Generation J.D.

Why some people take pride in the fact their Facebook profile emulates an episode of Tosh.0 is beyond me. (I am not saying that I don’t watch the show and laugh hysterically. But, simultaneously, I do wonder why people put some of this stuff up on the Internet for the entire world to see.)

While Facebook has been in the news recently for its upcoming IPO, another story, about Facebook privacy, caught my attention on the radio as I was brushing my teeth this morning. Apparently, Facebook is still working on deleting photos from its servers in a timely manner nearly three years after the issue was brought to Facebook’s attention.

Have you ever deleted a horrific photo on Facebook that was posted by a “friend?” Well, you may not have really deleted it. Photos “deleted” from Facebook seemingly never go away if you have a direct link to the image file on Facebook’s servers. Just imagine the joy felt by those individuals who had the common sense or foresight to delete photos because they didn’t want retaliation from an employer, wanted to avoid family drama or uploaded a photo of a friend without permission, to name a few reasons, when they discovered the photo would remain accessible for an indefinite amount of time as long as someone had a direct link to the .jpg file in question.

A few months ago, I had to research the discoverability of information and data on a Facebook (or other social media) account and profile. From the limited guidance published by a few jurisdictions, it seems that a party would likely succeed in requesting Facebook information and data during the discovery process. The court’s interpretation of federal Rule 26(b)(2)(c) allows for an extremely broad scope of relevancy.

While Maryland courts have not ruled on this broad scope of relevancy as it pertains to social media discoverability pursuant to Rule 26(b)(2)(c), it has ruled on its reliability and authentication. In April 2011, the Maryland Court of Appeals reversed the conviction of Antoine Griffin, which was based on evidence gathered from a MySpace profile of Griffin’s girlfriend. The Court of Special Appeals had ruled the police officer proffered by the state as an authenticating witness was sufficient to authenticate the MySpace profile printout. (A law professor from Chicago gave a great summary of this case on his blog and I will highlight some points here.)

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As Jen posted Tuesday, the Supreme Court has ruled the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.” The five-justice majority notably left out its thoughts on whether that search was unreasonable and required a warrant.

U.S. v. Jones involved a drug dealer who appealed his conviction for conspiring to distribute drugs that was based on evidence the police collected via a GPS monitor physically attached to his vehicle. The police used the GPS monitor to track Antoine Jones’ movements for more than a month without a warrant. All nine justices upheld an appellate court decision reversing Jones’ conviction.

While the Supreme Court mentioned that police might need a probable cause warrant from a judge to physically attach a GPS device to a vehicle and monitor the vehicle’s movements, SCOTUS omitted a clear opinion on what specific situations required a warrant.

While the decision is better than what the government contended — that it could affix GPS devices on the vehicles of all members of the Supreme Court, if it desired, without a warrant — it is hard to tell where we stand in the increasing debate over our rights to privacy.

Justice Sonia Sotomayor, in a concurring opinion, suggested Americans have more rights to privacy in data held by phone and Internet companies than the Supreme Court has held in the past. I did not own an iPhone at the time when everyone found out that Apple tracked its users, but I do own one now. And let me tell you — every time my device asks me whether it can “use my location,” I wonder if I should let it.

John W. Whitehead, writing at The Huffington Post, listed several sources of technology that spur the privacy debate. Drones, smart dust devices, surveillance cameras, facial recognition software, iris scanners and your very own cell phone are some of the items available to the police without engaging in a “search” pursuant to U.S. v. Jones.

This is because these technologies do not require the government to engage in a physical trespass of one’s property to gain information.

On another note, I sent in my very first set of discovery requests a few weeks ago that utilized requests for information available via social media. The latest case law (and there is still not much of it yet) leads us to believe that pokes, wall comments, status updates and the like will be discoverable if relevant to the matter being litigated. Is anything we do via our gadgets and on the Internet going to be protected in five years? What are your thoughts? Where do we draw the line?

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I understand that many people have a love/ hate relationship with their GPS. It can be a godsend for the directionally-challenged, but it can be an endless source of frustration when it loses its signal or only gets you in the general vicinity of your destination. (I’ll admit I’ve experienced mostly the latter, as recipients of my frantic emergency calls can attest.)

It looks like our legal system is going to have a similar relationship with the technology; the Supreme Court ruled Monday the use of a GPS device to track a suspect’s behavior and location qualifies as a search under the Fourth Amendment.

