Third time lucky? Here's my latest article in California Lawyer magazine. By mutual agreement, I'm not going to be doing these monthly anymore (time simply does not permit) so I think you might see one from me every few months. We'll see how the schedule goes next year.
Welcome back…
Fresh on the heels of my post about Bloomberg Law comes Google Scholar. Now, the actual 'Scholar' has been around since 2004, but about a week ago they added the ability to access Federal and State legal opinions.
How will this service compare to paid services? There's only one way to find out. Try it and see for yourself. That's what I'm going to do.
Wow. Four posts in a row on privacy? I think that's a record…
But I have to be fair. The Wall Street Journal published this dissenting view on where the trend is headed. In fact, they cite a case I covered for you back in August to support their claim. To be honest, when I speak of privacy I'm usually referring to using company products to conduct company business (unless you use your personal PC for that purpose).
However, the bottom line is this; it's still a crap-shoot. If you're going to perform non-business-related duties on a company PC, you run the risk that someone is going to see it. Going forward, the question will be, what can they do with it?
In this summary of five recent cases, CNN Tech asks, "Can the Law Keep Up with Technology?". Yeah, I know…I'm harping on privacy again…what can I say? Good things come in threes…
My only other two comments are, 1) you're not supposed to start a sentence with the word 'can', and, 2) the answer to the question is 'no'. There. Solved.
The law will never be able to keep up with technology. The day the law keeps up with technology is the day Congress is replaced by Deep Blue.
In the meantime, CNN's summary is worth a look.
Remember how I went on and on about the fact that what you do and say in your personal life (particularly online, after all this is an e-discovery blog) may become relevant in a legal proceeding? Remember how I told you that there are several cases pending that might completely change the definition of privacy? And remember when I nagged you like your (Please fill-in-the-blank here; mother, grandmother, psychiatrist, attorney, etc. Hey – I'm not dumb enough to actually name someone and make them mad at me!) when I implored you to stop making those inappropriate posts on Twitter/Facebook/MySpace, etc.?
Well, this headline says it all:
For those who are pressed for time, this is the relevant portion:
"Buffalo Grove
Village Trustee Lisa Stone should be told the name of the man she
accuses of making defamatory online comments about her 15-year-old son,
a judge ruled Monday in a case being watched for its Internet privacy
implications.
Cook County Circuit Judge Jeffrey Lawrence ordered that the identity
of a person known online as Hipcheck16 be turned over to Stone."
We can debate the Constitutional implications of the ruling itself, but truly, this goes all the way back to the 'shouting fire in a crowded theater' argument. Post-mortems don't interest me much; I deal with what is, and what will be, not what was. To paraphrase a certain election campaign, it's about the future, stupid!
On a fairly regular basis, I'm accused of being "Chicken Little". Perhaps my detractors are right. Maybe it's because I was a boy scout when I was a kid (Be Prepared!) or perhaps it's from all of those years protecting my clients from what might happen, not just what I could identify as likely to happen.
If I weren't doing what I'm doing, maybe I'd have become an actuary (I'd say 'bean-counter', but for those who know this blog well, the only beans I'd be counting are coffee beans…).
It sucks being the wet blanket. It sucks constantly warning people about risks. But here's the thing; technology is moving much faster than our ability to understand what we're doing with it. There used to be an admonishment; when angry, count to ten before acting. Now, not only do we not count to ten, we immediately grab our always-within-reach Blackberry and post on Facebook!
So, here's a question for you to ponder over the weekend; do you think Hipcheck16 wishes I'd have been his wet blanket?
…to the point that I didn't even want to come up with a catchy title. Just read the lead-in to this story from the Associated Press:
"Of all the sinister things that Internet viruses do, this might be the
worst: They can make you an unsuspecting collector of child pornography."
