Tagged: Internet

Supreme Court Reverses Conviction in Facebook-Threats Case

In a follow up to our previous post, the Supreme Court has now decided Elonis v. United States, reversing the conviction based on threats the defendant posted on Facebook against his ex-wife and others.  The Court held it was error for the lower court to instruct the jurors that the defendant could be convicted if the posts would be considered by a reasonable person to be threatening, characterizing that standard as one of traditional civil negligence.  The Court did not address the First Amendment issues concerning the criminalization of Facebook posts.

Related Readings:

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).

New New York Legislation Against Cyberbullying

BY: Jessica Piperis

Bullying has been prevalent on school grounds even before the idea of the Internet or social media ever came into being. Today, bullying doesn’t stop at the playground: it follows children home by lurking on Facebook, Twitter, Instant Message, and the like. It seems never to go away and children are completely surrounded, twenty four hours a day, seven days a week.  One can imagine how overwhelming this type of pressure must feel.

On July 9, 2012, Governor Andrew Cuomo signed a new piece of legislation with the aim of combating cyberbullying in schools. Section 13 of New York State’s Education Law is meant to “strengthen a school’s response to harassment and bullying” according to Cuomo’s released press statement. This new law contains three provisions to help protect students: (1) schools are required to act in cases of cyberbullying even if it happens off school grounds; (2) school districts are required to create protocols that deal with cyberbullying; and (3) current school employees, as well as future employees are required to have training in identifying and preventing cyberbullying. The new law creates a platform for schools to raise awareness within schools through policies and procedures.

While this new piece of legislation purports to take a legal stand against cyberbullying, in reality it fails to prevent actual cyberbullying. That is, while the law requires educators to take action against cyberbullying, it only requires action after the bullying has already occurred.  It thus fails to address the issue of educating all students and especially those students who are participating in cyberbullying.  Education can and should begin at a very young age within the school system and should include the education of parents.  And, in order to create real deterrence, it may be necessary to create cyberbullying as a crime.

To be sure, the new law is a step in the right direction and it shows that the legislature has begun to tackle a difficult, but very real issue. However, the legislature has failed to make any real change by creating this law because it does not address the issue beyond the realm of the educational system.

Section 13 of New York State’s Education Law will go into effect July 1, 2013.