Saturday, October 10, 2015

MIRLN --- 20 Sept - 10 Oct 2015 (v18.14)

MIRLN --- 20 Sept - 10 Oct 2015 (v18.14) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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NEWS | RESOURCES | LOOKING BACK | NOTES

Law firms in Florida can send text-message ads to prospective clients, state bar says (ABA Journal, 2 Sept 2015) - Rejecting a recommendation by an advertising subcommittee, the Florida Bar’s board of governors has OK’d the use of cellphone text messages for advertising law firm services to prospective clients. Florida is only the second state in the country to give the green light to lawyers to use texts for advertising purposes, the Daily Business Review reports. Ohio was the first. Text ads, which are considered by the bar to be simply another form of written advertising, must comply with the same legal ethics rules as other ads. Because texts have been deemed to fall within the existing scheme of bar advertising rules, the OK by the board of governors on July 24 was effective immediately and state supreme court approval is not required. Among the young lawyers who pushed for text-ad approval was Jacob Stuart Jr. of the Traffic Knights law firm in Orlando. He also has a software company, and he says his software can obtain cellphone numbers of Florida drivers who have been ticketed and determine whether they get free texts from their cell service providers. “There were 270,000 traffic tickets issued in Orange County last year, and 81 percent of those people did not have representation,” Stuart said. “There’s a market no one is touching, and it’s a market of working-class people.” Opponents argued unsuccessfully that text ads are more like prohibited phone calls to prospective clients.

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Are Internet providers ripping off some of their biggest customers? This data may tell. (WaPo, 17 Sept 2015) - Federal regulators are finally releasing a huge trove of pricing and network data they’ve spent months collecting on the massive $40 billion market for business broadband, part of an effort to determine whether Internet providers such as Verizon and AT&T are charging hospitals, universities and other enterprises fairly for data and communications services. Most of us may be more familiar with the retail market for broadband, where Internet providers charge consumers a monthly fee for access to the Web. Although it’s more obscure, the business market for high-speed data is no less important: It’s what helps ATMs connect to your bank account, and how smaller cellular carriers like Sprint route your phone calls across the country. Even your office building might be a customer in this industry. Some firms argue that, just as in the residential broadband space, a lack of competition among Internet providers drives up prices. British Telecom, which reportedly serves some 75 percent of all Fortune 500 companies as a technology and networking provider, highlighted this issue in a recent Financial Times interview. “Almost all access is being provided by two companies and they have divided the country among themselves,” Bas Burger, the head of British Telecom’s Americas division, told the Times. Burger also called for the Federal Communications Commission to step up its regulation of business broadband, or what’s known in the telecom industry as the market for “special access.” AT&T, one of the biggest providers of special access, fired back last week with a blog post accusing BT of hypocrisy and trying to tilt the gigantic playing field in its favor. The data being released Thursday by the FCC will likely help economists and antitrust experts figure out just how much competition exists in the U.S. market for business broadband. The goal of the analyses, according to an FCC official, will be to develop a new agency formula that would help determine appropriate rates. In areas with numerous special access providers, regulations may be relaxed. In cities where competition is said to be lacking, regulations may be adjusted or increased. The commission is expected to come up with a concrete proposal next year based on feedback from outside experts and its own staff. Unfortunately, there’s no way for the general public to review the data, which is highly sensitive. Only analysts who’ve been specially cleared by the FCC will be able to access the information — which includes network maps, pricing information, and confidential company documents — from a secure facility.

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Shake-up in legal research: Fastcase acquires Loislaw from Wolters-Kluwer (Robert Ambrogi, 21 Sept 2015) - The legal research company Fastcase has acquired one of its prime competitors among middle-market legal research providers, Loislaw . Fastcase has purchased Loislaw from Wolters Kluwer, which had acquired it in 2000 for $95 million. LoisLaw subscribers began receiving notices over the weekend informing them of the news. The letter stated that WK will sunset the Loislaw product effective Nov. 30, and that “we are collaborating with Fastcase so they can offer comparable subscription plans on the Fastcase platform, including Loislaw treatise libraries, at the same or lower prices as your current Loislaw subscription.” In an email, Deborah L. Sauer, executive director strategic communications at Wolters Kluwer Legal & Regulatory, said the deal stemmed from the continued evolution of WK’s business. In the continued evolution of our business we feel the time is right to further focus our investments in providing the highly valued expert interpretations, insight, guidance, and solutions that enable customers to enhance their decision quality, drive their workflows, and inform confident outcomes. For subscribers to Loislaw, a key feature has been access to Wolters Kluwer’s library of some 125 treatises in areas of law such as bankruptcy, business, employment, insurance, intellectual property, real estate and others. When they migrate to Fastcase, they will retain that access.

