Cyberbullying: A Modern Problem

by Krista Nelson April 22 2008, 17:34
I. Introduction



A girl kills herself because she finds out the boy she liked on MySpace.com (“Myspace”) was actually a couple of girls, allegedly assisted by their parents, making fun of her. [1] Another teenager is lured to a girl’s home and beaten repeatedly in retaliation for comments made on MySpace.com, while the beating is filmed for posting on MySpace. [2]. These events and others have highlighted the lack of adequate criminal laws about online harassment and online bullying – sometimes called cyberstalking or cyberbullying.
This article will examine the recent cases of cyberbullying, address examples of current laws that deal with cyberbullying and cyberstalking, and, finally, explain what needs to be changed about current laws to address the developing criminal area of cyberbullying. [More]

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Evaluating E-Discovery Software Vendors: Important Questions to Ask

by Krista Nelson April 2 2008, 17:54
I. Introduction


Lawyers face many challenges in the litigation process. Many of these challenges present themselves during the discovery process, which can be incredibly expensive. [1] With the ubiquitous nature of current technology, especially in the business world, the discovery rules have had to adapt. New rules, the electronic discovery (“e-discovery”) rules, in the Federal Rules of Civil Procedure account for discovery of electronic documents. [2] Attorneys have had to adjust to these new rules by learning a novel language, and familiarizing themselves with how to obtain such electronic information from their clients and what kinds of information to ask for from opposing counsel. [3]
One way attorneys can adapt to these new rules and attempt to discover all relevant documents at a lower, efficient cost is to invest in e-discovery software. Many different vendors, such as Attenex, have software specifically designed for attorneys and their discovery needs. [4] Different types of software can search through computers, databases or hand-held devices for a variety of documents, pictures, data and other files that are relevant to the lawsuit.
This article provides a guide for lawyers searching for ways to make e-discovery easier by choosing an e-discovery software vendor. The first step when evaluating vendors is to find one that has the necessary combination of legal and technical knowledge. [More]

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Wikileaks: A Cutting-Edge Journalistic Tool or An Affront to Business Privacy?

by Michael Pellegrino March 29 2008, 01:04
I. Introduction



Wikileaks.org, a website dedicated to compiling leaked documents from governments and corporations, has sought to hold large-scale entities more accountable for their actions through greater transparency of information. [1] However, by publishing sensitive information it believes to be in the public interest, coupled with the fact that the site has a completely anonymous user base, the site has aroused the ire of international governments and businesses alike. [2] A recent lawsuit by a Swiss bank in which the bank sought (and briefly received) a permanent injunction to shut down Wikileaks highlights how much controversy the site has generated in its relatively short life span. [3] While some critics try to paint Wikileaks as a site that engenders illegal activity and as a site that is a threat to privacy, neither claim can be properly substantiated. [4] Though Wikileaks is controversial, most forms of speech displayed on the site are protected by the First Amendment. [5] [More]

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Can a Reasonable Expectation of Privacy Exist in Cyberspace?

