MIRLN—- 8-28 Oct 2017 (v20.15)

MIRLN—- 8-28 Oct 2017 (v20.15)—- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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ANNOUNCEMENT | NEWS | DIFFERENT | RESOURCES | LOOKING BACK | NOTES

ANNOUNCEMENT

The new Second Edition of the ABA’s best-selling Cybersecurity Handbook is a must-read for anyone working in the field, including private-practice attorneys, in-house counsel, non-profit and government lawyers, and others. For more detail, visit the ABA store at http://bit.ly/2x7HNbJ. A pre-release review of the Handbook is here: ABA urges lawyers to adopt encryption, other cybersecurity practices in latest ‘handbook’ (Inside Cybersecurity, 24 Oct 2017).

NEWS

Framing the Museum GitHub Repository (Berkman Klein, 5 Oct 2017) - When we use information, we need to understand what we’re looking at. We do this by framing that information - sharing new details about what it is and how we can use it. For museum collections that connect data points across centuries of artworks and objects, institutions are turning to new tools to share and communicate that data. Here, we can look at four institutions using GitHub as a platform to share collections data - the Metropolitan Museum of Art, Museum of Modern Art (MoMA), Cooper Hewitt Smithsonian, Design Museum, and the Tate collection - as an opportunity to parse current practice in this area. GitHub is a platform for sharing and collaborating on code repositories. In a GitHub repository, the README functions as an overview of the repository and its contents. In the museum context, the README may act as a guide for how institutions have chosen to share their collections data. In identifying what information is commonly included in the README, we can map commonalities in which elements institutions have selected to frame and contextualize their collections data. * * * top

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Jeff Koons’ augmented reality Snapchat artwork gets ‘vandalized’ (TechCrunch, 8 Oct 2017) - Earlier this week, Snapchat launched a new augmented reality art exhibiting feature as part of a collaboration with the artist Jeff Koons. ART, as it’s called, will plaster the digital artwork and sculptures of artists into geo-tagged physical locations across the world that viewers can see as a Lens inside the Snapchat app. There has already been a backlash by some in the artistic community who are skeptical of corporations “putting up” digital art that they could potentially monetize wherever they would like. As a way to spark the conversation, earlier this week a group of New York-based artists mocked-up a “vandalized” version of Jeff Koon’s AR Balloon Dog. To be fair, this is a patently 2017 issue to have, but also one that we will definitely have conversation build around it as we question the ownership of physical digital locations. The group didn’t hack Snap’s servers to vandalize the sculpture, the work is more simply a 3D digital recreation of the work placed on top of a photo of the same geo-tagged location as Koons’ work. Graffiti artist Sebastien Errazuriz sought to raise some interesting questions with the work done with Cross Lab Studio, positing whether augmented reality experiences should be governed by similar rules to those renting out physical spaces. On an image of the vandalized artwork, he added more questions: Should corporations be allowed to place what ever content they choose over our digital public space? Central Park belongs to the city of NY. Why should corporations get to geo-tag its gps coordinates for free? We know they will make money renting gps spots to brands and bombard us with advertisement. They should pay rent, we should choose to approve what can be geo-tagged to our digital public and private space. These debates might be a few years ahead of their time, but as augmented reality grows less gimmicky and more monetizable, advertising in public space could grow to be a major industry. It’s interesting to see artists looking to the government to regulate public companies creating art platforms, but it also shows the hesitation many are feeling to the manner in which tech companies are looking to mesh the digital world onto public physical locations with AR tech. top

