Ride The Lightning

Is it Legal for Employers to Require Your Facebook Password?

I am fascinated by these muddy waters, because apparently no one has a good answer to this question. It's been all over the airwaves, including The Today Show on Tuesday morning. It appears to me that there is no clear law on this because federal lawmakers now want to enact a law.

Having said this, it is certain that employers can't ask certain questions of prospective employees or make hiring decisions based on sex, age, race, etc. But once they have access to Facebook or other social media sites, they may receive (and decide) based on things they weren't supposed to know about.

Once again, it appears the law has lagged beyond the electronic world and it is now scrambling to catch up.

Mind you, it violates Facebook's Terms of Service to turn over your credentials and Facebook (self-serving but at least it gets to look like a good guy on this issue) has said it may sue employers who require prospective employees to give up their passwords.

Two Senators have asked the Department of Justice and the Equal Opportunity Employment Commission to investigate whether this practice violates the law. It astonishes me that this question has attracted so little attention until now.

Bottom line: An employer who would require my social media credentials is an employer I don't want to work for.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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Ammo for the E-Discovery Companies Clubbed by the Patent Troll

I received an interesting note from our old friend and colleague Carl Roberts of Ballard Spahr LLP with reference to Monday's post about the patent troll which has filed suit against a number of e-discovery companies. Here's what Carl had to say:

From a preliminary read of the patent, it looks as though the inventors' "research" consisted of thumbing through Winning with Computers(Tredennick, ed., published by LPM in 1991). The chapters by Cwiklo and Horton are particularly close. If it weren't for the money being wasted in legal fees, it would be an interesting tangle.

I've not yet read these chapters, though Carl was kind enough to send them. But if what he has to say is accurate - and Carl is usually precise - this might be some very nice heavy artillery for the e-discovery firms under fire.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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Lose Your Phone? The Majority of Those Who Find It Will Snoop

Thanks to colleague Sean Harrington for passing the original study to me.

What study? The very depressing Symantec Smartphone Honey Stick Project study. You know, I've found several lost smartphones and the most I've ever done (if the phone has no PIN) is to see if there's an easy way to identify the owner so I could return it. I once found a SAIC phone in a Dulles Airport bathroom. But would I ever intrude on someone's private data? No.

Looks like I'm in the minority, according to the Symantec study.

Symantec "salted" 50 phones with phony data in major American and Canadian cities. The phones were fully charged and had no PINs or other security measures. The majority of finders accessed a file called "Saved Passwords" and another called "HR Salaries." 49% tried to use an app named "Remote Admin," 60% tried to log onto social media services under the owner's user name and 43% (groan) tried to log on to banking apps. When confronted with password prompts, they would try to guess the passwords.

The owner's contact information was made easily accessible, yet only half received offers to return the phone.

Am I surprised that we (and our Canadian neighbors) are Nosy Parkers? No, but I am distressed to see what appears to be a widespread embrace of trying to use someone else's phone to get unauthorized access to data and, potentially, even to get to their bank accounts.

The decline of the Roman Empire needs to be studied more. Especially the words of historian Edward Gibbon and what he calls "the loss of civic virtue." We seem to be more and more a nation of Gordon Gekkos who have somehow deluded ourselves that "Greed is good." Does anyone doubt that Wall St. believes that? So why should individuals who find lost phones conduct themselves any differently?

E-mail: snelson@senseient.com      Phone: 703-359-0700

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Patent Troll Clobbers E-Discovery Companies with Lawsuits

I suppose that it was only a matter of time before a patent troll set its sights on e-discovery companies. It appears that this has now happened.

The e-discovery world was rocked on its heels Friday when Law Technology News published an articleabout lawsuits brought by Lone Star Document Management (the purported patent troll) again Catalyst; CaseCentral; Digital Reef; Gallivan, Gallivan & O'Melia; Trial Solutions of Texas (operating as Cloud Nine); Breeze; Lexbe; Atalasoft and Business Intelligence Associates. It's an impressive list.

Lone Star is described as a "nonpracticing entity," known in common parlance as a shell company, formed to acquire and enforce patents. The suits were filed in the Eastern District of Texas and request jury trials.

The U.S. patent in question is 6,918,082, Electronic Document Proofing System, filed in 1998 and granted in 2005.

Our long time friend John Tredennick, CEO of Catalyst, has come out of the gate fighting, while recognizing that settling could be accomplished for less than $100,000, while litigation could cost millions.

Lone Star, be forewarned. Taking on John Tredennick has all the wisdom of kicking a sleeping rattlesnake.

According to John, some of the patent claims don't apply to e-discovery software. Of those that might, the primary claim involves the ability for users to add comments to documents, something that John says was standard a decade before the patent was filed. Describing the suits as "baloney," John said he would attempt to form a common defense fund with the other defendants to lower expenses - and then go after Lone Star for sanctions for filing a frivolous lawsuit.

One intellectual property attorney has suggested that the defendants' best bet is to force a re-examination of the patent. If the patent falls, and John seems to believe it is invalid, the lawsuits go away. And that process, including a detailed prior art search, is far less expensive than extended litigation.

The other defendants who have spoken on the record seem equally feisty. This particular patent troll may have clubbed an entire nest of sleeping rattlesnakes.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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The Court Filings in Da Silva Moore - in One Place!

I received a wonderful resource link yesterday from my friend and colleague Rob Robinson. He wrote:

It's interesting to see all the dialogue around Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y).   Should you ever need to see all the current "filings" around the "predictive coding" pieces of this matter in one place, I have put them together and am updating them as needed. You can view them online here. While 207 pages in total - it does allow readers to form their own opinion on the discussion.

