Links

Jan 30, 2015 ∞

EFF Wins Battle Over Secret Legal Opinions on Government Spying

The EFF said in a press release yesterday:

The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215.

That’s good news. Census has historically been analyzed only in the aggregate, with individual records held by the United States Census Bureau for 72 years before public release. I’m interested in reading the OLC opinion when it’s finally released.

Jan 23, 2015 ∞

Federal judge strikes down gay-marriage ban in Alabama

I’ll just leave this right here…

Jan 14, 2015 ∞

South Dakota same-sex marriage ban falls

I’ve probably used this line before, but I can’t help myself… Another one bites the dust.

Jan 12, 2015 ∞

A Reminder To Ditch The Disclaimer This Tax Season

Kelly Phillips Erb, writing at Forbes:

According to the final Regs, “the rules in the final regulations are intended to eliminate the need for unnecessary disclaimers.” In other words, the IRS gave a nod to how crazy things had become, noting, “These types of disclaimers are routinely inserted in any written transmission, including writings that do not contain any tax advice.” The rules and the lack of understanding of the rules “contributed to overuse, as well as misleading use, of disclaimers.”

Please, please, please listen to her sage advice and get rid of those stupid disclaimers unless your correspondence actually includes actionable tax advice.

And while you’re at it, if you’re into tax law you should check out her blog and find her on Twitter, as well.

Jan 7, 2015 ∞

Join the bone marrow registry

Drew Olanoff (@drew) is facing cancer for the second time. He is fighting it in public again, this time to bring greater awareness to the bone marrow registry.

Go sign up for a free registration kit. I did. It only took me ten minutes.

I did it on my iPhone.

Skip your next round of Twitter browsing or Facebook liking or email reading and do something really, really easy that brings you one step closer to saving someone’s life someday.

Jan 5, 2015 ∞

Google Calendars as a timekeeping tool

Keri Mahoney of Law Technology Today writes about using Google Calendar to track and bill for attorney time, but this is a clever technique for anyone who needs to track time.

Alternatively, Toggl is great for basic time tracking and Harvest is even better if you want integrated invoicing and payment processing.

Jan 2, 2015 ∞

Message scanning lawsuit against Facebook won't go away

Message scanning lawsuit against Facebook won’t go away

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.

Dec 31, 2014 ∞

What Could Have Entered the Public Domain on January 1, 2015?

Duke Law’s Center for the Study of the Public Domain:

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.

Dec 19, 2014 ∞

Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964

It’s about damn time. According to a DOJ press release:

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.

Dec 17, 2014 ∞

Employees sue Sony over email leaks

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.

Dec 15, 2014 ∞

The ethics of reporting on the Sony hack

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.

Dec 10, 2014 ∞

HBO without cable confirmed for April 2015

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.

Dec 5, 2014 ∞

Tim Cook will lend his name to Alabama LGBTQ bill

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.

Nov 26, 2014 ∞

Searching Google Scholar

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.

Nov 21, 2014 ∞

Serial podcast presents novel collision of law and technology

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.

Nov 14, 2014 ∞

Americans’ Cellphones Targeted in Secret U.S. Spy Program

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.

Nov 13, 2014 ∞

Warrantless seizure of child pornography evidence fatal to prosecution's case

Warrantless seizure of child pornography evidence fatal to prosecution’s case

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.

Oct 22, 2014 ∞

SCOTUS Servo tracks and announces changes to Supreme Court opinions

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.

Oct 18, 2014 ∞

Anita Sarkeesian asserts her right not to be in danger of being shot

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.

Oct 15, 2014 ∞

HBO without cable coming in 2015

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.