Snapchat For Lawyers?

Confide: an app for execs who want sensitive messages to vanish Snapchat-style (GigaOM, 8 Jan 2014) – Many people associate “disappear” apps like Snapchat with young people who want to send each other bong or boob shots. But kids are hardly the only ones who want to relay sensitive or silly messages without leaving a permanent trace on the internet. That’s the thinking behind “ Confide ,” a new app aimed at professionals who want to message each other about job references, corporate intrigue or other subjects that could cause trouble if a written record landed before HR or the legal department. Messages sent via Confide disappear on reading and can’t be retrieved later. Available for Apple devices as of January 8, Confide is the brainchild of Jon Brod, a co-founder of local news site Patch, and Howard Lerman, the CEO of marketing start-up Yext. Brod says the app came about after Lerman contacted him by email about a potential employee who Brod did not want to discuss in writing. He suggested they speak by phone instead. “We’re busy and it took us six days to connect,” he said in a phone interview, explaining why they created the app. “Professional relationships require tools for impermanence and confidence. We wanted to take the proven model of meeting for an off-the-record cup of coffee and bring it online.” To address the issue of screenshots, which can provide a way to preserve disappearing messages, Confide uses a “wand” feature that requires recipients to pass their fingers over the message to reveal additional words. The app also includes a notice feature, common among other disappear apps, that alerts the sender if the recipient took a screenshot of the message. Confide also includes another feature that might appeal to paranoid executives: end-to-end encryption that means Confide doesn’t possess a retrievable copy of the message. As for the possibility that professionals could use Confide to skirt legal duties (such as by-laws that require them to preserve corporate communications), Brod said the app is simply a platform and that it would be up to individuals to comply with their obligations.

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Image courtesy of FreeDigitalPhotos.net/KROMKRATHOG.


US Companies Come Down On The Cloud

New industry contracts say “no data in the USA,” report says (GigaOM, 27 Dec 2013) – Is this the backlash? A handful of companies are requiring cloud service providers to promise – in writing – that they won’t store any client data in the United States, according to Bloomberg . The report says that a British grocery chain and a Canadian pharma company have responded to the ongoing US surveillance scandal by adding language to existing contracts that mandate suppliers to segment their data and keep it out of America. The report of the revised contracts comes as the cloud computing industry continues to digest news that America’s National Security Agency is tapping underwater cables and infiltrating the servers of storage providers as part of a sweeping counter-terrorism program. In August, shortly after news of the surveillance was leaked by Edward Snowden, a Forrester analyst reported that it could cost the U.S. cloud computing industry up to $180 billion as a result of foreign firms bolting American providers. The $180 billion figure (which appears plucked from the air) was cited as a worst case scenario and so far there has been no systemic exodus from American cloud companies. But the fear and anger in Europe and elsewhere over America’s surveillance activities are very real; a recent PWC report said that 15 percent of German companies are looking for cloud providers that promise not to cooperate with U.S. or U.K. intelligence services. So does the Bloomberg report portend the start of a trend? It’s too soon to say. The report, which also claimed a Canadian agency had asked for the “no data in USA” clause, was based on a single source (an Indiana security firm known as Rook Consulting ) and did not name any of the companies involved.

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Image courtesy of FreeDigitalPhotos.net/samuiblue.


Japanese Software Security Risks

Japan warns of security risk in software for language input (Bloomberg, 26 Dec 2013) – Japan’s government warned that certain software used for writing Japanese characters could lead to security leaks, including some programs made in China. The National Information Security Center asked all central government ministries to avoid the programs when making confidential documents because a record of the writing can be sent to servers outside the country. The programs, made by Beijing-based Baidu Inc. (BIDU), Microsoft Corp. (MSFT) and Google Inc. (GOOG), allow people to use an English-language keyboard to write Japanese characters by spelling them phonetically.

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Image courtesy of FreeDigitalPhotos.net/Stuart Miles.


