Friday, March 04, 2016

MIRLN --- 14 Feb - 5 March 2016 (v19.04)

MIRLN --- 14 Feb - 5 March 2016 (v19.04) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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Following up on last MIRLN's " License plate readers in Texas are now also debt collectors " (Wired, 30 Jan 2016)": now see City of Kyle rescinds agreement with Vigilant Solutions (Texas Tribune, 22 Feb 2016) - A Kyle city council member says police officers are doing a good job with traditional warrant round ups, but using a California-based company's license plate recognition technology to identify debtors would be unfair to poor drivers and raises privacy concerns, she said. Late last Tuesday, the Kyle City Council voted 6-1 to rescind an agreement with Vigilant Solutions that would have paid the company a 25 percent surcharge to help police identify drivers with outstanding warrants and - after stopping them - collect their fines roadside. Kyle had voted in January to join the program. "When we first voted for it, I was very uncomfortable with it, because, really, after I had more and more time to think about it, the original plan really hurts the poor in the first place," City Council Member Daphne Tenorio said. "To me, it was too much Big Brother," Tenorio said. "And there was no way that they could honestly say that that information was safe, and in this day of technology, with hackers, nothing is safe. I wouldn't want my information being given and shared with other people."

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Law firm cybersecurity audits: Getting to good (Law Practice Today, 12 Feb 2016) - Most law firms are just starting to think seriously about conducting cybersecurity assessments, and getting their policies and procedures into shape. For solo practitioners and small practices, cybersecurity can seem especially daunting. How do you build an effective cybersecurity program, no matter what your size? Here are nine building blocks of an effective cybersecurity program: * * * [ Polley : useful, succinct.]

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Lawyers speak out about massive hack of prisoners' phone records

(The Intercept, 12 Feb 2016) - In the Summer of 2013, Missouri criminal defense attorney Jennifer Bukowsky was preparing for an evidentiary hearing in the case of a pro bono client, Jessie McKim. The stakes were high: Along with his co-defendant, James Peavler, McKim had been convicted in 1999 of killing a woman named Wendy Wagnon and was serving life without parole at a maximum security prison. At the upcoming hearing, Bukowsky planned to argue that her client was innocent - and that the murder that sent him to die in prison was never a murder at all. McKim was convicted in part based on the testimony of a local medical examiner, who claimed that the presence of petechiae on a dead body - small spots on the skin or the whites of the eyes where capillaries have hemorrhaged - is proof that a person was suffocated. Among the witnesses Bukowsky planned to call at the hearing were five different pathologists who would testify that the state's medical examiner was wrong when he claimed Wagnon was suffocated - and that evidence pointed to a meth overdose instead. As she prepped witnesses and decided who else should take the stand, she shared her strategy with McKim via lengthy phone calls - calls understood to be protected by attorney-client privilege. Unlike calls between prisoners and their family or acquaintances, which are routinely monitored, conversations with lawyers are not to be recorded. The hearing took place in August 2013. The following spring, a circuit court judge ruled against McKim, upholding his conviction and saying that even if Wagnon was not suffocated, McKim and his co-defendant could have killed her another way - by intentionally forcing her to overdose on meth, a theory the state had never previously argued, for which there was no supporting evidence. Last fall, Bukowsky received an unexpected phone call related to McKim's case. The call came from The Intercept , following our November 11, 2015, report on a massive hack of Securus Technologies, a Texas-based prison telecommunications company that does business with the Missouri Department of Corrections. As we reported at the time, The Intercept received a massive database of more than 70 million call records belonging to Securus and coming from prison facilities that used the company's so-called Secure Call Platform. Leaked via SecureDrop by a hacker who was concerned that Securus might be violating prisoners' rights, the call records span a 2 1/2-year period beginning in late 2011 (the year Securus won its contract with the Missouri DOC) and ending in the spring of 2014. Although Securus did not respond to repeated requests for comment for our November report, the company released a statement condemning the hack shortly after the story was published. Securus insisted there was "absolutely no evidence" that any attorney-client calls had been recorded "without the knowledge and consent" of the parties to each call.

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Researcher illegally shares millions of science papers free online to spread knowledge (Science Alert, 12 Feb 2016) - A researcher in Russia has made more than 48 million journal articles - almost every single peer-reviewed paper every published - freely available online. And she's now refusing to shut the site down , despite a court injunction and a lawsuit from Elsevier, one of the world's biggest publishers. For those of you who aren't already using it, the site in question is Sci-Hub , and it's sort of like a Pirate Bay of the science world. It was established in 2011 by neuroscientist Alexandra Elbakyan, who was frustrated that she couldn't afford to access the articles needed for her research, and it's since gone viral, with hundreds of thousands of papers being downloaded daily. But at the end of last year, the site was ordered to be taken down by a New York district court - a ruling that Elbakyan has decided to fight, triggering a debate over who really owns science.