This is a great resource - thanks Rob - and readers who want to sort through the fog of war that has surrounded this case will find this invaluable reading.

E-mail: snelson@senseient.com Phone: 703-359-0700

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3rd Circuit Slashes E-Discovery Costs That Can Be Recovered

Thanks to colleague and friend Jennifer Ellis for passing along a story (note that premium access is required) that made headlines yesterday.

Judge Thomas Vanaskie of the 3rd U.S. Circuit Court of Appeals said for a three-judge panel that organizing files cannot be considered part of the copying expense. He slashed 90% of the more than $360,000 that was to be recovered by the defendants. His March 16th opinion defines copies as scanning and file-format conversation. He reduced the award in Race Tires America Inc. v. Hoosier Racing Tire Corp. to just $30,000.

Clearly, this decision is at odds with other courts. Vanaskie talks in his opinion about the fact that America never intended to replicate the English practice of trying to provide a successful litigant with full reimbursement. Our country instead chose to provide easy access to the court system without the threat of enormous liability for litigation expenses which might deter someone from filing an action or asserting a meritorious defense.

Vanaskie takes the position that the work of discovery here was not "making copies," saying that "None of the steps that preceded the actual act of making copies in the pre-digital era would have been considered taxable . . . and that is because Congress did not authorize taxation of charges necessarily incurred to discharge discovery obligations. It allowed only for the taxation of making copies."

An interesting decision and probably faithful to tradition, though tradition hasn't gotten a lot of traction in the courts recently. There will no doubt be a lot of discussion about this opinion and whether it will slow the tide of courts which are allowing these expenses to be recovered.

E-mail: snelson@senseient.com        Phone: 703-359-0700

www.senseient.com

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FBI Can't Crack Android's Swipe Lock

Wired.com reported last week that the FBI can't crack the Android's pattern-screen locks. This interesting tidbit came via the revelation of a warrant which has now been approved by a federal judge commanding Google to provide a Google e-mail log-in and password to override the lock-out caused by entering too many incorrect patterns.

The FBI wants to unlock a suspected San Diego-area prostitution pimp's mobile phone. To read the very seamy story of the "gentleman" who has already served time for his role in "Pimpin' Hoes Daily," check out the Ars Technica story.

Hat tip to our friend and co-author Dave Ries for forwarding this story.

E-mail: snelson@senseient.com Phone: 703-359-0700

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How to Find a GPS Tracker in or on Your Car

Have the feeling you're being tracked? A lot of our clients do. Some are paranoid and some are absolutely right. The use of GPS trackers in family law cases has escalated dramatically in the last several years.

Lifehacker published a post recently telling you where to look for these GPS trackers. While useful, be advised that we're seeing a lot of these trackers behind the dashboard where they are not so easily discovered by the average person.

If you're worried that you are being tracked, you may want to have a savvy mechanic take a look. In many of our cases, mechanics have located the tracker.

E-mail: snelson@senseient.com Phone: 703-359-0700

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Corcordance Security Vulnerability May Invite Data Breach

Evan Koblentz, who penned a very interesting story for Law Technology News recently, was kind enough to write me with a link to the story. He was a little late, since his story was actually sitting beside my keyboard awaiting a few minutes to turn it into a blog post. Thanks for motivating me Evan.

The essence of the story is that Concordance software, used by many law firms, has a security weakness which might allow hackers to hijack database passwords, putting client data at risk of theft. Let me hasten to add that customers who follow Lexis' advice to lock their databases are safe. Unfortunately, many customers run Concordance in its default unlocked configuration.

They do this out of a mistaken belief that everything is secure or, perhaps, in the silly conviction that "it can't happen here." In point of fact, although Lexis acknowledges the vulnerability, no known breach has taken place. And with his customary good sense, our friend Craig Ball points out that many kinds of software used by attorneys probably have similar security weaknesses.

This, however, does not entirely explain why a legal software vendor would fail to tighten the security of its software once the vulnerability has been demonstrated. Another friend of ours is Matt Kesner, Fenwick & West's CIO. He was quoted as saying "I don't think that law firms and law-specific software vendors have felt they needed to be particularly concerned about security." Continuing, he said "I think that all law firm products are going to need to get better. I hope that Lexis makes Concordance better."

Matt's law firm is safe because it locks its Concordance databases. But what struck me most was Matt's revelation that "we use white-hat hackers to test our system every six months . . . we tell them, 'go do your worst.'" Very commendable, though I note that what is possible for a 300-lawyer firm is not possible for a small law firm. But this is certainly the trend among large law firms, to be highly proactive about security.

And I join Matt in hoping that Concordance shores up its security.

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

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Mobile Cloth: Getting Germs and Fingerprints Off Mobile Devices

Once in a while, you have to share something nifty you've run across. Last month, iPhone J.D. blogger Jeff Richardson published a post extolling the virtues of MOBiLE CLOTH, a high tech split micro material that deftly removes fingerprints and (when wet) up to 98% of germs without chemicals.

It was previously painful to look at my badly smudged iPad screen, especially for someone who is inherently tidy. Added to that, I suspect it was also operating as a Petri dish - I well remember the study that said there are more germs on our smartphones than on a public toilet. Ugh.

I have now salted my MOBiLE CLOTHs in my laptop bag, my desk at home and at work and even my purse. They work beautifully on laptops, smartphones, tablets, e-readers, camera lenses and even my glasses, which seem to be mysteriously smudged an hour after cleaning them.

I will return to the usual suspects of computer forensics, electronic evidence and information security next time - but this is a tip you may want to follow up on. And you can buy these miracle cloths with your law firm or company logo to use as promotional giveaways too. They are so useful that I can see these giveaways actually doing some real branding for you.

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq