I Was Wrong. SCOTUS Denies Cert In Google v. Oracle.

 Although certainly less high profile than Obergefell v. Hodges and King  v. Burwell (gay marriage and Obamacare, ICYMI while vacationing on Mars), Google, Inc. v. Oracle America, Inc. has some weighty implications in the open source and programming communities.  We had mentioned it several times in this little blog (see here and here and here) and had gone out on a limb and predicted that SCOTUS would grant certiorari.  Boy, did I miss that one.  The Supremes up and decided not to hear such case.  There's a good chance I will go none for fifteen in my Nostradamus imitation.

What effect does the denial of cert for Google have?  It leaves the lower court's ruling in place that such interfaces are subject to copyright.  Google still have a fair use argument and that could be taken up by the lower court again.  In the interim, programming of interfaces is fraught with the possibility of infringement, which is in contrast to the prevailing former view (at least in the programming community) that such APIs were not subject to such protection.

As always, this is not completely over.  Stay tuned

Once Again Arriving At The Intersection of Law, Technology and the Expectation Of Privacy. Court Rules That Vast Collection of Metadata Is Not Allowed By Patriot Act.

 Were you surprised a couple of years ago when Edward Snowden released documents that showed that the NSA had a program whereby they collected all metadata on all phone calls within the U.S. and stored them in a database for possible future use?  I must confess I probably ho-hummed that one a little bit and continued to expect that pretty much anything I did by phone or on-line could one day be reviewed by someone for some purpose or no purpose at all.  I'm not saying I liked that but like many I have lost faith in any real privacy.

Now, a federal court has said that the unlimited, unrestrained collection of such metadata is beyond the congressional intent expressed in the Patriot Act.  ACLU v. Clapper [the "Clapper Case"]   Setting aside for a moment the notion that "congressional intent" may be an oxymoron, the language of Section 215 of the Patriot Act as it was feed steroids after the attacks of September 11 allowed for: "...an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."

The first such order to come to light was directed to Verizon and required Verizon to turn over  "on an ongoing daily basis . . . all call detail records or `telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls."  Note the "wholly within the United States" language.  The Government, in the Clapper Case, declined to either affirm or deny that other major carriers were subject to the same language.  More than likely this means that if you have a cell phone with a major carrier, your call metadata is residing somewhere on a government controlled server.  The Government counters that this is not the content of the conversation nor has it been reviewed.  The Court in Clapper found that even without the content, metadata could reveal that a caller was "...a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual's social status, or whether and when he or she is involved in intimate relationships."

The Patriot Act allows the collection of things that would otherwise be obtained through a grand jury subpoena.  The Court reasoned that the issuance of a grand jury subpoena, while given very broad latitude, had to have some relevance to the matter at hand and since there was no present intention to review the metadata nor any issue to which it was specifically relevant, this exceeded the authority granted.

It should be emphasized that this was merely a statutory interpretation and the Court expressly stated that it was not ruling on the constitutionality of the statute.  A concurring opinion stated that because it was a statutory interpretation, Congress could fix it (albeit with still the Fourth Amendment issue).  So Congress, with all its alacrity, is trying to deal with the issue.  These provisions of the Patriot Act sunset on June 1 and we all know how effectively this Congress deals with deadlines.  In the meantime, keep using that cell phone.


Fifteen Things That Could Maybe Happen In 2015 In Law and Technology.

In keeping with the BuzzFeed nature of blogging and the proud tradition of procrastination irretrievably associated with this blog, we will fearlessly predict fifteen things that might, could, should occur during calendar 2015, even though well over one-sixth of the year has already passed us by. So after consulting my Magic Eight Ball®, Ouija® board and Googling® “things that might occur during 2015”, here goes:

1. If I hadn’t procrastinated, I would have predicted that Ross Ulbricht, a/k/a Dread Pirate Roberts, d/b/a Silk Road would be convicted and I would have had at least one prediction be accurate. However, since that occurred before I got off my keyboard and wrote this, I will just predict that he will appeal and some of his convictions will be reversed and/or he will strike a plea bargain to reduce the amount of jail time that he faces. He’s such a young guy that he will still have plenty of time to get into other trouble when he gets out.

2. Sixty percent (60%) of all websites and addresses will experience a hack or attempted hack.  This is not a stretch, as this has been the average over the past few years.  The cost of responding to a breach will exceed $200 per record in the U.S.  On average, each person in the U.S. will receive two notifications of breaches and 33% will take no action after receipt.  The three states that don't have breach notification laws (Alabama, New Mexico and South Dakota) will pass some version.  President Obama will suggest a national breach notification standard.  Republicans will threaten to shut down the Department of Defense if he does anything by executive action.  Congress will take no action.  President Obama will make a statement favoring oxygen.  Eight Republicans will suffocate.

