John Timmer reports at Ars Technica:

The court responded to this request by pursuing an extraordinarily rare course of action: it read Facebook’s entire terms of service. And, in this case, their vague language—typically used to provide broad immunity—became a liability: “[the document] does not establish that users consented to the scanning of their messages for advertising purposes, and in fact, makes no mention of ‘messages’ whatsoever.”

Be specific with those Terms of Service. Really specific.

Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years—an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1958 would enter the public domain on January 1, 2015, where they would be “free as the air to common use.” Under current copyright law, we’ll have to wait until 2054.

Thanks to Cory Doctorow at Boing Boing for sharing.

Attorney General Holder announced today that the Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status. Attorney General Holder informed all Department of Justice component heads and United States Attorneys in a memo that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination, reversing a previous Department of Justice position. Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex,” among other protected characteristics.

The Washington Post reported the story, saying:

According to the 2011 National Transgender Discrimination Survey, a survey of 6,450 transgender people in the United States, transgender people experience twice the rate of unemployment as other Americans and are much more likely to live in poverty. Advocates attribute those facts in part to the difficulty transgender people face in finding a job.

Direct antidiscrimination legislation addressing the prejudice so many LGBTQ people face would be much better than the DOJ’s reinterpretation of Title VII of the Civil Rights Act of 1964. But this is a good start. Read a PDF of the related DOJ memo here.

Saba Hamedy and Meg James, at the LA Times:

Hackers began releasing sensitive data after the studio’s security breach became public on Nov. 24. The group, calling itself Guardians of Peace, has released data including thousands of pages of emails from studio chiefs, salaries of top executives, and Social Security numbers of 47,000 current and former employees.

Many are warning of the intellectual property fallout of hacks like this. And that could, indeed, lose companies much potential revenue. But the more serious liability here is failure to secure employee information. I anticipate we’ll see many similar class actions unless companies get serious about security.

Emily Yoshida (@emilyyoshida), entertainment editor at The Verge, one of my favorite tech news sites, on the publication’s ongoing and deep contemplation of the ethics of reporting on unethically leaked information:

The contents of the leak are already public; they’re just not in a very user-friendly format until a news outlet decides to amplify a piece of it. Which means, one could argue, that the press is merely drawing lines of best fit through a dataset. It could also mean that the press is essentially finishing what the hackers started.

Finally, although HBO’s decision to use MLB Advanced Media instead of HBO’s own streaming tech prompted CTO and former Xbox executive Otto Berkes to resign.

Apple initially expressed corporate reluctance, but Apple General Counsel Bruce Sewell later told Pamela Todd, Alabama’s only openly gay lawmaker, that CEO Tim Cook “would be delighted” to have a bill named after him which would protect LGBTQ Alabama state employees from discrimination.

Cook said when he came out publicly in an essay for Bloomberg Businessweek that while he doesn’t usually like to draw attention to himself,

At the same time, I believe deeply in the words of Dr. Martin Luther King, who said: “Life’s most persistent and urgent question is, ‘What are you doing for others?’ ” I often challenge myself with that question, and I’ve come to realize that my desire for personal privacy has been holding me back from doing something more important.

It may seem like letting someone name a law after you isn’t that profound, but it is. The law will get national and even international attention primarily because of Tim Cook’s name. Without it, the law would have been written about by Alabama press and journalists in surrounding states, and would have been covered by LGBTQ publications.

But this small thing Mr. Cook can do, this simple thing, lends a volume to Pamela Todd’s proposal it may otherwise have lacked. And it’s already worked: I don’t think I’ve ever read a single word about Alabama state law of any kind, despite graduating from law school, becoming a licensed attorney and frequently writing about law in general and LGBTQ legal developments in particular.

I’m trying to post fewer links, which means I’ve been posting less frequently in general. I’m working on some articles, but until they’re ready to publish I’ll still share the occasional link.

This one is a great article from the American Bar Association’s Law Technology Today blog about getting the most out of Google Scholar. Legal research platforms are usually very expensive, so Google’s free alternative is a great way to peruse this stuff.

As a law clerk, I have access to LexisNexis for legal research. But I find Google Scholar is a much easier and faster way to begin a research project. Lexis uses some proprietary search syntax, which I learned in law school but despise having to use.

If you have access to Lexis Advance or Westlaw Next, those products bring simpler search syntax to the paid-research world. But if not, use Google Scholar to get a good sense of the landscape and then head to a paid service to make sure the law is still good, and to follow research leads that may not present themselves in Google Scholar.

