Glenn Garvin Hat Trick!

It's long overdue, but the Herald has finally let go of all its reporters and editors and decided to just let Glenn Garvin handle everything.

Today Garvin has no less than THREE blockbuster articles in a paper that typically has no more than five to seven articles total on a Tuesday.

So let's discuss them in declining levels of quality:

First, Garvin has a fairly obvious "fish-in-barrel" opinion piece about Crist's various flip-flops.

Ok, so far so average.

Second, Garvin pens a front-page "adds-nothing" thumbsucker on Rico Suave Sanchez and his recent Jon Stewart/Jews-control-the-media rant, which is notable only for this bon mot:

Sanchez was born in Cuba and grew up in Hialeah. His scorching intensity and classic Latin good looks, familiar on South Florida's streets but not yet on its television screens, made him an instant sensation when he debuted on WSVN-Fox 7 in 1982.

"Scorching intensity"?  "Classic Latin good looks"?

Is Garvin writing about Rick Sanchez or Antonio Banderas?

Finally, Garvin's true 60s-drenched culture warrior comes out in his hatchet job take-down of the new Daniel Ellsberg documentary, which Garvin describes as "oversimplified, one-sided and hagiographic."

Project much?

But here's the money quote:

[I]n the case of the 1960s and the Vietnam War, the commanding heights of journalism and academia are held by baby boomer leftists who go largely unchallenged as they reshape history into political mythology.

You know, I couldn't agree more.

In fact, when I was in college I encountered a countercultural visionary, a professor brave enough to challenge the prevailing elitist blame-America-first mentality of these "baby boomer leftists" occupying the "commanding heights" of academia.

Quietly, firmly, and yet with modest conviction, this man used impeccable logic and piercing wit to thoroughly discredit the Vietnam "political mythology" they spoon feed us in our schools.

And for that, I say, thank you Professor Turguson!

Judge King Holds Bank Arbitration Provision Unconscionable.

Judge King Arbitration Ruling

It's been a while since I Scribd anything, and my trigger finger is getting itchy (that's what I'm calling it nowadays), so enjoy this order from Judge King in the checking overdraft MDL holding a bank arbitration provision unconscionable both procedurally and substantively.

(The bank has taken an appeal to the 11th btw -- any guesses on how that will make the Judge feel?)

David O. Markus Elected King of Jamaica!

 Well, not quite but pretty close:

Famous legal trials have produced some unlikely partnerships: Clarence Darrow and John Scopes, Johnnie Cochran and O. J. Simpson.

Add Buju Banton and David Oscar Markus to that mix.

Hmm, I'm not sure which pairing is more intriguing -- Scopes, OJ, and Banton, or Darrow, Cochran and Markus?

Actually, Darrow Cochran & Markus LLP -- that has a really nice ring to it!

In other news, the NYT weighs in on the Supreme Court's preemption-heavy docket:

In four cases, the court will address an obscure but significant debate on federal pre-emption of state law. The pro-pre-emption view is often pro-business, because it interferes with state efforts to protect citizens against corporate misconduct. Pre-emption can also protect against state interference with the national economy.

In AT&T Mobility v. Concepcion, the cellphone provider claims that California contract law has been used to frustrate the Federal Arbitration Act. If the company wins, it will likely force unhappy customers to rely on an arbitrator to resolve their differences with the company. If the respondents win, they will likely be able to bring AT&T Mobility to court — to answer accusations of fraud for promising “free” phones, then charging for the tax on their retail value. That would be good for consumers. 

 It's interesting how this year the preemption doctrine -- normally a obscure battle between big business and consumers -- is entwined with heavy duty political overtones, as two different federal courts have used the doctrine in opposite ways  --  one employing "states' rights" to invalidate the Defense of Marriage Act; and the other finding the AZ immigration law to be preempted by federal statutes.

Oh yeah -- happy Monday!

The Heart-Pounding Excitement of Being A Civil Litigator!

A lot of people ask me what being a civil litigator is like.

Do we "put criminals away"?

Do we "free wrongly accused innocents"?

Do we battle massive corporate wrongdoing in decisive courtroom confrontations, ala Erin Brockovich or A Civil Action?

