Technologist - The FindLaw Legal Technology Blog

August 2017 Archives

Now that smartphones have become the most distracting part of human anatomy, it seems like common sense that lawmakers would enact regulations to prohibit, or at least limit, their use while driving.

In addition to lawmakers doing what they can to stop people from being distracted by their devices while driving, device makers are as well. Apple recently announced that a "Safe Driving Mode" will be included in the newest iPhone operating system, iOS 11, set to debut with the tenth anniversary edition of the iPhone.

However, that Safe Driving Mode was the center of an unsuccessful negligence lawsuit filed by the parents of a deceased teen in California.

Protect User Information From Online Markets

In the sci-fi thriller 'Minority Report,' Tom Cruise sees tailor-made advertisements targeting him pop up wherever he goes. It's a paranoid's delusion come true.

Well, it's not science fiction anymore and it's not in your head. Advertisers are following you wherever your cell phone, smart device, laptop, or computer goes.

And it's going to get worse, so what do you do? Throw out your devices? Melt your face to hide your identity? Read this blog?

Contempt Continues for Ex-Cop Refusing to Decrypt Hard Drives

It's just a matter of time before Francis Rawls will have to man up to some damning technology.

You see, Rawls has been sitting in jail two years now for refusing to decrypt his hard drives. A judge held him in contempt in 2015 because he would not unlock encrypted drives connected to his Apple Mac Pro. Why?

He says it's because he has a right not to incriminate himself, but it could be that the sentence for possessing child porn is a lot worse than two years. Either way, Rawls is in tech hell.

Ellen Pao 'Resets' Gender Bias in Silicon Valley

In her book "Reset," Ellen Pao reveals critical details from her historic lawsuit that never made it to the jury.

Pao, a former partner at Kleiner Perkins, one of the nation's biggest venture capital firms, sued the company in the most-watched sex discrimination case in the history of the Silicon Valley. But she didn't get to explain some things, and that was most painful part of her experience.

"You've never done anything for women, have you?" the opposing counsel asked snidely.

Fake Credit Cards Donate to MalwareTech's Legal Defense Fund

If the internet has a soul, it has served up bad karma to Marcus Hutchins.

Hutchins, a security researcher a.k.a. "MalwareTech," allegedly created the Kronos malware that steals banking credentials. He has pleaded not guilty to criminal charges, but he is getting a crypto-type of payback.

Unknown sources have donated at least $150,000 to his legal defense fund -- from stolen credit cards or fake account information. Yep, payback is a bit.

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Social media outlets now connect billions of people around the globe on a constant basis. Facebook, by headcount, has become the largest nation on the planet, with approximately two billion users. A tremendous number of these users communicate with others via their social media accounts many times a day. Of course, there are many positive aspects of social media communications; but, regrettably, there are palpable negatives as well.

Cyberbullying is one of those negatives. All too often, for example, a minor or a group of minors bullies another minor, with disastrous consequences. The victim can be ostracized, humiliated, and driven to anxiety, depression, and even self-destruction. This can even happen with adults. We learned in the news recently of a woman who was prosecuted for egging on her boyfriend via text messages to commit suicide. She ultimately was found guilty for manslaughter.

Is Twitter a Public Forum?

Yes. Twitter and social media can be official public forums with constitutional protections when used for official government communications. That's not to say that Twitter or Facebook are themselves public forums, rather these sites provide a space for public forums to be held.

Like consumers fidgeting with most emerging technologies, the law often seems confused with how to handle new and even old tech. Recently, questions abound whether a government official can block a citizen from an official communication channel, especially when an official's personal account is used as the official communication channel. The president, and other members of government, are currently finding themselves defending lawsuits over this very issue, likely due to President Trump's extensive use of Twitter.

It's no secret that law firms are starting to utilize all sorts of new technology and software. Granted the rate of adoption for new tech at law firms is typically abysmal, one law professor's special project might actually be showing a change in the weather.

The Law Firm Innovation Index is the project of Daniel Linna, a law professor in Michigan. The index works by having bots crawl the web to search for key terms on law firm websites in order to provide a general idea of what technology law firms are using, or which tech industries firms seem to be targeting most. The index only examined firms in the Am Law 200 and Global 200.

Detroit Law Firm Starts Self-Driving Car Team

Only in Detroit would you expect to find a law firm with a self-driving car practice.

