Privacy

* Latter-day Dan Fielding seems to have used his office to meet the ladies: alleged to have had an affair with and then impregnate a woman he prosecuted. When she raised the issue with his wife, he filed a motion to revoke her probation. This is all terrible, but the weirdest part was having to have her defense counsel in the bedroom the whole time. [Lexington Herald-Leader]

* Woman shot a guy because he didn’t ejaculate enough. The most dreaded words in that neighborhood must be, “Omar’s not comin’ yo.” [Detroit Free Press]

* What caused the child immigration crisis at the border? Turns out it was Free Slurpee Day. Who knew? [CNBC]

* Overcommunication is a virtue. Did you hear that? Overcommunication is a good thing. It really is. You should overcommunicate. It’s good. [What About Clients?]

* Judge J. Harvie Wilkinson III thinks the criminal justice system is just super. As far as innocent people going to jail, them’s the breaks. [Wrongful Convictions Blog]

* A guy’s guide to lawyerly fashion. It misses my personal pet peeve: use collar stays! Seriously, how do people not know this? [Attorney at Work]

* There were a record number of data breaches in New York last year. The problem is the persistent use of 12345 as a password. [Information Law Group]

Casey Anthony

* Squire Patton Boggs has announced the new leadership structure of its lobbying and public policy practice. It’s really no surprise that the head honchos of the group hail from the Patton Boggs side of the recent merger. [Politico]

* “It’s funny how the Supreme Court reaches down and picks this case.” The most important digital privacy case of our time just happened to be filed by Stanford Law’s SCOTUS Litigation Clinic. Awesome. [San Jose Mercury News]

* If you’re caught on camera sleeping during a Yankees/Red Sox game, you can probably expect abuse from ESPN announcers. If you call someone an “unintelligent fatty” as an announcer, you can probably expect a $10M defamation suit. [New York Post]

* “I’m proud to do my job.” Madonna finally rescheduled her jury duty session in New York City, but she was dismissed early so as not to create a “further distraction for the courthouse.” [New York Daily News]

* It’s been three years since Casey Anthony was acquitted of her daughter’s murder. Let us remember this most amazing voicemail: “CASEY ANTHONY NEEDS TO ROT IN HELL! SHE NEEDS TO DIE!” [CNN]

It would be hard to overstate the importance of Riley v. California. Now data on cell phones (and, hopefully soon, other electronic media) requires a search warrant for law enforcement to get access to it during an arrest (generally — check your individual situation; exceptions may apply).

It’s so hard to overstate the importance of Riley that I don’t think a single media outlet has done it yet (which is really saying something in light of the current state of Supreme Court coverage).

As you may dimly remember from the criminal procedure class you took in law school, the “search incident to arrest” doctrine is a little screwy and subject to abuse. The general rule is that police can search things on your person or in the area of your arrest to make sure you don’t destroy evidence or hurt them, but nothing else. Later cases have held that the area you can reach while you’re being arrested (where you could destroy evidence or find something to hurt the police) includes the entire interior area of your car, regardless of how far you can reach or how wedged under the seat cushions that currency counterfeiting machine is.

This body of law is a lovely example of how pro-law enforcement results drive any reasonable understanding of how a test should be applied. Reading these cases in law school is a formatively disheartening experience (“really, that’s the kind of junk judges come up with? Why have laws at all?” etc.).

Riley, though, draws a line around your phone. Sure — the police can look into your pocket to see if that square box is a cell phone or a detonating device, and they can look in the back of your van to see if you could have reached a butterfly knife if you had a 20-foot arm span — but they can’t look inside the phone without first getting a warrant.

Of course, the Court could have decided this in a few ways. It could have written a very narrow doctrinal opinion. Or it could have issued a deeply divided set of opinions where there isn’t a clear statement about the development of the law as much as a resolution of one case. But, instead, the Court issued a 9-0 decision, authored by the Chief Justice, which was a celebration of the importance of electronic privacy and recognizes that we’re in a new world — and need new rules to handle it….

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Warrant or GTFO.

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

– Chief Justice John Roberts, writing for the Court in Riley v. California, holding that the police generally need warrants to search the cellphones of people they arrest.

(Additional highlights from Chief Justice Roberts’s opinion, after the jump.)

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Jesselyn Radack

I joke that I use drug dealer tactics. It’s a terrible way to work as an attorney, but you have to.

Jesselyn Radack, the national security and human rights director for the Government Accountability Project, commenting on the lengths to which she must go to protect her most famous client’s secrecy.

Radack represents Edward Snowden, and in her dealings with him she has abandoned WiFi — it’s too insecure — and used burner phones and two laptops (one of which is encrypted). She accepts only cash payments and will discuss his case only in person.