However, the justices left it an open question as to whether it’s an invasion of privacy to use GPS devices to track people through a device that comes installed with a GPS, such as a cell phone. The justices hinted that they might have to modify their ruling if GPS devices were used in this manner in order to protect privacy rights.

I know phone records can be subpoenaed in cases and these records can also show the location of the calls, or at least what tower the cell phone call is routed through. But it’s interesting to think that law enforcement could have the capability to monitor your every move through the GPS device on your phone.

Considering that it’s a virtual necessity, if only for safety reasons, for adults to carry a cell phone, this means just about anyone’s location could be tracked at anytime.

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I’ve never understood the fax machine. It’s a hulking piece of equipment that takes up a sizable portion of whatever room it is placed in. Never having needed one until my first legal job, I wasn’t particularly familiar with the technology.

It’s not complicated, but I could never remember: do I have to dial “9″ for an outside line? Do I put a “1″ in front of the number? What the heck is the little phone attached to it really used for? Add to that the necessity of creating and printing out a fax cover page, then coming back to check the machine to make sure “Transmission OK,” and it was obvious this was a piece of technology that should be retired.

My frustrations mounted when, in the week before a trial once, opposing counsel sent out 200 pages of new pleadings and exhibits via fax. The machine runs out of toner and runs out of paper, as you are probably well aware, and I wished on a number of occasions that everyone had email and could just scan and attach instead.

So, when I opened my new office recently, I was faced with the task of determining my own technology. I didn’t want a fax machine. I didn’t want to pay for a dedicated fax line. Unfortunately, there are lawyers (you know who you are) and clients who still use it.

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The American Bar Association, spurred by globalization and technology, has been holding hearings on potential changes to the legal ethics rules that could affect the practice of law far into the next century.

Naturally, any changes to the ethics and professionalism rules will have more of an impact on younger attorneys. It is important, then, that we weigh in before we’re saddled with vague or Luddite-inspired rules that may be interpreted by a judiciary with the “technological heebie-jeebies.”

Historically, the ABA and Maryland have had an important role in the development of legal ethics. Today’s rules date back to 1836 and Maryland law school Professor David Hoffman’s “A Course of Legal Study 2nd ed.” This book paved the way for state bar associations that promulgated ethics rules for lawyers with enforcement mechanisms.

Alabama’s 1887 “Code of Ethics” served as a model for other states, including Maryland and the ABA. In 1908 the ABA adopted an aspirational “Canons of Professional Ethics” that was replaced by the “Model Code of Professional Responsibility” in 1970. Later, in 1983, the “Code” was replaced by the ABA’s “Model Rules of Professional Conduct” (MRPC), modeled today by Maryland and many other states.

In Maryland, the Court of Appeals’ Standing Committee on Rules of Practice and Procedure now considers and recommends changes to the state’s rules and gives considerable weight to ABA policy, often adopting them verbatim.

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On slow news days (also known as “My weekend was way too busy, and I have so much work to do that breathing, eating and other life functions seem like luxuries”) I like to suggest other blogs and news stories. Maybe this will help ease you into your week:

• Jewish apple cake: My new favorite thing. We went to Weber’s Farm a few weeks ago and purchased a Jewish apple cake. I loudly proclaimed it to be my Very Favorite Thing, and I’ve been looking for recipes ever since. I’ve made two so far, one using the recipe stated by There’s A Dad In The Kitchen (I used Golden Delicious apples — not great for eating out of hand, in my opinion, but a decent apple for cooking). Try it out; a great fall treat.
• Acrobat for Legal Professionals: If you’re an Adobe Acrobat nerd, or want to be one, this site gives you advanced tips and tricks to help you explore Acrobat’s functionality in the law office (see this post on digital letterhead for law firms).
• MyShingle: Carolyn Elefant, the muse for solos and solo wannabes, has a new edition of her book out (Solo by Choice (2011-2012 Edition): How to Be the Lawyer You Always Wanted to Be), and is celebrating with a launch on November 30 in Washington, D.C.
• The Art of Advocacy: We all know Paul Mark Sandler from his numerous writings. (That big red-and-gray book on your shelf about pleadings? That’s him). If you are a new lawyer and need help on persuasion, follow this blog. If you’re an old lawyer and think you know everything, follow this blog.
• XKCD: Just for fun.

Happy Monday!

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