3. The Supreme Court of the United States, after failing to rip insurance from 8 million people because of a typo, will grant certiorari to the Google/Oracle kerfuffle over APIs and we will be left with the spectacle of having some people who were born before telephones were prevalent (although younger than the Rolling Stones) try to determine whether interfaces will be subject to copyright.

4. The internet of things (“IoT”) will be the most hyped buzzword and will be attached to everything that has a wireless internet connection or that is hardwired into the internet and will include your refrigerator, air conditioner, automobile, FitBit, phone and clothing. The most intimate details of your life will reside on the cloud (the most hyped buzzword of a few years ago) and will be hacked and someone in Kazakhstan will know whether you need to buy more mayonnaise.

5. Big Data will be another over hyped concept and will be applied to any amalgamation of large data bases. Algorithms to sort this data and apply it will be developed so that advertisements for mayonnaise will come up on your browser after the hack described in 4 above.

6. Another result of big data amalgamation and parsing will result in the ability to do much more genome sequencing. More and more data will be available about genetic traits and inherited characteristics. Methods of manipulating those traits will begin to be developed. Designer babies will become a possibility. The use of steroids, amphetamines and other performance enhancing drugs will become obsolete in the future as children that have been “optimized” for athletic success will reach the age of competition and X-Men-like debates will dominate sports talk radio. The furor over Barry Bonds will seem quaint.

7. New methods of security for personal devices and premises will be developed and more widely used. One of these will be finger vein authentication, which will be safer, easier and more portable than fingerprints, retina scans or other methods. The NRA will object because identifying someone’s trigger finger will definitely be the next step in Obama’s nullification of the Second Amendment.

8. There will be a rise in personal biometric services.  Devices such as socks, shirts and wristbands and implants will constantly measure a person's physical characteristics and transmit the data to a smart phone and then to a medical provider.  There will be an automated response telling the patient to eat less mayonnaise.  The hacker in Kazakhstan will already know that.

9. An actor or actress will license their digital likeness rights to a movie studio where the studio will be able to use the likeness in a computer generated image without the actor participating in the filming at all. Just think of a young Mel Gibson and Danny Glover doing Lethal Weapons Number ad infinitum. I can only imagine the conditions of the licensing agreement regarding the personal conduct of the actor post license signing. Morals clauses, prohibition against drunken anti-Semitism and racism and good behavior clauses will be rampant.

10. There will be an accident involving two self-driving, autonomous cars involving personal injury. Personal injury plaintiff’s lawyers will sue all the programmers in sight. Programmers will have to begin carrying collision and liability insurance if they want to produce such cars.

11. New cryptocurrencies will emerge to compete with Bitcoin, even the several million that can’t be found after Mt. Gox lost them. None of them will catch on much because you still need a central government and an army to enforce the value of an arbitrary currency (which all are).

12. Artificial intelligence will blur the line between humans, robots and computers. More and more machines will pass the Turing Test. This blurring will bring the concept of the movie “Her” closer to reality.

13. TOR will take a hit because of NSA infiltration and detection. Something will emerge to take its place and the battle will begin again.

14.  Cyber-ransom, a subset of hacking, will become a bigger problem.  

15.  Several cases involving the warrantless searching of cell phones of arrested people will begin to wind their way through the appeals courts.  Since the holding that a warrant was needed, police will try to find ways to chip away at that requirement.  The issue will be resolved in the 2016 term of SCOTUS.

None of these predictions are particularly Kreskin-worthy and will not fill us with awe and wonder even if they come true.  However, think how amazing these would be if we had made them just 10 years ago. We truly live in interesting times.

Hey, Bro! Can You Spare A Bitcoin? Digital Currency For The Homeless And Unemployed.

We have discussed bitcoins several times before, see here and here, for example.  We exulted in the fact that the Winklevoss twins of Facebook fame are starting a bitcoin investment vehicle.  We also talked about how the regulators were taking a bigger interest in how bitcoins were use or abused.

Now a Wired article shows how the unemployed and homeless are using sites such as Bitcoin Get, Bitcoin Tapper and Coinbase to get paid bitcoins for watching videos and tapping an icon, each a technique for driving traffic on the internet.  The Wired article then quotes some of the homeless as preferring bitcoins because it is much harder to steal (at least from them) and they can convert it to money or prepaid cards using their computers or smart phones.  Now, I can hear conservative heads exploding all over at the thought of homeless, unemployed people with computers and smart phones particularly if they are getting food stamps or other assistance.  Be that as it may, engaging in this activity provides them some small bit of assistance to help feed them.  That can't be all that evil.

Some day, you may be approached (or approach somebody) on the street and asked for a handout.  They then offer the internet address for their bitcoin wallet and you send them some from your smartphone.  Panhandling in the digital age.

Court Holds That Non-Present Texter Could Be Liable Along with Textee In An Automobile Accident.

