Jan 2016) - Fox Rothschild has taken what appears to be an unusual step for law firms with the naming of a HIPAA privacy officer. The firm announced health care ­regulatory partner Elizabeth G. Litten as its first privacy officer focused on ensuring the firm is protecting sensitive health information it receives from clients and employees. The news follows Fox Rothschild's naming last year of partner Mark McCreary as chief privacy officer. Litten said she doesn't know of any other firms that have formed such a role, though she said she would be surprised if there weren't others. Litten said it is something that should be done at other firms, though she said they may have rolled the function into a broader cybersecurity or information ­technology function. But for Fox Rothschild, it was important to keep separate the role of protecting health information. Litten said requirements under the Health Insurance Portability and Accountability Act are much more complex than some people might realize. She said lawyers and staff of the firm should know who they can call when they receive potentially protected health information.

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Coursera removes free track from some MOOCs (InsideHigherEd, 25 Jan 2016) - Massive open online course platform Coursera is removing the option to complete some of the courses offered on its platform for free. Coursera has previously offered a free track and a paid track that awards an identity-verified certificate, but as of last week, learners will have to pay a fee in some courses to have their assignments graded. Learners in those courses who choose not to pay can still browse the course materials, including discussions and assignments.

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Those pesky software updates now coming to a car near you (PropertyCasualty360, 25 Jan 2016) - You hate them on your phone and dread them on your computer - now, those pesky software updates are coming to your car. Carmakers led by Tesla Motors Inc. are pushing over-the-air Wi-Fi and 3G or 4G wireless downloads to add functions such as self-parking and to upgrade performances of their vehicles. It's prompting suppliers like NXP Semiconductors NV, Ericsson AB and Gemalto NV to celebrate as car builders fight to keep hackers out. Tesla this month rolled out new software that will let its Model S and Model X electric sedans park in a garage or in perpendicular spaces without a driver behind the wheel. The average update takes 45 minutes. It's typically aimed at boosting anything from engine performance to the car's speed and electric battery usage. The practice of updating a car's software is due to grow at least tenfold in the coming six years as vehicles become increasingly connected, researcher IHS Automotive forecast in a report. About 4.6 million cars got over-the-air updates for telematics applications last year, compared to 43 million units expected worldwide by 2022, it said. Maps, infotainment and core auto functions will also spur updates, IHS said.

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German court says Amazon e-mail 'share' function unlawful (Reuters, 25 Jan 2016) - A German court has declared unlawful a feature that encourages Amazon customers to share links to products of the online shop with their contacts, confirming the ruling of a lower court. The Amazon "share" feature invites customers to share a product via e-mail, Facebook, Twitter or Pintrest. The court said on Monday that sharing by e-mail without approval of the recipient was illegal. It is "unsolicited advertising and unreasonable harassment," the regional court in Hamm said, confirming the ruling of a lower court in Arnsberg. The ruling comes after Germany's highest court ruled earlier this month that a similar feature that encourages Facebook users to market the social media network to their contacts as unlawful.

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Uber monitoring drivers in US in attempt to flag dangerous driving (The Guardian, 26 Jan 2016) - Uber has quietly begun monitoring the movements of some of its drivers in an experimental Texas-based pilot that is attempting to flag up dangerous driving. Abrupt movements in a smartphone's accelerometer, a movement sensor built into most smartphones, can show when a driver accelerates and brakes too quickly - consistent with driving too close to the car in front, or "tailgating". Uber did not explicitly tell drivers that their movements are being tracked, but the company says it is informing users only when it needs to access the data after a company complaint. Selected drivers in Houston have been monitored for the trial since it started in late 2015. Uber told the Guardian it is running or is planning several experiments designed to gain more influence over the behaviour of drivers and passengers in its vehicles, which are owned and operated by freelance contractors. Taken together, these efforts could amount to a subtle form of quality control. The company says it is considering sending dashboard phone mounts to drivers accused of texting while driving, and installed passenger-facing mirrors in the backseats of operators in Seattle based on evidence it causes riders to "self-moderate" their behavior. It has also put a children's sound toy called a Bop It in the back of cars across Charlotte, North Carolina, to dissuade intoxicated passengers from distracting drivers.

