Saturday, May 07, 2016

MIRLN --- 17 April – 7 May 2016 (v19.07)

MIRLN --- 17 April - 7 May 2016 (v19.07) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)



Target's cyber insurance: a $100 million policy vs. $300 million (so far) in costs (Patterson Belknap, 7 April 2016) - When it comes to buying cyber insurance, businesses can take comfort that they have mitigated the financial risks that come with a data breach. Just not all of them. Target Corporation's high-profile hack is a case in point. In a securities filing last week, Target said costs associated with its 2013 holiday season data breach - which exposed the personal information of more than 100 million customers - are approaching $300 million. As of January 2016, Target has incurred $291 million in breach-related costs including legal fees, crisis communications and forensics costs. Of that amount, less than one-third or about $90 million is expected to be covered by cyber insurance. At the time of the breach, Target had $100 million in cyber insurance coverage from multiple underwriters, on top of a $10 million deductible. According to its public filings, Target's cyber insurance policy contained a $50 million sublimit for settlements with payment card networks. In 2015, Target entered into settlement agreements with all four of its major credit card providers, which are in various stages of court approval. Visa, for example, cut a $67 million deal with Target. MasterCard later entered into a $19 million settlement. But Target hasn't disclosed whether its settlements with the credit card companies will come from a portion of the cyber insurance, subject to the sublimit, or if those settlements will be funded by other sources (such as its corporate general liability policy or from its operations). And the financial pain isn't close to over. Although Target has resolved many of the more than 100 lawsuits filed after the breach, it still faces several shareholder class action lawsuits, a separate lawsuit filed in Canada and ongoing investigations by State Attorneys General and the U.S. Federal Trade Commission. Several industry analysts forecast that Target's breach-related losses will reach $1 billion. After disclosure of the breach in early 2014, Target's profit was cut in half - down 46 percent over the same period the year before.

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Federal appeals court holds data breach class action triggers insurer's duty to defend under general liability policy (Holland & Hart, 15 April 2016) - A federal court of appeals held that general insurance policies cover a data breach class action in a case that is highly likely to impact how courts throughout the country resolve insurance claims related to cyberattacks and policy renewal negotiations. On April 11, 2016, the United States Court of Appeals for the Fourth Circuit upheld a trial court's finding that Travelers Indemnity Company of America is required to defend Portal Healthcare Solutions, LLC in a class action filed in New York. In the original case, two plaintiffs filed a class action alleging that Portal failed to safeguard their confidential medical records when they were made publicly accessible on the internet. Travelers filed a separate action seeking a declaratory judgment that it was not required to defend Portal. Travelers argued that the class representatives had not alleged that Portal had "published," given "undue publicity," or "disclosed" the plaintiffs' information to any third party, to trigger coverage under the policies. Applying Virginia law, the trial court disagreed, finding that it was required to follow the "Eight Corners Rule" by looking to the four corners of the class action complaint to determine whether it alleged grounds for liability "potentially or arguably covered" by the four corners of the insurance policies. The trial court concluded that since the policies did not define the operative terms "publication," "unreasonable publicity," or "disclose," those terms would be given their plain and ordinary meaning. Citing common dictionaries, the court found that the tort alleged in the class action - i.e., exposing the plaintiffs' medical records online - constituted publication, unreasonable publicity, and disclosure of the medical records even if the only individuals who actually saw the records were the plaintiffs. Thus, the court concluded, Travelers was required to provide a defense to Portal. The Fourth Circuit upheld the trial court's ruling, holding that the trial court correctly applied the Eight Corners Rule, particularly because "under Virginia law, an insurer's duty to defend an insured is broader than its obligation to pay or indemnify an insured" and that "the insurer must use language clear enough to avoid ambiguity if there are particular types of coverage that it does not want to provide." Although the Fourth Circuit was interpreting Virginia law, most jurisdictions throughout the United States - including Utah - apply the Eight Corners Rule and, even where the rule is articulated differently, as in Colorado, courts universally hold that insurance companies have a broad duty to defend. The ruling has significant implications for claims under existing or prior policies. First, companies that are or have been the target of cyberattacks likely have a strong claim that their existing general insurance policies cover any ensuing litigation related to the cyberattacks. Because a company may not discover that it was the target of a cyberattack until months or years afterwards, insurance companies will likely have to cover significant claims covered by current or prior policies for years to come. [ See also Do you need cyber insurance or will your CGL policy be enough? (Womble Carlyle, 25 April 2016)]