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European court adviser calls trans-Atlantic data-sharing pact insufficient (NYT, 23 Sept 2015) - The laws governing companies that share online customer data between Europe and the United States may soon become a lot tougher. A legal position published in Luxembourg on Wednesday by a senior adviser to Europe’s highest court said that a trans-Atlantic “safe harbor” agreement allowing companies to ship people’s data between both regions did not provide sufficient checks on how that information may be used. The ruling by Yves Bot, the advocate general of the European Court of Justice, could have a significant impact on companies like Facebook and Google , which routinely move data about people’s online activities like social media postings and online search queries outside the 28-member bloc. “This could have a major economic impact on Europe and the U.S. if the court follows this opinion,” said Patrick van Eecke, a data protection lawyer at DLA Piper in Brussels. Although the opinion is nonbinding, the position of the senior adviser is often followed by the court. A final judgment is expected by the end of the year, though some analysts said a decision could come as early as next month.

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Don’t strike down the Safe Harbor based on inaccurate views about US intelligence law (Peter Swire, 5 Oct 2015) - Important legal decisions should be based on an accurate understanding of the law and facts. Unfortunately, that is not the case for the Advocate General’s (AG’s) recent Opinion finding that the Safe Harbor agreement between the U.S. and the EU unlawful. As the U.S. Mission to the EU has also noted , the Opinion suffers from particular inaccuracies concerning the law and practice of U.S. foreign intelligence law, notably the PRISM program. It relies on these incorrect facts about PRISM to reach its conclusion, removing the factual basis for its overall findings. My comments here focus on the Opinion’s incorrect description of U.S. intelligence law and practice. In my experience as a scholar and practitioner in the field, the U.S. has far more extensive legal rules, oversight and other checks and balances on intelligence agencies than is generally true in E.U. member states. * * *

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Europe-U.S. data transfer deal used by thousands of firms is ruled invalid (Reuters, 6 Oct 2015) - The EU’s highest court struck down a deal that allows thousands of companies to easily transfer personal data from Europe to the United States, in a landmark ruling on Tuesday that follows revelations of mass U.S. government snooping. Many companies, both U.S. and European, use the Safe Harbour system to help them get round cumbersome checks to transfer data between offices on both sides of the Atlantic. That includes payroll and human resources information as well as lucrative data used for online advertising, which is of particular importance to tech companies. But the decision by the Court of Justice of the European Union (ECJ) sounds the death knell for the system, set up by the European Commission 15 years ago.

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Fifth Amendment protects passcode on smartphones, court holds (Orin Kerr in Volokh Conspiracy, 24 Sept 2015) - In a new case decided Wednesday, SEC v. Huang , a federal trial court in Pennsylvania held that the government can’t force a person to give up his passcode to his smartphone. I think the decision misses the mark, and I hope it is appealed. Here’s a rundown. First, the facts. The Securities and Exchange Commission (SEC) is investigating Bonan and Nan Huang for insider trading. The two worked at the credit card company Capital One as data analysts. According to the complaint , the two allegedly used their jobs as data analysts to figure out sales trends at major U.S. companies and to trade stocks in those companies ahead of announced company earnings. According to the SEC, they turned a $150,000 investment into $2.8 million. Capital One let its employees use company-owned smartphones for work. Every employee picked his own passcode, and for security reasons did not share the passcode with Capital One. When Capital One fired the defendants, the defendants returned their phones. Later, as part of the investigation, Capital One turned over the phones to the SEC. The SEC now wants to access the phones because it believes evidence of insider trading is stored inside them. But here’s the problem: The SEC can’t get in. Only the defendants know the passcodes. And the defendants have refused to disclose them. That brings us to the new decision. The SEC has asked the court for an order to compel Bonan and Nan Huang to each give up their passcodes to the Capital One phones they used so the SEC can bypass the passcode gate and search the phones. The defendants have opposed the request for an order on Fifth Amendment grounds. In their view, an order forcing them to give up the passcodes would force them to testify against themselves in violation of the privilege against self-incrimination. In the new ruling, the trial court agreed with the defendants and denied the SEC’s request. The opinion was written by Judge Mark Kearney , a relatively new district court judge. The most important part of the opinion is Judge Kearney’s approach to the “foregone conclusion” doctrine. The doctrine, introduced in Fisher v. United States , says that the Fifth Amendment doesn’t block complying with a court order when the testimonial part of complying with a court order is a foregone conclusion. In other words, if the government already knows the testimonial part of complying with the order, and they’re not seeking to prove it from the order, then you can’t use the Fifth Amendment to avoid compliance with the order. * * * [ Polley : This is a complex, evolving area. Prof Kerr’s thoughts here have drawn significant attention, and rebuttal. Stay tuned.]

