Category Archives: Constitution

Calbar 87th Annual Meeting: Upcoming Program(s)

Calbar 87th AM Banner
I just took a look through this top page.  I've only posted ten times (including this one) in almost an entire year!  I've got to try to step up my game, but honestly, it's going to be difficult as I get busier and busier.  I'll do my best; in the meantime, here are my upcoming program(s) at the State Bar Annual Meeting in San Diego (I used the (s), because for one program, I'm making a guest appearance but am supposed to be in two places at once!):

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Leveraging Technology to Win the Discovery Game:  Program 31

Thursday, September 11, 4:15 p.m. – 5:15 p.m.

This is tentative.  There's a meeting of the Council of Sections simultaneously with this program and since I will be assuming the role of Co-Chair at the conclusion of the Annual meeting, I need to be there.

I'm hoping to make my way to this session and appear for the last thirty minutes or so.  But be warned; if I'm delayed, I might not make it.  My colleague, Alex Lubarsky is presenting, so either way, I encourage you to check it out as he's extremely knowledgable.

This program will cover the rules and new technologies governing electronically stored information (ESI). Learn about cutting edge litigation technology advancements that will result in cost savings and streamlined management of ESI.

CLE: 1.0 Hour of Which 0.5 Hour Applies to Legal Ethics

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The National Security Agency and Attorney Confidentiality: How to Protect Your Clients:  Program 63

Friday, September 12, 2:15 p.m. – 3:45 p.m.

The National Security Agency (NSA) has been heavily featured in the news. While the agency collects our data, how does it use it?  This program will address the NSA’s data collection and the unique challenges it presents to lawyers. Learn how to protect yourself and your clients' confidence.

CLE: 1.5 Hours of Which 0.5 Hour Applies to Legal Ethics

As you can imagine, questions about the NSA come up a lot in my presentations when I discuss attorney confidentiality, but with the outright panic I'm starting to see due to all of the misinformation out there, I feel it is time to address the issue in-depth.  We're going to spend ninety minutes exploring attorney ethical obligations, what the NSA says they do vs. what they really do and how you can best protect client confidences – hopefully without experiencing a meltdown in the process.

That's it for this year.  Hope to see you in San Diego!

California’s SB 1303 Shines a Red Light on Challenging Traffic Camera Evidence as Hearsay

MP900401489Folks, I think this post is as simple as having you read this excerpt from Senate Bill 1303(3):

“(3) Existing law,
known as the hearsay rule, provides that, at a hearing, evidence of a
statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated is
inadmissible, subject to specified exceptions. Existing law provides
that a printed representation of computer information, a computer
program, or images stored on a video or digital medium is presumed to be
an accurate representation of the computer information, computer
program, or images that it purports to
This bill would provide
that this presumption applies to the printed representation of
computer-generated information, video, or photographic images stored by
an automated traffic enforcement system. The bill would expressly state
that the printed representation of computer-generated information,
video, or photographic images stored by an automated traffic enforcement
system does not constitute an out-of-court hearsay statement by a

Attack on Mobile Location-Privacy ‘Warrants’ Review

MP900302888I always chuckle when I hear people refer to California as the 'land of fruits and nuts' and loudly proclaim that it's a 'liberal state'.  I concede, the state is blue – at least when one examines it at surface level – but when you drill down a little further, it's not quite that simple.

Example?  As far as privacy is concerned, you'd have better luck in Ohio (State v. Smith)…

Based on two events that took place this week, it's clear that California (or more accurately, the Governor of California) and the Federal government appear to be in lockstep re their attitude toward location privacy; they don't believe you're entitled to it.

Politics?  Of course, that always plays a role.  Lack of understanding of technology?  Let me put it this way; a lot of the arguments I see in support of the position against requiring a warrant go something like this:

"People are aware that their cellular devices disclose their location and, therefore, have no expectation of privacy."  Yes – in the same way that people who drive cars know how to rebuild the engines.  It's a self-serving argument, at best.  For the average Joe, a more honest side-by-side comparison is that people know how to plug in a charger about as well as they know how to insert a gas nozzle.

If you're worried about location privacy, I have two words for you – coarse location.