Court dismisses FTC’s unfairness claims against D-Link (Crowell & Moring, 6 Oct 2017) - Earlier this month, the Northern District of California dismissed FTC’s unfairness claims against D-Link, a manufacturer of routers and IP cameras, while allowing most of FTC’s claims rooted in deception to survive, suggesting that traditional false advertising actions may be FTC’s most effective means of addressing suspect data security practices. Further, the Northern District of California’s decision to dismiss the unfairness claims shows this court’s unwillingness to entertain data security actions rooted in the FTC’s unfairness prong, without concrete harm. FTC filed suit against D-Link in January of this year, alleging that the company engaged in both deceptive and unfair practices based on D-Link’s claimed flimsy data security practices. Specifically, the FTC alleged that D-Link engaged in deceptive practices by marketing sophisticated and state-of-the-art security provided with its products, while simultaneously failing to protect users from “widely known and reasonably foreseeable risks of unauthorized access.” For example, D-Link touted that its products featured “the latest wireless security features to help prevent unauthorized access” and offered the “best possible encryption.” But in practice, according to FTC’s pleadings, D-Link failed to take “easily preventable measures” against “hard-coded user credentials and other backdoors.” And, the Northern District held, these accusations were sufficient to plead a deception claim under the FTC Act. However, where the company did not specifically market its data security practices, its advertising was not deceptive - such as in a brochure where D-Link described the camera as a “surveillance camera” for the “home or small office.” Indeed, where D-Link did not refer to its digital security, the court would not imply messages about the state of that security. Notably though, the Northern District dismissed FTC’s claims that, because D-Link failed to provide adequate data security, it engaged in unfair practices. Specifically, the court found that, because the FTC could not plead actual harm, it had not sufficiently pled a violation of the FTC Act. FTC was unable, the court noted, to show any “monetary loss or an actual incident where sensitive personal data was accessed or exposed.” It was not enough to plead that D-Link put customers at risk. The Northern District did not, however, completely close the door on potential unfairness claims against D-Link. Choosing to dismiss the claims without prejudice, the Northern District noted that “f the FTC had tied the unfairness claim to representations underlying the deception claims, it might have had a more colorable injury element.” Accordingly, where a company does not make affirmative representations about its data security practices, a court will likely be reluctant to find a violation of the FTC Act without concrete injury. top

DoD issues guidance for compliance with cybersecurity regulations (Holland & Knight, 6 Oct 2017) - The U.S. Department of Defense (DoD) published in 2016 a new Defense Federal Acquisition Regulation Supplement (DFARS) provision and two clauses covering the safeguarding of contractor networks. The final DoD clauses are DFARS 252.204-7008, “Compliance with Safeguarding Covered Defense Information Controls,” and DFARS 252.204-7012, “Safeguarding Covered Defense Information and Cyber Incident Reporting.” To comply with the rule, contractors must meet the standards set forth in the National Institute of Standards and Technology Special Publication 800-171 (NIST SP 800-171), “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations,” not later than Dec. 31, 2017. On Sept. 21, 2017, the Office of the Under Secretary of Defense provided guidance to DoD acquisition personnel concerning implementation of the NIST SP 800-171 standards. * * * top