The incredible true crime podcast Serial presents a novel collision between technology and the law. This time, it’s not that technology plays or should play a particular part in the case itself, but that a podcast has shed light on a cold case that may lead to an unexpected outcome.

The podcast’s producers interviewed Deirdre Enright, director of the University of Virginia School of Law’s Innocence Project for Episode 7.

Lindsay Beyerstein reports at the Columbia Journalism Review:

The UVA Innocence Project is poised to ask a court to test an old physical evidence recovery kit (PERK) that was used on Lee’s body to test for possible sexual assault in 1999 but was never tested for DNA.

The DNA is an issue that might never have come up but for the Serial producers’ interview with Professor Enright. It’s the first instance I’ve heard of where a podcast may directly affect the outcome of a legal case. And considering the defendant, Syed, has already been sentenced to life in prison, any change at all to his sentence, let alone total exoneration, would be unexpected and important.

It implicates a power to uncover truth in cold cases heretofore reserved primarily to outfits like Professor Enright’s. What’s even more compelling to me is that Serial mixes the modern technology of podcasting with the very old style of serial storytelling. The whole thing exposes how, increasingly, the law benefits from ancillary developments in journalism and technology. It’ll be fascinating to hear the ultimate outcome when we get there.

Devlin Barrett reports at The Wall Street Journal:

The program cuts out phone companies as an intermediary in searching for suspects. Rather than asking a company for cell-tower information to help locate a suspect, which law enforcement has criticized as slow and inaccurate, the government can now get that information itself. People familiar with the program say they do get court orders to search for phones, but it isn’t clear if those orders describe the methods used because the orders are sealed.

The Michigan Court of Appeals issued an opinion on November 6, 2014 affirming a lower court’s decision excluding evidence recovered from Maximilian Paul Gingrich’s (“Defendant”) laptop computer in a child pornography case.

Defendant took his laptop to Best Buy for maintenance. An employee noticed suspicious file names while working on the laptop, and notified police. Police arrived at the store and asked the employee to access the files to ascertain whether or not they were actually child pornography. An employee attached Defendant’s hard drive to a Best Buy computer and confirmed the presence of child pornography on the drive.

The failure to obtain a search warrant prior to accessing the files was ultimately fatal to the charges brought against Defendant. The warrantless search was held to violate his Fourth Amendment right to freedom from unreasonable search and seizure. Specifically, the court held “physically attaching another device to its hard drive” was a trespass amounting to an unlawful search under the Fourth Amendment and a similar provision of the Michigan Constitution.

None of the possible exceptions to the warrant requirement were present, so the evidence was suppressed under the exclusionary rule. The photographs recovered from Defendant’s laptop were the only evidence in the case, so it was dismissed.

There’s no nice way to say it:

The police killed this case the moment they accessed that hard drive without a warrant. Their rush to obtain evidence allowed a possessor of child pornography to avoid the legal consequences of his crime.

I know law enforcement is a difficult job, and it’s often easier to blog about something after the fact than to make the perfect decision in the field every single time. But hopefully this case resulted in a comprehensive seminar on Fourth Amendment compliance in evidence gathering for the police department involved.

And hopefully the Defendant will be caught again, and when he is, the evidence will be lawfully gathered and the jail sentence very, very long.

GitHub is where most software developers maintain their projects. It provides version control, issue tracking and much more to its users. I even have a few repositories of my own.

SCOTUS Servo is developed by V. David Zvenyach, a self-described “lawyer and web tinkerer.” His list of projects is impressive, but SCOTUS Servo is so simple it’s beautiful.

Zvenyach’s software watches Supreme Court PDFs for changes to the file and then posts notifications via Twitter user @SCOTUS_servo.

It’s legal geekery at it’s best and most civic-minded.

Tim Vitale, spokesman for Utah State University, on Anita Sarkeesian’s cancellation of a planned lecture in the wake of emailed threats:

She was worried about Utah law preventing police from keeping people with legal, conceal-carry permits from entering the event. But our police were prepared and had in place extra security measures. It was her decision to cancel.

Vitale’s tone suggests Sarkeesian overreacted, that the University could somehow guarantee her safety. That, of course, is an absurd implication, particularly because the email, which Bob Mims of the Salt Lake Tribune described as “threatening bloody mayhem,” apparently came from a USU student.

Sarkeesian’s cancellation was the most responsible course of action, and the school should be ashamed of its failure to cancel, not bragging about it.

