May It Please The Court
Quote of the Day - If I rely on the user to remove metadata, a lot of that metadata is inevitably going to get through. It really needs to be automated.
Metadata May Get You Into Trouble Without You Even Knowing It
Here's a news flash from the American Bar Association's Standing Committee on Ethics and Professional Responsibility.
That's right. The ABA has invaded the tech world. They've turned into geeks, complete with white socks and pocket protectors. They've stepped into the world of metadata.
You may have heard of "metadata," a new term bandied about by the ABA in a recent ethical opinion. What is it? Metadata is data about data. It's the information that computer programs embed in electronic documents that you can access to discover who created the document, when it was created, which client the document was created for, what changes were made to the document, comments, and a host of other information you may not want people to know. If you want to see just the basic metadata, open a document, then click File | Properties. You'll be amazed.
Metadata can create problems. As just one example, the general counsel for a client of a well-known, very large firm did not get along with one of that firm's attorneys, and banned that lawyer from ever working on that client's matters. When the general counsel reviewed the metadata in one of the documents received from the law firm after the ban, the GC discovered that the banned lawyer had drafted the document. The firm lost the client.
Just imagine what opposing counsel wants to see in your metadata. Metadata also includes client comments in documents. Even if you delete it, the data may be recovered. Emailing a document to opposing counsel instead of sending it by fax opens up all kinds of possible waivers.
What's the solution? Strip the metadata from your documents before they leave the office. But let's get back to the ABA first for some other parameters.
The ABA has ruled that lawyers who receive electronic documents are free to look for and use information hidden in metadata, even if the documents were provided by an opposing lawyer. According to the ABA announcement:
"The opinion is contrary to the view of some legal ethics authorities, which have found it ethically impermissible as a matter of honesty for lawyers to search documents they receive from other lawyers for metadata or to use what they find. ...
Coast to Coast Internet Radio Recaps The Year In LawIt's about that time of the year where we put as aside the legal briefs, slip out of the courthouse, turn up those holiday tunes and spread some holiday cheer. Join me and my fellow Coast to Coast, Law.com blogger and co-host Bob Ambrogi as we start the show off by taking a look at the year in review and will discuss our favorite legal topics in this very exciting year. To end the program, you'll hear my recitation of a rendition of "Twas the Night Before Christmas" entitled, "Twas the Night Before Christmas-Legally Speaking." Don't miss this end of year re-cap.
There's No Reason Theft Of Sensitive Data Should Be Exposed Potentially Waiving Privilege And Privacy Rights And What To Do About It If It Happens
There's a lot of buzz about stolen laptops and worries about the theft of personal data. You've seen the commercials on television where we see the hapless identify theft victim mouthing words, but the words spoken come from the thief who got the victim's credit card information and went shopping. Then there's the newspaper articles cautioning us about identity theft.
Seems like veterans and travelers risk having their credit cards and other personal information spread around the Internet, with criminals going on spending sprees with those credit cards. These days, with the amount of data that's stored on a small telephone could result in the same disaster if you either lose or someone steals your cell phone.
But the eventuality shouldn't even arise.
Two Ways To Wipe Data From A Stolen Laptop And Cell Phone
There are at least two software products out there that can immediately solve these problems. Let me recommend two programs. First, for your laptop, there's Lojack for Laptops. For cell phones, there's RemotePROTECT. I have no ownership interest in these companies, but would not refuse it if offered.
While Lojack for Laptops is more robust (there's more hard disk space on a laptop) and has more options, both programs generally accomplish the same thing: they lock the device down, prevent unauthorized access to the sensitive data, and if the owner sends an appropriate command, then the software wipes the hard drive, making the laptop/cell phone worthless. I installed RemotePROTECT, but had to uninstall it because it was such a memory hog on my phone, it kept crashing. I don't know of other alternatives out there that do the same thing, but be aware of this problem.
