Federal judge strikes down gay-marriage ban in Alabama
Federal judge strikes down gay-marriage ban in Alabama
I’ll just leave this right here…
South Dakota same-sex marriage ban falls
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.
A Reminder To Ditch The Disclaimer This Tax Season
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.
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.
Google Calendars as a timekeeping tool
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.
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.
What Could Have Entered the Public Domain on January 1, 2015?
What Could Have Entered the Public Domain on January 1, 2015?
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.
Some policy thoughts on corporate "revenge hacking"
Michael Riley and Jordan Robertson, reporting a fascinating story at Bloomberg:
In the U.S., companies are prohibited by the 30-year-old Computer Fraud and Abuse Act from gaining unauthorized access to computers or overloading them with digital demands, even to stop an ongoing attack.The act exempts intelligence and law-enforcement activities, allowing the government to respond more aggressively than private-sector firms. There’s little indication, though, that military and intelligence agencies have used their most powerful tools to shut down attacks on businesses, as the U.S. has attempted to address foreign-based hacking through diplomacy and the courts.
Diplomacy and the courts are clearly inadequate channels for preventing, halting or discouraging foreign-based hacking.
The question, then, is whether the U.S. government will use its broader “revenge” authority under the CFA to defend not only itself but private U.S. companies. This method would be problematic from a funding perspective, and may cause diplomatic friction.
Alternatively, the CFA could be amended to allow “proportional responses” by private U.S. companies to foreign-based hacking. This method would be problematic from oversight and transparency perspectives, subjecting revenge hacking to market dynamics and the “black box” in which companies conduct so much of their business (especially when they’re privately held).
Yes, companies often have to deal with reporting requirements in the aftermath of a major data breach, but they don’t have to disclose any countermeasures under any current state or federal notification regime I can find.
Perhaps the best solution would involve some hybrid of these. For example, a department of government investigators and hackers could be assigned in small groups to companies facing imminent or ongoing foreign-based hacking.
They could embed into the companies like journalists sometimes embed into military units, assisting the company in its response and pulling the trigger on revenge hacks, insulating the company from CFA immunity.
The hybrid method minimizes government expense, maximizes company involvement and allows for the use of transparency laws such as the Freedom of Information Act by journalists and policy analysts to peek inside the black box.
I’m obviously not going to come up with a perfect solution in a short blog post, but it’s worth thinking about.
Image by the author
Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964
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.
Employees sue Sony over email leaks
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.
A court of beginnings
Photo of Pike County Courthouse by the author
Several excellent writing professors have told me throughout my life that you start by starting. Introductions, caveats and excuses delay your goal and bore or confuse the reader. Don’t tell people what you’re going to do. Do it.
But they also advised me always to write with my audience in mind. This is a blog, and you’re still reading, which suggests you like to read blogs, or at least my blog. So I’m assuming you’re prepared for and maybe even expecting some opinions. Here they are, by way, as they say, of introduction.
I can be a cynical, pessimistic bastard.
I can’t help it, and I really don’t want to help it. The world is a nasty, ugly place where terrible things happen to innocent people all the time. I’m convinced, through arrogance or narcissism or rationalization, that my gloomy outlook keeps me well-prepared for those dismal days we all inevitably encounter, and insulates me from the worst disappointments. Optimism sounds in my ears like a synonym for naivety.
Told you: I’m a bastard. But today I’m going to break character for a few hundred words.
I don’t often write about my work. I never have. I think it’s a good rule to stay away from what you’re currently doing, especially in the world of the law, where much of it is privileged and confidential.
It’s unprofessional to complain about your job in any detail, and as a cynical, pessimistic bastard I find joyous reports about one’s work untrustworthy at best. I have stories from previous jobs that would make your eyeballs burst from your face. But even if I was unscrupulous about what I was willing to share, to the extent that I wrote here about everything, what stories would I have left to tell at parties?
