This is too strange.
Some clever miscreant hacked GoDaddy, transferred the makeuseof.com domain to a web registrar in Dubai, then demanded $2000 ransom from the domain’s owner to restore it.
The good news is that the domain is now back in the control of its rightful owner. Not sure if they had to dole out the money.
Methinks GoDaddy needs to bolster its security a bit, and revisit its policy of immediate domain transfers.
Patrick Oot, a lawyer for Verizon interviewed by The Economist, claims almost every case involves e-discovery and spits out “terabytes” of information—the equivalent of millions of pages. Almost every case? That may be his experience, but as an industry professional, it’s not mine and I’m still amazed: many lawyers –especially in family law– haven’t yet had a case where they’ve been asked to or found it necessary to image a single hard-drive. Some tell me they’re holding out for as long as possible.
Recently, a few reports have been published, highlighting a phenomenon that I and, I suspect, many of us anticipated: that the cost and burdens of e-discovery would become eventually become unwieldy and unmanageable, even for the firms with an infrastructure and regular need to deal with it. But, not everyone paints the picture as bleakly –certainly not the EDD firms that benefit.
A telephone research survey sponsored by EDD firm Fios, Inc. concluded: technologists and lawyers are working more closely than previously thought; the most significant investments are being made in legal hold and archiving tools; and the 2007 amendments to the federal Rules didn’t have the impact feared.
However, a joint survey, released in September, by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System reports that a majority of those surveyed found that the discovery system in particular is broken and “has become an end in itself,” and that “Electronic discovery clearly needs a serious overhaul.” Nearly a quarter of those surveyed characterized the civil justice system is “broken.” The report claims that 83 percent of nearly 1,500 lawyers responding found costs –not the merits– of a case to be the deciding factor in settling. A significant 68 percent of the college fellows disclosed that civil cases do not get filed because of the prohibitive litigation costs.
Frankly, I’m not so sure that surveying “college fellows” on the practicality of electronic discovery are the right people to ask these questions of. So, I decided to ask a colleague, Sharon Nelson, for her perspective. Nelson and her husband, John Simek, operate a computer forensics firm in Virginia. She is an attorney, frequent lecturer and co-author of the Electronic Evidence and Discovery Handbook.
Nelson concludes –as I have, also– that, “The truth is often somewhere in the middle.” She recalls, “Discovery was a nightmare even in paper – because there was often so much. The problem has grown exponentially with ESI, because there is so much more data. However, a portion of the blame belongs to all of us. We don’t ‘take out the trash’ so our garbage heap of data expands constantly. It is just too cheap and easy to move it all to ever larger hard drives.”
As a result, e-discovery has led to a new boom industry of specialized service providers which charge $125-600 an hour. George Socha (based here in Minnesota and who adminsters an annual survey regarded as the industry benchmark) estimates that their annual revenues have grown from $40m in 1999 to about $2 billion in 2006 and may hit $4 billion next year.
“Additionally, there are now at least two tiers of EDD companies – the whales, who are interested only in the mega-firms and their cases, and the smaller fish, who handle the small to mid-range cases of small to mid-range firms,” Nelson noted. She also observed that, “There is little interaction between those two worlds – and huge price point differences,” and believes that, “A continuing shake-out among vendors is probably likely, especially given the state of the economy.”
Further reading:
11/24/2008 Update: dead link (below) replaced with different link. Also, plaintiff’s concerns about the damage to her reputation seem legitimate, as I recently discovered (hat tip to Sharon Nelson): On September 10th, CareerBuilder.com published the results of a survey that found one in five employers screen their job candidates online, double the amount of employers using social networking sites in 2006. Of the employers that used the sites, 34% dismissed the candidate after what they saw. The main concerns of the employer were candidates posting information about drinking or drugs, posting provocative information or photos, poor communication skills, and lying about qualifications. Conversely, 24% found that the social networking site solidified their desire to hire a person. Factors that made an employer hire a potential candidate were a background supporting the candidate’s qualifications, proof that they had good communication skills, and evidence that the candidate was a good fit for the office culture.
