Category: Legislation

Security and Privacy for Every Attorney

BY: Steven Lapkoff

Data security has become an important issue for the legal world. Whether you are a tech-savvy law student or a veteran attorney without much experience online, now is a good time to think about the safety of your files and your clients’ information. In the free-for-all of the Internet, even privileged attorney-client communications are not always respected as such (as this article from The Guardian on the GCHQ – the UK’s equivalent of the NSA – makes clear).

These dangers shift the burden of responsibility to the individual attorney to ensure that, short of keeping locked stacks of paper files and certified letters, client information remains confidential.

Nearly once a week since the start of the summer, news headlines have been disclosing in increasing detail the efforts of the National Security Administration to access personal communications (email, instant messaging, and cloud-based data) of nearly every Internet user. Most recently, a Washington Post article revealed that not even your contact list is safe.

This has understandably set off a round of security-related concern in the IT world, with even Google scrambling to encrypt data stored on the popular Google Drive service, as companies fear the possible legal ramifications of allowing their users’ data to be accessed. Some of these questions have been discussed in an excellent article in the New York Law Journal, by Richard Raysman and Peter Brown.

Recently, a small change to Comment 8 of the ABA’s Model Rule 1.1 “serve[s] as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.” See this recent article from Inside Counsel for a thorough discussion of the full implications of such an emphasis.

This change strengthens the confidentiality requirements of Model Rule 1.6, whose comments also include language regarding “reasonable efforts to prevent the access or disclosure” (see Comment 18 and 19), but do not specifically mention encryption. Perhaps in light of the recent disclosures, it will be an issue specifically addressed in the future.

So, where to start out if talk of bits and bytes is foreign to you? The ABA has a useful information page about many different methods of securing your information and email with encryption. However, there’s no need to spend a lot of money (or sometimes any at all) to get into the basics of staying safe.

First, I recommend losing the memory stick. Many of us have gone through several of the key-sized devices, either dropping them from a backpack or leaving them in a library. Instead, look at one of the many “cloud”-based services, such as DropBox, that allow you to access your files anywhere there is an internet connection. The cloud-based services have recently gotten a bad rap for their security, so I use a nifty free app called SafeMonk as an extra layer of encryption for everything I put into DropBox.

Second, if you have an email to a client that contains particularly sensitive information, think about encrypting your email. If you are a Gmail user, SecureGmail is a free ad-on that brings encryption seamlessly into your email composition. There are (more complicated) options for Outlook as well.

Finally, if you have large files on a hard drive, TrueCrypt is a free, open-source software that can help you get started.

Using encryption is certainly not required to represent client’s effectively, but “smart lawyers will realize that obtaining technological proficiency directly will not only help them satisfy the mandate of Model Rule 1.1, but also will empower them to serve as stronger advocates on behalf of their clients and result in competitive advantages.” (Inside Counsel).

The War on Drugs Reassessed – AG Holder Rethinks Sentencing

BY: Sameer Nath

It has been about 42 years since President Nixon declared a war on Drugs. Since that time, in the name of public health, public safety and national security, state and federal governments at several levels have relentlessly pursued and prosecuted  gangs, cartels, terrorist organizations, and unaffiliated street dealers, growers, suppliers and clandestine laboratories.

Drug use at its worst is a bane of civilization, leaving in its wake helpless shells of human beings who are willing to rob, cheat and even kill in order to sate their addictive impulses, and to protect their black market operations. Many of these people are a drain on our national economy, unable to work due to side effects of their addictions, languishing in prisons where they cost taxpayers up to thousands of dollars per day to treat, house, feed and clothe on the public dollar, and clogging up local court calendars as multiple offenders. The illegal drug industry, at its worst is an international series of powerful clans interwoven into sophisticated criminal enterprises that appropriate and use all the tactics, equipment and personnel at their disposal to see that the flood of revenue from their wares remains unfettered. As US government technology and tactics to fight this “war” evolves in its breadth and sophistication, so too do those used by those clans. ($35 million Russian submarine sold to a prominent cartel in the late 90s.)

However, in order to fight this endless “war” against an inanimate enemy whose very definition changes with each pharmaceutical or medical breakthrough, we have been faced with difficult choices.  We have sacrificed many of the founding principles of this country and have decimated American communities with incarcerationand criminal stigma, and wehave fueled this war with hundreds of billions of dollars of taxpayer funding.  It can be argued that the Fourth, Fifth and Eighth Amendments are casualties in the War on Drugs, and the recent legalization of marijuana in Colorado and Washington State imperil the 10th as well, as the federal government has shown no sign of intent to acquiesce to the will of these states.

The sheer number of cases that are brought into inner-city criminal courts in New York City and its immediate surroundings for marijuana and ‘harder’ drug possession are an impediment to community growth and to judicial economy.Taxpayer-funded courtrooms are clogged with what often amount to victimless offenses. Those same taxpayers have to foot the bill for the prosecution of their relatives, friends and community members, and in the end, it can be validly argued that the domestic War on Drugs does little to actually promote the public health and public safety. (Arizona SWAT Team Kills Marine In Botched Raid.)

I have yet to hear a plausible explanation as to how incarcerating a young, repeat marijuana offender in prison, among more sophisticated criminals, or sentencing them to rehabilitation among harder drug addicts will better the chances of that young marijuana offender gaining employment skills, finding a job and getting their life on track; let alone improve the quality of life in their community. Feel free to disagree, but I adamantly believe that the purpose of the criminal justice system is to improve the quality of communities and better the lives of the governed, not to just put people in cages and rack up high arrest and conviction numbers.  However, drug dealers and criminal organizations are willing and able to use gruesome violence to establish dominance in an area, and have racked up enormous body counts through atrocity after atrocity. (Seven decapitated heads found in Mexico.) One glance at the modern inner-city drug-war-battlefield readily reveals this “war” to be largely failed under that paradigm, in spite of the occasional high-profile drug bust.  We, as a nation, are not any safer, healthier or moral as a society after 42 years of drug war. Here are the available numbers from the bureau of justice statistics.   Our communities, particularly minority communities, are hardest hit by constant police intrusion and surveillance diametrically opposed to the libertarian republic which this nation was designed to be.

Attorney General Eric Holder took a major step toward rationalizing drug sentencing, following in the path of several states. He recommended that prosecutors change charging practices to avoid long sentences for non-violent drug offenders.

Conditions of Confinement in New York State Corrections

The public is interested in prison life. Television shows such as “Oz” and “Orange is the New Black” purport to depict life behind walls.   Maybe these shows will alert the public to the scale of  the correctional system, but they will do little to sensitize viewers to the hardships to families imposed by a prison sentence.  Right now, there are 70 correctional facilities across New York state, housing approximately 70,000 offenders.  Many prisoners are parents.   The New York State Department of Corrections publishes a handbook for visitors to encourage families to stay connected.

The hope is that family support will help prisoners transition upon release.  But, in reality most correctional facilities are located in upstate counties – ensuring a difficult and expensive trip for families who live downstate.   Prisoners become more isolated and removed from society without community connection.   Children of inmates also suffer being separated from their parents.  Organizations to support children of incarcerated parents try to assist.  See: the Children of  Prisoners Library.

This year Assembly Bill A-02308-2013, if enacted, would establish a pilot project in which inmates who are parents of minor children would be placed in the correctional facility located closest to the residence of their children.  A small step in the right direction.

No Recording of Police Interrogation in New York

On May 1, 2009, Jonathan Lippman, Chief Judge of the State of New York, announced the creation of the New York State Justice Task Force—one of the first permanent task forces on wrongful convictions in the United States. The Justice Task Force was formed to study wrongful convictions, learn the causes of wrongful conviction, and propose recommendations to make wrongful convictions less likely to occur

Information about the Task Force, its mission and members, as well as its recommendations, can be found here.

Among other criminal justice proposals, the Task Force is unanimously recommending electronic recording of police interrogation because

recording can aid not only the innocent, the defense and the prosecution, but also enhances public confidence in the criminal justice system by increasing transparency as to what was said and done during the interrogation. Indeed, among its many benefits, recording helps identify false confessions; provides an objective and reliable record of what occurred during an interrogation; assists the judge and jury in determining a statement’s voluntariness and reliability; prevents disputes about how an officer conducted himself or treated a suspect, and serves as a useful training tool to police officers.

Over 800 jurisdictions nationwide, including the states of Alaska, Minnesota and Illinois, regularly record police interrogations. A 2004 study conducted by Illinois officials of 200 locations that implemented this reform found that police departments overwhelmingly embrace the measure as good law enforcement whose time has come.

Certainly recording of interrogation could have prevented the wrongful conviction of Jabbar Washington, whose case is discussed once again in the New York Times this morning.

But legislation to require recording of police interrogation is being blocked in New York by the recalcitrance of the NYC District Attorneys. Why don’t our district attorneys join collective efforts to improve the criminal justice system? Why shouldn’t New York be in the forefront of criminal justice reform? Why are we lagging behind?

U.S. Supreme Court Upholds Taking of DNA from Arrestees

In a 5-4 decision, the U.S. Supreme Court upheld a Maryland statute that permits the police to take DNA samples from anyone arrested for a serious crime. Writing for the majority, Justice Anthony Kennedy said the cheek swab was a legitimate identification procedure, like  fingerprinting and photographing. The dissent, written by Justice Antonin Scalia and joined by Justices Ginsburg, Sotomayor and Kagan, accused the majority of being disingenuous in pretending the purpose of the DNA testing is identification rather than its real purpose – solving cold cases.

The case, Maryland v. King,  challenged a Maryland statute that permitted DNA testing of arrestees for serious crimes. Alonzo Jay King, Jr., had been arrested on assault charges and his DNA was taken. His profile matched evidence from an unsolved rape.  He was charged with that rape and convicted.

See the following readings:

  • Maryland v. King, 509 U.S. ____ (2013).
  • SCOTUSBlog Coverage of Maryland v. King including links to the Docket, lower court’s opinion, U.S. Supreme Court opinion, transcripts and audio of the arguments, and related news coverage.