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Google Street View opens the Guggenheim Museum to the world (Mashable, 26 Jan 2016) - Traveling New York to experience the city's many epic museums isn't something exactly affordable, which is why a new online tour of the famed Guggenheim Museum will be a welcome addition to Google Street View . Captured using tripod-mounted cameras, Street View trolley cameras and even drones, anyone with Internet access can explore the museum's well-known spiral staircase, which has been featured in scores of movies. By navigating to a special Google-created site , users can virtually stroll through the museum's halls and peer up through the structure's Frank Lloyd Wright-designed circular skylight (known in the museum as the oculus). Once you begin your virtual journey, you can check out roughly 120 pieces of art, including a special exhibition from last year called "Storylines: Contemporary Art at the Guggenheim." In addition to the 2015 exhibit, users can take a deep dive into the museum's 2013 exhibit "No Country: Contemporary Art For South and Southeast Asia." A kind of virtual elevator, just beneath the navigation control interface, lets you instantly move from the first floor of the museum to the sixth floor in much the same way as you would via a normal elevator.

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Wake Up Call: Sidley Austin partner rails against thank you emails (BNA, 27 Jan 2016) - Sidley Austin recently became the latest law firm to urge its attorneys not to send thank you emails , which a partner called a "complete waste of everyone's time."

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FTC announces significant enhancements to IdentityTheft.gov (FTC, 28 Jan 2016) - For the first time, identity theft victims can now go online and get a free, personalized identity theft recovery plan as a result of significant enhancements to the Federal Trade Commission's IdentityTheft.gov website. The new one-stop website is integrated with the FTC's consumer complaint system, allowing consumers who are victims of identity theft to rapidly file a complaint with the FTC and then get a personalized guide to recovery that helps streamline many of the steps involved. The upgraded site, which is mobile and tablet accessible, offers an array of easy-to-use tools, that enables identity theft victims to create the documents they need to alert police, the main credit bureaus and the IRS among others.

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License plate readers in Texas are now also debt collectors (Wired, 30 Jan 2016) - Vehicle surveillance broker Vigilant Solutions has offered Texas law enforcement agencies "free" access to its massive automated license plate reader databases and analytical tools- but only if the police give Vigilant access to all of their data on outstanding court fees and hand the company a 25 percent surcharge from money collected from drivers with outstanding court fines. Vigilant also gets to keep a copy of any license-plate data collected by the police, even after the contract ends, and can retain it indefinitely. The EFF warns that it turns police into debt collectors and data miners. Neither policymakers nor the public have evaluated the technology, it contains a non-disparagement clause, and it uploads everyone's driving patterns into a private system without any ways for these individuals to control how their data is used or shared. According to a contract between Vigilant and the NYPD , the "Domain Awareness System" has extensive surveillance capabilities. The system combines license plate data with camera footage and surveillance devices, and it allows NYC police to monitor cars across the country. The software's "stakeout" feature gives the NYPD access to who was at a location (such as a protest, a church, or even an abortion clinic) at a given time, and can use both "predictive analysis" to determine where a person is likely to be, and "associative analysis" to determine whether someone is a "possible associate" of a criminal. [ Polley : Spotted by MIRLN reader Mike McGuire ]

