All posts | Page 2

What is Bitcoin: Currency, Property or Tulips?

A strange title to an article, I know.  But it will make sense at the end:Bitcoin

Governments around the world are struggling to define, and therefore regulate or ban, virtual currency such as bitcoin.  Here in the U.S., various federal agencies have differing conclusions.  So do various states.

Meanwhile, in the press, bitcoin is incorrectly labeled as an anonymous way to transmit money (it isn’t — law enforcement appears to have no problem tracking bitcoin funds) and it is unfairly associated with alleged criminal activity.  Thus, even the judicial system is making efforts to define bitcoin under various statutes.

This article, What is Bitcoin: Currency, Property or… Tulips?, from the Palm Beach Bar Association, discusses how various federal and states agencies and courts have defined bitcoin.  The reference to tulips comes from the Netherlands — there, in an attempt to define bitcoin, they compared it to their well-known consumer export, tulips!

Of note, the “verdict” comments are my conclusions, often, and not necessarily the final word from the government agencies or courts unless indicated.  Expect changes as we go forward.

Florida Supreme Court Cautions Against “Commercially Available” Pre-Printed Legal Forms

A boring probate opinion may shed light on the problem of errors with pre-printed legal forms.Mad-Libs

The unfortunate lesson: “there’s an app for that” is not a replacement for hiring a lawyer.

You have certainly seen these kind of pre-made forms — pushed on tv ads, the internet, and by office supply stores.  These quickie forms are attractive since (a) they run anywhere from $10 – $100 and involve filling in the blanks and (b) most people don’t know a lawyer who might be able to advise at a reasonable rate.  In this age of online forms and computer programs which help with finances and taxes, it is not surprising that consumers turn to pre-printed legal forms.  But it can be a bad idea.

The March 27, 2014 opinion in James Michael Aldrich v. Laurie Basile may not garner a lot of broad public attention (here’s the one story).  The 19-page opinion from the Florida Supreme Court spills pages of ink outlining statutory analysis going back to the 1800′s — something only a law student or probate lawyer would love.  But let’s see if we can give this lesson a little more attention:

In that case, Ms. Aldrich died with a will she created using an “E-Z Legal Form.”  She left everything to her brother.  After she created the will, she inherited more property.  But the will did not include a “residuary clause” which is a typical “catch-all” which essentially says, “any other property I haven’t mentioned or may get in the future goes to [person].”  Thus, when she died, all the property which she listed in the will went to her brother.  Fine.  But there’s a catch.  The “new” property passed as if she never had a will because the E-Z Legal Form was silent about any residual / new property.  So someone else got it.  In short, people spent a ton of money litigating to the Florida Supreme Court and Ms. Aldrich’s “true intent” may not have been followed because “it was not her stated intent in the will.”

The “kicker” is in Justice Pariente’s concurrence:

“This unfortunate result stems not from this Court’s interpretation of Florida’s probate law but from the fact that Ms. Aldrich wrote her will using a commercially available form, an E-Z Legal Form, which did not adequately address her specific needs — apparently without obtaining any legal assistance.  This form, which is in the record, did not have space to include a residuary clause or pre-printed language that would allow a testator to elect to use such a clause.”

Bottom line: contracts, terms of service, and your estate planning documents are not one-size fits all.  I’m sure this sounds like lawyers trying to garner business.  More likely, it is simply a little frustrating to lawyers since it is an easy / inexpensive problem to avoid.  Life is in the details.  The law lives in the details — which sometimes change.  Make sure you get your details right.  And make sure, every once in a while, your documents are still up to date.  Turn to the Florida Bar, Avvo, or some resource to find a local lawyer in your area who can at least double check your personal or business forms.

If This Then That (IFTTT) For Lawyers

An app called “If This, Then That” or IFTTT exists to bring together your smartphones alarms, notices, social media, and other internet tools so that you can, as their tag line says, “take control of the internet.”photo

This article, “If This Then That (IFTTT” For Lawyers” explains how to combine your various internet resources into one app to bring the internet to you.

The link for the iPhone and Android versions of IFTTT are here.