by Katherine Croswell March 12 2008, 15:22
          Privacy has been defined as retirement and seclusion, or as “the state of being free from unsanctioned intrusion.” [1]  This evokes thoughts of physical space. [2]  One may expect to have privacy behind the closed doors of their own home, though a nosey neighbor may be able to peer through a window and violate that expectation of privacy.  Privacy is rarely a guarantee, in this high technology age of advanced surveillance, [3] but most people can feel fairly confident that they can secure a certain physical space where they can be alone and undisturbed.  What happens, however, when the walls, doors and windows are removed and cyberspace becomes the means by which private acts take place, or private thoughts are divulged?  Do people have an expectation of privacy with regard to using the internet socially, and should they?  This article will discuss the difficulty of applying traditional privacy tort analysis to online social networks (“OSNs”) such as MySpace, YouTube and Facebook, [4] and offer some thoughts on a recent proposal to amend the analysis to reflect both physical and cyber privacy.          When a “shameful, embarrassing, or otherwise harmful disclosure of personal information” takes place, there is the potential for a lawsuit alleging tortuous public disclosure.  Traditionally, there is a four-part analysis for this tort:"(1) Was the fact disclosed public or private?(2) If private, was the information otherwise protected by the first amendment?(3) If private and not constitutionally protected, was the information disclosed to a large number of people by the defendant’s affirmative action?(4)  Finally, would such a widely disseminated disclosure have highly offended a reasonable person?" [5]Harm, causation and intent are notably absent from this analysis, but have been read into the tort by various courts interpreting the law. [6] The tort has been further narrowed, perhaps out of fear that the average person could find themselves at risk for prosecution while engaging in routine gossip or that speech that should be protected constitutionally will become suspect. [7] An example of this concern can be found in the case of Florida Star v. B.J.F., where the Supreme Court held that there will be a “public concern test” which must be met in order for a case of tortuous public disclosure to be actionable, meaning that “the information at issue must be a matter of public significance or newsworthiness, and its protection ha[s] to ‘further a state interest of the highest order.’” [8] Under the current test, few things are truly actionable under the tort of public disclosure of private facts, especially considering that many things that are a matter of public significance or newsworthiness are also protected by the first amendment. [9] However, for those things that are potentially actionable, the above analysis is inadequate in light of technological advances [10]; since the internet presents new questions regarding what facts are truly public or private, the first prong of the analysis fails to address privacy concerns in cyberspace. A new analysis must therefore be developed.          It may be difficult to apply the traditional public disclosure tort analysis to cyberspace due to the fact that the analysis is heavily linked to the physical realm. [11] The first prong of the traditional test asks whether the disclosed fact was public or private, which begs the question of when a fact is public and when it is private.  Is it private simply due to the subject matter of the information – is information of a sexual nature, for example, automatically private?  This is not necessarily true. It is difficult to say any information, by its very nature, is private because sensitive information is disclosed all of the time for publicity or other reasons. [12] Physical location also can’t define information as public or private, now that the internet is involved. [13] These are just two examples of why the traditional analysis is no longer adequate.          As a result, it has been proposed by Patricia Sanchez Abril that courts analyze these torts in a new way which would be consistent with all possible settings of tortuous public disclosure, both physical and internet invasions of privacy. [14]  She suggests that in order to analyze these cases, the court should take a three step approach. [15] First, the court should define what exactly the disclosed information was, whether it was first amendment protected speech and what the overall accessibility was to the information. [16]  Next, the courts should analyze the disclosure itself to determine whether the plaintiff was harmed and whether the alleged perpetrator had “malice intent or motive (i.e., did she breach the plaintiff’s privacy through wrongful or improper means?).” [17]  Lastly, the court should look to what the plaintiff’s actions were, including whether the “information [was] originally disclosed in the context of a confidential relationship” and whether the plaintiff took steps to protect the information that was disclosed. [18] Ms. Abril contends that by using this kind of analysis, the court can analyze any public disclosure with a fact-specific approach.  [19]          This analysis does seem a more appropriate means of analyzing public disclosure torts, in that it addresses the concerns of intent and harm and translates well to privacy in cyberspace.  The first step is adequate to analyze the disclosed information, because it addresses first amendment concerns and assures that protected speech is not chilled by the threat of a private lawsuit. [20] It is also important to analyze the overall accessibility of the information, because if the plaintiff has broadcast the private information on their very own OSN user profile, it was likely accessible to a large audience and therefore the defendant should not be held liable for damages.  It has been held that once a person has shared a fact with one or more others, they can no longer hold that information to be private. [21] This is especially true in the digital age, where telling one person could quite literally mean telling the entire world. [22]          The next part of the analysis also seems adequate, in that it addresses the harm that the plaintiff suffered as well as the intent of the discloser, issues that were not addressed in the original restatement analysis. [23] It could be said that anyone who has a private fact disclosed about them was harmed, but this prong of the test would require a severe degree of harm, in order to prevent idle gossip from becoming an actionable offense.  This prong allows for a great deal of flexibility and judicial discretion, in that many factors may play into the degree of harm suffered by the plaintiff.  