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New technologies give government ample means to track suspects, study finds (NYT, 31 Jan 2016) - For more than two years the F.B.I. and intelligence agencies have warned that encrypted communications are creating a "going dark" crisis that will keep them from tracking terrorists and kidnappers. Now, a study in which current and former intelligence officials participated concludes that the warning is wildly overblown, and that a raft of new technologies - like television sets with microphones and web-connected cars - are creating ample opportunities for the government to track suspects, many of them worrying. " 'Going dark' does not aptly describe the long-term landscape for government surveillance," concludes the study, to be published Monday by the Berkman Center for Internet and Society at Harvard. The study argues that the phrase ignores the flood of new technologies "being packed with sensors and wireless connectivity" that are expected to become the subject of court orders and subpoenas, and are already the target of the National Security Agency as it places "implants" into networks around the world to monitor communications abroad. The products, ranging from "toasters to bedsheets, light bulbs, cameras, toothbrushes, door locks, cars, watches and other wearables," will give the government increasing opportunities to track suspects and in many cases reconstruct communications and meetings. The study, titled, " Don't Panic: Making Progress on the 'Going Dark' Debate ," is among the sharpest counterpoints yet to the contentions of James B. Comey, the F.B.I. director, and other Justice Department officials, mostly by arguing that they have defined the issue too narrowly.

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Angry Comcast customer set up Raspberry Pi to auto-tweet speed test results (Ars Technica, 1 Feb 2016) - A Comcast customer who is dissatisfied with Internet speeds set up a Raspberry Pi to automatically tweet at Comcast each time speeds are much lower than advertised. "I pay for 150Mbps down and 10Mbps up," Reddit user AlekseyP wrote over the weekend . "The Raspberry Pi runs a series of speed tests every hour and stores the data. Whenever the down[load] speed is below 50Mbps the Pi uses a Twitter API to send an automatic tweet to Comcast listing the speeds. I know some people might say I should not be complaining about 50Mbps down, but when they advertise 150 and I get 10-30 I am unsatisfied." AlekseyP made the Twitter bot's code available on Pastebin . "I am by no means some fancy programmer so there is no need to point out that my code is ugly or could be better," the Redditor wrote. AlekseyP set the tweeting threshold at 50Mbps in part because the Raspberry Pi's Ethernet port tops out at 100Mbps. The Twitter account controlled by the bot has tweeted speed test results 16 times in the past three months, often getting replies from Comcast customer service.

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Cybersecurity gap blocks Pentagon from a Lockheed F-35 database (Bloomberg, 1 Feb 2016) - The Pentagon hasn't had updated information on maintenance of the F-35 jet since May because a Lockheed Martin Corp. database doesn't meet new government cybersecurity requirements, according to the Defense Department's testing office. "Because of this non-compliance government personnel have not been able to access the database via government networks," and that's preventing a Pentagon-Lockheed team "from holding the planned reviews of maintenance records," Michael Gilmore, the Defense Department's testing chief, said in an assessment of the F-35, the costliest U.S. weapons program. The shortfall in Lockheed's database for engine and air-frame maintenance under security requirements imposed in August by U.S. Cyber Command is among computer security deficiencies outlined in Gilmore's annual report on major weapons systems, posted Monday on his office's website.

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A new way to use facial recognition to find photos of you (MIT, 2 Feb 2016) - A startup is trying to make it simpler to find photos of you that were taken by people you know and professional photographers by using a combination of facial recognition, GPS, and time-stamping to track the images down. Waldo , a startup based in Austin, Texas, plans to release a smartphone app in two to three months that asks you to snap a selfie. It then uses that selfie-along with your locations over time-to figure out if any photos have been taken of you at, say, a rock concert or a wedding that have been shared with Waldo. Any photos it finds are then dropped into an album in the app on your smartphone, and an alert will let you know that they've arrived. An app called Waldo, expected to be released in the coming months, uses facial recognition along with time and location information to find you in photos taken by other people. The company, which recently received $5 million in funding in a round led by venture capital firm Upfront Ventures, plans to release Waldo as a free iPhone app initially (an Android version is in the works). Users will be able to share their own photos with the app, so friends can ask Waldo to find any that they're in, and any photos of you that Waldo finds can then be downloaded or shared on social media. There will also be a way to let the app know who your friends are, so that if users allow it to, it can proactively sort through their images and ask if it's okay to share them with you.