Look, I'm not naive. The 'I didn't do it' defense is as common as apple pie. That's not the point. The point is, sometimes it's true. I touched briefly on child porn issues a couple of times and I'm the first to admit; I don't even want to discuss it. [Note to the attorneys out there – especially if you're dealing with the state of California – I recommend you familiarize yourself with the Tecklenberg case (warning: link opens 28-page pdf).]
But this story is a cautionary tale about several things that directly affect us, not the least of which is, clicking on unfamiliar sites and/or looking at adult porn (legal, but this is how a child-porn virus may be planted on your PC). People do this every day – at the office.
What about on the 'detection' side of things (proper virus software, proper firewall software and/or hardware)? Are you aware it's estimated that 70% of corporate PCs contain pornography? Are you aware that someone in the IT department can look at a report of every Internet location any PC visits? What happens if porn is detected on a company PC? What happens if child-porn is detected on a company PC? What happens if that PC is yours?
How are you going to prove, "I didn't do it?"
One of my favorite movies is, WarGames. It's a favorite because of a two-sentence conclusion delivered near the end of the film by the talking computer, Joshua: "A strange game. The only winning move is not to play."
Hat tip to my colleague William Hoffman…
I thought I wasn't going to find anything relevant for my usual Friday post, but Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) has it all; alleged crimes, police brutality and missing video from a police cruiser. I'm pressed for time, so I ported you over to K&L Gates for a look at the details, but here are Mr. Hoffman's comments:
"Finding
that a video of Peschel’s arrest was lost as a result of the city’s
recklessness, the court granted defendant’s motion for sanctions and
“designat[ed], for purposes of the case, that the arresting officers used
unreasonable force to effect the arrest of [defendant].” What struck me
was the failure of the city to back up the data on its computer (particularly
the video) was determined to be reckless, thus paving the way for severe
sanctions."
From the case itself:
“The department failed to have any type of
back-up system in place to ensure the preservation of the video recordings. In
view of the importance of the video recordings, it went beyond mere negligence
for the department not to have adequate safeguards in place for protection of
the recordings.”
Have a good weekend.
Is this e-Discovery Insights or The Darwin Awards? It might be hard to tell today…
The Indiana Supreme Court upheld a murder conviction against a man who beat to death the two-year-old daughter of his girlfriend. The Court stated that admitting boasts he made about the crime on MySpace into evidence at trial did not violate the rules.
His lawyer appealed the original conviction, claiming that allowing the evidence to be presented prejudiced his client.
As far as I'm concerned, this is 'Evidence 101', folks. If you place your character at issue during a criminal trial – as defendant did here – you 'open the door' to the prosecution to rebut with their own character evidence.
Like the article says, it doesn't matter whether you boast at your local bar or on MySpace; it has no effect on the rules of evidence.
Look out Westlaw and LexisNexis. Bloomberg is launching what they refer to as their "all-in-one legal research platform", Bloomberg Law, at the end of the month. For a sneak-peek, click here.
We're revisiting two former posts today to see how things are working out…
First, we have birther Orly Taitz. Her frivolous filings have resulted in a $20,000 sanction from judge Clay Land. She has a lot of supporters who I'm sure will raise the cash for her, so I don't think it'll serve as much of a deterrent. But maybe this will; the judge has also referred his order to the State Bar of California.
If you want to read a PDF of the judge's order, click here.
Second, we have the Sidekick smartphone and all of the lost user data. I've been following this story with interest. Microsoft has issued a recovery tool, but it only applies to contacts, not all of the other data such as photos and notes. As expected, class-action lawsuits are flying, but many will fizzle out if the recovery tool works.
At this point, there's no solid confirmation that users have recovered data – or what particular data has been recovered – but there's a moral to this story. It originally hit the news wires around October 10th and the recovery tool was to be available yesterday.
Moral #1: Can you afford to be out of commission for two weeks? When you trust your data to the cloud, make sure it isn't the kind made up mostly of vapor.
Moral #2: Always, always, back up your own data whenever possible.