Wednesday, July 18, 2012

Cyberharassment and cyberstalking laws

Both Bloomberg BNA U. S. Law Week and the ABA Criminal Justice Magazine featured articles this week concerning the legal consequences of online impersonation and fake social media accounts.  Stories abound about persons who use the Internet's veil of anonymity for vindictive, nefarious or inappropriate activity, ranging from merely annoying others to serious criminal behavior.  Although this area of law is fairly new, all 50 states, as well as the federal government, have enacted legislation criminalizing cyber-stalking and cyber-harassment. 18 U.S.C. Section 875(c) is the primary federal cyber-stalking statute, whereas 47 U.S.C. Section 233 is the telecommunications harassment statute.  A good starting point for researching state cyber-stalking and cyber-harassment laws is the National Conference of State Legislatures survey.  As always, starting your research with a specialized secondary source is a good idea. For example, Internet law treatises often describe procedural mechanisms for determining the true identity and whereabouts of the cyber-stalker (the cyber-stalker's anonymity being the greatest obstacle to enforcing cyber-stalking laws).  There are many treatises on Internet law, including the Thomson-West loose-leaf, Internet Law and Practice, which is available in print in the law library and electronically on Westlaw.

Friday, July 13, 2012

Supreme Court Stats

Now that the Supreme Court term has come to a close with the momentous health care decision, where do the stats on the Court stand this term.  What allegiances were formed, how many unanimous decisions did the Court issue?  If you are a fan of Moneyball and can’t resist analyzing the numbers, you might be interested in the following:

The New York Times reported that the Court found unity in a number of important cases and that the Court was unanimous in 44% of all cases before them in 2011-2012.  The New York Times also posted this interesting chart showing how many times the more conservative Justices voted with the four most liberal members since Chief Justice Roberts joined the Court.

Using the numbers posted on the SCOTUSblog, Robert Barnes gives an interesting analysis of how the Justices voted in decisive cases in this Washington Post article.

SCOTUSblog posts a huge amount of information in its Stat Pack including a graphical view of voting alignment of the Justices, opinion authorship, frequency in the majority and a circuit scorecard.  The Stat Pack is updated throughout the term and the final Stat Pack for this term was recently posted.  If you don’t care to wade through the 57 page pack, SCOTUSblog has also provided a 5 page memo summarizing key statistics and an even briefer post with key take away points from this term’s decisions.

Tuesday, July 3, 2012

Cloud Computing and the Ethical Lawyer

In an increasingly technological society, lawyers and law firms have increasing needs to electronically store documents and files so that they can synchronize their computers and mobile devices, remotely access the documents and share them with associates, consultants and clients.   However, Internet-based storage systems have been known to suffer security breaches and system vendors have been known to go out of business.  Lawyers and law firms have duties to safeguard confidential client information, including protecting information from unauthorized disclosure and to protect client's property from destruction, degradation or loss.  Can a lawyer store documents and files containing confidential client information on Google Docs or some other Internet-based storage solution without violating his duty of confidentiality and duty to protect client property?  The Massachusetts Bar Association's Committee on Professional Ethics recently weighed in on the issue in Ethics Opinion 12-03.

According to the opinion, a lawyer may generally store and synchronize electronic work files containing confidential client information across different platforms and devices by using an Internet-based storage solution, such as Google Docs, so long as the lawyer takes reasonable efforts to ensure that the provider's terms of use and privacy policies, practices and procedures are compatible with the lawyer's professional obligations.  If a client expressly instructs the lawyer not to store or transmit the client's confidential information over the Internet, the lawyer must refrain from doing so.  Additionally, all lawyers should refrain from storing or transmitting particularly sensitive client information over the Internet without first obtaining the client's consent.

The opinion goes on to offer guidelines for taking reasonable precautions.  "Reasonable efforts" with regard to an Internet-based storage system would include:
  • examining the provider's terms of use and written policies and procedures with respect to data privacy and confidentiality
  • ensuring that the provider's terms of use, policies and procedures prohibit unauthorized access to stored data, including access by the provider itself for any purpose other than displaying the data to authorized users
  • ensuring that the provider's terms of use, policies, procedures ad functional capabilities give the lawyer access and control over stored data in the event the lawyer's relationship with the provider is interrupted or discontinued
  • examining  the provider's existing practices (encryption, password protection and system back up) and service history to reasonably ensure the system will remain confidential and will not be intentionally or inadvertently disclosed or lost and
  • periodically revisiting and reexamining  the provider's policies, practices and procedures  to ensure they remain compatible with the lawyer's professional obligations.



Monday, July 2, 2012

SCOTUSblog shines on the morning of ACA decision

Last Thursday morning, all news media outlets and millions of Americans awaited the Supreme Court's decision on whether various major provisions of the Patient Protection and Affordable Care Act were constitutional. Although both CNN and Fox News initially got it wrong and reported that the ACA had been struck down, the Associated Press and SCOTUSblog both got it right and reported it out at pretty much the same moment. While providing accurate breaking news alerts is nothing new for the AP, beating the top two cable news outlets was a real coup for SCOTUSblog, sponsored by the ever-expanding legal research outfit Bloomberg Law. SCOTUSblog ran its usual live blog Thursday where veteran Supreme Court reporter Lyle Denniston and its several lawyer-bloggers provided news, commentary, and analysis about the Court's decisions that morning, with a bit of humor only a lawyer could love tossed in. Tom Goldstein, the blog’s owner and publisher, had estimated early on that 250,000 readers might be on the site at the time the opinion was issued, but in fact roughly 1 million readers were online to read SCOTUSblog's live play-by-play of the action in the Court that morning. The success of SCOTUSblog's coverage that morning may indicate the growing importance of niche legal new blogs in providing fast and accurate information, commentary, and analysis to not only the legal community but also the public at large.