Publishers take ResearchGate to court, alleging massive copyright infringement (Science Magazine, 6 Oct 2017) - Scholarly publishing giants Elsevier and the American Chemical Society (ACS) have filed a lawsuit in Germany against ResearchGate, a popular academic networking site, alleging copyright infringement on a mass scale. The move comes after a larger group of publishers became dissatisfied with ResearchGate’s response to a request to alter its article-sharing practices. ResearchGate, a for-profit firm based in Berlin, Germany, which was founded in 2008, is one of the largest social networking sites aimed at the academic community. It claims more than 13 million users, who can use their personal pages to upload and share a wide range of material, including published papers, book chapters and meeting presentations. Science funders and investors have put substantial funds into the firm; it has raised more than $87 million from the Wellcome Trust charity, Goldman Sachs, and Bill Gates. In recent years, journal publishers have become increasingly concerned about the millions of copyrighted papers - usually accessible only behind subscription paywalls - that are being shared by ResearchGate users. And on 15 September, the International Association of Scientific, Technical, and Medical Publishers wrote to ResearchGate on behalf of more than 140 publishers, expressing concerns about its article-sharing policies. Specifically, the organization proposed that ResearchGate implement a “seamless and easy” automated system that would help the site’s users determine if an article was protected by copyright and could be legally shared publicly or privately. The association asked for a response by 22 September , noting that its members could follow-up individually or collectively if ResearchGate failed to agree to its proposal. (AAAS, which publishes Science Insider, is a member of the association.) Yesterday, a group of five publishers - ACS, Elsevier, Brill, Wiley and Wolters Kluwer - announced that ResearchGate had rejected the association’s proposal. Instead, the group, which calls itself the ” Coalition for Responsible Sharing ,” said in a 5 October statement that ResearchGate suggested publishers should send the company formal notices, called “takedown notices,” asking it to remove content that breaches copyright. The five publishers will be sending takedown notices, according to the group. But the coalition also alleges that ResearchGate is illicitly making as many as 7 million copyrighted articles freely available, and that the company’s “business model depends on the distribution of these in-copyright articles to generate traffic to its site, which is then commercialised through the sale of targeted advertising.” The coalition also states that sending millions of takedown notices “is not a viable long-term solution, given the current and future scale of infringement. … Sending large numbers of takedown notices on an ongoing basis will prove highly disruptive to the research community.” As a result, two coalition members-ACS and Elsevier-have opted to go to court to try to force ResearchGate’s hand. The lawsuit, filed in a German regional court, asks for “clarity and judgement” on the legality of posting such content, says James Milne, spokesperson for the Coalition for Responsible Sharing and senior vice president of ACS’s journals publishing group in Oxford, U.K. top

Petition to look at former CBS lawyer underscores ethical risks of social media (Inside Counsel, 6 Oct 2017) - After being fired for a controversial Facebook post in the aftermath of the mass shooting in Las Vegas, former CBS lawyer Hayley Geftman-Gold is the subject of a petition calling for the New York State Bar Association to consider whether she is capable of remaining professional in response to a tragedy. This push, which calls for the NYSBA to consider whether Geftman-Gold’s social media post is in keeping with her professional obligations, highlights the ethical risks lawyers face when it comes to using social media, attorneys say. Not long after a gunman in Las Vegas killed more than 50 people and injured nearly 500, Geftman-Gold, who was a vice president and senior counsel of strategic transactions at CBS, posted in a Facebook discussion that she was “not even sympathetic” because “country music fans often are Republican gun toters.” CBS fired her Monday, saying in a statement Friday to Corporate Counsel that the views expressed by Geftman-Gold on social media were “deeply unacceptable to all of us at CBS.” Geftman-Gold, who could not be reached for comment, said in a statement provided to Fox News that she sincerely regrets making the “indefensible post.” The petition, addressed to NYSBA executive director Pamela McDevitt, condemns Geftman-Gold’s “reprehensible and despicable remarks” and calls on the association to “conduct an ethics review of this individual to measure her abilities to remain professional during the response phase of a national tragedy and to censor herself appropriately.” In response to request for comment from McDevitt, Richard Rifkin, special counsel to the NYSBA, told Corporate Counsel that the association has “gotten a number of complaints” about Geftman-Gold. Rifkin added, however, that the NYSBA does not have the ability to discipline attorneys, and so complainants are informed on how “to file a complaint with the appropriate part of the court system.” Currently, Geftman-Gold’s attorney registration record shows no record of discipline. Posted Monday by the Citizens for Judicial Reform, the petition had more than 12,000 signatures as of publication of this article. “The bigger lesson here is people need to think before they post or tweet,” said Ignatius Grande, senior discovery attorney at Hughes Hubbard & Reed, who is also co-chair of the Social Media Committee of the NYSBA’s Commercial and Federal Litigation Section. “Especially as a lawyer, because there are a lot of ethical issues that can come back to haunt you.” The NYSBA’s social media ethics guidelines outline where issues can arise, such as violating rules around advertising or posting confidential information. The guidelines also point to an ethics opinion from the D.C. Bar Legal Ethics Committee in order to make clear that caution should be exercised when stating positions on issues and legal developments on social media platforms that may be inconsistent with those positions of clients. “I think part of what the ethics boards have been dealing with over the last ten years is how to deal with social media, because it really has changed how you apply some of the rules that are out there,” Grande said. “And attorneys are looked at with a magnifying glass or looked at with a higher standard, so it’s important to look before you post.” top