While Ms. Abril is attempting to move away from the traditional privacy tort analysis, perhaps the original Restatement language stating that the disclosed information must be “highly offensive to a reasonable person” would be appropriate here in order to give the court some kind of benchmark for what degree of harm must be involved in order for the court to grant relief. [24] In addition, perhaps the size of the audience to which the information was disclosed may be considered.  If someone posted harmful information on their OSN profile which only 5 other people have access to (due to privacy settings, etc.), this may be a less serious offense than posting the information on a public OSN profile which has a virtually limitless potential audience.  This raises the question of whether any disclosure over the internet should be considered a disclosure to millions of people.  One could say that the internet is the largest audience imaginable, yet just because millions of people could have come across the information does not mean that millions of people did.  Should any disclosure over the internet be considered a public disclosure to a wide audience?  Likely not, and  courts will have to do a case-by-case analysis to determine how public the disclosure was in order to determine the true harm to the plaintiff.  Intent is also an important factor which Ms. Abril rightly included, because if one person ignorantly spread information about another without meaning to cause harm, their punishment should be far less severe than if it was done maliciously. This may help to assure that only the most serious offenses make it into court – the kind of offenses the U.S. courts presumably intend to deter.          The last prong is very important, in that it analyzes the behavior of the plaintiff his or herself to assure that they took appropriate actions to keep their information private. This shifts a burden to the plaintiff to take steps to protect their information through privacy settings, passwords, etc. [25] The plaintiff can demonstrate a reasonable expectation of privacy by working to protect their information. [26] This prong serves two purposes: (1) it reduces the risk that this lawsuit will end up in court in the first place because increased measures were taken to protect the information, and (2) it also boosts the plaintiff’s case in the event of a disclosure.          Ms. Abril’s analysis is, therefore, a great way for courts to analyze public disclosures.  This multi-factor test may not lead to incredibly consistent results due to the fact-specific nature of the analysis, but it gives courts a list of important concerns that will at the very least assure that the plaintiffs and defendants rights are being considered and fairly weighed, even when privacy over the internet is at issue rather than privacy within physical boundaries.          Today more information is available than ever before, which was made possible by the advent of the internet. People use the internet as a way to promote themselves to a large audience and perhaps even form lasting friendships and romantic relationships.  [27] The internet can be a useful tool in furthering social endeavors, but this is a double-edged sword.  One poll found that 55% of people ages 12-17 had a MySpace account – a staggering figure. [28]  The default  mode on MySpace and Facebook accounts is to make all of the information on the page public and available to anyone who wants to see it.  Knowing this, people must take extra care to protect information from an unwanted audience.  For example, employers are increasingly performing OSN searches of potential employees, and using the information they find to make employment decisions. [29]  Users need to take some easy yet effective steps to minimize their risk of public disclosure of private information, since a legal remedy is expensive and difficult to win.  One can protect themselves by raising the privacy settings on the MySpace or other account to only allow certain people, such as friends and relatives, to see the profile. [30]  One can also minimize the amount of information on the profile, such as eliminating addresses, last names, and other information that is very specific to the user. [31] The moral of the story is to be careful about what information is available to the public on OSNs, because one never knows who is watching.  There can and should be laws protecting privacy where there are no walls or ceilings, but until privacy laws are changed to reflect expectations both in the physical and cyber realms, perhaps there can be no reasonable expectation of privacy with respect to information over the internet.Sources[1] Dictionary.com, Entry on "Privacy", http://dictionary.reference.com/browse/privacy (last visited Mar. 12, 2008).[2] Patricia S. Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J. L. & TECH. 1, 2 (2007).[3] See, e.g., Catherine Komp, GPS Surveilance Creeps into Daily Life, THE NEW STANDARD, Nov. 14, 2006, available at http://newstandardnews.net/content/index.cfm/items/3886 (last visited Mar. 12, 2008).[4] See Abril, supra note 2, at 3 ("Traditionally, privacy has be inextricably linked to physical space.").[5]  W. PAGE KEETON, et al., PROSSER AND KEETON ON THE LAW OF TORTS 173 (5th ed. 1984).[6] Abril, supra note 2, at 9-10.[7] See, id. at 10-11.[8] Id. at 11 (quoting Florida Star v. B.J.F., 491 U.S. 524, 533 (1989))[9] See James C. Goodale, The First Amendment and Freedom of the Press, 1STAMENDMENT.COM,http://www.1stamendment.com/PentagonPapersFreedomofthePress.htm (last visited Mar. 12, 2008) ("The Supreme Court has held that if the press 'lawfully obtains truthful information about a matter of public significance then [the government] may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order'" (quoting Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).[10] See generally Abril, supra note 2 (discussing the need for a new framework to analyze privacy torts, which can be applied to both physical and cyber invasions of privacy).[11] Id. at 3.[12] Id. at 21.[13] Id. at 17-20.[14] See generally, id.[15] Abril, supra note 2, at 28.[16] Id.[17] Id.[18] Id.[19] Id.[20] Abril, supra note 2, at 28.[21] Patricia S. Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. Tech. & INTELL. PROP. 73, 80 (2007).[22] Id.[23] Abril, supra note 2, at 9-10.[24] KEETON, supra note 5, at 173.[25] Abril, supra note 2, at 45.[26] Abril, supra note 2, at 41 ("Courts have repeatedly looked to plaintiffs’ outward manifestations and behavior to determine whether they had true and reasonable expectations of privacy.")[27] E.g., EHarmony, www.eharmony.com (last visited Mar. 12, 2008).[28] Abril, supra note 2, at 13.[29] See Abril Myspace, supra note 21, at 75 ("A person’s digital dossier can betray him in the physical world, resulting in harms like the denial or loss of employment, shame and embarrassment, denigration of reputation, or merely exposure in an unwanted light.")[30] See Abril, supra note 2, at 14.[31] Id.