As Lincoln said, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

It’s a familiar enough idea. You see it in both Macbeth and the genesis story of just about every Marvel supervillan. It’s true, I think, not just of people but also of institutions. Like governments.

Just about every time I go to federal court for a sentencing hearing — where it seems the AUSA is fighting for each additional month in prison like it will take a point off his mortgage — I think about this quote from Nietzsche:

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I store my files on the cloud. Whenever you store your confidential stuff on someone else’s computers, you have to be wary of two things: security and privacy. A few weeks ago, I wrote this article about how to beef up your security, so today, I am going to talk about privacy.

The general consensus is that lawyers can use cloud computing. The ABA has put together this map that explains ethics opinions on the use of cloud computing by state. To sum it up, about 20 or so state bars have issued opinions that storing data in the cloud does not per se violate a lawyer’s duty of confidentiality, but you have to use reasonable care in storing your docs online.

There’s a movie on Netflix streaming right now called “Terms and Conditions May Apply.” It’s a scary documentary about how we agree to give away access to our data in the fine print of all of the internet services we use from email to social media. So, how does that relate to confidentiality of client files we store on the cloud?

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Over the course of the past few years, law school personnel have found it especially difficult to keep their students’ personal information private. In April 2012, someone at Baylor Law School sent out an email containing a trove of admissions data — from names, to grades, to LSAT scores — to every student admitted to the Class of 2015. In March 2014, Loyola Law School in Los Angeles sent out an email with a heap of financial information for the entire graduating class — up to and including Social Security numbers and loan amounts — to some members of the Class of 2014.

Today, we’ve got another email screw-up for you, and this is one of the juiciest and most prestigious accidental data dumps we’ve seen yet. Someone at a T14 law school “inadvertently” sent out every piece of vital information possible about its clerkship applicants — from GPA, to class rank, to work experience, to recommenders, right down to where their girlfriends live — to everyone on its clerkship listserv.

If you’d like to see how you stack up against elite law students, now you can. We’ve got all the data…

Please note the UPDATES at the end of this post.

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Edward Snowden returned to the news this week when NBC aired an hour-long interview with him, the first on American TV. Anchor Brian Williams met with Snowden in a Moscow hotel. The 30-year-old former computer systems administrator described his motives for releasing an unprecedented payload of classified information about NSA surveillance.

Snowden is vexing. As a person, he seems a mix of likeable and unlikeable traits. He appears earnest, convinced of the rectitude of his choices even if, as he told NBC, “Sometimes, to do the right thing you have to break the law.” Yet he bristles at Obama Administration characterizations of him as a low-level employee, a high-school dropout. (For example, the president told reporters last year, “No, I’m not going to be scrambling jets to get a 29-year-old hacker.”) Even if Snowden is right to resist the connotations of those labels, listening to him defend himself in the interview can be painful. He insists he was “trained as a spy” who lived under an assumed identity and was a powerful operator. He sounds like a young man with a bruised ego. The last thing one wants to have to worry about in a situation of this great national and international importance, though, is one young man’s ego.

Snowden’s case is more important and more vexing. NSA’s surveillance programs are deeply troubling….

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* Justice Kagan received a Supreme Court fact check when she confused the site of the nation’s oldest standing synagogue with the home of the nation’s first Jewish community. At least she didn’t make a mistake about the actual law that she actually wrote. [WSJ Law Blog]

* Justice Scalia may not understand how cell phones work, but even he gets net neutrality — because it’s a lot like pizza. [The Atlantic]

* Marc Randazza describes the need for a right to be forgotten online. Getting forgotten online? Hey, we found a new job for Jill Abramson. [CNN]

* A woman threatened to shoot up a South Carolina Burger King over a stale roll. Don’t tell her what “pink slime” is. [New York Daily News]

* Cops arrest upwards of 40 people while trying to catch a bank robber. When you read the whole history, it’s actually surprising they weren’t limiting their search to people in stripes carrying bags with dollar signs on them. [Slate]

* Corporate lawyer fits right into the rising phenomenon of “Bulls**t Jobs.” [Strike! Magazine]

* Earlier today we wrote about a possible crowdfunded lawsuit. Here’s a discussion of legal issues involved in crowdfunding generally. [IT-Lex]

* Sen. Rand Paul has a stupid idea, so he’ll probably convince a bunch of liberals to go along with it. And that would be bad news for Professor David Barron’s nomination to the First Circuit. [New Republic]

* Led Zeppelin is getting sued over allegedly stealing the opening riff from Stairway to Heaven. It turns out there’s some band out there who’s sure that all that glitters is gold and they want some of it. A clip of the alleged original below…. [The Guardian]

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