Daily Record--Legal Currents Column

Fitbit Data Used As Evidence In A New Murder Case

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

***

Fitbit Data Used As Evidence In A New Murder Case

Wearable devices are becoming incredibly common. Take a look around - you’ll notice Fitbits, Apple Watches, and other wearable devices on the wrists of many people whom you encounter on a daily basis, including your legal colleagues and co-workers. They’re being used to track people’s health and fitness information, to ensure people are notified of important messages and events, and to assist with navigation, among other things.

Because they track so many aspects of our lives, the data collected and stored on the devices and shared with our phones can sometimes prove invaluable in court. I find their evidentiary potential to be incredibly interesting, so I started following and writing about cases where data from wearable devices has been used as evidence in litigation. For example, in 2015, I wrote about two cases where Fitbit data was used in litigation: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations.

Then in 2017, I covered a case where Fitbit data and other digital evidence was used to support a Connecticut murder prosecution. The digital evidence included cellphone records for the defendant and his wife, 2) computer records from the defendant’s laptop, 3) Facebook records for the defendant, his wife, and his girlfriend, 4) text messages, and 5) Fitbit records for the victim, the defendant’s wife.

Now, there’s a new case where Fitbit data is being used in a murder prosecution, this time in California. In this case, the accused is the step-father of the victim. The victim was discovered in her home on Thursday, September 13th by a coworker after she failed to show up for her job. She was deceased, slumped over a desk, and was wearing a Fitbit while holding a butcher knife. She had sustained a deep cut to her neck. What initially appeared to be a suicide was later determined to be a homicide after the medical examiner determined that she’d suffered from many deep wounds to her head and face.

When questioned by police, her step-father informed them that he had stopped by her home on Saturday, September 8th to drop off pizza. He also stated that later in the day he saw her again when she drove by his home with someone in the passenger seat of her car. He denied harming her.

However, evidence obtained by the investigating officers conflicted with his account. First, there was surveillance video showing that his car had been at her home for 21 minutes on Saturday, September 8th, from 3:12 - 3:33 pm. The video did not show her driving from her home in her car subsequent to that point in time, despite the defendant’s claims to the contrary.

There was also digital data obtained from the victim’s Fitbit. It showed that her heart rate spiked at 3:20 p.m. on September 8th. It then slowed down quickly and her Fitbit stopped registering a heartbeat at 3:28 p.m. In other words, her Fitbit showed that her heart had stopped beating during the timeframe that the defendant’s car was at her home.

Based on the surveillance video and Fitbit evidence, and his conflicting account, he was arrested and charged with her murder. The case is still pending, so his ultimate fate remains unknown. But it’s a great example of the valuable evidence that can be obtained from wearables. While certainly not conclusive, when considered in conjunction with other evidence discovered throughout an investigation, this type of data can sometimes make - or break - a case. Tune in next week for an example of a case where, instead of making the prosecution’s case, wearable data instead provided the accused with a viable alibi.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Texas Bar on lawyers seeking legal advice from other lawyers in online forums

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Texas Bar on lawyers seeking legal advice from other lawyers in online forums

Lawyer-only online forums and listservs are commonplace. Often these forums are hosted by bar associations, but that’s not always the case. Facebook, LinkedIn, and Reddit private groups are often created by lawyers for lawyers. Because these groups are typically gated communities, lawyers can comfortably discuss a multitude of issues. Referral sources are sought, trending legal issues are mulled over, and opinions are solicited regarding issues arising in a lawyer’s practice.

It’s the last topic that was addressed in a recent Texas ethics opinion. One issue considered in Opinion 673 was whether it is ethical for lawyers to seek advice for the benefit of their clients from other lawyers outside of their firm in an online discussion group.

