Technology in the Courts 2015 Update

Melissa Allen Permanent Law Clerk to Chief Judge Carl Stewart

U.S. Fifth Circuit Court of Appeals

Richard Ray

Kitchens Law Firm

North Louisiana Seminar LOUISIANA JUDICIAL COLLEGE

April 30, 2015 ∙ Petroleum Club ∙ Shreveport, Louisiana

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Technology in the Courts: 2015 Update

North LA Judicial College Seminar April 30, 2015 Presented by:

Melissa Allen, United States Fifth Circuit Court of Appeals --------------------------------------------------------------------------------------- I. Three lessons from 2014…1

A. FBI Alerts Judges and DAs that their Courthouse Calls &

Texts Were Monitored Judges, prosecutors, defense lawyers and others in Texas who conduct business at the Bexar County Courthouse got letters from the FBI recently telling them that their phone calls and text conversations had been monitored.

B. In Re Edward R. Reines (Federal Circuit 2014) After receiving a congratulatory email from the sitting chief judge of the U.S. Court of Appeals for the Federal Circuit, a patent lawyer forwarded the praise to others. The Federal Circuit has reprimanded the Weil Gotshal & Manges partner for doing so, calling his action “conduct unbecoming a member of the bar” that is prohibited by Rule 46 of the Federal Rules of Appellate Procedure. 1 See ABAjournal.com

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C. Federal Appeals Court Warns Electronic Filers The 11th U.S. Circuit Court of Appeals warned users of its electronic filing system about a pop-up “survey” that is actually a virus. According to the court, a lawyer reported that while he was logged into the electronic filing system, a popup message invited him to take a survey from the bankruptcy court. The lawyer clicked “OK” and his computer was infected with the virus. The 11th Circuit stated in an announcement: “Please know that we do NOT currently have a survey being sent through CM/ECF or any other source.” “If you receive an email or pop-up requesting your participation in a survey from our court, do not open it. Please delete it.” Charles Hall, a spokesperson for the Administrative Office of U.S. Courts, stated: “Attempts to hack computer systems are widespread across the Internet, and the judiciary devotes substantial resources to protecting the integrity of its IT systems.” “In this case, the virus scheme is not connected with the judiciary’s IT systems.”

II. Lawsuits that Changed the Internet2 1. Free Speech on the Internet - Reno v. ACLU. This was the first case to apply First Amendment free speech protections to the Internet. The Communications Decency Act had attempted to 2 See blogs.findlaw.com

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criminalize transmissions of obscene or indecent messages and other "excretory activities." The Supreme Court unanimously ruled that the regulations were an unconstitutional restriction of free speech. 2. ISPs not Responsible for Their Users - Zeran v. AOL. This case assigned the CDA the roll of protecting Internet intermediaries. Zeran had sued AOL for negligence following harassment organized through their service. The Fourth Circuit ruled that under the CDA, intermediaries such as ISPs, social media forums, web hosting companies and the like, cannot be held responsible for the tortious acts of their users. 3. You Agreed to Those Terms You Never Saw - ProCD v. Zeidenberg. The terms of service and licensing agreements that are rarely read by consumers are valid. This 1996 Seventh Circuit case established the validity of shrinkwrap and clickwrap licenses. 4. No Immunity for P2P Platforms: A&M Records v. Napster. In this 2001 case, the Ninth Circuit held that Napster, a peer-to-peer file sharing service, could be held liable for contributory and vicarious infringement of copyrights. The logic behind the Napster brought down a major piracy platform and has been used to shut down similar P2P programs, such as torrent sites, since. 5. Trying to Slay the Giant - Years of Microsoft Litigation. A series of enforcement actions stretching over decades, these cases showed that it might be difficult, but not impossible, to reign in monopolies which could otherwise stifle how and where we access the web.

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III. Rules for iPads, iPhones, Social Media in the Courtroom3

a. Fifth Circuit

POLICY ON ADMITTANCE OF ELECTRONIC DEVICES INTO THE JOHN MINOR WISDOM UNITED STATES COURT OF APPEALS BUILDING A. Cameras and recording devices are not permitted in the John Minor Wisdom United States Court of Appeals Building ("Building") without the court permission. Laptops, tablets, cell phones, and other similar devices that contain cameras or recording functions are exempt from this subsection but are still subject to (B)—(D). B. After visual inspection and x-ray by a Court Security Officer, electronic devices may be admitted into the Building. C. Unless prior court permission is obtained, all electronic devices must be turned off (not "vibrate-only" mode or airplane mode) when inside a courtroom where a Fifth Circuit argument is being held. However, an attorney presenting argument or assisting at counsel table may use a laptop, tablet, or similar device. If the laptop, tablet, or similar device has a camera or recording device, those functions may not be used inside the courtroom. At no time may anyone use social media inside a courtroom. D. Under no circumstances will disruptive behavior be tolerated in any courtroom where a Fifth Circuit argument is

