Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones [legal] defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry.

Unfortunately, this is not news to a lot of us. But what makes it newsworthy—even to those of us who've known about it all along—is that the man behind the curtain, the Phantom of the Opera, the [insert masqued villain of your choice] has finally been revealed, and in dramatic fashion. But what did they do that was so bad? The short answer is this: Attorneys John Steele, Paul Hansmeier, Angela Van Den Hemel, and Paul Duffy developed a business plan that centered on them planting pornographic movies in places where they were likely to be downloaded using peer-to-peer file sharing protocol. Then they monitored those servers for download activity, and filed suit against the IP addresses associated with the "illegal" downloading. Since attorneys can't really file suit on their own behalves, they created several fake people to stand in the place of the plaintiffs, by stealing the identities of various individuals, one of whom just happened to be John Steele's gardener. 

Okay, so that wasn't exactly short, let me summarize my summary: Prenda Law Inc. used our federal courts to more or less blackmail or extort money out of defendants who were essentially hauled into court only because of situations that the plaintiffs themselves created. I liken it to a civil version of entrapment. Judge Wright likened it to racketeering.

In total, the judge only ordered Prenda Law to pay a little over $80,000 in sanctions, but that's not the significance of the order, or the case. Judge Wright has asked that a copy of the order be forwarded to every court in which Prenda Law or one of its affiliates has a case pending. Further, Judge Wright has asked that a copy of the order be forwarded to attorney disciplinary body of each state in which the Prenda Law attorneys are admitted to practice. That could potentially bring an end to the entire porno-trolling litigation industry.

If the issues in this case and this latest decision weren't an ongoing focus of my practice, I probably wouldn't have taken the time to look up the case and download the opinion, which is what I did, and much to my surprise, the decision was anything but a windfall for plaintiff Malibu Media LLC, a California distributor of pornographic films. Indeed, the court went through a seemingly reasoned analysis of the legal questions involved when deciding a motion to quash a subpoena, in accordance with FRCP 45(c)(3). The primary issues the court addressed were whether joinder was proper, whether the information sought by the subpoena was relevant, and whether the plaintiff is entitled to pursue its claims for relief as stated in the lawsuit.

The court dealt with the first two issues methodically, and resolved them in favor of denying the motion to quash. When arriving at the third factor, however, the court did not engage in much, if any analysis. The court quoted a case cited in the motion to quash, and then proceeds to its conclusion:

To be clear, the Court certainly does not condone the use of this litigation, and any attendant threat of embarrassment, to coerce any defendant to settle. As noted above, the [court's prior order] requires plaintiff to ensure it has an adequate factual basis before seeking to file an Amended Complaint naming any proper defendant, and that the Court, by granting plaintiff’s request for expedited discovery, has not authorized plaintiff to rely solely on the subscriber’s association with the IP address to supply that basis.

It seemed like the court didn't give much thought to the final argument raised in the motion to quash, and so I went back to re-read from the beginning of the opinion, which is when it occurred to me that the motion had been filed pro se (i.e. by the John Doe defendant himself, rather than by an attorney). A bad idea.

Most attorneys (myself included) take cases like these on a fixed fee basis, usually for less than what the copyright trolls are offering to settle for. The attorneys on the plaintiffs' side know what they're doing. They're familiar with the process, having done it numerous times before, and they have their arguments, briefs, and motions already prepared and ready to file. On top of that, the statutory penalties for copyright infringement are obscene (no pun intended), up to $150,000 for willful infringement, plus attorney's fees. All of that adds up to a less than desirable situation for someone to attempt to represent themselves in court.

But I digress. Regardless of the fact that it's a bad idea to try to defend yourself in a copyright infringement lawsuit, I wonder whether the outcome would have been the same if the motion had been properly drafted and filed by an Internet law or copyright attorney. The bigger problem is this, however: This most recent decision appears to be one of the few that sides with the plaintiff–copyright trolls; it therefore could have a negative precedential effect on future motions to quash filed against copyright trolls. Fortunately, the court's decision is marked "not for publication," but seeing as how the New Jersey Law Journal wrote about it, and I found the decision at the U.S. Court's website in less than 60 seconds, I'm not confident that the decision won't have any lingering effect.