NSA Mass Surveillance – How Secure Are Your Calls and Emails?

Special thanks to the Palm Beach Chamber of Commerce for hosting “NSA Mass Surveillance – How Secure Are Your Calls and Emails?eyes

If you would like to download a PDF of the presentation, it is here (also under “Materials, along the right column of this page).

NSA Surveillance – How Secure Are Your Calls & Emails @ Palm Beach Chamber of Commerce

 

The Palm Beach Chamber of Commerce is presenting “NSA Surveillance – How Secure Are Your Calls and Emails?” on Wednesday, April 30, 2014.Chamber-of-Commerce-of-the-Palm-Beaches

This presentation will explain NSA mass surveillance of email and phone communications and will discuss the security of your personal and business communications.

It will provide a clear summary of

- Edward Snowden disclosures

- two federal court decisions, and

- explanation of FISA/FISC.

We will explore the following issues:

- are my communications secure from the NSA?

- are my communications reasonably secure for business purposes?

- are changes in the laws expected?

Registration is here.

Tor Anonymizer for Lawyers

In the wake of the Snowden disclosures, lawyers and their clients are looking for ways to communicate, research, and generally use the internet without mass surveillance.Tor_logo1

This article from the April 2014 edition of the Palm Beach Bar Bulletin explains (a) Tor and its practical applications to use the internet anonymously and (b) two recent cases, U.S. v. Kim (Harvard bomb-threat case), and U.S. v. Post (location metadata lead to child pornography arrest).

The article also discusses: What is Tor and Is It Legal?  Why Do I Need to Be Anonymous?  Why Don’t We Use Tor as a Default?  Can’t the NSA Already Crack Tor? Lessons from Mr. Kim and Mr. Post.

Accepting E-Coupons or Liking General Mills May Require Arbitration, Waive Litigation

If you use a coupon from the internet, “like” a company on Facebook, enter contests, or otherwise connect with a company like General Mills, any dispute that arises may be forced into arbitration — waiving your right to bring a lawsuit in state or federal court.binding-arbitration

Per a report from the New York Times (“When ‘Liking’ a Brand Online Voids the Right to Sue“), General Mills has changed its Privacy Policy (here) noting that its Legal Terms now require all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration.”

The report points to a list of other companies (here) which have similar terms of service including banks/financial service, cable/satellite, and phone providers.

The article points to the 2011 U.S. Supreme Court decision, AT&T v. Concepcion (here), as the authority which allows companies to force consumer suits into arbitration and further permits arbitration clauses to bar class certification.

 

CSBS Emerging Payments Task Force: Hearing on Bitcoin / Virtual Currency

The Conference of State Bank Supervisors’ (CSBS) Emerging Payments Task Force is holding a public hearing on Friday, May 16, 2014 in Chicago in order to seek information involved in legacy payment systems, retain payment innovations, and virtual currencies (namely bitcoin).Bitcoin-btcbible

If you’re unfamiliar with CSBS, it is a nationwide organization of banking regulators from all 50 states, DC, and several territories.  These state banking departments regulate a variety of non-bank financial services providers, including mortgage providers.  Bitcoin exchange and ATM operators should be familiar with these state departments since they issue the money transmitter licenses required in most jurisdictions.

The Task Force is studying changes in payment systems (retail, electronic, and otherwise) in order to assess consumer protection and applicability of state law.  The Task Force specifically intends to “to understand how new entrants and technologies affect the stability of payment systems and the broader financial marketplace and to develop ideas for connecting the emerging payments landscape to the financial regulatory fabric.

For details the Task Force hearing notice is here and the press release is here.  Register to be a speaker here.

 

2013 Florida Discovery Handbook

A reliable resource for all discovery issues, the 2013 edition of the Florida Discovery handbook includes a chapter on e-retention, e-discovery, ESI, and Florida’s new Rules of Civil Procedure.

The Handbook is here.

Conflicting Court Opinions on NSA Surveillance

One year ago, the U.S. Supreme Court issued the case of Amnesty International v. Clapper and… few people cared.obama-shepard-fairey-nsa-prism-1

After all, “Clapper I,” as it became known, held that political activists had no standing to even discover if the government was spying on them.