Utah citizens with permits have the right to carry concealed guns. And Anita Sarkeesian has the right to avoid the danger created by the juxtaposition of that freedom with threats on her life and the lives of her audience members.

Peter Kafka reports at Recode:

[HBO CEO Richard] Plepler said the company will go “beyond the wall” and launch a “stand alone, over the top” version of HBO in the US next year, and would work with “current partners,” and may work with others as well. But he wouldn’t provide any other detail.

Plepler has been pondering this possibility for a while, and a couple of years ago I did some back-of-the-napkin math which suggested there is a lot of money to be had in a web-only subscription.

I’m not known for my math skills, but it looks like I was on to something.

Correction: This post has been updated because I originally stated the year HBO plans to launch its web-only offering as 2014 in the link at the top, instead of 2015, which is the correct year. Sorry folks.

Robert Sullivan has such a good interview with Jony Ive over at Vogue:

In other words, the secret weapon of the most sought-after personal-electronics company in the world is a very nice guy from Northeast London who has a soft spot for woodworking and the sense that designers ought to keep their design talents backstage where they can do the most good. “There’s an odd irony here,” he observes. “I think our goal is that you would have a sense that it wasn’t design.”

I’m not sure the Apple Watch is for me because I haven’t had the chance to hold one yet. But the passion and sincerity Ive exudes for his work compels me to at least check it out.

Randy Lobasso, writing at Philly Weekly‘s PhillyNow blog:

Last week, Councilwoman Blondell Reynolds Brown introduced a proposal along with Councilman Jim Kenney to add disability, sexual orientation and gender identity to the city’s ordinance. The proposal would add up to 90 days of jail time and a $2,000 fine if someone is convicted of hate crimes in addition to whatever other specific crime they’ve committed. It’s not much — but it’s something.

Lobasso’s piece is a great primer on the politics of bill passage, and he explains eloquently and with just the right amount of indignation why Pennsylvania has so far failed to address hate crimes, housing and other venues of discrimination with respect to the Commonwealth’s LGBTQ citizens. Go read it.

Michael Corkery And Jessica Silver-Greenberg, reporting at the New York Times DealBook blog:

Ms. Bolender was three days behind on her monthly car payment. Her lender, C.A.G. Acceptance of Mesa, Ariz., remotely activated a device in her car’s dashboard that prevented her car from starting. Before she could get back on the road, she had to pay more than $389, money she did not have that morning in March.

This is as stark an illustration of the intersection of law and technology as I’ve linked to in a while. While the tech can be a blunt instrument in a world of nuance (some borrowers are doing their best, others are surely not), I don’t oppose it. Assuming everyone was aware of the terms of the loan, it’s a valid contract, etc.

But this sentence gave me pause:

Using the GPS technology on the devices, the lenders can also track the cars’ location and movements.

Again, there probably isn’t anything illegal about it, assuming a valid contract. But in a world of automated license plate scanning and associated geo-behavioral profiling, is a GPS device overkill?

I suppose the business model itself is unnerving. After all, if you need to use a GPS device to manage risk, maybe you shouldn’t be making the loan in the first place. Borrowers using subprime auto loans probably just can’t afford to get a car.

Some drivers volunteer for activity-tracking devices as a way of qualifying for reduced car insurance premiums. Such people can already afford insurance though, and allow their provider to track their behavior as an added savings.

Maybe it’s less the tech involved and more the word “subprime,” which to me invariably suggests a corporation taking advantage of someone who can’t actually afford what they’re getting, and will inevitably default.

Encryption of data on mobile devices is a big selling point in our post-Snowden world. But FBI Director James Comes isn’t happy about it:

What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law.

David Kravets of Ars Technica reports Comey has “reached out” to the companies about the issue. Absent new or amended legislation, though, there is little he can do about it, precisely because there is such a sales incentive to marketing encryption these days.

Blake Miller of Fast Company has this chilling article:

Jenny had become a victim of a growing—and to many, alarming—new community that exists primarily on Instagram: baby role-players. Instagram users like Nikki steal images of babies and children off the Internet, give them a new name, and claim them as their own. Sometimes they create entire fake families.

The sad thing is there is relatively little protection to be had from the law in situations like this. You may be able to sue someone using your likeness in a commercial venture without your permission, but non-commercial use of the nature described above is rarely protected in the same way.