11917746183 Hammer Opinion Denying Mtq_malibu Media

My apologies for being offline for a few days. Of course I realize that I don't post here everyday, but (surprisingly) my inbox has been flooded with folks asking what happened to the blog. I also didn't want anyone to think that it was LexBlog's fault that we were down. Although there were some blogs that were down because of the massive power outages in the mid-Atlantic region—and this one may have been included with those—they fixed that problem over the weekend, and we just came back online today, probably because of a simple error of my own.

FYI several months ago, during the SOPA controversy, I discovered that all of my domains were registered through GoDaddy.com, which was purportedly a strong proponent of the controversial legislative proposal. Wanting to dissociate myself and my firm from that brand of politics, I opted to have all my domains transferred over to a company that I didn't have to be ashamed of.

I'm a big fan of EFF (Electronic Frontier Foundation). They do great work, valuable work, IMHO it's just as important as—if not more important than—the work the ACLU does. I followed their lead, and had all of my domains transferred over to gandi.net. In doing so, however, I unwittingly assumed certain responsibilities that were previously being handled by the good folks at LexBlog.

So the long story short is that recently this blog started getting a lot of comments posted by spammers, and I had some new mechanisms put in place to stop the spam. But after I did that, I forgot to have the DNS settings updated with the registrar.

I probably didn't need to tell you all this, but it gave me an opportunity to (a) take responsibility for a mistake that may have been blamed on my friends and colleagues at LexBlog; (b) remind people why they should avoid godaddy.com; and (c) tell everyone about gandi.net, and one of my favorite organizations—EFF.

See also: How to Jump Ship from GoDaddy to a Better Web Host and Registrar

Image credit: Adam Dachis, Lifehacker

UPDATE (2012-09-11): GoDaddy’s DNS Servers Go Down, Along With Thousands of Sites

See also: GoDaddy Got You Down? Here Are 5 Alternatives

I've been writing about this seemingly epic story since Ravi was indicted not because it's directly related to my sports or entertainment law practice, but because of how close the case is to my everday life—I have two degrees from Rutgers University, and all of the events unfolded within a few miles of where I live and work, not to mention that the trial took place one block from my office. In addition, the underlying issues in the case are of national importance because of their likely effect on constitutional law, criminal procedure, and the law as it pertains to social media; moreover, the principal crime with which Dharun was charged—invasion of privacy—is a typical scenario not only in my own law practice, but for all entertainment lawyers.

So why am I writing about it again? Because the state of New Jersey (i.e. prosecutor's office) is appealing the alleged leniency of Dharun's sentence. After the jury convicted Dharun of the majority of the charges, the prosecutor asked the court to sentence him to 5–7 years in prison (remember, the maximum sentence was 10 years) (read the state's sentencing memo here). But Judge Glenn Berman sentenced Dharun to just 30 days in county lockup, of which he only had to serve 20 days. Dharun's attorneys are also appealing, but they are appealing the entire conviction, based among other things, on the prosecutor's failure to disclose key defense evidence.

I've written about the appellate process a few times (see here & here) not only because it's something with which I have a lot of experience, but also, it's one of the most misunderstood aspects of our judicial process. This case presents a unique situation within the appellate process—the state's right to appeal. Typically, the state only appeals criminal cases when the judge throws out key evidence, which results in dismissal of the charges. Prosecutors can't appeal acquittals because of the Double Jeopardy Clause. With regard to sentencing, defendants routinely appeal their sentences as being too harsh, but prosecutors rarely (almost never) appeal sentences for being too lenient, the reason being that appellate courts don't usually overturn sentences, for either side. (NB: a recent exception.) This has to do with the appellate court's limited scope of review. For what it's worth, the scope of review in New Jersey is consistent with the federal standard, and the standards held by most states, as restated recently in State v. Blackmon, 202 N.J. 283 (2010).  

Sentenc[ing] is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done...In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are fully supported by the evidence. Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record.

Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the factfinder has applied correct legal principles in exercising its discretion.

What that means is that in every sentencing order, the judge must give a carefully reasoned analysis of the circumstances of the case, which he or she considered and relied upon in arriving at the sentence ordered. In Dharun's case, Judge Glenn Berman couldn't have been any clearer as to how and why he sentenced him to just 30 days (video clip includes sentencing hearing). Based on the thoroughness and lucidity of the judge's analysis, it seems highly unlikely that the Appellate Division would overturn Dharun's sentence. Anybody who says differently is either making noise, or just bitter.

Add to the equation the fact that Dharun has, now, already served his time, so sending him back to prison would essentially be like punishing him again for the same crime. Although I'm not aware of the Double Jeopardy Clause being asserted in the context of appeals of sentencing orders, I believe it could be used to Dharun's benefit in this case. Dharun had the option of waiting until his own appeal was decided before serving his term of incarceration, but he chose not to wait, and to get it over with now. Dharun said he wanted to go to jail so he could close this chapter in his life, but I wonder if he had help in arriving at his decision to turn himself in early. Given the dire consequences of the Appellate Division overturning Dharun's sentence—no matter how remote of that possibility—did Steven Altman and the rest of Dharun's legal team take the calculated risk of sending their client to jail so they could pull the rug out from under the prosecution's feet?

I'm writing this from my Chicago hotel room after just getting back from the final session at ABA TechShow® 2012, where I spent the past three days learning about, seeing, and trying the latest and greatest technology tools for practicing law. Ironically, despite the myriad gadgets and tech toys from literally all over the world, the best part of TechShow was the people. So many of us obsess over having the hippest gear, or the latest-generation iToy—we even justify the expense of it as an investment—and in doing so it's easy to lose sight of how important it is to invest in good-old-fashioned, personal relationships.

These past few days I've had the chance to talk one-on-one with folks whose books and blogs I read, whose apps I use, and with whom I tweet and email back-and-forth regularly, yet never met in person. For example, I spent time talking with Ben Schorr (@bschorr), who literally wrote the book on mastering the Microsoft Office suite in the practice of law. I talked with famed bloggers like Kevin O'Keefe (@kevinokeefe), Carolyn Elefant (@carolynelefant), and Tim Baran (@Tim_Baran). I also hung out with Mac gurus like Victor Medina (@victormedina), Ben Stevens (@themaclawyer), Ernie Svenson (@ernieattorney), and Randy Juip (@rajuip), iPad guru Tom Mighell (@TomMighell), and the original Mac Power User David Sparks a/k/a Mac Sparky. Dave also wrote the books Mac at Work and iPad at Work, which are like the Physician's Desk References to attorneys using Macs (I'd call them bibles but for fear of reprisal, especially right before Easter).

On the eve of TechShow, Matt Homann (@matthomann) of LexThink hosted a phenomenal forum in which each speaker had just 6 minutes to deliver their message about technology and the practice of law. There, I met Mark Britton (@mark_britton), CEO of Avvo.com, and Jay Shepherd (@jayshep), two incredibly dynamic speakers, both of whom are using their legal training to do great things outside the traditional practice of law. Despite how great Mark and Jay were, my personal favorite was Will Hornsby (@willhornsby), but I think that was because he mocked one of the silliest ethics rules still in effect, in New Jersey of all places.

Throughout the conference I was also speaking to guys like Brett Owens, founder and creator of Chrometa (@Chrometa), Deskspace Attorney's Nick Lightbody (@nicklightbody), and Ian O'Flaherty of Lit Software (@litsoftwareapps). Ian is the developer of one of my favorite legal tools in my arsenal—Trial Pad for iPad. I'm also anxious to try out his latest app—Transcript Pad. It's fascinating to interact with the people who actually create some of the tools I use, and to hear about how complicated it is to bring something like that to the marketplace. (Disclosure: I received a free copy of Trial Pad for purposes of writing a review.)

