Archive for March, 2009

Does technology have to trump privacy rights?

Posted on March 31, 2009. Filed under: criminal law |

Drlogo11

This week’s Daily Record column is entitled “Does technology have to trump privacy rights?”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Privacy advocates in recent years have expressed the concern that privacy is disappearing as people voluntarily disclose all kinds of information —including their every waking move — on the Facebook, Twitter and other Internet platforms.

They fear that companies, such as Internet giant Google, are collecting extensive amounts of data about users’ spending habits and preferences in ways never before possible.

The issue of the loss of privacy is all the more disturbing when the government, as opposed to private entities, uses the newfound technologies to collect information about the movement, actions and habits of its private citizens.

Last week, the New York State Court of Appeals heard oral arguments regarding that very issue. At issue in People v. Weaver was the admissibility of evidence obtained without a warrant by law enforcement through the use of a GPS tracking device.

The courts below concluded that the evidence was admissible. In People v. Weaver, 52 A.D.3d 138 (Third Dept. 2008), the majority held that the defendant had no
expectation of privacy regarding public movements that would have been visible via the naked eye:

Inasmuch as constant visual surveillance by police officers of [the] defendant’svehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant’s Fourth Amendment protections. See People v. Wemette, 285 AD2d 729, 729- 730 (2001), leave denied 97 NY2d 689; People v. Edney, 201 AD2d at 499.

Judge Leslie E. Stein, issued a lengthy dissent, opining that a warrant should have been required since technology increased the intrusiveness and duration of the monitoring, necessarily altering the analysis:

[W]hile the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause. … At some point, the enhancement of our ability to observe by the use of technological advances compels us to view differently the circumstances in which an expectation of privacy is reasonable. In my opinion, that point has been reached in the facts before us.

During oral arguments at the Court of Appeals, judges came down on both sides of the issue.

Judge Eugene Pigott seemed to agree that a warrant was not required prior to placing a GPS device on a car parked in a public place: “They have a device here that they at some point decided they wanted to use. … And there’s nothing that says they cannot.”

Chief Judge Jonathan Lippman, on the other hand, expressed concern regarding privacy rights if limitations are not placed on the ability of law enforcement
to indefinitely monitor a person’s each and every move: “We have to also consider the opportunity for abuse.”

Chief Judge Lippman’s point is of the utmost impor- tance. Technological advances are changing our lives in ways we never before imagined. New devices are being invented that enhance the ability of law enforcement officers to observe and follow our movements in ways not envisioned just 10 years ago. Who knows what capabilities law enforcement will have 20 years from now?

It is for that very reason that reasonable limits must be set regarding the warrantless use of technologies that enhance the senses of law enforcement officers.

Certainly law enforcement should be able to use the most up-to-date technologies available to them, but not indiscriminately.

Judicial oversight of the use of advanced technologies is necessary to prevent baseless, invasive and limitless intrusions into the lives of law-abiding Americans.

As technology transforms our lives, the interpretation of our laws must adapt to realities not envisioned when the laws were first established. The failure to do so will render our laws and constitutional protections obsolete, irrelevant and ineffective.

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Technology Strikes–Oblivious Attorneys Stunned

Posted on March 23, 2009. Filed under: Social Media, The times they are a'changin', Web 2.0 |

Drlogo11

  1. This week’s Daily Record column is entitled “Technology Strikes–Oblivious Attorneys Stunned.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Technology Strikes–Oblivious Attorneys Stunned

The term “Internet” was first coined in 1974 and referred to a single global system of interconnected computer networks that shared data by packet switching using the standardized Internet Protocol Suite (TCP/IP).

The first TCP/IP network became operational in 1985. In the mid-1990s, the terms “Internet” and “World Wide Web” became commonplace, with Internet use increasing exponentially during the late 1990s. The Internet today has an estimated population of 1.5 billion users.

Of course, as I’ve detailed many times in the past, the legal profession has steadfastly refused to embrace, and in some cases, even acknowledge, technological advances and their effect on both the legal profession and the world at large.

So, it’s not surprising that lawyers and judges alike were seemingly taken aback last week upon learning that jurors, mere laypeople, were aware of this strange, newfound technology called the “Internet.”

Even more astounding to the legal profession was that jurors, in the midst of trials, disregarded judicial instructions to avoid obtaining information from outside sources and actually accessed the “Internet” for research using peculiar devices referred to as “smart phones” and “computers.”

In one case last week, an Arkansas court was asked to overturn a $12.6 million judgment based on allegations that, during the trial, a juror posted eight comments about the trial on Twitter, the microblogging service. In one, he proclaimed: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Similarly, a federal corruption trial in Philadelphia was rudely interrupted by allegations of jurors posting comments to the Internet regarding the proceedings during the trial.

Defense counsel for former Pennsylvania Sen. Vincent J. Fumo moved to halt jury deliberations after information surfaced that a juror had posted comments about the trial to both Facebook and Twitter. The judge denied the motion after ques-
tioning the juror and Fumo ultimately was convicted of the charges against him.

In another case, during a federal drug trial in Florida, a juror admitted to Judge William J. Zloch that he had been conducting research on the Internet regarding the case, in spite of the judge’s specific instructions to the contrary. As if that wasn’t bad enough, after questioning the entire jury panel, the judge learned that eight other jurors had done the same thing.

A mistrial was declared immediately, ending a trial that was entering its eighth week. The defendant’s attorney, Peter Raban, expressed his disbelief regarding the unexpected turn of events: “We were stunned… It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

And thus it came to pass that “modern technology,” in the form of the newfangled Internet, fell rudely and unexpectedly from the sky, inexplicably landing on the heads of various lawyers, despite the fact that those very same heads were buried, willfully, deep in the sand.