At the outset, the Professional Ethics Committee for the State Bar of Texas acknowledged that informal consultations with other attorneys occur often, both online and offline: “It is common for lawyers to have informal lawyer-to-lawyer consultations touching on client-related issues. Informal consultations may occur in a variety of situations, such as when a lawyer poses questions to a speaker at a CLE seminar, when a lawyer seeks advice from members of an online discussion group, or when a lawyer solicits the insight of a trusted mentor. Informal consultations allow lawyers to test their knowledge, exchange ideas, and broaden their understanding of the law, with the realistic goal of benefiting their clients.”

However, the Committee emphasized that when doing so, it’s important to have a full understanding of your ethical obligations, including the duty of client confidentiality. Importantly, not all consultations will involve a discussion of confidential information, such as “asking general questions about a particular statute, rule or legal procedure.”

Of course, that’s not always the case, and on occasion, an attorney may “consider it necessary to provide a certain amount of factual context in order to frame the issue and obtain useful feedback.” In those cases, whether the consultations occurs online or off, a lawyer must tread lightly, and be fully aware of the ethical implications.

That being said, the Committee explained that, with limitations, doing so is permissible, even in the absence of consent from one’s client: “It is the opinion of the Committee that Rules 1.05(d)(1) and (2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.”

The Committee provided the following tips to assist lawyers in walking the fine line between a permissible consultation and one that impermissibly disclosed client confidences. First, it’s important to limit the “consultation to general or abstract inquiries that do not disclose confidential information relating to the representation.” If that’s not possible, it’s permissible to “reveal a limited amount unprivileged client information in a lawyer-to-lawyer consultation, without the client’s express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer’s client in the subject of the representation.” However, when doing so, it’s necessary to use “a hypothetical that does not identify the client,” otherwise doing so is unethical “if it is reasonably foreseeable that the disclosure of the information will harm, prejudice or embarrass the client.”

So if you’ve ever wondered about the parameters of interacting ethically online in lawyer forums when discussing client hypotheticals, then some of your questions have been answered by this opinion. Not surprisingly, online discussions aren’t treated differently than offline discussions for ethics purposes. After all, as I always say, the online is simply an extension of the offline. That being said, online interactions are much more easily recorded for posterity’s sake - and for review by an ethics committee. The lesson being - keep that in mind when engaging online and err on the side of caution when seeking consultation regarding issues that may involve client confidences.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


ABA on disaster preparedness and ethical obligations

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

ABA on disaster preparedness and ethical obligations

In the wake of Hurricane Florence, disaster preparedness is on everyone’s minds. For lawyers affected by disasters, natural or otherwise, there are unique concerns given the nature of the services that they provide. Statute of limitations and other deadlines must be met despite the weather, as do clients’ needs and concerns. The drumbeat of the law stops for no one which is why lawyers need to take steps to ensure that their law office will continue to run smoothly even after a natural disaster hits.

For lawyers who are unsure how to go about doing this, an opinion recently issued by the American Bar Association provides some guidance. In Formal Opinion 482, the ABA Standing Committee on Ethics and Professional Responsibility addressed lawyers’ ethical obligations in the face of a disaster and provided advice for lawyers seeking to implement a disaster plan for their law firm.

The opinion addressed a host of different ethical issues faced by lawyers following a disaster in regard to both existing and potential clients. What follows is a summary of some of their recommendations, most of which relate to existing clients.

At the outset, the Committee explained the reason that lawyers must engage in disaster planning: “Lawyers have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruption, and keep clients informed about how to contact the lawyers (or their successor counsel).”

Next, the Committee focused on the importance of ensuring an open line of communication with clients, even in the midst of a natural disaster. The Committee emphasized that part of disaster preparedness entails ensuring that client contact information will be readily available after a disaster hits, and that storing information electronically where it is easily accessible 24/7 is often a important part of making that happen: “One of the early steps lawyers will have to take after a disaster is determining the available methods to communicate with clients. To be able to reach clients following a disaster, lawyers should maintain, or be able to create on short notice, electronic or paper lists of current clients and their contact information. This information should be stored in a manner that is easily accessible.”

The value of online storage, typically in the cloud, was repeatedly stressed throughout the opinion. The Committee explained that exploring these options and choosing the right provider are important steps to take as part of disaster preparedness: “(L)awyers must evaluate in advance storing files electronically so that they will have access to those files via the Internet if they have access to a working computer or smart device after a disaster. If Internet access to files is provided through a cloud service, the lawyer should (i) choose a reputable company, and (ii) take reasonable steps to ensure that the confidentiality of client information is preserved, and that the information is readily accessible to the lawyer.”

The Committee also offered the following guidelines for law firms creating a disaster plan:

Lawyers should check with the courts and bar associations in their jurisdictions to determine whether deadlines have been extended.
Lawyers also must take reasonable steps in the event of a disaster to ensure access to funds the lawyer is holding in trust.lawyers should take appropriate steps in advance to determine how they will obtain access to their accounts after a disaster.
Lawyers whose circumstances following a disaster render them unable to fulfill their ethical responsibilities to clients may be required to withdraw from those representations.
To prevent the loss of files and other important records, including client files and trust account records, lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly.
(Lawyers) must notify current and former clients of the loss of documents with intrinsic value, such as original executed wills and trusts, deeds, and negotiable instruments.

Finally, the Committee concluded the opinion with these words of advice: “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

You never know when a disaster may strike. Whether it’s a fire, flooding, or other unexpected occurrence, planning is key. Is your firm ready for a disaster? It not, there’s no better time than now to start planing, and reading this opinion in its entirety is a great place to start.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Technology know-how: bridging the gap

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Technology know-how: bridging the gap

By now, I’m sure you already know that New York lawyers have an ethical obligation to maintain technology competence. What that means is that you need to have a basic understanding of legal technology issues so that you can make educated decisions about whether to use technology in your law practice, and which tools to use.

Of course, we all know that’s easier said than done. After all, you’re already incredibly busy representing clients, meeting deadlines, staying on top of changes in your practice areas, and running your law firm. How are you supposed to learn about the latest in technology, especially when changes are occurring at such a rapid clip?

The good news is that it can be done. But it’s going to take some dedication and effort on your part. The key is to incorporate learning about technology into your daily routine. This will allow you to spend just a few minutes each day educating yourself, rather trying to frantically learn all that you can in a single CLE session each year.

Obviously, the latter option is a horrible strategy for any number of reasons. So instead, take the time to incorporate legal tech learnings into the beginning or end of each workday. Here are some ideas to help you do just that.

First and foremost, take advantage of your local bar association’s resources. For Monroe County lawyers, make sure to join the Monroe County Bar Association’s Technology and Law Practice Committee, which I happen to chair. We meet every third Tuesday at 12:15 and a free lunch is provided, so what have you got to lose? During our meetings you’ll learn about the latest legal technology news and tips, and will also hear from a different nationally recognized expert during each meeting who will answer your legal technology questions remotely via GoToMeeting. If you can’t make a particular meeting, never fear, you can log in remotely via GoToMeeting to hear that month’s guest Q & A and can even ask questions and participate. Make sure to join the committee or contact the bar to get on the mailing list so that you’ll always receive the monthly email with the GoToMeeting link.

Next, If you’re not already reading a few legal technology blogs each day, now is the time to start. The trick is knowing which blogs to read, since there are so many blogs out there. One option to consider is a new global legal news network site from Lexblog This site curates legal blog posts from around the world and offers a multitude of channels on a host of legal topics, including a technology channel, a privacy and data security channel, and a law firm marketing and management channel. And, for even more legal technology blog recommendations, check out this post.