Although I'd met Ian before, it was great to reconnect with him, just like it was great to hang out with old friends like Andrea Cannavina a/k/a the Legal Typist, Brett Burney (@macsinlaw), Marc Matheny (@Indysoloesq), and Jack Newton (@jack_newton) and Gwynne Monahan (@econwriter5) from Clio. On Thursday night, the Clio crew threw a red-carpet bash at Chicago's Sushi Samba Rio, which was a virtual who's who in legal technology. (Disclosure: My firm uses Legal Typist's services, and I am a regular contributor to the Legal Connection eZine publication; my firm also uses Clio for practice management. I did not receive any benefit for writing this.)

So it's easy to say that I learned a lot about tech at TechShow, but thanks to these relationships, my takeaway from TechShow is so much more (human) than that. I wholly embrace technology in my life, both personal and professional. I believe that technology makes our lives richer—by increasing our efficiency, creating access to information, and enabling us to share things with friends and family we don't see often—but technology is not a substitute for human contact. Texting, tweeting, and Facebook-ing are all fantastic communication tools, but they can't replace handshakes, hugs, or sharing a beer.

Had Clementi not committed suicide but instead filed a criminal complaint against Ravi…what punishment would the state seek? Allowing public outrage/moral panic to dictate the policy behind criminal law is wrong.

After spending several days hearing snippets of the prosecution's case in State v. Ravi, I now have quite a bit more information about the case than I did when I wrote this post last April. Because I don't believe that the story is being accurately portrayed by mainstream media, I wanted to share some of the key points I've picked up on from listening to the testimony in the courtroom:

1. First of all, let me set the record straight—Dharun is not a homophobe. He's an extroverted and tech-savvy teenager, who could've either been the class clown or the class president when he attended West-Windsor Plainsboro High School North, which is in the somewhat affluent New Jersey suburb. Actually, he was co-captain of the school's Ultimate Frisbee team (I had to look this up, because I had no idea what it was).
2. Regardless of how tragic, Clementi's death was the result of a teen prank gone awry. Enough said.
3. The prosecution is using this case as a political statement, and this is also another example of prosecutors over-charging crimes. Although Dharun isn't charged with causing Clementi's death, by indicting him for hate crimes (N.J.S.A. § 2C:16-1) Dharun faces more prison time than if he'd committed manslaughter. The quote above is that of my friend and colleague Professor Doug Berman (@SLandP), who wrote those words way back in October 2010—six months before prosecutors upped the ante in the case against Dharun. (As far as I know, there's no relation between Doug and the presiding judge here, the Honorable Glenn Berman.)
4. Dharun has an amazing legal defense team. I personally witnessed attorney Steven Altman methodically dismantle the credibility of Lokesh Ojha—a key prosecution witness—Dharun's former friend, who helped him setup the webcam.
5. The prosecution would have a much weaker case if Dharun hadn't voluntarily spoken to police without his attorney present. This seems to be a recurring theme—why? Presumably, Dharun agreed to talk because he believed he'd committed no crime. 

The problem with giving a statement without your attorney present is that you don't know the law. You may say things that, while seemingly innocuous at the time, are later used against you, after prosecutors have had time to pour over your statement, hoping to find some scintilla of evidence they can use to get an indictment. Don't speak! As a friend of mine says all the time: Even a fish wouldn't get caught if he didn't open his mouth.

Almost every day a potential client calls me about a legal problem that started (or got much worse) because they didn't want to spend the money to hire an attorney. In most cases it ends up costing them a lot more to hire an attorney to clean up the mess that they created. What most people don't realize that they could actually save money if they hired or consulted with an attorney prior to making a potentially life-altering or financially significant decision.

Over the next couple weeks I will continue to watch the trial, but I'll probably wait until the end before posting on the topic again. In the meantime I'll try to share updates (and maybe pics) from the trial on Twitter (@njAtty). You also might want to follow Above the Law's Elie Mystal (@ElieNYC). I stumbled upon a number of Mystal's ABL blog posts that seem consistent with with my thoughts after watching parts of the trial (not mention incredibly witty/humerous): "Let's hope nobody you make fun of ever decides to kill themselves. Otherwise you might end up like Ravi."

