N.Y. court authorizes service of legal documents via Facebook, when the physical address of the recipient is unknown (Eugene Volokh, 19 Sept 2014) – From Noel B. v. Anna Maria A. (N.Y. Fam. Ct. Sept. 12, 2014): The instant decision is with respect to this court’s determination as to substituted service, specifically service by via the Facebook social networking service. The Petitioner filed the instant action seeking to modify the order of child support based on the alleged emancipation of the sole subject child. The Petitioner appeared today and stated the he was unable to effect service upon the Respondent. He presented an affidavit dated July 6, 2014, in which the affiant noted that the Respondent was unknown to the occupant of the Respondent’s last known address, who is described as a tenant of one month. The Petitioner then described under oath the other efforts he made to try and locate the Respondent to effectuate service. * * * While this court is not aware of any published decision wherein a New York state court has authorized service of process by means of social media, other jurisdictions have allowed such service. See Whoshere, Inc. v. Orun , 2014 WL 670817 (E.D. Va.), Federal Trade Commission v. PCCare247 Inc. , 2013 WL 841037 (S.D.N.Y.). The court notes that in both those matters service via Facebook was directed to be made in connection with other means of service. Pursuant to CPLR § 308(5) the court authorizes substituted service by the following method: the Petitioner is to send a digital copy of the summons and petition to the Respondent via the Facebook account, and follow up with a mailing of those same documents to the previously used last known address. The Respondent can receive communications via social media, whereas her actual physical whereabouts are uncertain. The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings.

Prosecutors are reading emails from inmates to lawyers (NYT, 22 July 2014) – The extortion case against Thomas DiFiore, a reputed boss in the Bonanno crime family, encompassed thousands of pages of evidence, including surveillance photographs, cellphone and property records, and hundreds of hours of audio recordings. But even as Mr. DiFiore sat in a jail cell, sending nearly daily emails to his lawyers on his case and his deteriorating health, federal prosecutors in Brooklyn sought to add another layer of evidence: those very emails. The prosecutors informed Mr. DiFiore last month that they would be reading the emails sent to his lawyers from jail, potentially using his own words against him. Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers – a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case. The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers – a question on which federal judges have been divided. 

Provided by MIRLN.

Note from MIRLN Founder, Vince Polley:

[ Polley : This is only mildly nefarious – the jail/prison email systems carry ToS that abrogate confidentiality. Still. And, there have been cases involving private employers who’ve been prohibited from accessing/using emails between an employee and the employee’s counsel, generally on the basis of superseding policy protecting attorney-client privilege.]

The law belongs in the public domain (EFF, 14 Jan 2014) – For nearly two centuries it has been a basic precept that the law lives in the public domain. It’s simple: in a democratic society, people must have an unrestricted right to read and speak their own laws. Full stop. Of course, that principle means the law can never be subject to copyright restrictions. If any single entity owns a copyright in the law, it can buy, sell or ration the law, and make all sort of rules about when, where, and how we share it. People should never have to pay a fee to review and compare the rules and regulations they must obey, and no private entity should be the gatekeeper to the law. As an appellate court put it : [I]t is hard to see how the public’s essential due process right of free access to the law (including a necessary right freely to copy and circulate all or part of a given ?law for various purposes), can be reconciled with the exclusivity afforded a private copyright holder . . . . Fortunately, open access crusaders like Public.Resource.Org (whose founder, Carl Malamud, is testifying before Congress today about this issue), and the Center for Information Technology Policy, have worked hard to correct the situation, by publishing legal and government documents and giving citizens the tools to do so themselves. A private company, Google, has also done its part by including court opinions in the Google Scholar database. Until recently, these folks haven’t had to deal with copyright infringement lawsuits as they worked to free the law. No longer. A group of standards-development organizations (SDOs) have banded together to sue Public.Resource.Org, accusing the site of infringing copyright by reproducing and publishing a host of safety codes that those organizations drafted and then lobbied heavily to have incorporated into law. The SDOs argue that they hold a copyright on those laws because the standards began their existence in the private sector, and were only later “incorporated by reference” into the law. That claim conflicts with the public interest, common sense, and the rule of law. The fundamental right to access and share the law does not disappear just because the law in question is a technical standard. And a good thing, too, because these standards are now a significant part of the laws that shape our lives. Once incorporated, they become mandatory requirements, just like any other law. The case involves crucial national standards like the national electrical codes, fire safety codes, and so on. Public access to such codes-meaning not just the ability to read them, but to publish and re-use them-can be crucial when there is an industrial accident, when there is a disaster such as the Moore, Oklahoma tornado, or when a homebuyer wants to know whether her house is code-compliant. Publishing the codes online, in a readily accessible format, makes it possible for reporters and other interested citizens to not only view them easily, but also to search and excerpt and generate new insights.

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Image courtesy of FreeDigitalPhotos.net/Salvatore Vuono.

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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Image courtesy of FreeDigitalPhotos.net/nixxphotography.

Fear of juror Googling didn’t justify order to remove pages from lawyer website, appeals court says (ABA Journal, 4 Nov 2013) – A judge violated a lawyer’s First Amendment rights when he ordered the lawyer to take down references to asbestos wins on her website during a 2011 trial on similar issues, a California appeals court has ruled. The Second District Court of Appeal ruled on behalf of lawyer Simona Farrise last week, the Recorder reports. The order was a prior restraint on speech that violated the U.S. and California constitutions, according to the decision (PDF) by the California Second District Court of Appeal. The trial judge, Thomas Anderle of Santa Barbara County, had ordered Farrise to remove two pages from her website touting victories in asbestos cases against Ford Motor Co., one of the automaker defendants in the suit being tried before Anderle. The plaintiffs, Richard and Christie Steiner, had claimed asbestos exposure from Richard’s Steiner’s work on automobiles contributed to his lung cancer. One Web page subject to the order touted a $1.6 million verdict against Ford and others. The write-up asserted that “at least one jury managed to successfully navigate defendants’ courtroom confusion and find these companies at fault.” The other Web page, also ordered removed, described a $4.35 million verdict against Ford. Volkswagen Group of America had sought removal of the Web pages, citing the possibility that a juror would find it, and Ford Motor Co. joined in the motion. Anderle granted the request, though he also told jurors they could not Google the lawyers and could not conduct independent research. Jury instructions, coupled with the possibility of contempt for those who disobey, is the proper way to handle the issue, the appeals court said.

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Image courtesy of FreeDigitalPhotos.net/KROMKRATHOG.