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Lawyer is accused of getting opposing counsel's trial questions from emails hacked by client (ABA Journal, 2 Feb 2016) - The Missouri Supreme Court is scheduled to hear arguments this month in an ethics case against a lawyer accused of using information obtained by his divorce client by guessing his wife's email password.

The lawyer, 70-year-old Joel Eisenstein, is a part-time prosecutor, the St. Louis Post-Dispatch reports. The disciplinary counsel is seeking an indefinite suspension , with leave to apply for reinstatement after a year. Ethics officials say Eisenstein saw two documents obtained by his client: a payroll document for the client's wife and a list of direct examination questions prepared by the wife's attorney for the upcoming divorce trial. Eisenstein allegedly used the payroll document during a settlement conference in July 2013 without disclosing he had it, according to a brief filed by the chief disciplinary counsel. Opposing counsel learned Eisenstein had the list of questions in February 2014 when it was included in a stack of exhibits that Eisenstein gave the lawyer. When opposing counsel asked Eisenstein why he had the list, he replied it contained a lot of leading questions and he planned to object to them, the disciplinary counsel alleges. Eisenstein later said his paralegal had placed the questions in the stack of exhibits, and he was joking when he remarked on the leading questions. In a conference in the judge's chambers, Eisenstein initially said he had not seen the questions list before that morning, then admitted he had seen it but didn't read it, the disciplinary counsel's brief alleges. On the record, Eisenstein's client said he had obtained the documents by accessing his wife's personal email account.

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ISIS has reportedly released its first Android app (Business Insider, 2 Feb 2016) - Islamic State militants can now share their radio broadcasts all over the world through an Android app, dark-web news site Vocativ reports . The app cannot be downloaded using the Google store like normal apps, and can only be accessed through APK files (a file format used for installing software on Android operating system), that the group's followers are spreading online. According to deep web analysts at Vocativ, who discovered the app, the files are distributed on Islamic State-linked social media and forums to allow those who download the app to listen to the group's al-Bayan radio broadcast. The radio station, which targets European recruits, broadcasts ISIS (also known as the Islamic State, ISIL, or Daesh) propaganda, along with music. The radio station is often used to broadcast claims of responsibility for attacks, such as the San Bernardino shooting in California.

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Legal Cloud Computing Association releases security standards (Lawyerist, 3 Feb 2016) - How do you know whether your cloud software is sufficiently secure to meet your obligation to protect your clients' information? Right now, there is no easy answer. You just have to educate yourself and then make up your own mind. That could change as a result of the draft security standards that the Legal Cloud Computing Association released today at LegalTech. The standards are basically a sensible checklist of things you should expect to know about the software you use: * * * It's possible to be cynical about this since all the members of the LCCA (Clio, DirectLaw, Rocket Matter, NetDocuments, CalendarRules, NextPoint, and Onit) sell cloud software to lawyers. But lawyers make their own rules, so why not cloud software providers? Besides, the LCCA has reached out to bar associations and hopes to work with them to help clarify what reasonable care looks like in the cloud.

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Take-Two software sued over copyright on NBA players' tattoos (Techdirt, 3 Feb 2016) - Are tattoos covered under copyright law? Yeah, probably . But also, hey, maybe not. But if yes, how much control does the artist get to exert over depictions of the copyrighted tattoo? After all, it's on somebody's skin . And, hey, that somebody might be famous, like an athlete , who might then be depicted in video games about that sport. If so, then we get to find out if depictions in artistic works, such as video games, would fall under fair use and/or First Amendment provisions. It seems nobody is actually sure how to answer these questions, because what few cases have been brought before the court all appear to have ended in settlements and low-level court rulings. Which, I suppose, is why they seem to keep on a-coming. The latest is a company named Solid Oak Sketches, which claims to own the copyright on the tattoo designs appearing on the bodies of several NBA players, including LeBron James, Kobe Bryant, and DeAndre Jordan. The company has recently filed a copyright infringement suit against Take-Two Software , makers of the NBA2K franchise. Solid Oak is suing Take-Two Interactive Software and other companies associated with the videogame NBA 2K16 for unauthorized reproductions of those tattoo designs. The question over whether tattoo designs are copyrightable has never been fully decided by a court, as acknowledged in the new lawsuit. Victor Whitmill's lawsuit against Warner Bros. over Hangover 2 settled as has other disputes including one by a tattoo artist, Christopher Escobedo, who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ. On one hand, copyright law protects original works of expression fixed in a tangible medium. In the Whitmill case, before it settled, the judge commented, "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that." An opinion was never issued, however. In the THQ case, Escobedo was awarded $22,500 for his lion tattoo. Then again, it could be argued that tattoo appropriation in an expressive work is de minimus.

