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Can Police Obtain Cell Phone Location Data Without a Warrant?

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This week's Daily Record column is entitled "Can Police Obtain Cell Phone Location Data Without a Warrant?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Can Police Obtain Cell Phone Location Data Without a Warrant?

In their continuing effort to battle alleged criminals both big and small, police are turning to the newest technologies to track and locate suspects. The latest weapon in their arsenal is cell site location information (CSLI).

Increasingly, police agencies are seeking access to the CSLI data maintained by cell phone providers, which provides them with a customer’s past location records. This information is gleaned from the signals sent by the customer’s cell phone to the carrier’s cell phone towers. In many cases, these records are obtained in the absence of a warrant.

Just this summer, two New York courts addressed the legality of this practice and reached conflicting conclusions. The New York Appellate Division, First Department held that warrantless access to this type of information was permissible whereas just last week, the U.S. District Court for the Eastern District of New York held that warrantless access to CSLI data was unconstitutional.

First, in July, the First Department handed down their decision in People v. Hall, 926 N.Y.S.2d 514, (1st Dept. 2011). The Court briefly addressed the constitutional issues presented and then concluded that access to three days of location surveillance in the absence of a warrant was permissible: “Obtaining defendant’s CSLI without a warrant did not violate the Fourth Amendment because, under the Federal Constitution, defendant had no reasonable expectation of privacy while traveling in public.”

In comparison, the EDNY reached the opposite conclusion (In the Matter of  an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 10-MC-897 (NGG)). After an extensive constitutional analysis, U.S. District Judge Nicholas Garaufis concluded that a probable cause warrant issued by a judge is required before law enforcement can obtain a customer’s CLSI data: “This court…seeks to resolve the question before it: whether the request for at least 113 days of cumulative cell-site-location records for an individual's cell phone constitutes a search under the Fourth Amendment…The court concludes that it does. Consequently, the information sought by the Government may not be obtained without a warrant and the requisite showing of probable cause.” 

Of course, this isn’t the first time this issue has been addressed, nor will it be the last. Courts across the country have reached conflicting decisions on this issue and the Supreme Court is expected to review a case that presents a similar issue.

Additionally, there are competing bills pending in Congress regarding geo-location data.

First, in June, Sen. Ron Wyden (D-Oregon) and Rep. Jason Chaffetz (R-Utah) submitted “The Geolocation and Privacy Surveillance Act,” which would require probable cause and a warrant before the government could access all types of geo-location data, including information related to past movements, such as CSLI data.

Meanwhile, Sen. Patrick Leahy (D-Vermont), proposed legislation that would only require a warrant for real-time cell phone data, not past data. Ironically, that same piece of legislation includes a provision that would require law enforcement to obtain a warrant prior to accessing data stored in the cloud.

With the rapid pace of technological change, Fourth Amendment privacy issues are of ever-increasing importance. That people choose to utilize technologies that provide private companies with extensive amounts of personal data does not mean the information magically becomes part of the “public realm” or that consent to governmental access of said data is somehow presumed.

As law enforcement becomes more creative in their efforts to spy on US. Citizens, changes must be made to ensure that our constitutional rights are not obliterated in the face of a fundamental lack of understanding of new technologies.  Or, as Judge Garaufis so eloquently put it: “While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion, the government's surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits. It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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The Lure of Law School and Harsh Realities

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This week's Daily Record column is entitled "The Lure of Law School and Harsh Realities."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

The Lure of Law School and Harsh Realities

Welcome to the hotel California

Such a lovely place…

Plenty of room at the hotel California

Any time of year, you can find it here…

 

Last thing I remember, I was

Running for the door

I had to find the passage back

To the place I was before

‘Relax,’ said the night man,

We are programmed to receive.

You can checkout any time you like, 

But you can never leave!

     --“Hotel California”--The Eagles.

Every year, a new crop of students enters law school, all fresh eyed and bushy tailed, envisioning a future chock full of exciting jury trials and lofty appellate arguments. Law schools lure them in with promises of easy money and prestige. Schools encourage students to believe that a high paying, fulfilling career in BigLaw is a slam dunk while simultaneously downplaying the declining job market and the formidable challenge of paying back student loans, which amount to, in many cases up to $100,000.

These loans pay for an education that many believe is inadequate. Ask just about any lawyer, and they’ll tell you that law school doesn’t teach us how to be lawyers it simply teaches us how to think like one. The end result is that most graduates are ill equipped to actually practice law. Many learn practical lawyering skills through whatever minimal on the job training is offered by their first legal employer.  The quality of the training varies and depends in large part on the employer’s priorities and resources.

The bottom line: the current legal education system is flawed and just about everyone, save most of the law schools, is frustrated and trying to bring about change.