Santa Clara County: High-tech police spying rules take shape (Mercury News, 18 April 2016) - Santa Clara County officials are poised to approve sweeping rules governing police use of cell phone trackers and other spying technology that advocates say will be a model for the nation but that cops worry could hamper investigations. "Santa Clara County is asking and answering the right questions," said Nicole Ozer of the ACLU's Northern California chapter. "It's going to be a model for moving forward for other cities and counties." But the sheriff's and district attorney's offices have both said that the ordinance could prove cumbersome because of the need to report on what's being done in the field with surveillance technology. County Supervisor Joe Simitian's proposal for an electronic surveillance ordinance has been in the works since late 2014. Such privacy concerns have garnered greater scrutiny in Santa Clara County since then because of the sheriff's plan, since suspended, to quietly acquire a cellphone tracking device commonly called a Stingray. Similar conflicts over police spying and privacy have arisen numerous times locally and around the nation. Examples include the San Jose Police Department's acquisition of a drone, the use and retention of information captured on license plate readers and the creation of a "Domain Awareness Center" electronic information aggregation hub in Oakland. * * * Simitian's ordinance, which is being finalized and expected to go before the full board sometime in May, goes much further and mandates that government agencies publicly establish a policy before any new surveillance technology is acquired or used. It also requires annual reports on how the technology is used and what the results have been. What makes it different from other ordinances around the nation is that rather than target named gadgets, the language encompasses any surveillance-related technology, including what can't be foreseen. Simitian has called it "future-proof."

New data: Americans are abandoning wired home internet (WaPo, 18 April 2016) - For the most part, America's Internet-usage trends can be summed up in a few phrases. The Internet is now so common as to be a commodity; the rich have better Internet than the poor; more whites have Internet than do people of color ; and, compared with low-income minorities, affluent whites are more likely to have fixed, wired Internet connections to their homes. But it may be time to put an asterisk on that last point, according to new data on a sample of 53,000 Americans. In fact, Americans as a whole are becoming less likely to have residential broadband, the figures show: They're abandoning their wired Internet for a mobile-data-only diet - and if the trend continues, it could reflect a huge shift in the way we experience the Web. The study, which was conducted for the Commerce Department by the U.S. Census Bureau, partly reaffirms what we already knew. Low-income Americans are still one of the biggest demographics to rely solely on their phones to go online. Today, nearly one-third of households earning less than $25,000 a year exclusively use mobile Internet to browse the Web. That's up from 16 percent of households falling in that category in 2013. And they're often cited as evidence of a major digital divide; struggling families with little money to afford a home Internet subscription must resort to free public WiFi at libraries and even McDonald's to do homework, look for jobs and find information. But as the chart above shows, even people with higher incomes are ditching their wired Internet access at similar or even faster rates compared with people who don't earn as much. In 2013, 8 percent of households making $50,000 to $75,000 a year were mobile-only. Fast-forward a couple of years, and that figure now stands at 18 percent. Seventeen percent of households making $75,000 to $100,000 are mobile-only now, compared with 8 percent two years ago. And 15 percent of households earning more than $100,000 are mobile-only, vs. 6 percent in 2013.

9 years prison, $1.7 million fine for malicious law firm insider (Dark Reading, 18 April 2016) - A former IT engineer for a Dallas law firm was sentenced to 115 months in prison and ordered to pay $1.697 million in restitution for a destructive computer attack he committed against his former employer in 2011. The sentencing comes in the wake of a flurry of attacks on law firms and the highly publicized leak at Panamanian law firm Mossack Fonseca . Anastasio N. Laoutaris, 41, of Spring, Texas, was an IT engineer for Locke Lord LLP from 2006 to August 2011. On Dec.1 and Dec. 5, 2011, four months after his employment there ended, Laoutaris accessed Locke Lord's systems without authorization and according to court documents, issued commands that caused "significant damage" to the network, "including deleting or disabling hundreds of user accounts, desktop and laptop accounts, and user e-mail accounts." Laoutaris was convicted of two counts of intentionally accessing a computer network without authorization and intentionally issuing commands and codes that caused damage to the network.