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ABA survey: Data breaches rising at large firms (BloombergBNA, 23 Sept 2015) - The number of security breaches continues to increase at the nation’s largest law firms, according to the American Bar Association’s 2015 Legal Technology Survey released this week. The survey found that firms with more than 100 lawyers experienced the most significant jump in reported breaches, which were defined as everything from a lost or stolen smartphone to a break-in or website exploitation. The chart below shows a more detailed breakdown: * * * Roughly 880 lawyers participated between January and May in the survey’s Technology Basics and Security section, from which the above information was drawn. In a follow up question, 71.4 percent of participants from a firm with 500 or more lawyers, and 66.7 percent from a firm with 100 or more lawyers said there was no significant business disruption or less. Five percent of the firms reported that the breach required their firm to notify clients, and three percent reported that a breach resulted in unauthorized access to client data. One of more interesting data points was how few attorneys concern themselves with cyber security. For instance, more than 80 percent of the survey respondents who hailed from a firm with more than 100 attorneys said they didn’t know if their firm had cyber liability insurance. Overall, among all respondents, only 11.4 percent said their firm had cyber liability insurance. Asked whether a client ever requested a security audit or asked their firm to verify security practices, roughly 52 percent of respondents from firms with 100 or more attorneys said they didn’t know. More generally, an even larger number of respondents didn’t know if their firm has ever had a full security assessment conducted by an independent third party — at firms with 100 to 499 attorneys, 57.6 percent didn’t know, and at firms with more than 500 attorneys, 77 percent didn’t know.

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Lawyers’ use of email encryption remains dismally low, ABA survey says (Robert Ambrogi, 1 Oct 2015) - Only a third of lawyers use encryption when sending confidential or privileged documents to their clients. Instead, the great majority of lawyers rely on a confidentiality statement in the message body to protect the email’s privacy. According to the 2015 edition of the annual Legal Technology Survey Report , compiled by the American Bar Association’s Legal Technology Resource Center only 35% of lawyers use email encryption. That percentage has remained virtually unchanged over the last four years of the survey, even as understanding of the need for encryption has grown throughout the professional and business worlds. When the survey asked lawyers what security precautions they use when sending confidential or privileged communications to clients via email, the answer given by 71% of lawyers was that they rely on the confidentiality statement in the message body. I simply do not understand the logic of this. If the confidentiality statement is inside the email, then by the time anyone sees it, they’ve seen the email. It is akin to putting a note inside a box that says, “Do not open this box.” It gets worse. Of the lawyers who say they use encryption, fully a third cannot say what kind of encryption they use. Those who could say what type of encryption they use most commonly identified it as a general purpose software with encryption features that required the recipient to be sent a separate password. Lawyers in larger firms are most likely to use email encryption. More than half of lawyers in firms of 500 or more and 41% of lawyers in firms of 100-499 use it. Among solos, only 24% encrypt their emails. [ Polley : And I bet that most of these encryption “users” actually are using Opportunistic TLS encryption, which they’ve been told by their IT people is usually in effect; I’d be astonished if more than a vanishingly small percentage of lawyers are using other kinds of email encryption processes.]

