How Private are Text Messages and eMails?

A ruling in Quon v. Arch Wireless in June, 2008 in the 9th Circuit may influence how much privacy individuals may expect with text messages and eMails that they send. The same month the opinion was issued there were an estimated 75 billion text messages processed in the US. That’s an astonishing number, but no more astonishing that the estimated 97 billion daily emails sent (see my September 4, 2008 blog).

What happened in Quon?

The Ontario, California Police Department issued pagers to its officers and purchased 25,000 characters per month for each device and then paid an overage fee in excess of the 25,000 characters. The Department had employment agreements that stated that the text messages were covered by the Internet and eMail Policies. However, the Department told the officers that if they would just pay the overage fees, then the Department would not bother to read the text messages to see whether they were personal or for police business. Ultimately the Department tired of being a bill collecter and asked Arch Wireless to send copies of the text messages for review. The officers filed suit saying that the messages were private to them, violated their Fourth Amendment rights of unreasonable search and seizure, and ultimately the trial court and jury agreed.

Privacy of Text Messages and eMails

Generally in the US eMails and text messages are not private to the employees so employers can review them if they wish, however in the EU and Canada text messages and eMails are private to the employee. In Quon the 9th Circuit interpreted the Stored Communications Act (18 U.S.C. §2702 “Voluntary disclosure of customer communications or records”) in that Arch Wireless was providing an “electronic communication service” (ECS) rather than a “remote computing service” (RCS). However, even the 9th Circuit that this ruling was very fact specific. So if employers want to have access to employees’ text messages and eMails it would be wise to state that specifically in the employment agreement, which should be updated and resigned annually, and then the employer should also follow its company Internet and eMail Policies regarding enforcement of the policies.
 

Google and Yahoo! - Marriage Plans Cancelled...

The saga of where Yahoo! is headed took another turn when Google decided that it was not worth the federal scrutiny for Google and Yahoo! to work together. Clearly to the two largest search engines working together meant an increase in revenue for Yahoo! Microsoft a spurned suitor made it clear that it did not want Google and Yahoo! working together. As well, the Department of Justice (DOJ) has been reviewing this joint marriage since it was first announced.

How Did the Elections Impact the Cancellation?

Google’s decision to abandon the Yahoo! deal happened a few days after the election. However, Google CEO’s Eric Schmidt campaigned for President-Elect Obama, so one might have concluded that Google would have continued with this deal. In an unrelated event Thomas Barnett, Assistant AG for the Antitrust division of the DOJ, who was skeptical of the Google deal, resigned the day following Google’s decision to abandon the Yahoo! deal. What’s the message here?

What’s Going to Happen Now?

All indications are that Yahoo! has to do something for economical survival and maybe a new deal with Microsoft will be more appealing since the deal with Google ended. Google is the 800 pound gorilla in the search/ad business and everything it does to expand will continue to anticompetitive scrutiny, not unlike virtually every move that Microsoft makes leaves it subject to court scrutiny. However a deal between Microsoft and Yahoo! is anything but a sure thing since the DOJ will want to scrutinize any proposal that may be anticompetitive. As a matter of fact, a DC District Judge still gets reports about Microsoft’s compliance with the 2001 Antitrust Settlement.
 

What a headline- "Woman jailed after 'killing' virtual husband!"

Since millions of individuals play online games, and many virtual characters are killed daily it’s hard to image exactly how someone could really be found guilty of killing a virtual character. However, apparently this news story from Japan indicates that the defendant was so angry with her Maple Story online husband that she killed his digital persona. Actually according to the story the defendant found that she was divorced without warning and so she logged into the virtual Maple Story world using her ex-husband’s ID and password to kill him.

How can one kill a virtual person?

This seems a little goofy except that Maple Story and all online virtual worlds, including Second Life, require all users to agree to terms of service (TOS). So it’s not much of a surprise that the TOS restrict what users can do…but neither Maple Story nor Second Life have TOS that even mention killing or murder. So that‘s why the Japanese authorities are charging the defendant with illegally accessing a computer which is a crime in most states and countries.

Where are we going with virtual law?