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FDA issues postmarket cybersecurity recommendations for medical devices (JDsupra, 3 Feb 2016) - On January 22, 2016, the federal Food and Drug Administration ("FDA") issued a draft guidance outlining postmarket recommendations for medical device manufacturers to address cybersecurity risks. The draft guidance details the agency's specific recommendations, which address monitoring, identifying and managing cybersecurity vulnerabilities in medical devices that are software, or contain software (including firmware) or programmable logic once they have entered the market. The draft guidance represents a part of the agency's ongoing efforts to ensure the safety and effectiveness of medical devices in the face of potential cyber threats at all stages in their lifecycles. Specifically, the draft guidance follows multiple public workshops on the issue and previous FDA guidance titled " Content of Premarket Submissions for Management of Cybersecurity in Medical Devices ," which contains premarket recommendations for managing cybersecurity risks during the design stage of device development. We previously blogged about this here . The draft guidance recommends that manufacturers should implement a structured, systematic, and comprehensive cybersecurity risk management program that includes the following essential components, among others: * * *

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Does StandIn stand up for solo and small law firms? (MyShingle, 4 Feb 2016) - Scrolling through #LegalTech on Twitter, a new name came across my feed: StandIn , described as kind of an Uber for court appearances. Since many other #altlaw sites that self-describe as Uber rarely live up to the hype, I decided to see how StandIn would stand up to the comparison and downloaded the app to my phone, then watched a quick demo sent by Peter Cariannis . Design-wise, the StandIn App compares favorably to Uber. The interface has a similar look, and like Uber, StandIn is both simple and intuitive to use. Of course, arranging a courtroom appearance is somewhat more complicated than simply hailing a cab - but StandIn ensures that the process is seamless by providing a standard workflow with a list of sequential tasks that can be checked off as completed. But one step that I'd want to add before releasing payment is transmittal of a summary of the hearing by the appearance attorney. Aside from the app's features, there's a more significant question: should solos and smalls sign up for StandIn - either as providers or procurers of appearance services? On the provider side, the stand-in work could be worthwhile for lawyers with extra bandwidth who practice near the court and can get in and out quickly for the fee charged, or take on several cases at once. That's the model behind another appearance service firm, , where high volume firms can find appearance lawyers to take on appearances in local courts, often in remote locations. Attorneys on Demand , which has been around even longer has a similar approach, and I'm familiar with at least one small law firm and one solo whose practiced consist entirely of appearance work.

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Now you can swipe for an on-demand notary, too (TechCrunch, 4 Feb 2016) - On-demand services have taken off, much to the delight of pretty much everyone who uses them. Now we can add notary services to the list of conveniences we can call up with a tap on our iPhones thanks to Notarize , a months-old startup with offices in Alexandria, Va., and in Boston. It offers a 24-hour service that enables people in all 50 states to have their documents notarized remotely. If you've experienced the ridiculousness of having to track down a notary, this may all sound too good to be true. And it would have been until very recently. But in 2011, Virginia passed a bill allowing documents to be notarized remotely, using audio-video technology. * * * Thus was born Notarize, which is available as an iOS application alone (right now) and that functions like a traditional notary, but moves the entire process online. Clients verify they are who they say with a government issued photo ID that Notarize authenticates using computer imaging technology and some kind of software-based forensic analysis. The person is then connected with a commissioned Virginia Electronic Notary Public agent via live video call. (Notarize has 24 agents at the ready as of this writing.) The agent then completes the process using digital tools, after which the client can print and deliver the notarized document or send it electronically to whomever is waiting on it.