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Law firms lacking cybersecurity measures have ‘significant ground to make up’ (LegalTechNews, 1 Oct 2015) - Although cybersecurity concerns and discussions are forward facing in all industries today, companies still have significant room to improve existing practices, a new report finds. Protiviti’s ”2015 IT Security and Privacy Survey” revealed that one in three companies lacks policies for information security, data encryption and classification. Furthermore, many companies lack critical policies and an understanding of their data. Most have a “less-than-excellent” understanding of their most sensitive data and information (71 percent) and do not have strong awareness levels concerning potential exposures, the study showed. Law firms in particular are being targeted by attackers because sophisticated criminals are aware of the corporate sensitive data they hold, which could be used for financial gain, according to Scott Laliberte, managing director of Protiviti. “In my experience with law firms, I see a couple of trends: Law firms are starting to seek ISO 27000 certification as their partners and customers are expecting better security and they need a way to market/ show they have done so,” Laliberte told Legaltech News in an interview. “Historically law firms have not had strong security controls or programs. Many have significant ground to make up.”

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No “going dark” in the city that never sleeps (Steptoe, 24 Sept 2015) - The New York State Department of Financial Services announced that it has achieved two goals that have eluded the FBI for years ‒ mandatory retention of electronic communications and key escrow encryption. The NYSDFS reached agreements with four bank ‒ Goldman Sachs, Deutsche Bank, Credit Suisse, and Bank of New York Mellon ‒ whereby the banks agreed to measures that will ensure law enforcement’s ability to access messages on the banks’ new Symphony Communications chat and messaging platform. Under the deal, Symphony will retain for seven years copies of all electronic communications sent through its platforms, and the banks will store copies of the decryption keys for their messages with independent custodians.

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Taylor Swift cracks down on pirating “Periscope” fans (Torrent Freak, 25 Sept 2015) - Twitter’s live streaming app Periscope is causing headaches among copyright holders. Every week the company received hundreds of takedown notices, mostly from sports organizations including NFL, NBA, WWE and the Premier League, who don’t want the public to rebroadcast their events for free. Musicians appear to be less concerned by Periscope, except for Taylor Swift. In recent weeks Twitter has received dozens of notices asking the company to stop and remove live streams of Swift’s concerts. The videos, often shared by some of the most passionate fans, are seen as copyright infringement. Swift has surrounded herself with a dedicated enforcement team called TAS Rights Management who swiftly take them offline. * * * Taylor Swift is the only artist sending takedown notices to Periscope, from what we’ve seen. The vast majority of other complaints are sent on behalf of sports organizations such as the NFL, NBA, WWE, Premier League, Die Liga and the Rugby World Cup, which sell subscriptions and access to their live events.

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Complex car software becomes the weak spot under the hood (NYT, 26 Sept 2015) - Shwetak N. Patel looked over the 2013 Mercedes C300 and saw not a sporty all-wheel-drive sedan, but a bundle of technology. There were the obvious features, like a roadside assistance service that communicates to a satellite. But Dr. Patel, a computer science professor at the University of Washington in Seattle, flipped up the hood to show the real brains of the operation: the engine control unit, a computer attached to the side of the motor that governs performance, fuel efficiency and emissions. To most car owners, this is an impregnable black box. But to Dr. Patel, it is the entry point for the modern car tinkerer — the gateway to the code. “If you look at all the code in this car,” Dr. Patel said, “it’s easily as much as a smartphone if not more.” New high-end cars are among the most sophisticated machines on the planet, containing 100 million or more lines of code. Compare that with about 60 million lines of code in all of Facebook or 50 million in the Large Hadron Collider. The unfolding scandal at Volkswagen — in which 11 million vehicles were outfitted with software that gave false emissions results — showed how a carmaker could take advantage of complex systems to flout regulations. Carmakers and consumers are also at risk. Dr. Patel has worked with security researchers who have shown it is possible to disable a car’s brakes with an infected MP3 file inserted into a car’s CD player. A hacking demonstration by security researchers exposed how vulnerable new Jeep Cherokees can be. A series of software-related recalls has raised safety concerns and cost automakers millions of dollars. Cars have become “sealed-hood entities with complicated computers and modules,” said Eben Moglen, a Columbia University law professor and technologist. “All of this is deeply nontransparent. And all of this is grounds for cheating of all sorts.” The increasing reliance on code raises questions about how these hybrids of digital and mechanical engineering are being regulated. Even officials at the National Highway Traffic Safety Administration acknowledge that the agency doesn’t have the capacity to scrutinize the millions of lines of code that now control automobiles. One option for making auto software safer is to open it to public scrutiny. While this might sound counterintuitive, some experts say that if automakers were forced to open up their source code, many interested people — including coding experts and academics — could search for bugs and vulnerabilities. Automakers, not surprisingly, have resisted this idea.