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Privacy Implications of Radio Frequency Identification Technology

by Krista Nelson February 28 2008, 18:02
   Before Mrs. Jones leaves work on a typical Tuesday, she goes to a familiar Web site where she can view the items left in her refrigerator to determine if she needs to stop by the grocery store.  She is completely out of milk and some other items, so she plans a trip to the store.  Double-checking to make sure her children arrived safely at home, she sees on the Web site that they both got off the bus on time and are in the living room, probably watching television instead of doing their homework.     As she walks toward her car on the way home, a billboard greets her, “Good evening, Mrs. Jones!” and displays a pair of jeans she might be interested in – the same brand of jeans she bought a couple of months ago.  In her car, she drives through the parking garage exit without handing anyone money - the arm automatically lets her out.  At the store, she is greeted again with her name and the shopping cart she grabs tells her what she bought last time and what aisle each item is in.  Upon arriving home, her doors unlock automatically so she do not have to dig out her keys while she carries the grocery bags.      This scenario is made possible through radio frequency identification (RFID).  It may seem incredibly futuristic, but the truth is that the technology is closer than one would think.  RFID technology offers incredible possibilities for efficiency and convenience for both businesses and consumers, but also raises important privacy concerns. Uses and Benefits of RFID     RFID technology involves the electronic communication of information from a small chip that emits a radio frequency to a reader that interprets the information. [1] RFID technology is currently used in items such as clothing, home products, security cards, driver’s licenses, and tollway passes. [2] No human interaction with the products or data reader is necessary – the data reader either requests information from the RFID chip if the chip is passive (the more common implementation) or receives information if the RFID chip is active (such as car tags for tollways). [3]     RFID is being implemented extensively by Wal-Mart. [4] Wal-Mart required its top one hundred suppliers to use RFID chips in their products by January 2005. [5]  Wal-Mart installed RFID readers on its shelves so when a product with an RFID chip is taken from the shelf, the stock room is notified that a replacement needs to leave the stock room and a new product needs to be ordered. [6] This has incredible benefits of more accurately supplying customers with desired products, as well as not requiring human interaction for scanning the shelves or manually calculating how many products are needed.[7]     Road-toll management is also another current use of RFID.  [8]   Toll road systems can electronically identify the car and deduct the toll while allowing the cars to keep moving.  [9]  Identification cards allow electronic access to secured areas through RFID. [10]  Holding up the identification card to the reader opens the door, providing great convenience to the user   RFID tags are being tested to track students by putting tags in their backpacks. [11] The system being implemented in Charleston, South Carolina will track children as they enter and exit the buses.  [12]  The global positioning system on the bus will track where the bus is located on its route. [13]  Parents are able to check a Web site to see if their children are on the bus and if the bus is on time. [14]     RFID technology offers significant benefits.  For retailers, it combines the security of magnetic tags used to prevent theft combined with the detailed product information available with barcodes in one technology. [15] RFID tags also allow writing of information, so businesses can write on the tag who purchased the product and when. [16]  Retailers can keep track of their products much closer, knowing exactly when a product has left the shelves and needs to be replaced. [17] This can save companies, both retailers and suppliers, an incredible amount every year.  [18]  Procter and Gamble reports that almost 16% of its products are out-of-stock, causing empty store shelves.  [19]  By reducing that number only 10 – 20%, it could save the company $400 million each year. [20]     The convenience of opening doors or driving directly through toll booths is a great benefit of the technology as well.   Some parents greatly appreciate being able to determine when their young children have arrived at school and when to expect them home.[21] Other parents, however, have great concerns that the information about their children could become available to unscrupulous individuals.[22]  In Charleston, the American Civil Liberties Union has assisted those concerned parents in keeping the information about their children safe by stopping the implementation of RFID tracking technology. [23] Privacy Implications of RFID Technology     The most serious privacy and legal concerns are raised by publicly available technology that can “skim” – or steal - information from RFID tags.  [24] Skimming technology copies the information contained on the RFID tag quickly by reading and cloning the RFID signal. [25] This information can include identifying information and give the ‘skimmer’ access to secured areas or buildings.  [26]  California State Senator Joe Simitian sponsored a bill in the California Senate to outlaw skimming technology; the bill was passed in January 2008. [27]  Senator Simitian himself was a victim of skimming – a hacker skimmed Senator Simitian’s State Capitol access card and was able to walk into restricted areas.  [28]  Other types of identification, such as drivers’ licenses and student IDs often have RFID technology.  Frighteningly, the technology to skim the personal information from an RFID tag is “readily available, off-the-shelf, and surprisingly inexpensive.” [29]     Retail items with RFID tags, such as clothing, electronics and other goods can provide those who purchase RFID readers or skimming technology with detailed information about a person’s spending habits and purchasing history. [30] When the tagged item is identified with a particular individual, the information about that product and the other products they have with them or in their home, depending on where the RFID reader is used, can give the reader a profile of the person.  [31] This might be helpful for customers who want targeted coupons or advertisements, but for many people this raises serious concerns about privacy.     In 2005 American Express submitted a patent for a new RFID technology system made up of RFID tags and readers.  [32] The patent explained that objects with RFID tags would emit signals that identified the user and that when used in conjunction with RFID readers, people’s movements would be recorded and they would be sent video ads targeted directly toward them. [33]  RFID readers would be placed in public places such as “a common area of a school, shopping center, [or] bus station,” finding out personal information about many different people. [34] Solving Privacy Problems     For those concerned about privacy, there are forces at work to address the privacy implications of RFID technology.  At least two legislative bodies, the California Senate and Washington House of Representatives, have passed bills that make it illegal to skim RFID–enabled cards. [35]  On the technological front, software that deactivates RFID tags once the items with the tag is purchased is being developed.  [36] This technology will, through the use of lights, indicate when the item’s RFID tag has been deactivated. [37]     Also preventing the great outcry against RFID technology is that RFID is not widely used yet.  Businesses wanting to use RFID tags would have to make incredible investments in new hardware to read RFID tags on shelves and at checkout counters, software to understand the RFID tags, the RFID tags themselves, training for employees and new security systems.  Most companies do not have the capital for such a venture. [38] RFID tag technology itself needs to improve before it can have wide-spread use. [39] RFID readers are not always accurate, and the RFID tags are hard to manufacture very small for the products that require small tags. [40] Additionally, the technology to disable the RFID tags needs to be implemented to address the privacy concerns that consumers have. [41]      As RFID technology gets less and less expensive, more businesses will begin investing in RFID tags.  From 1999 to 2003, the cost of RFID tags decreased by fifty percent - from $1.00 to $.50 per tag - with price drops predicted to continue. [42] Once RFID tags become more affordable to smaller businesses, they will become more widely used and consumers need to be aware of what RFID technology is and how it affects them.  Even though it would be great to have stores and billboards give customers  a personal greeting because they can read the RFID tag on our drivers’ licenses, it also means that all sorts of companies are gathering personal movements and creating a profile about the consumers.  There is no need to begin a great panic about “big brother” monitoring our every movement, but consumers do need to be aware of RFID technology and what it means for their lives.  Although RFID might bring great convenience by allowing parents to see where their children are and permitting drivers to pass through toll booths at a normal speed, at what price does this convenience come?  Only the future will reveal how retailers, the government, police, investigators, lawyers and marketers will use our private information. [1] Alan D. Smith, Exploring Radio Frequency Identification Technology and its Impact on Business Systems, 13 INFORMATION MANAGEMENT AND COMPUTER SECURITY 16, 17 (2008). [2] Alan D. Smith, supra note 1, at 20-21. [3] Todd Lewan, Chipping Away at Privacy: Devices Track Spending, Personal Moves, ALBANY TIMES UNION, Jan. 27, 2008, at A7. [4] Alan D. Smith, supra note 1, at 17. [5] Id. [6] Id. [7] Id. [8] Id. at 21 - 22. [9] Id. [10] California Senate Approves Bill to Outlaw Skimming RFID Tags, COMMWEB NEWS, Jan. 31, 2008. [11] Michelle R. Smith, Plan for Student-Tracking Chips Criticized, CHARLESTON DAILY MAIL, Jan. 8, 2008, at 12A. [12] Id. [13] Id. [14] Id. [15] Alan D. Smith, supra note 1, at 18. [16] Id. at 18. [17] Id. at 18-19. [18] Id. [19] Id. [20] Id. [21] Michelle R. Smith, supra note 11. [22] Id. [23] Id. [24] California Senate, supra note 6, at 1. [25] Id. [26] Id. [27] Id. [28] Id. [29] Id. [30] Lewan, supra note 3. [31] Id. [32] Id. [33] Id. [34] Id. [35] Washington State Reps. Pass Ban on RFID Skimming, COMMWEB NEWS, Feb. 15, 2008. [36] Illinois, Rhode Island Inventors Develop Visual Identification Tag Deactivation, US FEDERAL NEWS, Feb. 11, 2008. [37] Id. [38] Alan D. Smith, supra note 1, at 22 – 23. [39] Id. [40] Id. [41] Id. [42] Id. at 18.

