Articles Posted in Commentary and Opinion

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Jonathan Stock who along with others has been working tirelessly to save six threatened law libraries in Connecticut from closure due to financial constraints. Here is Jonathan’s latest report, received as an e-mail on May 6, 2010.:

The Connecticut General Assembly closed down last night. We now know that the bill, its substance merged with the 2011 Budget, passed. You will find herein as an attachment [ see download link below] the latest bulletin from the Judicial Office of External Affairs. We have saved at least three of the six threatened law libraries: Bridgeport, Litchfield, and Hartford. Depending on the Branch’s negotiations with the Department of Public Works, we may also get back the Willimantic Law Library as well as the Willimantic Courthouse.

The good news Jonathan writes about would not have occurred without his continuing, tireless efforts along with those of many other people and organizations such as the American Association of Law Libraries (AALL), Southern New England Law libraries Association (SNELLA).

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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.
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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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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.”

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“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.

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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.

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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

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