Computer Forensics and Legal Technology Blog

According to Robert Boback, chief executive of the company hired by Wagner to help contain the data breach and interviewed by The Post, such security breaches aren’t uncommon. About 40 to 60 percent, he said, of all data leaks take place outside companies’ secured networks –usually as a result of employees or contractors installing file-sharing software on company computers.

An interesting inference this Post article is that one settlement outcome of litigation arising over data breaches may include a determinate period of free credit monitoring (provided by firms such as FirstAdvantage) for class members whose data has been compromised.

Historically, prosecutors have argued that, once a recipient accesses his messages –whether they be email or texts–, the message is no longer in “electronic storage” as the SCA defines it, an argument the Ninth Circuit rejected.  Thus, if an archived message was created as a backup copy of an electronic communication sent through an Electronic Communications Service, that copy continues to receive ECS protection, even if it was downloaded, read and “has expired in the normal course” such that the copy is no longer performing any archival/backup purpose.  For the same reason, even if an employer pays for the use of third party text or email service, the employer cannot obtain copies of messages from the provider without the recipient’s permission.

Additionally, the Ninth Circuit addressed whether text messages are protected by the Fourth Amendment, insofar as prosecutors often argue that, because email and text messages are stored by third parties that have the ability to read them, senders and recipients have no expectation of privacy in those messages and thus are entitled to no constitutional protection from unreasonable searches and seizures.  The Ninth Circuit rejected this view, joining the Sixth Circuit in Warshak v. US, holding that text messages are akin to letters or packages, and are protected even though the shipper could open them.

Further, the panel considered the effect of acceptable use policies, monitoring policies or other terms of service that state that the service provider or employer reserves the right to monitor or audit the messages. While those policies may give employers or service providers the right to read messages, the question was whether law enforcement could, therefore, do so as well. The Ninth Circuit panel applied its ruling in United States v. Heckenkamp, which held that a student did not lose his reasonable expectation of privacy in information stored on his computer, despite a university policy that authorized the university to access his computer in limited circumstances while connected to the university’s network. The Court rejected the argument that user consent to access for some purposes destroyed the expectation of privacy for every purpose, including warrantless or unreasonable government searches.  (Note: Compare this outcome to the “abandonment theory” applied by a Pennsylvania court, which held that consent given to a third-party PC repair service to install a DVD player (including testing associated therewith) constituted a waiver of expectation of privacy for every purpose – Click here).

In a decision issued in Utah Lighthouse Ministry (UTLM) v. Foundation for Apologetic Info. & Research (FAIR), the Tenth Circuit examined the issue of whether hyperlinking can render a non-commercial opinion, critical or parody Website liable for infringement under the Lanham Act.  The resulting holdings afforded Website parodies (such as, e.g., People Eating Tasty Animals (PETA))¹ some protection.

Following the Ninth Circuit’s reasoning in Bosley Medical Institute v. Kremer, the Tenth Circuit concluded that, because the parody Website in question contained critical commentary as well as links to articles critical of plaintiffs and, because the links to plaintiffs’ Web site were to its homepage and not directly to its bookstore, the “roundabout path” to the advertising or commercial use of others was simply “too attentuated” to invoke the trademark protections of the Lanham Act.

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¹ This example appeared in n.5 of the Tenth Circuit’s opinion.

Some time ago, I posted a story concerning a border exception to the warrant requirement, where a border agent inspected a laptop and discovered contraband (click here).  From the Ninth Circuit, U.S. v. Arnold, we have a similar underlying fact situation, except that the question before the court concerns the reasonableness of the intrusion:  In its April 21st opinion, the Court held that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.  The Court found unavailing defandant’s numerous arguments –some bearing stretch marks– such as that “laptop computers are fundamentally different from traditional closed containers,” and analogizes them to “homes” ² and the “human mind.”³ Consequently, the Court reversed the trial court’s suppression order, thereby permitting prosecution to proceed.

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¹ See, generally, United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

² Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant.  For Fourth Amendment purposes, an international airport terminal is the “functional equivalent” of a border.

³ Defendant’s analogy of a laptop to a home was based on a conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home.

⁴ Defendant urged that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits.

A Dallas woman has sued Blockbuster over its participation in Facebook’s Beacon marketing program.  According to the complaint, the woman rented videos from Blockbuster, who passed along her rental info to Facebook, who then distributed the rental info on the Internet through its Beacon system. The plaintiff alleges that this was a violation of the Video Privacy Protection Act, 18 U.S.C. § 2710 (summary).