Have you worked hard to develop and maintain a brand name or online presence for your business? Would you care if somebody used that brand to promote porn?

Tomorrow is the last day you can opt-out from having your business's name or mark being registered as a .xxx domain name — .xxx is the forthcoming top-level domain dedicated to the global adult entertainment industry.

For example, if you are the proud owner of the Hair Club for Men company, which has its website at www.hairclub.com, and you fail to opt-out of the .xxx domain, you leave the door open to someone else registering the name www.hairclub.xxx. Imagine the fun that they could have with that domain name! It costs only $300 to opt-out, and recovering your name after it's already registered could cost thousands (or worse, it may be unrecoverable).

For more information on opting out, refer to ICM Registry, the company responsible for bringing us the .xxx domain.

It looks like Apple is off the hook, at least for now. As an iPhone owner since the 3GS, and an avid Mac user for over a decade, I am satisfied that the iconic tech manufacturing giant is not up to anything nefarious or objectionable to the reasonable person. And I'm not the only educated person who feels this way. Attorney Jeff Richardson, publisher of iPhone J.D. said pretty much the same thing in his post. Richardson added the following bit of advice (which I've paraphrased): If you're really that concerned about the possibility of someone learning where you are or where you've been, you probably shouldn't even carry a cell phone, whether it be an iPhone or something else.

About a week after the NY Times broke the story about the iPhone recording and storing unencrypted GPS location data on users' phones (see my post here, or just scroll down a bit), Apple broke its silence, with an official statement by the company (read the 4/27/11 press release here), and shortly thereafter, Steven P. Jobs, Apple's CEO—who is currently on medical leave—addressed public outcry in an interview:

We haven’t been tracking anyone. The files they found on these phones, as we explained, it turned out were basically files we have built through anonymous, crowd-sourced information that we collect from the tens of millions of iPhones out there.

Jobs accepted (partial) responsibility for what he referred to as a lack of educating the public about how location data works, and specifically what user data is stored and transmitted. He says that he is "looking forward" to Apple's trip to Capitol Hill to testify at the mobile data privacy hearing called for by Sen. Al Franken (D-Minn.), Chairman of the Judiciary Subcommittee on Privacy, Technology & Law. The hearing is scheduled for one week from today. Jobs also said that we (the general public & the press) should now be looking to the other prominent mobile technology providers—whom he implied were far more culpable than Apple—to see how they react to the scrutiny on Apple. "Some of them don’t do what we do,” Jobs said. “That’s for sure.”

The file, which is called 'consolidated.db,' keeps track of GPS data on 3G-enabled Apple devices and regularly updates itself with a user’s location…Information that is stored on the phone is also sent to the iTunes application when a user syncs or backs up an iPhone or 3G iPad.

The two programmers who discovered the so-called software glitch have brought it to Apple's attention, however, Apple yet to respond. Nor did Apple respond to the NY Times's request for comment. One of the biggest questions that is unanswered right now is whether this issue is merely an unintended consequence of some other function in the iOS, or whether Apple knew exactly what it was doing when it planted a 24-hour tracking system into millions and millions of their popular mobile devices.

As if this bit of news weren't bad enough, earlier today CNN aired a piece about a high-tech mobile forensics device being used by Michigan state police, which can be used to extract information from smartphones belonging to motorists stopped for minor traffic violations. The device is so sophisticated that it's capable of extracting data from over 3000 types of phones, and can download the complete contents of an iPhone in under a minute-and-a-half, including all calls, texts, emails, websites visited, cookies, Google Maps and Google Earth data, and so on.

In most circumstances, police would not be able to get these kinds of data without a warrant, which requires the officer to show a judge probable cause. But there are many many exceptions to the warrant requirement; the most basic exception is—consent. If you consent to a search, you cannot later object to the search because the officer didn't have a warrant. You've already waived that right. So if you're pulled over in Michigan, or anywhere else for that matter, don't give your phone to an officer simply because he asks nicely. If he wants your phone badly enough he can arrest you.