Both programs are inexpensive compared to the amount of damage caused. Lojack for Laptops retails under $100 for three years of coverage, and RemotePROTECT is under $25.00 - a one-time charge. If you're going to install RemotePROTECT, then be careful, and make sure that your cell phone has enough memory to handle the program. The program is a bit of a memory hog, and if you've got a number of programs already loaded, then it may cause your phone's software operating system to crash. As long as you have a normal installation, however, you should be fine.
The net result, in any event is that if you have sensitive data, then protect it accordingly. You'll be glad you did, and so will your clients.
How Deal With Identity Theft
On the off chance that you're either reading this column too late, have a "friend" with the problem or perhaps an unfortunate client, here's some critical information to limit the damage in case identity theft happens to you or someone you know:
No matter what happens, be aware of your surroundings, and use technology to protect the technology you do have.
We'll See What Los Angeles Criminal Courts Dish Out
It's not over yet for the "Girls Gone Wild" video empire: even though the president, Joe Francis, along with the general counsel and chief financial officer of Mantra Films, Inc. were each sentenced to perform eight hours of community service per month (along with a $1.6 million fine), the company faces another sentencing in Los Angeles next January 22. The company was accused of filming drunk, underage girls as part of its DVD offerings.
The company pulls in an estimated $40 million per year selling these videos. And believe it or not, the company has a tour blog (somewhat safe to open link at work).
From A Holy City To A Ghost Town; Now What Do You Make Of It?
Want To Buy A Town?
It may not fall on the list of holy cities, but it is called Holy City, even though it may never have been much more than a sideshow. Frankly, it probably qualifies more as a ghost town than anything else.
Although MITPC doesn't sell real estate, you can buy Holy City, a 142-acre tract of land outside Silicon Valley for a cool $11,000,000. Heck, it used to have a Post Office, but right now it has only one resident, Tom Stanton.
You can, however, build up to 10 homes on the land, but if you're into wine, you'd probably prefer to start a vineyard. It's near the right area, and you might just be able to get some marketing value out of the name, and perhaps its history.
The town started out as a somewhat commune in the 1920s, and pretty much lasted that way until a freeway was built nearby that took traffic away from the original road, called Highway 17. According to Lisa Leff of the AP, the town was founded by one "William E. Riker, a former necktie salesman and palm reader who staged four campaigns for governor and corresponded with Adolf Hitler."
The government tried him for sedition during the 40s, the FCC shut down a radio station he tried to run and his "charity," the "Perfect Divine Christian Way" was investigated for financial abuse.
Riker, while preaching chastity and poverty, had married four times and drove around the town in Cadillacs.
Maybe MIPTC will put in a bid for the property. I've always thought there'd be a ready market for holy wine.
Communications Decency Act Comes To The Rescue Of Employers
As an employer, are you liable for your employee's threatening emails to others? The short answer is no, but it took the Sixth Appellate District some 34 pages to say it. And with good reason - there's an interesting story there.
Michelangelo Delfino and Mary Day got into a dispute with their former employer, Varian Medical Systems, and allegedly posted some 28,000 comments on the Internet about Varian, which the company believed amounted to defamation and harassment. One of Varian's supporters, Cameron Moore, also got into the mud-slinging with Delfino and Day. Varian had earlier obtained a judgment of some $775,000 against Delfino and Day, but that verdict was overturned by the California Supreme Court under a SLAPP theory.
Delfino and Day apparently got involved with Moore along the same lines as their campaign against Varian, and Moore's comments in return physically threatened Delfino and Day with bodily harm and death. The FBI got involved, trying to put an end to an ugly saga between the three players.
Delfino and Day, however, wanted blood, and sued Moore and his employer, Agilent Technologies. They did pretty well, and netted an almost $600,000 verdict against Moore, but not Agilent.
Why not the company, too? We know at least one probable reason why Delfino and Day sued Agilent: the company's pockets are deeper than Moore's, and they'd be more likely to be able to collect such a judgment.
