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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.

 

Supreme Court: If You Possess Any Child Pornography, Do You Owe the Victim Restitution?

The case of Paroline v. United States will be argued before the U.S. Supreme Court today.  This is one of those cases where emotions are appropriately high but ultimately court observers may find that the Court may dryly rule upon statutory construction issues… meaning grammar.  But this case highlights a law which many internet viewers may not know about — a statute which says if a person possesses child pornography, that person owes restitution.  Even if it is just two images.scotus

In Paroline, a minor named “Amy” was abused by her uncle who then spread images far and wide across the internet.  Under the Mandatory Restitution for Sexual Exploitation of Children Act, a victim is entitled to restitution.  “Amy” has apparently filed nearly 150 claims in cases where her images in evidence and has obtained orders in her favor between $100 and $3.5 million dollars.  Of note, there appears to be no support for the uncle or a defendant who had 30,000 child pornography images on his computer — at the U.S. Supreme Court, there’s more than a dozen amici briefs and none support the defendants.

A “single violator” could be hit with a joint-and-several award for the full amount of the victim’s losses.  Indeed, it appears that victims can receive more than one award of their total damages (presumably, the chance of getting paid on these is low although Amy has reportedly collected $1.5 million over the years).  In short, someone found with even a small amount of child porn images could find it costing millions.  To wit, defendant Paroline had two (2) images of Amy on his computer and faces a $3.4 million award.

The dispute arises from interpretation of the statute.  The Act calls for a mandatory restitution order if someone is found guilty which is “the full amount of the victim’s losses.”  Section 2259(b)(1) lists off six types of losses (e.g., medical, therapy, various expenses, income, and fees) and that list ends with “any other losses suffered by the victim as a proximate result of the offense.”  Thus, the question is whether the “proximate result” requirement applies to ONLY the last item or does it refer to the entire list (incidentally, “proximate result” is synonymous with “proximate cause”).  This triggers what is called The Rule of The Last Antecedent (or Last Antecedent Rule).

But policy is an important factor.  On the one hand, victim advocates claim that a proximate cause requirement would be difficult, if not impossible (Amy apparently met that burden using a psychologist expert).  Moreover, the law is premised upon the public policy that viewing such images is damaging to the victim and perpetuates production of child pornography.  In short, if the law can eradicate the interest, it may decrease victimization.

The argument for defendants is that someone who, perhaps unaware that the image depicted minors, could be found guilty and hit with a large restitution award; to that end, the suggestion is that criminal statutes should be extremely clear and that a “proximate cause” requirement is befitting traditional tort elements.  Such policy arguments may or may not rule the day on this statute interpretation question.  It is conceivable that a strong public policy exists but the statute was simply not written correctly.

A Constitutional issue arises as to whether this is an excessive fine under the Eighth Amendment (e.g., someone possesses one or a few images but is hit with a million dollar award).  The Fifth Circuit was unpersuaded that this was even a punishment since it is “restitution” and not “punitive.”  Alternatively, that court held, “while the imposition of full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography.”

Fifth Circuit opinion is here.

SCOTUSBlog has all the pleadings here.  And a nice summary.  Their live blog of the oral argument is here.

Webinar: Electronic Spying and Tracking Spouses in Divorce Cases: What’s Legal in the Digital World?

Come join us via the internet in a 1.5 hour webinar about spying, surveillance, GPS monitoring, keylogging, and other privacy invasions which occur in the context of divorce cases.

While this is discussed in the context of divorces, these tips and techniques arise in our personal and professional lives, regardless of your practice.

Early registration is less than $100 and is here.

Learn about my co-presenter, Harry Gornbein, at his website.

Thanks to the the folks at Stafford Publications for inviting me.

US Supreme Court Denies Cert in Osama Bin Laden Burial Photos

On January 13, 2014, the U.S. Supreme Court denied cert in the case of Judicial Watch v. Department of Defense and Central Intelligence Agency (scroll down to page 5). scotus

This case arose from a FOIA request for photos and/or video of Osama Bin Laden corpse and burial at sea.  The Obama Administration and CIA both claimed that these images were top secret and exempt.  The government argued that the photos were “very graphic” and would inflame international attentions.

This case brings up an interesting issue with FOIA requests.  Here, Judicial Watch tried to use speed as leverage by FOIA’ing the images the day after President Obama announced the death of Osama Bin Laden.  The hope was that the images were not classified top secret by the time that the FOIA was received.  Incidentally, the DOD had no images and the CIA indicated it had 59 images (some media reports incorrectly report 52 images).

But, in this FOIA-race, the CIA had marked the images as top secret except it was done by someone at the Agency without full authority (derivative classification).  During the course of litigation, the CIA supplemented its position by filing various declarations that the images were appropriately classified and giving reasons for the same.  Judicial Watch claimed that, procedurally, it was too late.

Both the trial and appellate courts held otherwise.  While there was some minor criticism of the CIA’s response, the Court held that the initial classification was ratified and thus procedurally acceptable.  Substantively, the explanations for the classification were deemed “plausible” and “logical.”

At least in this case, there is no ruling on whether a speedy FOIA request received prior to a document’s classification might require disclosure even if the document is later deemed classified.  However, since both courts approved the CIA’s method of ratifying classification, it is not encouraging that a “race to the courthouse” approach will apply to quick-witted FOIA requesters.

For those interested in the underlying documents, see the CIA’s Response to the FOIA Request.

For the legal arguments and court opinions, see the Petition of Cert, which includes (1) the U.S. Court of Appeals for the District of Columbia’s May 2013 per curiam opinion (page 23 of PDF) and (2) the underlying April 2012 summary judgment memorandum opinion from the U.S. District Court for the District of Columbia (page 41 of PDF).