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International Business Travelers Beware

by Michael Pellegrino February 23 2008, 01:09
I. Introduction



Picture yourself in the shoes of Maria Udy, a marketing executive working for a travel management firm in Maryland. [1] Udy, a British citizen traveling from Washington D.C. to London, was pulled aside by a federal agent because he had "a security concern" with her. [2] She was presented with a frustrating choice: hand over her laptop for the agent to search or miss her flight. [3] In a similar incident a tech engineer, a U.S. citizen who chose to remain anonymous for fear of calling attention to himself, was pulled aside by a federal agent who demanded that he log into his computer so that the agent could search it. [4] The engineer protested, as the computer belonged to his corporation, but he logged in and watched in dismay as the federal agent copied down each of the websites he had visited. [5] Sadly, these incidents are far from isolated. [6]

Technological advances have provided international business travelers with innumerable benefits, but recent border search jurisprudence threatens to nullify the conveniences of this medium by subjecting such travelers to random, invasive searches of their electronics. [7] Indeed, in this age where a business traveler's laptop can be as indispensable as his or her wallet (and capable of carrying so much more), privacy protections have become all the more essential. Furthermore, due to conflicting precedents in two recent, landmark cases, the future of privacy protections in the digital age is entirely uncertain. [8] This article will not only examine the current state of the law of border searches with regard to technology, but it will also analyze the merits of arguments made in salient, recent cases that will shape the future of the law in the field. [More]