A DWI defendant in Nassau County. NY has sued, demanding that her name and photograph posted to the County’s Web page –dubbed “Wall of Shame”– be removed. Read story. Defendant’s claim is based primarily on the prospective harm caused when potential employers and others find her name and photo on the Web. Her attorney argues that publication to the “Wall of Shame” of persons who have not yet been found guilty of a crime is a form of punishment, noting “I don’t think you need a law degree to understand that this fundamentally goes against a system of justice in which punishment occurs after you’ve been found guilty.”
Last month, another woman sued the county over publication. She had lapsed into a hypoglycemic shock1 and was subsequently arrested for DWI.
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1 As I have witnessed first-hand, a person experiencing hypoglycemia, when his or her blood sugar is too low, can appear to be drunk. They may sweat, talk confused, become disoriented, stumble, lose their bearings, become aggressive, even “ornery,” belligerent or pass out.
9th Circuit Chief Judge Alex Kozinski faces a misconduct complaint that accuses him of illegally disabling Web site filtering software in 2001.
As Pamela MacLean (Law.com) reports:
A potentially more serious problem for Kozinski is [the] resurrection of the 2001 internal bureaucratic fight over court monitoring of use of government computers to download movies and music.
[The] complaint includes among the 80 pages of documents, a scathing October 2007 letter from retired court administrator L. Ralph Mecham, who wrote to the head of the Judicial Conduct Committee for the Judicial Conference of the U.S., which sets policies for the federal judiciary.
Mecham, who managed the federal courts for 21 years, recounted the 2001 episode of Kozinski and former Circuit Executive Greg Walters disabling the monitoring software used for three circuits. His 16-page letter to committee chairman, Judge Ralph K. Winter, says Kozinski’s action was considered by government lawyers “not only ‘illegal’ but constituted at least one felony” citing 18 U.S.C. 1361, destruction of government property.
Mecham wrote that although the 9th Circuit’s then-Chief Judge Mary Schroeder knew of the issue, as did the circuit judicial council, no misconduct complaint was brought against Kozinski at the time.
“It is my strongly held view that this total absence of action is the worst example of failure by those responssible for disciplining judges that I have witnessed during my 21 years as AO director,” Mecham’s letter states.
Read MacLean’s article, which contains numerous URL-links for further reading.
The PRO-IP Act of 2007, “To enhance remedies for violations of intellectual property laws, and for other purposes” was signed into law on Monday.
The law, backed by the Recording Industry Association of America and Motion Picture Association of America and the U.S. Chamber of Commerce, enhances and expands existing piracy and counterfeiting laws and also creates an intellectual property czar, reporting directly to the president.
In related (but somewhat dated) news, the copyright wars have gone criminal. A blogger was arrested in late August for posting songs of a widely known rock group, which songs had not yet been released. LA Times article.
An enhanced spin on this story was put out by the legal blog, May it Please the Court, which explained:
The penalties for criminal infringement are determined by its extent: if the infringer has made in any 180-day period ten or more copies of one or more copyrighted works with a total retail value of $2,500, the crime is a felony entailing up to five years imprisonment and/or a fine of up to $250,000 for individuals and $500,000 for organizations. 18 U.S.C. §§ 2319(a), 3571(b). Jail time can be increased to ten years for repeat offenders. Infringement is a crime where it is done “willfully and for purposes of commercial advantage or private financial gain.” 17 U.S.C. § 506(a). Recent fines levied in criminal copyright infringement cases have been as much as $250,000.