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Firm’s sloppy cybersecurity results in SEC action, fine (ZDnet, 30 Sept 2015) - The Securities and Exchange Commission is the latest federal agency turning up the heat on companies whose lax cybersecurity has contributed to breaches of user data. The SEC’s action, along with those last month at the Federal Trade Commission and in federal courts, is starting to sketch out a pattern of dwindling tolerance for negligence by companies in protecting their computer systems. Last week, the SEC announced a settlement with St. Louis-based R.T. Jones Capital Equities Management, which lost the personally identifiable information (PII) of approximately 100,000 people. The more interesting twist is that the firm was charged even though several cybersecurity-consulting firms hired by R.T. Jones could not determine the extent of the breach or whether PII had been accessed or compromised. And to date, none of the victims have reported any financial harm as a result of the attack. Nevertheless, the SEC saw fit to charge R.T. Jones over its lax policies and procedures under the agency’s Regulation S-P Safeguards Rule adopted in 2000. The rule requires brokers, dealers, investment companies, and registered investment advisers to “adopt written policies and procedures that address administrative, technical, and physical safeguards for the protection of customer records and information.” “While this enforcement is by no means the first under Regulation S-P against an investment advisor or company for failing to have a written information security program in place, it may mark a shift in the enforcement strategy at the SEC,” Jason Wool, an associate in the Cybersecurity Preparedness & Response Team at the law firm of Alston & Bird, wrote on the JD Supra Business Advisor web site . [ Polley : see also SEC’s regulatory action against R.T. Jones: Did the other cybersecurity shoe just drop? (Weil, 28 Sept 2015)]

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Home Depot cyber attack costs could reach into the billions (Insurance Business, 1 Oct 2015) - The September data breach of Home Depot last year is now being used as an example of the astronomical expenses attached to cyber risk, at a time when few insurers are prepared to cover it. According to new data released by the retailer, the breach has already cost Home Depot $232 million and is anticipated – by some accounts – to reach into the billions before the episode is over. Much of this is driven by lawsuits, filed by small community banks and credit unions that were hit hard in the wake of the breach. These lawsuits accuse Home Depot of ignoring warnings from security experts that its computer systems were vulnerable to attack, prior to the theft of approximately 56 million sets of credit and debit card data. Ostensibly, Home Depot’s cyber insurance policy would offset a large portion of these costs. Regulatory filing submitted by the retailer, however, reveal that only $100 million of the breach was covered by insurance. And while this may be a lesson to insurance agents working with retailers to push for the purchase of more coverage, appropriately high limits are hard to come by. “If you’re a retailer, it’s hard to buy more than $125 million in coverage in today’s market,” Roberta Anderson, co-founder of the Cyber Law and Cybersecurity practice group at K&L Gates law firm, told the New York Times. “Obviously, the potential liability is so much more.”

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Target’s bullseye gets a lot bigger (Steptoe, 8 Oct 2015) - The United States District Court for the District of Minnesota has given approval for hundreds of banks and credit unions to band together in a class action against Target Corporation over a 2013 hack that extracted the payment card data and personal information of over 40 million customers. In In re: Target Corporation Customer Data Security Breach Litigation , the financial institutions allege that they suffered injury in the form of having to replace payment cards, reimburse fraud losses, and take other remedial steps. The ruling will greatly increase the pressure on Target to settle the suit on terms more amenable to the banks, after a previous settlement effort assisted by Visa and MasterCard failed. This is apparently only the second data breach case brought by financial institutions that has reached the class certification stage, and so represents an important precedent.