In another case that involves a collision (in this instance a most unfortunate pun) between technology and law, a New Jersey court has held that a person sending a text to a driver, with sufficient knowledge that the driver would observe the text while driving, might be held liable for the driver's negligence when the driver does observe the text and because of the distraction, has a collision.

Oh my!  Consider this possibility.  You are ensconced in your office in San Francisco.  You are engaged in negotiations with a business rival in New Jersey.  Your New Jersey rival is in transit between Newark and Atlantic City and you know this because you had a telephone call with her earlier and she indicated that she would be driving but would appreciate a text if you had any further information or a change in your offer.  You update your offer and text it to her when you know she is in transit.  She has an automobile accident and either because of your crappy offer or her injuries, the deal does not go further.  A month or so later, you receive a demand letter or a complaint and summons from the lawyer of the other participants in the wreck, alleging that your sending of the text makes you liable for his client's injuries.  You say  WTF?

Far fetched, you say.  Yes.  Impossible? No, consider the decision recently in Kubert v. Best.  There, the court held: "The sender of a text message from a remote location can be liable under the common law if an accident is caused because the driver was distracted by the texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."

In this case, Mr. Best was texting with Shannon and had been doing so off and on for most of the day.  During his texting, he crossed the center line and hit Mr. and Mrs. Kubert on their motorcycle and caused each of them to lose their left leg.  Very dreadful!  The Kuberts included Shannon in their complaint.  The court found that in this case Shannon was not liable because the plaintiffs had not proven that Shannon knew that Kyle (Mr. Best) would view the text while driving and consequently be distracted.  So, not liable in this case but the court held that if such knowledge and distraction had been proven, the court could have held Shannon liable for the Kuberts' injuries.

This raises several questions that are not answered in the opinion, e.g. (1) Does there have to be a special relationship between the texters?  Would liability be more likely if they were romantically involved or does the business relationship described above suffice?; (2)  Would the fact that the text came from a state that did not prohibit texting while driving have any impact?  Would it even matter if the state in which the accident occurred did not prohibit testing while driving?; (3) Would the automobile liability insurance of the non-present texter cover her negligence as if she had been present?; (4) What if the non-present texter is not an adult?; (5)  In states where parents are responsible for a minor's negligence if they sign to allow them to get a driver's license, would the parents be responsible for the texter's remote negligence?; (6) Could this be applied to other distractions like cell phone calls, the waving of signs on the side of the road for advertisement or in protest or the flashing of parts of the body.  Should cheer leader car washs worry? and (7) Have I given way too much thought to this?

Plaintiff's attorneys will now begin to check the defendant's cell phone and sue anybody that texted or messaged in close proximity to the time of the accident.  Maybe there should be an app for that.


Bill Introduced In Texas Legislature To Prohibit Employer From Asking You About Your Social Media Password.

Having solved all the other problems in Texas, including the problem of gun violence (prayer) and the problem of uninsured citizens (cutting Medicaid) the Texas legislature has turned to the burning issue of employers requiring employees to provide access information to employee's private social media accounts.

House Bill 318 has been introduced to make it an "unfair employment practice" if an employer "...requires or requests that an employee or applicant for employment disclose a user name, password, or other means for accessing a personal account of the employee or applicant, including a personal e-mail account or a social networking website account or profile, through an electronic communication device."

This bill still allows "monitoring" employee usage of employer provided media and also allows employer policies prohibiting use of company provided resources for personal use.  It doesn't provide for a specific remedy or a damages cap and it will likely be amended substantially before it passes, if it passes at all.  This would make Texas one of a handful of states that has jumped on this burning issue.  Crisis averted.

UPDATE: Ownership of Company's Twitter Account: Company vs. Employee

Almost a year ago, we mentioned the unusual case of PhoneDog v. Kravitz, where a former employee was sued by his former employer for $340,000, which amounted to $2.50 per Twitter follower that the employee took when he left the company.

We indicated that this was a gray area and developing.  So, how did PhoneDog v. Kravitz enlighten us on the rules for this situation?  Exactly none.  Mashable reports that the parties have settled after months of mediation.  Settlement terms are confidential but apparently Mr. Kravitz retained the Twitter followers and there was no indication of money changing hands.

Where does this leave us?  Back at square one but with some lessons learned.  For example, if ownership and control of Twitter accounts is important to your business, state in the employment contract or the employee manual that such accounts belong to the company.  Eliminate any drama by addressing the issue head on.  #commonsense

Do You Use An iPad In Your Legal Practice? Maybe You Should And Give These 20 Apps Due Consideration.

Our friend, Judith Leeson, the proprietor of a blog called Law Degree, has gone to the trouble of searching, reviewing and recommending the top 10 free iPad apps and the top 10 paid iPad apps for attorneys.  If you use an iPad in your practice or are considering it, you should look this list over.  Thanks, Judith for bringing this to our attention.

The Rapture or World IPv6 Day, Which One Is Likely To Cause More People To Disappear?