A Middlesex County grand jury returned a 15-count indictment against nineteen-year-old Dharun Ravi, the former roommate of the Rutgers music student who committed suicide last September.

Ravi was already facing criminal invasion of privacy charges, for secretly recording his roommate, eighteen-year-old Tyler Clementi, having a homosexual encounter using a webcam. Ravi now faces additional charges of bias, three counts evidence tampering, and one count witness tampering, based on the prosecutor's allegations that Ravi purposely mislead investigators and witnesses throughout the investigation, and that he deleted an incriminating Twitter post.

Assuming that Ravi is a homophobe, which seems readily apparent, isn't it ironic—what's likely to happen to him if he's convicted? I haven't seen the actual indictment, so I can't determine whether any of the charges have mandatory prison sentences. If I do find a copy of the indictment, I'll post it here later, with comments.

If you've ever subscribed to Netflix, you're probably aware that they use your movie watching history to suggest other movies that you might like. Sounds pretty innocuous, right? But according to a lawsuit filed in the Northern District of California March 11th, Netflix also retains its subscribers' viewing histories indefinitely (even long after they've discontinued their subscriptions), and sells the data to third parties. As reported in the Privacy & Information Security Law Blog last week, the suit alleges that Netflix's actions violate the Video Privacy Protection Act of 1988, which Congress passed in the wake of public disclosure of Supreme Court nominee Robert Bork's video rental history.

Although the VSSP is very consumer friendly in terms of the breadth of conduct it prohibits, the plain text of the law says it applies to "video tape rentals," i.e. says nothing about DVDs, or downloaded/streaming movies. Since there is no case law (that I'm aware of) giving a broader construction to the term "video tape rentals," I would expect Netflix to file a motion to dismiss, which the court may grant. If the federal claim is dismissed, however, the case could continue anyway, based on additional claims that Netflix's practices violate the California Customer Records Act, and state unfair competition law.

This is not the first time that Netflix has been sued for these specific business practices. In January of this year, an identical suit was filed in the same California district court, and a previous class-action suit prompted an investigation by the Federal Trade Commission, which issued this letter to Netflix's outside counsel on March 12, 2010:

Netflix's intention to release a second data set one containing a richer portfolio of consumer information—raised serious concerns about the risk that Netflix's customers would be re-identified and associated with their potentially sensitive movie viewing histories and preferences. Due to advances in technology that allow for vast amounts of data to be collected, stored, accessed, and combined, [the FTC] encourages companies to be cautious when releasing data presumed to be 'anonymous' or 'not personally identifiable,' especially when those representations are made to consumers.

I spent the past few days in NYC, at LegalTech Show 2011, learning about much of the new technology that is impacting the practice of law, and the ways that that technology is changing the way we litigate cases. No surprise, the single biggest issue on the minds of judges and litigators alike was Facebook: The most provocative vignettes, as told by United States Magistrate Judges Andrew Peck and James Francis, of the Southern District of New York were about jurors discussing the facts of cases on their Facebook pages, a witness's expectation of privacy in something they posted to their page, but which was only intended to be seen by their "friends."

Presently, there isn't much law on this topic, but the general consensus—at least insofar as the federal bar was concerned—was to expect changes in the Federal Rules of Civil Procedure after the rules committee next convenes. Until then, if you're involved in any kind of lawsuit (or expect that you could be so involved), whether you're a business owner, public figure, or even the average Joe, you should think twice before posting any personal information to a social media site. This doesn't mean that you shouldn't use social media, just that you should (1) use your head and (2) not be so naïve as to believe that your worst adversary could never get his hands your posting(s), regardless of how private you might think they are at the time.

First Amendment proponents are applauding yesterday's NJ Supreme Court decision, which dealt an apparent blow to privacy advocates by holding that the fact that a conviction was expunged does not negate its truth for the purposes of using it as a defense to defamation. As I explained here, defamation claims are not common because they are difficult to win. There are four elements of the claim, and even if you can prove all four elements, the defendant can still escape liability by showing that the allegedly defamatory statements were true. In attorney-speak, we say: truth is a complete, or absolute defense to defamation. That sounds pretty straight-forward, right? After all, doesn't everyone know the difference between the truth and a lie? As more than one of our recent U.S. Presidents can attest, sometimes truth isn't so black and white.