But Agilent wasn't held liable. The Court determined that Aglient was in the business of providing internet services to its employees, and under the Communications Decency Act of 1996, it was immune from suit when its employees had acted badly. It likely didn't hurt, either, that Aglient had a policy ("Standards of Business Conduct") against such behavior:
"[C]ertain messages and materials simply must not be sent or accessed on Agilent equipment or through Agilent systems; these include . . . threatening, sexually explicit or harassing materials. You must not use Agilent resources to create, transmit, store or display messages, images or materials in any of these categories. Misuse of Agilent assets is misconduct and may result in termination of your employment."
Plus, the court noted a number of other factors in Agilent's favor: (a) the FBI assured Agilent that Moore was not a threat, that they didn't plan an arrest, and that Agilent need not be concerned about him; (b) Agilent's early internal investigation did not disclose that Moore had used its computer system to send any threatening e-mails or postings; (c) when Agilent reprimanded Moore, he did not admit to using its computer system to make any threatening Internet postings and denied using Agilent's system to send any e-mail threats; (d) no Agilent employee knew about Moore's cyberthreats; (e) Agilent's second internal investigation conducted after Moore's arrest did not disclose that Moore had made any cyberthreats; and (f) Agilent did not learn the substance of Moore's threatening e-mails and postings until it received the arrest affidavit.
In other words, Agilent acted reasonably. It was not only the circumstances and the internal company policy that excused Agilent from liability, but also the Communications Decency Act.
2/16/07 Update: Mary Day forwarded to MIPTC her Reply to Answer to Petition for Review, and you can read it here. Other briefs may be available here. If anyone has a source for additional briefs, let me know and I will post them.
So, if you're an employer, get that Internet use policy drafted, conduct prompt and thorough investigations when allegations of wrongdoing are leveled, reprimand and discipline employees where appropriate and try to put an end to the bad behavior. Those steps, along with the law, give a solid shield against liability, according to the Courts.
It might help if people would behave themselves, too, but that's a whole other issue for a different day.
Cranky Doormats Offer A Double Dose Of Humor
Who'd-a thunk it? I can tell you that I didn't. I never thought I'd see warnings on a doormat. But this is no ordinary doormat, let me tell you. In great big block letters, it screams out: "COME BACK WITH A WARRANT."
That probably should have been my first clue. The fun doesn't end with the top side of the mat. The back of it contains a product warning, obviously written by someone with a great sense of humor. The warning is entertaining, to say the least. Here it is:
"Important things you should know about your new doormat. Warning: Do not use mat as a projectile. Sudden acceleration to dangerous speeds may cause injury. When using mat, follow directions: Put your right foot in, put your right foot out, put your right foot in and shake it all about. This mat is not designed to sustain gross weight exceeding 12,000 lbs. If may begins to smoke, immediately seek shelter and cover head. Caution: If coffee spills on mat, assume that it is very hot. This mat is not intended to be used as a placemat. Small food particles trapped in fibers may attract rodents and other vermin. Do not glue mat to porous surfaces, such as pregnant women, pets and heavy machinery. When not in use, mat should be kept out of reach of children diagnosed with CFED (Compulsive Fiber Eating Disorder). Do not taunt mat. Failure to comply relieves the makers of this doormat, Simply Precious Home Décor, and its parent company, High Cotton, Inc. of any and all liability."
Where did I put this mat? Right inside the door to my office. With warnings like that on both the front and the back, as a lawyer it speaks my language.
Coast to Coast Internet Radio Goes On A JAG In IraqThe world of a JAG officer is a challenging one. Join me and my fellow Law.com blogger and co-host Bob Ambrogi as we turn to Major John A. Engels and discuss his role as a JAG officer stationed in Iraq, his experience over there and a look to the future. In 1998, Major John A. Engels was commissioned as a Judge Advocate in the Minnesota Army National Guard, and is currently serving in Iraq with the First Brigade Combat Team, 34th Infantry Division, now in Iraq. Don't miss out on this show!