The Costs of E-Discovery

Costs of keyword searching, data analysis, not recoverable, Federal Circuit rules (Robert Ambrogi, 18 Dec 2013) – To what extent can the costs of e-discovery be recovered by a prevailing party in federal court? The U.S. Federal Circuit Court of Appeals has just issued an opinion that provides a detailed analysis of that question, concluding that the answer hinges on which costs fall within a 21st Century definition of “copying.” In CBT Flint Partners, LLC v. Return Path, Inc. , the Federal Circuit considered the extent to which e-discovery costs fall under28 USC § 1920 , the federal statute that lists the costs that can be recovered in federal litigation. The only provision of that statute that would apply to e-discovery, the circuit concluded, is one that allows recovery of copying costs. Thus, e-discovery costs are recoverable only to the extent they fall within the statutory meaning of copying. [W]e conclude that recoverable costs … are those costs necessary to duplicate an electronic document in as faithful and complete a manner as required by rule, by court order, by agreement of the parties, or otherwise. To the extent that a party is obligated to produce (or obligated to accept) electronic documents in a particular format or with particular characteristics intact (such as metadata, color, motion, or manipulability), the costs to make duplicates in such a format or with such characteristics preserved are recoverable. … But only the costs of creating the produced duplicates are included, not a number of preparatory or ancillary costs commonly incurred leading up to, in conjunction with, or after duplication. That means that the costs of imaging hard drives and source media and processing those images would be recoverable in most cases, the court said. Also recoverable would be the costs of creating load files and copying responsive documents to production media. But the costs of decryption, deduplication, keyword searching, data analysis and project management are not recoverable, the court concluded.

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Email And When Your 4th Amendment Rights Might Run Out

Senders’ Fourth Amendment rights in e-mails seized from the e-mail accounts of recipients (Volokh Conspiracy, Orin Kerr, 26 Dec 2013) – A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection? To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire? * * *

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Blogging For CLE Credit

Can law blogging qualify for CLE credits? (Kevin O’Keefe, 4 Jan 2014) – Historically, education has taken place in the classroom with live speakers or recordings. With the advent of the Internet lawyers are now taking CLE classes online as well. Beyond classes, some states allow lawyers to earn credits by writing legal articles. The articles need not be law review or law journal quality or length. The articles need not be exclusively for other lawyers. In my first company, Prairielaw.com, the precursor to lawyers.com’s content and community, we had lawyers author content for consumers and small business people. Lawyers practicing in states which allowed it, earned a CLE credit for each of their articles. Such content was written and contributed by the lawyers, in part, as a means of enhancing their reputation as a reliable and trusted authority. The lawyers also contributed their articles as way to gain additional exposure online. Sounds an awful lot like lawyers publishing a blog. Would law blog articles/posts qualify for CLE credits? I took a quick look at various states’ positions on allowing lawyers to claim CLE credits for writing legal articles.

  • Tennessee : Writing articles concerning substantive law, the practice of law, or the ethical and professional responsibilities of attorneys may qualify for CLE credit if the articles are published in approved publications intended primarily for attorneys.
  • Maine : The writing of law related articles for publication will not be automatically approved for CLE credit. Authors requesting such credit must submit a copy of the article after publication for evaluation by the Board to apply toward only the self-study portion of the attorney’s annual CLE obligation.
  • Georgia : May earn credits in researching and writing articles provided that (1) the article or treatise’s content and quality are consistent with the purposes of CLE, (2) it is published in a recognized publication which is primarily directed at lawyers, and (3) the project was not done in the ordinary course of the practice of law, the performance of judicial duties, or other regular employment.
  • California : May get credit for articles published or accepted for publication that contributed to your legal education, exclusive of activity which is part of your employment.

You get the idea. Yes, lawyers may and do earn CLE credits for writing articles. At the same, though blog posts are arguably legal articles, you can see the hurdles and how states are apt to respond.

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Image courtesy of FreeDigitalPhotos.net/Stuart Miles.