Expungement is the process of sealing the record of a criminal conviction, usually for first-time offenders. Expungement is not a constitutional right; it's created by statute, under state law. In fact, I am aware of only about a dozen states that allow it. And in each state that does allow it, different rules and requirements apply. Also, each state treats the effect of an expungement differently. For example, some states, like Washington, treat an expungement as though the crime never occurred. If you get an expungement in Washington State, state law gives you the right to tell anyone that you were not convicted of the crime in question. Similarly, for most purposes, the state of Ohio treats an expunged conviction as though it never happened, however, in some limited circumstances, the record of conviction may be later accessed by courts or law enforcement. Needless to say, not every crime is eligible to expungement, and not every convict is entitled to one. Generally speaking, serious crimes, violent crimes, and sex crimes cannot be expunged.

In the case decided yesterday by the NJ Supreme Court, the plaintiff (known only as G.D.) sued former state senator Bernard Kenny and the Hudson County Democratic Organization for defamation, based on their printing of campaign flyers stating that the plaintiff was a convicted drug dealer. G.D. was in fact convicted of drug possession back in 1993, and he served about 8 months in prison out of a five-year sentence. But G.D.'s conviction was expunged in 2006.

Justice Barry T. Albin delivered the court's opinion:

The relief provided by the expungement statute, however, does not include the wholesale rewriting of history. A person convicted of a first-time crime may petition for expungement of all records and information” relating to the conviction after the passage of ten years from the date of the conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later. (quoting N.J.S.A. 2C:52-2(a)). A court order of expungement does not result in the destruction of criminal records.

For anyone keeping score, Justice Albin is a democrat (McGreevey appointee); he also happens to be a former criminal law attorney, past president of the New Jersey Association of Criminal Defense Lawyers, and served on the court's Criminal Practice Committee from 1987 to 1992. He continued to say that:

Common sense tells us that an arrest or conviction may become general knowledge within a community and that people will not banish from their memories stored knowledge even if they become aware of an expungement order. And long before the entry of an expungement order, information about an arrest and conviction may be compiled by data aggregators and disseminated to companies interested in conducting background checks.

Although the court's ruling isn't likely to impact criminal law much, if even at all, it will serve as one more potential hurdle that a plaintiff must clear to successfully make a case for defamation.

Download pdf of the NJ Supreme Court's decision in G.D. v. Kenny, et al., No. A-85-09 (Jan. 31, 2011).

In an apparent setback for Internet and email privacy, this decision by Cali- fornia's Third Appellate District Court held that an employee's work email was not protected by the attorney–client privilege. Holmes v. Petrovich Dev. Co., LLC (pdf). If there is any upside to this case, the court very clearly based its decision to allow the emails into evidence on the company's written policy, which explicitly stated that company email was not private. In other words, it is unknown whether the California court would have allowed the emails into evidence if the company did not have such a rigid privacy policy.

Last April, the U.S. Supreme Court held that a police officer had no expectation of privacy in personal text messages sent using the department's pager device. See City of Ontario, Cal. v. Quon (pdf). Coincidentally, this case also came out of California, and the Court based its decision, again, on the police department's clearly stated privacy policy.

By contrast, last March, the NJ Supreme Court held that an employee's personal emails were private, despite the fact that the employee accessed those emails from a company computer (e.g., logging into a gmail account from work).

Last month, the Sixth Circuit U.S. Court of Appeals held that email in general is protected by the Fourth Amendment, and that the government could not obtain it from a third-party ISP without a warrant.

Needless to say, the law(s) regarding privacy in everyone's email is very much in flux right now. To protect yourself as an employer, make sure that you have a clear and unambiguous policy con- cerning employee use of company computers, email servers, and even company time. Sometimes it's best to consult with a privacy law attorney to write, rewrite, or review your existing policy and the necessary steps of implementation. To protect yourself as an employee, make sure that you know what your employer's policy is regarding use of company computers, equipment, etc. This is one instance where what you don't know can come back to bite you later.