As mentioned in an earlier blog, the American Bar Association published a book entitled Virtual Law in which Chapter 10 is entitled “Criminal Law and Virtual Worlds” and states that the most common virtual law crimes include money laundering, fraud, gambling, and stalking/harassment. As well, some virtual worlds have tried to deal with sexual behavior which is pretty difficult to regulate. But it seems appropriate that the virtual worlds try to protect children from sexual behavior, so all TOS generally do not permit anyone young than 18 from participating. However, as my favor New Yorker cartoon indicates with one dog sitting in front of a computer talking to another dog and says “on the Internet no one knows you’re dog.” No one really has a clue who is users really are. But defining pornography is not so easy, even when the US Supreme Court tried to define pornography Justice Potter Stewart’s famous statement in Jacobellis v. Ohio, 378 U.S. 184 (1964) was that he could not define it, ‘but he knew it when he saw it.’ So how can pornography in virtual worlds be regulated?
 

E-Voting - Elections may be impacted!

It seems like just yesterday that the 2000 election concluded with the US Supreme Court deciding the election because of hanging chads! So given the number of early complaints it seems that the 2008 election may also be decided in the courts….maybe not because of hanging chads, but some electronic voting glitch.

Were things better before E-voting?

Some voters wish for the old lever machines or paper ballots, but unfortunately most people don’t understand that the lever machines led to unreliable vote totals. Lever machines were simple in that each voter pulled a lever for their candidate and a wheel in the back of the machine added one more number to the candidate’s totals. However, if someone wanted to change an outcome, the wheels could be increased to help one candidate, and as long as the person changing the votes also reduced another candidate’s count no one would know. Or even paper ballots are not perfect since an enterprising person could replace ballots to change the outcome. As a matter of fact there are some elections that require voters to use pencils to complete paper ballots…how unreliable is a pencil vote?

E-Voting Systems are Pretty Reliable

In 1986, before there were any computer election system laws in Texas, I represented 6 candidates for City Council in Dallas who were concerned about the use of Dallas County’s computer election system since the only other county in the country using that particular system was Cook County, Illinois. So Dallas County agreed to a re-count mechanism to validate the count rather than deal with an injunction. The next year 1987, I worked with the Texas Legislature to create a computer election law which included a certification process by the Texas Secretary of State. For the next 13 years I was an Examiner for the Texas Secretary of State of computer election systems. During that I time Texas developed a very strict set of rules for certification and as a result it seems to me that the validation process of computer election systems in Texas means that the results of the 2008 election should be reliable. Primarily because in Texas there is a testing process before and after each election to validate the counting process, but what cannot be quantified in any election are individuals who may figure ways to change the election vote. However, that’s endemic to the election process and cannot be totally eliminated. As a matter of fact, every election requires human integrity to protect the actual votes, whether for President of the US or high school.
 

Great news! Less Spam! At least for the short-term.

A recent report from the Federal Trade Commission (FTC) that they were successful in getting a preliminary victory by shutting down a huge international spammer is great news since we receive so much spam. As the consumer watch dog for US citizens the FTC has been pursuing claims against spammers under the CAN SPAM Act of 2003, but the ability to shut down a foreign operated spammers is more complicated than just getting a judge to sign an order in Chicago. The CIO at SpamHaus claims that the defendants in this lawsuit delivered up to a third of all spam.

What was going on?

These defendants used spam to market male-enhancing pills, prescription drugs, and weight-loss pills, notwithstanding that apparently the Food & Drug Administration (FDA) tests indicated serious problems for individuals who used these products. Also the defendants misrepresented that the prescription drugs were licensed by US pharmacies when in fact the drugs were shipped from India without licenses. Also the FTC investigators found that there was no security for credit card purchasers so in addition to everything else there is a concern about identity theft.

Who has jurisdiction?

In order for courts to take lawsuits there has to be proper jurisdiction, and in this instance the FTC brought its case simultaneous with charges by officials in New Zealand. But the scope of these spammers was larger than New Zealand and the US, and apparently included spammers in China, India, Russia, Canada, and the US. So it’s easy to see how the Federal Court in Chicago could seize assets in the US, but not so easy to see how effective that might be in the other countries other than New Zealand. How courts reach across international boundaries is not entirely clear including whether the French Courts really has jurisdiction over the US Yahoo! website, but since the 2000 French injunction is still in place to preclude the sale Nazi materials.
 