3 See iphonejd.com

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being held. Violators will be promptly removed. (Approved January 20, 2015) b. The Eastern District of Louisiana now explicitly permits the

use of an iPhone or iPad by attorneys in court. Local Rule 83.3.8 includes this language:

Any member of the Bar of this court may, subject to security screening, bring personal digital assistants, cellular telephones or computers (“Authorized Electronic Devices”) into the courthouse for that attorneys’ own use and for presenting, managing, and accessing documents and files for the presentation of evidence during trials and proceedings. Any Authorized Electronic Devices with the capability to make or record images or sounds must be off whenever the device is in any courtroom or its environs, and the use of any such device to record, transmit or photograph court proceedings is prohibited. All sound emitting capabilities (including ringtone or vibration sound) of any Authorized Electronic Device must be off in any courtroom. c. In Louisiana state courts, the Uniform Rules for District

Courts provides in Rule 6.1(f): "A judge may prohibit the use of electronic devices, including cellular telephones and recording devices, in a courtroom."

IV. The Evolution of Technology in the Courtroom4

A. Court Reporters

4 See ABAjournal.com

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B. Recorded Depositions C. Video Depositions D. Deposition-Transcript Software E. Court TV F. Presentation Software G. Geolocation Technology H. Recorded Interrogations I. Smartphones Cameras J. Police Using Cameras K. Blood Typing L. Genetic Paternity Testing Accuracy M. Digital Forensic Investigations N. Fire & Explosion Analysis O. Firearm & Tool-mark Identification P. Gas Chromatography Q. Mass Spectrometry R. Accident Reconstruction S. Fingerprinting T. DNA Evidence U. Combined DNA Index System (CODIS) V. The Daubert Standard

V. Recent Developments in Technology

A. Data From Wearable Devices5

- In early 2013, the Pew Foundation’s “Tracking for Health” study found that 69 percent of Americans track some form of health-related information and 21 percent of them use some form of digital device to do so.

5 See Library.ahima.org & ABAjournal.com

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- Individuals are tracking a variety of health-related data via a

growing number of wearable devices and smartphone apps. More data relevant to health is also being captured passively as individuals communicate with one another through social networks while shopping, working, or any number of other activities that leave “digital footprints.”

1. Privacy & Data Ownership While many consumers were not concerned about the ownership of the data they generated, the vast preponderance of consumers insisted on sole ownership or at least shared ownership of the data with a mobile device company that collected it. Customer surveys revealed that among individuals that agreed to make their personal health data available for research, 57 percent would only do so on the condition that their privacy would be protected. Over 90 percent of respondents indicated the importance of anonymity of the data contributor.

2. Informed Consent Consider that most privacy policies are provided on the device vendor’s terms and conditions contract. The majority of consumers will click through product terms and conditions without reviewing them. Presently, consumer excitement over the potential of personal health data has blinded the public to potential privacy risks. Meanwhile, the industry assures us that a variety of new informed consent constructs are being evaluated to ensure favorable outcomes for all stakeholders.

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B. Shhhh! Your TV is Listening…6

1. Samsung's Smart TV privacy policy includes the following

warning:

"Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of Voice Recognition.”

2. Samsung’s policies indicate that those third parties perform

tasks like converting speech to text, while data collection helps the company improve its services.

3. Voice-recognition data collection can be turned off via the settings menu.

C. Facebook Allowing Users to Name Legacy Contact7

- For nearly a decade, Facebook has responded to notification

that an account holder is deceased by verifying the death and freezing the account so no changes could be made.

- However, in February FB said it will now allow account

holders to name a “legacy contact” who will be permitted to manage the FB page after the user’s demise. The FB executor will be permitted to make one final post and perform other functions such as updating the user’s profile, responding to

6 See ABAjournal.com 7 See ABAjournal.com

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new friend requests, and archiving photos and posts. However, private messages will not be accessible to the legacy contact.

- “We heard from family members who wanted to post funeral information or download and preserve photos,” said a Facebook product manager. “We realized there was more we could do.”

- If an account holder doesn’t name an executor, Facebook will

simply freeze the account just as it has been doing in the past.