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Sci-Hub helps science 'pirates' to download 100,000s of papers per day (Torrent Freak, 29 Feb 2016) - "Information wants to be free" is a commonly used phrase in copyright debates. While it may not apply universally, in the academic world it's certainly relevant. Information and knowledge are the cornerstones of science. Yet, a lot of top research is locked up behind expensive paywalls. As with most digital content, however, there are specialized sites that offer free and unauthorized access. In the academic world Sci-Hub has become an icon for this pirate version of "Open Access." Early last year one of the largest academic publishers, Elsevier, filed a complaint at a New York District Court accusing the sites' operators of systematic copyright infringement. However, instead of stopping the site the case raised its profile, putting it at the center of a debate about paywalled research. As a classic demonstration of the Streisand effect the site's userbase grew while many academics publicly showed their support. According to Sci-Hub's founder Alexandra Elbakyan tens of thousands of people now use the site to download papers. On an average day last week 69,532 users downloaded 217,276 different papers, all without paying a penny.

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Take-down: altering your social media content during litigation (Smart Business, 15 Feb 2016) - Social media now permeates our daily lives. Yet, because most of us don't anticipate being involved in litigation, we don't consider how our status updates, photographs or tweets could affect us in a lawsuit. Clients typically don't consider the impact of their social media posts until their attorneys see them from the perspective of pseudo-judge, only to gasp out with a George Takei-esque "Oh my." Out comes the opposing party's formal discovery request for that social media content and in comes the lawyer's dilemma: Can lawyers advise clients to delete damning content? Conceal it from public view? Clean up future posts? Court sanctions in this regard have been severe: * * * Such scathing rulings - and lack of consistent authority - have created a chilling effect in the legal community, and in some situations, a "deer in headlights" look when a client asks his or her attorney what to do with Instagram photos showing them intoxicated, in a bar, wearing moose antlers, at 3 a.m. on a Tuesday with a custody case on the horizon. Florida recently tackled this very issue. Florida Advisory Opinion 14-1 confirmed that attorneys could advise clients to increase privacy settings (to conceal social media content from public eye) and to remove information relevant to the foreseeable proceeding from social media accounts so long as the data was preserved and no preservation and/or spoliation of evidence rules were broken. Finally, attorneys got a roadmap. Sort of. The inquiry commenced with Florida Rule of Professional Conduct 4-3.4(a), which dictates that a lawyer must not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding, nor counsel or assist another person to do such act. The proper inquiry is whether a client's social media account is relevant to a "reasonably foreseeable proceeding," not whether the information is directly related to the matter. That is, information not directly related to the lawsuit may still be relevant. But, the relevancy determination is fact-intensive, with no bright-line rule. The Committee also declined to define unlawful obstruction or destruction of evidence, although spoliation has been found where evidence is destroyed or significantly altered, or where a party fails to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. Likewise, litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation. Florida's decision follows a nationwide trend and comes on the heels of similar decisions by New York, North Carolina and Pennsylvania.

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As marijuana sales grow, start-ups step in for wary banks (NYT, 16 Feb 2016) - When Lamine Zarrad was not at his job as a federal banking regulator in recent months, he was spending a lot of time at Denver's marijuana dispensaries. As a federal employee, he could not partake of the pot. He was there, instead, to pitch the shops on a start-up he has been working on in his free time and is making official this week after quitting his job as a bank examiner at the Office of the Comptroller of the Currency, a division of the Treasury Department. Mr. Zarrad's start-up, Tokken (pronounced token), is one of several recently created companies looking to solve one of the most vexing problems facing marijuana businesses in Colorado and several other states: the endless flow of dirty, dangerous, hard-to-track cash. The State of Colorado legalized marijuana for recreational use in 2014, joining several other states where the drug has been decriminalized in some form, but Visa and MasterCard will not process transactions for pot dispensaries and most banks will not open accounts for the businesses - leaving dispensaries dealing with a constant influx of cash, and nowhere good to put it. Tokken and others start-ups, with names like Hypur and Kind Financial, have been putting together software that helps banks and dispensaries monitor and record transactions, with the long-term goal of moving transactions away from cash. Most of the start-ups trying to help with this problem are focused, in one way or another, on tracking every detail of every purchase in a more sophisticated way. Careful record-keeping can answer the concerns of banks worried about violating anti-money laundering laws. The start-ups hope their software can allow banks to open up their accounts, and their payment networks, to cannabis businesses. Hypur, a two-year-old company based in Arizona, has built software for banks that uses GPS to geo-locate each purchase and prove it was done in an authorized dispensary. The California-based start-up Kind Financial is offering software as well as hardware, in the form of kiosks that can go inside dispensaries. Customers can deposit cash in the Kind kiosk to pay for their purchase, removing one headache for the dispensary. Mr. Zarrad's start-up, Tokken, is younger than the others, but he is aiming to offer something new - an electronic payment system that will not rely on the credit card companies or debit networks. Somewhat like PayPal or Venmo, Tokken will use the electronic money transfer system in the United States known as the Automated Clearinghouse, or ACH, to move money from the bank account of a dispensary customer to Tokken's bank account. Tokken will then keep subaccounts for each dispensary - making it unnecessary for the banks to deal directly with dispensaries.