Computer virus hits US Predator and Reaper drone fleet (ArsTechnica, 7 Oct 2017) - A computer virus has infected the cockpits of America’s Predator and Reaper drones, logging pilots’ every keystroke as they remotely fly missions over Afghanistan and other war zones. The virus, first detected nearly two weeks ago by the military’s Host-Based Security System , has not prevented pilots at Creech Air Force Base in Nevada from flying their missions overseas. Nor have there been any confirmed incidents of classified information being lost or sent to an outside source. But the virus has resisted multiple efforts to remove it from Creech’s computers, network security specialists say. And the infection underscores the ongoing security risks in what has become the US military’s most important weapons system. “We keep wiping it off, and it keeps coming back,” says a source familiar with the network infection, one of three that told Danger Room about the virus. “We think it’s benign. But we just don’t know.” top

How Russia harvested American rage to reshape US politics (NYT, 9 Oct 2017) - YouTube videos of police beatings on American streets. A widely circulated internet hoax about Muslim men in Michigan collecting welfare for multiple wives. A local news story about two veterans brutally mugged on a freezing winter night. All of these were recorded, posted or written by Americans. Yet all ended up becoming grist for a network of Facebook pages linked to a shadowy Russian company that has carried out propaganda campaigns for the Kremlin, and which is now believed to be at the center of a far-reaching Russian program to influence the 2016 presidential election. A New York Times examination of hundreds of those posts shows that one of the most powerful weapons that Russian agents used to reshape American politics was the anger, passion and misinformation that real Americans were broadcasting across social media platforms. * * * top

Cyberstalking case highlights how VPN provider claims about not keeping logs are often false (TechDirt, 10 Oct 2017) - When the Trump administration recently decided to gut consumer privacy protections for broadband , many folks understandably rushed to VPNs for some additional privacy and protection. And indeed, many ISPs justified their lobbying assault on the rules by stating that users didn’t need privacy protections, since they could simply use a VPN to fully protect their online activity. But we’ve noted repeatedly that VPNs are not some kind of panacea , and in many instances you’re simply shifting the potential for abuse from your ISP—to a VPN provider that may not actually offer the privacy it claims. Latest case in point: like many companies, a VPN provider by the name of PureVPN has been advertising for years on its website that it keeps no logs of user behavior: “PureVPN operates a self-managed VPN network that currently stands at 750+ Servers in 141 Countries. But is this enough to ensure complete security? That’s why PureVPN has launched advanced features to add proactive, preventive and complete security. There are no third-parties involved and NO logs of your activities .” But when the Department of Justice man by the name of Ryan Lin for stalking, one key component of the case involved using PureVPN logs to track his online activities. * * * top

Host of hacks not raising cyber premiums (iTreasurer, 10 Oct 2017) - Despite the continuing steady flow of news about major companies getting hacked, cyber policy premiums have continued to fall and their coverage broaden as insurers crowd into the space. In fact, the magnitude of cybercrimes only seems to be growing, with recent revelations that all of Yahoo’s three billion customer accounts were hacked, as was Equifax’s 140 million customers, along with Deloitte’s client emails and certain SEC filings. As a result, some cyber insurers have increased underwriting scrutiny for certain risks while others still offer premiums that continue to fall, according to Kevin Kalinich, the global practice leader for cyber risk at brokerage Aon. “We have over 70 cyber carriers out of the US, Bermuda and London. Therefore, despite the recent cyber incidents, unless you are in a ‘high risk’ industry class, because there’s so much competition we’re seeing rates come down,” Mr. Kalinich said. “If you’re buying cyber insurance, now is definitely a good time to buy it.” David Bradford, chief strategy officer and director of strategic partnership development at Advisen, a provider of data, media, and technology solutions for the commercial property and casualty insurance market, said that many companies are currently experiencing reductions between 5% and 15%, a trend that should continue for the immediate future. He said the Equifax breach is unlikely to have a significant impact on premiums, because the company has $150 million or less of coverage, and so is unlikely to drive capacity out of the marketplace. “It will probably cause some alarm among certain classes of buyers, but it’s within the range of what insurers expected to pay,” he said. Premiums remain elevated for companies in industries such as retail and healthcare, which have seen significant breaches in recent years. However, they likely will fall gradually as cybercriminals turn their sights to other industries. The broad downward pressure on premiums fundamentally stems from supply outweighing demand-the 65 insurers Advisen estimates plying the cyber-policy space are chasing after a relatively small pot of premiums, approximately $3.5 billion. Companies can take on upwards of $600 million in coverage, Mr. Bradford said, although brokers must cobble together that capacity using policies from numerous carriers. top