In fact, this very issue was addressed at the American Bar Association’s Annual meeting earlier this month where the New York State Bar Association submitted a resolution urging the ABA to evaluate the current status of legal education in the United States. NYSBA president, Vincent Doyle, echoed the concerns of many lawyers and stressed that law students need to receive more practical training while in law school.

Other issues on the agenda at the ABA’s annual meeting were the problem of burgeoning student debt and job placement.  The ABA House of Delegates passed 2 resolutions designed to address these issues. One resolution was intended to assist graduates in managing their debt, while the other took law schools to task for reporting the employment data of graduates in a misleading manner. The latter resolution urged ABA-accredited law schools to differentiate between graduates who have obtained jobs within the legal profession from those who haven’t.

The ABA isn’t the only one focusing on these issues. Another very concerned segment: recent graduates themselves--disgruntled, jobless, buried in debt and armed with law degrees. What better way to alleviate their frustration and bring about change than to sue the law schools? Or at least, I assume that was the rationale of 3 recent New York Law School graduates who recently filed a $200 million class action against their alma mater, claiming that the law school "consigns the overwhelming majority of [students] to years of indentured servitude, saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off.” In the Complaint, the plaintiffs claim that the law school misleads potential students by asserting that 90 – 95% of students are employed within 9 months of graduation when in fact, that number is closer to 50% if jobs that don’t require a law degree are excluded.

These recent developments are a sign that our legal education system is at a crossroads and it’s time for a change. It’s patently unfair to lure students into law schools based on misleading employment statistics and false promises of the easy life while charging exorbitant amounts of money for an antiquated, ineffective legal education system. This is especially so, since according to the U.S. Department of Labor, in May of 2008, the median annual wages of all wage-and-salaried lawyers were only $110,590—a far cry from the multi-million dollar salaries many students envision themselves earning as BigLaw partners.

Fundamental changes are needed to ensure that incoming students enter law school with their eyes wide open, fully equipped with hard and fast facts about their future careers, including their job placement prospects in the legal field and the risks and benefits of taking on large amounts of student debt.  Likewise, in exchange for their payment of ever-increasing law school tuition, law students should receive a useful, practical legal education that will equip them to practice law in the 21st century. 

Students learn all about fairness and equity in law school. Enough of the empty truisms, let’s put these principles to work. Instead of simply collecting their money and maintaining the status quo, give them a better future in return. It’s the right thing to do; it’s the just thing to do. So, let’s do it already. It’s time for a change.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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Is it ethical, or wise, for lawyers to offer prizes as an incentive to connect on social media?

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This week's Daily Record column is entitled "Is it ethical, or wise, for lawyers to offer prizes as an incentive to connect on social media?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Is it ethical, or wise, for lawyers to offer prizes as an incentive to connect on social media?

Over the last few years, social media platforms such as Facebook, LinkedIn and Twitter have become increasingly popular and the number of people using of these networks continues to rise.  Facebook now has over 750 million users, Twitter has over 200 million users, LinkedIn has over 100 million users, and the fledging social network Google+, which is still invite-only and went live on June 28, 2011, already has over 25 million users.

Understandably, many lawyers are trying to find ways to take advantage the possibilities offered by these ever-growing social media platforms and are always looking for new ways to increase their online reach.

Recently, a New York attorney who was seeking to increase his law firm’s social networking connections asked the New York State Bar Association’s Committee on Professional Ethics whether it would be ethical to offer a prize as an incentive for people to connect with the firm on various social media platforms.

As explained in Opinion 873 (6/9/11): “The inquirer is considering offering the chance to win a prize (to be determined) for connecting to the inquirer on one of those sites. By building the inquirer’s social network this way, the inquirer hopes to market the inquirer’s legal services more effectively.”

First, let’s address the ethical issue, and then we’ll turn to the efficacy of the attorney’s proposed social media strategy.

After reviewing the applicable Rules, the Committee concluded that the proposed conduct was likely ethical, but depending on the attorney’s intent, could be subject to the requirements of the rules relating to “advertising” and “solicitation”:

(T)he prize offer will be an “advertisement” and must comply with Rule 7.1 only if the inquirer’s “primary purpose” is the “retention” of the inquirer or his law firm.” Furthermore, the prize offer will be a “solicitation” only if it is an “advertisement” and is “directed to, or targeted at, a specific recipient or group of recipients” (whether the recipients are already part of the offeror’s own social network contacts or are outside the offeror’s social network contacts). If the prize offer is a “solicitation,” it will be subject to the strictures of both Rules 7.1 and 7.3. No matter how the communication of the prize offer is labeled, it must be truthful per Rule 8.4(c).