State data breach notification laws just got crazier (Law Technology Today, 19 April 2016) - * * * Tennessee recently added even more complexity to these complicated, confusing and outright contradictory state requirements. Effective July 1, 2016, the Tennessee definition of what constitutes a "breach of the security of the system" that triggers notice includes not only the loss of unencrypted data but encrypted data as well (if that data includes personally identifiable information of Tennesseans). Tennessee is the first state in the country to eliminate a safe harbor from data breach notice obligations where the breach involves encrypted data. All the other states with data breach notification statutes specifically provide this safe harbor from notice for encrypted data. The Tennessee action is all the more amazing given that encryption of personal data is a data security best practice, particularly for data in transit and is the current state of the art. * * * On its face, the Tennessee law still provides that a notice of a breach requires that the unauthorized access of data "materially compromise the security, confidentiality or integrity of personal information" and that notice is required where personal information is "reasonably believed to have been acquired". In doing so, Tennessee's law is consistent with that of some 41 other states all of whom provide a safe harbor for encrypted data. Under these "risk of harm analysis" statutes, its indeed possible to argue that where the data is encrypted, then there is no such material compromise and no reasonable belief that personal information has been acquired. But in Tennessee at least, the burden of showing these criteria are met is now higher since losing encrypted data is no longer per se exempt from notice requirements. * * *

Lawyers accused of Facebook spying can face ethics complaint, state high court rules (WSJ, 19 April 2016) - New Jersey's highest court ruled Tuesday that two defense lawyers accused of spying on a plaintiff's Facebook page can be prosecuted for attorney misconduct. The case dealt with what the court described as a "novel ethical issue." Two defense attorneys in New Jersey are accused of snooping on the private Facebook account of a plaintiff suing their client. The Facebook account was at first publicly viewable. But after the plaintiff tightened the settings and put his profile page behind a privacy wall, the lawyers didn't stop monitoring it. A paralegal at their firm was able to get access by sending a Facebook friend request to the plaintiffs without revealing her employer. The New Jersey Supreme Court wasn't deciding if the two lawyers violated ethics or should face sanction. The court was ruling on whether the head of the state's attorney disciplinary body could prosecute the lawyers for alleged Facebook spying after a regional disciplinary body chose to drop the case. The local body didn't think the lawyers' actions, even if proven, constituted unethical conduct. The director of the New Jersey Office of Attorney Ethics, an arm of the state judiciary, disagreed and filed a complaint against the defense attorneys. The state's high court Tuesday unanimously ruled that the misconduct case could go forward. ( You can read the opinion here .) * * * Bar association guidelines have discouraged lawyers from monitoring personal profile pages of jurors, witnesses and opposing parties if access to the content requires special permission.

Federal judge rules FBI didn't have proper warrant to hack child porn site (TechCrunch, 20 April 2016) - A federal judge ruled today that the FBI did not obtain the proper warrant before hacking a child porn website and that the evidence it collected against one of the defendants, Alex Levin, must be suppressed. The case centers on a child porn site called Playpen, which was hosted on a hidden Tor service intended to conceal users' identities. The FBI seized the site's server in February of last year, but instead of shutting it down, the agency continued to run the site on its own server for several weeks. During that period, the FBI implemented its own hacking tool, referred to as a network investigative technique (NIT), to collect the IP addresses of visitors to the site. The FBI is thought to have obtained thousands of IP addresses during the investigation. One of the IP addresses allegedly belonged to Levin, a Massachusetts man who is charged with possession of child pornography. Levin's public defender successfully argued that the warrant the FBI used to authorize the NIT was not valid because it was issued by a magistrate judge in Virginia, and Levin's computer - located at his home in Massachusetts - was outside that judge's jurisdiction. In today's ruling, Judge William G. Young said that the evidence against Levin, including "eight media files allegedly containing child pornography," must be suppressed. "The court concludes that the NIT Warrant was issued without jurisdiction and thus was void," Young wrote. "It follows that the resulting search was conducted as though there were no warrant at all." Young also expressed skepticism at the ethics of the FBI running a child porn site. "Unlike those undercover stings where the government buys contraband drugs to catch the dealers, here the government disseminated child obscenity to catch the purchasers - something akin to the government itself selling drugs to make the sting," he wrote. [ Polley : Recent USSC proposed changes to FRCrimPro Rule 41 reportedly would change this outcome. See , following two stories.]