What could Equifax CLO John Kelley have done differently? (InsideCounsel, 11 Oct 2017) - John Kelley, CLO of Equifax, has found himself at the center of the controversy surrounding the recent massive data breach at the company. Former Equifax Inc. CEO Richard Smith spent much of last week testifying before Congress about the massive data breach that has affected some 145 million U.S. consumers . Many grilling Smith questioned the timeline following the discovery of the incursion and wondered how three Equifax executives were able to sell shares totaling close to $2 million just days later. The answers inevitably came back to the company’s chief legal officer, John Kelley III , who along with being in charge of security within the company , is responsible for approving share sales by Equifax executives. Parsing the decisions Kelley made in the aftermath of the breach raises some intriguing issues for the many in-house counsel who must grapple with cybersecurity threats and shows that the story of how Equifax responded to its recent breach is anything but simple. * * * [ Polley : interesting.] top

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What cybersecurity standard will a judge use in Equifax breach suits? (Lawfare, 20 Oct 2017) - Those affected by data breaches now have increasing opportunities to take their claims to court. Last month, in northern California’s federal district court, Judge Lucy Koh upheld the right of victims to sue Yahoo for massive breaches between 2013 and 2016. Victims of the Equifax hack, which impacted millions more than initially reported, are filing dozens of lawsuits. And in another ruling last month, Koh upheld a class of health insurance company Anthem’s data breach victims right to sue for a recently revealed second breach-shortly after Anthem was ordered to pay $115 million to victims and credit-monitors after the first incident. We’ve previously described the role of theories of harm to victims, and the duty of care for companies, as courts iron out standards in data breach litigation. But what happens in court? What standards are judges applying for cybersecurity when deciding these lawsuits? What amount of cybersecurity would have been sufficient, in court if not in practice? In other words, we should assume that because a cybersecurity regime is a series of processes, and because no large-scale entity is impenetrable, breaches can and will happen, even when a company exercises care. So, what standard of care is acceptable? Especially in large-scale operations that hold potential for large scale breaches? The Equifax case may set the high-water mark of weak precautions and bungled incident-response plans, coupled with the intimacy of data and vastness of people affected. But what is the lower limit of acceptable standards for situations that are less clear? (Incidents like the Deloitte hack in September that compromised confidential emails of some of its blue-chip clients.) * * * [ Polley : interesting, and lengthy; ultimately (unsurprisingly) indeterminate; still, a useful exposition.] top

Australian court rules an unsent text message on phone of a deceased man as a valid will (Mashable, 11 Oct 2017) - An unsent message of a deceased man in Australia has been ruled as a valid will. It means he will leave his estate to his brother and nephew as opposed to his son and wife, who he apparently had a difficult relationship with. The decision was handed down by a judge at the Supreme Court of Queensland, following no evidence of any other will created by the deceased man. The man, who tragically took his own life, was found with the phone by his widow in October 2016. The following day, a friend of the widow was asked to look through the deceased man’s contact list to see who should be notified of his death. It was there the unsent text message was found, and a screenshot was taken. ” Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten . A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will ,” read the text message. The widow, who contested the will, sought to rely on the fact that because the deceased man did not send the text message, he didn’t mean it. But the judge in this case, Justice Susan Brown, was satisfied the unsent text constituted as a valid document and the deceased man had made up his mind on where his property would go after his death, due to the words “my will” at the end of the message. Also noted by the judge was the contact between the deceased man, his brother and nephew, prior to his death, and that the text was written close to the date of his death. It was also deemed likely the deceased man intended for the message to be found with him. “In all of the circumstances I consider that the text message was intended by the deceased to operate as his will upon his death,” Brown said. top

