Courts, States remain Divided over Cell Phone Searches

The New York Times today reviewed the state of the law regarding the legality of law enforcement searches of cell phones without warrants today.

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

(…)“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.  A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.

Recently, in Rhode Island, in the case of State v. Patino, C.A. No. 10-1155, Rhode Island Superior Court Judge Judith C. Savage ruled that Michael Patino, a man accused of the 2009 killing of his girlfriend’s 6-year-old son, (1) had a reasonable expectation of privacy in his text messages and (2) that evidence from his cell phone was collected illegally, before police obtained search warrants.

The Court also ruled that because of the illegal search, almost all the evidence obtained by police – including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police – was tainted and could not be used at trial.

“Cell phones have replaced telephones. People send and receive billions of text messages to and from their cell phones daily. Text messaging, especially among young adults, has become an oft-employed substitute for face-to-face conversations, cell phone conversations, or email. Accordingly, this court finds that it is objectively reasonable for people to expect the contents of their electronic text messages to remain private.

Read the full opinion here.

Know the Facts about the Toyota Recall

Toyota has expanded the recall of several models of cars troubled by uncontrolled acceleration (see full list of recalls here).  The recall now includes 2.3 million vehicles including the popular Camry and Corolla models.

Bloomberg News reports that Toyota “faces lawsuits involving at least three deaths that allegedly link so-called sudden acceleration to other causes. Consumers also filed at least three class-action, or group, lawsuits, in November and another last week” in which they “blame the sudden acceleration on the vehicles’ electronic throttle-control system, known as the ETCS-Intelligent System.” Also, “plaintiffs’ lawyers claim that Toyota knew of the sudden acceleration problem for years before the November recall.”

The Wall Street Journal reports that attorneys across the country are hearing from Toyota owners regarding accidents, injuries, deaths or fears regarding their cars. Some are complaining of economic damages from a decline in their car’s resale value. Some experts say they expect Toyota to settle suits.

Meanwhile the USA Today reports that, “CTS, a global operation that supplies the pedals to Toyota (TM), isn’t even the top dog in the arcane world of accelerator pedal suppliers. It holds less than 20% of the global market for such assemblies.” But “all the Toyota vehicles in the pedal recall have CTS assemblies.”

Finally, the New York Times reports that Congress will begin investigating the Toyota recall and with the “involvement of the House Energy and Commerce Committee, Toyota faces the most publicized investigation in the industry since problems with Firestone tires on Ford Explorers and other vehicles early last decade.”

If you are have had been injured as a result of a stuck accelerator pedal in a recalled Toyota vehicle, contact a lawyer today.

Lawyer Advertising: Funny TV Ads

Three Ways Google can Help your Practice

RI Lawyer’s Weekly has a good story on the best ways to use Google tools to build your practice:

1) Google Wave

What it is: The hotly anticipated collaboration platform that allows users to share and edit documents, and upload pictures and videos remotely in a real-time format. For example, if you are looking to draft a complaint, you could upload it to a Wave (structured like a new Gmail message), allowing associates and clients to view or comment on it, rather than saving a new document each time. The Wave also allows real-time messaging.

(…)

2) Google Scholar

What it is: A free publication search tool featuring legal opinions. Users may search by case name, court, citation and topics.

(…)

3) Google Local Business

What it is: An add-on to the Google Maps feature that allows a small law firm or other business to upload a short blurb about its firm and coordinate contact information into a Google search. If a potential client wants a medical-malpractice attorney in Beverly, for example, he could search those terms and find information about your firm and other relevant ones.

(…)

AG Patrick Lynch Launches Campaign Website for Gubernatorial Campaign

Earlier this week, Rhode Island Attorney General Patrick Lynch launched a new campaign web site, www.lynch2010.com.

“I am committed to running a modern campaign and using the Internet to inform voters and to recruit and mobilize supporters and potential supporters,” Lynch said. “Most importantly, it’s a great resource for supporters and potential supporters to learn about me and my campaign. I hope everyone visits often.”