And last but not least, subscribe to a few podcasts. Here are a few that focus on legal tech issues that are worth considering: 1) LawNext – Bob Ambrogi interviews legal technology entrepreneurs and innovators, 2) This Week in Law – Denise Howell and her colleagues and guests discuss the latest issues in technology law, 3) The Law Entrepreneur – Neil Tyra and his guests focus on the business of law, including using technology in law firms, 4) Law Firm Autopilot – Ernie Svenson covers the ins and outs of legal technology and law practice management, 5) The Geek in Review – Marlene Gebauer and Greg Lambert talk about emerging issues in legal information and knowledge management.
So now that you know about all of these free resources, you’ve got no excuse; it’s time to get up to speed on legal technology. So pick your poison, dive in, and start learning. Trust me, you won’t regret it.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Juror misconduct and technology: a perfect storm

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

 

Juror misconduct and technology: a perfect storm

As I mentioned in recent columns, I’m in the process of drafting my half of the annual update to “Criminal Law in New York,” a substantive criminal law treatise that I co-author with Brighton Town Court Judge Karen Morris. Every year, during the course of my research, I often stumble upon cases that offer an interesting perspective on the intersection of law and technology. This year was no different, and one particularly timely issue that I encountered involved juror misconduct occurring due to the improper use of technology by jurors.

Oftentimes these types of cases are discussed in the context of jurors using social media platforms to discuss trial proceedings despite being instructed not to do so, but the two cases that caught my eye while researching cases this summer involved jurors improperly using other types of technology in ways that were alleged to have had an impact on criminal trials.

In this column I’ll discuss the first case, People v. Neulander, 162 A.D.3d 1763 (4th Dep’t 2018), where the defendant was convicted of murder in the second degree. One issue on appeal was whether a number of text messages sent by a juror during the trial to friends and family constituted juror misconduct that created a significant risk that a substantial right of defendant was prejudiced.

Specifically, as established during the hearing on the defendant’s motion to set aside the verdict, the juror in question sent the following text messages to her father and her friends during the trial:

(A) text message from her father that stated: “Make sure he's guilty!” During the trial, juror number 12 received a text message from a friend asking if she had seen the “scary person” yet. Juror number 12 responded: “I've seen him since day 1.” Juror number 12 admitted at the subsequent hearing into her misconduct that she knew that the moniker “scary person” was a reference to defendant. Another friend sent juror number 12 a text message during the trial that stated: “I'm so anxious to hear someone testify against Jenna [defendant's daughter].” Juror number 12 responded: “No one will testify against her! The prosecution has already given all of his witnesses, we are on the defense side now! The prosecutor can cross examine her once she is done testifying for the defense.” Later that night, the same friend replied via text message: “My mind is blown that the daughter [Jenna] isn't a suspect.”

This conduct was reported to the court by an alternate juror after the guilty verdict had been rendered. In the juror’s affidavit in opposition to the motion to set aside the verdict, the juror stated that she had followed all of the court’s instructions. Nevertheless, a subsequent forensic examination of her cell phone showed that she had deleted many messages and erased her web browsing history, and she was unable to provide any explanations for doing so.

Based on the evidence adduced at the hearing, the court granted the defendant’s motion for a new trial, concluding that “due to juror number 12's flagrant failure to follow the court's instructions and her concealment of that substantial misconduct, defendant, through no fault of his own, was denied the opportunity to seek her discharge during trial on the ground that she was grossly unqualified and/or had engaged in substantial misconduct…thus…(the) defendant established by a preponderance of the evidence that juror number 12 engaged in substantial misconduct that ‘created a significant risk that a substantial right of ... defendant was prejudiced.”

This case is a great example of the reality that even tools as familiar and simple as texting can have a significant impact on trials. So don’t make the mistake of discounting or overlooking the potential effect of “old school” technology on your client’s case.