Microsoft cloud can now host classified Pentagon data (NextGov, 17 Oct 2017) - Microsoft announced on Tuesday that the Defense Department can host secret classified data in its cloud. The announcement means the Defense Department, the military services, intelligence agencies and their industry partners working within secret enclaves can host classified data in Microsoft’s Azure Government Secret cloud, where they’ll have access to new technologies like machine learning. * * * Secret data is traditionally distributed through a system of computer networks managed by the Defense and State departments called the Secret Internet Protocol Router Network, or SIPRNet. Microsoft’s Azure Government Secret cloud can now host SIPRNet data. top

Federal judge unseals New York crime lab’s software for analyzing DNA evidence (ProPublica, 20 Oct 2017) - A federal judge this week unsealed the source code for a software program developed by New York City’s crime lab, exposing to public scrutiny a disputed technique for analyzing complex DNA evidence. Judge Valerie Caproni of the Southern District of New York lifted a protective order in response to a motion by ProPublica , which argued that there was a public interest in disclosing the code. ProPublica has obtained the source code, known as the Forensic Statistical Tool, or FST, and published it on GitHub ; two newly unredacted defense expert affidavits are also available . “Everybody who has been the subject of an FST report now gets to find out to what extent that was inaccurate,” said Christopher Flood, a defense lawyer who has sought access to the code for several years. “And I mean everybody - whether they pleaded guilty before trial, or whether it was presented to a jury, or whether their case was dismissed. Everybody has a right to know, and the public has a right to know.” Caproni’s ruling comes amid increased complaints by scientists and lawyers that flaws in the now-discontinued software program may have sent innocent people to prison. Similar legal fights for access to proprietary DNA analysis software are ongoing elsewhere in the U.S. At the same time, New York City policymakers are pushing for transparency for all of the city’s decision-making algorithms, from pre-trial risk assessments, to predictive policing systems, to methods of assigning students to high schools. top

Casetext now automatically ‘pushes’ legal research to attorneys (Bob Ambrogi, 23 Oct 2017) - The legal research company Casetext has introduced a feature that monitors an attorney’s litigation dockets for briefs and memoranda from opposing counsel and then automatically delivers a report of case law that is relevant but not included in the document. The feature uses Casetext’s legal research assistant CARA , an analytical tool that automatically finds cases that are relevant to a legal document but not cited in the document. The standard way to use CARA is for an attorney who has received a brief, memoranda or other legal document to upload it to CARA, and CARA then performs its analysis and generates a list of relevant cases that are not mentioned in the document. With this new feature, which Casetext is calling CARA Notifications, Casetext monitors all the PACER dockets in which an attorney has active matters. Whenever opposing counsel files a substantive document such as a brief or memorandum, Casetext retrieves the document, runs it through CARA, and delivers the report to the attorney. “Traditionally in legal research, an attorney gets a brief and then seeks out case law to oppose the brief,” Pablo Arredondo, chief legal research officer at Casetext, explained. “The closest thing there has been to push notification is that some research services let you track a case or track a search. What we’re doing now - and I believe we’re the first - is pushing the caselaw to oppose the brief automatically based on monitoring the dockets.” Seven firms have been using this feature on a pilot basis since Oct. 1, including Quinn Emanuel Urquhart & Sullivan, Ogletree Deakins, and Fenwick & West. The feature is being provided to them as part of their standard subscription, at no extra cost. Casetext is analyzing the text of docket entries and documents to determine which are substantive and which are not, so that it does not run routine filings through the analysis. It only analyzes documents filed by opposing sides in the case, so the attorney’s own filings are not automatically analyzed. (Of course, subscribers can always run their documents through CARA before they file them.) One early user called the service “anticipatory knowledge retrieval,” Arredondo said. top