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AVVO officially launches its fixed-fee legal services in 18 states (Robert Ambrogi, 9 Feb 2016) - Last month, this blog was the first to report the news that Avvo was beginning to roll out a service, called Avvo Legal Services , offering fixed-fee, limited-scope legal services through a network of attorneys. At that point, the service was being tested in five cities. Today, Avvo is officially launching the service across 18 states that encompass some 70 percent of the U.S. population. Through the service, Avvo is offering consumers access to a network of attorneys who will provide a variety of limited-scope legal services at a fixed fee. The services range from review of legal documents such as business contracts and non-disclosure agreements to more involved matters such as uncontested divorces and citizenship applications. The service builds on a related service Avvo launched last year, Avvo Advisor , that provides on-demand legal advice by phone for a fixed fee of $39 for 15 minutes. As I noted in my previous post, Avvo sets the services to be provided and the prices. Attorneys who sign up for the service can choose which legal services they want to offer. When a client buys the service, Avvo sends the client's information to the attorney. The attorney then contacts the client directly and completes the service. Clients pay the full price for the service up front. Once a month, Avvo deposits earned fees into the attorney's operating account. As a separate transaction, it withdraws from the account a per-service marketing fee that the attorney pays to Avvo.

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The British want to come to America - with wiretap orders and search warrants (WaPo, 4 Feb 2016) - If U.S. and British negotiators have their way, MI5, the British domestic security service, could one day go directly to American companies such as Facebook or Google with a wiretap order for the online chats of British suspects in a counter­terrorism investigation. The transatlantic allies have quietly begun negotiations this month on an agreement that would enable the British government to serve wiretap orders directly on U.S. communication firms for live intercepts in criminal and national security investigations involving its own citizens. Britain would also be able to serve orders to obtain stored data, such as emails. The previously undisclosed talks are driven by what the two sides and tech firms say is an untenable situation in which foreign governments such as Britain cannot quickly obtain data for domestic probes because it happens to be held by companies in the United States. The issue highlights how digital data increasingly ignores national borders, creating vexing challenges for national security and public safety, and new concerns about privacy. The two countries recently concluded a draft negotiating document, which will serve as the basis for the talks. The text has not been made public, but a copy was reviewed by The Washington Post.

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Fastcase sues Casemaker over publishing of state laws (Robert Ambrogi, 6 Feb 2016) - Two of the nation's leading legal research services will be facing off in federal court, as Fastcase has sued Casemaker seeking a declaratory judgment that could have broad-reaching implications for legal publishing in the United States. Fastcase went on the offensive and filed the lawsuit in U.S. District Court in Atlanta on Feb. 3 after Casemaker served it a written notice last month demanding that Fastcase take down from its research collection the Georgia Administrative Rules and Regulations. Casemaker's parent company, Lawriter, has an agreement with the Georgia Secretary of State designating it as the exclusive publisher of the Georgia Rules and Regulations and giving it the right to license that content to other publishers. But Fastcase maintains that the Georgia regulations are public law published under statutory mandate and are therefore in the public domain, meaning that Casemaker cannot claim an exclusive right to their publication.