In next week’s column, I’ll discuss a juror misconduct case whereby jurors conducted legal research on their home computers and also used video editing software to enhance images from a video in evidence. So make sure to tune in next week!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Another New York court weighs in on access to cell phone geolocation data

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Another New York court weighs in on access to cell phone geolocation data

Last week I wrote about a case that I came across while conducting research for the annual update of the Thomson Reuter’s substantive criminal law book that I co-author, “Criminal Law in New York.” That case, People v. Jiles, 158 A.D.3d 75 (4th Dept. 2017), concluded that a warrant was not needed to obtain historical cell phone records in order to view a user’s location data. (Notably, the holding in Jiles was contradicted by the conclusion reached in a subsequent United States Supreme Court decision, Carpenter v. U.S., No. 16-402, 585 U.S. ____ (2018), which I wrote about in this column in July).

In conducting my annual research, I encountered another interesting case addressing a similar, but slightly different issue: People v. Gordon, 58 Misc. 3d 544 (NY Sup. Ct. 2017). The question in this case was whether the pen register statute applied to the use of cell site simulator to determine a suspect's location  via geolocation data obtained from a cell phone.

The defendant in this case was charged with a number of different crimes, including attempted murder in the second degree. While investigating the case, the police sought to locate the defendant using his cell phone and applied for a judicial pen register/trap and trace authorization for the defendant’s cell phone, and specifically requested to use a cell site simulator.

The request was granted, and included use of the cell site simulator. The defendant was located shortly thereafter and arrested. He filed a motion to suppress the results of the information gleaned from the cell site simulator on the ground that it was unlawfully obtained.

At the outset, the court examined the pen register/trap statute, New York's CPL Art. 705.00, noting that its intent is provide law enforcement with limited access to specific cell phone data, namely “the numbers dialed or otherwise transmitted in outgoing and incoming calls.” The court noted that unlike federal law, which was recently expanded, it does not “does not authorize the gathering of location information using a cell phone's Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone's calls or text messages by the use of a pen register and/or trap and trace order.”

Next, the court explained that due to the strictly limited nature of the information obtained from pen register/trap devices, law enforcement need only show reasonable suspicion in order to obtain a judicial order under the statute. The rationale behind the lower standard of proof is that “pen register/trap and trace devices only record the phone numbers dialed-outgoing or incoming-and do not disclose more than what phone users voluntarily convey to the telephone company in the ordinary course of business.”

The court then compared the type of data obtained from pen register/trap devices to the more intrusive information collected by GPS devices. It explained that because of the increased level of intrusiveness, the New York Court of Appeals has concluded that the New York State Constitution requires law enforcement to make a showing of probable cause in the absence of exigent circumstances prior to a warrant being issued for the use of a GPS tracking device.

Next the court turned to an examination of how cell site simulators work, explaining that cell site simulators collect information from a specific device rather than a cell phone provider. According to the court, “(i)n addition to downloading information from all the cellular phones located in the area, a cell site simulator can be used to locate a specific cellular phone when the phone owner's phone number is known, but not the location…” and maybe even be able to “obtain and record a wide array of data from an individual's cell phone, including highly precise real time cell phone location and the contents of voice and text communications.”

The court granted the defendant’s motion to suppress concluding that cell site simulators were more akin to GPS devices given the invasive nature of the information collected by cell site simulators and thus “the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case.”

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Does accessing historical cell site information require a warrant?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Does accessing historical cell site information require a warrant?

Every summer I write my portion of the annual update for “Criminal Law in New York,” a book on substantive New York criminal law that I co-author with Brighton Town Court Judge, Karen Morris. During my research of the criminal cases handed down over the past year, I often come across cases that provide interesting insights on the intersection of criminal law and technology, and then write about them in this column.

This year one of the cases I discovered was People v. Jiles, 158 A.D.3d 75 (4th Dept. 2017), leave to appeal denied, 2018 WL 3811362 (2018). In this case, the defendant was convicted of murder in the second degree, robbery in the first and third degrees, and criminal possession of a weapon in the second degree. The defendant and unidentified accomplices were accused of holding four men at gunpoint in an apartment and taking money from them. During the robbery, another person entered the apartment, a struggle ensued, and the victim was shot and killed.