Instagram users should review their privacy settings by reading the company’s help pages about controlling your visibility and setting photos and video as viewable only to approved followers.

Keep this in mind, though: even if you set your content as private, sharing a link to a photo or video on a social network like Twitter or Facebook will allow anyone with that link to view it.

People who do steal your photos and pretend they’re your child or your child’s parent are violating Instagram’s Terms of Service, which prohibits impersonation, among other things (emphasis mine):

You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities […]

The Fast Company article to which I link above includes a statement from Instagram that the company does remove the stolen images when users report such activity.

This story is another lesson to be mindful of not only what you share online, but how you share it. After all, a private company like Instagram could simply choose to ignore concerns like these, and users would have no recourse. Social networks can be a rich and vibrant way to stay in touch, but we are all responsible for what and how we share.

Apple says in the latest revision of its page on government information requests:

On devices running iOS 8, your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes, and reminders is placed under the protection of your passcode. Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.

Sure enough, the company also updated its Legal Process Guidelines (PDF) to reflect the increase in user privacy:

For all devices running iOS 8.0 and later versions, Apple will no longer be performing iOS data extractions as the data sought will be encrypted and Apple will not possess the encryption key.

This is obviously good news for people concerned about the amount of our data swishing around in the binary ocean, ripe for government fishing expeditions.

However, it’s also worth noting the overwhelming majority, 93 percent, of law enforcement requests to Apple are made at the behest of the customer themselves, usually in the case of a lost or stolen device.

You can find more information about what Apple discloses to law enforcement at its transparency reports page.

I don’t usually write about events here, but since I wrote the article to which I link above, I thought it appropriate to share. I had several great conversations with Chris Bartlett, Executive Director of the William Way Community Center in Philadelphia, about OutBeat in writing the article. I’ll publish a Q&A with him next month, also at Geekadelphia.

Whether you’re gay, bisexual, straight or heteroflexible, and even if you don’t like jazz ( or don’t know yet that you do like jazz), the four-day festival is going to be fun and informative. With any luck, I’ll be able to stop by.

Paul Boag writes at Smashing Magazine:

Frustration will only increase as millennials enter the workforce. These people are digital natives, and they expect a certain standard of software. They expect software to adapt to them, not the other way around.

My generation were loud about the outdated software our employers used. We begged, insisted and shouted from the rooftops that efficient workload management demanded a higher level of polish, functionality and user experience.

Even massive software makers like Oracle do little if anything post-sale to ensure their products get the design and functionality upgrades they so desperately need. You can pay an army of contractor-consultants to customize the database architecture and processing flow, sure, but the interface is still all ’90s.

That was then, though. Today, the up-and-comers are just as unlikely to accept awful software and user experience. The difference is they won’t ask or shout at all, they just start using third-party tools. Sometimes this is fine, but other times there are serious security concerns with using third-party software for company work.

Read Boag’s article, especially if you manage any young folks, because this stuff is happening and you should take the opportunity to learn from them. They’re going to gravitate toward good user experience and efficiency, and that’s good for business.

Laurie Voss, in a piece about technical hiring that is easily applied to the legal field and hiring more generally, on asking applicants questions to which they almost certainly don’t know the answer:

The weakest candidates will try to waffle or make wild guesses. This is a terrible sign, firstly because it never works, and secondly because they thought that it would. [ … ] Strong candidates say “I don’t know” as soon as they hit their limit, and may start asking questions. The very strongest candidates say “but if I had to guess” and then attempt to extrapolate.

Yup. And what’s more, most interviewers or hiring managers who ask such counterproductive questions are actually looking for the waffles and the wild guesses. They invariably want to see someone who can obfuscate without sacrificing an air of omniscience.

It’s an astounding feat of self-sabotage, and it makes it difficult for the truly intelligent among us (like myself, all arrogance aside…) to make an impression among the din of bloviating thought-sheep.

The Email Privacy Act would prevent the government from using mere administrative subpoenas to access email older than 180 days. The distinction, included in the Stored Communications Act , was based on the need for users to access and download email from a service provider’s servers. The logic was that if someone hadn’t downloaded their email in six months or more, they had effectively abandoned it.

Of course, things are no longer that simple in the age of constant synchronization and push notifications on mobile devices.

Previously:

• Grover Norquist on proposed update to Electronic Communications Privacy Act
• ECPA amendment would require warrant even for email older than 6 months

The legal momentum favors universal application of the fundamental right of two consenting adults to marry, but that doesn’t make each ruling any less exciting.