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eLawyering and the Unauthorized Practice of Law

by Katherine Croswell February 5 2008, 14:44
          The legal profession has been criticized for not keeping up with technological advances [1], arguably leading to less efficiency in the practice of law.  Websites like LegalZoom.com and LegalAdviceLine.com are at the cutting edge of changing that. [2]  While most law firms, especially those in large cities, have basic websites outlining the firm’s area(s) of expertise, displaying recent press releases, and even giving biographies of the attorneys in order to attract more business, some legal web pages have taken a more interactive approach. [3]  These interactive websites offer a variety of “do-it-yourself” services, from answering specific legal questions, to incorporating a new business, to quickly producing documents such as basic contracts and wills at a fraction of the cost of obtaining a lawyer’s services. [4]  While the thought of saving money on attorneys fees may initially seem attractive, and even though these websites are generally used for very basic legal needs, online legal aid may cross the line between self-help and the unauthorized practice of law. [5]  The following article will discuss the inherent costs and benefits of having this form of legal advice available.          LegalZoom.com claims that it, in fact, is not offering legal services. [6]  The fine (and gray, making it even harder to see) print on that website states that “the information provided in this site is not legal advice, but general information on legal issues commonly encountered.  LegalZoom’s Legal Documentation Service is not a law firm and is not a substitute for an attorney or law firm.” [7] But just because this is what the website says, does that mean it is true?  Is LegalZoom.com really not providing legal advice?  The mere suggestion of this may seem somewhat laughable in that LegalZoom.com advertisements claim that its “services will save up to 85% of what an attorney would charge for performing the same service," [8] which is highly suggestive that the website is meant as a substitute for an attorney.          Before we can say LegalZoom.com and others have crossed a line , we must first determine what constitutes the unauthorized practice of law. According to Mark Yoccum, a Duguesne University Professor of professional responsibility, “most jurisdictions…have no definition of what it is to practice law,” and generally these kinds of situations are dealt with on a case-by-case basis. [9] While websites pose a seemingly new problem regarding the unauthorized practice of law, this situation is similar to form books, which may give people the information they need to draft their own contracts and other legal documents.[10]  Books were ultimately found not to be the unauthorized practice of law by several courts, however, if the author were too include commentary discussing the material in the document, there may be a problem. [11]  “Determining just what constitutes the unauthorized practice of law is a state to state issue” [12] so websites may be in trouble in one state, but perfectly within the rules in another.  To be sure, there is no clear cut answer to whether websites constitute the unauthorized practice of law, but there are viable arguments on both sides, and case law is needed in this area to come to a definitive conclusion. [13]          To be sure, there are perks to legal services over the internet.  The most obvious is that this will increase efficiency. [14]  Rather that forcing clients come in and meet with an attorney face-to-face to discuss their legal issues, the internet provides a faster method of getting answers to legal questions. [15]  Internet legal services also may lower the costs of legal services (due to the increase in efficiency), thereby increasing the number of people who have access to legal advice. [16]          The cons, however, are considerable.  The most important is that the internet is very difficult to regulate and therefore the quality of legal services and advice may be compromised, leading to misguidance. [17]  In the event that the legal advice obtained was false or misleading, a client may have missed the statute of limitations deadline, causing irreparable harm if the websites are not forced to answer, in civil court or before the appropriate bar association, for the error. [18] Also, when these kinds of websites are allowed to operate, who’s to say they will adhere to other professional ethics rules, such as those regarding confidentiality and the attorney-client privilege? [19]  Without these guarantees, there cannot be as free of an exchange of information, and information the client may want to keep private may be revealed. There are also multi-jurisdictional complications – legal advice in one jurisdiction is not necessarily applicable in another, but the internet is available across all jurisdictions, leading to inevitable confusion if explicit disclosures are not made. [20] In addition “websites, form books and other instances of non-lawyers providing legal advice can lead to a lack of confidence [in the system].” [21]  Lastly, it has been argued that “the real reason the practice of law needs to be regulated is to ensure independence of judgment.  ‘The lawyer’s interest is your interest….that isn’t always the case if you are dealing with someone who isn’t a lawyer.’” [22] In essence, the oath lawyers take to do what is best for their client protects the client - if legal advice is accepted from those who have not taken that oath, those important protections are not in place.          So what should be done in light of the fact that legal websites are only gaining popularity, with legal professionals running to catch up? Perhaps internet and traditional legal services do not have to be at odds with each other.  Indeed, they can coexist and even assist in each other’s prosperity.  It is unclear at present whether every legal website is owned and operated by a licensed attorney.   It is the opinion of the author that all websites offering any form of legal service should have a licensed attorney behind it and willing to accept the consequences for the business, including potential malpractice lawsuits. The lawyers running these websites should be held to identical standards to their brick and mortar counterparts, and should comply with all the model rules of professional ethics so as to create uniformity across jurisdictions.  There is, of course, a multijurisdictional problem, because legal advice in one state may not be appropriate for those in another.  In this case, legal websites must get an informed waiver from anyone using the service, to make them aware that legal advice is not “one size fits all” and must often be tailored to specific state law.          Another option has been presented by Robert Shapiro, founder of LegalZoom.com. [23]  He has launched ProxiLaw.com, a website designed for use by licensed attorneys, which basically serves as an “invisible member of the attorney’s staff.” [24]  The service provides basic services to enable attorneys to attend to their clients’ more complicated needs. [25]  ProxiLaw.com is meant to serve as a “cost-effective and time-saving” tool to streamline the day to day practices of law firms. [26] This is an example of how traditional law firms and the internet can interact to foster a better, more efficient, and most cost-effective way of providing legal services to those who need it.          The internet presents unique problems related to the unauthorized practice of law.  It will be interesting to see how the offering of legal services evolves via the internet, and whether future courts and bar associations will crack down on websites claiming that they are not offering legal advice. Indeed, regulation is needed to assure that quality legal services (provided by qualified individuals) are offered to those who seek it, but the internet offers new hope for efficient and cost-effective legal counsel – it is the wave of the future and, perhaps, a step in the right direction.Sources[1] Allen W. Chiu, The Ethical Limits of ELawyering: Resolving the Multijurisdictional Dilemma of Internet Practice through Strict Enforcement, 2004 UCLA J. L. & TECH. NOTES 1 (2004).[2] Id.[3] Id.[4] Jason Green, Websites may Create Unauthorized Practice Questions, 9(14) LAWYERS J. 6, 6 (2007).[5] See generally, id. (discussing the unauthorized practice questions that arise from legal websites); Catherine J. Lanctot, Scriveners in Cyberspace: Online Document Preparation and the Unauthorized Practice of Law, 30 HOFSTRA L. REV. 811 (2002). See also, MODEL RULES OF PROF'L CONDUCT R. 5.5 (2007).[6] Green, supra note 4, at 6.[7] Id. See also, LegalZoom.com Home Page,, http://www.legalzoom.com (last visited Feb. 5, 2008).[8] Id.[9] Id.[10] Id.[11] Green, supra note 4, at 6.[12] Id.[13] See id. ("To date...no complaints regarding the dispensing of legal services from the Internet have been made.").[14] See West Group, Attorney Rober Shapiro Launches On-Demand Paralegal Service, 20(23) LAW P.C. 6 (2003).[15] Chiu, supra note 1.[16] Id.[17] See Lanctot, supra note 5, at 840-41.[18] See generally, id. (discussing that legal websites refuse to accept liability if someone uses their documents without consulting a lawyer).[19] See MODEL RULES OF PROF'L CONDUCT R. 1.6 (2007) (discussing confidentiality).[20] See generally, Kristine A. Moriarty, Law Practice and the Internet: The Ethical Implications that Arise from Multijurisdictional Online Legal Service, 39 IDAHO L. REV. 431 (2003).[21] Green, supra note 4, at 6.[22] Id.[23] West Group, supra note 14.[24] Id.[25] Id.[26] Id.