Well I happened upon the perfect quote that encapsulates the majesty, the wonder, the excitement, and the just-plain sheer awe of being a corporate litigator:

"We went ahead and voluntarily produced documents that we thought were relevant,'' he said. "We filed a motion to modify our production, and we produced [documents] within those parameters.''

"We produced documents within those parameters."

 

You know, I get shivers up my spine every time I read that.

 

Thank you, Jeff Tew!

Law Updates for September 24, 2010

J.M.P., 35 FLW 2072, 4th DCA, error to deny juvenile JOA for dismissal of the charge, which was based on juvenile bringing a BB gun to school, where the state failed to present evidence that the BB gun at issue fit within the parameters of the statute which juvenile was charged with violating, 790.115(2).


The Law Offices of Roger P. Foley,P.A.

Criminal Defense Attorney | Feds on Facebook | Social Networking and Law Enforcement Tactics

W.F. "Casey" Ebsary, Jr.

Tampa Criminal Defense Expert, W.F. ''Casey'' Ebsary, Jr., has suspected that cops use "fake identities" to "trick" users into accepting a government official as friend or otherwise provide information to the government. We believed that the feds watch Facebook, MySpace, Twitter, Flickr and other online social media and use the information for investigative (criminal or otherwise) or data gathering purposes.

A recent public records request by the EFF sought more information including:

Guides, manuals, policy statements, memoranda, presentations, or other materials explaining how government agents should collect information on social networking websites: how or when government agents may collect information through social networking websites; procedures government agents must follow to collect information through social networking websites; agreements with social-networking companies: using any visualization programs, data analysis programs or tools used to analyze data gathered from social networks; purchase orders for any visualization programs,data analysis programs or tools used to analyze data gathered from social networks; describing how information collected from social-networking websites is retained in government databases or shared with other government agencies.

How to be a Fed on Facebook

Prosecutor's Obtaining Evidence From Social Networks
Training Materials

The feds produced a 33 page record. We just took a look at it and it appears to be a training program. The document was titled, "Obtaining and Using Evidence Social Networking Sites from Facebook, MySpace, Linkedin, and More." It was authored by John Lynch, Deputy Chief, Computer Crime and Jenny Ellickson, Trial Attorney of the  Computer Crime and Intellectual Property Section.

The outline covered an Introduction to Social Networking Sites and an Overview of Key Social Networking Sites. Not suprisingly, buried in the training materials is the question: Why go undercover on Facebook, MySpace, etc? The answer in short succinct bullet points was to "Communicate with suspects / targets" and "Gain access to non-public info" and to "Map social relationships/networks." The training session begins:  "Most social-networking sites allow users to:

•    Create personal profiles
•    Write status updates or blog entries
•    Post photographs, videos, and audio clips
•    Send and receive private messages
•    Link to the pages of others (i.e., “friends”)"

How can Law Enforcement Obtain data from these sites?

•    Some info may be public
•    Use ECPA to get info from providers
•    Undercover operations "

The ECPA is the Electronic Communications Privacy Act (ECPA) and it sets out the provisions for access, use, disclosure, interception and privacy protections of electronic communications. The feds use this information to:

•  Reveal personal communications
•  Establish motives and personal relationships
•  Provide location information
•  Prove and disprove alibis
•  Establish crime or criminal enterprise

How do the Feds get information from Facebook?

Since the Facebook Data is organized by user ID or group ID they use these resources: Data productions using the Fed's Law Enforcement Guide includes Neoprint, Photoprint, User Contact Info, Group Contact Info, and IP Logs. The feds noted that "Facebook has other data available." and that Facebook is "Often cooperative with emergency requests." That means that the feds can claim urgency and shourtcut the time frames that are usually present when legal production of this information is sought.

What do the Feds Think about MySpace?

The feds noted that MySpace is owned by Fox Interactive Media and was the most popular Social Network; was passed by Facebook in 2008; True names are less encouraged than Facebook. Feds are noting there is Messaging through messages, chat, friend updates. MySpace has a Young user base,has a history of child safety concerns, and Privacy is currently less granular than Facebook. Cybercrime defense attorney notes that Granular Privacy Controls in social networks allow authorization profiles - the user gets to decide what data to show to other friends in the network. 