So, not surprisingly, just as is the case with offline conduct, the answer depends on the specific facts of the case and revolves around ascertaining how and why the attorney wants to engage in the proposed activity.

Now that we understand the ethical implications, the question remains: does the proposed conduct even make sense from a marketing perspective? In my opinion, it doesn’t.

A successful social media presence is based on interaction. People follow you on Twitter or “like” your Facebook page because you provide them with value, whether it’s interesting content, links to relevant information or engaging conversation.

Offering a “prize” to induce someone to connect with you online is a shallow gesture that will likely be ineffective in the long run. People may “like” your Facebook page just to get the prize, but they’ll never come back to your page if you don’t provide them with meaningful interaction. Gaining a handful of followers doesn’t mean much if they’re not giving you the time of day.

I get the sense that the attorney who made this inquiry of the Committee doesn’t understand social media in the slightest and will no doubt be one the many who takes an ineffectual stab at social media and then throws his or her hands in the air proclaiming that it was all just a waste of time. And, for this attorney, it will have been just that.

But, it didn’t have to be. Had this attorney taken the time to learn about social media, the question asked of the Committee might have been: “Would it be ethical to offer a monthly prize to followers who correctly answer a trivia question?” A question like that would have evidenced a true understanding of social media—ie. a creative attempt to engage with followers and maintain their interest. Instead, the inquiring attorney simply showed an intent to bribe people to follow the firm for the hollow purpose of increasing the number of social media connections.

So, the lesson to be learned is that online interaction in the absence of understanding is like choosing a jury while blindfolded and wearing earplugs: frustrating and, ultimately, doomed to fail.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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For some lawyers, social media doesn't matter

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This week's Daily Record column is entitled "For some lawyers, social media doesn't matter."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

For some lawyers, social media doesn't matter

That’s right. I said it. Not every lawyer will benefit from using social media tools.

Those who read my column regularly or who know of the book I co-authored with Carolyn Elefant, Social Media for Lawyers: The Next Frontier, might be surprised by this assertion. You shouldn’t be.

I’ve never said that social media is magic bullet that will solve all your problems. In fact, for years now, I've said just the opposite on many occasions. See, for eg.--here, here, here and here.)

And, it’s never been my position that social media will make you a better lawyer. The only thing that will make you a better lawyer is hard work, experience and developing expertise in your chosen areas of practice.

Likewise, I’ve never claimed that using social media will result in potential clients breaking down your door seeking to hire you.

Instead, I’ve always said that social media is a phenomenon, not a fad, and for that reason, it’s important to understand it and stay abreast of changes in social media. By doing so, you’ll be better equipped to determine whether interacting on social media makes sense for your law firm’s needs.

And, once you’ve learned about social media, you may very well decide that the benefits of using social media are outweighed by the drawbacks. These drawbacks include potential ethical pitfalls and the time you must spend creating your profiles and interacting with other users. For some lawyers, this time could be better spent on other tasks, and social media is a time suck, plain and simple.

If social media isn’t a good fit for your practice, you may find that after investing all that time you may very well find that you’ve gained nothing. Lawyers who find themselves in this situation will be understandably frustrated.

So, you may be wondering which lawyers should be using social media. Unfortunately, there’s no cut and dry, definitive answer to that question. Whether your practice stands to benefit from social media depends on a number of factors, including your goals, how long you’ve been in practice, whether you already have a steady stream of business, how strong your professional network is, your geographic region, your areas of practice and your comfort level with online technologies.

Each and every one of these factors will affect how successful a social media campaign will be. For example, if you’ve been in practice for a decade and have a well-established practice and referral base, then spending time using social media tools might not be worthwhile for you, if your goal is to gain more clients or expand your professional network. You’ve already done a good job at accomplishing these goals using traditional methods and social media wouldn’t be a good time investment for you.

Likewise, if you live in a rural area and focus on criminal defense, you may find that using social media to obtain new clients won’t work well since your potential clients probably aren’t using the Internet to find an attorney, nor is there likely to be a huge population from your geographic location using certain social networks, such as Twitter. However, if one of your goals is to obtain more media mentions and local reporters are on Twitter, it might make sense for you to follow and interact with these individuals on Twitter.

Social media might also be worth your time if you’re just opening your firm, fresh out of law school, or just left a large firm and plan to hang your own shingle. This is especially so if you have your sights set on a niche practice area.  Blogging about your chosen practice niche would allow you to hone your writing skills, showcase your knowledge and keep track of changes in your field. Likewise, interacting on social networks with other lawyers from across the country who handle similar cases would be a great way to expand your professional network and broaden your referral base.

The bottom line is that there are many types of lawyers who stand to benefit from engaging in social media, just as there are many who don’t. It’s not a one-size-fits-all proposition—what works for some attorneys won’t work for others.