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The conscription of Apple's software engineers (The Atlantic, 18 Feb 2016) - * * * The FBI's effort to force Apple's hand isn't just about whether the costs of unbreakable encryption outweigh the benefits. (Technically, it isn't even about "backdoors.") The most important question raised by this case concerns coercion. The federal government is empowered to compel individuals and corporations to hand over data in their possession upon the presentation of a valid search warrant. Is the FBI also empowered to compel Americans to write and execute malware? Does it have a claim on the brainpower and creativity of citizens and corporations? Apple CEO Tim Cook aptly summed up the situation: "The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe," he declared. A federal judge is effectively ordering these unnamed people to write code that would indisputably harm their company and that would, in their view, harm America. They are being conscripted to take actions that they believe to be immoral, that would breach the trust of millions, and that could harm countless innocents. They have been ordered to do intellectual labor that violates their consciences. That may be commonplace in authoritarian countries, but liberal democracies ought to avoid doing the same out of an aversion to transgressing against core freedoms. The order could set a sweeping precedent if it stands. "If you allow people to be conscripted in this way, as investigative arms of the government," Julian Sanchez observes, "not just to turn over data, but to help extract data, where the only connection to a case is that they wrote some software the suspect used or made a device the suspect used, you're effectively saying that companies are going to have to start a sideline in helping the government with surveillance." He adds: "Do we want to accept that courts may compel any software developer, any technology manufacturer, to become a forensic investigator for the government, whether or not the investigation is intrinsically legitimate?"

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A 19-year-old made a free robot lawyer that has appealed $3 million in parking tickets (Business Insider, 18 Feb 2016) - Hiring a lawyer for a parking-ticket appeal is not only a headache, but it can also cost more than the ticket itself. Depending on the case and the lawyer, an appeal - a legal process where you argue out of paying the fine - can cost between $400 to $900. But with the help of a robot made by British programmer Joshua Browder, 19, it costs nothing. Browder's bot handles questions about parking-ticket appeals in the UK. Since launching in late 2015, it has successfully appealed $3 million worth of tickets. Once you sign in, a chat screen pops up. To learn about your case, the bot asks questions like "Were you the one driving?" and "Was it hard to understand the parking signs?" It then spits out an appeal letter, which you mail to the court. If the robot is completely confused, it tells you how to contact Browder directly. Beyond parking tickets, Browder's bot can also help with delayed or canceled flights and payment-protection insurance (PPI) claims. Although the bot can only help file claims on simple legal issues - it can't physically argue a case in front of a judge - it can save users a lot of money. Browder programmed his robot based on a conversation algorithm. It uses keywords, pronouns, and word order to understand the user's issue. He says that the more people use the robot, the more intelligent it becomes. Its algorithm can quickly analyze large amounts of data while improving itself in the process.

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Judge in Anthem case rules that breach harmed patients (Digital Guardian, 18 Feb 2016) - The legal wrangling over whether data breaches cause harm to consumers got even more complicated this week, following a District Court ruling against the health insurer Anthem. In an opinion released on Sunday, U.S. District Judge Lucy Koh found that the loss of personal information in the breach of Anthem constitutes harm under New York's General Business Law. The ruling rejected arguments from Anthem and its lawyers that no direct harm resulted from the breach, which was first disclosed in February, 2015, The Recorder reported this week . The decision, if upheld, would kick one leg out from the stool upon which breached corporations have rested their defense against consumer class action lawsuits. Namely: that consumers can't prove that any harm was done to them as a result of having their personal or financial information stolen. That has become a common refrain around the country, as this blog has noted . One example: attorneys working for home improvement giant Home Depot asked a federal court in Atlanta to dismiss that suit, claiming that the consumers behind it could not prove they were damaged by a breach of that company's payment systems in 2014 .

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Ravel Law adds judges, features to its judge analytics tool (Robert Ambrogi, 18 Feb 2016) - Judge analytics is the new black. Or at least that's what I wrote in a post last summer that discussed several products that could do things such as help you predict how a particular judge might rule on an issue or which cases that judge was likely to find most persuasive. One of the products I covered in that post was Ravel Law's Judge Analytics, which promised to provide "never-before-available information and analysis about how individual federal court judges make decisions." Today, Ravel Law introduced an update to its Judge Analytics product that adds both new content and new functionality. The update adds: * * * A key value of the service is its ability to identify rules, cases and specific language that a judge commonly cites. It also shows you the cases a judge has authored together with analyses of other judges who have influenced them. Although basic access to Ravel Law is free, Judge Analytics is available only with Ravel's Elite-level subscription plan. Pricing for that plan is not listed on Ravel's website.

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Hollywood hospital pays $17,000 in bitcoin to hackers (LA Times, 18 Feb 2016) - Hollywood Presbyterian Medical Center paid a $17,000 ransom in bitcoin to a hacker who seized control of the hospital's computer systems and would give back access only when the money was paid, the hospital's chief executive said Wednesday. The hospital said it alerted authorities and was able to regain control of all its computer systems by Monday, with the assistance of technology experts. Stefanek said patient care was never compromised, nor were hospital records.