The prosecution had obtained the defendant’s cellphone records for the 4 days leading up to the robbery by means of a court order which was issued upon a showing of less than probable cause pursuant to the federal Stored Communications Act. The prosecution sought to introduce the records at trial to show the defendant’s location during the various times that he’d called the victim in the days preceding the robbery. The defendant moved to suppress the location information, but not the call records, on the grounds that the acquisition of that information constituted a search and thus required a warrant supported by probable cause.

The trial court denied the motion and the records were admitted at trial. One issue on appeal was whether it was necessary for law enforcement to obtain a warrant in order to access historical cell phone data.

At the outset, the Court outlined the breadth of information that can be obtained from cell phone data: “When citizens go about their lives with cell phones turned on, the phones can electronically register with the nearest cell tower every few seconds whether or not the phones are actively in use, and the business records of service providers can therefore contain information about the location of phones and their users at specific dates and times as the users travel the highways and byways of our state and nation.”

Next, the Court turned to the issue at hand, and in reaching its decision, it emphasized that the location data sought was historical, was kept as a matter of course by his cell phone service provider much like telephone billing records, and was information that the defendant had voluntarily disclosed to his services provider.

The Court explained that because the information was not obtained as a result of direct surveillance by law enforcement, but instead constituted historical data voluntarily provided to his service provider, a third party, that the data fell under the third party exception: “(W)e conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties.”

The Court also noted that “certain other states have afforded cell site location information greater protection under their state constitutions than it is afforded under the federal constitution” but declined to do so in New York, and instead likened location data to telephone billing records, which the New York Court of Appeals has permitted access to in the absence of a warrant. As such the Court concluded that “there is ‘no sufficient reason’ to afford the cell site location information at issue here greater protection under the state constitution than it is afforded under the federal constitution.”

I’m not sure I agree with the Court’s conclusion that this type of data is “voluntarily” disclosed to cell phone service providers, since at the present time, those of us who choose to use cell phones don’t have much of a choice in that regard: service providers collect that data as a matter of course and there’s no mechanism available to opt out. So our hands are essentially tied in that regard.

The Court did address this particular argument at the end of its opinion, noting that “(t)o the extent that ‘cell phone users may reasonably want their location information to remain private’ under these circumstances, their recourse is ‘in the market or the political process…”

Unfortunately, New York residents interested in protecting privacy rights and preventing law enforcement from arbitrarily accessing our minute-by-minute movements in the digital age, the Court’s suggested course of action provides no small comfort - and no immediate recourse - other than refraining from using cell phones altogether. For the vast majority of us, that’s not a feasible option, and thus we’re forced to agree to a full-scale waiver of our privacy rights in exchange for the ability to use a piece of technology that has become an integral part of our daily lives. Not exactly an equitable bargain, if you ask me.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Top podcasts for lawyers

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Top podcasts for lawyers

Podcasts have been around for decades now, but it was only recently that lawyers really began to take notice of them. The “Serial” podcast’s fame helped expand the reach of podcasts, both amongst the general public and lawyers. Since then, podcasts have increased in popularity and many new legal-themed podcasts have emerged.

But with so many law-related podcasts out there, how do you know which ones to listen to? Well, never fear! If you’re interested in legal podcasts, but aren’t sure where to start, then you’re in luck! Here are some great podcasts by and about lawyers that are worth a listen.

First, there’s “Legal Talk Network," a legal podcast network that hosts a ton of great podcasts about an assortment of law-related issues, ranging from running a law firm and legal technology to the latest in legal news.

Next there’s legal technology expert Bob Ambrogi’s new podcast, “LawNext.". In this podcast series, Bob interviews the innovators and entrepreneurs that are “driving what’s next in law.” Bob’s been part of the legal technology space for decades and always provides interesting insight and predictions, so this podcast is well worth a listen.

If a podcast with a legal marketing slant is up your alley, then there are two to consider subscribing to: “Legal Marketing 2.0” and the “LAWsome podcast." Both address a host of issues related to running and marketing a law firm, and provide lots of great legal marketing advice.