Virtual Law in Virtual Worlds?

It’s hardly a passing fancy, virtual worlds abound. Second Life boasts virtual property owned by IBM, Dell, and Manpower. Gaming giants Sony and Microsoft have announced virtual gaming communities where avatars will compete but using their specialized equipment rather than just personal computers. Since law is the glue that holds society together, it’s no wonder that there are unique laws in the virtual worlds and a number of lawyers. As a matter of fact, the American Bar Association recently published a book entitled Virtual Law. Also there was Virtual Law Conference was held concurrently with the Virtual Worlds Conference in New York. Even US District Judge Richard A. Posner made an appearance as an avatar in Second Life.

Modern Day SciFi?

It’s hard to tell whether Virtual Worlds are a form of SciFi computer-Internet recreation. That is, living through avatars in an imaginary Internet world. Not being much of a SciFi reader I vividly I remember reading 1984 when I was in the 8th grade and was pleased with the year 1984 came and went without Big Brother running our world. Also I remember reading Robert Heinlein’s Stranger in a Strange Land in 1972 while in graduate school studying computer science and being impacted.

Lawyers Abound in Virtual Worlds

There must be a connection point that interests thousands of individuals since Second Life and other virtual worlds operate in a number of languages around our earth. Virtual residents own property and conduct commerce, so lawyers naturally have a role. Nonetheless when Linden Labs took some property away from a Second Life resident, the litigation ended up in federal court Pennsylvania. Linden Labs was unsuccessful in moving the dispute to California because the judge acknowledged when Second Life founder Philip Rosendale’s Avatar held a “town hall” meeting in Second Life and residents from Pennsylvania were invited and attended, and so the defendants should have known that they could been dragged into court in Pennsylvania.
 

Google- Finally Starts to Monetize YouTube and More

When Google purchased YouTube for $1.65B a few years ago there was in expectation that the site would be a money maker, not just a magnetic for video traffickers. Of course Google did not expect the troubled economy that we live in today nor that Viacom to file a $1B lawsuit for copyright infringement. Google’s new offering will allow YouTube users to purchase digital goods from Apple’s iTunes or Amazon.

AdSense for Games

Google also announced beta software called AdSense for Games which allows video, image or text ads to be placed at the start, end, or change of level for online games.

It’s About Advertising

Notwithstanding these complex economic times, recent estimates of global online advertising revenue are an astonishing $81.1B by 2011, and Google is obviously one of the greatest movers. Since the estimates of revenue from YouTube are a measly $200M for 2009, Google’s new sale of digital goods should significantly increase Google hope to generate $27B which they estimate. It’s also hard to image that Google’s 10th birthday will be in November and it is one of the richest companies in the world. In the meantime the US government doesn’t know what to do about Google proposed advertising partnership Yahoo! so that deal is now on hold. We all need to stay tuned, but be assured Google will generate more data about visitors to their kingdom which clearly translates into ad revenue.
 

IT in Texas Courts

Since its creation by the Texas Legislature in 1997 I have had the honor and privilege to serve as Chair of the Texas Supreme Court Judicial Committee on Information Technology (JCIT) whose primary focus is to help automate the Texas Court System and put the Internet on the desktop of all 3,200 Judges. Of course when JCIT started in 1997 it was impossible to predict the explosion of growth in the Internet, but nonetheless JCIT has dealt with the changes to IT and information as a result.

Texas Court System

Texas is a large State in geography, population, and local government, as we have 254 counties, more than 1,100 cities, and about 23 million people. Each of the 254 Counties are run by Commissioners’ Courts who also are responsible many other government functions, and there are over 400 District and County Clerks who receive documents filed in the various District and County Courts. Each City finances its own Municipal Court system. Generally local governments are responsible for financing the Court System except the 16 Appellate Courts which are funded by State funds, which include 14 intermediate Courts of Appeal, a civil Supreme Court called the Supreme Court of Texas, and a criminal Supreme Court call the Texas Court of Criminal Appeals. All Judges are elected except the +1,000 Municipal Judges who are appointed by the Cities.