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Privacy watchdogs vow to fight 'dystopian' Rule 41 (Kaspersky's ThreatPost, 2 May 2016) - The Supreme Court is moving to expand the FBI's hacking authority with Criminal Rule 41, an amendment to federal criminal procedures that makes it easier for the FBI to access computers remotely when their locations are unknown. Privacy watchdogs are blasting the proposed change saying it would allow the government to hack into phones and seize computers remotely. The change was issued by the Supreme Court last week and now heads to Congress, which has until Dec. 1 to either block or pass the provision. The controversial Rule 41 attempts to make it easier for law enforcement to track down cyber criminals who use tools such as Tor, botnets or malware to mask their true location. Rule 41 allows law enforcement to request from judges a warrant that permits the use of remote access tools "to search electronic storage media and to seize or copy electronically stored information located within or outside that district." Typically, a judge's authority to authorize search warrants is limited by his or her jurisdiction. Rule 41 allows judges to issue a search warrant across state lines to penetrate computers outside their jurisdiction or even outside the U.S. EFF along with privacy advocates Access Now are both fighting Rule 41 and submitted joint testimony to the Advisory Committee on Criminal Rules. * * * Rule 41 goes too far, according to Senator Ron Wyden, a Democrat from Oregon. In a statement issued last week he said, "Under the proposed rules, the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once; and the vast majority of the affected computers would belong to the victims, not the perpetrators, of a cybercrime." Wyden plans to introduce legislation to reverse the Rule 41 amendment.

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TOR and VPN users will be target of government hacks under new spying rule (TechWorm, 2 May 2016) - * * * The new rule will affect millions of Tor and VPn users. Many Facebook users are already preferring Tor to surf FB. As of April, over one million people use Tor just to browse Facebook, the social media giant noted in a blog post. Rule 41, in its current form, stipulates that magistrate judges can only authorize searches within their own jurisdiction. The amendment would allow them to issue warrants to hack into and seize information on a computer if its location has been "concealed through technical means." Absence of opposition to the rule could mean that we have a subversive spying campaign against Tor and VPN users around the world without even the user knowing it.

How M&A activity can open the door to cyber threats (Security Week, 21 April 2016) - Mergers and acquisitions (M&A) can be exciting, offering companies a significant platform for growth. According to the Deloitte M&A Index 2016, global M&A activity reached record-breaking deal values in 2015 at over $4 trillion, with the resulting deals expected to add $1.5 to $1.9 trillion in value to these companies. But while mergers and acquisitions propel companies forward, the M&A process also fuels significant opportunities for cyber criminals. Failure to secure sensitive information during this time opens the door to threat actors looking to profit by exploiting financial markets and proprietary intellectual property (IP). Understanding the cyber risks present along the M&A process is the first step toward mitigating the risk. While each process will have its own nuances, all tend to follow five general stages. Along each stage new risks emerge and advanced attackers, well-versed in corporate espionage techniques, stand to profit. Here's a brief look at each of the stages and the types of risks and possible degradations in security posture that may occur. * * *

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Cybersecurity is an enterprise risk in M&A deals (BNA, 25 April 2016) - Companies involved in a merger or acquisition must be cognizant of cybersecurity risks or face possible grave financial and reputational harm, privacy attorneys told Bloomberg BNA. To avoid potential pitfalls, companies on both sides of the deal need to pay close attention to insider threats and cybersecurity risks involved in the due diligence process. Merging companies must also prepare for the potential hazards incorporating new technology into an existing company. Ultimately the acquiring company needs to appropriate the necessary level of cybersecurity threat prevention spending. Cybersecurity issues in a deal are "calibrated to the nature of the business being acquired, such as whether the target has confidential materials and personally identifiable information," Jeffrey P. Cunard of Debevoise & Plimpton's Cybersecurity & Data Privacy practice, in Washington, said. * * * [ Polley : The ABA's Cyberspace Law Committee, at invitation from DHS, is working on a best-practices guide for cybersecurity considerations in M&A transactions. For more info, email me.]