MIT issues diplomas using the Bitcoin blockchain (Cryptocoins News, 23 Oct 2017) - The Massachusetts Institute of Technology (MIT) has begun a pilot program to test the benefits and challenges of using the bitcoin blockchain to issue diplomas. As MIT News reports , the pilot program began this summer and provided 111 MIT graduates with the option to receive their diplomas through a blockchain-reliant smartphone app called Blockcerts Wallet, in addition to the traditional hard-copy format. The Blockcerts app, which was developed by the MIT Media Lab in collaboration with Cambridge software company Learning Machine, generates a public-private key pair after a student downloads it and registers for the program. The app then sends the public key to MIT, who writes it into the digital record and adds a one-way hash to the bitcoin blockchain. The app stores the user’s private key, enabling him or her to prove ownership of the diploma. The school says “empower[s] students to be the curators of their own credentials.” top

Decision reversed: Mistake using file sharing site didn’t waive privilege (Ride the Lightning, 24 Oct 2017) - A case I wrote a post about in March of 2017 has now been reversed - to the relief of many lawyers, I’m sure. As Bloomberg BNA reported (sub. req.), the decision by a state magistrate judge in Harleysville Ins. Co. v. Holding Funeral Home, Inc . was reversed by a federal judge in Virginia on October 2nd. Thanks to Dave Ries for letting me know. The decision basically says that inadvertent disclosure of confidential materials through an error in using a file-sharing site didn’t waive a plaintiff’s attorney-client privilege and work product protection for those materials. The judge also found that defense counsel acted unethically by using the protected materials without notifying plaintiff’s counsel and seeking a court ruling on the waiver issue. The case represents a reminder that lawyers generally aren’t free to secretly exploit inadvertently disclosed materials even if they believe the disclosure waived any privilege claim. * * * top

DIFFERENT

Tenure-track Faculty Positions (MIT, 17 Oct 2017) - Tenure track faculty position; Program in Media Arts and Sciences/Media Lab: The MIT Media Lab seeks a new kind of early career faculty member, not defined by discipline, rather by his or her unique and iconoclastic experience, style and points of view. You can be a designer, inventor, scientist, scholar or other - any combination - as long as you make things that matter. Impact is key. This means somebody with at least these three sets of characteristics: (1) being deeply versed in a minimum of two fields, preferably not ones normally juxtaposed; (2) being an orthogonal and counter-intuitive thinker, even a misfit within normal structures; (3) having an adventurous personality, boundless optimism, and desire to change the world. Any disciplines apply as long as their confluence shows promise of solving big, hard and long-term problems. And, most importantly, candidates must explain why their work really can only be done at the Media Lab. We prefer candidates not be similar to our existing faculty. We welcome applicants who have never considered academic careers. Successful candidates will: establish and lead their own research group within the Media Lab; engage in collaborative projects with industrial sponsors and other Media Lab research groups; actively contribute to shaping the open and creative culture that defines our community; supervise masters and doctoral students; and participate in the Media Arts and Sciences academic program. Appointments will be within the Media Arts and Sciences academic program, principally at the Assistant Professor level. A doctorate is not necessary, but evidence of extreme creativity is. * * * [ Polley : I’d guess that every MIRLN reader wants this job. Pass it along.] top