VI. E-Discovery

A. ESI: Electronically Stored Information 1. This includes all types of information which can

be stored digitally, such as photographs, online postings, blogs, instant messages, emails and websites.

2. The term Adocument@ is being consistently replaced by Ainformation or material@ so that ESI will be included by default in the application of ethics rules.

3. E-discovery involves the collection, production & analysis of ESI.

B. Magistrate Judge Andrew Peck: Technology Pioneer8

1. Da Silva Moore v. Publicis Groupe & MSL Grp. (2012) – The first opinion where a court approved the use of “technology assisted review” or “TAR”

8 See catalystsecure.com

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2. Rio Tinto PLC v. Vale SA (2015) – Involves the court

approval of TAR protocol & addresses several other aspects of TAR – (worth a quick skim)

C. Authenticating ESI9

1. Verifying the sources of emails & text messages 2. Social media evidence capture 3. What’s new in software

a. PageFreezer b. WebPreserver

VII. Lawprose.org

1. Easy way to keep track of changes in writing rules & to maintain an up-to-date writing style.

2. Very useful for law clerks & brief writers.

VIII. Useful Legal Research Apps10

1. UCLA Law Library’s free Mobile Applications for Law

Students & Lawyers - an alphabetical by title annotated list of law apps.

2. Litigator - mobile access (search by keyword or rule number) to the Federal Rules of Appellate, Civil, and Criminal Procedure; the Federal Rules of Evidence; the Supreme Court Rules of Procedure; Title 18; Title 28; and Local Rules for federal courts.

9 See lawprofessors.tyepad.com & slaw.com 10 See lawtechnologytoday.org

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3. Rulebook - mobile access to federal and state court rules using

full-text searching. You can highlight text, add notes, copy, print, and/or bookmark text. The app and the Federal Rules of Evidence are free. There is a charge for other rules.

4. dLaw - free federal court rules that allow users to search, bookmark, copy, share, and annotate text.

5. LawStack - The free app includes the U.S. Constitution and various Federal Rules.

6. LexisNexis Courtlink - it can be used to set up alerts to follow specific cases or find recently filed cases in a specific practice area or involving certain parties.

7. Black’s Law Dictionary

8. Nolo’s Plain English Law Dictionary

9. PushLegal – search annotated case law, statutes, and court rules.

10. FastCase - The app allows you to search cases and statutes by keyword or citation and limit the search by jurisdiction and date.

11. Casemaker – Another app that allows you to search cases and statutes.

12. Congressional Record - The Library of Congress offers the CR for free from 1995–present. Using your iPad, iPhone, or

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iPod touch, you can keyword search the CR, copy text, save text as a PDF, and e-mail it.

13. Constitution of the United States - includes the text and audio versions of the Constitution for the iPhone, iPod Touch, and the iPad.

14. United States Code - a free iPad app to search the United States Code by keyword or citation. You can bookmark sections and even forward sections through email.

IX. Other Apps You Should Know About if you Work in the

Legal World11

1. Ask a lawyer - This app offers everyday people the ability to get preliminary legal advice from attorneys free of charge. Users can message attorneys via the application and also chat live. For attorneys, the app represents an opportunity to screen potential clients, and it could replace the free consultation many lawyers offer prospective clients.

2. BernieSez - Allows users to take a picture of a ticket or other

paperwork having to do with the charge filed, and upload it to the cloud, where lawyers look over the case and compete to represent the user. Attorneys communicate their fees up front. Users are able to vet lawyers by comparing pricing, client reviews and attorney bios. Clients only pay if they decide to do business with a specific lawyer. The system allows participating lawyers to search for specific types of cases and bid only on

11 See ABAjournal.com

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those that interest them. The app also allows clients and lawyers to communicate about the case, verify court dates and the like.

3. CitizenshipWorks - Walks eligible immigrants through the naturalization process. Using the app, they’re able to determine their eligibility to become a U.S. citizen, find out what documents they need to make it happen, and discover access to free and low-cost legal help for naturalization. They also can use the app to study for two key tests that are part of the naturalization process: English and civics.

4. Disastr - Offers access to disaster relief, breaking news and links to legal professionals who can help in the aftermath of a catastrophe. Included is advice on getting food stamps and health care, and navigating insurance after a natural disaster.

5. DOL – Timesheet - Hourly employees can use this app from the U.S. Department of Labor to double-check their paychecks after recording their own hours in English or Spanish. It is used to record the hours an employee works, and it automatically calculates overtime at time-and-a-half the regular rate of pay.