Court: Border search warrant exception beats Riley in the 'constitution-free zone' (TechCrunch, 22 April 2016) - The Supreme Court declared in 2014 that law enforcement could no longer perform searches of cellphones incident to arrest without a warrant. The exceptions to this ruling are making themselves apparent already. The area of the United States where the Constitution does not apply -- while still being fully within the borders of the US -- apparently exempts law enforcement from following this ruling in regards to cellphone searches. The Southern District of California has come to the conclusion that border searches are not Fourth Amendment searches and that the government has no need to seek a warrant before searching a cellphone. The court notes the Riley decision says one thing but the "border exception" says another: Heading in one direction is the Supreme Court's bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty. Balancing the two competing interests in this case, the court ultimately finds the government's national security interest outweighs citizens' privacy interests. As it weighs this against cases dealing with more elaborate and lengthy device searches at the border, the court basically finds that if the Fourth Amendment is violated by "cursory" searches of devices, it is only violated a little.

Startup plans to rate lawyers based on court records and win-loss stats (Robert Ambrogi, 25 April 2016) - Two Harvard University undergraduates are preparing to launch a website that will rate lawyers based on publicly available court records. The site, called Legalist , will mine and analyze court records in order to match clients with lawyers who win similar cases based on details and location. It will also profile litigators' win-loss records. The site is currently in beta testing and its developers hope to launch it in late summer or early fall. The testing phase is using only Massachusetts cases and the initial launch will start with Massachusetts lawyers. The developers plan to then begin rolling out the service to other states, beginning with the most-populous ones. * * *

LexisNexis unveils visualization map feature for case law research (Robert Ambrogi, 27 April 2016) - A new visualization tool for case law research in Lexis Advance is being announced today by LexisNexis Legal & Professional . Called Search Term Maps, the tool color codes and maps your search terms so that you can more easily assess the significance of a case and navigate to key passages. Search Term Maps is being rolled out now in limited release and will be added as core functionality to all Lexis Advance accounts later this summer, LexisNexis said. The new tool places a Search Term Location Bar at the top of every case and also within each item in your search results. It also color-codes each of up to five search terms. The location bar shows where in the case each of the color-coded terms appears. This lets you quickly see where terms appear, how often they appear and where terms are clustered within the case.

Verizon's 2016 Data Breach Investigations Report released (Ride the Lightning, 27 April 2016) - Verizon's 2016 Data Breach Investigations Report has been released and may be downloaded here . I will take time to read the entire report, but Dark Reading reported yesterday that legitimate user credentials were used in most data breaches, with 63% of them using weak, default or stolen passwords. Marc Spitler, senior manager at Verizon Security Research, and co-author of the report, found the high percentage startling. Stolen credentials topped the list of threat action types among attacks that used legitimate credentials, followed by malware, phishing and keyloggers. The report draws from more than 100,000 security incidents worldwide in 2015, 3,141 of which were actual data breaches.

The government wants your fingerprint to unlock your phone. Should that be allowed? (LA Times, 30 April 2016) - As the world watched the FBI spar with Apple this winter in an attempt to hack into a San Bernardino shooter's iPhone , federal officials were quietly waging a different encryption battle in a Los Angeles courtroom. There, authorities obtained a search warrant compelling the girlfriend of an alleged Armenian gang member to press her finger against an iPhone that had been seized from a Glendale home. The phone contained Apple's fingerprint identification system for unlocking, and prosecutors wanted access to the data inside it. It marked a rare time that prosecutors have demanded a person provide a fingerprint to open a computer, but experts expect such cases to become more common as cracking digital security becomes a larger part of law enforcement work. The U.S. Supreme Court has held that police can search phones with a valid warrant and compel a person in custody to provide physical evidence such as fingerprints without a judge's permission. But some legal experts say there should be a higher bar for biometric data because providing a fingerprint to open a digital device gives the state access to a vast trove of personal information and could be a form of self-incrimination. "It isn't about fingerprints and the biometric readers," said Susan Brenner, a law professor at the University of Dayton who studies the nexus of digital technology and criminal law, but rather, "the contents of that phone, much of which will be about her, and a lot of that could be incriminating." But Albert Gidari, the director of privacy at Stanford Law School's Center for Internet and Society, said the action might not violate the 5th Amendment prohibition of self-incrimination. "Unlike disclosing passcodes, you are not compelled to speak or say what's 'in your mind' to law enforcement," Gidari said. "'Put your finger here' is not testimonial or self-incriminating." [ Polley : The law here has been pretty settled, but Prof. Brenner makes a good point; maybe the law here shouldn't be so settled. See also 2.5-year-old article Apple's fingerprint id may mean you can't 'take the Fifth' (Marcia Hofmann in Wired, 12 Sept 2013)]

