Tag Archives: Facebook

Criminal Liability, eDiscovery California, eMail, Security

e-Discovery California: How You Do It – How THEY Do It

I explained how you do it (give up your privacy) in my prior post.

How they (hackers) do it:

Using nothing more than information his victims readily provided, this hacker gained access to their email and/or Facebook accounts; with highly embarrassing results.

I've long been baffled by sites that, purportedly in the interest of better security, require users to supply highly specific information like their father's middle name or what high school they attend(ed).

Oh, and the hacker? He said he did it because it's funny…

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

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…

Admissibility, Cases of Interest, Strategy, Technology

The Drowning Pool

Drowning Repeat after me.  "Facebook and the water cooler are the same thing."  Actually, Facebook is worse, because the water cooler doesn't take notes – it just sits there.  Looks like we may have our precedent-setting case, folks.  Yep, somebody got fired for mouthing-off about her boss on Facebook (or at least that's the claim she's making through the National Labor Relations Board.  Shockingly, her employer cites other grounds).

Gossipping about bosses will never stop, but once again, if you post on Facebook – or include your opinions in email or text – you'd better be fine with the idea of your boss seeing them.

And while venting your spleen about your boss is technically not a fireable offense, think it through a little more.  The boss is going to claim that you're insubordinate – and produce your Facebook posts to show your animosity – which isn't going to help you.  Note to the recently unemployed; comparing your boss to a psychiatric patient probably isn't recommended (whether it's true or not).

But therein lies the interesting twist in this particular case.  The fired employee is putting her own Facebook posts in play to show bias on behalf of her employer.  I guess the court will ultimately decide whether this gambit yields results.  This is one to keep an eye on.

Education, Technology

Facebook: Delete Doesn’t Mean “Deleted”

MP900316552 It’s not as if I haven’t stated this several times before, but I might as well do so again.  When you delete something in the technology world, it rarely means the item is erased – at least not in the manner one imagines when one deletes something.

Computers simply mark the area where the item resides and make it available to be overwritten.  However, an overwrite may take place immediately, weeks, months or even years later – or never.  The link to the item may stay alive and if not, many times someone like me can still find and access it.

Just a hump-day reminder…

Admissibility, Criminal Liability, Media

Destroyed Reputations – Brought to you by Facebook/MySpace

00309100 It's nothing new for me to warn about social networking, linking you to the latest example of someone who was done in – legally speaking, of course – by their own postings.  But I gotta say, I've never seen it done quite the way this L.A. Times article does it.

Here are the facts; a man and a woman were in a private residence.  Another male, a bail bondsman, entered through an unlocked sliding-glass door, an argument ensued and the bondsman was shot and killed.  Now, follow the progression of the article.  The 'authorities', if you will, provided virtually no information.  But the 'Times examined the Facebook & MySpace pages of all three individuals involved.  Then, like assembling some sort of puzzle, they used excerpts from each to update the original piece.

The result?  Although the article doesn't speculate, the innuendo is clear; the selected posts suggest that the woman was caught with one man by the other, resulting in his murder.  But how do we know this?  Where are the facts?

The story is located in a section called "L.A. Now", which is described as "the Los Angeles Times’ news blog for Southern California."  In their defense, I suppose they would say that as bloggers, they're not subject to the same journalistic standards as their 'official' newspaper.

But I'll tell you, this reads like a gossip article from a supermarket tabloid.  It also illustrates how three separate people, innocently posting on their social networks, had their personal lives invaded in a way none of them could have ever anticipated.  Yes, I know one of them is dead, but he had two children – and possibly other family members – who will be affected by the publicity.

Shame on you, L.A. Times.

Law Practice Management, Metadata, Miscellaneous, Technology

2010 ABA Legal Technology Survey

MC910216366 Nothing like a Friday afternoon to examine six volumes of law & technology statistics from the ABA.  I was somewhat amused when I accessed their page and discovered that they’d received an endorsement – from yours truly.  Somebody apparently liked something I said about last year’s survey and quoted me.

The ABA provided me with some excerpts, so I reviewed them and picked out a few that I thought would be of interest.

E-READERS

Ten
percent of survey respondents report the availability of e-book readers at
their firms. Solo respondents are most likely to report their availability
(16%), while large firm respondents are least likely (4%).

WINDOWS 7 vs. VISTA

Usage of newly released Windows 7 (9%) has
already surpassed that of Vista (8%, compared with 9% in 2009 and 4% in 2008)
as the second most frequently reported operating system on respondents’ primary
computers.

METADATA

Metadata removal software is available at 59% of
respondents’ firms, up from 46% in the 2009 survey. Large firm respondents
report the highest availability (92%, up from 86% in the 2009 survey), followed
by respondents from firms of 10-49 attorneys (64%, up from 51% in the 2009
survey). This increase in availability in metadata removal software is likely
due to the numerous ethics opinions addressing sender’s responsibility
regarding metadata exposure.

VIRTUAL OFFICE

When asked whether they have a virtual law
office/virtual law practice (i.e., do not typically meet with clients in
person, and primarily interact with clients using Internet-based software and
other electronic communications software), fourteen percent of respondents
responded affirmatively. Of counsel and solo respondents were most likely to
report having a virtual law office/virtual law practice (27% and 19%
respectively).

SOCIAL NETWORKS

When asked whether they personally maintain a
presence in an online community/social network such as Facebook, LinkedIn,
LawLink, or Legal OnRamp, overall, 56% of respondents answered affirmatively,
compared with 43% in the 2009 survey and 15% in the 2008 survey.

WESTLAW vs. LEXISNEXIS

Eighty percent of respondents (compared with 88%
in 2009) report using fee-based online resources to conduct legal research.
Fifty-four percent of respondents report using Westlaw most often (compared
with 61% in the 2009 survey), followed by LexisNexis (32%, compared with 28% in 2009).