Shortly thereafter, dazed, confused and utterly befuddled lawyers, suffering from concussions, technology-induced stupors and other massive head injuries, wandered around the desert of public opinion, expressing consternation in the face of the perplexing, yet wholly predictable reality that technology existed despite their
repeated attempts to ignore it.

To my sadly bewildered, dumbfounded and stunned colleagues, I have only this to offer: “I hate to say it, but I told you so.”

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Lawyers Networking Online

Posted on March 20, 2009. Filed under: Networking, Social Media, The times they are a'changin', Web 2.0 |

checkmark1The Daily Record published an interesting article yesterday that quoted a number of Rochester lawyers, including yours truly, who are using online networking to their advantage.  The article, “@Lawyers Networking Online” can be viewed in its entirety here.

Here’s the start of the article:

Kids do it. Jurors do it. Even members of the bar do it. Online social networking is more than a time-killer, say some Rochester attorneys, who also use it increasingly as a marketing tool.

Some larger law firms are resisting the trend, however. According to an informal survey reported in the March 2009 edition of Law Practice Magazine, 45 percent of law firms are now blocking access to some social Web sites. The survey, conducted in January 2009 by Doug Cornelius on Zoomerang.com, received 231 responses.

Eighty-five percent of respondents said their law firm blocks access to Facebook; 77 percent said they were blocked from MySpace. Another 55 percent are blocked from accessing YouTube, 26 percent from Twitter and 14 percent from LinkedIn.

Reasons cited by firms for blocking included loss of productivity, increased risk of viruses, confidentiality concerns and bandwidth consumption.

But those who use the sites argue the benefits of networking online far outweigh the risks. Rochester attorney Nicole Black, of counsel to Fiandach & Fiandach and an expert on Web 2.0 technology, said firms that block networking sites simply don’t understand the power of social media.

“It’s just a way to expand your influence and showcase your expertise,” said Black, who personally maintains four separate blogs in addition to Web sites and pages on sites including Twitter, Facebook and LinkedIn. “I think that the solo practitioners and the small firms are the ones that are going to be the first to use these [online sites] effectively.”
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Rethinking what it means to be a lawyer

Posted on March 17, 2009. Filed under: The times they are a'changin' |

Drlogo11

This week’s Daily Record column is entitled “Rethinking what it means to be a lawyer.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Rethinking What It Means to be a Lawyer

Lawyer: A person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law. Any person who prosecutes or defends causes in courts of record or other judicial tribunals of the United States, or of any of the states, or whose business it is to give legal advice or assistance in relation to any cause
or matter whatever.

—BLACKS LAW DICTIONARY, SIXTH EDITION

The last few months certainly have been memorable for the legal profession.
Massive layoffs at large firms and every other level of our profession are leaving unexpectedly unemployed, stunned lawyers in their wake.

Many attorneys are finding the subsequent job search difficult, and express frustration at the lack of positions available for them in the traditional legal setting.

Those lawyers would be well advised to think outside of the box, and to use their legal skills in atypical ways.

Technology and the recession are dramatically changing the legal landscape and the ways in which legal information is disseminated. Accordingly, the legal marketplace, now in an obvious state of flux, has been unable to absorb the glut of job seeking legal professionals who want to practice law in the traditional sense.

In order to maintain competitiveness and employability in the newly global and technologically advanced economy, lawyers must re-conceptualize their role within it.

The vast majority of lawyers define their skills too narrowly. That narrow definition of what it means to “practice law” was drummed into us while we were law students, and there continues to be a petty pecking order among lawyers.

Big Law attorneys sneer at small firm attorneys. Corporate attorneys look down their noses at litigators. Civil attorneys consider criminal attorneys to be the lowest of the low. Commercial litigators consider personal injury litigators to be bottom feeders. Criminal defense lawyers are convinced they serve a higher calling, and all others are selfish, greedy and incompetent.

Of course, all of the so-called “practicing” attorneys denigrate the non-traditional career choices made by their “non-practicing” colleagues.

For example, a law school classmate of mine, Megyn Kelly, co-hosts FOX News Channel’s program “America’s Newsroom,” working as both a lawyer and a journalist. She is described in her bio on FOX News Channel’s Web site
(www.foxnews.com/bios/tal-ent/megyn-kelly) as an attorney pursuing a career in journalism:

Prior to her career in journalism, Kelly, an attorney, practiced as a litigator with Jones Day in New York City, Chicago and Washington, D.C. before leaving to pursue journalism. She joined FOX News in 2004.

Similarly, at his own Web site (www.alandershowitz.com/biography.php), Alan Dershowitz is described as a lawyer —among many other things:

Professor Alan M. Dershowitz … has been called ‘the best-known criminal lawyer in the world,’ …‘the top lawyer of last resort.’ … [He] joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg. … He has also published more than 100 articles in magazines and journals. … Professor Dershowitz is the author of 27 fiction and non-fiction works with a worldwide audience. … In addition to his numerous law review articles and books about criminal and constitutional law, he has written, taught and lectured about history, philosophy, psychology, literature, mathematics, theology, music, sports —and even delicatessens.

In the tradition of many others before them, Alan Dershowitz and Megyn Kelly are using their legal knowledge to forge new career paths. They are lawyers, journalists and more.

A “lawyer” can be many things. As the legal landscape adapts to changes in technology and the economy, the opportunities for lawyers to use their degrees in unexpected and exciting ways only will increase.

Those attorneys who see change as an opportunity to forge a new and unusual legal career path are innovative, forward-thinking lawyers, not “former” lawyers.

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