Last week, the tech world caught fire with the newest in an increasingly long list of electronic privacy scandals. Carrier IQ, a small Silicon Valley software company with its product installed on millions of cell phones, made headlines when a young programmer posted a video allegedly showing the software’s ability to log keystrokes and collect other, very personal information from phones.
By the end of last week, the controversy had already sparked an angry letter from democratic Senator Al Franken, two class-action lawsuits, and a flurry of denials and explanations from the software company as well as major mobile phone carriers. We briefly mentioned the story in Friday’s Non-Sequiturs, but it deserves a deeper look.
Is Carrier IQ as bad as it sounds? Good question….
As I waited for my plane to take off Sunday morning, coming back from Thanksgiving vacation, I was listening to music on my iPod. We had been waiting on the runway for 25 minutes and I was bored, tired, and roasting hot. I needed to distract myself. But then, before I knew it, it was apparently time to take off. Without warning, the stewardess came from the back of the plane, tapped me on the shoulder, and said, “SIR, you have to turn it off now. SIR. SIR.”
Like I do every time I fly, I took off my headphones until the flight attendant walked away. Then I put them back on. I also never turned off my cell phone or put it in airplane mode.
You probably know this is not allowed. Airplane passengers are supposed to turn off all electronic devices for takeoff and landing.
But WHY? Is aviation safety so delicate that a few Kindles or iPads endanger hundreds of lives? I don’t think so. A New York Times article from Monday takes a look at this mysterious, anachronistic facet of America’s law of the skies….
But when it comes to electronically tracking people, Jones is just the tip of the iceberg. Law enforcement also often follow American citizens through their cell phones. The practice has become so widespread that some magistrate judges are reconsidering their willingness to authorize it….
Long before I became a law blogger, I spent a good chunk of time working as a photojournalist. Periodically, I wound up photographing the police. Whether it was at an arrest at a football game, or an officer who suffered an unusual injury, officers rarely hassled me because I usually had a press pass and a big, professional-looking camera.
But anyone can film in public spaces. One of the most important — and overlooked — technological developments of the last five-odd years is the ease with which anyone can record police doing their jobs and throw the video on YouTube. The technology can be a great deterrent against police misconduct.
So it’s really, seriously disturbing when police try to intimidate witnesses into turning off their cellphone cameras. It’s even more nauseating when someone gets arrested for simply filming police activity. Luckily, a recent decision from First Circuit unambiguously told police to cut it out.
Keep reading for details about the man who was arrested for taping police in America’s oldest public park, as well as Judge Kermit Lipez’s benchslap of the officers who made the arrest….
* Should the police be able to use mobile-phone location data in order to locate a charged defendant? Kash reports on a recent decision. [Not-So Private Parts / Forbes]
* More importantly, should Bert and Ernie of Sesame Street get “gay married”? [Althouse]
* The ABA takes a lot of blame for the inadequacy of graduate employment reporting by law schools, but at least they’re taking “a step in the right direction,” according to Professor Gary Rosin. [The Faculty Lounge]
* Professor Ilya Somin: “The Decline of Men or Just the Rise of Women?” [Volokh Conspiracy]
* No need to email us that Kentucky judge’s (very funny) “tick on a fat dog,” “one legged cat in a sand box” order, regarding a case that settled, obviating the need for a trial — we covered it last month. Thanks. [Above the Law]
The satirical Onion News Network recently reported on new government funding for that “massive online surveillance program run by the CIA,” known as Facebook — dreamed up by “secret C.I.A. agent Mark Zuckerberg.” The report made light of how much information we’re willing to make available to a third party — information that we would never consider freely handing over to the feds. While funny, the report speaks to serious concerns about privacy. Civil liberties advocates like Christopher Soghoian and Nicholas Merrill worry about the ease with which the government can get access to the digital information we store with third-parties like Facebook, Yahoo!, and Google, as well as to the rich databases that our mobile phone providers have.
Should we call it the Tech.B.I. or the Dot.Com.I.A.?
* In the Barry Bonds trial, an expert on steroids described how the government injected a bunch of baboons with the drug Bonds is accused of using. I, for one, welcome our new baboon overlords. [ESPN]
* Some Amish in Kentucky are fighting a regulation that requires reflective safety triangles on their buggies. Say they’d rather get Munsoned out in the middle of nowhere than use those things. [Louisville Courier-Journal]
* A lawyer in Illinois faces possible jail time for letting her detained client use her cell phone. At least she’ll get bars now. HIYOOOO! [ABA Journal]
* The FBI has instructed agents to to hold off on Miranda warnings when interrogating “operational terrorists” about immediate threats. These threats include suitcase bombs, sex bombs, nude bombs, and La Bamba. The Los Lobos version. [New York Times]
* Law firms are whetting wetting their collective beak on drug deals. But drugs is a dirty business. It makes, it doesn’t make any difference to me what a man does for a living, understand. But your business is, uh, a little dangerous. [Am Law Daily]
Here at Above the Law, we’re trying to help you. We write about lawyers who do embarrassing things so that you can learn from their examples. Heck, you should get ethics CLE credit for reading this site.
One of our most widely-used lessons — now part of new employee training at a Wall Street firm, in fact — is the cautionary tale of Acela Bob. Pillsbury Winthrop partner Robert Robbins conducted what should have been a confidential conversation about impending layoffs at his firm — in a loud voice, using his cellphone bluetooth, on a crowded Acela train. An ATL reader heard the whole thing and tipped us off; we wrote it up. Shortly thereafter, Pillsbury — which had not yet admitted to any layoffs — confessed that cuts were coming (and “apologize[d] for the unfortunate manner in which our deliberations about reductions have become public”).
Here’s one lawyer who apparently never heard about Acela Bob, or perhaps forgot the story: James J. Kirk (no relation to Captain James T. Kirk).
As a place to live, California has a lot going for it: the Pacific Ocean, pleasant weather, celeb spottings. But if you’re concerned about the police perusing the contents of your smartphone without a warrant, you might prefer to spend your time further east, in the Buckeye State.
The Supreme Courts of California and Ohio have come down on opposite sides of the question of whether police need a warrant to search an arrested person’s cellphone. California may be perceived as the tech-savvy state, thanks to playing host to Silicon Valley, but when it comes to how the law applies to technology, its analysis is rather simplistic. In an opinion issued Monday, California’s court said “no warrant needed,” equating a cell phone with a pack of cigarettes. Hmmmm. Cell phones are addictive, I suppose…
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We currently have a number of active openings for associate roles at US and UK firms in HK / China, Singapore and two new in-house openings. As always, please feel free to reach out to us at firstname.lastname@example.org in order to get details of current openings in Asia, as well as to discuss the Asia markets in general and what we expect for openings later this year. Our Evan Jowers and Robert Kinney will be in Beijing the week of March 25 and Evan Jowers will be in Hong Kong the week of April 1, if you would like to meet them in person.
The US associate openings we have in law firms are in the usual areas of M&A, cap markets, FCPA / white collar litigation, finance, and project finance. The most urgent of our top tier (top 15 US or magic circle) law firm openings in Asia (among many other firm openings that we have in Asia) are as follows:
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The last time I flapped my wings your way, I tried to make at least enough noise about your mobile phone to make you more than a little bit uncomfortable. I hope I did. If enough of us become anxious enough about the known and unknown unknowns and knowns in our mobile phones, then we can start making wise decisions about how to manage that information and its resultant investigations.
Today, I’d like to put a finer point on the last installment’s topic by asking a question that seemed to catch most attendees off-guard at a conference panel that I moderated last week: is there discoverable personal information in a mobile app? Our panelists’ answer was a uniform “yes” with one stating that, if he had to choose only one type of data that he could discover from a mobile phone, he’d choose app data. Why? Because there’s simply so much of it and because almost all of it is objective – not just user-created like an email – but machine-tracked like GPS, usage duration, log in and log out times, browsed web addresses, browsed actual addresses. Also, most of us seem to have the idea that data doesn’t actually “stick” to our mobile devices the way it “sticks” to our hard drives. Maybe there’s a disconnect based on the fact that our phones are mobile so we assume the data is mobile to?
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