6. FBI Child ID - Parents in Puerto Rico who suffered that unthinkable act were able to rescue their missing 6-year-old boy last year with this app. FBI community outreach specialist used the app’s onboard Q&A script to quickly secure key info about the boy from the child’s parents. One of the app’s questions prompted the boy’s father to remember an unusual characteristic of his boy’s front teeth. The captured data, along with the child’s digital image, was sent to FBI offices in San Juan. Using the info, the FBI was able to issue an extremely

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detailed press release about the boy. Hours later, the child was abandoned by his captors, recognized in a busy office park by a bystander and reunited with his parents.

7. Fixed – (San Francisco only) - Snap an image of your ticket and enter the violation code. The app consults the Fixed database and comes back with the probability your ticket could be overturned, along with suggestions on how to fight an unfair ticket. (A no-parking sign might have been obscured by graffiti, for example.) Users who fight the ticket gather additional photo evidence if available, digitally sign the complaint and send it off to Fixed. The ticket busters look over your complaint and file the necessary paperwork with local authorities. If you win, Fixed charges you 25 percent of the fine you avoided paying.

8. Illinois Legal Aid App – (Illinois only) - The app features step-by-step guides for navigating the full spectrum of common legal challenges, including divorce, custody, small claims, eviction, foreclosure, guardianship and more. There are also referrals to helpful organizations in each legal category.

9. LawZam – An easy way for clients to find lawyers and lawyers to find clients. LawZam invites people with legal problems to visit its site and post legal questions that its lawyers answer with an initial free consultation. The app includes videoconferencing, so both parties can get a good look at one another before they agree to do business. LawZam is free for both lawyers and consumers because the app is designed to make money from advertising.

10. Legal Aid news - Users can employ the app to search for

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general legal aid news or new developments in legal aid on a state-by-state basis, as well as updated info on national legal centers for low-income people and news on the Legal Services Corp. Also available is the National Legal Aid Finder app, which provides contact information and website links for legal aid programs around the country.

11. My Attorney Apps - Clients can store background information, witness information and photographs associated with cases, in addition to dialing or texting their attorneys. And clients can look at a collection of verdicts and settlements their attorney has won when considering the same attorney for a new case. Other fields allow input for background info on the law firm and a link to the law firm’s website. Another feature is checklists for dealing with everyday encounters with police. The app creator can customize this program for any law firm, and it can be distributed free to all clients and potential clients.

12. My Health Care Wishes Pro - Allows users to store health care choices, instructions for end-of-life care and related info on a phone as a PDF, and it offers tips and links for planning health care wishes. It also allows storage for an unlimited number of people, living wills, health care powers of attorney, health care proxies, do-not-resuscitate orders and physician orders for life-sustaining treatment. Related info, such as details about personal health specialists, emergency contacts, insurance and any medical conditions can also be entered. All stored documents can be emailed to a health care provider. An ABA toolkit for use in most states is included. The app also syncs to Dropbox accounts.

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13. “Oh Crap” App – The app protects drivers from an overly aggressive driving-while-intoxicated stop. Punch a button on the app when you’ve been pulled over and it automatically spills advice, such as ‘The less you say the better’ and ‘Lawyer up.’ It also triggers an auto-audio-record feature and sends the file to a secure server in the cloud. There’s a ‘contact an attorney’ function that phones the nearest on-call attorney registered with the app. And in states where it’s legal, the app can also contact a local bail bondsman.

14. PaperHealth – (Massachusetts only) - Everyday people in Massachusetts who don’t have the money or inclination to shell out for the creation of a living will can use this app instead. Developed by William Palin, a Cambridge attorney, PaperHealth won top prize at the ABA’s Hackcess to Justice legal hackathon last summer. The app also doubles as a health proxy creator for medical pros, attorneys and nonattorneys looking to quickly designate such a proxy.

15. PhoneView - This is a viable solution for those involved in legal disputes who need printouts of texts buried in their iPhones. Essentially, PhoneView allows a user to view, save and print all iPhone, iPad and WhatsApp messages onto a Mac computer. Messages are exported as PDF files. Voicemail and video can also be exported.

16. Pocket DACA - This is a helpful self-screening tool for foreign children living in the U.S. without the proper immigration paperwork. Essentially, it allows these kids to determine whether they qualify for a renewable, two-year reprieve from deportation by the U.S. Department of Homeland

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Security, under the department’s Deferred Action for Childhood Arrivals process. Included is a searchable directory of immigration legal services providers in all 50 states. And there are links to breaking news on DACA.

