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Why I support the Occupy Wall Street Movement


"Occupy Wall Street" PosterImage by Rob Sheridan via Flickr

The Occupy Wall Street Movement is calling attention to any number of problematic issues confronting our society right now. Many of us see what we want to see in the movement. I see it as rejection of corporate personhood and the undue influence of corporations at all levels of government and society. They've literally got their fingers in the policies that affect every aspect of our lives, touching everything from the food we eat and the value of our homes and bank accounts to the spin the media puts on these issues.

As with any citizen revolt, the first step is to draw attention to the problems, which the protestors have done--quite successfully. They've brought other issues to light as well, including the overzealous police force and the hypocrisy of our government when it comes to supporting protests in the Middle East while squelching them on our own soil. 

The unrest and despair of the middle and bottom of the US populace has been brought to light successfully. And, clearly, a lot of people are unhappy with the current state of affairs. Big banks and corporations can only get so many breaks while, during that very same timeframe, the average person suffers financially, barely scraping by for years on end before something has to give.

The next step is to organize, obtain monetary support and locate well-known or dynamic spokespersons, determine agendas and continue to raise consciousness. If this is truly a movement with staying power, that will occur. If it's just a blip in the history of our country, that will be obvious in due time.

But, I for one am proud of the "slackers" and "complainers" who are taking to the streets, exercising their first amendment rights and expressing their dissatisfaction with the status quo. After all, isn't that what this country is all about?

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6 year blog anniversary

Cover of "A Long Strange Trip"Cover of A Long Strange Trip

Wow. I just realized that yesterday was my 6 year blog anniversary. My very first post was a round up of posts about then-Judge Alito.

 What a long strange trip it's been! But what a fun ride! Thanks to everyone for your support and friendship. That's what's made it all worthwhile!

Also, congrats to 2 other bloggers celebrating blog anniversaries: my technology law blogger colleague, Bob Ambrogi (9 years blogging and arguably the original technology law blogger) and my fellow New York law blogger, Eric Turkewitz (5 years).

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Is a cloud backlash on the horizon?

This week's Daily Record column is entitled "Is a cloud backlash on the horizon?."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.


Is a cloud backlash on the horizon?

In the mid-1990s, email was a fairly new phenomenon and a number of state bar associations wanted nothing to do with it. For example, ethics committees in both South Carolina (Opinion 94-27 1995)) and Iowa (Iowa Ethics Opinion 96-1 1996) concluded that the use of email by lawyers to communicate with clients breached confidentiality unless precautions were taken to prevent interception or client consent acknowledging the risks of using of email was obtained.

A few years later, in 1999, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility helped to reverse the email backlash trend when it issued ABA Formal Opinion No. 99-413. In this opinion, the Committee determined that client consent regarding the use of email was unnecessary.

Thus, the ABA gave its blessing to the use of email for communications with clients. By doing so, the Committee implicitly condoned attorneys’ use of unencrypted electronic communications with their clients. The green light was given for sending confidential communications through an untold number of servers owned by third parties located in any number of geographic regions, and, in many cases, if either the attorney or the client used a web-based email service, the emails and any confidential information contained therein or attached thereto were stored on servers owned by third parties. 

For those of you familiar with cloud computing, the above description of the storage of email on third party servers should sound familiar, since web-based email is simply a form of cloud computing--the only difference being that with most cloud computing platforms, the data is sent via a secure connection, and, in many cases, is either encrypted en route or is encrypted while stored on third party servers. 

Fast forward to August 2011, when the Committee issued its decision on the use of email in employment cases by clients via employer-owned technologies. In Formal Opinion No. 11-459, the Committee, after reaching the narrow conclusion that in employment cases lawyers have an obligation to warn clients of the risk of discussing the case using employer-owned devices or accounts, then offered the following very broadly-worded proposition, applicable to all type of cases, not just employment matters: “A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary.”

As I explained in an earlier column (September 5, 2011), this language troubles me since it appears to be a step backwards to the mindset of the mid-1990s email backlash. This apparent shift of focus from the type of information being discussed to the method of communication implies that any type of electronic communication poses a risk simply by virtue of the method of dissemination of information.