Well, the Rapture came and went and apparently everyone I know is a dirty, rotten sinner.  Now, we get another chance to be elevated into something greater than ourselves.  You will recall that we warned you that the Internet ran out of numbers a month or so ago and it had about as much impact as last Saturday's event.

Now, the Internet Society is tempting fate by calling for a World IPv6 day on June 8, 2011.  We are less likely to see billboards and covered cars extolling this day than we did for the Rapture and we certainly will see less media coverage although this touches far more people than 144,000.

On June 8, several hundred websites and a few large companies will provide their content in IPv6 compatible mode to remind people of the coming apocalypse when all websites and devices with IPv4 numbers try to switch over.  Talk about your Armageddons!  Just wait until the internet and cell phones don't work.  At that point, not even one of the major deities could save us.

To determine your browser's ability to be screwed up by this change over, you can go here to check now.  To prepare for IPv6 day and the return of Y2K, please fasten your seat belt and return your browser to its full uptight and locked position.  Your pilot has been advised of some choppy air ahead.

(To be clear, this is this Blog's lame attempt at sarcasm.  We believe the IPv6 changeover is beneficial and necessary.  Really, we do.)

Zediva Tries To Beat Netflix To The DVDs By Invoking Same Doctrine That Will Make It More Expensive For Netflix.

The many avid readers of this blog will no doubt remember our in depth discussion of the "first sale" doctrine as it relates to the inability of Netflix to rely on such doctrine for the streaming of videos, since there is no "sale" involved.  We surmised that this would increase costs because Netflix would have to license the videos from the copyright holders rather than just buy the DVD and rent it out.

Now, another service is trying to side step the issue and offer streaming DVD videos in a time frame well in advance of when Netflix can offer the video.  Zediva went from beta to production last week and is offering streaming videos as soon as the DVD is available for purchase.  Zediva's legal reasoning on this (we believe) is that they are buying the DVDs and physically taking delivery of the DVDs and actually playing them on a DVD player somewhere in their data center.  The particular DVD and the player on which it is playing are leased to the subscriber for four hours, during which no other subscriber can access either that DVD or that player.  The technology employed by Zediva allows that DVD and player to stream the video over the internet to the subscriber's device.  So, according to Zediva, it is like renting the DVD and player and the player just has a really long cord (with the cord serving as a metaphor for the cloud).  Surely, says Zediva, that must be allowed under the "first sale" doctrine.   If DVD copyright holders take umbrage at this arrangement, they might say that the "first sale" doctrine requires physical transfer of the medium and "Don't call me Shirley".  (gratuitous Leslie Nielsen homage)

The roll out of this bears watching.  Zediva's website today says it is down while they get more capacity.  Recently, another company thought they fit into an exception of the Copyright Act. ivi TV was retransmitting television broadcasts and claimed they were a virtual "cable company" and therefore entitled to transact their business under Sec. 111 of the Copyright Act, although they didn't get retransmission consent nor qualify as a cable company under the Communications Act.  The US Court for the Southern District of New York granted a preliminary injunction that ceased their operation until further adjudication.

As new technology challenges the present state of the law, we close this post as we almost always do.  Stay tuned.

Digital Crannies. Six Places Data Hides That Most People Don't Know Exist.

As we have stated before, from time to time, we like to improve the content of this blog by getting input from subject matter experts in relevant fields.

Today, we are glad to include information from our friend Will Ambruzs, an attorney and computer forensics expert at Austin based Flashback Data.  Will graced the pages of this blog before with this post.

We asked Will to give us some inside information about where attorneys or others should look when they are seeking information for investigative or discovery purposes.

Here is what Will said:

Digital Crannies.

Unlike paper, electronically stored information is everywhere. Unfortunately, it’s our experience that most attorneys don’t appreciate exactly how much of it is recoverable from computers. It’s literally a Chinese food menu. Sure, it’s not always important or cost-effective to review all of it, say, for litigation or each time a company fires a bad employee. However, most folks don’t know the menu well enough to even know the sorts of things they can order. The digital world is bigger than General Tso’s Chicken!

Here are 6 random things on the menu you may find interesting:

Email vs. Correspondence
Lawyers commonly want to look at email, but more often than not it turns out that looking at all communication would be more helpful. Because it turns out a bad employee at Company X also did a lot of text messaging at work. And online chatting. And instant messaging. And she also sent messages to clients and coworkers through LinkedIn and Facebook. And she frequently used her internet browser to send webmail through Yahoo! and Gmail. Unfortunately, preserving Outlook files and Exchange mailboxes doesn’t get this material.

