Category Archives: Constitution

Cases of Interest, Constitution, Law, Media, Technology

Love Birds? No, Courtney’s Tweets

MP900315682 I keep telling myself I'll just pick out & post only the most egregious misuses of technology to make my points.  The problem is, it's pretty much becoming a daily occurrence.  It's the same way with privacy.  I wasn't even going to bother with this latest example, except that it has some juicy issues for lawyers – if you're interested in defamation claims, that is.

The facts are simple.  Courtney Love tweeted a bunch of nasty stuff about Dawn S., who claimed Love owed her money.  Love was sued for defamation by Dawn S.

In the United States, it's extremely difficult for a public figure to sue for defamation.  There's this legal terminology called "actual malice" that may factor in.  Naturally, a term like that gives rise to the obvious query; is there such a thing as imaginary malice?  A prof of mine said to think of it as "Constitutional malice", which was a little easier to get my arms around.  But I digress…

What's interesting about this case is that the arguments go to the very basis of whether Love qualifies as someone with enough influence to damage Dawn S.  Should we reasonably believe – or rely on – what Love says, especially when the form of broadcast (in this case, Twitter) is at issue?  So much for "The medium is the message"…

Also, I'll wager you've never heard the term, "Insanity defense for social media".  Get used to it…I have a feeling we're going to be hearing it a lot in the future.

Constitution, Rants & Raves!, Technology

“All I’m Guilty of is Bad Taste.”

Really??? Really!!! So, you're a nursing student and you think it's a great idea to pose with a placenta, then post the photo on Facebook?

http://www.msnbc.msn.com/id/40874448/ns/health/

Then, when they – shockingly – kick you out of nursing school, you sue?

Consequences. It's about consequences. That quote in the title? Larry Flynt (of Hustler fame) said it. Turns out, he was right, but he sat in jail and spent a fortune before eventually proving it.

He had the resources to fight. You don't. Maybe the students are re-instated and maybe not. But why put yourself in that position in the first place?

I'm going to invent a new software warning message. Instead of the usual, "Are you sure you wish to continue?" button, mine will inquire, "Are you sure it's appropriate to continue?".

Sent from my Verizon Wireless BlackBerry

Constitution, eDiscovery California, Implementation, Privilege, Security, Strategy, Technology

e-Discovery California: Turn your Head & Cough

MP900386083 How long has it been since I posted something California-specific?  (September 22nd, 2010, in case you wanted to know…)

This opinion piece by a consumer watchdog group (literally named "Consumer Watchdog") does a good job of expressing the tensions between the FTC and the State of California regarding approaches to internet privacy.

Now, I've certainly banged the privacy drum loudly this past year – and I don't intend to focus on it as much in 2011, lest I risk being compared with Chicken Little (by the way, just because a chicken tells you the sky is falling, doesn't mean it's not true) – but my focus has been on the evidentiary risks of not protecting your privacy, whether it be on an individual basis, corporate or somewhere in-between.

This is an e-discovery blog, after all…

Nor do I necessarily agree with the concept of a "do not track" list, as I've mentioned before (because in my opinion, it probably won't work).  There has to be an effort at formulating comprehensive policy, rather than acting like tracking a node is somehow like tracking a telephone number.  What do I mean?

  1. Has anybody thought about how one would manage such a list?  How will one identify the requestor?  By name?  By IP#?  By a unique device name/code?  (Whoops; there goes your privacy).  Suppose the individual has a PC, a laptop and a PDA – and they swap PDAs annually.  How will the database account for this?
  2. Take into account everything above, now add all of the devices in a corporate environment – and we know how often those are refreshed.  Will the firewall be enough?
  3. Now, what about the spouse, the children and all of their devices?  Children are by far the most vulnerable because, a) they already think they're bulletproof and b) they don't yet fully understand the concept of privacy (heck, neither do a lot of their parents!)

On the plus side, there are brilliant minds out there who may actually have answers to some of these issues, but the point I'm making is, you can't just slap a feel-good name on something, then give the public the impression that it's a panacea to all of their concerns.

We're not just talking about preventing annoying sales-calls at dinnertime.  Placating the public without actually achieving the goal will increase the risk (through a false sense of security), not reduce it.

Cases of Interest, Constitution, Criminal Liability, International, Law, Privilege, Security, Technology

Does this ‘Border’ on Unconstitutional?