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ABA and Rocket Lawyer launch on-demand legal advice pilot program (ABA Journal, 1 Oct 2015) - The American Bar Association and Rocket Lawyer have launched a new pilot program that provides on-demand legal advice for small businesses. In a Thursday press release , the ABA and Rocket Lawyer announced that they have begun testing ABA Law Connect in Illinois, Pennsylvania and California. First announced in August 2014 , ABA Law Connect utilizes Rocket Lawyer’s cloud-based computing system to allow small-business owners or their representatives to pay $4.95 to post a legal question online and have an ABA member-lawyer answer it (plus a follow-up question). If they wish to enter into a formal attorney-client relationship afterward, they may do so. According to the ABA Law Connect website, the lawyers are in good standing with their state bars, have no disciplinary history and are covered by professional liability insurance. The pilot’s launch comes more than a year after the ABA and Rocket Lawyer first announced their intentions of entering into a joint-venture designed at providing low-cost legal advice for small businesses while giving ABA members access to a larger base of clients. “ABA Law Connect is an exciting opportunity for the ABA and Rocket Lawyer to assist small businesses, connecting them with ABA members, and represents one of many efforts by the ABA to improve access to legal services,” ABA President Paulette Brown said in the press release.

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Stockton mayor was briefly detained on return flight from China (SFgate, 2 Oct 2015) - The mayor of Stockton was briefly detained and had two of his laptops and a cell phone confiscated by homeland security agents at the San Francisco International Airport earlier this week after returning from a trip to China, according to a statement by the mayor. Mayor Anthony R. Silva, who was elected in November 2012, had traveled to China for a mayor’s conference, he said in a statement. Upon his return home on Monday, Silva was briefly detained by Department of Homeland Security agents and had his belongings searched, he said. “A few minutes later, DHS agents confiscated all my electronic devices including my personal cell phone. Unfortunately, they were not willing or able to produce a search warrant or any court documents suggesting they had a legal right to take my property. In addition, they were persistent about requiring my passwords for all devices,” Silva said. Silva was not allowed to leave the airport until he gave his passwords to the agents, which the mayor’s personal attorney, Mark Reichel, claimed is illegal. He has yet to get the property returned, according to Reichel. The mayor said Reichel contacted the U.S. Attorney’s Office in Sacramento but was told that “we can neither confirm or deny if we have the mayor’s possessions.”

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Scottrade alerts 4.6 million brokerage customers of breach (Wired, 2 Oct 2015) - Following news this week that hackers stole data on 15 million T-Mobile customers comes a new report that 4.6 million customers of the St. Louis-based brokerage firm Scottrade may have also been hit in a different breach. The retail brokerage firm disclosed to customers in an email today, and in a notice on its web site , that it suffered a database breach that occurred between late 2013 and early 2014, but the company only learned of it recently when law enforcement agents notified Scottrade that it was investigating a rash of breaches involving financial services firms, according to spokeswoman Shea Leordeanu. The company said that the thieves appeared to have access to the network for several months between late 2013 and February 2014. The breach went undetected until the FBI recently notified Scottrade in late August that it had been hacked, Leordeanu told WIRED. “They initially asked us to not share the information with our customers so that they could complete a part of their investigation,” she said. “We were then alerted last Friday that it was all right to begin notifying our clients and we began to do that as quickly as possible.” [ Polley : emphasis supplied.]

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California libel protection now covers online publications (Columbia Journalism Review, 2 Oct 2015) - Here’s one for the changing-media-landscape file: California Gov. Jerry Brown signed a bill this week to update his state’s libel laws, bringing consistency to the treatment of print and online publications. “Our libel laws now rightly treat new media sources the same as traditional newspapers,” the bill’s sponsor said—appropriately enough—in a Facebook post . At issue was the state’s “libel retraction” statute. Dating back to 1931, the original law created a means to limit the damages available to a plaintiff in a libel case against a media defendant. Basically, it said damages would be limited if the defendant had published a retraction at the plaintiff’s request. The major catch: The statute applied only if the libelous material was published in a “newspaper” or a “radio broadcast.” A different statute clarified that “radio broadcast” included TV broadcast, but what about magazines and websites? In 2014, a state appeals court ruled that California’s retraction statute did not, in fact, apply to websites. The panel concluded: * * * [T]he new measure replaces the term “newspaper” with the phrase “daily or weekly news publication,” defined as “a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”

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California bans paparazzi from using drones to spy on celebrity homes (Mashable, 7 Oct 2015) - Following campaigns by several lawmakers and complaints from celebrities, California Gov. Jerry Brown signed legislation Tuesday prohibiting paparazzi from using drones to surveil private property. Through the new ban, “physical invasion of privacy” in the state has been redefined to include flying a drone over private land for the purpose of taking a picture or video, the Los Angeles Times reports . It closes a loophole in paparazzi legislation passed last year by prohibiting the flying of drones in the “airspace above the land of another” in order to “ peer into windows, capture goings on and otherwise spy on the private lives of public persons .”