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Ten weeks of public camera surveillance not a search, 6th Circuit rules (Volokh Conspiracy on WaPo, 8 Feb 2016) - The U.S. Court of Appeals for the 6th Circuit has handed down a new ruling on technology and privacy. The question: If the government sets up a video camera on a public utility pole and captures 10 weeks' worth of video of what happened on a suspect's property, is taking the video a "search" under the Fourth Amendment? The answer, from a divided 6th Circuit decision in United States v. Houston : No, it is not. First, the facts. The Houston brothers had a long-running feud with local law enforcement , which included a shootout between the Houstons and an officer that left a police officer and his civilian ride-along companion dead. The Houstons were charged with murder and claimed self-defense; the jury acquitted them. At some point later on, the police heard reports that the Houstons were often in open possession of guns on their rural Tennessee farm. One of the Houstons had a 2004 conviction for felony evading arrest, which made possession of a gun illegal. Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") drove by the farm to see if they could observe the guns from the public road. The agents "stuck out like a sore thumb" at the rural farm, however, so they didn't stay long. Instead, the ATF agents set up a video camera on a public utility pole about 200 yards from the trailer on the farm where the Houstons spent a lot of their time. The camera shot video continuously for 10 weeks. According to the evidence at trial, the video did not record anything that could not have been observed by watching from a public road. The difference, of course, was that the camera was not noticeable to the Houstons and it recorded continuously for 10 weeks. The camera output revealed evidence of gun possession, which supported warrants to search the residences on the farm. Those searches revealed 25 firearms attributable to the Houston brothers. A divided 6th Circuit ruled that the 10 weeks of public video surveillance did not amount to a search. Here's the holding from the majority opinion by Judge John Rogers that was joined by Judge Bernice Donald:

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RESOURCES

Software for adding some digital to your classroom (InsideHigherEd, 24 Jan 2016) - Let's say that you have decided to teach an online course or incorporate digital components into your classroom , your syllabus is solid, and you have written a comprehensive technology policy for your students. The next step in digitizing your undergraduate course is figuring out how to turn your amazing ideas into reality. Today I want to address the nitty-gritty details of creating digital materials by recommending a few software programs that I have used to create mine. As a self-diagnosed indiscriminate software adopter, I have tried just about every program that released in the last five years. Plagued by the feeling that the perfect program exists just around the corner, I pick up and toss out software weekly. Below, however, are the programs that have outlasted my fickleness and proved to be easy to use as well as effective. * * *

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After Google Spain and Charlie Hebdo: The Continuing Evolution of European Union Data Privacy Law in a Time of Change (by Gregory Voss; The Business Lawyer, Vol 71, No. 1) - This article investigates various developments over that year that helped (or are helping) reshape European Union data privacy law, building around two important events: the Court of Justice of the European Union's Google Spain decision, applying a form of a "right to be forgotten," and the Paris terrorist attacks on the satirical journal Charlie Hebdo in January 2015 after which additional security measures involving websites and surveillance in France were adopted and advances on an EU directive on PNR data were made. The EU member state court decisions that came in the wake of the Google Spain decision and that give a right to individuals in the EU to have certain search engine results delisted, which raise issues for Internet search engines, publishers of information, and potentially other Internet intermediaries, are discussed, as are Google's attempts to come to terms with the Google Spain decision. In addition, this article covers the continuing EU member state data protection agency enforcement action on Google's privacy policy, that were detailed in the author's prior article - "European Data Privacy Law Developments," with lessons being drawn for businesses regarding privacy policies and data protection compliance generally. The surveillance measures discussed apply to electronic and other communication methods and introduce possibilities in France for mass data collection. Thus, the French legislation adopted in part in reaction to terrorist attacks, described by some as analog to the U.S. Patriot Act - evidences modifications related to security affecting the business legal environment for internet and telecommunications companies and others. Similarly, EU efforts to allow greater passenger data sharing following the Charlie Hebdo attacks also show the continuing tension between data privacy - considered a fundamental right in the EU - and security. Finally, ongoing work on the European Union data protection law reform - which will apply to non-European companies offering goods or services to individuals in Europe or monitoring their behavior - is detailed.