Introducing TACC (InsideHigherEd, 2 May 2016) - It is with pleasure that I introduce a unique, new information management and cybersecurity program hosted by the University of Massachusetts Amherst: Trust, Assurance and Cybersecurity Certificate Program ! As a bona fide academic program consisting of four courses and 15 credits, it is unique because it occupies a space between matriculated degree programs in cybersecurity and non-academic "little c" certificates such as CISSP or SANS. It is also much more than cybersecurity. Trust and assurance speak to Internet governance, law, policy, regulatory compliance, information privacy and security management. Hence the name, and acronym, TACC. TACC is designed to fill gaps in the academic understanding and working practice of information risk management. Long recognized as a moving target, information management has remained for over a decade in the top tier of IT issues for higher education … and for corporate American writ large. Intervening issues such as the Apple iPhone case for electronic surveillance or GAFE for consumer and enterprise privacy, for example, intersect with the requirements for sound privacy and security practices in formation of cloud computing contracts. In a world without global Internet governance, cybersecurity remains a paramount challenge. The course work for TACC touches on all of these issues as well as in the implementation of risk assessment and operational policy, technical cybersecurity and information management programs in a corporate environment - including profit and not-for-profit institutions, education and government.

Rethinking knowledge in the internet age (David Weinberger writing on LARB, 2 May 2016) - The internet started out as the Information Highway, the Great Emancipator of knowledge, and as an assured tool for generating a well-informed citizenry. But, over the past 15 years, that optimism has given way to cynicism and fear - we have taught our children that the net is a swamp of lies spun by idiots and true believers, and, worse still, polluted by commercial entities whose sole aim is to have us click to the next ad-riddled page. Perhaps our attitude to the net has changed because we now see how bad it is for knowledge. Or perhaps the net has so utterly transformed knowledge that we don't recognize knowledge when we see it. For philosopher Michael P. Lynch, our fears are warranted - the internet is a wrong turn in the history of knowledge. "Information technology," Professor Lynch argues in his new book, The Internet of Us , "while expanding our ability to know in one way, is actually impeding our ability to know in other, more complex ways." He pursues his argument with commendable seriousness, clarity, and attunement to historical context - and yet he misses where knowledge actually lives on the net, focusing instead on just one aspect of the phenomenon of knowledge. * * * [ Polley : interesting and thoughtful.]

The Australian government decides it's really into Bitcoin (Mashable, 3 May 2016) - Is it because the creator of Bitcoin could, just maybe, be an Aussie ? The day after the mysterious Craig Wright told news outlets he was the father of Bitcoin, which many people continue to very much doubt , the Australian government included a number of crypto-currency-friendly measures in its 2016 budget. Tuesday night local time, the government repeated its proposal, first announced by Treasurer Scott Morrison in March, to end the double taxation of Bitcoin in Australia. The Australian Taxation Office currently treats Bitcoin as a commodity rather than a currency, meaning both the Bitcoin transaction and the goods purchased are liable for a 10% Goods and Services Tax (GST). In its budget, the government also flagged that Data61, the data innovation arm of Australia's peak science body, the CSIRO, would investigate the possible use of the blockchain in the public and private sector. A number of Australian banks have already indicated their interest in the technology.

