Posted On: April 29, 2010

Intro to Cloud Computing and Its Ethical Implications --Is There a Silver Lining - Part I of II

Much is being written about the application development and information security aspects of cloud computing but there has been comparatively little discussion about how cloud computing relates to ethical issues that may arise from a lawyer's use of this technology. In their two part article I n t r o to Cloud Computing and Its Ethical Implications — Is There a Silver Lining? (Part I of II) Jeremy Feinberg and Maura Grossman have contibuted significantly toward filling that gap in the literature. Part I has already been published in the May 2010 issue of the New York Professional Responsibility Report (NYPRR) and is being reprinted below with permission of the publisher in response to those of you who through your comments have expressed an interest in these issues. We also plan to post Part II here after it first appears in NYPRR.
David Badertscher

Intro to Cloud Computing and Its Ethical Implications --- Is There a Silver Lining? (Part I of II)

By Jeremy R. Feinberg and Maura R. Grossman
______________________________________________________________________

Understanding the legal and ethical implications of rapidly emerging technologies can be a bit like shooting at a moving target. It was barely 18 or 24 months ago that you could ask a lawyer whether he or she had a Facebook account, or “tweeted,” and you were likely to be met with a blank stare. In this short span of time, social networking sites have gone from fringe activities to mainstream tools in many lawyers’ marketing and communications arsenals Now that Web 2.0 has become fairly common, the latest trend that some lawyers and law firms – and many of their clients – have begun to embrace, is cloud computing. In the first of this two-part series, we will provide a brief, non-technical introduction to what “cloud computing” is, explain why it is catching on, and at least identify some of the ethical issues that may arise from a lawyer’s use of this technology In the second part of this series, we will consider a set of legal and ethical issues implicated by cloud computing, primarily when it is the lawyer’s client that makes use of this technology.

What Is Cloud Computing? Why Is It Becoming So
Popular?

Setting aside associate and support staff compensation for the moment, real estate and information technology (“IT”) costs are probably two of the most significant overhead
expenditures for many law firms. Imagine, however, a law practice that did not house its own computer servers and other hardware, indeed, did not even have its own IT Department. Could such a law firm function in this day and age of ubiquitous electronic records? Sure, if it has embarked on cloud computing, a trend which essentially entails “outsourcing” some or all of the firm’s technology infrastructure, software applications, and storage needs to a third-party provider from whom the firm “leases” them, over the Internet, for a monthly fee. Cloud computing takes advantage of the convenience, scalability, and cost savings that can be achieved by sharing hardware, software, and data storage. It allows users at multiple, disparate locations to make use of a joint pool of technology resources that each alone might not be able to afford, without having to physically house or personally manage them

Cloud computing first became possible because certain companies worldwide – among them Google and Amazon – amassed vast amounts of computer hardware and software so that they could handle the staggering consumer demands during the peak ordering season (i.e., the holidays). In seeking uses for this IT infrastructure during the remainder of the year, when there was less call for the applications and servers, it occurred to these companies (and others) that they could make the excess resources available for “rent” to the public, through the Internet. (The “cloud” is the symbol used to depict the Internet in technical drawings). Law offices seeking to take advantage of the cloud could thereby secure remote access to virtually unlimited computing resources, 24 hours a day, seven days a week, on an as-needed basis, through a contract with a third-party service provider that linked them with the type(s) and amount(s) of IT resources they needed, ranging from proprietary software applications to document management systems and back-up storage.

The potential benefits for cloud users are obvious. Because of the savings in real estate costs and computer equipment, as well as on the personnel needed to manage on-site IT
systems, cloud users can access the particular computing resources they need, at a particular point in time, for a fraction of the cost of owning and maintaining them. As their needs expand and contract, they can simply scale up or scale back without having to worry about details like electricity costs for operating and cooling equipment, or licensing fees and upgrades for software applications. The computing resources are conveniently available at any time, and from any place, as long as there is a working Internet connection. As a practical matter, however, use of the cloud means that a lawyer’s (or law firm’s) email, word processing, and document management systems – and all of the confidential client information contained on them – are no longer housed within the four walls of the lawyer’s office, but rather, somewhere in cyberspace that the lawyer may not be able to readily identify at any given point in time. It is in these details that the devil may reside.

In an economy where the bottom line and around-the-clock accessibility have become increasingly important, to many organizations, cloud computing may seem like a no brainer. But before making the leap to the cloud, there are certain ethical issues that should be considered. Although a comprehensive discussion of the myriad legal issues implicated by cloud computing are beyond the scope of this article, the interested reader may wish to refer to the following series of blog entries, which provide an excellent overview of some of these issues:

http://www.infolawgroup.com/2009/08/articles/cloud-computing-1/legal-implications-of-cloud-computing-part-one-the-basics-and-framing-the-issues/ (discussing the
basics of cloud computing);

http://www.infolawgroup.com/2009/09/articles/breach-notice/legal-implications-of-cloud-computing-part-two-privacy-and-the-cloud/ (discussing privacy considerations in cloud computing); and

http://www.infolawgroup.com/2009/10/articles/cloud-computing-1/legal-implications-of-cloud-computing-part-three-relationships-in-the-cloud/ (discussing relationships in
the cloud).

As for the pertinent ethical issues, we address below some of those that uniquely apply when it is the law firm that moves to the cloud. There are other issues that are implicated primarily when it is the client that chooses to do so. Those we will address in the second article in this series.

Continue reading " Intro to Cloud Computing and Its Ethical Implications --Is There a Silver Lining - Part I of II " »

Posted On: April 28, 2010

New York State Commission on Judicial Conduct Releases 2010 Annual Report

The New York State Commission on Judicial Conduct has released its 2010 Annual Report which " recommends [a] greater role for state high court, and public disciplinary proceedings, in conduct cases" The 2010 Report documents the Commission’s work in 2009.

The Commission is the state agency responsible for investigating complaints of misconduct against judges of the state unified court system and, where appropriate, disciplining such judges for violations of the Rules Governing Judicial Conduct.

The News Release announcing the release of the 2010 Annual Report is available here.

Posted On: April 27, 2010

New York: State of the Judiciary 2010

Jonathan Lippman, Chief Judge of the State of New York

INTRODUCTION

This is my first State of the Judiciary message as the Chief Judge of the State of
New York
. Months ago, I was expecting to give a live address at Court of Appeals
Hall in Albany, similar to those given by some of my predecessor Chief Judges—and
next year, maybe I will. But 2010 is very different from earlier years, and this will not
be a typical State of the Judiciary message.

In our country and in our State, we have entered a particularly difficult financial
period. The sad truth is that the same economic forces that are placing fiscal constraints
upon government are also spurring tremendous growth in our already monumental
caseloads. As the economy has soured, families are unable to pay their mortgages, consumers
default on credit card debt, business deals go bad, and incidents of violence
occur in families torn apart by lost jobs and homes in jeopardy. Inevitably, the courts
are called upon to sort things out.

Given these hard realities, this State of the Judiciary report will not address broad
reform programs and strategic planning efforts that have characterized previous reports
(although certainly we are actively pursuing important systemic reforms on our own
and in concert with the Legislative and Executive Branches). Nor does it attempt to
offer a comprehensive description of everything we are doing in the Judicial Branch.
Instead, the 2010 State of the Judiciary report will focus on how current caseload pressures
are increasing the burdens and challenges our judges face on a daily basis; the steps
we are taking to continue to meet our constitutional responsibility to deliver justice in
each and every case; the efforts we are making to respond to the State’s financial crisis;
and the critical need for a judicial pay adjustment if the Judiciary is to remain a strong
and vibrant co-equal and independent branch of government.

Finally, this is not a typical State of the Judiciary report in its timing. The Chief
Judge ordinarily reports on the State of the Judiciary by early February, but I decided
to delay it this year because of the ongoing judicial salary crisis and resulting litigation.
The last time New York State judges were granted any kind of salary increase was in
1998, effective January 1, 1999. This decade-long pay freeze led to the filing of three
lawsuits, and on taking office as Chief Judge, I became the plaintiff in one of the cases,
The Chief Judge of the State of New York vs. The Governor of the State of New York. As
a litigant, of course, I took no part in hearing or deciding these cases. The Court of
Appeals heard oral argument in January 2010, and I, along with the entire Judiciary,
awaited the Court’s decision, which was rendered on February 23, after which I decided
to issue this report. In deference to my Court of Appeals colleagues, I will not address
the legal issues in the case, although I very much feel it appropriate and necessary to
include commentary on judicial compensation.


Posted On: April 23, 2010

FBI Finding Criminal Data on Cell Phones and Game Consoles is Tough

Non-traditional communications devices such as smartphones and game consoles pose a particular problem to law enforcement agencies trying to milk them for forensic data that reveals criminal activity, attendees were told at the 2010 Computer Forensics Show in New York City.

From: Greene, Tim. FBI: Finding Criminal Data on Cell Phones and Game Consoles:is Tough,. in Network World, April 23, 2010.

Posted On: April 23, 2010

Brennan Center E-Courts Alert April 23, 2010

Published by: Brennan Center for Justice at the New York University School of Law.

The Brennan Center Fair Courts E-lert summarizes news stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.

-------------------------------------------------------------------------------------------------

Fair Courts E-lert, April 23, 2010

State Judicial Elections

1. "The recent charges against state Senator Jane Orie stemming from the 2009 Supreme Court race, combined with the 'explosive' growth in funds spent to elect appellate judges, are strong reasons why Pennsylvania should move to a merit selection system for judges, Governor Ed Rendell said [Wednesday]," according to a report by the Pittsburgh Post-Gazette. While the governor was careful not to insinuate any wrongdoing on the part of Justice Joan Orie Melvin, he maintained that the controversy involving Orie Melvin's sisters, who were charged with "using the senator's political staff last year to help elect another sister . . . to the Supreme Court," would not have arisen if Pennsylvania did not elect its high court justices. The election in which Orie Melvin defeated her Democratic opponent was also among the most costly in the country, with spending totals eclipsing past totals in the state. "A total of $4.7 million was spent last year in the hard-fought . . . race . . . twice as much [as that] spent on Supreme Court races just 10 years ago." Rendell advised the House and Senate to "quickly vote on one of two bills . . . [that] would create a 14-member panel, [comprising] some members chosen by the governor and legislators and some citizens picked by lottery." The panel would recommend qualified nominees to the governor, who, in turn, would choose one candidate subject to Senate confirmation."