17. Sex Offender Search - Offers up-to-date location and other information on individuals listed in the National Sex Offender Registry. Locations in a neighborhood are graphically illustrated. Users can pull up such info as address, date of birth and the charges filed against the offender. Similarly named apps with comparable features are also available on various platforms.

18. Shake - Shake offers a number of common business agreements in template form, including agreements for freelancers, buying and selling, loaning money and the like. Both parties sign the personalized agreements with their smartphones, and they’re done. The templates are created by licensed attorneys and are designed to capture important terms concisely and in plain English. Users can add their own wording or their own agreements. You can also use Shake to get the terms signed digitally.

19. Stellute Law App – (Virginia only) - designed for Virginia drivers who need guidance at an accident scene. It guides drivers through the process of gathering photo evidence and making audio recordings from accident witnesses. It also offers easy-to-follow directions about what to do legally after an accident. The app is a Swiss Army Knife for Virginia road warriors that includes video feeds from local traffic cams, weather alerts, GPS directions, info on the cheapest gas prices,

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and emergency numbers for medics, roadside assistance, taxi and towing.

20. Stop & Frisk Watch (NY only) - It allows a neighborhood bystander to record a questionable stop-and-frisk with just a flick of the finger. One quick shake of the phone, and the recording stops. A survey pops up after the recording is done, which can be used to text additional details about the stop. The entire report is designed to be easily forwarded to the New York Civil Liberties Union. Stop & Frisk Watch can also be used to auto-alert everyone in a community who is monitoring police stops. And there’s a “Know your rights” section for people unsure about what police can and cannot do during a stop-and-frisk.

X. Security Basics We All Need to Know12

- Although the following rules are generally offered to lawyers who practice, many of these rules can apply to those who work in the judiciary or for personal use.

1. Perform a security audit of all of you technology systems.

Include office computers and servers as well as mobile devices and any computers that provide access to office systems. In-house IT staff can do this if available, but an outside perspective is often helpful.

2. Remember that not all breaches are due to technology.

Break-ins and theft of computer systems can result in data loss. Focus on physical office security in addition to technology.

12 See www.wisbar.org

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Manage public access to offices.

3. Train staff on techniques used to gain access. A common technique is a phone caller who says there is a technology issue and requests email or other system logon information. They often warn of system failures if the information is not provided. Similar techniques are found in false emails that warn recipients of problems and provide a link to a website that requests logon information. These attempts are referred to as phishing. Teach staff to not open email attachments from senders they do not recognize.

4. Set up computer logons as “standard” users. Windows user

accounts default to having administrative rights to the computer. This allows any malicious software to be installed and have full access to a computer. Configuring logons as standard users will reduce the ability of malicious software to install. Software installation will require input of the administrator password.

5. Be suspicious of emails warning of problems that need to be

resolved by clicking a link and entering a username and password via some website. This is a common method of gathering logon information.

6. Use a password management program. Everyone knows passwords should be complex and different for all the various websites and systems we use. Two leading password managers are LastPass (lastpass.com) and Dashlane (dashlane.com). Both offer computer and mobile tools to manage passwords and have free and paid versions.

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7. Secure all mobile devices. Laptops, smartphones, and tablets are vulnerable to loss or theft. Encrypt laptop drives so data can’t be accessed by unauthorized individuals. Set all tablets and smartphones with access codes and configure them so the data can be remotely wiped. 8. Even small law offices should centrally manage email services. Avoid setting up staff email accounts on Gmail or other free services. Law offices need to centrally manage email accounts. This allows deactivation of accounts when employees leave. 9. Change passwords with staff turnover. When staff changes occur, it is a good practice to change passwords, especially for systems to which the staff had access. 10. Back up data to secure online services or rotate backups offsite. Data loss can cripple a law firm, whether due to system failure or malicious acts. Backing up office systems to a secure online service will provide ability to recover data including previous versions of data. Backups kept onsite are vulnerable to loss. Today’s cloud backup services are fast, secure, and reliable. Be sure to use a service that sends daily reports and assign staff to review and report any errors. 11. Use two-step authentication. This security feature requires entry of a one-use code when logging in to a web service, such as email. A code is sent by text message to a registered mobile phone. Entry of username, password, and the code is required for access. Two-step authentication helps prevent access by a hacker who has your password. The required code is sent to your phone, which the

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hacker does not possess. Two-step authentication is recommended for accounts accessed by smartphones and tablets. Frequently used computers, such as those at an office, can be registered so two-step authentication is not required. 12. Treat security as a priority. Take the time to review your computer systems and ask how they might be compromised. If you don’t feel qualified, find an expert who can help. It needn’t be complex or costly.