Previous month:
April 2012
Next month:
June 2012

Proposed cyberbullying law is unnecessary

Stacked3This week's Daily Record column is entitled "Proposed cyberbullying law is unnecessary."

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

*****

Proposed cyberbullying law is unnecessary

Recently, Monroe County Legislators Mike Barker and Carmen Gumina proposed legislation that would make cyberbullying a crime. Under the bill, cyberbullying directed toward a minor would constitute a Class A misdemeanor in Monroe County, punishable by up to a year in jail.

The crime of cyberbullying would occur where the defendant engaged in the following conduct: “(W)ith intent to harass, annoy, threaten or place another in fear of personal injury, engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communication or causing a communication to be sent by mechanical or electronic means, posting statements or images on the Internet, through a computer network, or via cell or smart phone. Acts of abusive behavior shall include, but not limited to: taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor without lawful authority.”

WHAM (13wham.com) recently reported that Gumina explained the law was needed because current laws have not kept up with technology: “There is no law around posting pretty nasty things about your peers. … It’s almost impossible now because there is no law on the books … At least there will be a law in the books that could help law enforcement prevent bullying from happening in the first place.”

While Gumina’s intentions are no doubt well-intentioned, his assertion that no other laws address this type of conduct is simply false.

I am the co-author, along with Brighton Town Court Justice Karen Morris, of the Thomson West treatise “Criminal Law in New York,” a book that thoroughly examines the substantive crimes defined in New York’s Penal Law.

As part of my preparation for the yearly supplement to this treatise, I review all new New York cases addressing the crime of aggravated harassment in the second degree, which is, just like the cyberbullying law proposed by Barker and Gumina, a Class A misdemeanor.

Penal Law s. 240.30(1) provides that a person is guilty of aggravated harassment in the second degree “when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm …”

When Penal Law s. 240.30(1) was originally enacted, it required that the communication occur “by telephone, or by telegraph, mail or any other form of written communication.” In 2008, the statute was amended to include communications delivered via digital means and the following language was added: “by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication.”

In keeping with the legislative intent behind the 2008 amendment, New York courts have broadly interpreted this section to include harassing communications made using mechanical means, including the Internet, so long as the communication was directed at the complainant, People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999).

Also covered by this section are unwelcome messages transmitted via online social networking sites or online forums, People v. Rodriguez, 19 Misc. 3d 830, 860 N.Y.S.2d 859 (City Crim. Ct. 2008); People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999). Similarly, emails and text messages are also forms of communication contemplated by Penal Law s. 240.30(1), M.G. v. C.G., 19 Misc. 3d 1125(A), 862 N.Y.S.2d 815 (Fam. Ct. 2008); People v. Limage, 19 Misc. 3d 395, 851 N.Y.S.2d 852 (City Crim. Ct. 2008).

So, contrary to Gumina’s contention, the proposed cyberbullying bill is unnecessary. The conduct prohibited by the bill is already unlawful in New York pursuant to aggravated harassment in the second degree and passing the proposed legislation would duplicate the current law and cause confusion in the prosecution of new crimes.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. 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.

Enhanced by Zemanta

More reviews of my book "Cloud Computing for Lawyers"

T Cloud bookwo more reviews of my newest book, Cloud Computing for Lawyers (ABA 2012), were recently published.

The first was by Rachel Wilcox at the Mass. LOMAP law practice management blog. Here are a few choice excerpts:

(Nicole is) very entertaining in the introduction, so I was optimistic. And, rightly so. Nicole does pretty excellent work rounding out her first two, or two-and-a-half, chapters (what some would find quite basic information) with specific industry examples and pointed applications, so although we might be reading what we already know, in a general sense, she includes a bit of extended information, which is consistently worthwhile material...I was particularly impressed by her third chapter, on risks and benefits...Stephanie Kimbro’s chapter on ethics ...seems to be exhaustive of the ethical implications for attorneys relying on the cloud...Nicole (then) gives a comprehensive rundown of various service providers, by category, in her final chapter...The book was a quick, but truly informative, read. Can't go wrong.