In short, SCOTUS’ denial of cert means that the May 2013 decision stands.

Meanwhile, yes, one can do a Google search for alleged photos of Bin Laden’s dead body, but those appear to be fake.

What is a “Trade Secret” in Florida Discovery? (the existence of free cable tv, apparently)

What’s a “trade secret” for discovery objections and what are the steps for trial court review?

In Bright House Networks, LLC v. Albert C. Cassidy et al. (Florida Second District, Jan. 10, 2014), we learn that at least one cable TV provider apparently provides free service to “a significant number of recipients.”  Moreover, the list of those customers was claimed to be a trade secret.

How does a party raise a trade secret objection?  And what steps are required to overcome it?

In Bright House, the Second DCA held that referencing “trade secrets, confidential, and/or proprietary business information” was sufficient language to preserve the issue.

Consistent with Florida Statutes 90.506 (privilege against disclosure of trade secrets), a  trial court should take the following steps:

1.  Determine if the requested information is a “trade secret” per Florida Statute 688.002(4).  This is usually done via an in camera inspection.  A customer list can be a trade secret.  Here, the Second DCA admitted that an in camera inspection of a list of names/addresses might not be helpful.  That said, a hearing (and evidence) might be needed to determine whether the compilation of information is confidential and that the company acquired it through the pursuit of its business strategy and course of confidential negotiations.

2.  Determine if the requesting party has shown reasonable necessity.  This includes limiting production to items necessary for a court to determine contested issues.

3.  Order safeguards, as needed.

 

No Social Media Privacy for Alleged Colorado Theater Shooter

Defendant James Eagan Holmes, the alleged Aurora, Colorado movie theater shooter, sought to suppress records obtained from two “dating” sites, Adultfriendfinder.com and Match.com (to be clear, the former is for “sex and swinger personals”).

TMZ.com apparently broke the story that Holmes, using the alias “classicjimbo,” had a picture of himself with red hair and a comment, “Will you visit me in prison?” homles

Some site photos and a CNN segment can be seen here.

Holmes’ lawyers argued to supress his profile records and subscription records.

The defense argued that the profile and subscription records were private.

As readers of this site well know, there is no reliable precedent that social media content is per se protected by privacy rights.

Applying the Katz “expectation of privacy” standard of 4th Amendment analysis, the court held that there was no societal expectation of privacy to the Defendant’s social media profile since it was accessible to the public.  In fact, the tagline “will you visit me in prison?” suggests that the writer anticipated it would be viewed by third parties.

Likewise, the subscription information amounted to content which the defendant voluntarily turned over to third parties (namely, those two sites).  This would include his billing and personal information as well as his IP address.

Unquestionably, the tagline about prison, if admissible, would be an indicator of forethought.  Likewise, the IP address information would tie the content back to the Defendant’s computer.

The November 7, 2013 Order Regarding Defendant’s Motion to Suppress Evidence: Records from Match.com and Adult Friend Finder.com (D-117) is here.

 

 

 

Lawyer’s Guide to iOS7 (part 2)

Enjoying a little free time around the holidays or did you just get an new Apple device?

This is the second in a series on the new Apple iOS7 operating system for iPhone and iPad.

Since Apple doesn’t provide you with instructions, these two single-page articles will get you working like a pro.

The first article is here.  Part 2 is here.

Spying Spouses: Social Media & Divorce / Family Law

 

Thanks to the Palm Beach County Bar Association’s Family Law CLE Committee for inviting me to speak at the “Spying Spouses” seminar today.Spying_000006098210XSmall_zps7f1f3d0b

The materials for my section on “Family Law Discovery: Social Media and E-Discovery” is here.

We discussed:

* mistakes that lawyers make in e-discovery and social media discovery;

* protection for lawyers and paralegals on LinkedIn when researching people;

* guidance to your clients on their social media use;

* where to look for social media content in 2013;

* steps to obtain social media discovery and how the courts are handling discoverability;

* sample social media requests; discussion of e-discovery and litigation holds in the family law context; and

* a few helpful apps for family law lawyers.

The cases cited in the materials are here:

Cheryl Young v. Michael Young (Fla. 1st DCA 2012)
Schreiber v. Schreiber, 904 N.Y.S.2d 886 (N.Y. App. 2010)
Davenport v. State Farm, 2012 WL 555759 (M.D. Fla. 2012)
Beswick v. Northwest Medical Center, (Broward 2011)
Levine v. Culligan of Florida, 2013 WL 1100404 (Palm Beach 2013)
Salvato v. Miley, 2012 WL 2712206 (M.D. Fla. June 11, 2013)
German v. Micro, 2013 WL 143377 (S.D. Ohio 2013)
Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. 2011)
Juror Number One v. Superior Court of Sacramento (CA. App. 2012)
In Re White Tail, 2012 WL 4857777 (E.D. La. Oct. 11, 2012)
EEOC v. Original Honeybaked Ham,  (D. Colo. Nov. 7, 2012)
Perrone v. Lancaster Regional Medical Cntr. (Pa. 2013)

 

2013 Apps for Florida Lawyers (DBR Law Tech Miami)

Special thanks to the Daily Business Review and ALM.com for inviting me to speak at Law Tech Miami.cbh

You can view my 50 (or so) best apps for Florida lawyers here.

Lawyer’s Guide to iOS 7 (part 1)

If you have an iPhone or iPad, you are likely running the new iOS 7.  But do you really know what you are doing?iOS-7-Concept

Apple infamously omits a lengthy instruction book with its iDevices…  but don’t buy a book.

The Palm Beach Bar published the concise Lawyer’s Guide to iOS 7.

And I’ll let you in on two secrets:  it’s not just for lawyers and… part 2 is coming next month.