Don’t Forget the Phone!
iPhones and Blackberrys have fast become like third kidneys when it comes to conducting business in the 21st century. However, folks tend to overlook them when thinking about electronic storage. The truth is phones can be excellent sources of data, not only because they’re designed to hoard data and sync with just about everything under the sun, but also because the privacy expectations of their users tends to be high.
For example, on a phone, our bad employee probably gets right to the point when communicating. Unlike computers, she’s not typing out heavily-syllabled, Shakespearean text messages with her thumbs. Consequently, remnants of communication are likely to be closer to the first cut of her thoughts, not the second or third.
There’s also a good chance she configured her phone to sync with email accounts at the company. There’s an even better chance she connected the phone each day to her work computer to charge the battery and keep her contacts and calendar synced. If so, there may be a treasure trove of backup files sitting quietly on her work computer. And since each file would represent a snapshot of the data on her phone at a particular time, things that were deleted from her phone many months ago may still exist in one of the backups.

Speaking of iPhone... Dynamic Text
Let’s face it, Apple’s business model is building gadgets that know you better than you know yourself. Apple’s gadgets learn about you, and to do this their gadgets have to store data.
One of the lesser known features of iPhone is its dynamic text database. Dynamic text is basically a repository iPhone uses to keep track of words and phrases you like to use when you type. That way the phone eventually learns to quit autocorrecting Alavert to slavery when, say, you keep texting others that you love Austin, but so do your allergies.
This can be a goldmine. Especially if text messages on the phone have been deleted and can’t be recovered. Reading entries in the dynamic text database that have been chronologically preserved is like listening to a conversation through a wall. It’s muffled, and some common words are omitted, but you get the gist and all the interesting parts are preserved:

wow.hate.Kevin.can.you.believe.arrogance.ugh.how.did.ever.become.Director.wait.until.he.finds.out.copied.all. company.passwords.hahahahaha.sounds.great.yessir.talked.to.James.he’s.leaving.company.with.us.said.downloaded. company’s.client.lists.from.database.no.difficult.yes.took.thumbdrive.with.him.said.will.email.everything.you.from.home. not.work.so.don’t.get.caught.haha.call.if.can.next.few.minutes.something.urgent.tell.you

Internet History
When folks think of a computer, they tend to think of it as a collection of things that live on the computer. For example, the most common data recovery request attorneys make involves: (i) collecting all email and user-created files from a computer, (ii) processing them against an exhibit of keywords, and (iii) producing the responsive material to be reviewed by fellow attorneys.
Candidly, this is probably enough heavy lifting from an “80/20 rule” perspective, especially when processing large data sets. However, it’s created a mindset that gives little regard to activity on a computer. And sometimes that activity is interesting.
For example, say John receives a preservation letter from opposing counsel. Here we see it sitting in John’s My Documents folder. There’s nothing else interesting in the folder. However, looking at John’s activity on the computer, right after he gets the letter we see him go to Google.com and type “how to securely delete data” into the search bar. Then we see 20 minutes of John clicking a bunch of URLs. Uh oh, next he’s on a website selling a product called “Evidence Eliminator v4.0.” And next we see him buying Evidence Eliminator and downloading it. Oh snap – here he is running it! And here’s him poking around later in My Documents to confirm the files are gone.
Wow! You suspected the keyword searches of John’s computer came back a quart low. And while all of this activity may or may not explain it, it’s certainly interesting!

Recent Documents
Speaking of file elimination, another good source of data can be the repositories used by software programs to keep track of recent documents. Microsoft Word has such a repository. So does Windows Media Player. These repositories won’t help you recover a wiped file, but they may help you substantiate that the file existed on the computer at some specific time in the past, or when files were accessed.
Forensic examiners frequently draw from this well in criminal prosecutions involving possession of child pornography. Defendant swears up and down he wasn’t aware of the illicit material. Or, if he was aware, that he looked at it once by accident several years ago and, upon realizing its nature, never looked at it again. Unfortunately, that’s not the same story Windows Media Player tells. It shows Defendant playing contraband files from multiple locations on a regular basis (e.g., from the hard drive, from a thumb drive, from his Blackberry via a USB cable, etc.).

Keeping with the deleted file theme, don’t forget about simple hidden artifacts like Thumbs.db. You ever open a folder in Windows and view the contents as thumbnail images? Thumbs.db is the hidden file used by Windows to store those ‘thumbnail’ images. Importantly, the data in the Thumbs.db file tends to stick around even after someone deletes the actual file. So, while a folder in which you’re interested no longer contains the data you want, you may be able to demonstrate that what’s in there now isn’t what was in there before. (And, if so, what’s missing.)


Apple Seeks To Trademark "App Store". Microsoft says "Not So Fast".

Apple filed a trademark application for the term "App Store" in 2008.  Microsoft is opposing such application and has filed a motion for summary judgment with the USPTO alleging, among other things, that the term is generic.  As you know, if a term or word merely describes what it is, then it is generic and will usually not be granted trademark protection.  Examples of generic phrases that were turned down as marks are cited in Microsoft's brief in support of their summary judgment motion and include "The Computer Store", "Shoe Warehouse" and "Discount Auto Parts Warehouse".