But four months later, the floodgates opened with the Snowden disclosures that everyone was under mass surveillance.

This article, from the February 2014 Palm Beach Bar Bulletin, explains the basic origin of the NSA’s bulk telephony surveillance as well as the two conflicting court opinions in ACLU v. Clapper (“Clapper II”) and Klayman v. Obama (“Klayman I”).

iPhone Apps for Mardi Gras — Or for Fastest Breaking News

Last year, after the Boston Marathon Bombing, I wrote about my experience reading Twitter and listening to Ustream to get news on the manhunt which was coming in 10-30 minutes faster than it reached CNN.  A year later, the article is still solid and gives some good resources to say ahead of breaking news (here).images

But let’s turn, momentarily, to a fun diversion.

Mardi Gras has arrived and, if you are going to the parades, you need this GPS-enhanced parade tracker.  Local News 4 WWL has improved this app over the years and the current version looks solid.  Turn on your iPhone auto update to make sure the app has the latest info as it gets updated quite a bit during the parade season.  App is free and here.

Back to business.  Maybe your practice involves law enforcement and developments in your area.  Or you heard about an event in another city and want to get the police scanner stream.  Ustream is an option but Scanner Radio Deluxe seems to have the edge.  Select scanner feeds nearby or by city name (e.g., I can follow local Palm Beach as a favorite and search for NOPD when I get there).  Creates a favorites list for easy access and even have the app notify you if a particular stream gets a lot of listeners (suggesting there’s breaking news).  Hopefully we won’t need it at Mardi Gras.  App is here and free.

Are You a Victim of Revenge Porn?

Revenge porn may or may not be prosecuted in your state, depending upon how they were obtained, whether copyrights exist, and if a video voyeurism statute applies.camera

The site WomenAgainstRevengePorn.com has some step-by-step hints to remove photos.

If you have a copy of the nude picture, you can use Google’s “Search by Image” in order to reverse-look-up what sites are posting your photo.

Government GPS Tracking Since U.S. v. Jones

The Supreme Court’s 2012 decision in U.S. v. Jones involving GPS tracking is trending towards being a landmark decision in how the Court interprets the Fourth Amendment in technology cases.  dart

But what has happened to GPS tracking since the Jones decision?

This February 2014 article from the Palm Beach Bar Bulletin explains three cases from 2013 and the lingering four issues since Jones.

For comparison, see our pre-opinion analysis from 2011 in “U.S. Supreme Court, GPS Darts, and George Orwell.”

Using an iPad in Deposition

We see lawyers using iPads during depositions quite often… except they are not the ones asking questions since they are using the iPad to pass the time.

This article, from the January 2014 Palm Beach County Bar Association Bulletin, will explain how to question a witness using your iPad and two free apps to create better exhibits.

Florida Judge Disqualified After Facebook-Friending a Litigant

A Florida judge has been directed to recuse herself by an fbappellate court after the judge sent a Facebook-friend request to a party during divorce proceedings.

Specifically, Judge Linda D. Schoonover was presiding over a divorce and, prior to entry of a final judgment, sent a Facebook-friend request to the wife.  Upon advice of counsel, the wife declined to respond.  “Thereafter, the trial court entered a final judgment of dissolution, allegedly attributing most of the marital debt to Petitioner and providing Respondent with a disproportionately excessive alimony award.”  The trial judge denied a motion to disqualify.  A writ was taken and the appellate court reversed.

The Fifth District held, in Sandra Chase v. Robert Loisel, Jr., that:

“[i]t seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor. The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request.”

Interestingly, the Fifth DCA took issue with the Fourth District’s decision in State of Florida v. Domville that a judge’s Facebook “friendship” with an attorney was also grounds for recusal:

“We have serious reservations about the court’s rationale in Domville. The word ‘friend’ on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook ‘friend’ and any other friendship a judge might have. Domville‘s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.”

In Florida, there is a Judicial Ethics Advisory Committee opinion on judges and Facebook as well as another opinion about judicial assistants and Facebook.