MP900400680 When you endeavor to cross a border, you give up many of your 4th Amendment protections against illegal search and seizure.  To put it another way, a search at the border, absent probable cause – or even reasonable suspicion, for that matter (a lower standard) – isn't an illegal search.  Lawyers are well aware of this, but what about the general public?

Two issues are triggered here.  The first, privacy, I've written about before (see my International category).  Also, the mere act of crossing the border with certain ESI on your device (and many paper documents, for that matter) may violate the privacy laws of the country you seek to enter (possibly criminally).

However, today's discussion is a little more nuanced than that.  It's one thing to be granted the right to search a person, their luggage and their electronic devices for a bomb; but does that right extend to the contents of the device?  Well, the short answer is, yes.  Is that proper?  Do you agree?

I suppose this might bring new meaning to the retort, "Don't touch my junk!"

Say you have a password-protected file with your personal banking, credit card and other financial information on it.  Now let's go one step further.  Suppose it's a company laptop, the file contains your employer's financial information and it contains evidence of a crime?  Two steps further?  You keep both personal and corporate information on it (does that sound like you?).  What's the difference between a federal official accessing it at the border versus going into your bank, demanding the key and opening your safe-deposit box – without a warrant?

I'll tell you the difference.  When you show up at the border, it's implied consent.  You waive your right to protest.  That's how the law stands now.  However, that may – or may not – change, subject to the outcome of the latest challenge.

In the meantime, this is a cautionary tale for executives who travel internationally; oh, and don't forget your charger.

Cases of Interest, Constitution, Judges, Technology

Scotus, meet Ohio; Ohio, meet Scotus

MP900302920 Bravo to Justice Stephen Breyer!  Why?  Because I respect anyone who is willing to admit they don't know or understand something (in this case, Facebook).  Seems it's one of the toughest things for some people to do.  Haven't you been in a meeting where it's obvious the speaker doesn't know something, but rather than admit it, they 'fake' it?

The Canadians made up a whole program around it, "This Hour has 22 Minutes".  The premise is that if they approach someone and question them on any subject – including ones they make up out of thin air – the person will attempt to speak intelligently instead of admitting they know nothing about it.  Lesson learned:

Beware of the Canadians…

Let's hope the Judges in Ohio understand Facebook better than you do…

I've always taken the opposite track.  If I don't know something, I'll state it then and there; "I don't know, but I'll find out the answer and get back to you."  That position is even more accute as an attorney, where mistakes can be deadly to the client.  Some see it as a sign of weakness, but I don't – nor have I ever experienced any negative reaction from a client.

What Breyer is really saying is that, at 72 years of age, he's still open to learning.  I've used a consistent approach since I've been doing this line of work; know what you don't know.  All it really means is, understand where your limits are, then seek out the resources necessary.  Don't fake it and hope to be right later.

I guess it surprised me that Roberts and Scalia had no qualms establishing that neither one of them had a clue to life about how texting works – this while hearing a case about…texting (Quon).  Gentlemen, the answers we were looking for were "router", "gateway" and/or "server".

Indulge me for a moment.  In a case regarding privacy, where waiver might be at issue, do you think it might be of some import for the judges to understand that if a message passes through other devices on its way to its final destination – and any one of those devices may retain a copy of the message – and, stay with me, a party knew that these messages pass through other devices, this knowledge might create a waiver?

I'm not theorizing about Quon specifically, by the way, I'm simply making a point.  Kind of reminds you of that old saying, "Out of the facts, the law arises", not the other way around.

How in the world are we going to solve this problem!?!?!? 

I don't know, but I'll find out the answer and get back to you…

Cases of Interest, Constitution, Criminal Liability, Judges, Technology

Exponential & X-Rated (F**k the Judge!)

MP900302829 Before anyone is offended by my use of the word "f**k", this is in a legal context and I'll explain at the conclusion of this post.

I've written a few posts about jurors ignoring their oaths and researching trials via the Internet or commenting on them via social media (heck I just wrote about it a week ago), but I hadn't seen any hard numbers to illustrate how pervasive the problem is; until now…

"The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years." [Bold & italics added]

Yes, I'm well aware of the ratio of 90 verdicts to the total amount of verdicts in any given year, but there are two things that concern me:

  1. If we, as attorneys, truly believe in the right to a fair trial under the 6th Amendment (criminal cases) – never mind the right to a fair trial in civil matters as well – we should be offended by the statistic, even if it happens only once (unrealistic, I know, but that's not the point).
  2. Look at the exponential growth – more than 50% of the challenges occurred in the past two years.