California AG Establishes Privacy Enforcement & Protection Unit

MP900431800The announcement of this new Unit, which is to be a part of the eCrime Unit, has drawn a lot of skepticism around the 'net.

Here's the official statement from Attorney General Kamala D. Harris' Office.

I only have one question?  Why do people always feel the need to crap on everything before they give it a chance?  Would it be better if public officials didn't at least try to address existing privacy concerns?

I suppose this is why they say, success has many parents; but failure is an orphan…

The Press: Shouting “Fire!” in an Empty Theater

MP900402060Forgive me for being missing in action the past week.  I had a rare criminal case come up at the last minute and spent the entire day in court, yesterday.  I was going to return with my summary of the Solo Summit, but due to the Supreme Court’s ruling on the Affordable Care Act this morning, I decided to lead with this post, which I’d already been working on.

First of all, fear not; this isn’t about politics.  I originally became interested in posting on this issue after the Da Silva Moore case.  For the first time, I saw our area of practice descend into the sensationalism that annoys me with news reporting in general.  Specifically, it had to do with the accusations that were flying regarding Judge Peck’s supposed conflicts-of-interest in the case.

The same thing happened this morning.  CNN reported that the individual mandate was struck down.  At that very moment, CNBC was reporting that it was upheld.  Now, anyone who has followed Supreme Court decisions knows that one cannot read a sentence or two and think they know what the ruling is without reviewing the rest of the text.

But CNN, more interested in reporting a story, rather than reporting the story, rushed out with the wrong information.  Nothing new.  But, I saw the same issues with the Peck case.  First of all, as attorneys, we hear ad nauseam that the law is a marathon, not a sprint.  Reporting on every brief filed as if, taken on its own it’s somehow relevant, is a mistake, in my opinion.

I only touched on the case briefly – after most of the dust had settled – and predicted (not exactly hard to do) that there would be appeals that would likely change the outcome.  It pretty much ended up being a tempest in a teapot.

What’s my point?  As attorneys, we should forget about being first and concentrate on being accurate.  There will always be deadlines, but I don’t want to see eDiscovery practice descend into an, ‘I’m going to post inflammatory, but incomplete information with the goal of luring your eyeballs to my blog/magazine/newspaper’ approach, especially when most of the writers were fully well aware that the rulings would likely not stand.

I don’t care if my blog remains a boutique – I’m interested in dispensing useful information, not provoking people to fight with each other.  That attitude serves no one.

Don’t Do the (Cyber)Crime if you Can’t Do the Time

The ABA Journal Tech Report has a comprehensive examination of cyberwarfare from their May 2012 issue.  It examines the perceived attorneys' role, Constitutional limitations and international law issues.  There are contributions from a host of experts, including some very polarizing figures, like John Yoo.

Hey, you know there can be no valuable debate unless you hear out assenting and dissenting views, right?

Be warned; this is not a light read, by any means…

Four/Fifths of a Decision by the #SCOTUS

MP900403729OK; all of my chapters for the California State Bar book are submitted, I've returned from my trip to San Francisco for the Section Leadership Conference, and you all know what that means!

[Somebody, please tell me what it means…]

In theory, what I *think* it means is that I'll be able to resume posting relevant content two to three times per week.  In practice?  Stay tuned…

If you're a follower of the Supreme Court, and you're also someone who is very interested in rulings that affect privacy, and depending on which side you're on, then this week, you are either:

  • Happy that the 4th Amendment was protected, but angry that the 5th Amendment wasn't, or,
  • Angry that the 4th Amendment was protected, but happy that the 5th Amendment wasn't, or,
  • Happy about both, or angry about both.

It all depends on the facts.  In the Jones case, aka, the "GPS" case, the court decided that a physical intrusion onto private property to attach a GPS tracking device to a vehicle was a search as defined under the 4th Amendment.  Note the word, "physical".  If only it were that simple

What about tracking a GPS-enabled device?  That issue wasn't addressed, here (except for comments on it in concurring opinions).  If one enables GPS to drive to a location, is that a voluntary disclosure?  That'll be the next frontier.