You may already be familiar with one of the of the longest running legal podcasts: “This Week in Law." But if not, you’re in for a treat! In this podcast, attorney and legal technology guru Denise Howell and her podcast colleagues and guests discuss the latest issues in technology law, including patents, copyrights, and more.

Another legal tech-focused podcast to consider is “The Geek in Review." In this podcast you’ll learn about emerging issues in legal information and knowledge management from Marlene Gebauer and Greg Lambert.

If one of your goals is to learn how to run your law firm more efficiently and effectively, then "the Law Firm Autopilot." is the podcast for you. In it, attorney and law firm consultant Ernie Svenson covers all aspects of law practice management, from client intake and choosing legal technology for your firm to setting up a streamlined billing process.

In “The Law Entrepreneur” podcast, Neil Tyra covers the business end of law. You’ll hear from practicing lawyers and experts and will learn all you need to know about running a successful law firm.

If you’re looking to de-stress, then consider “The Resilient Lawyer” podcast. In each episode, attorney Jeena Cho shares tools and strategies for finding more balance, joy, and satisfaction in your professional and personal life.

Another podcast to consider is “The Jabot."  In this podcast, Above The Law Senior Editor Kathryn Rubino focuses on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry.

If BigLaw is your thing, then you might want to subscribe to “Biglaw Book Of Business," a podcast that launched earlier this year. In each episode, Above The Law founder David Lat and Robert Kinney, Founder and President of Kinney Recruiting, discussing market analysis and notable lateral moves in large law firms.

Finally there’s Rochester’s very own “Real Life Law," a podcast hosted by attorneys Elizabeth Randisi and Meredith Lamb. In each episode they interview a special guest and discuss the ins and outs of practicing law and being a lawyer in Rochester.

So, no matter what your interest, there’s a podcast for you. They’re a great way to keep up to date on the issues that matter to you, so subscribe to a few that pique your interest. Then sit back, relax, and enjoy the show!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com. 


Lawyers should be concerned about a new Gmail security issue: here’s how to fix it

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Lawyers should be concerned about a new Gmail security issue: here’s how to fix it

If you’ve been reading my column over the years, you already know that unencrypted email is inherently unsecure and that it’s no different than sending a postcard written in pencil through the post office. Despite this fact, in the mid-1990s, bar ethics committees, including the New York State Committee on Professional Ethics, gave lawyers the green light to use email for confidential client communications.

Of course, as I’ve explained many times before, as technology changes, so too do expectations regarding security and the ethical duty to maintain confidentiality. As a result, email is slowly falling out of favor as an accepted method of secure attorney/client communication. The most recent evidence of this trend was the issuance of  Formal Opinion 477 by the American Bar Association last year, wherein the Ethics Committee concluded that unencrypted email may not always be sufficient for client communication. 

More recently, in early July, news reports revealed that emails sent and received by Gmail users can sometimes be read by third party apps and their developers - not just machines. The reason this matters is because it was previously believed that the emails of people who used the free version of Gmail email were only scanned by machines in order to serve up relevant ads.

This newfound revelation is an important one for New York lawyers who use the free version of Gmail (as opposed the paid version - GSuite - which doesn’t serve up ads to users, and thus emails aren’t scanned by Google). This is because the scanning of emails to provide ads was determined to be permissible by the New York State Bar Association in 2008, when the Committee on Professional Ethics concluded that since the contents of emails were being processed by a machine, not a person, for the limited purpose of serving up relevant content, it was ethically permissible to use Gmail for confidential client communications. (New York State Bar Association’s Committee on Professional Ethics Opinion 820-2/08/08).

In other words, if you’re using the free version of Gmail to communicate with clients, and have knowingly or unknowingly granted third party apps access to your Gmail account, you may now be violating your ethical obligation to maintain client confidentiality. And, on the flip side, even if you haven’t granted access to third party apps, if any of your clients use the free version of Gmail, it’s possible that they’ve done so and are now allowing third parties to view confidential email communications.