The illness is spreading.  The courts are addressing the issue by fine-tuning jury instructions, but if a juror is inclined to break the rules in the first place, I don't think an instruction will have much value unless it's followed up by punitive measures when the rules are violated.

Now, to the headline.  One of the things that was shocking to me when I was in law school was how specific case language can be.  It's not that I'm sensitive to those things, just that I didn't expect it.  This story reminded me of such a 1st Amendment case (anyone remember Cohen v. California?), but I was slightly amazed to read about a juror who was so out to lunch that he openly flouted the rules by posting "F**k the judge." on his Facebook page – about the judge overseeing the very case he was currently sitting on!

Wait a minute.  I sat on juries myself and have tried both civil and criminal cases.  I'm not that amazed…

Cases of Interest, Constitution, Criminal Liability, Judges, Technology

The Sheppard, the Fugitive & The Twitter Defense!

MP900442461 If you’re a lawyer, you’ve probably come across “The Twinkie Defense” at some point in your studies.  But what about “The Twitter Defense”?

I suppose it was inevitable, but defense attorneys in a heinous Cheshire, Ct. rape and murder trial intend to argue on appeal that – among other issues – the jury succumbed to the undue influence of over 140,000 inflammatory tweets about the case that were publicly available.

If you’re me (which I am), the entire premise is fascinating because of where the issues take us.  How often do you think you’ll hear a Supreme Court decision from 1966 (specifically, Sheppard v. Maxwell) cited in support of a claim incorporating Twitter in 2010?

To me, it boils down to whether one believes that the tail is wagging the dog or vice versa.  Does the use of “new media” such as Twitter require new court rules?  Will the judges who consider the appeal even know what Twitter is or how it functions?

That’s ok; I guess they’ll just ask their young associates…

Constitution, Criminal Liability, Judges, Law, The Bench

The Bench: Oil Changes, Gonzales & Criminal Trials

Speedy_gonzales What do these three things have in common?  They're all expected to be speedy.  However, only one of them is a right guaranteed under the 6th Amendment to the U.S. Constitution.  Now, due to a shortage of judges in Riverside County, California, 18 criminal cases have been dismissed, with 300 more in the pipeline that were on appeal.  The California Supreme Court upheld the dismissals.

It would be intellectually dishonest to blame this solely on the budget crisis.  I attended a judges symposium about three weeks ago at which Riverside County's issues, among others, were discussed; and they aren't all monetary.

Andele!

Constitution, Judges, Miscellaneous

“Welcome to Hell. Here’s your Accordion.”

Shmenge Attorneys – why should you read the fine print if the Chief Justice of the Supreme Court, John G. Roberts, Jr., doesn't? 

Specifically, he discusses those 'disclaimer' boxes we all have to read and check before being granted access to web sites, but he also mentions those fold-out documents we receive with prescription medications.  Of course, that made me think of accordions…

Hey, it's Friday afternoon after a long week…

Constitution, Judges, Law, Strategy

The Law of Unintended Consequences

MP900422756 Today is one of those days where I get to blog on a subject that interests me; not quite an e-anything, but possibly something that might matter to us down the road – strategy.  A lot of people, lawyers included, fail to take into account the importance of strategy in a legal context.  Sure, I touched on early case assessment the other day – and that’s definitely an element – but I’m drilling a little deeper than that.  My thought process was piqued by an article in the New York Times regarding the life cycle of cases as they meander up the chain to the Supreme Court.

Let’s put it this way.  If you’re in the camp that stakes out a firm position, then pursues it at warp speed, this article will make you crazy.  But you know what?  It’s reality.  Not every case is appropriate for the SCOTUS, even if they’re willing to grant certiorari.  In fact, they may hear it with the idea of ruling against your position.

Where is the connection to our concerns?  Well, obviously we deal in evidence.  And, although sometimes I think I’m one of the few who believes so, criminal procedure is prominant.  And of course, how many times has the right to privacy been cited?  That’s just for starters.  It’s only a matter of time before one of these cases meanders its way to the top.

I’m thinking, maybe the one where that guy might get two years in prison…