In Jaynes v. Commonwealth of Virginia (slip opinion, Sept. 12, 2008), the Virginia Supreme Court overturned the conviction of North Carolina resident Jeremy Jaynes, who sent over 10,000 emails over a 24 hour period to subscribers of America Online using falsified header information and sender domain names. None of the recipients had requested communication from Jaynes. Jaynes was charged with violating Virginia’s anti-spam law, which prohibits sending unsolicited bulk emails (UBEs) with false email transmission information. The anti-spam law also raises the offense to a felony if the volume of UBEs is greater than 10,000 attempted recipients in any 24 hour period. The court held that, while the lower court had jurisdiction over him because the emails went through AOL’s servers in Virginia, the law was unconstitutionally overbroad. The right to engage in anonymous speech is an aspect of the freedom of speech protected by the First Amendment, and the only way a speaker can publish an anonymous email is to use a false IP address or domain name. Therefore, by prohibiting false routing information, the anti-spam law infringes on the right to engage in anonymous speech, which the U.S. Supreme Court has held to be a direct regulation of the content of speech. In its analysis, the court suggested that had the statute been limited to commercial or fraudulent transmission of email or transmission of illegal or otherwise unprotected speech, the statute may have been constitutional. However, as written, the statute prohibits the anonymous transmission of all UBEs, even those containing political, religious, or other speech protected by the First Amendment, and was therefore impermissably broad.
[O]verall . . . judges seem[] to embrace — like it or not — the notion that engaging and informing the public are now part of their job description. In the digital information age, the public expects all institutions to be transparent in multiple media, immediately and at all times, and courts are no exception. Some federal and state courts are already putting a lot out there — all court documents, streamed audio of hearings, everything except what the judge ate for lunch — and that trend is spreading. J. Rich Leonard, bankruptcy judge in the U.S. District Court for the Eastern District of North Carolina, described a remarkable and popular pilot project in his court that makes digital audio of bankruptcy hearings available online for a nominal fee.
So writes Tony Mauro in Courts and the New Media (The Legal Times, Sept. 10, 2008)
– continued –
Another article, Legal Journalism at the Crossroads, appearing last week in the D.C. Bar’s online newsletter, questions:
Who will tell the public the story of the American legal system? Increasingly, it seems it’s the legal system itself, or more specifically, the players within the system—the courts, law firms, local bar associations, specialized legal news publishers, lawyers, and law professors. The days are waning for in-depth coverage of the courts by the mainstream news media. What has replaced it is an intriguing if confusing mix of law-related Web sites, publications, podcasts, and blogs, many of which are coming from outside of journalism, and all of which are contributing to a new definition of what constitutes legal news in America.
“I’m not saying we’re at this point yet, but I think there is some danger in having the legal system practically ignored by the mainstream media and covered exclusively by organizations that have a vested interest in the system and the result,” says Mark Obbie, director of the Carnegie Legal Reporting Program at Syracuse University’s S.I. Newhouse School of Public Communications.
The article also observes, “Today’s reporting on the legal system, and especially the courts, is frequently filtered through sophisticated media platforms, such as . . . daring innovators and citizen journalists who slap a masthead on a Web site and call it legal news.”
Sounds good to me.
And, on Tuesday, U.S. Supreme Court Justice Stephen Breyer gave the opening remarks during the UA James E. Rogers College of Law’s New Media and the Courts symposium.
It is a topic of extreme importance – particularly with the rising popularity of citizen reporters, blogs . . . and the tremendous amount of unfiltered information scattered across the Internet1 . . . [J]udges and scholars are increasingly concerned about ways to inform the public with reliable information about the court system, said Sally Rider, director of the Rehnquist Center housed in the College of Law.
The symposium summary claimed that, “Though some are skeptical about the new media and especially blogs, there exists “tremendous potential in getting across the message that might be oppressed” Id.
The court beat assignment doesn’t carry the clout it once did.
According to Gene Policinski, the vice present and executive director for The First Amendment Center and a blogger, the world of the traditional reporter has changed rapidly in the past 40 years and the court beat assignment doesn’t carry the clout it once did. (click here).
I suspect that bloggers labor under constraints that bloggers aren’t bound by. These constraints include their obligation to the appearance of objectivity, limitations on word count and –as ABC News’s Vic Walter explained to me– a need to dumb down the message to the lowest common denominator of a broad audience.
Robert Boczkiewicz, a Reuters reporter who covers the federal courts in the Tenth Circuit, corroborated many of the symposium’s findings: “In the past at least couple of years,” Boczkiewicz recalled, “the amount of coverage of the federal courts in Colorado has gotten less news coverage. The primary reason for that is the cutback in the level of staffing of several news organizations that have traditionally given more attention to the federal courts.” Boczkiewicz also lamented that some new media legal reporters have the luxury to spend weeks on one article, while the few remaining court-beat reporters are “lucky to have a few hours to spend on one article.”