So there it is. That’s the introduction my writing advisors always advised against. But I think I did okay. I needed all that to make it clear to you why the rest of this little essay is an exception for me.
I don’t have to violate any privilege or confidentiality to say a typical Common Pleas court sees a lot of depressing stuff: divorce, custody, drug addiction, acrimonious estate distributions, and worse. Yes, our judges also perform marriages, but those aren’t really cases, so the law clerks never have occasion to attend.
From where I am sitting, it is often a court of dismantling, of endings.
Today, though, I was present for the first time at an adoption proceeding. It was emotional for the family. And all of the Court’s personnel were doing something we rarely do during court proceedings: we were smiling.
While I think family is most clearly defined by something ineffable in our hearts, legal recognition gives that definition life in the outside world.
And that can be just as important, especially when it comes to the right to protect, provide benefits to or make healthcare decisions for your family when they are unable to do those things for themselves.
It’s hard to be a cynical, pessimistic bastard while you watch a group of children and adults get their first photograph taken as a legally recognized family. Today, even if only for thirty minutes, ours was a court not of dismantling, but a court of building, and beginnings.
What a beautiful thing.
The ethics of reporting on the Sony hack
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.
Google recognizes non-binary, fluid nature of gender identity in new settings
This is another post that began as a mere link post and became, by the time I was done writing it, an article in its own right. When I’m doing more than brief commentary, an article of my own feels more appropriate. There’s more room for opinion in a full article, and I like few things more than expressing my opinions.
I was heartened to read that Google Plus will allow custom gender self-identification. Googler Rachael Bennett announced the new gender options, appropriately enough, on her Google Plus page, saying:
When “Custom” is selected, a freeform text field and a pronoun field will appear. You can still limit who can see your gender, just like you can now.
This may not seem important to cisgendered1 readers, just as naming a state anti-discrimination law after Apple CEO Tim Cook may not seem like a big win for the LGBTQ community at large.
Google’s recent move, though, exceeds even Facebook’s more than 70 custom gender options. Many of us use our social networking profiles as an important or even primary way of presenting ourselves to the world. It’s therefore important that we can be as vague or as specific as we want to be on those social networks, so we maintain control over our own identities.
But people who are comfortable with their gender or sexual orientation “in real life” may, in the online world, suffer the reverse of being “outed.” Namely, that while they live “out” in real life, limited options for expressing their gender or sexual orientation might force them to misrepresent themselves online.
And people who aren’t yet “out” in real life may see a lack of options for accurate self-expression as yet another point of social pressure on them to delay coming out. The two problems, though opposites, are equally disturbing. Such circumstances can be degrading and depersonalizing, and Google’s change to gender options is a small but important step toward solving those and similar problems.
Sexual orientation and gender identity are too often viewed, especially by cis people, as binary, non-fluid characteristics. The truth, as I understand it2, is that sexual orientation and gender identity are often composed of an interplay of continuums. More than that, for many people the two are not fixed points, but fluid and shifting throughout life, especially young life. That makes the proliferation of custom self-identification options on social networks a great thing.
The law, of course, has a very long way to go in this area, but that’s a matter for another article altogether.
- "Cisgendered" describes a "gender identity where individuals’ experiences of their own gender match the sex they were assigned at birth," as opposed to transgendered. Source: Wikipedia (I know, I know, but this is a blog post, not a legal brief or a research paper, give me a break.) ↩
- Again, I’m a cis male, straight, white and middle-class American. I’m not exactly brimming over with personal experiences indicative of the discrimination I’m talking about, and I think it’s important to point that out so you can read this in context. ↩
HBO without cable confirmed for April 2015
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.
Tim Cook will lend his name to Alabama LGBTQ bill
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.
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.
Serial podcast presents novel collision of law and technology
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.
Americans’ Cellphones Targeted in Secret U.S. Spy Program
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.
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.
SCOTUS Servo tracks and announces changes to Supreme Court opinions
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.