Electronic Courtrooms

Many of the trial courts around Texas are now automating the trial courtrooms so that trial lawyers and judges can use cutting edge technology to display evidence, PowerPoint, video, and websites to juries. AMX is one such company who has implemented courtrooms in a number of Texas Counties including Dallas and Collin. These electronic tools have helped transform the trial process to keep in step with the explosive growth to the Internet and IT. AMX technology is also used by the Supreme Court to broadcast oral argument through St. Mary’s University School of Law.

eFiling in Texas Court

One statutory charge of JCIT was to implement an eFiling system for case documents. JCIT structured the eFiling project with TexasOnline since the Texas Legislature mandated that all State government agencies use the Texas eGovernment portal. TexasOnline has contracts with more than 36 Counties to provide eFiling directly to the District and County Clerks in a standard pdf format. We refer to TexasOnline as the ESM (Electronic Filing Manager) and at the same time TexasOnline has contracts with about 6 EFSPs (Electronic Filing Service Providers) who in turn have contracts with various law firms around the State. The lawyers file with the EFSP of their choice, and the time of the filing is when the lawyer files with the EFSP, who then transmits to the EFM, who in turns files the documents with the specific District or County Clerk. The TexasOnline service also provide for service of documents to other parties, and Judges may issues orders to lawyers in various cases.
 

E-Discovery - More than Just Buzz Words

In December 2006 the Federal Rules of Civil Procedure changed the manner in which lawyers had to deal with ESI (Electronically Stored Information – a new acronym from the Federal Rules). Having worked with computers since 1967 this was hardly a news flash since ESI has been part of my 30 years of litigating disputes about failed computer system implementations, software copyright infringement, and software trade secret misappropriation. But most lawyers and judges are still trying to understand IT lingo let alone what IT does.

Buzz Words Abound

Notwithstanding that every vocation has its own buzz-words and lingo, IT and law unrelated, logically or any other way. There have been a number of court rulings that adversely impact parties who destroy ESI that should have been saved, so it has become incumbent for lawyers to learn more about IT. Ironically in order to be successful as a lawyer one must be a good communicator, whether in writing and/or speech, but few lawyers have figured about that they need to change their orientation and learn how IT operates, not just learn some buzz words. This is not about buzz words, rather lawyers need to learn about the tools that they are totally dependent upon. Although I have driven automobiles my entire life, I could not repair an engine to save my life, but I have learned enough to intelligently operated and deal with problems as they arise.

Judges Don’t Get IT Either

Not much of a shock, but since judges are lawyers, and lawyers do not have IT training it is should not be a shock that most judges do not understand IT. So in today’s hurly burly litigation it becomes the job of lawyers to educate judges regarding the ESI in their cases or risk being penalized. As I have pointed out in other blogs, papers, and speeches, one way to help bridge this gap is to use a Special Master. Having served as a Special Master in federal and state cases for +20 years it seems to me that once the parties and judges have a better understanding of IT, ESI issues in dispute have a way getting less complicated.

IT Gurus May Not Know the Law 

Once upon at time I read a 110 page opinion interpreting an aspect of how the Copyright Act affected a software dispute, and it seems to make little sense to me. However as one can image it is unlikely that an appellate court would challenge a trial judge’s 110 page opinion, so that 110 page opinion became the federal law relating to that aspect of software Copyrights. A few years later I took the deposition of the computer scientist who served as the Special Master for the judge who wrote the 110 page opinion in another software Copyright case. Although the computer scientist had a Ph.D. from a top university and was a well-respected professor, during his deposition he admitted that he had never ever read the Copyright Act, nor had he ever read any legal opinions in other cases, nor had he studied law. No wonder the 110 page opinion made no sense. So it seems that even judges need to understand the limits on Special Masters and learn about IT themselves.
 

VIDEO- E-Discovery Investigations: What IT Professionals Need to Know!

For many years I have made videos for IT and business management regarding legal issues,  and this video entitled E-Discovery Investigations: What IT Professionals Need to Know! was recorded in July, 2008. 

WatchIT has many other excellent educational materials, so please check them out.