How do the Feds Get Info From MySpace?

The Feds know that many profiles have public content and thatData is organized by Friend ID. Notably, MySpace requires a search warrant for private messages or bulletins that are less than 181 days old. MySpace considers friend lists to be stored content and there are fixed Data retention times for User information and stored files. MySpace retains IP logs indefinitely and information for deleted accounts is kept for a year.

What the Feds believe about Twitter?

Twitter is the market leader in “micro-blogging.” Most Twitter multimedia is handled by 3d party links. Twitter allows both public or private updates. On Twitter Direct messages are private and the sender can delete these messages. the feds noted that short URLs used to serve malicious links and code.

How do the Feds Get Information from Twitter?

The good news for the Feds is that Most Twitter content is public and Private messages are kept until the user deletes them.

The bad news for the Feds is that Twitter only retains the first login IP, there is no user contact phone number, Twitter Will not preserve data without legal process, and Twitter has a stated policy of producing data only in response to legal process.

The Feds frequently use a 2702 request to short cut Search Warrant requirements. On the other hand, as of 2010, Yahoo has the following policy on 2702 requests from cybercrime investigators:

"Under 18 U.S.C. §§ 2702(b)(7) and 2702(c)(4) Yahoo! is permitted, but not required, to voluntarily disclose information, including contents of communications and customer records, to a federal, state, or local governmentalentity if Yahoo! believes in good faith that an emergency involving imminent danger of death or serious physical injury to any person requires such disclosure without delay."

What about LinkedIn?

The feds use LinkedIn to identify experts and check the background of defense experts. The Privacy model is similar to Facebook and Profile information is not checked for reliability.

Federated Identity Issues Concern the Feds

The Feds note an upsurge in federated identity schemes. Social networking sites are increasingly adopting federated identity schemes such as OpenID, Facebook Connect. They write of concerns that Facebook, MySpace, Yahoo!, and Google authenticate identity and signin across platforms.

They give the following Example: A user can log in to a Facebook account using Google credentials. After a link is established between two accounts, Google will check and vouch for identity of its user. Authentication information split from activity information. In turn, a Facebook login may be used to authenticate.

The feds note that "If attribution is necessary, must determine identity provider - not simply the domain."

Terms of Service TOS and Privacy Policies

The Federal Agent Training materials we reviewed after the EFF Freedom of Information Act FOIA Request noted that Social networks have extensive terms of service and privacy policies, most permit emergency disclosures to Law Enforcement. All specify exceptions to respond to legal process and protect service against fraud/damage

U.S. v. Drew addressed the failure to follow TOS and whether access to a network was unauthorized under 1030? Drew addresses whether allowing a violation of a website's Terms of Service to constitute an intentional access of a computer without authorization or exceeding authorization would "result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals."

Criminal Penalties for Law Enforcement Officers for Violating the Privacy Protection Act

The feds also are concerned about the growth of social networks and the questions it raises about the breadth of the PPA. This author notes that the Privacy Protection Act provides for criminal penalties against federal officials who willfully disclose a record in violation of the Act, 5 U.S.C. § 552a(i)(1).

Bob Ratiner Suspended For 60 Days Over Deposition "Laptop Incident."

Please please please someone forward the three-minute video:

Even though the suspension term imposed is not one that would require respondent to prove rehabilitation prior to reinstatement, we must emphasize that respondent’s behavior during the laptop incident was unacceptable and unbecoming of any member of the Bar, especially one who has been a practicing attorney for more than nineteen years. In recognition of this, we determine that the sanction of a suspension should be coupled with a public reprimand and should be followed by a two-year period of probation. During the probationary period, respondent shall be required to undergo mental health counseling and prepare and mail letters of apology to the deponent, the court reporters, and the videographer present during the May 2007 deposition at issue. Further, during the probationary period, he shall be accompanied by co-counsel approved by the Bar during any depositions and other legal proceedings where a judge is not presiding or, alternatively, he shall ensure that such appearances or proceedings are video-recorded.

It's interesting that the letters of apology -- just like Rosh Hashanah btw! -- do not include opposing counsel, the apparent subject of the alleged tirade.

I know somebody has this video.