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Instant Messages: An E-Discovery Nightmare?

by Katherine Croswell November 14 2007, 14:58
I. Introduction


Instant Messages (IMs) have become an increasingly popular method of communication, both in the personal and business world. [1] They have the benefit of being an efficient, rapid and oftentimes free means of communication. [2] IMs are often candid and free-form, and when users close their IM dialogue box when the conversation ends, the chat session generally disappears and is not recorded. [3] However, with the advent of the e-discovery amendments to the Federal Rules of Civil Procedure (FRCP), many electronically stored documents have become subject to discovery in litigation. [4] While Word documents, Excel spreadsheets and e-mails are accepted as discoverable documents for litigation purposes, it is unclear whether IMs can and should be requested during the discovery process. [5] This article will explore issues related to the discoverability of instant messages and will ultimately suggest that businesses employ techniques to closely monitor employee use of instant messages to prevent a “smoking gun” IM from costing employers millions of dollars in court. [More]

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“Second Life” Challenges the Boundaries of Law in Cyberspace

by Justin Eurek October 25 2007, 15:44
I. Introduction


Virtual reality is fast becoming a mainstay in today’s modern culture of computer savvy citizens all over the world. [1] It is a concept of real time and space existing within a construct comprised entirely of a dynamic, streaming assembly of 1’s and 0’s of binary programming language, translated into an individual’s online world. As the complexity and realism of these interactive virtual playgrounds increase, users have adapted a plethora of entrepreneurial opportunities that test the legal boundaries of laws throughout the world, including those of the United States. [2] [More]

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FMRI and DNA Gene Sequence Mapping Provide Promising Technologies with an Orwellian [1] Price Tag