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Groves on the publicity rights of college athletes and First Amendment rights of other parties (MLPB, 2 Feb 2016) - Roger M. Groves, Florida Coastal School of Law, is publishing 'Can I Profit from My Own Name and Likeness as a College Athlete?' The Predictive Legal Analytics of a College Player's Publicity Rights vs. First Amendment Rights of Others in volume 48 of the Indiana Law Review (2015). Here is the abstract: This Article is focused entirely on the battle between athlete's NIL/publicity rights and the First Amendment rights of those who use those rights in their own works or products. The aforementioned publicity rights settlements predictably do not provide any admission of liability or wrongdoing by the NCAA or any other defendants. Therefore, the primary source of legal authority and precedent on the publicity rights issues reside in the Hart and Keller opinions discussed in this Article. In the three cases of import, Keller, Hart, and O'Bannon, the athletes abided by the NCAA rules that required that they refrain from taking advantage of their relative fame through licensing their NILs or otherwise being paid in any form, directly or indirectly from the sport. In all three cases, the NCAA and its licensee partners gained substantial revenue using the NILs of the athletes. Furthermore, in all three cases the athletes did not receive proceeds from the licensing or use of their NILs from the NCAA or its partners before or after the collegiate eligibility expired. This article provides a continuum of factors that help predict when the NCAA and licensed partners no longer have prevailing First Amendment rights over the publicity rights of collegiate athletes.

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LOOKING BACK - MIRLN TEN YEARS AGO

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

Belgian court tells Google to drop newspaper excerpts (New York Times, 19 Sept 2006) -- A court ordered Google to remove on Monday all links to French- and German-language newspaper reports published in Belgium after an association of local publishers won a case that accused the company of violating the country's copyright laws. The legal action is the most recent example of the news media's challenging the growing power of Internet news portals run by the large search engines. Increasingly, people are obtaining their news in bite-size nuggets on search engines, and advertising revenue for newspapers is diminishing as a result. Copiepresse, an organization that helps enforce the copyrights of some of Belgium's best-known newspapers, including Le Soir and Le Libre Belgique, sued Google for publishing summaries of articles in the newspapers along with a link to the Web sites of the newspapers. Google contends that copyright law protects its service under fair-use provisions. Google News benefits publishers, [its spokesman] said, by making it easier for people to find their content and driving large numbers of users to their Web sites. "It is important to remember that we never show more than the headlines and a few snippets of text," he said. "If people want to read the entire story they have to click through to the newspapers' Web site." In the United States last month, Google agreed to license content from The Associated Press for a new service. Mr. Louette said this was a positive sign for the news media. "The deal with A.P. seems to contradict Google's stated business model, which is not to pay for content," he said.

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Sun asks S.E.C. to allow blog fiscal filings (New York Times, 7 Oct 2006) -- The chief executive of Sun Microsystems. Jonathan I. Schwartz, has asked the Securities and Exchange Commission to allow companies to disclose significant financial information through their blogs. With a growing number of companies publishing corporate blogs or online diaries, and an S.E.C. chairman with a penchant for technological innovation, Mr. Schwartz is making the case for blogs - including his own on the Sun Web site - as a way to expand investors' access to information. The S.E.C. currently allows blogs to be used to disseminate a company's financial information, but the blog must reach a broad audience. In a Sept. 25 letter to the S.E.C. chairman, Christopher Cox, Mr. Schwartz noted that Sun's Web site gets an average of nearly a million user hits a day, including the blog that he writes as chief executive and those of thousands of Sun employees. Mr. Schwartz wrote: "Its content is 'pushed' to subscribers. This Web site is a tremendous vehicle for the broad delivery of timely and robust information about our company." Mr. Schwartz's letter does not specify how many people read his blog, as opposed to the Web site in general, so more data would be needed to determine whether it meets the criterion of broad distribution under the regulation, in the S.E.C.'s view. An S.E.C. spokesman, John Nester, said that agency regulations contemplate "Web-based disclosure, and that's why the rule does not proscribe any particular method of dissemination - so long as it is broad and nonexclusionary." Thirty Fortune 500 companies are now publishing corporate blogs.

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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. Steptoe & Johnson's E-Commerce Law Week

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

9. The Benton Foundation's Communications Headlines

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

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