America's traditional car capital is also home to Honigman Miller Schwartz and Cohn, a law firm with 300 attorneys. They are a long way from Silicon Valley, where autonomous car research is progressing, but the lawyers plan to pass the competition with their first-of-its-kind practice group.

"The establishment of an Autonomous Vehicle Industry Group made perfect sense for us given our tremendous experience working with clients in the automotive, technology, regulatory, manufacturing and privacy/data sectors," said David Foltyn, Chairman and CEO of Honigman.

Can Technology Save the 9th Circuit?

When a judge frames the issue in a case, sometimes it's a hint about which way the hearing is going to go.

"Rebooting the Ninth Circuit: Why Technology Cannot Solve Its Problems" was the titled issue of a hearing before a Senate Judiciary Subcommittee. It was not a good sign for the American Bar Association, which weighed in on the issue.

"Contrary to the conclusory title of your hearing, the ABA believes that technological and procedural innovations have enabled the Ninth Circuit to handle caseloads efficiently and maintain a coherent and consistent body of law," Patricia Lee Refo wrote for the ABA.

So the ultimate question is whether the government will split the court of appeals. It's anybody's guess how this one is going to go.

Legal software keeps getting better and better. While the fear of being replaced by an artificially intelligent robot looms more closely for some lawyers than others, for the rest of us, the technological advances just make practicing law even better, and easier.

If you've been thinking about using smart contracts, or some other type of legal AI software or service, you probably have a few questions. Below you'll find five of the top frequently asked questions on smart contracts and legal AI software.

Tech IDs 4,000 Fraudsters From DMV Records

If standing in line at the DMV weren't bad enough, new facial recognition software is turning that trip into an arrest in New York and other states.

New York has used facial recognition technology to arrest more than 4,000 people for identity theft and fraud crimes. According to reports, that number will likely skyrocket because the DMV technology is getting better.

"The use of this facial recognition technology has allowed law enforcement to crack down on fraud, identity theft, and other offenses -- taking criminals and dangerous drivers off our streets and increasing the safety of New York's roadways," announced Gov. Andrew Cuomo.

Judge Tosses AT&T Challenge to Google

'You're outta there!' a judge declared, tossing out AT&T's lawsuit to stop other internet service providers in Louisville, Kentucky.

In a city famous for its "Louisville Slugger" baseball bat, Judge David Hale dismissed AT&T's lawsuit against a local government ordinance that gives other ISP's quicker access to utility poles. The "One Touch Make Ready" ordinance allows competitors to make adjustments to utility poles rather than wait for AT&T and others to move their wires.

"Louisville Metro has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety," Hale wrote in dismissing the case with prejudice. The ruling cleared the way for Google Fiber, AT&T's biggest competitor, to get back in the game.

Clients are increasingly turning to the internet to find their attorneys. But lawyers don't just need a working website -- they need a website that's sensitive to the proclivities of the average online user. Think: impatience. Internet users are incredibly impatient.

The amount of time it takes for your site to load actually makes a huge difference, as explained by the latest white paper by FindLaw Lawyer Marketing: Seconds Matter: The Real-World Risks of a Slow Mobile Website. If your mobile site loads too slowly, you may be losing clients. What can you do to fix this?

As a practitioner, you may have noticed that you can't throw a pleading into a crowded room nowadays without hitting someone trying to sell you on some new legal services innovation. In fact, a new report by Thomson Reuters indicates that the number of patents filed for new legal technology has increased by nearly 500 percent. (Disclosure: Thomson Reuters is FindLaw's parent company.)

The numbers are staggering enough to make you want to throw a pleading in a crowded room. In 2012, less than 100 legal services related patents were filed; in 2016, that number jumped to 579. The majority of these patents, approximately 38 percent, were filed in the United States, with China having filed nearly as many, at approximately 34 percent.

Why Your Law Firm Needs a Tech Committee

If you were on a rocketship going to the moon, how long would it take to get there?

Oh wait, you don't have a rocketship and you don't know how to command one anyway. So basically, you're not going to make it.

That's kind of the problem with many law firms today. Relatively few have fully functional tech committees, and some attorneys wouldn't know what to do if they had one.

Is the PACER Security Problem Fixed or Not?