Long-form reading shows signs of life in our mobile news world (Pew Research, 5 May 2016) - In recent years, the news media have followed their audience's lead and gone mobile, working to make their reporting accessible to the roughly seven-in-ten American adults who own a smartphone. With both a smaller screen size and an audience more apt to be dipping in and out of news, many question what kind of news content will prevail. One particular area of uncertainty has been the fate of long, in-depth news reports that have been a staple of the mainstream print media in its previous forms. These articles - enabled by the substantial space allotted them - allow consumers to engage with complex subjects in more detail and allow journalists to bring in more sources, consider more points of view, add historical context and cover events too complex to tell in limited words. A unique, new study of online reader behavior by Pew Research Center, conducted in association with the John S. and James L. Knight Foundation, addresses this question from the angle of time spent with long- versus short-form news. It suggests the answer is yes: When it comes to the relative time consumers spend with this content, long-form journalism does have a place in today's mobile-centric society. To understand how mobile users interact with news, the study utilized audience behavior metrics provided by the web analytics firm , a company that supplies real-time and historical analytics to a broad mix of digital publishers, including over 170 top media companies. The analysis finds that despite the small screen space and multitasking often associated with cellphones , consumers do spend more time on average with long-form news articles than with short-form. Indeed, the total engaged time with articles 1,000 words or longer averages about twice that of the engaged time with short-form stories: 123 seconds compared with 57. This gap between short- and long-form content in engaged time remains consistent across time of day and the pathway taken to get to the news story. However, when looking solely within either short- or long-form content, engaged time varies significantly depending on how the reader got to the article, whether it is midday or evening, and even what topic the article covers, according to the study. * * *


Simonson on the right to record the police (MLPB, 15 April 2016) - Jocelyn Simonson, Brooklyn Law School, is publishing Beyond Body Cameras: Defending a Robust Right to Record the Police in volume 104 of the Georgetown Law School (2016). Here is the abstract: This symposium essay articulates and defends a robust First Amendment right to record the police, up to the point that the act of filming presents a concrete, physical impediment to a police officer or to public safety. To the extent that courts have identified the constitutional values behind the right to record, they have for the most part relied on the idea that filming the police promotes public discourse by facilitating the free discussion of governmental affairs. Like limiting the gathering of news, limiting the filming of the police constricts the information in the public sphere from which the public can draw and debate. I contend that this account of the constitutional values behind the right to record is correct but incomplete, for it sets aside the ways in which the act of recording an officer in the open is a form of expression in the moment, a gesture of resistance to the power of the police over the community. In order to flesh out this function of civilian recording as resistance, this essay contrasts civilian filming of the police with the use of police-worn body cameras: while both forms of film are useful to deter misconduct and document police activity, only civilian filming allows civilians to express ownership over their streets and neighborhoods. Ultimately, I argue that a jurisprudence of the right to record should account for both the benefits to public discourse and the in-the-moment communication to officers that can be found when civilians record the police.

CRS - Protection of Trade Secrets: Overview of Current Law and Legislation (BeSpacific, 25 April 2016) - Protection of Trade Secrets: Overview of Current Law and Legislation, Brian T. Yeh, Legislative Attorney. April 22, 2016.

Copyright Holders, Publicity Rights Holders, and the First Amendment (MLPB, 28 April 2016) - Reid K. Weisbord, Rutgers Law School (Newark), is publishing A Copyright Right of Publicity in volume 84 of the Fordham Law Review (2016). Here is the abstract: This Article identifies a striking asymmetry in the law's disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment's protection for expressive speech embodying a "transformative use" of the publicity-rights holder's identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder's identity is transformatively depicted in a copyrighted work without consent, the author's copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a "copyright right of publicity" to exempt the publicity-rights holder's use from copyright infringement liability. Notably, this Article contributes uniquely to the literature by including a special first-person narrative from an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.

The Fourth Amendment in the Information Age (by ODNI's GC, Bob Litt; 28 April 2016) - Office of the Director of National Intelligence General Counsel Robert Litt has published a new essay in The Yale Law Journal that will likely be of interest to Lawfare readers. Entitled "The Fourth Amendment in the Information Age" , it begins: To badly mangle Marx, a specter is haunting Fourth Amendment law-the specter of technological change. In a number of recent cases, in a number of different contexts, courts have questioned whether existing Fourth Amendment doctrine, developed in an analog age, is able to deal effectively with digital technologies. Justice Sotomayor, for example, wrote in her concurrence in United States v. Jones, a case involving a GPS tracking device placed on a car, that "the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties . . . is ill suited to the digital age." And in Riley v. California, the Chief Justice more colorfully rejected the government's argument that a search of a cell phone was equivalent to a search of a wallet. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. I intend to discuss the application of the Fourth Amendment in the information age, and I want to start with two important caveats. First, I am not proposing a comprehensive theory of Fourth Amendment law. Rather, I want to offer some tentative observations that might be explored in shaping a productive response to the challenges that modern technology creates for existing legal doctrine. In particular, I would like to suggest that the concept of "reasonable expectation of privacy" as a kind of gatekeeper for Fourth Amendment analysis should be revisited. Second, these thoughts are not informed by deep research into the intent of the Framers, or close analysis of case law or academic scholarship. Rather, they derive from almost forty years of experience in law enforcement and intelligence. But, despite Justice Oliver Wendell Holmes's adage about the life of the law, I hope that they have some foundation in logic as well.