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ABA abandons Rocket Lawyer venture amid attorney backlash (ALM, 18 Feb 2016) - Facing strong opposition from state and local bar groups, the American Bar Association has quickly backed away from a pilot project aimed at helping small business owners find lawyers for a reasonable price. The project, ABA Law Connect, was launched last October in partnership with Rocket Lawyer , a company backed by Google Ventures (now GV) that takes a mass-market approach to helping consumers consult with lawyers and create legal documents. In an Oct. 1 press release , ABA president Paulette Brown lauded the program as an "exciting opportunity" to provide small businesses with affordable legal services, while offering lawyer members a chance to serve new clients. Customers would pay just $4.95 to ask an ABA-member lawyer a question online and a follow-up question. The lawyer and client could negotiate for further services. ABA Law Connect was tested in California, Illinois and Pennsylvania for roughly three months before being shut down in January. In two of the three test states-Pennsylvania and Illinois-the state bar associations struck back against the program, in part because they feared it would take business away from state and local bar referral services, which generate revenue for bar groups. Rocket Lawyer founder and CEO Charley Moore said in a statement that he still expects to collaborate with "forward-thinking" bar associations. "We are disappointed that a few individuals chose protecting their lawyer referral revenue and high fees, over innovation, fair competition and the public's need for wider access to attorney advice," he said.

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Federal mandate on e-Voicing & government contract compliance (General Counsel News, 18 Feb 2016) - The Office of Management and Budgets (OMB) has issued a memo mandating that all billing and invoicing from government contractors and federal agencies must be electronic. Approximately 12 million invoices still need to make the transition, report two partners in Alston & Bird. They advise that government contractors and payment service providers should be prepared to implement clear, practical methods of e-payments. "Pilot programs in the federal government - both pure payment-vendor relationships and added services to banking relationships - are available to facilitate the OMB-directed shift to e-invoicing," says Jeff Belkin , partner and leader of Alston & Bird's Government Contracts Group with expertise in complex government contract compliance issues. "While it is unclear if the shift to e-invoicing will ultimately end in a no-fee electronic payments program, or, a model that requires the government (or its partners) to pay others to facilitate the program, there surely will be many challenges before that final equilibrium is reached." "As of July 2015, a mere 40% of invoices were processed using e-invoicing," says Tony Balloon , partner in Alston & Bird's Financial Services & Products Group , who has deep knowledge of the payments industry. "Though the initial transition leading up to the 2018 deadline will be challenging, the adoption of e-invoicing will result in increased efficiency and timely payments for both federal agencies and government contractors."

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California Attorney General releases report defining "reasonable" data security (Hunton & Williams, 19 Feb 2016) - On February 16, 2016, California Attorney General Kamala D. Harris released the California Data Breach Report 2012-2015 (the "Report") which, among other things, provides (1) an overview of businesses' responsibilities regarding protecting personal information and reporting data breaches and (2) a series of recommendations for businesses and state policy makers to follow to help safeguard personal information. Importantly, the Report states that, "[t]he failure to implement all the [Center for Internet Security's Critical Security] Controls that apply to an organization's environment constitutes a lack of reasonable security" under California's information security statute.

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Singapore-based legal startup LawCanvas expands into Australia, Malaysia and Hong Kong (Asia Law Portal, 22 Feb 2016) - Recent months have seen a flurry of activity among legal startups in the Asia-Pacific region. In late 2015, Hong Kong-based legal startup Dragon Law expanded into Singapore , while Australian Cloud-based legal services start-up LawPath closed a $1.3m bridge funding round . Anna Zhang, writing in The Asian Lawyer, chronicled the rise of no fewer than 6 legal startups in mainland China. And this month, the rise of Locum Legalis, Malaysia's "Uber for lawyers", was detailed in The Star Online . Also this month, Singapore-based LawCanvas , a contract management startup based in Singapore, announced it will expand into three more countries - Australia, Malaysia and Hong Kong. In an announcement about it's planned expansion, LawCanvas detailed that it has worked with three thousand local Singaporean businesses to generate legal documents, shorten processing time, and save legal costs. Hastened by a tripling of the number of documents in their template library, the company decided to expand regionally, offering contracts and agreements that are relevant to local businesses.

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Testing the limits - Cyber coverage litigation update (Locke Lord, 23 Feb 2016) - The growing percentage of businesses that purchase cyber security and data privacy insurance portends a growing number of claims and, inevitably, litigation over some of those claims. Wells Fargo's 2015 Cyber Security and Data Privacy Survey: How Protected Are You? indicates that nearly half (44%) of companies with $100 to $500 million in revenue that have cyber security and data privacy insurance have filed a claim with their carriers at some point. But 96% of those companies that filed a claim are satisfied with their coverage and the insurers' handling of the claim. If the data can be extrapolated, then the remaining 4% are in or could end up in some sort of dispute resolution proceeding - small by percentage but potentially large in terms of the direct and indirect costs that can arise from cyber risk. Recent litigation filings provide a glimpse into what types of claims are in dispute and several are noted here; however, it is important to note that these cases are still pending and no coverage decisions have been made. * * *