Thanks to attorney David Edelstein for sending me this Wired.com article.

fraudulent access
to a computer

Walker's attorney is accusing the Oakland County Prosecutor's Office of harassment, and is optimistic that his client will beat the charges. He says that the law, which prohibits the intentional and unauthorized access to computers, computer programs, systems & networks, was not intended to punish actions such as these. And he apparently has support from members of the Michigan state legislature.

State Rep. Tom McMillin told the Oakland Press that if prosecutors continued to pursue the charges against Walker, he would immediately introduce legislation to clarify that spouses and parents who read their children’s e-mails are exempted from the statute. McMillan also called the case harassment and a waste of taxpayers’ money. “After reviewing the state statute and the original bill, it is clear there was never an intention for this law to be used to go after spouses. Since it appears at least one prosecutor in the state can’t see that, I’ll introduce legislation early next year to clarify ... the obvious."

I haven't seen all the evidence, but from what's been reported thus far, I wouldn't expect a conviction. Even if he's acquitted or the charges are dismissed, however, Leon Walker will have still paid a large price for the Oakland County Prosecutor's lack of discretion. Prosecutors have a duty to serve their constituents, by protecting them from criminals. The American criminal justice system places a lot of discretion in prosecutors, because police refer a case to the prosecutor, it is ultimately the prosecutor's decision whether to file charges on behalf of the state. It seems from these facts that the Oakland County Prosecutor's Office abused the discretion, which is a disgrace to his office, and to our system of justice.

The domain name, p2p.com, was estimatedly valued at as much as $200,000 at the time that 23-year-old Daniel Goncalves hacked into the popular domain registrar goaddy.com, and then transferred its registration to his own GoDaddy account. Go Daddy records show that the same IP address was used to transfer the stolen domain as was used to log into Goncalves's Go Daddy account. After waiting 60 days from the date of the transfer, per ICANN (Internet Corporation for Assigned Names and Number) rules, Goncalves transferred the domain to another registrar, and ultimately sold it to Mark Madsen, a forward for the Los Angeles Clippers. Madsen had no idea that the domain was stolen. (Full story from newerseynewsroom.com.)

Although 5 years sounds like a long time to go to prison for stealing a "name," Goncalves's conduct in this case was particularly egregious (not to mention stupid). Before striking the plea deal with prosecutors, Goncalves was potentially facing 10 years in prison. What's even more incredible is the fact that Goncalves not only used (presumably) his own computer to complete the transaction, but that it took investigators 3 years to catch him!

Even though the domain was reportedly returned to its rightful owners (a "who is" search only revealed the current registrar, Moniker Online Services, Inc.), it appears that the domain/site remains dormant as of this date.

It's nearly 2011, and yet today's decision out of the U.S. Court of Appeals for the Sixth Circuit is the first of its kind to squarely address the issue of email privacy.

The case, U.S. v. Warshak, et al., involved the founder and former CEO of Berkeley Nutraceuticals, a Cincinnati company that ripped off consumers with its big blue pill Enzyte. Berkeley made a fortune by offering free samples of Enzyte in obnoxious TV ads, but then charging the unwitting customers' credit cards for subsequent automatic shipments  that the customers didn't order. A federal grand jury indicted Steven Warshak and his mother, Harriet, for 112 counts of conspiracy, fraud, money laundering, and other crimes relating to their sham supplement business. Much of the evidence used to convict Warshak were his own emails, which the government obtained from his Internet service provider NuVox (n/k/a Windstream), without a warrant.

In the decision, the Sixth Circuit held that individuals have a reasonable expectation of privacy in their emails, just as they do in their phone calls and ordinary mail, and that the government violated  Warshak's Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause (6th Cir. opinion pdf). But the court also ruled that the emails were nonetheless admissible, based on the agents' good faith reliance on pertinent sections of the Stored Communications Act.

Even though the court declined to throw the emails out, privacy advocates like Electronic Frontier Foundation (www.eff.org) are calling the decision a clear victory.