The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches (Adam Gershowitz in Vanderbilt Law Review, 19 April 2016) - Abstract: Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court's assumption that requiring search warrants would be "simple" and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches of applications and data for which no probable cause existed. And even when district and appellate courts have found these overbroad search warrants to be defective, they have almost always turned to the good faith exception to save the searches and allow admission of the evidence. This Article calls on courts to take the Fourth Amendment's particularity requirement seriously before issuing search warrants for cell phones. Just as magistrates cannot authorize police to search for a fifty-inch television in a microwave, nor should officers be permitted to rummage through all of the files on a cell phone when a narrower search will suffice. In order to effectuate the privacy guarantee in Riley, this Article proposes two approaches to narrow cell phone search warrants. First, I argue that judges should impose search protocols that specify in advance exactly how police should execute warrants and sift through electronic data. Second, this Article challenges the common assumption that all cell phone searches require full forensic analysis. In many cases involving street crimes, magistrates should initially restrict warrants to a manual search of the particular functions or applications for which there is probable cause. These two ex ante restrictions on cell phone searches will protect privacy and prevent overuse of the good faith exception, while still permitting police to examine all data they have probable cause to investigate.


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

United States Supreme Court approves electronic discovery amendments to FRCP (April 14, 2006) -- On Wednesday, April 12, 2006, the United States Supreme Court approved, without comment or dissent, the entire package of proposed amendments to the Federal Rules of Civil Procedure concerning the discovery of "electronically stored information." The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The proposed amendments were transmitted to the Supreme Court last September, after the Judicial Conference unanimously approved them. The new rules and amendments have now been transmitted to Congress and will take effect on December 1, 2006, unless Congress enacts legislation to reject, modify, or defer the amendments. The amendments may be accessed on the U.S. Court's Federal Rulemaking website at: [ Polley in 2016 : It's priceless that this USSC URL is broken]

Yellow Pages publisher feeling the heat from online alternative (ARS Technica, 7 July 2006) -- Sooner or later, all "old media" companies find themselves threatened by a site or phenomenon on the Internet. We've seen it happen with the music industry, TV, newspapers, and many others. Sometimes, it takes a while for the old guard to discover what's happening-that appears to be the case with Yell, which calls itself the world's largest yellow pages publisher. The problem-from Yell's point of view-is Yellowikis, a wiki-based business directory available in several languages and containing listings for several different countries. The directory publisher is accusing Yellowikis of "misrepresentation," maintaining that the site's name "constitutes an 'instrument of fraud.'" At first glance, it seems like a case of an elephant feeling threatened by a gnat. Yellowikis has only been operating since January 2005, has around 5,000 listings, and is run entirely by volunteers. In contrast, Yell had revenues of US$2.4 billion during 2005. However, Yellowikis offers something a telephone directory publisher cannot: dynamic, customizable content. In contrast, once a yellow pages business directory is published, that's it until the next edition. Yell wants Yellowikis to pay damages and surrender the domain name, perhaps so it can launch a wiki-like service. As "Yellow Pages" is a trademarked name in the UK and Yellowikis refers to itself as "Yellow Pages for the 21st Century," the small wiki may find itself embroiled in an expensive legal fight. Even if Yell wins or forces a settlement, it won't change the fact that the business model of selling advertising, printing it in gigantic phone books, and dropping yellow pages directories off on front porches is endangered. Many directory publishers realize this and have developed an online presence that mixes paid placements in with search results. Others, like Verizon, are getting out of the yellow pages business altogether.


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SOURCES (inter alia):

1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School,

2. InsideHigherEd -

3. SANS Newsbites,

4. Aon's Technology & Professional Risks Newsletter

5. Crypto-Gram,

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

7. Eric Goldman's Technology and Marketing Law Blog,

8. The Benton Foundation's Communications Headlines

9. Gate15 Situational Update Notifications,

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

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