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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

The site 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.