So, I was all the more concerned when I read the most recent version of the report accompanying the ABA Commission on Ethics 20/20‘s suggested revisions to the ABA Model Rules of Professional Conduct. 

By way of background, the ABA Commission on Ethics 20/20 was established in 2009 (online at and the stated purpose of the Commission is to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” Over the past year, the Commission has released multiple versions of proposed changes to the Rules and has sought input from the legal community prior to issuing its final recommendations.

On pages 6 and 8 of the most recent September report accompanying the latest version of suggested revisions to the Model Rules, when discussing the proposed changes to Model Rule 5.3, which applies to the use on nonlawyer assistance outside of a firm, the Commission states: “As an initial matter, nonlawyer services  are provided not only by  individuals...but also  by entities, such as...“cloud computing” providers...The proposed Comments do not describe the lawyer’s obligation to obtain consent when disclosing confidential information to nonlawyer service providers outside the firm.  The Commission concluded that there are many circumstances where such consent is unnecessary.  For example, lawyers regularly send documents to outside vendors for scanning or copying, but there is ordinarily no need to obtain the client’s consent to have those services performed.  There are, however, other situations where client consent might be advisable or required.  The Commission concluded that lawyers would benefit from further clarification of this issue in the form of an opinion from the Standing Committee on Ethics and Professional Responsibility and has requested that the Committee undertake consideration of this issue." (Emphasis added).

In light of my prior suspicions regarding the possibility of a cloud backlash, this new development seems ominous to me. My hope is that I’m wrong, and that if the ABA Committee on Ethics and Responsibility does address the issue of consent when using any form of electronic communication, it concludes that the standard applicable to unencrypted email communications should likewise apply to the use of cloud computing platforms, which are inherently more secure than unencrypted email.  

In other words, as was stated in ABA Formal Opinion No. 99-413, understanding gained regarding new technologies like cloud computing should always trump fear: “Although earlier state bar ethics opinions on the use of Internet e-mail tended to find a violation of the state analogues of Rule 1.6 because of the susceptibility to interception by unauthorized persons and, therefore, required express client consent to the use of e-mail, more recent opinions reflecting lawyers' greater understanding of the technology involved approve the use of unencrypted Internet e-mail without express client consent.”

Nicole Black is a Rochester, New York attorney and GigaOM Pro Analyst. 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 late 2011. She is the founder of and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at

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Dear Verizon--Thanks for Nothing

Verizon: Paying Politicians to Rule the Air (g...Image by watchingfrogsboil via Flickr

Dear Verizon,

Just a quick note to thank you for crediting my Mifi account in the amount of $267 and for terminating the 2-year extension of my Verizon contract. I am especially appreciative that you did this for me given that I never actually authorized the purchase of a Blackberry (a Blackberry, of all things--the horror!) using my Verizon account.

It would have been nice if you were able to provide me with more information about the fraudulent activity on my account aside from "We think it was an inside job." Whatever that means. And, from the standpoint of the person who was the subject of said fraud, it was disconcerting, to say the least, when your fraud representative informed me that it would be 2-3 months until the "fraud team" would be able to advise me as to the specifics of this fraud, on the off chance that they were actually able to figure out how it occurred. 

Unfortunately, "all we know right now is that it occurred via our website" isn't very reassuring and provides me with no direction in terms of how to go about preserving my identity in the interim. Did someone provide my date of birth? My social security number? My Verizon account password? My mother's maiden name? Where was the person located who authorized this purchase? What was the person's name? Or did an employee simply access my account via your system and authorize the purchase internally? 

It makes a difference, you know. And, apparently, you guys don't have a clue.

So, thanks for nothing.

Oh and while I'm at it, thanks for failing to adequately train your employees regarding how individual Verizon accounts work. 

Once I learned of the fraud, I requested that the ability to make purchases using my account be turned off. I was advised: 1) by Customer Service rep #1 that I would have to talk to the credit department 2) by Customer Service rep #2 that she turned it off, and then a few days later 3) by a Fraud Services rep that it wasn't turned off and if I chose to turn it off, I would have to pay my monthly Mifi bill in in CASH at a Verizon store.

So, as it stands, despite my wishes to the contrary, equipment purchases can still be made using my account, which was recently fradulently accessed for that very purpose.

FYI, I was advised that my Mifi account contract expires next month. Guess what I'm going to do once it expires? 

Thanks again Verizon. You guys rock!


Niki Black



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Expand Your Horizons Beyond Your Expertise


This week's Daily Record column is entitled "Expand Your Horizons Beyond Your Expertise."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.


Expand Your Horizons Beyond Your Expertise

For years now, I’ve watched TED talks online whenever I was in the mood for thought provoking ideas. If you aren’t familiar with TED, it is a nonprofit organization dedicated to spreading new ideas. Its motto is “ideas worth spreading” and its goal is to provide free access to the best talks and presentations via annual conferences and online videos of the talks. The videos can be accessed at

TED is an international endeavor and the annual conferences are held in Long Beach/Palm Springs, California and Edinburgh, Scotland. The conferences feature talks that are 18 minutes or less given by some of the greatest thinkers across the globe, including Malcolm Gladwell, Al Gore, JK Rowling, Sheryl Sandberg, Julian Assange, Seth Godin, Bill Gates, and Amy Tan.

Invitations to TED conferences are highly sought after and nearly impossible to obtain,  and for those of us mere mortals who don’t make the cut, the online videos are a very good substitute.

But, there’s another option available as well: TEDx conferences ( These conferences have the same format as TED conferences, but are independently organized events that are “designed to give communities, organizations and individuals the opportunity to stimulate dialogue through TED-like experiences at the local level.” 

Although I was aware that Rochester had previously hosted its own TEDx conference, I’d never sought to attend in it. But after some encouragement from the co-panelists with whom I’d presented at the RIT Social Media and Communications Symposium, I decided to apply for a ticket to this year’s TEDxRochester conference ( And, yes, like all TED conferences, you have to apply to attend and only 400 people are selected from the applicant pool.

Fortunately, my application was accepted, and last week I had the privilege to attend the third annual TEDxRochester, which was held at Geva Theatre. It was a wonderful experience and I found the topics discussed to be both fascinating and thought provoking. 

The talks included: 1) a local graduate student describing his social entrepreneurial venture to distribute wind turbines to developing countries, 2) an Eastman School of Music professor discussing musical improvisation and its parallels outside the field of music, 3) plans to create a skate park in the City of Rochester and the reasons that doing so would benefit our community and its youth, 4) a vision of bicycling as a primary form transportation and re-designing Monroe County to make it one of the most bicycle-friendly communities in the United States, and 5) a local physician outlining the cutting edge stem cell research that he and his colleagues are conducting at the University of Rochester and the many benefits of that research.

During the breaks, I spoke with fellow attendees and a recurring theme that emerged was how refreshing it was to listen to people speak passionately about topics outside of our respective areas of expertise. We all agreed that due to time constraints and busy schedules, we tend to spend our time with others in our chosen fields and it is the rare occasion that we expand our horizons beyond our chosen professional focus. TEDxRochester was the perfect opportunity to do so. 

Many also mentioned that listening to TEDxRochester speakers gave us a greater appreciation for our community and the passion and creativity of those who reside here.  The conference provided us with the opportunity to reflect on the depth of Rochester, especially given its smaller size and locale, and its unique offerings, available in large part because of the universities, our community’s large and small businesses, and the arts.

TEDxRochester was everything I’d hoped it would be and more. It was a refreshing change from my day-to-day routine and was nothing short of eye opening. I truly enjoyed having the opportunity to listen to the many talented and engaging speakers discuss their passions and their hopes for a better future. All in all, it was a wonderful experience and I highly recommend that you consider attending a TEDx conference, if one is held in your community.

 Nicole Black is a Rochester, New York attorney and GigaOM Pro Analyst. 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 late 2011. She is the founder of and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at

New York Courts Grapple With Social Media Mining


This week's Daily Record column is entitled "New York Courts Grapple With Social Media Mining."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.


New York Courts Grapple With Social Media Mining

According to the Pew Internet and American Life survey, as of May 2011, 65% of adults in the United States use social media sites. In other words, the majority of Americans participate on social networking sites like Facebook, LinkedIn and Twitter and share the minutiae of their day-to-day lives with their families, friends and even absolute strangers. Some of the status updates and photos are shared publicly and others are locked away behind the privacy settings of the different networks.

Not surprisingly, the data shared on those sites, whether publicly or privately, creates unimaginable amounts of evidence, ripe for the picking, assuming courts allow litigants access to it.

And that, folks, is the million dollar question: How and when can litigants mine social media for use in litigation?

Although social media use became increasingly common a number of years ago, courts are just now grappling with the discoverability and admissibility of social media evidence, as lawyers begin to realize that the relevance of social media evidence to many different types of litigation is simply undeniable.

For that reason, over the past year, at least two New York cases addressed the issue of whether social media evidence was subject to discovery in civil litigation.

The first was Abrams v. Pecile, 83 A.D.3d 527 (1st Dep’t 2011). In Abrams, the plaintiff filed suit seeking damages for, among other things, conversion and intentional infliction of emotional distress arising from the defendant’s alleged unauthorized possession of seminude photographs of the plaintiff.

In her demand for discovery, the defendant sought access to the plaintiff’s social networking accounts and the trial court ordered the plaintiff to comply with that request. On appeal, the First Department disagreed, concluding that the defendant failed to show that permitting access would lead to the discovery of evidence relevant to the defense of the lawsuit: “(The defendant has made) no showing...that ‘the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims’...Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff's hard drive in order to defeat plaintiff's conversion claim.”

In another First Department case handed down in late October, Patterson v. Turner Construction Company, 2011 WL 5083155 (1st Dep’t 2011), the defendant in a personal injury lawsuit sought access to the plaintiff’s Facebook records created after the incident that was the basis of the lawsuit, including those that were not publicly available.

The Court likened the plaintiff’s private Facebook postings to a diary and concluded that, if relevant, they were discoverable: “The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access...just as relevant matter from a personal diary is discoverable...”

However, the court limited access to the Facebook data and required that the trial court conduct an in camera review “for a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.” The court cited Abrams (discussed above), explaining that social media evidence is discoverable as long as it leads to relevant evidence or is reasonably likely to result in the discovery of information related to the claims at issue in the lawsuit.

In other words, as I’ve oft repeated, the medium doesn’t change the message. The First Department recognized this fact when it analogized private Facebook postings to a personal diary. The online world of social media, despite being a relatively new and rapidly changing phenomenon, is simply an extension of the offline world and evidence created online should be treated no differently than that created by traditional means.

Nicole Black is a Rochester, New York attorney. 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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at

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My Latest Venture: GigaOM Analyst

Image representing GigaOm as depicted in Crunc...Image via CrunchBase

Over the past two years, in addition to my other projects and obligations, I've been very busy writing two different books. First, there was "Social Media for Lawyers: The Next Frontier," a book I co-authored with Carolyn Elefant, which was published by the American Bar Association in June of 2010. The second book, "Cloud Computing for Lawyers," is about to go to press and is expected to be published by the ABA within the next month.

As the publication date for my most recent book drew closer, my thoughts were drawn to the possibilities of my next major project. I had two different book concepts in mind and was considering submitting a proposal or two and seeing what came of it.

Instead, a new and exciting opportunity unexpectedly presented itself: becoming an analyst for GigaOM.

For years now, the GigaOM blog has been one of my favorites. It provides interesting, relevant content with a focus on emerging technologies, including cloud computing, mobile computing, social media, Web 2.0 collaborative tools, green technology and more. GigaOM's focus squares perfectly with my passion for emerging technologies and for that reason, I've always enjoyed GigaOM's content. I read the blog on a daily basis and frequently share links to GigaOM blogs posts with my followers.

So when I was offered the chance to become a GigaOM Pro analyst, I simply couldn't pass it up.

For those unfamiliar, GigaOM  is a cutting edge startup that recently raised another $6 million in funding, for a grand total of $14 million.

GigaOM Pro is at the heart of the company's growth plan, as described in this MediaBeat article:

“We believe that the growth of GigaOm is going to be driven by our research platform and GigaOm Pro,” (Om Malik) said. “That does not minimize the importance of our online audience. What we write about on the blog is what brings people to read GigaOm on a daily basis.”

GigaOm now claims more than 4 million unique monthly visitors across its sites, a number that’s growing 30 percent annually. According to Walborsky, the company doubled its revenue in 2010, thanks largely to GigaOm Pro. It’s on-track to double that revenue yet again this year, and to become cash-flow positive by the end of 2011.

So, what exactly is GigaOM Pro? Well, as described at its website:

GigaOM Pro was created to address the gap that exists in real-time expert industry analysis on emerging technology markets.

All too often, insider analyst research and commentary is costly, inaccessible or ineffective to the entrepreneurs, investors and innovators who need timely insights most. We’re changing this by making high-quality expert reports, data and commentary easy to access and highly interactive for our community in key emerging technology areas...

Every GigaOM Pro subscription includes instant access to hundreds of pieces of original content, including research reports, daily and weekly updates, expert columns, and must read links.

As an analyst, I'll be one of the people creating that content and will also participate in occasional webinars and GigaOM conferences. Needless to say, I'm very excited about this new opportunity. Of course I won't abandon any of my regular projects and will continue to write and speak about technology and the legal field. That will always be my primary focus. But, for now, I'll shelve my book ideas and see what comes of this newfound adventure. Tune in tomorrow and see...

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Lawyers (and millions more) love their iPads


This week's Daily Record column is entitled "Lawyers (and millions more) love their iPads."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.


Lawyers (and millions more) love their iPads

Approximately 14.8 million iPads were sold in 2010, with 7.3 million being sold in the last quarter of 2010. According to industry estimates following Apple’s fiscal fourth quarter financial results earlier this month, 11.12 million iPads were sold during that quarter--a 166% increase from the same quarter one year ago--and nearly 25 million iPads have been sold thus far in 2011.

That means since the iPad was introduced, just 1.5 years ago in April of 2010, nearly 40 million iPads have been sold.

The bad news is that my that my prediction, made in this column in March 2011, was way off base. I had predicted that 22 million iPad2s would be sold by the end of 2011. Obviously my prediction came in far too low, especially since the holiday season is just around the corner and nearly half of all iPads sold last year were sold during the last quarter of 2010.

The good news is that another prediction made in this column in March 2010 was spot on: “The iPad won’t change life as we know it, but it will revolutionize the way that we interact with various news and social media. Undoubtedly, we will look back on 2010 as the year the iPad changed the way we obtain and consume information...The iPad will not fill an already existing niche — it will create a new one. It will be ever-present in our homes, during daily commutes and on airplanes...The iPad will be the interface of choice for Web browsing and media consumption. Soon, it will be quite common to read books, magazines and newspapers via the iPad interface.”

While it’s a great entertainment device, importantly, the iPad isn’t being used for just fun and games. As reported during Apple’s fourth quarter results call,  92% of Fortune 500 testing or deploying iPads – up from 86% last year--and  iPads are now being distributed in 90 countries.

And, it’s not just private businesses that are using the iPad. As a reader recently brought to my attention, according to internal agency records available at, a number of governmental agencies are considering the utility of iPads for their employees, including the National Archives and Records Administration (NARA),  Tennessee Valley Authority (TVA), National Highway Traffic Safety Administration (NHTSA), Federal Trade Commission (FTC), just to name a few.

Lawyers are using the iPad, too. According to the  2011 ILTA/InsideLegal Technology Purchasing Survey, which examined the purchasing trends of law firms with 50+ Attorneys, 25% of respondents said that the iPad would be one of the major technology purchases over the next 12 months, 11% of firms had already purchased iPads for their attorneys, and 55% of surveyed firms reported providing IT support for employees who purchase and use their personal tablet devices.

But wait, there’s more! According to the  2011 ABA Legal Technology Survey, the iPad is used by 89% of those lawyers who use a tablet device for work-related tasks and 15% of respondents used a tablet to conduct work while outside of their primary workplace. For firms with over 500 attorneys, that number increased to 26%.

It’s hard to argue with statistics like that. When the iPad first debuted, naysayers wrote it off as a silly toy. What they failed to appreciate was that the utility and flexibility of this device would quickly make it an indispensable part of our personal and business lives.

In a little under 2 years, 40 million of these devices have been sold, with millions of other tablet devices in circulation as well. Such a rapid proliferation of a device that didn’t even exist prior to April 2010 is a clear indication that tablet computers aren’t a fad or a “silly toy”; they’re an indication of what’s to come.

Nicole Black is a Rochester, New York attorney. 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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at