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The New York Times might ban visitors who use ad blockers (Adweek, 23 Feb 2016) - New York Times CEO Mark Thompson did not mince words Tuesday when talking about ad blocking, which has been causing more than a few headaches for publishers . During a keynote discussion at Social Media Week in New York, Thompson compared using ad blockers to stealing a print issue from a newsstand. "Trying to use and get benefit of the Times' journalism without making any contribution to how it's paid is not good," he said. "Everything we do should be worth paying for. Everything should feel like it's HBO rather than a broadcast network." Thompson said the Times' subscription model only covers some of its costs. "This stuff is not made for free," he said. Thompson was blunt about ad blocking companies that allow publishers to be "whitelisted" (meaning their ads won't get blocked). Such companies "essentially are asking for extortion to allow for ads to take place," he said. "That should not be allowed." Thompson said he is considering banning ad-blocking readers who are not subscribers, as some publishers have already done . "In the end, they're not really helping pay for what they consume," he said.

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Latest qualification for cyber security? No law degree (Bloomberg, 24 Feb 2016) - Jeff Lolley joined Hogan Lovells in 2014 to help oversee the firm's internal security issues. Even though he's not a lawyer, during the past two years, Lolley gradually assumed a new role, helping the firm's clients respond to a data breach, or with training and awareness on cyber issues. Now, he leads a unit of non-lawyers at Hogan Lovells that work alongside the firm's partners in the Cyber Security Solutions practice group. And his title changed from chief information security officer to managing principal of cyber risk services. Lolley is not an isolated example: Across the country, law firms increasingly are turning to non-lawyers to help build their cyber security practice groups. Based on interviews with lawyers in this field, at least a half-dozen law firms including Hogan Lovells, Venable, Seyfarth Shaw, DLA Piper and others, are using non-lawyers, often professionals with deep backgrounds in technology and technical expertise, to complement the lawyers focused on data security and privacy. Harriet Pearson, a Hogan Lovells partner who focuses on cyber security and privacy, explained, "You need folks who can translate the topics and put them into the language of risk including legal risk." Hiring a non-lawyer can raise a firm's profile: In October, Venable hired Ari Schwartz from the White House where his title was Special Assistant to the President and Senior Director for Cybersecurity . His title at the law firm is managing director of cyber security services. Last week, Schwartz announced he will coordinate a group of tech companies that want to provide a unified voice on cyber security policy issues. Called the Coalition for Cybersecurity Policy and Law, it includes Microsoft, Oracle, Cisco, Intel and smaller companies.

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The new promises of France's legal tech startups (Tech Crunch, 24 Feb 2016) - Where there is friction, there are business opportunities. In France, a host of startups are flourishing with the promise to ease the pain of paperwork from user-unfriendly administrations or banks. Examples of such startups include Guacamol for legal paperwork, PayFit for super-simple payroll or Fred De La Compta for cheap, frictionless accounting. France is known for making it hard for entrepreneurs, namely because the legal environment (tax law, in particular) is quite uncertain (or at least is perceived by foreign investors to be more unstable than that of many other countries). In fact, public services have become a lot simpler in the past few years, but many stakeholders, not all acting in concert, are involved. Paradoxically enough, being in France is an advantage for such startups: If you can make it seamless in France, you can make it anywhere. The added value of integrating the different steps is bigger both for French and international entrepreneurs in France. These companies can make France more attractive and help accelerate the creation of more businesses. By helping companies in a complex environment, they are setting the bar a lot higher for everyone else. They are imposing new standards for different professions (lawyers, in particular). * * * The first generation of legal tech startups applied tech and software to help law firms automate a certain number of tasks, like storing documents, billing or accounting. Basically, these startups are about helping law firms be more efficient and maximize the number of billable hours their lawyers could charge. The first legal tech startups are primarily about "efficiency," i.e., helping to reduce the costs, make more with less. The second generation of legal tech startups started disrupting the practice of law, either by giving clients direct access to online software to automate tasks and bypass the lawyers or by operating marketplaces to match lawyers with clients ( Rocket Lawyer is the best example), thus increasing market transparency and competition and leading to lower prices. A good thing, to be sure… * * * [T]he third generation of legal tech startups is about the integration of all legal and administrative services into a single-service platform that solves all of the client's legal and administrative problems. The platform that will integrate all services such as registration, incorporation, hiring and contracts, patents, intellectual property and payroll could win big. * * * [ Polley : rest of the article delves into three specific tools/apps under development; this is quite interesting.]