Indeed, I’d wager that traditional news outlets have, as the author of Legal Journalism at the Crossroads implies, downsized because of the alternative fora. However, I find it laudible that the public now has access to a much more comprehensive (`though sometimes subjective) coverage of law-related issues from alternative journalists including, as examples, Howard Bashman, Evan Schaeffer, William Bedsworth, Mike Frisch, and Minnesota’s Burt Hanson. And, to be candid, most of these sources have no ax to grind; they report news and judicial decisions with expertise and insights that traditional journalists simply don’t have.
Further Reading
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1 See, e.g, Mark Cohen, Judges wary of the ‘unshaven blogger’ (Minnesota Lawyer Blog 02.26.2008) (“[T]he pernicious blogger…has struck fear deep into the hearts of some of the state’s judiciary. One of the judges’ concerns I have heard raised about cameras in the courtroom is the specter of the ‘unshaven blogger’ coming in with cell phone camera at the ready. Apparently the judges are worried about being made to look sinister or downright ridiculous by a slip of the tongue or out-of-context snippet of dialogue winding up as a video posted on a blog or YouTube”); and see Russ Bleemer, Judges told to ignore rights in abuse TROs, 140 N.J.L.Rev. 281, 294-95 (1995) (judge discussing judges’ collective fears of being “tomorrow’s headlines”)
This decision in People v. M.A., was one of first impression in New Jersey, but is consistent with several other jurisdictions, including U.S. v. Angevine, 281 F.3d 1130 (10th Cir. 2002); U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000); and U.S. v. Bailey, 272 F. Supp. 2d 882 (D. Neb. 2003) in holding that an employee has no reasonable expectation of privacy in personal files stored on a company-owned computer and an employer’s consent makes a police search lawful.
Moreover, the court applied what appears to be a derivative of the Fundamental Equity Doctrine in holding that, even if defendant had a subjective expectation of privacy because he used a confidential password, that expectation was unreasonable because of the criminal use to which it was put: “A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as legitimate,'” the court said, quoting the U.S. Supreme Court’s ruling in Rakas v. Illinois, 439 U.S. 128 (1978).
An intriguing question arises when applying this doctrine to overcome the legitimate expectation of privacy: What if the encryption software used is discovered to have been pirated or in violation of the EULA, but defendant was not otherwise putting the computer use or data to criminal use? Does the Independent Source Doctrine warrant exception apply? What if defendant’s alleged unlawful conduct has no relation to the data or computer use –can that conduct be used as a pretext for overcoming defendant’s legitimate privacy expectation? Can tortious, but not unlawful conduct, be used as a pretext for overcoming the legitimate privacy expectation?
For related prior blog posts, see:
A few weeks ago, I discussed the pending legal challenge that could have threatened to dismantle the Sarbanes Oxley Act. (See here). That case has now been decided.
The U.S. Appeals Court for the District of Columbia Circuit ruled 2-1 yesterday and upheld the legality of the Public Company Accounting Oversight Board, rejecting arguments that the PCAOB violates the Separation of Powers doctrine. An attorney for plaintiffs have indicated they will appeal either to the U.S. Supreme Court or seek a rehearing en banc. U.S. Securities and Exchange Commission Chairman Christopher Cox said the decision was “welcome news for the commission, investors and U.S. capital markets.”
For more reading:
Open-source coders rejoice: the Ninth Circuit Federal Circuit has released a decision based upon Ninth Circuit law, Jacobson v. Katzer, No. 2008-1001 (9th Cir. Aug. 13, 2008), that expands the control that authors of open-source software have regarding future distribution and modification of that work. In particular, the panel held that rather than being limited to breach-of-contract claims, the suit may go forward on a theory of copyright — along with the concomitant statutory damages and potential for attorney fees. This decision will undoubtedly be well-cited, as open-source software continues its march to ubiquity.