by Justin Eurek October 25 2007, 15:43
I. Introduction Functional Magnetic Resonance Imaging (FMRI) and DNA sequence mapping provide technologies that offer society unprecedented benefits, but at a cost that we are only beginning to understand.  [2]  FMRI, for example, enables researchers to map the brain's neurons as they process thoughts, sensations, memories and motor commands. [3] This provides neurologists with the ability to detect early onset of Alzheimer's disease and other ailments without invasive surgery.  [4]  It also can be used as a next generation lie detector in that it provides an almost infallible insight into a person's thought process that detects deception, raising obvious concerns about our civil liberties and right to privacy.  [5]  DNA sequence screening, on the other hand, involves the study of genes and the notion that they are determinative of an individual's behavior, character, and future medical problems.  [6]  Diseases such as Crohn's disease, night blindness, Lupus, and emphysema  and their associated genes are already patented [7], making genes a highly lucrative business commodity. [8]  However, should there be property rights associated with genes?  In the wrong hands, these potentially altruistic technologies may create an Orwellian society where the government and/or large corporations may legally infringe on our traditional notions of civil liberties in the pursuit of capitalist ends.  [9]  Where should we draw the line? II. FMRI Technology - Promises and LiesFMRI scans have uncovered a rough methodology of, for example, how our brains handle fear, memory, risk-taking, and romantic love.  [10]  Lie detection is possible because the hemoglobin in red blood cells react differently to the FMRI magnetic fields depending on if the cells are carrying a molecule of oxygen.  [11]  Active regions of the brain use more oxygen, and the fMRI scanner can pinpoint the busiest regions of the brain in real time with no danger or discomfort to the subject.  [12]  Subjects that lie showed increased brain activity in areas such as memory, judgment, planning, sentence processing, and inhibition. [13]  In contrast, those that told the truth that utilized less mental resources; thus, the liars exerted more mental processes to lie than truth tellers, making for fail proof determinations of deception.  [14]Two startup companies called No Lie MRI and Cephos have emerged, promising to bring deception detection to the market.  [15]  Because of the highly controlled, sensitive, and cumbersome non-portable testing environment, their primary customers are those that seek to exonerate themselves from their convictions.  [16]  However, new derivative infra-red technologies that can still achieve a 95% accuracy rate, are under way that could enable discrete scans from across the room, applicable to situations like airport screening or military interrogations without the need for consensual participation.  [17]  The potential uses are vast; beyond determining if someone is a law-abiding citizen or a security threat, this technology could be used, for example, in employee hiring procedures or even if to determine if your partner is faithful or not.  [18]  This raises obvious questions of 4th and 5th amendment rights - is an involuntary FMRI scan an illegal search and seizure since something (your thoughts) was taken from you without your consent?  [19]  The intrusion into one’s thoughts would arguably violate one’s constitutional right not to incriminate yourself if people could ask you questions that you cannot deny or refuse to answer.  [20]III. Gene Sequence Screening and Health CoverageGenes have become a major business commodity, with venture capitalists and patent procurements aimed primarily at the development of drugs and diagnostic tests.  [21]  Almost 20 percent of the entire human genome is "owned" by patent holders and investors mostly focused on human disease and biological pathways.  [22]  While the benefits of the technology show unprecedented promise in fighting disease, the benefit may be at some cost to our privacy with genetic information.  [23]Insurance companies have already denied health insurance to patience because of genetic screening.  [24]  For example, an HMO stated that it would pay for an abortion of a fetus with a genetic defect, but would not provide financial coverage if the fetus was brought to term.  [25]  Even healthy people have been denied coverage despite their disease prevention measures because of genetic screening.  A healthy child who carried a gene that predisposed him of a heart disorder was rejected for health coverage despite his medication that eliminated his risk of heart disease.  [26]  This poses the question as to whether insurance companies should be able to charge higher premiums based on genetic screening when predisposed but controllable ailments are detected.  [27]  The protection and privacy of our genetic information will certainly be hotly debated in the years to come.IV. ConclusionFMRI and Gene Sequence Screening offer many benefits to society that can revolutionize and greatly enhance, among other things, our medical and security capabilities.  However, if left unchecked, the capitalistic ends may test our traditional notions of civil liberty.Sources:[1]  GEORGE ORWELL, 1984 (Plume 2003) (1961).[2]  Intrepid Liberal Journal, Brain Fingerprinting and Civil Liberties,  May 23, 2006http://www.politicalcortex.com/story/2006/5/23/222135/163 (last visited Nov. 20, 2007).[3]  Id. [4]  Id.[5]  Id.[6]  Philip Bereano, Does Genetic Research Threaten Our Civil Liberties?, Aug. 2000http://www.actionbioscience.org/genomic/bereano.html (last visited Nov. 20, 2007).[7]  Greta Lorge, Everybody Wants a Piece of You. One-fifth of Your DNA is Now Owned (As in Patented) by Someone Else, Jan. 2006 http://www.wired.com/wired/archive/14.01/start.html?pg=17(last visited Nov. 20, 2007).[8]  See Bereano, supra note 6.[9]  Steve Silberman, Don’t Even Think About Lying.  How Brain Scans are Reinventing the Science of Lie Detection, Jan. 2006 http://www.wired.com/wired/archive/14.01/lying.html?pg=2&topic=lying&topic_set= (last visited Nov. 22, 2007).[10]  Jeff Wise, This is Your Brain…This is Your Brain on an fMRI Scan, POPULAR MECHANICS, Nov. 2007, at 64.[11]  Id.[12]  Id.[13]  Id.[14]  Id.[15]  See Silberman, supra note 9. [16]  Id.[17]  Id.[18]  See Wise, supra note 10.[19]  Id.[20]  Id.[21]  See Lorge, supra note 7.[22]  Id.[23]  See Bereano, supra note 6.[24]  Id.[25]  Id.[26]  Id.[27]  Id.

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