In a lower-court decision, a federal judge in Colorado ordered a defendant in a criminal case to decrypt her laptop, stating that she was not afforded 5th Amendment protection against self-incrimination, setting off another round of debate – and an examination of conflicting rulings – that will likely meander its way to the Supreme Court.

The logic is of the kind that only law afficionados may appreciate; defendant doesn't technically have to give up her password because she only has to enter it into the system without divulging it to anyone.

In other words, "Don't give up your password…just give us access to everything the password protects."  That, along with the "All Writs Act" of 1789, should afford you some interesting reading on the case.

An interesting week for the Bill of Rights and privacy, indeed…

License to Pry

GR-RRR!Back to the future.  All-of-a-sudden, the term "1984" has become quite popular in the news, on TV and on a certain blog & Twitter feed you may be reading at the moment.  It started with the U.S. v. Jones case regarding warrantless GPS tracking.

But 'Jones' is child's play compared to what the District of Columbia is doing on a daily basis.  At least in Jones, the issue revolves around the government tracking specific vehicles for specific purposes.  In DC, they track the license plates of all of the vehicles, all of the time.  Not only that, they retain the database, sometimes for years.

I don't know whether to be in awe or appalled!  As a techno-weenie, I can't help but be fascinated by technology that can accomplish this; but that doesn't mean I lose sight of the obvious risks to privacy.  Examples?

The Good:  A crime is committed, a witness jots down a license plate and the authorities are able to input said plate into the database and locate the perpetrator.

The Bad:  A husband calls police to report his wife missing.  They input her license plate into the database, locate her vehicle in front of an apartment building – and discover she's having an affair.

The Ugly:  Talk amongst yourselves…

As has been the case so many times before, this capability may be used for good, evil, or with good intent that becomes inherently evil.

Of course, the same could be said of chocolate cake.  In moderation, it's great; but eat too much and you can make yourself sick.  The question is, who's going to be responsible for making sure we don't overindulge?

…After the Horse has Escaped. #PDA and the #5thAmendment


I closed my last post with this line; "Now comes the more difficult argument; explaining how a password is exactly the same as a key…"

In my view, the law is a password.  For example, right or wrong, a police officer may perform a search because he or she believes the law permits it.  A judge is another interface who decides whether to grant or deny access to information.  There's one major difference between a police officer, a judge and a computer, of course.  An officer or judge will make decisions based on several factors, whereas a computer – in proper working order – will decide based on pass/fail.  Nevertheless, like our friend, Maxwell Smart, the law is just another door in a series that parties must pass through.

So, what if we have a person under arrest who has password-protected their PDA and refuses to divulge it to the government?  Do they have 5th Amendment protection?  For starters, here's an excellent, big-picture view of the issue and emerging case law (I linked to this on Twitter a few days ago).

I think I get a bad rap sometimes.  My views may appear to be pro-defense versus pro-government.  However, if you've read my bio, you know that I've worked with the District Attorneys office.  I've also served as criminal defense counsel (this is not an unusual situation, by any means).  For me, the issues are simple.  Individuals on either side of the law have rights and responsibilities and it's important to know what they are (assuming any one of us can keep up with the rapid changes).

Also, the game has changed in another major way.  I understand that a lot of criminals use cellular devices to facilitate their behavior, but a majority of law-abiding citizens do not.  If one such citizen is arrested for, say, disturbing the peace, should the government have a right to search through all of the data on that person's Blackberry?  What if he or she is the Vice President of a major corporation and the device is issued by said corporation – and contains privileged communications?

Do I have the answer?  At the moment, it depends on what jurisdiction I happen to be standing in when you ask me. 

Which do you think is a better scenario from an individual-rights standpoint: 1) Spending time and funds (possibly while defendant is incarcerated) arguing that a search was illegal, or 2) Preventing the search from occurring in the first place?

I tweeted another story that produced this quote from a University criminal law professor:

"We're seeing a whole generation for whom privacy is not important."

I can't say that I agree with that assessment.  In most cases, people still don't grasp the concept that what they post online can be seen by anyone.  They only figure it out when their privacy has already been breached and it's too late to do anything about it.

You know what they say; nobody likes a cop until they need one…