Want to know what the odds are that the USPTO is apt to axe "App Store"?  There should be an app for that.

Senile Musings of the World's Oldest Baby Boomer Lawyer- How Technology Has Changed The Practice of Law.

Indulge me for a moment.  Today is my birthday.  I'm old.  I've been practicing law for a long time (parts of five decades).  I'm slightly nostalgic on this, the occasion of my becoming a ward of the state.  This blog talks generally about technology and the law.  This post will address technology in the law.

I know that most of you assume that the internet has existed forever.  At least since the nineties, which is forever for a lot of you.  Let me describe the technology of law when I first burst on the scene in the 70s: Lawyers dictating to secretaries (no one knew what an administrative assistant was) sitting at the end of the desk while the lawyer paced and talked, secretaries taking the dictation in shorthand on steno pads, secretaries typing on manual typewriters with carbon paper making one copy on onion skin paper, other lawyers dictating on Dictaphones (machines about the size of an old VCR with a circular magnetic tape), which was then given to a secretary for transcribing, no lawyer would have deemed to do his or her own typing even if they could.

Then the advancements starting coming in torrents (at least one or two every three or four years):

  • Electric typewriters, first with an arm and a head for each character and then followed by a rotating ball with all characters (Selectric typewriters)
  • Self correcting electric typewriters (mistakes were corrected not by erasing and retyping but by backing up and typing the incorrect character(s) again, which pounded a white material into the prior indentation.  This didn't do anything for the underlying copy, which still had to be manually corrected)
  • Copiers - big, clunky, expensive, slow moving machines
  • Fax machines - one line for the whole firm and it was used only on special occasions
  • Hand held dictation equipment, first with full sized cassette tapes and then later with mini-cassettes 
  • Mag-card "word processors" - the first "computerized" advance in office technology.  Machines about the size of small refrigerators, which had magnetic media (in the shape of old IBM punch cards) on which you put standard documents with blanks in the text for names, addresses, etc.  These large machines were attached to Selectric typewriters that would operate until it found one of these blanks indicated by a "stop code" at which point the typewriter would stop and the operator would enter the optional text manually.  These machines were hot and noisy and had to be enclosed in a room with sound absorbing material and were run overnight because of the long production time for large documents and the fact that there were only a few machines for the entire firm.
  • The advent of personal computers moved rudimentary word processing to the administrative assistants desk tops and Word Perfect ruled the legal world and only special Word Perfect gurus knew how to use the "codes".
  • Legal research by computer was introduced by Lexis-Nexis.  One large terminal tucked way back in the library with an exorbitant per minute search rate and a per line print rate with a printer as part of the terminal.
  • Desktops, then laptops with Microsoft Word and Westlaw and the internet and mobile phones evolving into pocket held computers, Microsoft 365, Google voice, Google docs, Twitter, LinkedIn, Avvo, social media, the cloud, etc., etc. and the torrent really has begun.

However, the more things change, the more they stay the same.  Even though technology has changed the face of law practice, the same basics remain: Lawyer competence, client contact and trust and good, old fashioned integrity still count.  Maybe now more than ever.

Thanks for indulging me.  I look forward to many more advances over the next five decades.





Another Pop Quiz: Apple, Pimple Popper Lite and Reading Your Wife's E-Mail. What Do These Have In Common?

Pop quiz, hotshot! (Using the same Speed reference in two posts.  You would think it's the only DVD we have.)

What is the common element among Apple, an app called Pimple Popper and a guy in Michigan that read his wife's e-mail?  The answer is that they have all been accused of violating computer security laws. 

Of course, there's more to the story.

First, let's visit the Michigan defendant.  The guy in question was in the throes of a divorce.  He had suspicions regarding his wife's monogamous instincts.  She kept her passwords in a notebook (dead tree variety) next to a computer that was shared by the couple.  He "hacked" her account by opening the notebook, finding her password and using it to access her gmail account.  Supposedly he found that she was in fact, having an affair with her second ex-husband.  Our hero is hubbie number 3.  Hubbie number 2 (the one now getting the action) had been convicted of beating the wife in question in front of her child (the progeny of hubbie number 1).  Still with me?  Our hero (hubbie number 3) was concerned about the possibility of continued abuse and took the information he found to hubbie number 1.  The wife, of course, found out, contacted the prosecuting attorney and hubbie number 3 (our hero) is now charged with violating the following statute:

"A person shall not intentionally and without authorization...Access a computer, computer system or computer network to acquire...or otherwise use the service of a computer program, computer, computer system or computer network."  Michigan Statute 752.795

The prosecutor's justification is that the defendant is a computer technician and he used his "skills" like a hacker to access the e-mail.  Violation of this statute in Michigan is a felony with a potential jail term of five years.

What of Apple and the Pimple Poppers?