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Supreme Court plans to highlight revisions in its opinions (NYT, 5 Oct 2015) - The Supreme Court announced on Monday that it would disclose after-the-fact changes to its opinions, a common practice that had garnered little attention until a law professor at Harvard wrote about it last year. The court also took steps to address “link rot” in its decisions . A study last year found that nearly half of hyperlinks in Supreme Court opinions no longer work. And the court said it would bar “line standers” who hold places for lawyers eager to see high profile arguments. The move on editing is a major development. Though changes in the court’s opinions after they are issued are common, the court has only very seldom acknowledged them. Many of the changes fix spelling or factual errors. Others are more substantial, amending or withdrawing legal conclusions. Starting this term, a court statement said, “post-release edits to slip opinions on the court’s website will be highlighted and the date they occur will be noted.” * * * The court said it would also address what it called “the problem of ‘link rot,’ where Internet material cited in court opinions may change or cease to exist.” The court will now collect and post the materials it links to on a dedicated page on its site. The move seemed to have been prompted by news media coverage of a study showing that about half of 555 links in Supreme Court opinions did not work.

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Winklevoss twins’ bitcoin site gets banking charter (The Hill, 5 Oct 2015) - New York’s top banking regulator on Monday granted a banking charter to bitcoin exchange Gemini, launched in January as a “hack-free” site. Tyler and Cameron Winklevoss, best known for their drawn-out lawsuit against Facebook founder Mark Zuckerberg, are behind the exchange, which gives people a platform to buy and sell the digital currency bitcoin. It’s the second virtual currency firm to receive a banking charter from the New York State Department of Financial Services (NYDFS). The watchdog approved a charter for ItBit in May, making it the first U.S. bitcoin exchange to be regulated as a bank. “We are continuing to move forward on licensing and chartering virtual currency firms,” said Anthony Albanese, acting superintendent of the NYDFS. “Smart, targeted regulation that helps protect consumers and prevent illicit activity is vital to the long-term future of this industry.” At Gemini’s launch , the Winklevoss twins said they intended to bring security and legitimacy to the virtual currency payment process, which has been rattled by a number of hacks and alleged fraud at major exchanges. “Our goal was simple: bring together the nation’s top security experts, technologists, and financial engineers to build a world-class exchange from the ground up with a security-first mentality,” Cameron Winklevoss said in a blog post. Financial regulators have not stood idly by. The NYDFS has moved to increase reporting requirements around the use of digital currency, which can be swapped for physical money or used to make purchases directly at an increasing number of retailers. The regulator in June issued its final BitLicense framework. Under the guidelines, financial firms handling bitcoins and other digital currencies will need to obtain a BitLicense from the NYDFS, ensure a strong cyber defense and maintain detailed records of all digital transactions. The banking overseer issued its first BitLicense in September to virtual currency firm Circle Internet Financial. It has received 25 applications in total.

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The benefits of self-publishing electronic casebooks (Eric Goldman, 7 Oct 2015) - Recently, the Washington Journal of Law, Technology & Arts published an online symposium called “Disruptive Publishing Models.” The articles discuss different initiatives to disrupt the traditional model for publishing legal casebooks and how those initiatives are driving down students’ costs for law school teaching materials. My colleague Rebecca Tushnet (Georgetown Law) and I contributed an article to the symposium entitled “ Self-Publishing an Electronic Casebook Benefited Our Readers—And Us .” The article analyzes our experiences self-publishing our co-authored legal casebook, Advertising and Marketing Law: Cases and Materials , and it explains numerous reasons why self-publishing the book made more sense for us than pursuing the traditional publication process. The article abstract: Self-publishing our electronic casebook, Advertising and Marketing Law: Cases & Materials, wasn’t some grand ambition to disrupt legal publishing. Our goal was more modest: we wanted to make available materials for a course we strongly believe should be widely taught in law school. Electronic self-publishing advanced that goal in two key ways. First, it allowed us to keep the price of the materials low. Second, we bypassed gatekeepers who may have degraded the casebook’s content and slowed the growth of an advertising law professors’ community. Although my marketing of the book has consisted solely of announcing it on my blog and on email lists, I still view it as an ebook success story. Since I released the 2015 edition in July (and as of the date I made this post originally on Forbes), I’ve sold 94 PDFs, 20 Kindle versions and 66 print-on-demand editions (through CreateSpace) for total sales of 180 units [FN1]. This has generated total revenues of over $2,000 and net proceeds of well over $1,000. I expect these numbers to go up after another round of Spring semester adoptions and sales. By self-publishing the book, I get the many intangible benefits that Rebecca and I discuss in our article, plus an income supplement approaching $2,000 a year.