The second was written by my good friend Carolyn Elefant at her wonderful My Shingle blog. Here are some excerpts from her review:

Cloud Computing for Lawyers, by Nicole Black (my co-author for Social Media for Lawyers) is an extraordinary book...(It) is a critical read for all lawyers, because all lawyers deal with the cloud one way or another – and if they don’t, their clients do. Lawyers will be faced with a host of different products and need to know how to choose those that are reliable versus those that may compromise client data. With this book, lawyers are well armed for a bright future where the sun shines because of the cloud.

Thanks so much to both of Carolyn and Rachel for taking the time to write such thorough and thoughtful reviews of my book!

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. 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. 

Enhanced by Zemanta

Cloud Computing, Client Portals, Automating Legal Practice and More

Yes checkYes check (Photo credit: Wikipedia)

Lately I've been busy writing blog posts for the MyCase blog and writing articles and blogs posts for the ABA GPSolo eReport, Ms. JD, and starting this Friday, I'll be blogging bi-weekly at the Lawyerist blog as well.

For those who are interested, here are links to some of my recent posts:

I've also been busy speaking about the intersection of law and technology this year at the following venues:

  • May 8, 2012--"Social Media and the Courtroom"--RIT graduate class
  • April 26, 2012 -- KEYNOTE--"Social Media for Lawyers: The Next Frontier"--Law Society of Upper Canada--Toronto, Canada
  • March 9, 2012 -- "The Ethics of using Social Media for Trial Prep"--Monroe County Public Defender's Office--Rochester, New York
  • January 30, 2012 -- "Global Trends in Law and Technology –an Analysis and Roundtable Discussion"--LegalTech New York
  • January 26, 2012 -- "Social Media for Lawyers"--Toronto, Canada law firm

In addition, I'll be speaking about the ethics of social media in a few weeks at the Monroe County Bar Association and will be speaking at 2 different plenary sessions about both social media and cloud computing at a conference in Nova Scotia in July.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. 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. 

Enhanced by Zemanta

New York Court of Appeals grapples with Internet porn

Stacked3This week's Daily Record column is entitled "Court of Appeals grapples with Internet porn."

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

*****

Court of Appeals grapples with Internet porn.

Last week, the New York Court of Appeals handed down its decision in People v. Kent, 2012 N.Y. Slip Op. 03572. In this decision, the court considered whether the defendant, by simply viewing images of child pornography on his computer screen, had knowingly procured or possessed child pornography in violation of Penal Law § 263.15 (Promoting a Sexual Performance by a Child) and Penal Law § 263.16 (Possessing a Sexual Performance by a Child).

The issue presented was a narrow one and required an analysis of whether “accessing and displaying” the images in a Web browser — where the browser, unbeknownst to the defendant, stored the images in its Web cache — constituted “control” over the images sufficient to amount to procurement or possession of the images.

After analyzing the applicable statutory definitions, case precedent, and the legislative intent behind the enactment of the relevant statutes, the court concluded that in the above scenario, sufficient “control” was not shown:

“We hold … that regardless of a defendant’s awareness of his computer’s cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.”

The court then explained that New York’s current statutory framework was enacted prior to the large scale use of the Internet and was thus arguably in need of an update to include language like that found in the correlating federal statute:

“The federal statute regulating conduct related to child pornography, 18 USC § 2252A, provides a useful contrast. Section 2252A was amended in 2008 to provide that any person who either “knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” is subject to a fine and imprisonment …”

I agree with the court’s analysis of the law as written and believe that the law is in need of revision in order to keep up with changing technologies.

That being said, what interested me most about this decision was not the court’s holding but the discussion found in the concurring opinions centered around whether simply viewing child pornography should be a crime.

In his concurring opinion, Judge Smith agreed that the legislative intent behind the New York statutes was to target consumers of child pornography, but he seems to (mistakenly) believe that those who simply view it do little to contribute to demand for child pornography since their actions don’t profit those who distribute it:

“I … acknowledge that, as Judge Graffeo says, Penal Law §§ 263.15 and 263.16 are designed to target the consumers of child pornography, in the hope of eliminating the market for it. … Under Judge Graffeo’s reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free — someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer — is subject to up to seven years in prison for a first offense (see Penal Law § 70.00[2][d] ). This is surely a stringent punishment for someone whom many would think more pathetic than evil.”