Tom Barnes, Rendell Pushes for Merit Selection of Judges, Pittsburgh Post-Gazette, April 21, 2010.

2. At Think Progress, Matthew Yglesias flags a CalTech study finding that "justices that are shielded from voters' influence on average (i) have better information, (ii) are more likely to change their preconceived opinions about a case, and (iii) are more effective (make less mistakes) than their elected counterparts."

Matthew Yglesias, Politically Insulated Judges are Better Judges, Think Progress, April 19, 2010.

3. The Wisconsin Supreme Court heard arguments last week in an ethics case involving Justice Michael Gableman, who the state Judicial Commission alleged violated the judicial ethics code by lying in a 2008 campaign ad about his opponent, Louis Butler. In November 2009, a "three judge panel recommended dismissing the case," Patrick Marley recounts at the Milwaukee Journal Sentinel, after it "agreed with Gableman that the ad did not contain an objectively false statement." If the state Supreme Court finds that Gableman lied, possible punishments include reprimand, censure, suspension without pay, or outright removal from the bench. According to Chief Justice Shirley Abrahamson, however, drastic action is unlikely. Nonetheless, the court is currently split on whether or not it should even be hearing the case against Gableman. Justices David Prosser, Annette Ziegler, and Patience Roggensack believe the court should not rule on one of its own; their colleagues - Abrahamson and Justices N. Patrick Crooks and Ann Walsh Bradley - want the issue fully briefed. Last month, Gableman, who has recused himself from the case, claimed that comments made by Justice Crooks "showed he was biased and asked him to step aside in [the] ethics case." (Justice Crooks disagreed, and refused.) Crook's comments followed a remark made by Gableman's attorney, James Bopp Jr., who said - in response to several petitions by defense attorneys to have Gableman taken off criminal cases due his alleged bias - that defense attorneys show "a willingness to subvert our system of . . . bringing criminals into account." Those remarks sparked instant controversy.

Patrick Marley, Supreme Court Justices Hear Arguments in a Case Against One of their Own, Milwaukee Journal Sentinel, April 16, 2010.

U.S. Supreme Court

4. In his Supreme Court memo at The New York Times, Adam Liptak discusses the phenomenon of justices who, once on the bench, drift away from the ideological profile assumed by the presidents who nominate them. "These sorts of surprises," though, "are much less likely these days" in large part, Liptak argues, because the "contemporary nominee's resume yields so much valuable information" that a judge's proclivities can be more carefully tracked and anticipated. What's more, "[n]ominees' backgrounds these days often include work for the executive branch in Washington and substantial service on a federal appeals court."

Adam Liptak, Why Newer Appointees Offer Fewer Surprises, The New York Times, April 18, 2010.

5. At The New Republic, Barry Friedman and Jeffrey Rosen reinforce their recent claims about the relationship between the Supreme Court and public opinion, which, they argue in the piece, have come under dubious attack from the left and right.

Barry Friedman and Jeffrey Rosen, The Battle Over the Court, The New Republic, April 14, 2010.

Special Mention

6. To fill the seat of Chief Justice Thomas Moyer, who passed away unexpectedly earlier this month, Ohio Governor Ted Strickland named Franklin County probate judge Eric Brown, who will "serve the remainder of the term of Chief Justice [Moyer]" before he competes in November's election against current state Supreme Court justice Maureen O'Connor. Poised to be the only Democrat on the all Republican court, Brown will be the first Democrat to serve as chief justice since 1986. Of the appointment, Governor Strickland remarked that "I think it was logical and reasonable and, quite frankly, what should have been expected of me, having already indicated that I thought he was the best person to lead that court." The governor was referring to his past endorsement of Brown's candidacy in the November contest against O'Connor.

James Nash, New Chief Justice Will Stick Out on Court, Columbus Dispatch, April 15, 2010.

Posted On: April 23, 2010

LAW.COM Newswire Highlights April 23, 2010

If you are already an online subscriber to the LAW.COM service you should be able to click on any of the links below, sign in, and access the full text of all articles listed. A subscription to LAW.COM is needed for online access to this service.

Pope, Vatican Officials Targeted in New Suit by U.S. Sex Abuse Victims
The National Law Journal

A federal suit filed on Thursday in Milwaukee alleges that Pope Benedict XVI and senior Vatican officials covered up allegations that a Wisconsin priest molested at least 200 children at a suburban Milwaukee school for the deaf. The lead plaintiff's lawyer is seeking injunctive relief, hoping to force the Vatican to open what he claims are confidential files that contain details of priest abuse allegations and monetary settlements. He also seeks unspecified monetary damages and a jury trial.

Countrywide Home Loans in $150 Million Fight With Mortgage Insurer
The Recorder

In a case born out of the mortgage crisis, one of the United States' largest home lenders is trying to force its mortgage insurer to pay up on claims in at least 1,400 loans. Lawyers for Countrywide Home Loans want the suit in San Francisco Superior Court, but Mortgage Guaranty Insurance Corp., which wants to go to arbitration, is battling to keep the case in federal court. The stakes are sizable: Countrywide has said, in the course of opposing arbitration, that it is seeking damages of at least $150 million.

Merrill Lynch Suit May Resemble Goldman Sachs Fraud Case
The American Lawyer

The SEC's suit against Goldman Sachs has people wondering whether other banks committed the same conduct with which Goldman is charged: structuring debt it secretly knew would fail and then pitching that debt to investors. It turns out Quinn Emanuel, representing a Dutch bank, alleged almost a year ago that Merrill Lynch did something similar in creating an investment fund nicknamed Norma. Quinn filed papers last week in which the law firm claimed that the SEC's charges against Goldman "bear directly" on Merrill's conduct.

RICO Charges Purged From Indictment of Former Prosecutor
New Jersey Law Journal

A federal judge on Wednesday dismissed racketeering charges against Paul Bergrin, a New Jersey criminal defense lawyer and former federal prosecutor accused of being at the heart of a criminal enterprise that involved murder, bribery and prostitution. The judge said federal prosecutors had failed to show that Bergrin and his purported associates had engaged in an ongoing criminal enterprise or had, as a group, participated in a pattern of racketeering activity.

Firm Partner Embroiled in Termination Dispute Involving Claims of Affair, Retaliation and Racial Bias
The Legal Intelligencer

An ugly dispute between two female lawyers in the Philadelphia city solicitor's office has turned into a federal suit in which the plaintiff claims that her husband, a Pepper Hamilton partner, was having an affair with the other woman, her supervisor, and that the conflict resulted in the plaintiff's firing. A federal judge tossed some of the plaintiff's claims, but ruled she may proceed on others, including that her firing was retaliation for suing the other woman for defamation, and that the firing was racially motivated.

Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape
New Jersey Law Journal

Five years after the Supreme Court held that the federal sentencing guidelines are merely advisory, judges still follow them for the most part, though there is an ever-growing divergence, according to the most recent federal statistics. Although nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit.

Former Epstein Becker Shareholder Claims Firm Kept His Money
The National Law Journal

A former shareholder at Epstein Becker & Green claims that the firm committed fraud and balked on an agreement to return his capital contribution when he left in 2006. Thomas Brown alleges that, despite assurances from the firm that its policy was to repay capital contributions, it had no intention of doing so and unjustly kept his money for lost billables that it suffered. He seeks punitive damages plus $150,000 in unpaid capital reimbursements, interest on that amount and damages for infliction of emotional distress.

Lehman Brothers Bankruptcy Bill Approaches $750 Million -- and Counting
The American Lawyer

The latest Lehman Brothers bill is in, and the total dollar amount the bankrupt estate has paid out to financial advisers and law firms is approaching $750 million and might possibly be on its way to $1 billion, according to Bloomberg and documents Lehman filed Thursday with the SEC. The biggest biller, to no one's surprise, continues to be Lehman's lead debtor counsel at Weil, Gotshal & Manges, which has billed the estate just short of $165 million since the bankruptcy filing.

6th Circuit Says No to Sanctioning Law Firms Over Meritless Suit
The National Law Journal

A San Diego law firm has been spared $1 million in sanctions by the 6th U.S. Circuit Court of Appeals in a trade secret case. The court ruled on Wednesday that, under federal law, courts may not impose sanctions on law firms -- as opposed to individual lawyers -- for knowingly pursuing meritless lawsuits. The decision reversed a lower court ruling that had imposed $1 million in sanctions on Meisenheimer Herron & Steele for bringing an allegedly meritless trade secret case against Lexmark.

Judge Who Sentenced Madoff Confirmed to 2nd Circuit
The National Law Journal

The U.S. Senate on Thursday unanimously confirmed Judge Denny Chin to the 2nd U.S. Circuit Court of Appeals, as Democrats continued to inch through a backlog of lower-court judicial nominees. Chin will be elevated from the U.S. District Court for the Southern District of New York, where he drew national attention for sentencing financier Bernard Madoff to 150 years in prison for orchestrating a massive Ponzi scheme. Born in Hong Kong, Chin will be the only active Asian-American judge on a federal appellate court.

Did Ruden McClosky Take $1.1 Million From an Alzheimer's Organization?
The American Lawyer

Florida law firm Ruden McClosky has been plagued by partners leaving, a Ruden lawyer describing firm management as "morons," a decrease in head count from 175 to about 100, and rumors that the firm will dissolve. Now, an association devoted to the study and treatment of Alzheimer's disease has filed a lawsuit accusing Ruden and two former firm principals of misappropriating $1.1 million from the organization and using the money, in part, to fund a startup run by the daughter of a former Ruden lawyer.

Troutman Elects New Managing Partner, Delegates Some Roles Held by Chairman
Fulton County Daily Report

As part of its succession planning, Troutman Sanders has announced leadership changes that include electing a new firmwide managing partner, Stephen E. Lewis, effective Jan 1. The firm's chairman and managing partner, Robert W. Webb Jr., who also chairs the partner compensation committee, is delegating some of his roles to other lawyers at the firm, but will remain Troutman's chairman. Andrea M. Farley, the first female section leader at the firm, will succeed Lewis as the corporate section leader.

Texas Court Hears State's Appeal in Gay Divorce Case
The Associated Press

A lawyer for a Dallas man trying to divorce the man he married in Massachusetts told a Texas appeals court his client is entitled to a divorce because he had a valid marriage. But the Texas attorney general's office argued before the panel that the marriage isn't recognized by Texas, so they cannot get a divorce. An assistant Texas solicitor general said the union can only be voided. The men wed in 2006 in Massachusetts, where gay marriage is legal, separating two years later.

Risk Assumption Ruled Incomplete Defense in Cheerleading Mishap
New York Law Journal

Though a cheerleader assumed some risk when practicing stunts with her squad, her participation in the potentially dangerous activity is not a complete defense by her school district for liability for the serious injuries she suffered, a New York appeals court has ruled. The court said a triable issue of fact had been raised through the testimony of an expert, who contended that too many cheerleaders were practicing too closely together for safety purposes.

On-Premise EDD Appliance Saves Firm Time and Money
Special to Law.com

Dallas-based Haynes and Boone had been using Stratify's hosted service to process ESI. But the firm found that an on-premise appliance saved lawyers' time and clients' money, reducing e-discovery costs up to 75 percent in some cases, says Thom Wisinski, the firm's chief knowledge officer.
Visit Legal Technology

New Report Finds Increase in Women Making Partner
New York Law Journal

Women made up 34 percent of their 2010 new partner classes, compared to 28 percent the year before, according to a recent report by the Project for Attorney Retention. At nearly 20 percent of the firms tracked, women comprised half or more of the new partner classes.
Visit the Career Center

Top 8 Reasons to Take Pro Bono Cases
Fulton County Daily Report

Attorney Dawn Levine acknowledges that she likes to make money as much as the next person. But while "thanks" with a paycheck feels good, Levine notes that the thanks you get from your client when you took their case for nothing feels good on a completely different, but very real level. Levine counts off her eight top reasons to do pro bono work, including that it makes her a better attorney. Her No. 1 reason? For every pro bono case you take, that is one attorney joke that is undermined.
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Posted On: April 23, 2010

ABA Journal Weekly Newsletter

Top Ten Stories for Week Ending April 23, 2010:

Law Schools
Law Students Push for Transparency, More Info Re: Law School Employment Stats
Apr 21, 2010 8:55 am CDT

Plus:
Researcher Says Law Students Need to Learn to Read Like Lawyers
Survey: Most Pre-Law Students Confident re Own Prospects, But Dubious About Others
Tax Law
Lawyers in 'Lower Upper Class' Begin Revolt with Goldman Case, Columnist Says
Apr 22, 2010 7:00 am CDT

U.S. Supreme Court
Supreme Court Tells Debt-Collection Law Firm that Ignorance of Law Is No Excuse
Apr 21, 2010 11:52 am CDT

Plus:
Supreme Court Strikes Down Law Banning Animal Crush Videos, Cites First Amendment
First One @ One First: Fortune from Miscalculation
Supreme Court Overturns 'Essentially Arbitrary' Attorney-Fee Boost of $4.5M
ABA
Meet the ABA's New Executive Director, Jack L. Rives
Apr 22, 2010 3:31 pm CDT

Criminal Justice
Lawyer Accused of Beating Client with a Baseball Bat Accepts Plea Deal
Apr 20, 2010 8:18 am CDT

In-House Counsel
Former Gucci GC Questions the Fuss over His Inactive Status
Apr 20, 2010 11:44 am CDT

Legal Ethics
Lawyer in Hot Water for Helping Newspaper Reporter Write About Prison Sex
Apr 19, 2010 4:11 pm CDT

Diversity
Multiple Women Make Partner at Some Firms, While Others Promote All-Male Classes
Apr 20, 2010 3:46 pm CDT

Careers
Lawyer Makes an Appearance Before Chief Justice--In Singing Mode
Apr 20, 2010 5:30 am CDT

Legal History
Transcript of OK Corral Gunfight Inquest Is Found in Ariz. Jail
Apr 21, 2010 7:45 pm CDT

Posted On: April 22, 2010

CLLB Information Security Newsletter

Volume 3 Number 4 April 2010.

Cloud Computing

From the Desk of David Badertscher

What is Cloud Computing?

Cloud computing is a growing trend in information technology as organizations look for ways to save money and add flexibility to their operations. Cloud computing, while still an evolving service, provides on-demand network access to a shared pool of computing resources such as networks, servers, storage and applications. The pooling of resources allows the provider to rapidly scale to meet changing customer demands. The service is typically provided through a large data center. Cloud computing can be divided into three types: Software as Service, Platform as Service, and Infrastructure as Service.

Software as a Service (SaaS): Provides ready for use web-based applications such as email that are maintained centrally by a provider (e.g., Gmail, Salesforce.com).
Platform as a Service (PaaS): Provides programming languages and tools that can be used by application developers to create and deploy applications on the web.
Infrastructure as a Service (IaaS): Provides computing resources, such as virtualized servers and storage, whose usage is rented from a provider (e.g., Amazon EC2, Windows Azure).

In addition, cloud computing can be private, available for a single organization/group of users, open to the public, or some combination of these models.1

The growth in cloud computing is fueled by economies of scale. Cloud computing allows users to pay for what they need, when they need it.

What are the Security Concerns with Cloud Computing?

There are security and privacy concerns that must be considered before moving to cloud computing, including the following:

Vendor Security: Cloud computing customers rely on providers to implement appropriate security measures to protect the confidentiality, integrity, and availability of data. Be wary of providers who are reluctant to share details of their security architecture/practices with customers.

Isolation/Segregation: Users access cloud computing resources via a virtual machine hosted on an unknown physical machine2. The physical machine may be shared with other users. Providers must ensure that multiple customers do not interfere with each other, maliciously or unintentionally.

Data Location: Providers may have data centers located in other countries. Be sure your vendor contract stipulates any restrictions you may have on the physical location of where your data is stored.

Management Interface: Customers access the cloud management interface via the Internet, thus increasing exposure to potential attack.

Reputation Sharing: Bad behavior by one cloud customer may impact others using the cloud. For example a customer engaging in spamming may cause a common cloud IP address to be blacklisted.

Provider Viability: What happens to your organization’s applications and data in the event that the provider goes out of business?

Compliance: Placement of data in the cloud does not eliminate an organization’s need to meet legal and regulatory requirements such as PCI or HIPAA. Organizations will need timely assistance from cloud computing providers to fulfill investigation/audit requirements.

What Should Organizations Do?

Organizations should fully research the risks and benefits of cloud computing before moving to that environment. It is critical that security requirements are addressed in contractual agreements in advance. In addition, there are steps organizations should take when using cloud computing:

· Data Classification: Consider the sensitivity of your data before making a decision of whether or not to put it in the cloud.

· Encryption: Encrypt sensitive data before placing it in the cloud.

· Authentication: Consider requiring multifactor authentication for access to cloud computing resources.

· Vulnerability Assessment: Include a requirement for a security review or vulnerability assessment as part of the service level agreement with the provider.

· Monitor: Require close monitoring of cloud computing resources by providers for unauthorized activity.

· Backup: Ensure that your backup data is not comingled with other customers.

· Notification: Require providers to provide timely notification of any potential data security breach.

The above comments are from information tips provided by the Multi-State Information and Analysis Center (MS-ISAC). To learn more about MS-ISAC go to http://www.msisac.org/

Additional Information:

[1] The NIST Definition of Cloud Computing. October 2009. http://csrc.nist.gov/groups/SNS/cloud-computing/

2 D. Hilley. Cloud Computing: A Taxonomy of Platform and Infrastructure-level Offerings. April 2009. http://www.cercs.gatech.edu/tech-reports/tr2009/git-cercs-09-13.pdf

Cloud Security Alliance: http://www.cloudsecurityalliance.org/
M. Armbrust et al. Above the Clouds: A Berkeley View of Cloud Computing. February 2009

More News.

Amazon Debunks Top Five Myths of Cloud Computing
e-Week News April 9, 2010.

"As the 5th International Cloud Computing Conference & Expo (Cloud Expo) opens in New York City on April 19, Amazon Web Services (AWS) is tapping into the attention the event is placing on cloud computing to address what the company views as some of the more persistent myths related to the cloud."

Censorship Circumvention Via Kaleidoscope

Video of Jinyang Li's Mar 25 lecture hosted by the New York City Chapter of the Internet Society about the Kaleidoscope system for getting around Internet censorship. The talk explains how traditional censorship workarounds like proxies and P2P can easily be discovered
and defeated, but how Kaleidoscope - which passes encrypted data through trusted relays - defies such efforts.

http://www.isoc-ny.org/?p=1485

Posted On: April 22, 2010

Findlaw Caselaw Summaries: Constitutional Law

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw

April 12 -16, 2010:

U.S. 1st Circuit Court of Appeals, April 15, 2010
Foley v. Kiely , No. 09-1250
In plaintiff's 42 U.S.C. section 1983 claim against Massachusetts State Troopers and a police sergeant, claiming the troopers unconstitutionally seized and arrested him, district court's grant of summary judgment in favor of defendants is affirmed, as the troopers did not violate plaintiff's constitutional rights in detaining and subsequently arresting him.

U.S. 6th Circuit Court of Appeals, April 15, 2010
American Booksellers Found. for Free Expression v. Strickland, No. 07-4375
In plaintiffs' suit claiming that Ohio Revised Code section 2907.31(D)(1), criminalizing sending juveniles material that is harmful to them, is unconstitutional under the First Amendment and Commerce Clause, district court's judgment for the plaintiffs and its order permanently enjoining enforcement of the statute as applied to internet communications on the basis that it is overbroad, is reversed and vacated, as the statute does not violate the First Amendment or the Commerce Clause because the scope of the statute is limited to personally directed electronic communications, as currently available or developed in the future. .

U.S. 7th Circuit Court of Appeals, April 16, 2010
Evans v. Poskon , No. 09-3140
In a prisoner's 42 U.S.C. section 1983 suit, claiming that his fourth amendment rights were violated when the officers used excessive force during and after his arrest, district court's grant of summary judgment in favor defendants on the ground that Heck v. Humphrey, 512 U.S. 477 (1994) bars defendant's claim because his assertion that he did not oppose being taken into custody contradicts his conviction for resisting arrest is reversed as, Wallace v. Kato, 549 U.S. 384 (2007) holds that a claim that accrues before a criminal conviction may and usually must be filed without regard to the conviction's validity, and that a claim asserting that a search or seizure violated the fourth amendment accrues immediately. Therefore, his claim that he did not resist being taken into custody is incompatible with his conviction and any proceedings based on this contention must be stayed or dismissed, but defendant's claims that the police used excessive force to effect custody and that t! he police beat him severely even after reducing him to custody are consistent with a conviction for resisting arrest and may thus proceed.

U.S. 9th Circuit Court of Appeals, April 13, 2010
Black Star Farms LLC v. Oliver, No. 08-15738
In an action by a Michigan winery claiming that certain provisions of Arizona's statutory scheme regulating the direct shipment of wine from wineries — whether located in-state or out-of-state — to Arizona consumers violated the dormant Commerce Clause, summary judgment for defendant is affirmed where Arizona's statutory exceptions to its three-tier distribution system, which treated similarly situated in-state and out-of-state wineries the same and imposed no new impermissible burdens on out-of-state wineries, did not have the practical effect of favoring in-state economic interests over out-of-state interests.

Posted On: April 22, 2010

Findlaw Caselaw Summaries: Criminal Law and Procedure

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw

April 12 -16, 2010:

U.S. 1st Circuit Court of Appeals, April 14, 2010
US v. Cintron-Echautegui, No. 08-1800
In a conviction of defendant for conspiracy to distribute controlled substances, district court's imposition of 292-months' imprisonment is affirmed as the court did not clearly err in making its drug quantity determination. .

U.S. 1st Circuit Court of Appeals, April 14, 2010
US v. Mardirosian, No. 09-1144
Conviction of defendant for possessing, concealing or storing six stolen paintings, including a rare Cezanne valued at $29 million, is affirmed where: 1) the 1999 Agreement had no bearing on the "stolen" character of the paintings as the agreement was void ab initio as a contract for an illegal purpose; 2) the jury's finding that defendant knew the paintings were stolen at some point after taking possession of them was sufficient to satisfy 18 U.S.C. section 2315's mens rea requirement; 3) district court did not err in instructing the jury that the Agreement did not provide defendant with viable mens rea defense to the charge; and 4) district court's use of Cezanne's 1999 auction price in its calculation of loss was not clearly erroneous.

U.S. 1st Circuit Court of Appeals, April 15, 2010
US. v. Ellison , No. 09-1234
In a conviction of defendant for robbery and related offenses, district court's denial of defendant's motion to suppress statements made to the police while being held at a county jail charged with another crime is affirmed, as there is nothing in the facts of this case that would be likely create the atmosphere of coercion subject to Miranda concern. .

Continue reading " Findlaw Caselaw Summaries: Criminal Law and Procedure " »

Posted On: April 21, 2010

Professor Rory Little's Perspective: United States v. Stevens, A Case Brief

The following is presented as a service of the ABA Criminal Justice Section http://www.abanet.org/crimjust

The ABA Section of Criminal Justice is pleased to provide Professor Rory Little's Perspective, a Case Brief in U.S. v. Stevens which includes the Holding, Facts, and Analysis in the case.

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FIRST AMENDMENT

Statute Criminalizing the Creation, Sale, or Possession of Depictions of Intentional Killing or Wounding of Animals is Unconstitutionally Overbroad.

United States v. Stevens, No. 08-769, 130 S.Ct. ____ (April 20. 2010), affirming 533 F.3d 218 (3d Cir. 2008 en banc).

Holding (8-1), Roberts; Alito dissenting: A statute that criminalizes the creation, sale, or possession of a “depiction of animal cruelty” (as opposed to criminalizing the underlying harmful conduct) is invalid as facially overbroad under the First Amendment, because (first) the statute’s definitions do not actually restrict its application to “cruelty” and (second) thus construed, “a substantial number of its applications are unconstitutional” because it would apply, for example, to many hunting magazines, shows, and videos that are marketed today.

Facts: Title 18 U.S.C. § 48 criminalizes the “creation, selling or possession” of “a depiction of animal cruelty” if done for “commercial gain” in interstate commerce. Stevens was convicted of selling “videos of pit bulls engaging in dogfights and attacking other animals,” and he received a three-year imprisonment sentence. The district court rejected his First Amendment challenge to the statute, holding that depictions of animal cruelty are “categorically unprotected” just like obscenity or child pornography. A divided en banc Third Circuit reversed, however, rejecting the categorical exception and finding the statute invalid under a strict scrutiny analysis (applied to content-based speech regulations).

Chief Justice Roberts (for 8 members of the Court): First, we reject the idea that a new “categorical exception” for animal cruelty visuals can be created. There is no history to support it, and a “free-floating” balancing test is the wrong analysis. “Maybe there are some categories of speech” exempted from the First Amendment but not yet identified, but this is not one of them.

The majority does not affirm the Third Circuit’s strict scrutiny analysis, but instead applies “existing doctrine” to the broad reach of the statute as the Court construes it. The “first step” is to determine the statute’s meaning, and the Court’s somewhat surprisingly broad view of the statute turns out to decide the issue.

Although the statute explicitly condemns “depictions of animal cruelty,” its definitional section makes clear that it applies to “any … intentional[] wound[ing] or kill[ing]” of an animal. Thus the statute does not “require[e] cruelty.” Moreover, the Court reads the statute to apply to any depiction of animal wounding that is unlawful in the state where the selling or possession occurs, even if the conduct was lawful in the State where the depiction was created. Thus the Court finds that the statute applies to depictions of hunting, for example, that are entirely lawful in many states, if the depiction is found in a state where such hunting is unlawful. (For example, “[t]he sharp-tailed grouse may be hunted in Idaho, but not in Washington.”) Because “there is an enormous national market for hunting-related depictions in which a living animal is intentionally killed,” the statute reaches a vast amount of First-Amendment protected activity, even if “crush videos” (see the opinion at page 2 for a description of “crush videos,” which undoubtedly were the object of Congress’s attention.) are also prohibited.

Finally, the statute’s exceptions clause, protecting depictions for which there is “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” does not save it. Lots of hunting magazines and videos have only “recreational” or “entertainment” value. Even though the Department of Justice promises to apply the statute only to depictions of “extreme animal cruelty,” the First Amendment does not depend on such prosecutorial discretion. And we won’t re-write the statute to only apply to such depictions where its plain language is plainly broader.

Alito dissenting: (Interestingly, only Justice Alito does not agree with the majority of his former Third Circuit colleagues.) There is no need to strike down in its entirety this “valuable statute,” and thus leave “depraved entertainment” such as crush videos legalized. Instead, the case should be remanded to see whether Stevens’ dog-fight videos can survive an “as applied” First Amendment challenge.

On a pure overbreadth analysis, the statute should be sustained. The majority does not fairly apply the doctrine that statutes should be construed narrowly, if possible, to avoid constitutional problems. Its application to a small number of differentiated hunting regulations across the country is “seriously flawed” and fanciful. We should simply interpret the statute to not apply at all to hunting in general, but rather only to “acts of animal cruelty” that violate state laws. (In an act marginally cruel to trees, Justice Alito appends an eight-page, 50-state survey of animal cruelty laws to his opinion.) Moreover, we should construe the exceptions clause to protect hunting magazines and videos. There is no “substantial overbreadth” here (emphasis in the original), even if a few hypothetical or rare examples can be imagined.

Moreover, the conduct depicted in crush videos is violent and depraved, and has no constitutional protection. Congress reasonably concluded that a statute banning the commercial market for such videos was necessary, because the actual makers of the videos often could not be located. This 1999 strategy worked; by 2007 it was reported that the “crush video industry [was] dead,” even “overseas websites shut down.” A similar strategy has been constitutionally employed against child pornography, and we held in Ferber (1982) that depictions of child pornography are unprotected by the First Amendment. We should hold the same for depictions of crush videos and “brutal animal fights.”


[Editors Note: This summary has been created by Professor Rory K. Little, U.C. Hastings College of the Law, San Francisco. littler@uchastings.edu . It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.]

Posted On: April 20, 2010

ABA: U.S. Supreme Court Update - U.S. v. Stevens

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

United States v. Stevens (No. 08–769)

United States Supreme Court Opinion Decided: April 20, 2010

Respondent Robert Stevens, a 68 year old author and documentary producer, owned and operated a business and associated website which sold videos of pitbull fights and pitbulls attacking other animals. Respondent Stevens was arrested and convicted of three counts of knowingly selling depictions of animal cruelty, with the intention of placing them in interstate commerce for commercial gain, following a jury trial in the District Court for Western Pennsylvania. This conviction came under 18 U.S.C. 48, which defines animal cruelty as a depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” §48(c)(1). The law exempts any depiction “that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” §48(b). The goal in enacting 18 U.S.C. 48 was to limit distribution of animal fighting and “crush” videos (videos of people crushing small animals to death, which allegedly appeal to a certain sexual fetish).

Prior to conviction, respondent Smith motioned to dismiss charges on the ground that 18 U.S.C 48 was facially unconstitutional as it was in violation of the first amendment protection of free speech. His motion was denied on the grounds that depictions subject to §48, like obscenity or child pornography, are categorically unprotected by the First Amendment. 2:04–cr–00051–ANB (WD Pa., Nov. 10, 2004), App. to Pet.for Cert. 65a–71a. The Third District Court of Appeals reversed. The Court of Appeals rejected the District Court’s analogy to child pornography. Further, the Court found 18 U.S.C. 48 facially unconstitutional as the statute lacked a compelling government interest and was neither narrowly tailored to preventing animal cruelty nor the least restrictive means of doing so 533 F. 3d 218.

The Supreme Court affirmed the ruling, finding that the banned depictions are categorically protected by the constitution, stating, “However ‘growing’ and ‘lucrative’ the markets for crush videos and dog fighting depictions might be, they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of §48. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment”.

Affirmed.

ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion.

Available at: http://www.supremecourt.gov/opinions/09pdf/08-769.pdf

Posted On: April 20, 2010

What Should Be The Appropriate Privacy Expectations Of A Public Employee When Text Messaging On the Job?