Whether using social media is a worthwhile investment for your law firm is something that only you can determine, but don’t write it off simply because you don’t understand it. Do some research, read a few articles, review a few blog posts, and gain a firm grasp of the different platforms and tools. Then, and only then, will you be in a position to make an educated decision about social media. And, for some firms, that decision will be that social media simply isn’t worth their time.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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What's for dinner?

At the Farmers' MarketImage by NatalieMaynor via Flickr

My Twitter followers and Facebook friends regularly ask me what I'm eating and tell me what's on their menu. So, for my culinary friends, if you're wondering what on my menu for the next few days, head on over to my Epicurean Esquire blog and read this post, where I tell you all about my latest culinary undertaking.

Long story short, I'm sold on Lyn-Genet Recitas' "Plan" and the hubby and I are embarking on the 3-day cleanse tomorrow, even though I've never dieted before, have never done a cleanse and am in the best shape I've been in since I was 20.

So head on over and read all about it. And, if you're not interested, carry on...;)

(I know this might sound like an infomercial. I promise I get nothing from discussing this. I'm simply sold on the concept and thought others might be interested as well.)

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Where I'll be, where I've been and what I've said

green checkmarkImage via Wikipedia

First off, I was honored to be included in the inaugural Fastcase 50, a list dedicated to the "law's smartest, most courageous innovators, techies, visionaries, and leaders." Thanks so much to the whoever nominated me and to the Fastcase selection committee. I'm truly humbled to have been included on this list in the wonderful company of so many smart, creative innovators!

Also, I already have a few speaking engagement set for September. If you're able to make it to one of them, please stop by and say "hi":

And, in case you missed it,over the last few months, I had the honor to speak at a number of really interesting conferences:

Finally, this summer, I was quoted in a number of articles. The articles included some very useful information, so check them out:

 

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Should social media passwords be a job requirement?

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This week's Daily Record column is entitled "Should social media passwords be a job requirement?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Should social media passwords be a job requirement?

I recently learned that the Yates County Sheriff’s Department was requiring current employees and job applicants to provide the Department with their social media passwords. The requirement was later rescinded for current employees.

The Yates County Sheriff’s Department isn’t alone. Requiring social media passwords as part of the job application process is an increasing trend—and a disturbing one, especially when the employer is a governmental entity, such as a law enforcement agency.

A similar case made the news earlier this year when Maryland corrections officers were required to provide the Maryland Division of Corrections access to their Facebook accounts as part of the job recertification process.

The ACLU of Maryland became involved and challenged the policy, asserting that the policy violated the privacy right of employees, job applicants and their “friends” on social networks. In January of 2011, the ACLU sent a letter to the DOC (online: http://www.aclu-md.org/aPress/Press2011/collinsletterfinal.pdf) summarizing its objections. In part, the ACLU objected to the privacy violations occurring because of the policy: 

Neither Officer Collins nor his Facebook “friends” deserve to have the government snooping about their private electronic communications. Login information gives the DOC access to communications that are intended to be private…(and) the DOC demand for login information is equivalent to demands that they produce all of their private correspondence and photographs for review, or permit the government to listen in on their personal telephone calls, as a condition of employment.

The Maryland DOC later suspended the policy for 45 days as it related to current employees and in April 2011, revised the social media policy somewhat, but the revisions did little to alleviate the ACLU’s privacy concerns.

The Maryland DOC and the Yates County Sheriff’s Department aren’t the only law enforcement agencies requiring applicants to provide social media passwords. In fact, according to a November 2010 report, the IACP Social Media Survey, issued by the International Association of Chiefs of Police, nearly one third of all law enforcement agencies required access applicants to provide access to their social media profiles as part of the background check.

That so many law enforcement agencies engage in this practice is troubling for any number of reasons. Many social media users choose to limit public access to their social media profiles in order to enhance their levels of privacy and they do so for a reason: to keep their personal information private. When an agency obtains passwords to an applicant’s social media profiles, the agency is able to access all electronic communications related to the profiles, regardless of the privacy settings in place.

Additionally, when agencies obtain passwords to these profiles, they gain access to a vast array of information, including communications from unsuspecting third parties. These communications include messages and photographs posted to the applicant’s wall, status messages from friends that appear in the applicant’s social media stream and private messages from other users that are intended for the applicant’s eyes only.

Even if law enforcement job applicants consent to allow hiring agencies access to social media profile passwords, the “friends” of the applicants most certainly did not consent to having communications that they believed to be private perused by law enforcement officials. Thus, policies of this type infringe upon the privacy rights of innocent, unsuspecting third parties who happen to be friends with and correspond with job applicants. For that reason alone, this practice should be terminated.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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