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California attorney advertising rules may soon apply to blogs even when lawyer is not in charge (Lawyerist.com, 25 Feb 2016) - California's Standing Committee on Professional Responsibility and Conduct (COPRAC) has been working on an ethics opinion on the applicability to attorney advertising rules to blogs for a while now, and after receiving public comments on its draft opinion, it released a revised draft and opened up a new 90-day public comment period. Comments can be submitted through May 12, 2016. The question is whether lawyer blogs subject to attorney advertising rules (which in California means subject to the many restrictions of Rule of Professional Conduct 1-400 , which significantly ups a lawyer's potential liability for making a mistake in a blog post). The biggest changes being made to the draft opinion in light of public comment pertain to blogs of a non-legal nature. COPRAC says that blogs by lawyers on non-legal topics will not be subject to the Rules of Professional Conduct even if it contains a link to the lawyer's professional website unless the blog contains "extensive and/or detailed professional identification information" announcing that the attorney is available for employment. The same general rule applies to a blog hosted outside of the lawyer's own website - the rules only kick in if the lawyer holds himself out in the blog post as available for employment. This is consistent with First Amendment law, as COPRAC expressly acknowledges. * * * COPRAC's opinion does not exempt from the advertising rules a blog that is not maintained by the lawyer but contains content written by the lawyer. The critical point in determining whether a blog post is subject to the advertising rules or not is whether it contains a reference to availability for employment. So, if you write on a site that you do not host or maintain, be very careful in how you describe your practice and your intent to gain new clients.

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Judge wants to know more about FBI's secret recordings of conversations near courthouse steps (TechDirt, 25 Feb 2016) - Last November, lawyers defending five real estate investors against auction price-rigging allegations discovered the FBI had planted bugs to capture conversations during real estate auctions on the San Mateo (CA) Courthouse steps. The lawyers questioned whether these surreptitious recordings violated wiretap laws, despite them taking place in a public area. As they noted, investors often huddled away from the steps to discuss bidding strategies in "hushed tones" in order to prevent competitors from overhearing them. According to these lawyers, the "hushed tones" were not unlike the closing of a phone booth door -- a key element in the Supreme Court's 1967 Katz decision , which found an expectation of privacy could be found in public areas, provided the person being targeted by recording devices performed certain actions. Now, the judge presiding over the case has a few questions of his own . ( non-reg/paywall link ): On Thursday at a hearing before U.S. District Judge Charles Breyer, prosecutors and defense lawyers clashed over whether the tactic crossed a constitutional line. Government lawyers, who used the microphones to investigate a federal bid-rigging case, contend that individuals picked up on the recordings were speaking in a public place and thus had no reasonable expectation of privacy. Defense lawyers insist that the surveillance, conducted without judicial approval, amounted to unlawful government eavesdropping and want Breyer to suppress all evidence derived from the devices. Although Breyer held off on ruling, he expressed at least gut-level discomfort with the notion of government agents listening at the courthouse door.

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Devices on public buses in Maryland are listening to private conversations (WaPo, 1 March 2016) - The Maryland Senate on Tuesday delayed action on a bill that would clamp down on when public buses and trains can record the private conversations of their passengers. Sen. Robert A. Zirkin (D-Baltimore County), chair of the Senate Judicial Proceedings, which unanimously voted for the measure to move to the Senate floor, said he wanted the committee to address an amendment offered by some of those who are concerned about costs associated with the bill. "What [the Maryland Transit Administration] is doing is a mass surveillance," Zirkin said. "I find it outrageous," he said. "I don't want to overstate it, but this is the issue of our generation. As technology advances, it becomes easier and easier to encroach on people's civil liberties." While Zirkin and other proponents argue that the technology, which has been in use since 2012, is an infringement on civil liberties, the bill's opponents say the recordings are a necessary tool for homeland security. The bill, which would affect MTA buses in the Baltimore area, Ride On buses in Montgomery County and TheBus in Prince George's County, creates guidelines for audio recordings and places limits on when they can be made. MTA began using recording devices inside some of its buses in 2012, without seeking legislative approval. Nearly 500 of its fleet of 750 buses now have audio recording capabilities. Officials say the devices can capture important information in cases of driver error or an attack or altercation on a bus. Under the bill, recording devices would have to be installed near a bus or train operators' seat. The devices would be controlled by the driver and could be activated only in the event of a public-safety incident.

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German police can now use spyware to monitor suspects (Ars Technica, 25 Feb 2016) - German police are now permitted to infect a suspect's computers, and mobile devices with special trojan software to monitor communications made with the systems, the country's interior ministry has confirmed. The malware can only be deployed when lives are at risk, or the state is threatened, and will require a court order to allow police officers to infect the machines of alleged criminals. However, the government-developed malware must not be used to monitor other activities on the system, or to change data or programs. It follows a decision by Germany's Constitutional Court in 2008, which ruled that the an individual's private life should have absolute protection, and that eavesdropping must be limited to a person's communications with the outside world. But Frank Rieger, a spokesperson from the famous Chaos Computer Club (CCC), has cast doubt on the German government's pledge to adhere to those standards with its trojan software. In an article on the Deutschlandfunk website ( in German ), Rieger noted that it was very hard to create malware that can be used to monitor communications in a way that does not infringe on the protected private sphere.