If you ever wondered about your federal court PACER bill, there was a good reason.

It turns out that the electronic access service had a software issue for decades. The flaw made it possible for hackers to access court documents and charge it to other user accounts.

The courts reportedly have fixed the problem. So do you trust the system now?

There's no question to it, using technological gadgets during a trial, or even just a hearing or scheduling conference, has made the lawyer's life increasingly easier. Using laptops, smartphones, tablets, digital projectors, and other devices can make a big difference, not just in saving time, but also in keeping organized and making presentations to the court. Electronics, which were once banned, are now becoming commonplace.

But what do you do if a device fails? Or worse, fails mid-presentation? Below, you'll find some tips on what to do, and what not to do.

500 Smart Locks Fail After IoT Update

You know how frustrating it is when you get locked out of your phone?

Now imagine getting locked out of your house -- by a so-called smart lock. Don't you just want to smash the thing?

Take a number because faulty software locked out hundreds of homeowners. It's another example of a possible plague for the Internet of Things. This hits close to home for the legal field, as many attorneys are beginning to use IoT devices in the course of their workday.

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Corporate America and companies around the globe are spending vast amounts of money trying to keep up with all sorts of threats in this new digital age. So, how are companies really doing?

Unfortunately, not so well. Indeed, according to PwC's 2017 Digital IQ Survey, as reported by PR Daily, barely more than half of IT executives from the US and 52 other countries reported that their companies have a "strong digital IQ." This is down from 67 percent so reporting in 2016, and 66 percent in 2015.

Nintendo Sued for Allegedly Stealing Gamevice Invention

The video game business is no game; it is all business.

That's the bottom line when it comes to Nintendo's Switch, a controller-console that slides onto a tablet computer to allow portable gaming. The company has sold almost 5 million units since March, boosting revenue to $1.41 billion during the first quarter this year.

The problem is, another company says Nintendo stole its invention. Patent game on.

Perhaps you've heard of Patreon, the crowd-funding site that helps online artists and content creators establish a monthly income from masses of low-level subscribers. The website allows content creators to make profile pages and request support for their creative endeavors in the form of pledges. In return for their pledges, supporters are often treated to exclusive content or other rewards. But most of the supporters don't do it for the swag; they support their favorite content creators in order to see them continue to thrive and create.

Okay, so now that you know what Patreon is, you must be thinking: Is there a way for me fund my endeavors in the legal field?

Fortunately, there is, but there are definitely some exceptions.

The Sixth Circuit case, Carpenter v. United States, which upheld law enforcement's ability to obtain historical cell phone location data without a warrant, is heading for the U.S. Supreme Court. At issue is whether obtaining location data from service providers without obtaining a warrant first violates the Fourth Amendment.

Currently, courts have been finding that a warrant is not needed on the theory that location data, and other metadata, are not private, but rather functional. The analogy to postal mail is unconvincingly drawn, explaining that like the addresses, and stamp, on an envelope, a person's location data is something that helps the service provider provide their service, and thus is the functional equivalent to a return address and not private.

Sadly, the droid you are looking for still does not exist. And to make matters worse, the walking talking humanoid robot of your dreams is still prohibitively expensive. But, new software that utilizes AI technology is bringing us closer to the day where a humanoid robot can actually prove helpful to a practicing attorney.

While we may not have a C3PO style robot paralegal yet, the software, at least in patent and bankruptcy law, is getting sophisticated enough to consider making one, or a small army. Fortunately, you don't have to wait for a walking, talking metal box to use the newest practice software, for the most part, any regular old computer should do the trick (so long as it's not actually an old computer).

While many science fiction fantasies may posit that when AI takes over the world, the type of discrimination we know today will no longer exist because the robot overlords just won't care about color, gender, or origin ... or, will have just killed us all off indiscriminately.

Even though AI and data science are advancing rapidly, systemic discrimination permeates everything. Implicit bias is real, and is being passed on to the algorithms and artificially intelligent machines that may soon dictate and predict our very lives.

A contest run by National Institute of Justice (NIJ) sought to help develop technology to predict when and where crime will occur. However, as pointed out by the brilliant minds at Lawyerist.com, there's a bit of a problem inherent in the system: crime prediction and forecasting just isn't fair.

Should Congress Regulate the Sexbot Industry?

Are sexbots bad or are they just made that way?

In a sexually complicated society, it is actually a question for debate. One law professor wants Congress to regulate the developing sexbot industry because it could cause people to act out rape and other sex crimes.

"The obvious first step would be to have hearings and do studies to determine just how serious the threat is, whether there are any real benefits to having sexbots programmed to simulate being raped, and then what if any new laws, regulations, etc. might be appropriate," says John Banzhaf, a professor at George Washington Law School.

Podcasting Patent Is Dead, but Not the Troll

All good things must come to an end and even some bad things, too.

At least that's the story of Personal Audio and its litigation against podcasters. The failed startup lived on suing companies based on its patent for "disseminating media content representing episodes in a serialized sequence."

The lawsuit business worked for a while, including victories against Apple and other companies, but an appeals court put an end to the patent-trolling against podcasters.

Massachusetts Targets Patent Trolls

Our story begins with Carbonite, best known as the icy preservative of Han Solo in "The Empire Strikes Back."

Only in this story, Carbonite is the name of a data backup company. It's not quite a Star Wars story, but there are trolls -- patent trolls.

According to reports, Carbonite has spent millions fighting false patent infringement claims and become a hero in the industry for not giving up. Now Sen. Eric P. Lesser is joining an alliance for legislation to stop such attacks in "the other Silicon Valley" -- Massachusetts.

Media Calls Out Prosecutor for Apparently Not Understanding Stingray Use

You need thick skin to be a criminal prosecutor, but when complicated technology comes at you hard, you have to grow a new layer.

So it is for Joseph Alioto, a federal prosecutor in an attempted murder case pending in Oakland. After a tricky hearing that involved Stingray technology, Alioto had to deal with media reports that he didn't know what he was talking about.

In an age of fast-developing technologies, it's a question every lawyer will face: How does this thing work, anyway?

Let's face it, artificial intelligence is already here in many different forms. Siri, Alexa, and all the other digital assistants are now commonplace in many peoples' lives. Rather than flipping on the TV, or opening a computer, or looking at that thermometer hanging outside your back window, or just even opening that window, to find out what the weather's like, most of us now just ask: "Hey Siri, what's the weather?"

This simple difference may seem minute, but AI has the potential to impact the way we do things, the way we think about things, and the way we make decisions, from small to large.

When Does a Tweet Matter in the Law?

If a president could make law by tweeting, President Trump would have made more laws than any president in history by now.

But a tweet is not a law. It is not an executive order. Trump couldn't even enforce his no-transgender-military tweet.

When it comes to White House jobs, however, the president clearly can tweet that you're fired. In any case, the Twitter president has raised a question about when does a tweet matter in the law.

Cybersecurity isn't some science fiction fantasy for the big screen and television. It should be an important focus for any business or professional that maintains confidential or sensitive digital information.

Attorneys are among those with the most to lose in a cybersecurity breach. After all, it's not just a client's information that could be on the line: an attorney's license can be in jeopardy for failing to sufficiently safeguard a client's files.

Below, you'll find four cybersecurity threats and issues of which attorneys need to be aware.

Man Faces Prison Time for Threatening Cyberattack on Legal Website

Kamyar Jahanrakhshan apparently didn't listen to Jim Croce.

Croce, a popular American folk singer from the 1960's, warned us not to mess around with the wrong people. "You don't tug on Superman's cape. You don't spit into the wind."

And Kamyar, you don't threaten a case law company because you will never win.

Sonic weapons have been around for some time, but a new application could be cause for concern in the future. At the recent Black Hat Conference, researchers from Alibaba Security demonstrated how a sonic gun could disrupt many of the new smart technologies that have been released to the public and consumers.

The researchers were able to show how a drone could be taken down, a "hoverboard" could be disoriented, and robots made to fail, with the use of homemade ultrasound emitting systems. The researchers explained that the same technologies they targeted exist in self-driving cars and other devices, including smartphones.

Breaking Out of the Social Media Loop

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Every single day, billions of people spend countless seconds, minutes, and hours on social media. Why?

This occurs in part because it is the business of social media companies to do their best to hold you captive. They want their sites to be "sticky," so that you spend your time (and ultimately your money) there.

Thus, at bottom, as businesses that have as their appropriate mission the duty to maximize profits for shareholders, they compete fiercely for the attention of social media users.