So if you or your clients use the free version of Gmail, you’ll need to take steps to ensure that your communications are secure. One way to accomplish this goal is to choose a different method of communication altogether. Since unencrypted email is inherently unsecure, regardless of the email provider, why not switch to secure client portals instead? Client portals, which are often built into law practice management software, provide a secure and efficient way for lawyers to communicate and collaborate with clients. With client portals, the cumbersome back and forth process of unsecure, threaded emails is a thing of the past and is instead replaced by the ability to securely communicate in an encrypted, controlled online environment.

Alternatively, switch to the paid version of Gmail, GSuite, or lock your free version down, and ask your clients do the same. If your choice is the latter, you’ll need to head over to Google’s Security Check-up page (online: https://myaccount.google.com/security-checkup/3) and revoke the access that any third party apps may have to your account. Your clients will need to do the same.


Regardless of the path that you take, keep in mind that as a New York attorney, you have an ethical duty to maintain technology competence. And, ensuring that the technologies that you use to communicate with clients are secure is an important part of that obligation. It’s not always easy to find the time to learn about new and emerging technologies, but it’s important that you do so. Make it a priority to learn something new each day, whether it’s from blogs, books, or CLEs.

Like it or not, taking steps to understand technology is now part of practicing law in the 21st century. The good news is that at the end of the day, maintaining technology competence will make you a better, more informed, and more efficient attorney.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


U.S. Supreme Court Holds Expectation of Privacy in Cell Phone Geolocation Data

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Smartphones have become central to the lives of most Americans. We count on our phones to keep us connected to the world. Because our phones handle so many pivotal functions for us, we’ve become increasingly reliant on them. They’ve have become so much a part of our day-to-day lives that, if you’re anything like me, you feel a bit lost when you realize you’ve misplaced your phone.

Our phones are important to us because of their utility, in part because they instantaneously provide us with incredibly relevant and up-to-date data and information about the world around us. Of course, much of that usefulness is derived from the massive amounts of personal data collected by our phones and the apps running on them. That data serves as the basis for a more personalized and functional experience.

Unfortunately, the very same data the makes our phones so valuable to us can also be used against us, sometimes by criminals, and other times by law enforcement. Last month, the United States Supreme Court considered the latter situation in Carpenter v. U.S., No. 16-402, 585 U.S. ____ (2018).  At issue was whether governmental access to historical geolocation cell phone data in order to ascertain a user’s movements constitutes a search.

Importantly, at the outset, the Court explained that careful vigilance was required when applying Fourth Amendment jurisprudence to the technological advancements that provide law enforcement with increasingly invasive access to personal information: “We have kept…Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”

The Court then turned to an examination of the specific type of information at issue in the case at hand: cell phone geolocation data. The Court noted that it is nearly impossible for users to prevent the collection and storage of their phone’s geolocation data: “Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume the risk” of turning over a comprehensive dossier of his physical movements.”

Next the Court considered whether stored geolocation data was protected by the Fourth Amendment and concluded the it was: “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through (cell phone location information).”

The Court explained that because there is an expectation of privacy in a phone’s geolocation data stored on third party servers, a warrant is required in order for the government to access it: “The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment…Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.”

Of note, the Court clarified that although a warrant is generally required to access stored geolocation data, said requirement was inapplicable in the face of exigent circumstances.

Finally, the Court wisely recognized its duty to “ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Given the rapid rate of technological advancement that we’ve seen over the past decade and the fact the pace of change will only increase exponentially in the years to come, this acknowledgement was reassuring.

Technology provides incredible benefits, but privacy issues abound. Protections from unfettered governmental access to the increasingly personal data collected by our phones are needed now more than ever. The Court’s holding in this case strikes the right balance and provides much-needed guidance in the midst of a turbulent and increasingly invasive technological landscape.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.