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Classified 2002 letter on N.S.A. eavesdropping is made public (NYT, 29 Feb 2016) - The Obama administration on Monday made public a previously classified letter from 2002 about the Bush administration's secret program that allowed the National Security Agency to eavesdrop on Americans' international communications without court orders. The release of the 22-page letter , written by John Yoo, then a top lawyer in the Justice Department's Office of Legal Counsel, adds to the historical record of one of the most controversial pieces of the Bush administration's response to the terrorist attacks of Sept. 11, 2001: The surveillance and bulk data collection program known by the code name Stellarwind. The letter explained to Colleen Kollar-Kotelly, who at that time was the new chief judge of the Foreign Intelligence Surveillance Court, why the Justice Department considered the program lawful even though, as Mr. Yoo acknowledged, it clashed with wiretapping laws laid out in the Foreign Intelligence Surveillance Act. The letter appeared to track a memorandum Mr. Yoo had written in Nov. 2, 2001, soon after President George W. Bush directed the N.S.A. to begin the program. A previously released inspector general report about the program included a partially redacted summary of that memo. Among other things, Mr. Yoo claimed in the letter that the president's constitutional authority as commander-in-chief overruled statutory prohibitions and that under the circumstances the program complied with the Fourth Amendment , which bars unreasonable searches and usually requires warrants. In the letter, Mr. Yoo wrote that, "We face a situation here where the government's interest on one side - that of protecting the Nation from direct attack - is the highest known to the Constitution. On the other side of the scale, the intrusion into individual privacy interests is greatly reduced due to the international nature of the communications."

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State Department will try to fix Wassenaar arrangement (EFF, 29 Feb 2016) - Regular readers of this blog will likely be familiar with the Wassenaar Arrangement , a 41-nation agreement intended to regulate the export of certain "dual-use" technologies, such as guns and fissile material. In December 2013, the list of controlled technologies was amended to include surveillance systems for the first time and the participating countries have slowly been rolling out their implementations ever since. Today, news outlets in Washington DC are reporting that the State Department has finally agreed to try to renegotiate the language of the Wassenaar Arrangement to eliminate the 2013 changes. Nowhere has the implementation of the Wassenaar Arrangement's new language been more problematic than in the United States. After the Commerce Department released its proposed implementation of the Wassenaar definitions for inclusion into U.S. law (an implementation that included dangerously vague language about regulating the export of software used to create exploits), all hell broke loose. Countless security companies, as well as EFF, pointed out that the proposed rule would have had dire and far-reaching consequences for the infosec industry. But the problems that we pointed out weren't limited to the U.S. proposed rule; we remain concerned that the definitions in the Wassenaar control lists which were approved in December 2013 are too vague to be implemented in any fashion without resulting in serious chilling effects on security research. In our formal comments to the Commerce Department last summer, we urged a return to Wassenaar to renegotiate the control lists to fix the problem at its source. The inclusion of intrusion software on the Wassenaar control list was done with good intentions. Human rights advocates have recognized that surveillance software designed and sold by companies in Western countries has been responsible for serious abuses around the world. We at EFF have long fought such abuses in court. We believe strongly that this is a fight worth having, but export controls are simply the wrong tool for the job. It appears that the State Department has heard these concerns loud and clear. Not only has all talk of finalizing the proposed rule as drafted come to halt, but State has put "removal of the technology control" on the agenda for the December 2016 meeting at Wassenaar. [see also US to renegotiate rules on exporting "intrusion software" (Ars Technica, 2 March 2016)]

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Study: Which students persist in MOOCs? (InsideHigherEd, 1 March 2016) - Learners who sign up for a massive open online course just days before it starts and complete a precourse survey are much more likely than their peers to finish the MOOC, according to a new paper published in the Journal of Higher Education . Researchers at Vanderbilt University examined the behavior of more than 2.1 million learners in 44 different MOOCs offered on Coursera, finding that precourse survey completers viewed 12 more lectures and were 12 percent more likely to earn a certificate of completion compared to those who skipped the survey. The results also provided some pointers for MOOC instructors on how best to structure their courses. Learners were more likely to watch lecture videos if they were posted toward the end of the week, the researchers found, while the length of the lectures appeared to have no impact on whether students watched them.

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Swiping a priceless antiquity ... with a scanner and a 3-D printer (NYT, 1 March 2016) - Two German artists walked into the Neues Museum in central Berlin in October and used a mobile device to secretly scan the 19-inch-tall bust of Queen Nefertiti, a limestone-and-stucco sculpture more than 3,000 years old that is one of Germany's most visited attractions. They used the data to create copies of the bust and delivered them to Egypt. Then last December, in the tradition of Internet activism, they released the data to the world, allowing anyone to download the information for free and create their own copies with 3-D printers. On Thursday, German museum authorities responded publicly for the first time. They were not amused. * * * Don Undeen, the senior manager of the MediaLab at the Metropolitan Museum of Art in New York, called it a "very good model" coming from consumer-level technology. "I'm glad to see the bust of Nefertiti join the ever-growing online collection of scanned art objects," he said. The artists' project, "The Other Nefertiti," confronts what they see as cultural theft and persisting colonialist notions of national ownership by making the object widely available. It's also a potent example of the way 3-D scanning technologies, which are becoming cheaper and more accessible, present cultural institutions with new opportunities, as well as new challenges. * * * Ms. Badri and Mr. Nelles planned their project for a year and a half. Ms. Badri concealed the scanning device - a modified version of the Kinect, a motion sensor developed by Microsoft for the Xbox 360 that can be purchased for around $100 - underneath a blue cashmere scarf, circling and scanning the artifact whenever the guards would congregate to chat with one another, while Mr. Nelles filmed, during the October visit. The artists then handed the data off to be assembled by outside experts - hackers who declined to be identified. Two months later, they leaked the resulting 3-D data set to the public under a Creative Commons license at Europe's largest hacker conference, the Chaos Communication Congress, in Hamburg. Within 24 hours, at least 1,000 people had downloaded the torrent. * * * Some institutions take a relatively open approach to scanning technology. The Art Institute of Chicago and the Met encourage visitors to scan objects in their collections. The British Museum hosted a "scanathon" for which museumgoers were asked to use scanning devices and smartphones to create a crowd-sourced digital archive, and the Musée du Louvre in Paris held a similar series of digital workshops.