In City of Ontario California et. al. v. Jeff Quon et. al. the U.S. Supreme Court is wrestling with the issue of whether public employees are entitled to a reasonable expectation of privacy in text messages transmitted on their workplace pages or similar devices without such messages being subject to review from recipients public employer. The city of Ontario, California is asking the justices to overturn a ruling by the U.S. Court of Appeals for the Ninth Circuit, holding that it violated the Fourth Amendment privacy rights of Mr. Quon, a member of the Ontario police department SWAT team, when it reviewed transcripts of his and another offiicer's text messages on their department pagers. Below are links to the argument transcipts and other docuemts related to this case:

Argument: City of Ontario California, et. al. v. Jeff Quon, et. al. 08-1332

The Scotus Wiki contains links to other useful documents related to this case.

Posted On: April 15, 2010

What Should Be the Proper Role of Judges In Our Constitutional System?

In his provocative Opinion piece Our Fill-in-the-Blank Constitution in the April 13 New York Times, Geoffrey Stone examines this question and more. He emphasizes that contitutional law is not a mechanical exercise in just applying the law, a fact that needs always to be considered in the selection and evaluation of judges and justices.. Here are two excerpts from the article:

"AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law...."

"So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, ( http://www.constitution.org/jm/17881017_bor.htm ) in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” ( http://press-pubs.uchicago.edu/founders/documents/v1ch14s50.html ) against every encroachment upon our most cherished freedoms."

To see the complete article go to:

http://www.nytimes.com/2010/04/14/opinion/14stone.html

Those interested in this topic may also want to see Suzannah Linton's paper, The Role of Judges in Dealing With the Legacies of the Past, published on the Social Science Research Network.. This author discusses the role of judges from an international, human rights perspective.

Abstract:
This paper examines the role that judges can play in dealing with legacies of the past in countries emerging from armed conflict, repression and situations where serious human rights violations have occurred. Criminal justice has, in some quarters, come to be denigrated for being “retributive”, and therefore unhelpful in the process of taking a country forward after the dust has settled. The author sees a serious imbalance in the sidelining of the rule of law in the current paradigm. Without wishing to romanticize the role of law or the courts, this work seeks to rebalance the discussion by bringing to light the considerable role for judges in the recalibration of a society. The author does not suggest a legal approach on its own will suffice; in fact, a purely legalistic approach to dealing with such situations is wholly inadequate. But as the international and comparative research conducted for this paper demonstrates, there is a critical role for judges in times of political change and this needs to be better utilized in order to maximize the chances of successful social change and structural reform.

Download: The Role of Judges in Dealing With the Legacies of the Past

Posted On: April 13, 2010

Brennan Center Launches Online Book Review Website

The Brennan Center has launched an online book review site with a focus soley on books about law and policy. The site (Just Books) includes book reviews, author interviews, and recommended reading from prominent legal figures.The site was spearheaded by Susan Lehman, the director of communications and strategy at the Brennan Center. Ms. Lehman said "I want it to be a virtual water cooler for lawyers and people who work in policy....There are declining venues for serious material....Clearly there is a continuing appetite for that material."

We agree. Many thanks to Susan Lehman for spearheading this worthy project.

Posted On: April 13, 2010

Forthcoming Books About Cybercrime: To June 2010


Title: Principles of Cybercrime

Author: Clough, Jonathan Publisher: Cambridge University Press ISBN or UPC: 0-521-89925-7 (Active Record)
Format: Trade Cloth Date: May 2010 Price: $125.00 Market: United States
Availability: Available for Order
LC Class #: K5215 Dewey#: 345/.0268 ISBN 13: 978-0-521-89925-3

Synopsis:
"We live in a digital age. The proliferation of digital technology, and the convergence of computing and communication devices, has transformed the way in which we socialise and do business. While overwhelmingly positive, there has also been a dark side to these developments. Proving the maxim that crime follows opportunity, virtually every advance has been accompanied by a corresponding niche to be exploited for criminal purposes; so-called 'cybercrimes'. Whether it be fraud, child pornography, stalking, criminal copyright infringement or attacks on computers themselves, criminals will find ways to exploit new technology. The challenge for all countries is to ensure their criminal laws keep pace. The challenge is a global one, and much can be learned from the experience of other jurisdictions. Focusing on Australia, Canada, the UK and the US, this book provides a comprehensive analysis of the legal principles that apply to the prosecution of cybercrimes."


Title: The Global Cybercrime Industry: Economic, Institutional and Strategic Perspectives

Author: Kshetri, Nir Publisher: Springer ISBN or UPC: 3-642-11521-7 (Active Record)
Format: Trade Cloth Date: May 2010 Price: $99.00 Market: United States
Availability: Available for Order
LC Class #: HV6773 Dewey#: 364.168 ISBN 13: 978-3-642-11521-9

Synopsis:
" This book is about the global cybercrime industry, which according to some estimates, is a US$1 trillion industry and is growing rapidly. It examines economic and institutional processes in the cybercrime industry, provides insights into the entrepreneurial aspect of firms engaged in cyber-criminal activities, takes a close look at cybercrime business models, explains the global variation in the pattern of cybercrimes and seeks to understand threats and countermeasures taken by key actors in this industry. This book? distinguishing features include the newness, importance, controversiality and complexity of the topic; cross-disciplinary focus, orientation and scope; theory-based but practical and accessible to the wider audience; and illustration of various qualitative and quantitative aspects of the global cybercrime industry."


Title: Forensic Accounting and Fraud Examination

Author: Riley, Richard et al. Publisher: John Wiley & Sons, Incorporated ISBN or UPC: 0-470-43774-X (Active Record)
Format: Trade Cloth Date: Apr 2010 Price: $128.95 Market: United States
Availability: Available for Order
LC Class #: KF8968.15 Dewey#: 363.25/963 ISBN 13: 978-0-470-43774-2

Synopsis:
"The demand for entry-level accountants to have a strong understanding of forensic accounting has dramatically increased. This new book arms them with the information they'll need. It presents comprehensive coverage of fraud detection and deterrence, incorporating the most current information in the field. It focuses on asset misappropriation, corruption, and false statements. In addition, discussions are included on fraud and forensic accounting in a digital environment as well as litigation advisory engagements that address damage claims, employment issues, valuations, and more. This approach arms accountants with the tools to successfully engage in forensic accounting."

From Books In Print Professional. Search run April 13, 2010

Posted On: April 12, 2010

Important Changes to OCLC's Content Services


In March 2010 OCLC announced an important change to their FirstSearch content services. According to the announcement, OCLC is transitioning out of their role as reseller of vendor-owned content. Therefore they will transfer or discontinue sale of the vendor-owned databases on FirstSearch when subscriptions have ended. According to the announcement, they will instead increase their focus for both FirstSearch and WorldCat.org on providing libraries with access to a rich set of library-owned content and increasing visibility and access to the full scope of a library’s collection. They will work with libraries, publishers and other information providers to expand WorldCat.org as a comprehensive platform for eContent. As a part of this migration, EBSCO has acquired the rights to license a select number of vendor-owned databases that OCLC currently offers on FirstSearch. OCLC's long-term relationship with H.W. Wilson is also changing as OCLC will work together to transition from reselling Wilson databases on FirstSearch to indexing Wilson databases in WorldCat Local over the coming months. According to OCLC there will be no interruption in service to libraries.

FirstSearch FAQ’s: http://www.oclc.org/firstsearch/content/questions/

EBSCO News Release: http://www.oclc.org/news/releases/2010/201015.htm

H.W. Wilson News Release: http://www.oclc.org/news/releases/2010/201016.htm

Posted On: April 12, 2010

U.S. Department of Transportation Partners With Cornell University in Pilot Project Regulation Room for eRulemaking

"On January 21st, 2009, President Obama issued a Memorandum on Transparency and Open Government in which he described how: 'public engagement enhances the Government's effectiveness and improves the quality of its decisions. Knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge.'

To support the President's open government initiative, DOT has partnered with the Cornell eRulemaking Initiative (CeRI) in a pilot project, Regulation Room, to discover the best ways of using Web 2.0 and social networking technologies to: (1) alert the public, including those who sometimes may not be aware of rulemaking proposals, such as individuals, public interest groups, small businesses, and local government entities that rulemaking is occurring in areas of interest to them; (2) increase public understanding of each proposed rule and the rulemaking process; and (3) help the public formulate more effective individual and collaborative input to DOT. Over the course of several rulemaking initiatives, CeRI will use different Web technologies and approaches to enhance public understanding and participation, work with DOT to evaluate the advantages and disadvantages of these techniques, and report their findings and conclusions on the most effective use of social networking technologies in this area...."

Quote from U.S. Department of Transportation Website.

Elaborating on this initiative, Barbara Brandon reports in an e-mail that:

"Last fall Cornell’s e-Rulemaking Initiative ran a test of how to increase rulemaking participation on a closed rule. They have just started a new test on an active proposal on how to prevent distracted driving by truck drivers who are texting while operating a vehicle. See http://regs.dot.gov/e-rulemaking.htm and http://regulationroom.org/#login.

This joint effort by DOT in conjunction with Cornell is also part of that agency’s efforts to comply with the Obama Administration’s Transparency Initiative. I think it is important for librarians to give this a look and see what they think of this particular effort. Expanding rulemaking participation beyond the closed circle of Washington beltway interest groups is a key benefit that the Internet can offer to good governance"

Posted On: April 12, 2010

New Website: Alabama Supreme Court and State Law Library

The Alabama Supreme Court and State Law Library is pleased to announce the launch of its new website. Please check us out at http://judicial.alabama.gov/library.cfm. As part of our redesign, we are proud to present the full text of the Alabama Rules of Court—Civil, Criminal, Small Claims, Juvenile, Appellate, and Judicial Administration and the accompanying forms.

Posted On: April 12, 2010

Findlaw Case Law Summaries: Criminal Law and Procedure

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw

April 5 - April 9, 2010:.

U.S. 1st Circuit Court of Appeals, April 01, 2010
Chamberlin v. Town of Stoughton, No. 08-1289
In plaintiff-officers' 42 U.S.C. section 1983 suit against a town, its officials and police chiefs involving various workplace discrimination and harassment claims, district court's grant of a directed verdict in favor of one of the two police chiefs is affirmed as any error in granting the directed verdict was harmless because of the rejection of plaintiffs' claims against the other police chief by a different jury in a second trial.