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RESOURCES

Revenge pornography and the First Amendment (Media Law Prof Blog, 22 Sept 2015) - Andrew Koppelman, Northwestern University School of Law, is publishing Revenge Pornography and First Amendment Exceptions in the Emory Law Journal. Here is the abstract: The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. A recent illustration is the new phenomenon of “revenge pornography,” which some states have attempted to prohibit. These prohibitions restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue. The central harm that such a prohibition aims to prevent is the acceptance, by the audience of the speech, of the message that this person is degraded and appropriately humiliated because she once displayed her naked body to a camera. The harm, in other words, consists in the acceptance of a viewpoint. Viewpoint-based restrictions on speech are absolutely forbidden. Free speech is a complex cultural formation that aims at a distinctive set of goods. Its rules must be formulated and reformulated with those specific goods in mind. Pertinently here, one of those goods is a citizenry with the confidence to participate in public discussion. Traumatized, stigmatized women are not the kind of people that a free speech regime aims to create. Revenge pornography threatens to create a class chronically dogged by a spoiled social identity, and a much larger class of people who know that they could be subjected to such treatment without hope of redress. That state of affairs is directly contrary to the ideal of a regime in which everyone is empowered to participate in public discourse.

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LOOKING BACK

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

iPod maps draw legal threats (Wired, 26 Sept 2005) -- Transit officials in New York and San Francisco have launched a copyright crackdown on a website offering free downloadable subway maps designed to be viewed on the iPod. IPodSubwayMaps.com is the home of iPod-sized maps of nearly two dozen different transit systems around the world, from the Paris Metro to the London Underground. The site is run by New Yorker William Bright, who said he fell into transit bureaucracy crosshairs after posting a digitized copy of the New York City subway system map on Aug. 9. “I got it on Gawker the day after it started, and the site exploded,” he said. More than 9,000 people downloaded the map, which was viewable on either an iPod or an iPod nano, before Bright received a Sept. 14 letter from Lester Freundlich, a senior associate counsel at New York’s Metropolitan Transit Authority, saying that Bright had infringed the MTA’s copyright and that he needed a license to post the map and to authorize others to download it.

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History’s worst software bugs (Wired, 8 Nov 2005) -- Last month automaker Toyota announced a recall of 160,000 of its Prius hybrid vehicles following reports of vehicle warning lights illuminating for no reason, and cars’ gasoline engines stalling unexpectedly. But unlike the large-scale auto recalls of years past, the root of the Prius issue wasn’t a hardware problem -- it was a programming error in the smart car’s embedded code. The Prius had a software bug. With that recall, the Prius joined the ranks of the buggy computer -- a club that began in 1945 when engineers found a moth in Panel F, Relay #70 of the Harvard Mark II system.1The computer was running a test of its multiplier and adder when the engineers noticed something was wrong. The moth was trapped, removed and taped into the computer’s logbook with the words: “first actual case of a bug being found.” Sixty years later, computer bugs are still with us, and show no sign of going extinct. As the line between software and hardware blurs, coding errors are increasingly playing tricks on our daily lives. Bugs don’t just inhabit our operating systems and applications -- today they lurk within our cell phones and our pacemakers, our power plants and medical equipment. And now, in our cars. But which are the worst? It’s all too easy to come up with a list of bugs that have wreaked havoc. It’s harder to rate their severity. Which is worse -- a security vulnerability that’s exploited by a computer worm to shut down the internet for a few days or a typo that triggers a day-long crash of the nation’s phone system? The answer depends on whether you want to make a phone call or check your e-mail. [Editor in 2005: Fun story. The CIA-bug-in-Soviet-pipeline story (more at http://www.msnbc.msn.com/id/4394002 ), if true, isn’t the only case of such a plant.]

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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.

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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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