What Judge Smith doesn’t take into account is that the act of simply visiting most websites results in profits for the website owners. Even owners of websites that require no entry fee for the viewing of some images — especially those as profit-savvy as the purveyors of online pornography — are undoubtedly earning passive income from, at the very least, ads appearing on the site.

As the website receives more traffic, it becomes more appealing to advertisers and the website owner can thus charge more for ads placed on the site. So, every time someone visits a free website that contains images of child pornography, that individual is undoubtedly lining the pockets of — and increasing the future earning potential of — distributors of child pornography.

Accordingly, the inquiry should not focus on whether the consumer must pay a fee to access the images, since the mere act of visiting these websites supports the child pornography trade. If the legislative intent is to decrease demand by instilling the fear of prosecution in those who might view online child pornography, then the act of simply viewing any online image of child pornography should be unlawful. Whether payment is required for the “privilege” of doing so is irrelevant; the producers of online child pornography are profiting from the violation of our children nonetheless.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. 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.

Enhanced by Zemanta

iPad resources for lawyers grow plentiful

Stacked3This week's Daily Record column is entitled "iPad resources for lawyers grow plentiful."

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

*****

IPad resources for lawyers grow plentiful

In just a few short years, iPads have become ubiquitous. Although the first iPad was released just 2 years ago, iPads are popping up everywhere, from coffee shops and airports to the boardroom and the courtroom.

It seems indisputable — the tablet computing revolution has begun and, just like everyone else, lawyers are quickly joining the ranks of iPad owners. In fact, according to the American Bar Association’s 2011 legal technology survey, the iPad is used by 89 percent of those lawyers who use a tablet device for work-related tasks and 15 percent of respondents used a tablet to conduct work while outside of their primary workplace. For firms with more than 500 attorneys, that number increased to 26 percent.

The problem with tablet computers like the iPad is that it’s difficult to know where to start. Sure it’s easy to turn it on and use it for media consumption and sending emails, but iPads can be used for much more than that. iPads are full of unrealized potential; the trick is figuring out how take full advantage of them.

Fortunately for iPad-toting lawyers, there are a number of great resources available to help you learn how to make the most of the iPad in your law practice.

First, the American Bar Association recently published 2 books ideal for lawyers seeking to learn how to put their iPads to use: “iPad in One Hour for Lawyers” and “iPad Apps in One Hour for Lawyers.” Both books were written by Tom Mighell and are available for purchase at the American Bar Association’s website.

There are also a number of blogs devoted to lawyers and their iPads, including: 1) Tablet Legal, a blog written by attorney Josh Barrett (no longer being updated but provides a wealth of information in its archives), 2) iPad Notebook, a blog written by Justin Kahn, an attorney and Adjunct Professor at the Charleston School of Law, 3) iPad 4 Lawyers, a blog written by Tom Mighell, author of the two books listed above, and 4) Legal iPad, which is one of my blogs.

Two other blogs are worth mentioning as well, since even though not devoted solely to iPads, they provide a wealth of information about iPads for lawyers: 1) iPhone JD, written by attorney Jeff Richardson and 2) Trial Technology, a blog written by trial consultant Ted Brooks.

Another great resource which should not be overlooked is the Macs in Law Offices (MILO) online Google group.. Although this online forum originally started as a place for lawyers to discuss the use of Macintosh computers in their law practices, over time it has morphed into a forum dedicated to the discussion of topics of interest to lawyers who use any type of Apple product in their law offices, including iPads.

At MILO you’ll find a very engaged, knowledgeable, and friendly group of lawyers and technology consultants who provide a wealth of useful information. And, if you enjoy participating in MILO, then you’ll love MILOfest, an offshoot project of the message board which is a conference devoted to lawyers who use Apple products.

Last year there was at least one session focused on how lawyers can use iPads in their practice and I have no doubt that there will be more this year as well. MILOFest will be held in Orlando, Fla., on Nov. 8 to 10, although the specifics regarding the conference haven’t yet been released.

So, there you have it! Now you have no more excuses. Grab your iPad and type in a few of the URLs listed above. Start learning how to make better use of your iPad in your law practice and put that high-priced “toy” to work!

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. 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. 

Enhanced by Zemanta