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Partner And Business Cards Make The Social Scene

Our esteemed partner, Luke Stanfield, doing his best to further the social scene in Austin was noted and photographed recently in Out And About, a very informative daily feature in The Austin American Statesman.  The online version is cited above and the print version appeared in last Sunday's paper.  He is shown with our good friends Jude Galligan and Amber Gugino, who are the proprietors of the best blog relating to downtown Austin real estate, the Downtown Austin Blog.

Luke is also credited with introducing Michael Barnes, the columnist, to our business cards, which incorporate a QR code.  The code on our cards, shown here,

will take you to our Google page, website and blog when scanned with an appropriate program on a mobile phone.  Try it on screen here with your magic phone.  Just one more indication of our cutting edge approach to practice.

Oracle vs. Google, Godzilla vs. Mothra, Perseus vs. The Kraken and other Titanic struggles

Consider this abbreviated time line:

November 5, 2007 - Google, T-Mobile, HTC, Qualcomm and Motorola announce the release of Android and announce the creation of The Open Handset Alliance comprised of 34 companies that will free the mobile world of all restrictions (the last part is made up).  Nowhere in the announcement does Java get mentioned.

Same day (almost like they knew it was coming) - The Chairman and CEO of Sun (possessor of Java) heartily congratulates Google et al on the release of Android and hails the salutary effect it will have on the Java community.  The blog entry goes out of its way to call Android a "Java/Linux phone platform" and "a Java based platform".

April 20, 2009 - Oracle buys Sun.  In the press release announcing the sale, Oracle calls Java "the most important software Oracle has every acquired."

 August 12, 2010 - Oracle files suit against Google alleging "In developing Android, Google knowingly, directly and repeatedly infringed Oracle's Java-related intellectual property. This lawsuit seeks appropriate remedies for their infringement."

Now what happens?  Google will claim that they aren't using Java but built their own version of this platform called Dalvik using approved clean room methods and therefore haven't infringed on anything.  Google hasn't filed an answer yet and probably won't for some time.  Then the fun will start.  This has the potential to be a very visible and influential suit with ramifications for years to come.  Google is not likely to be the last company with Defendant after their name in this matter.  There are millions and millions of devices with Android running on them.  Plus it involves some heavyweights.

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"Wait! I deleted that. You can't see that! "- Computer Privacy and Data Recovery in the Age of Computer Forensics

In talking to our clients, our friends and the public at large, there seems to be a lot of confusion, misinformation, urban myths and lore surrounding the amount and kinds of data and material that is deposited on computer drives and that can be retrieved even though the user thinks that he has deleted it or covered it up. And by computer drives, we mean any electronic storage device including computers, flash drives, cell phones, DVRs, etc.

To attempt to get real live reliable answers to some of these questions, we turned to some local subject matter experts, Flashback Data. Flashback Data’s website is here. They were kind enough to lend us the expertise of Will Ambruzs, an attorney who is charge of the Forensics Division of Flashback Data.

ATLB: Will, please describe the services that Flashback Data can provide, particularly to an attorney involved in litigation.

FBD: Probably the best known aspect of forensics is the storytelling. A man dies mysteriously and the forensic examiners conduct two autopsies – one on the corpse, and one on the home computer. Toxicology confirms the man died of ethylene glycol poisoning (antifreeze). Forensic testing of the computer recovers 76 previously deleted Google searches made by his wife over the course of seven weeks for things like “symptoms of ethylene glycol poisoning,” “ethylene glycol toxicity” and “C2H6O2 ingestion and death.” That’s a compelling story.

Other times our involvement is less about developing evidence and more about logistics. For example, we’re commonly retained by attorneys to help identify all the places relevant information is likely to exist in a complex technical landscape, or to develop evidence collection strategies that minimize the impact on their client’s business.

Candidly, there’s quite an air gap between law and technology. At the end of the day, when it comes to electronic evidence, we’re the guys who fill it. Our case managers are attorneys and our forensic examiners are technologists with deep court room experience. We’re not vendors. We take pride in giving our clients access to the highest caliber forensics testing in the industry, and we’re presently the only private sector laboratory in the world accredited for digital forensics by the American Society of Crime Laboratory Directors under their International standard – same as FBI and DEA.

ATLB: That sounds like a lot more stuff than we can cover in one setting. Let’s discuss some general topics about what kind of data can be recovered and from which devices, and then, hopefully follow up with another session where we delve into some of the more complicated problems of forensic discovery and data retrieval.