RESOURCES

A tool to get your copyrights back (Lawrence Lessig, October 2017) - I was incredibly happy to read that Creative Commons and the Authors Alliance have released a tool (cool URL: rightsback.org) to enable authors to recover the rights they had transferred to someone else. This was a project started a decade ago. It was hard then. I am very proud they have delivered it now. Copyright is an incredibly interesting law of property, chock through with weird exceptions and protections. One of those protections is that a creator can get a second chance with his or her copyright. If you created something, and then transferred your copyright to someone else, even though the transfer might say “this is forever …” you have the right to get it back. But (surprise! surprise!) it turns out it is INCREDIBLY difficult to exercise that right properly. And many creators find it just way too difficult (read: expensive) to exercise the right. The tool that CC/AA have created tries to make it as simple as possible. The tool walks you through the steps necessary to determine whether you have a right, and when you need to file. The tool doesn’t do the transfer, but it does help you see whether you are entitled, and if you are, it simplifies the process of making that happen. The purpose of copyright law is to help creators. You wouldn’t know that by looking at the way the law actually works. But where the law clearly benefits creators, we should do whatever we can to support it. top

ABA Committee on Law and National Security launches national security podcast (ABA, 23 Oct 2017) - The ABA Committee on Law and National Security has created a new podcast called National Security Law Today . Hosted by committee members and staff, the podcast features legal experts discussing hot topics and current issues in the world of national security, as well as career advice for those looking to break into the field of national security law. Listeners will learn about the specific impact that national security law has on the legal, economic and business world outside the government. The theme for the first year is national security in private practice, focusing on laws and regulations that impact practitioners and their clients. Topics include State Department and Treasury Department sanctions, the Committee on Foreign Investment in the United States, the Foreign Agents Registration Act, export regulations, security clearances and litigation, international tribunals and prosecuting terrorist acts. New episodes air every other Thursday, and each one is approximately a half-hour long. The show is available online on the podcast website and you can find it for streaming or subscribing on iTunes , Stitcher , Soundcloud and TuneIn . Upcoming guests include: * * * top

LOOKING BACK - MIRLN TEN YEARS AGO

(note: link-rot has affected about 50% of these original URLs)

Judge: Man can’t be forced to divulge encryption passphrase (CNET, 14 Dec 2007) - A federal judge in Vermont has ruled that prosecutors can’t force a criminal defendant accused of having illegal images on his hard drive to divulge his PGP (Pretty Good Privacy) passphrase. U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination. Niedermeier tossed out a grand jury’s subpoena that directed Sebastien Boucher to provide “any passwords” used with his Alienware laptop. “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him,” the judge wrote in an order dated November 29 that went unnoticed until this week. “Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.” Especially if this ruling is appealed, U.S. v. Boucher could become a landmark case. The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for the last decade arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled “Compelled Production of Plaintext and Keys.”) This debate has been one of analogy and metaphor. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings. Orin Kerr, a former Justice Department prosecutor who’s now a law professor at George Washington University, shares this view. Kerr acknowledges that it’s a tough call, but says, “I tend to think Judge Niedermeier was wrong given the specific facts of this case.” top

E-mail from the grave? Microsoft seeks patent on ‘immortal computing’ (Seattle PI, 22 Jan 2007)—In this culture of instant information, some Microsoft Corp. researchers are pursuing a radical notion—the concept of saving messages for delivery in decades, centuries or more. The project, dubbed “immortal computing,” would let people store digital information in physical artifacts and other forms to be preserved and revealed to future generations, and maybe even to future civilizations. After all, when looking that far in the future, you never know who the end users might be. One scenario the researchers envision: People could store messages to descendants, information about their lives or interactive holograms of themselves for access by visitors at their tombstones or urns. And here’s where the notion of immortality really kicks in: The researchers say the artifacts could be symbolic representations of people, reflecting elements of their personalities. The systems might be set up to take action—e-mailing birthday greetings to people identified as grandchildren, for example. The previously undisclosed project came to light through a newly surfaced patent application in which the researchers explain some of the concepts they’re exploring. The project seeks to address the fact that large amounts of valuable information are stored on media with limited life spans, in formats that could be rendered obsolete. Consider how quickly floppy disks disappeared. But the researchers aren’t just thinking about the informational legacies of individuals. “Maybe we should start thinking as a civilization about creating our Rosetta stones now, along with lots of information, even going beyond personal memories into civilization memories,” said Eric Horvitz, a Microsoft principal researcher who also is working on the project. top