U.S. 1st Circuit Court of Appeals, April 06, 2010
US v. Flores-Rivera, No. 09-1131
In defendant's action seeking return of seized property without notice arising from his drug arrest and conviction in 1991, district court's ruling that his property should be returned but simultaneously ordering that the funds be applied to defendant's criminal fine is vacated and remanded with instructions to promptly conduct a hearing, follow the applicable statutory procedures, and otherwise provide defendant with the long-delayed process to which he is entitled.

U.S. 3rd Circuit Court of Appeals, April 06, 2010
US v. Sed, No. 09-1489
In a prosecution of defendant for conspiracy to distribute and possess with the intent to distribute drugs and other related crimes, defendant's conviction and sentence is affirmed where: 1) the seizure of defendant by Pennsylvania State Police in Ohio was not unreasonable and the district court did not err in denying his motion to suppress; and 2) the district court did not err when it failed to grant defendant a downward departure or an additional downward variance as the record amply supports the district court's conclusion that defendant perjured himself and that the Pennsylvania State Police did not act improperly in conducting their sting operation.

Continue reading " Findlaw Case Law Summaries: Criminal Law and Procedure " »

Posted On: April 12, 2010

Findlaw Case Law Summaries: Constitutional Law

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw

April 5 - April 9, 2010:.

U.S. 1st Circuit Court of Appeals, April 01, 2010
Chamberlin v. Town of Stoughton, No. 08-1289
In plaintiff-officers' 42 U.S.C. section 1983 suit against a town, its officials and police chiefs involving various workplace discrimination and harassment claims, district court's grant of a directed verdict in favor of one of the two police chiefs is affirmed as any error in granting the directed verdict was harmless because of the rejection of plaintiffs' claims against the other police chief by a different jury in a second trial.

U.S. 4th Circuit Court of Appeals, April 09, 2010
Educational Media Co. v. Swecker, No. 08-1798
In an action brought by college newspapers alleging that two of Virginia's Alcoholic Beverage Control Board's regulations restricting alcohol advertisements violate their First Amendment rights, summary judgment declaring both provisions facially unconstitutional and permanently enjoining their enforcement is reversed and remanded where, on its face, the Board's ban on alcoholic advertisements in college student publications passes muster under Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557 (1980). .

U.S. 5th Circuit Court of Appeals, April 07, 2010
Jennings v. Owens, No. 09-50047
In an action claiming that officials from the Texas Board of Pardons and Paroles and the Texas Department of Criminal Justice committed procedural due process violations after the Board of Pardons and Paroles imposed sex offender special conditions on plaintiff's parole, summary judgment for plaintiff is reversed where, because plaintiff was indeed a sex offender, he failed to show that he had a liberty interest that was infringed when the parole board imposed sex offender special conditions on his parole.

Continue reading " Findlaw Case Law Summaries: Constitutional Law " »

Posted On: April 12, 2010

CLLB Information Security Newsletter

Volume 3 March 2010

Security and Privacy on Social Networking Sites

From the Desk of David Badertscher

What are the security and privacy issues associated with social networking sites?

Social networking sites have become very popular avenues for people to communicate with family, friends and colleagues from around the corner or across the globe. While there can be benefits from the collaborative, distributed approaches promoted by responsible use of social networking sites, there are information security and privacy concerns. The volume and accessibility of personal information available on social networking sites have attracted malicious people who seek to exploit this information. The same technologies that invite user participation also make the sites easier to infect with malware that can shut down an organization’s networks, or keystroke loggers that can steal credentials. Common social networking risks such as spear phishing, social engineering, spoofing, and web application attacks attempt to steal a person’s identity. Such attacks are often successful due to the assumption of being in a trusting environment social networks create.

Security and privacy related to social networking sites are fundamentally behavioral issues, not technology issues. The more information a person posts, the more information becomes available for a potential compromise by those with malicious intentions. People who provide private, sensitive or confidential information about themselves or other people, whether wittingly or unwittingly, pose a higher risk to themselves and others. Information such as a person’s social security number, street address, phone number, financial information, or confidential business information should not be published online. Similarly, posting photos, videos or audio files could lead to an organization’s breach of confidentiality or an individual’s breach of privacy.

What are the precautions I should take?

Below are some helpful tips regarding security and privacy while using social networking sites:


·Ensure that any computer you use to connect to a social media site has proper security measures in place. Use and maintain anti-virus software and keep your application and operating system patches up-to-date.

Use caution when clicking a link to another page or running an online application, even if it is from someone you know. Many applications embedded within social networking sites require you to share your information when you use them. Attackers use these sites to distribute their malware.

Use strong and unique passwords. Using the same password on all accounts increases the vulnerability of these accounts if one becomes compromised.

If screen names are allowed, do not choose one that gives away too much personal information.

Be careful who you add as a “friend,” or what groups or pages you join. The more “friends” you have or groups/pages you join, the more people who have access to your information.

Do not assume privacy on a social networking site. For both business and personal use, confidential information should not be shared. You should only post information you are comfortable disclosing to a complete stranger.

Use discretion before posting information or commenting about anything. Once information is posted online, it can potentially be viewed by anyone and may not be retracted afterwards. Keep in mind that content or communications on government-related social networking pages may be considered public records.

Configure privacy settings to allow only those people you trust to have access to the information you post. Also, restrict the ability for others to post information to your page. The default settings for some sites may allow anyone to see your information or post information to your page; these settings should be changed.

Review a site’s privacy policy. Some sites may share information such as email addresses or user preferences with other parties. If a site’s privacy policy is vague or does not properly protect your information, do not use the site.

Additional Information:

MS-ISAC Monthly Cyber Security Tips Newsletter: Social Networking Sites: How To Stay Safe
www.msisac.org/awareness/news/2009-03.cfm

OnGuardOnline: www.onguardonline.gov/topics/social-networking-sites.aspx

StaySafeOnline – National Cyber Security Alliance: www.staysafeonline.org/blog/staying-safe-social-media-web-sites
Social Networking Privacy - A Parent’s Guide: www.ftc.gov/bcp/edu/pubs/consumer/tech/tec13.shtm

US-CERT--Staying Safe on Social Network Sites: www.us-cert.gov/cas/tips/ST06-003.html

The above comments are from information tips provided by the Multi-State Information and Analysis Center (MS-ISAC). To learn more about MS-ISAC go to http://www.msisac.org/

MORE NEWS AND INFORMATION:

Is it Time to Create A Social Media Policy to Protect Liability?

From: Lexology March 24, 2010

"...the clear take-away for employers is that proactive measures to adopt clear, written procedures on social media and blogging policies may reduce exposure for employee statements. Effective policies should educate employees on the types of statements that require disclosure, prohibit false and misleading employee statements, require that employee endorsements be submitted to management or marketing for approval prior to posting and provide for response measures when violations occur. Additionally, well written policies can work to address exposure under other applicable laws, such as those related to disclosures by public companies under Regulation FD and the protection of company trade secrets."

Faces of Fraud 2010

From: The Field Report with Tom Field April 2, 2010.

"Payment cards, ACH, ATM - these are the forms of fraud that have made the biggest news so far in 2010. But there's another variation preying upon banking institutions, too, and it deserves its own headlines."

From: Cloud Security's Seven Deadly Sins

BY: Kathleen Lau, Computerworld Canada

March 31, 2010

"A security expert warns organizations making a foray into cloud computing may know familiar terms like multi-tenancy and virtualization, but that doesn't mean they understand everything about putting applications in the cloud."



Posted On: April 9, 2010

U.S. Appeals Court Ruling Curbs FCC Control of Net Regulation

In a unanimous 3-0 Decision last Tuesday April 6 the United States Court of Appeals for the District of Columbia Circuit ruled that the Federal Communication Commission did not have the authority to order Comcast in 2008 to cease and desist interfering with the traffic of Bit Torrent a P2P file sharing service. At the time Comcast ostensibly accepted the order, but ended up appealing the ruling in the courts. The April 6 opinion is the result of that appeal.

As can be expected, reactions have been quick in coming and are quite varied, depending on the perspective and interests of those responding. Some have emphasized the supposedly narrow scope of the ruling attempting to play down its overall importance. Others see it has quite significant, even ground breaking in its scope. For example, will the ruling set a prescedent that allows internet providers to control broadband service as they see fit since it clearly undercuts the FCC's claim to authority to regulate the internet? What about the FCC's recently released National Broadband Plan supported by the Obama administration? Many of my fellow libraraians have been looking forward to both participating in and benefiting from this program which contains some provisions related to libraries.? And what about the overarching issues relating to equal treatment for all who use the internet? That not only refers to the "information poor" who often have difficulty getting access under the best of conditions; is could also impact those at the opposite end of this spectrum, eg. Google's You Tube and Microsoft's MSN.com?

So many questions, which indicates that this decision really is important with far reaching consequences. Some think this ruling will be appealed to the U.S. Supreme Court but we will need to wait and see. Meanwhile, the FCC has been handed some significant regulatory issues it will need to try to work around. Can they do it. It appears from a statement issued after the ruling that they are prepared to try.

Some believe the FCC might consider move to reclassify internet services as Title II common carrier services which transport people and goods under regulatory supervision. That might help the FCC move toward the broadband stimulus bill which relies on the FCC to regulate internet access. But that could ignite a firestorm among the carriers and there may be a question as to whether the FCC really wants to take that on.

The ruling does appear to free the big cable companies such as Comcast from the threat of net neutrality rules which they say would interfere significantly with their ability to manage traffic on their own networks and prioritize certain applications such as those used to block spam.. Others are concerned that the ruling will hinder the Obama administrations push for more net neutrality on the web. And what about the common ordinary citizen who is in desperate need for web access? Right now the outlook appears highly uncertain. It is worth noting the remark of Ben Scott, policy director for the Free Press, a not-for-profit organization that supported the F.C.C in the Comcast case: "Internet users now have no cop on the beat."

Reactions keep coming. Here is an excerpt from the April 12, 2010 National Law Journal as reported on LAW.COM:

"Comcast's courthouse victory over the Federal Communications Commission last week might not turn out to be a win for the company after all if it speeds the path for wider regulation of broadband services. The unanimous ruling was a short-term affirmation for those who want to rein in the FCC's ability to impose 'net neutrality' rules, but major battles loom in at least two venues: the commission and Congress. A loss in either place would mean a lot more uncertainty for companies like Comcast."