ATLB: I will give you some topics and you tell me how hard it is to recover this data:
• Internet history from a computer
Internet history is one of the most persistent types of data on the computer. It’s not uncommon for us to recover every URL visited on a computer from the time you first took it out of the box.
• Deleted videos from a DVR
It depends. If the DVR entries were manually deleted, the chance of recovery is high if the device can be forensically imaged before the data is overwritten. Many DVRs are set to overwrite data after a period of time, or when the device is near the limit of its full hard drive capacity. Overwritten data is unrecoverable. By anyone.
• Text messages from a cell phone
Candidly, it depends on the make and model of the phone and how the phone is used. That said, we are still seeing a strong trend of users adopting smartphones like the Blackberry or iPhone. One common thing folks do with smartphones is sync them with a computer. This creates backup files on the computer which, depending on when the backup was created, may contain data that is long gone from the phone. Alternatively, smartphones are essentially small computers, and often their data can be recovered in the same way we recover hard drives.
• Instant messages like gmail chat or AIM
These may be recovered from log files saved to the computer. Difficulty is a function of time. Bottom line is if the data you want gets overwritten with new data, it’s gone.
• Facebook messages or postings
One avenue of recovery is to extract these from internet history. Often this gives us multiple clues as to the content and recipients, and we can use the information to go looking for “shadows” of similar activity. Another thing we can do is attempt to recover the confirmation emails Facebook sends when new entries are made on a user’s wall or new messages are received.
• Twitter tweets on a cell phone or computer
This type of data generally fall into the same category as internet history and internet cache. The content itself will be recoverable for some time (until it is overwritten) and we can extract a fair amount of data simply by looking through the internet history.

• Standard files on a computer hard drive
In answering this, assume that the user has used the commonly available delete function available to the standard user.

FBD: Understanding the recovery of deleted files on a hard drive requires some understanding of how files are stored and referenced. A good analogy once provided to me is that of a school library. If we think of the hard drive as the library, then the files are analogous to the books on the library’s shelves. In a library, a book’s location is referenced in the card catalog. In a Windows environment, a file’s location on the hard drive is referenced in the Master File Table. When we delete a file, we’re not destroying the file’s data. Instead, what happens is the file’s location is marked in the Master File Table as being available to use for new data storage. That’s like pulling a card out of the card catalog and throwing it away – the reference to the book is gone, but the book is still sitting on the shelf (at least until someone takes it down and replaces it with a new book).

Having said all that, “recovering” the deleted file is like walking around the library from shelf to shelf and taking inventory of every book. At some point, we’d learn that there is a book sitting on a shelf in a space that’s supposed to be empty. And we’d find and recover the book.

In addition to above, there are multiple other ways to attempt to recover deleted files, such as through backup copies, temporary copies and/or copies embedded in another data file (e.g., a file attached to an email in an Outlook data file). These are all potential recovery routes.


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App Developers Need to Pay Attention to the DMCA Ruling on Jailbreaking the iPhone

A recent ruling by the Library of Congress on the Digital Millennium Copyright Act (DMCA) resulted in large changes for cell phone users. The Copyright ruling spoke to several issues on circumvention, but for our discussion today, we shall discuss jailbreaking. Jailbreaking is the process of bypassing cell phone software allowing the user to purchase cell phone applications other than ones required by the cell phone manufacturer (here’s some info on the subject). This ruling has large implications in the app development community and could change the face of apps and cell phones … or according to others - do nothing.

First, when I was discussing this with some friends of mine the first question most had was, “Say what?! Why is the Library of Congress speaking on jailbreaking and who gave them authority? How is jailbreaking a Copyright issue?” So before I go into an analysis of the ruling, a quick rundown of the logistics of this might be in order.

The Library of Congress governs the United States Copyright office (it’s actually a division of the Library of Congress), and as such the Librarian of Congress discusses certain rules from time to time. Okay?! But this still doesn’t answer why this is a Copyright issue. In 1996 there were treaties passed by the World Intellectual Property Organization (WIPO), and the DMCA is the implementation of those treaties. These treaties covered several aspects of IP law, but for this post the relevant area of the treaties implemented into the DMCA dealt with the prohibition of circumvention of technology measures that control access to copyrighted works. In other words, this gave the Copyright office the ability to govern technologies on cell phones that protected copyrighted works, such as applications. As a result, the Librarian of Congress can determine if things such as jailbreaking of phones should be legal or not.

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Love the iPhone but Hate AT&T?

Do you love your iPhone but despise the spotty problems that come with AT&T's service?  Well, you may have to wait awhile longer.  As we discussed previously, the FTC complaint that Adobe filed against Apple in regards to its alleged anti-competitive practices forced Apple to admit in a pleading that the original exclusivity agreement with AT&T was for five years; lasting until 2012. 

Now, many caveats apply.  Foremost is that these agreements are frequently re-negotiated, and it's quite possible that is the case here.  Industry experts are speculating that the deal was probably re-negotiated since the iPad comes with a below market rate data plan with AT&T.  That's tough news for companies like Verizon (the mobile carrier with the highest customer satisfaction ratings) who has been itching to get into the iPhone service provider game. 

So where does that leave us?  We will most likely find out more at the World Wide Developers Conference starting June 7 where Apple has unveiled previous iPhone incarnations.  Stay tuned.