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Survey results: Truths about lawyers and social media (Attorney at Work, 4 March 2016) - A year ago, we thought social media couldn't get any hotter as the marketing mode of choice for lawyers. Comparing results from the recent "Attorney at Work 2016 Social Media Marketing Survey" to last year's shows we may have been right. In our second annual survey, we again asked lawyers about their social media habits, preferences and attitudes. Still hot? Sure, but things seem to be leveling off: (1) Most of the lawyers responding - 88 percent - are using social media, but only 68 percent say their use of social media is part of an overall marketing strategy. That's compared to 91 percent and 60 percent in 2015; (2) Almost half of those respondents (47 percent) say lawyers' use of social media for marketing is more hype than reality. In 2015, 56 percent agreed; (3) Only 3 percent say social media is "very" responsible for actually getting them clients, compared to 4 percent in 2015. However, 41 percent say it is "somewhat" responsible. In 2015, 35 percent said "somewhat" responsible. There's a 12 percent gap between the two age groups when it comes to using social media as part of their marketing strategy - 69 percent of over-30 lawyers say it's in their strategy, compared to 57 percent of younger lawyers. Older lawyers (37 percent) say LinkedIn is the best source of new business among the various platforms, but the under-30s (47 percent) say Facebook is best for them. Fifty percent of young lawyers use social media management tools of some kind (Hootsuite, Google Analytics, TweetDeck, etc.), and 71 percent of them say they handle all social media activity themselves. Meantime, only 33 percent of the over-30 group use these types tools - but 70 percent do it all themselves.

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RESOURCES

Cloud computing - security issues to consider (Bar Council of England and Wales, Dec 2015) - To guide all barristers on security issues relating to cloud computing * * *

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LOOKING BACK - MIRLN TEN YEARS AGO

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

Disney's iTunes sales hit 125,000 (Financial Times, 19 Sept 2006) -- Disney has sold 125,000 online film downloads less than a week after agreeing to make its titles available on Apple's iTunes store. The sales have added about $1m in incremental revenue to the media company, according to chief executive Bob Iger, who expressed confidence that revenues from the new film venture could reach $50m in its first year. "Clearly, customers are saying to us that they want content available in multiple ways," Mr Iger said at an investor conference sponsored by Goldman Sachs. Disney broke with other Hollywood studios when it agreed last week to make 75 titles available on iTunes at prices ranging from $9.99 to $14.99.

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Hack the vote? No problem (Salon.com, 13 Sept 2006) -- Having reported extensively on the security concerns that surround the use of electronic voting machines, I anxiously awaited the results of a new study of a Diebold touch-screen voting system, conducted by Princeton University. The Princeton computer scientists obtained the Diebold system with cooperation from VelvetRevolution, an umbrella organization of more than 100 election integrity groups, which I co-founded a few months after the 2004 election. We acquired the Diebold system from an independent source and handed it over to university scientists so that, for the first time, they could analyze the hardware, software and firmware of the controversial voting system. Such an independent study had never been allowed by either Diebold or elections officials. The results of that study, released this morning, are troubling, to say the least. They confirm many of the concerns often expressed by computer scientists and security experts, as well as election integrity activists, that electronic voting -- and indeed our elections -- may now be exceedingly vulnerable to the malicious whims of a single individual. The study reveals that a computer virus can be implanted on an electronic voting machine that, in turn, could result in votes flipped for opposing candidates. According to the study, a vote for George Washington could be easily converted to a vote for Benedict Arnold, and neither the voter, nor the election officials administering the election, would ever know what happened. The virus could also be written to spread from one machine to the next and the malfeasance would likely never be discovered, the scientists said. The study was released along with a videotape demonstration. "We've demonstrated that malicious code can spread like a virus from one voting machine to another, which means that a bad guy who can get access to a few machines -- or only one -- can infect one machine, which could infect another, stealing a few votes on each in order to steal an entire election," said the study's team leader, Edward W. Felten, professor of computer science and public affairs at Princeton. The Princeton study is the first extensive investigation of the Diebold AccuVote DRE (Direct Recording Electronic) system, which is employed in Maryland, Florida, Georgia and many other states. Such touch-screen voting systems made by Diebold will be in use in nearly 40 states in this November's elections.

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NOTES

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

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

SOURCES (inter alia):

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

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

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

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

5. Aon's Technology & Professional Risks Newsletter

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

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

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

9. The Benton Foundation's Communications Headlines

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

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