This is a fascinating glimpse into the types of privacy issues that may arise when companies jump into the “next big thing” — here, social networking — without fully considering potential adverse effects. This case will be closely watched by other players in this area (e.g., MySpace), as well as their partner companies.

The respondent-attorney attempted to file a bankruptcy case by submitting paper pleadings rather than e-filing. The bankruptcy court sent Respondent an order advising that petitions and other pleadings must be filed electronically. The court ordered Respondent to attend the required training, pass the examination, and obtain a login name and password within 30 days. Respondent failed to comply with the order.

Subsequently, Respondent attempted to file another (separate) bankruptcy case. A bankruptcy judge advised Respondent in writing that he was not permitted to file a bankruptcy case using paper pleadings and that all pleadings must be filed electronically.

Respondent not only failed to obtain a log in name and password and failed to file the case to comport with court rules, but also did not return the advanced fee after discharge.

The dicsiplinary Memorandum Opinion is here.

Hat tip to The Legal Profession Blog for this story.

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¹Pursuant to a rule change, the United States Bankruptcy Court required that all pleadings be filed electronically. In order to file electronic pleadings with the bankruptcy court, an attorney must have a login name and password.

The school, Concord Law School, was founded in 1998 and is one of only two or three entirely online law schools.  None, however, is ABA accredited. (The ABA’s general policy under Standard 304(f) states that “a law school shall not grant credit for study by correspondence.” Click here ).

Four graduates were admitted in open court: Larry David, an international businessman and attorney in Pasadena, Calif., who volunteers at the Los Angeles County Bar Association Barristers Domestic Violence Project; Michael Kaner, a dentist in Newtown, Pa., who is a consultant on risk management and forensic dentistry; Ross Mitchell, a computer systems consultant in West Newton, Pa., who is advocating online legal education and the expansion of the multijurisdictional practice of law; and Sandusky Shelton, a retired telecommunications manager from Clio, Calif., who handles court-appointed juvenile dependency cases.

Briefly, the case arises from allegations that a resort’s ski instructor raped a teenage girl. The girl and her family have sued the resort, noting that it gave assurances that any ski instructor working with children must have a “clean criminal record.” Read full story. The accused instructor, in fact, has a lenghty rap sheet.

In its response to the lawsuit, the resort contended that it never promised that criminal checks were performed on employees and supplied copies of its Web pages to support the contention.  However, the family’s attorney said that the supplied offers-of-proof are phony, noting that a search of old Web pages on www.archive.org revealed that the resort had, in fact, made such representations since 2002.  Moreover, he said, the archive site contained no pages similar to the ones that the resort supplied. “As the record now stands before the court, it appears that [the resort’s] affidavits are false and misleading, the alleged copy of [the resort’s] Web site is fabricated and [the resort] has attempted to destroy evidence.”

Gov. Tim Pawlenty announced the Minnesota Supreme Court’s next chief justice, naming Eric J. Magnuson of Briggs and Morgan, P.A., formerly of Rider Bennett, LLP.  Read full story.

Eric is co-author, along with David Herr, of Appellate Rules Annotated, 2007 ed. (Vol. 3, Minnesota Practice Series), a co-editor and chapter author for the fourth edition of Eighth Circuit Appellate Practice Manual, and co-editor of Matthew Bender’s The Art of Advocacy: Appeals. He also co-authored CM/ECF On Appeal– The Eighth Circuit Affirms (Oct., 2007).

Eric is recognized nationally as an advocate for technology in the field of appellate advocacy. He’s given many technology presentations, including “Making the Law of E-Discovery – Seeking Appellate Review of Non-Appealable Discovery,” Minnesota Chapter of the Federal Bar Association Federal Practice Seminar (June 2007); “Technology and Appeals,” DRI Annual Meeting (October 2006); “Technology Tools and Resources for Appellate Advocates,” 16th Annual Trial Practice Seminar, North Dakota Trial Lawyers Association (May 2006); “Technology and Appeals,” Appellate Practice Institute, Minnesota CLE and 8th Circuit Bar Association (May 2005); “Electronic Advocacy,” American Academy of Appellate Lawyers Spring Meeting (April 2005); and Technology Tools and Resources for Appellate Advocates (2006).

Eric also presented my firm’s digital brief technology at the The Fifth Circuit Summit: Exploring Technology to Serve the Appeals Process (September 25, 2006).

Hopefully, with Eric at the helm, and Bob Hanson’s continuing leadership, technology in appellate practice, including e-filing and digital briefs, will be ushered in.