Below are two documents related to the Comcast decision. The first link is to the FCC Statement issued after the decion' the second link is to the decision itself.

FCC Statement on Comcast v. FCC Decision

Decision: Comcast Corporation v. Federal Communications Commission No. 08-1291

Posted On: April 8, 2010

Legal Treatises on the Law of Evidence 1880 - 1900

A select bibliography.

In response to a recent request I compiled a short, selected list of treatises published between the years 1880 and 1990. It is being reproduced here for the benefit of those readerw who might also be interested. This list is selective and thereroe not intended to be exhaustive. Even among the authors listed, many produced an number of additional titlies related to the law of evidence.:

Selected treatises on the law of evidence - United States published in the late 1800's

Prepared by. David G. Badertscher, Principal Law Librarian, NY Supreme Court Criminal Term Library, First Judicial District.

This is a selected list. Many of the authors listed below were quite prolific and produced several editions of their publications.

Abbot, Austin. Trial Evidence. The Rules of evidence applicable on the Trial of Civil Actions ..At Common Law in Equity and Under the Rules of Procedure. New York, Baker, Vorhis and Co. 1880. KF8935.A72.

Best, William Mawdesley. The Priciples of the Law of Evidence, with Elementary Rules for Conducting the Examination and Cross-Examination of Witnesses (American Edition), Boston. Soule and Hughes, 1883.

Bradner, George William. Rules of Evidence as Prescribed by the Common Law, For the Trial of Actions and Proceedings, Chicago, Callaghan and Company. 1898, 12-7543; 2001271.

Gates, Jasper Calvin. Cases on the Law of Evidendce. St. Paul, MN. West Publishing Co. 1897.

Greenleaf, Simon and Simon Greenleaf Crosswell. A Treatise on the Law of Evidence., 14th Ed. Revised. “With large additions”. Boston. Little Brown 1883.

Jones, Burr W. And William Carey Jones. The Law of Evidence in Civil Cases, 4th Edition Revised. San Francisco. Bancroft-Whitney Company 1896.

Reynolds, William. The Theory of the Law of Evidence as Established in the United States.and the Conduct of the Examination of Witnesses. Chicago, Callaghan and Company. 1883.

Rice, Frank Sumner. The General Principles of the Law of Evidence in their Application to the Trial of Criminal Cases at Common Law and Under the Criminal Codes of the Several States. Rochester, NY, The Lawyers’ Co-Operative Publishing Company, 1893.

Underhill, Harry Clay. A Treatise on the Law of Evidence With a Discussion of the Principles and Rules Which Govern its Presentation, Reception and Exclusion, and the Examination of Witnesses in Court. Chicago, T. H. Flood and Company 1894.

Underhill, Harry Clay. A Treatise on the Law of Criminal Evidence, Including the Rules Regulating the Proper Presentation of Evidence and its Relevancy; The Mode of Proof in Particular Classes of Crimes, and the Competency and Examination of Witnesses With Full References and Decisions. Indianapolis and Kansas City. The Bowen Merill Company, 1896.

Posted On: April 6, 2010

ABA: U.S. Supreme Court Updates

March 2010

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

All summaries below were prepared by staff of the ABA Criminal Justice Section..

JOHNSON v. UNITED STATES (No. 08-5274)

United States Supreme Court Opinion Decided: March 2, 2010

Petitioner Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U.S.C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, an offense that “has as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i). Among Johnsons’ three prior felony convictions was a 2003 Florida conviction for simple battery. Under Florida law, battery is ordinarily a first-degree misdemeanor but was a felony conviction for Johnson because he had a previous battery conviction. A battery can occur under Florida law when a person “[a]ctually and intentionally touches or strikes another person against [his] will.” §784.03(1)(a). The District Court enhanced Johnson’s sentence, concluding that Johnson’s 2003 conviction was a “violent felony” under the Armed Career Criminal Act because “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). The Eleventh Circuit affirmed.

The Supreme Court held that the Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i), and thus does not constitute a “violent felony” under §924(e)(1).

In interpreting the phrase “physical force” in §924(e)(2)(B)(i), the Court was not bound by the Florida Supreme Court’s conclusion that, under Florida’s statutory equivalent to the Armed Career Criminal Act, the offense of battery does not “involve the use . . . of physical force or violence against any individual.”

Because §924(e)(2)(B)(i) does not define “physical force,” the Court gave the phrase its ordinary meaning.

The Government suggested that “force” in §924(e)(2)(B)(i)’s definition of “violent felony” is a legal term of art describing one element of the common-law crime of battery. Here, “physical force” does not define the crime of battery, but rather the statutory category of “violent felony.” §924(e)(2)(B)(i). In that context, “physical force” means violent force capable of causing physical pain or injury to another person.

The Court interpreted the phrase “physical force” only in the context of a statutory definition of “violent felony,” and did not decide whether the same meaning applies in the context of defining the scope of misdemeanor offenses.

The Court declined to remand for consideration whether Johnson’s 2003 battery conviction qualifies as a “violent felony” under § 924(e)(2)(B)(ii).

Reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed a filed dissenting opinion, in which Thomas, J., joined.

Available at: http://www.supremecourtus.gov/opinions/09pdf/08-6925.pdf.
_________________________

BLOATE v. UNITED STATES (No. 08-728)

United States Supreme Court Opinion Decided: March 8, 2010

The Speedy Trial Act of 1974, 18 U. S. C. §3161 et seq., requires that a criminal defendant’s trial commence within 70 days after he is charged or makes an initial appearance, whichever is later, 3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). Delays in the trial, however, can negate this 70 day period (i.e.: delay resulting from other proceedings concerning the defendant).

On August 24, 2006, petitioner Bloate was indicted by a grand jury with felony possession of firearms and possession with intent to distribute cocaine, starting the Speedy Trial Act’s 70 day clock. On September 7, petitioner filed motion to extend the deadline to file pretrial motions. The deadline was extended to September 25, on which date counsel for the petitioner waived all pretrial motions. On October 4th a hearing was held, in which the magistrate judge found petitioner’s waiver voluntary and intelligent. After several other delays, counsel for petitioner moved to dismiss trial under the Speedy Trial Act, as the 70 day clock had expired. District Court denied the motion as the period from September 13 to October 4 was excluded from the 70 days under the language of the act. Petitioner Bloate stood trial for two days on March 5 and 6, 2007 and was sentenced to two 30 year concurrent terms.

The 8th Circuit Court of Appeals denied petitioners appeal reasoning “pretrial motion preparation time” is automatically excludable under [Speedy Trial Act] subsection (h)(1)—which covers “delay resulting from other proceedings concerning the defendant”—as long as “the [district] court specifically grants time for that purpose.” 534 F. 3d, at 897. The Eighth Circuit joined 6 other Courts of Appeals in adopting this ruling, however, two Courts of Appeals disagree, holding that pretrial motions are outside of subsection (h)(1)’s scope. The Supreme Court sought to resolve this issue.

The Supreme Court held that “the time the District Court grants petitioner to prepare pretrial motions may be excluded [from the 70 days] only when a district court enters appropriate findings [justifying the exclusion]. The 28-day period from September 7 through October 4…is not automatically excludable under subsection (h)(1). We therefore do not consider whether any other exclusion would apply to all or part of the 28-day period” 559 U.S. (2010). Although the Supreme Court decision was in favor of Bloate, the 8th Circuit Court may decide on remand, whether the indictment and conviction remain effective.

Reversed and Remanded.

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Sotomayor, JJ., joined. Ginsburg, J., filed a concurring opinion. Alito, J., filed a dissenting opinion, in which Breyer, J., joined

Available at: http://www.law.cornell.edu/supct/html/08-728.ZS.html


.



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Posted On: April 6, 2010

Judge Finds Plaintiffs Grossly Neglignet for Lapses in Preservation and Collection of Electronic Documents

The Pension Committee of the University of Montreal Pension Plan et. al. v. Banc of America Securities et. al. 05 Civ 9016 (SAS)
Judge Shira A. Scheindlin of the U.S. District Court SD New York has found the plaintiffs in the University of Montreal pension fund case to be grossly negligent for lapses in the preservation and collection of responsive electronic documents. The Judge went on to order the plaintiffs, who had attempted to cite the burden argument, to collect data from backup tapes. Her opinion provides useful guidance to attorneys and electronic discovery professionals in their efforts to make sure their clients preserve relevant evidence for use in litigation and avoid sanctions.

Posted On: April 6, 2010

CRS Report: The Copyright Registration Requirement and Federal Court Jurisdiction

A Legal Analysis of Reed Elsevier, Inc. v, Muchnick

March 18, 2010

CRS Report No. R40944; 3/18/2010; Posted 4/5/2010
Author(s): Brian T. Yeh, Legislative Attorney
Subject(s): Intellectual Property
No. of Pages: 11

Abstract:

Although an author need not register his or her work with the U.S. Copyright Office to obtain copyright protection, registration is a statutory prerequisite to bringing suit for infringement of the copyright, as mandated by 17 U.S.C. ?411(a). The question in Reed Elsevier, Inc. v. Muchnick is whether this section of the Copyright Act restricts the subject-matter jurisdiction of the federal courts over copyright infringement claims involving unregistered works.

Summary

Although an author need not register his or her work with the U.S. Copyright Office to obtain
copyright protection, registration is a statutory prerequisite to bringing suit for infringement of the copyright, as mandated by 17 U.S.C. ?411(a). The question in Reed Elsevier, Inc. v. Muchnick is whether this section of the Copyright Act restricts the subject-matter jurisdiction of the federal courts over copyright infringement claims involving unregistered works.
The plaintiffs in Reed Elsevier, consisting of individual authors and trade groups representing
authors, brought a class action lawsuit against several publishers when those publishers licensed the authors? articles for print publication but failed to secure an additional license to reproduce them electronically.

The Supreme Court had earlier affirmed the plaintiffs? right to control electronic reproduction of their copyrighted works in its 2001 opinion New York Times, Co. v. Tasini. After this opinion, the district court in Reed Elsevier referred the parties to mediation. After more than three years of negotiations, the parties reached an $18 million agreement that sorted the plaintiffs into three categories based, in part, on whether or not their copyrights had been registered. The settlement assigned a different damages formula to each category, with owners of registered copyrights receiving more than owners whose copyrights were unregistered.

Several freelance authors who fell within ?Category C? (composed of unregistered copyrights)
objected to the settlement agreement, arguing that the settlement was unfair and inadequate
because they were paid too little. Proponents of the settlement responded that ?Category C?
claimants were treated fairly because, as owners of unregistered copyrights, they would normally be barred from bringing infringement suits at all under 17 U.S.C. ?411(a). The district court granted final class certification and approved the settlement in September of 2005. The objectors appealed the district court?s decision to the U.S. Court of Appeals for the Second Circuit. Before oral argument, the Second Circuit asked the parties to address whether the district court had subject-matter jurisdiction over claims concerning the infringement of unregistered copyrights, or whether ?411(a) restricted the court?s jurisdiction.

Both the authors and publishers argued that ?411(a) is not jurisdictional in nature. However, a
divided panel of the Second Circuit disagreed, holding that the requirement of copyright
registration prior to an infringement suit is jurisdictional and therefore, because many of the
plaintiff?s copyrights were unregistered, the district court lacked the power to certify the class and approve the settlement. The publishers appealed the appellate court?s decision to the U.S.
Supreme Court.

In a unanimous decision issued on March 2, 2010, the U.S. Supreme Court reversed the judgment of the Second Circuit panel. The Court characterized the Copyright Act?s registration requirement as a claim-processing rule rather than a jurisdictional condition. Therefore, a copyright holder?s failure to satisfy the statutory registration requirement does not deprive a federal court of jurisdiction to adjudicate his copyright infringement claim. While the Supreme Court held that the Reed Elsevier district court possesses the authority to approve the settlement between the authors and the publishers, the Court offered no opinion on the fairness, resonableness, or adequacy of the settlement. On remand, the court of appeals must now consider the settlement?s merits and decide whether to uphold the district court?s approval of the settlement.

The Supreme Court also expressly declined to decide whether ?411(a) is a mandatory precondition to suit that district courts may or should enforce sua sponte by dismissing copyright infringement claims that involve unregistered works.

Congressional Research Service

Posted On: April 6, 2010

How to Link to a Google Scholar Case

In a post on the Social Media Student Blog Josh Cameron writes:

It’s no secret that Google Scholar now includes court opinions and legal journals. The legal journal articles are just search results that will redirect you to the hosting site. However, a large number of the court opinions are hosted right in Google Scholar. The only problem is that linking to these opinions is not the clearest thing in the world.

When you do visit this blog don't forget the comments, they are interesting as well.

Posted On: April 6, 2010

Findlaw Case Law Summaries: Criminal Law and Procedure

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw

March 29, 2010 - April 2, 2010.

--------------------------------------------------------------------------------

U.S. Supreme Court, March 30, 2010
Berghuis v. Smith, No. 08–1402
In habeas proceedings brought by an individual convicted of second degree murder by an all-white jury, the Sixth Circuit's reversal of the denial of petitioner's habeas petition is reversed where Duren v. Missouri, 439 U. S. 357 (1979), hardly established -- much less "clearly" so -- that petitioner was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community, because petitioner's evidence gave the Michigan Supreme Court little reason to conclude that the county's juror assignment order had any significant effect on the representation of African-Americans in the venire.

U.S. Supreme Court, March 31, 2010
Padilla v. Kentucky, No. 08–651
In postconviction proceedings arising from a drug distribution prosecution, after which petitioner faced deportation based on his guilty plea and claimed that his counsel failed to advise him of the consequences of the plea, denial of postconviction relief is reversed and remanded where, because counsel must inform a client whether his plea carries a risk of deportation, petitioner sufficiently alleged that his counsel was constitutionally deficient. ..

U.S. 1st Circuit Court of Appeals, April 01, 2010
US v. Charlton, No. 08-1797
Defendant's conviction for being a felon in possession of a firearm and an enhanced sentence under the Armed Career Criminal Act are affirmed where: 1) defendant failed to establish that the government purposely discriminated against African-Americans in exercising its peremptory challenge against a juror and thus the district court committed no error - clear or plain - in permitting the government's peremptory challenge against that prospective juror; and 2) the district court did not err in sentencing defendant as an armed career criminal. ..

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Posted On: April 6, 2010

New York Internet Symposium; Dot NYC - How Are We Doing?

The Internet Society's New York Chapter (ISOC-NY) has for some years
been following the .nyc and ICANN process on behalf of the NYC
community and will, on Saturday April 10 2010, host a symposium “dot
nyc – How are we doing?” at NYU. Vendors Eric Brunner-Williams of CORE
Internet Council of Registrars and Antony Van Couvering of Minds +
Machines will reveal details of their proposals to the City, after
which there will be a discussion “What’s it for?” about possible
applications – civic, community, commercial, and “outside the box” –
for a local top level domain.

What: ISOC-NY Event: dot nyc - How are we doing?
When: Saturday Apr 10 2010; 1pm-4.30pm (1700-2030 UTC)
Where: Warren Weaver Hall NYU Rm102, 250 Mercer St, NY 10012
Who: Public Welcome. Admission Free.
Webcast: http://livestream.com/isocny
Sponsor: ISOC-NY
Meetup: http://internetpro.meetup.com/51/calendar/13100813/ Facebook: http://www.facebook.com/event.php?eid=108703639164601

Posted On: April 2, 2010

Disaster Plannning for Law Libraries

This morning I was one of many who received the following e-mail from Jessica Van Buren of the Utah State Law Library. :

A few weeks ago I asked if any of you had disaster plans to share. I offered to compile responses for a new Toolkit page on the SCCLL [ State Court and County Law Libries Special Interest Section of the American Association of Law Libraries (AALL) ] website if there was interest.

There was plenty of interest! Only two had plans to share, but it's a start. The information I gathered is now on the new Disaster Planning page on the SCCLL website at http://www.aallnet.org/sis/sccll/toolkit/disaster-planning.htm.

My thanks to our webmaster Kate Fitz for her work putting the page together! If you'd like add your plan (or any other information) to the web page, please send it to her at KFitz@saclaw.org.
-----------------------------------
After reading Jessica Van Buren's e-mail I visited the SCCLL website and was quite impressed by both the design and content. It is a wonderful place for those who need disaster planning information, not necessarily just for law libraries, to also visit.

David Badertscher

Posted On: April 2, 2010

Obtaining and Using Evidence From Social Network Sites

On October 6, 2009 the Electronic Frontier Foundation submitted a request to the U.S. Department of Justice (DOJ) for access to records concerning "use of social networking websites (including, but not limited to Facebook, MYSpace, Twitter, Flickr and other online social media) for investigative (crimiinal or otherwise) data gathering purposes created since January 2003...". The response from DOJ, date stamped March 3, 2010 states that "While processing your request we located one record totaling 33 pages. After careful review of this document we determined to release this item in part.". It goes on to explain that material being witheld from this one document, Obtaining and Using Evidence From Social Networking Sites, consists of work telephone numbers and e-mail addresses of DOJ attorneys..

Click here to download the document: OBTAINING AND USING EVIDENCE FROM SOCIAL NETWORKING SITES

Posted On: April 2, 2010

ABA Journal Newsletter - April 2, 2010

Top ten stories for week ending April 2, 2010:

Layoffs
Lovells to Shutter 20-Lawyer Chicago Office
Mar 30, 2010, 02:38 pm CDT

International Law
I Just E-Mailed a Friend, US Lawyer Charged in Dubai Corporate Info Case Tells ABA Journal
Mar 31, 2010, 07:31 pm CDT

Criminal Justice
9th Circuit Rules Against Tasered Pregnant Mom; Dissent Hits 'Off the Wall' Theory
Mar 29, 2010, 07:05 am CDT

Criminal Justice
Fla. Lawyer Finds Grenade on His Office Doorknob
Mar 29, 2010, 06:30 am CDT

Appellate Practice
After Fainting During 4th Cir. Hearing, Law Student Goes On to Make Great Argument
Mar 31, 2010, 03:42 pm CDT

Associates
'Cutting Edge' Tiered Associate Programs Identify Those with Partner Potential
Apr 1, 2010, 07:55 am CDT

Tort Law
Man Sues Neighbor Over Bad Vibes, Says She Must Turn Off Electronics
Mar 30, 2010, 01:47 pm CDT

U.S. Supreme Court
Supreme Court Says Lawyers Must Inform Clients of Deportation Risks
Mar 31, 2010, 09:50 am CDT

Law Schools
Md. Senate Wants Law School Clinic to Name Clients or Lose $250K in Funding
Mar 29, 2010, 05:30 am CDT

Law Firms
Lawyer Faces Employee Suit Alleging 'Extreme and Outrageous Voyeur Activities'
Mar 31, 2010, 06:39 am CDT

Posted On: April 2, 2010

U.S. Second Circuit: Enhanced Sentencing in New York for Persistent Felons Violates U.S. Constitution

Citing a series of U.S. Supreme Court rulings, including Blakely v. Washington, 542 U.S. 296 (2004), the Court of Appeals for the Second Circuit ruled on March 1 that a New York state statute that permits stiffer sentences for persistent felony offenders violates defendant's constitutional rights. In the ruling Judge Ralph K. Winter wrote:

"We hold that the Sixth Amendment Right to a jury trial, applicable to the states as incorporated in the Fourteenth Amendment, prohibits the type of judicial fact finding resulting in enhanced sentences under New York's {Persistent Felony Offender] statute."

Reporting on the decision in the April 1, 2010 New York Law Journal Joel Stqashenko writes, "The immediate effect of yesterday's ruling was not clear. Second Circuit rulings on New York law are not binding on the state's highest court, the Court of Appeals. The federal panel did not, howeverk that state court rulings upholding the constitutionality of the persistent felony offencer statute have been 'unreasonable' in light of seemingly contrary U.S. Supreme Court decisions in similar cases."

05-4375-pr; 06-3550-pr; 07-1599-pr; 07-3588-pr; 07-3949-pr
Besser v. Walsh; Phillips v. Artus; Portalatin v. Graham; Morris v. Artus;
Washington v. Poole

Click here to see decision