The new site solidifies his entrance into the race for Governor: a field that currently includes General Treasurer Frank Caprio (D) as well as former US Senator Lincoln Chafee (I) and perennial candidate Bob Healey (I).  Former Cranston Mayor Steve Laffey is also rumored to be building a campaign.  The newly formed Moderate Party is also expected to field a candidate.

One of the features of the new campaign website is a lengthy campaign video outlining Lynch’s message and his approach to the gubernatorial race:

How to Obtain Your FBI and Homeland Security File

Ever wonder whether if the FBI or the Department of Homeland Security keeps a file of you?

Here’s how to find out.

• FBI File – In order to get a copy of your Federal Bureau of Investigation file, click here to view instructions for filing a request (which must be notarized) pursuant to the Freedom of Information Act.  If the file is under 50 pages, there is no charge to send it to you.
• Your Homeland Security File : Since the Department of Homeland Security has files on many frequent international travelers, you may want to request a copy of your file.  Click here to find out how.

Using Twitter to Find Clients

LawyersUSA has an interesting story about how Twitter may be alluring but does it bring in more clients?

Lawyers who have caught the Twitter bug can wax poetic about how the micro-blogging site allows them to make new connections, increase their exposure, display their expertise to a wider audience, and even score speaking or writing gigs. However, for the most part, they are not getting new clients. But there are some success stories out there. …

You can follow me on Twitter here.

Providence Man Loses Jury Verdict in File Sharing / Music Downloading Case

In a case with national implications, Providence native and BU student Joel Tennenbaum has been ordered to pay $675,000 to four record labels for illegally downloading and sharing music.  The jury trial in Boston – the nation’s second music-sharing lawsuit to go to trial – was only focused on damages since Tennenbaum admitted that he downloaded and shared hundreds of songs by Nirvana, Green Day, The Smashing Pumpkins and other artists.  Here’s more from the Associated Press, via the Providence Journal:

Under federal law, the recording companies were entitled to $750 to $30,000 per infringement. But the law allows as much as $150,000 per track if the jury finds the infringements were willful. The maximum jurors could have awarded in Tenenbaum’s case was $4.5 million. …Last month, a federal jury in Minneapolis ruled a Minnesota woman must pay nearly $2 million for copyright infringement.A lawyer for a Boston University student who admitted illegally downloading and sharing music urged a federal jury Friday to “send a message” to the music industry by awarding only minimal damages. The jury began deliberating the case Friday afternoon.

After Tenenbaum, 25, admitted Thursday he is liable for damages for 30 songs at issue in the case, U.S. District Judge Nancy Gertner ruled that the jury must consider only whether his copyright infringement was willful and how much in damages to award four recording labels that sued him over the illegal file-sharing.  In his closing statement Friday, Tenenbaum’s lawyer, Harvard Law School professor Charles Nesson, repeatedly referred to Tenenbaum as a “kid” and asked the jury to award only a small amount to the recording companies. At one point, Nesson suggested the damages should be as little as 99 cents per song, roughly the same amount Tenenbaum would have to pay if he legally purchased the music online.

“This is a federal case, and what is it about?” he said. “It’s about a kid in his bedroom clicking on a computer screen. It seems out of proportion.”  But Tim Reynolds, a lawyer for the recording labels, recounted Tenenbaum’s history of file-sharing from 1999 to 2007. Tenenbaum admitted on the witness stand that he had downloaded and shared more than 800 songs.  “The defendant is a hard-core, habitual, long-term infringer who knew what he was doing was wrong, but did it anyway,” Reynolds told the jury.

And more:

Under federal law, the recording companies were entitled to $750 to $30,000 per infringement. But the law allows as much as $150,000 per track if the jury finds the infringements were willful. The maximum jurors could have awarded in Tenenbaum’s case was $4.5 million.

Jurors ordered Tenenbaum to pay $22,500 for each incident of copyright infringement, effectively finding that his actions were willful. The attorney for the 25-year-old student had asked the jury earlier Friday to “send a message” to the music industry by awarding only minimal damages.

Tenenbaum said he was thankful that the case wasn’t in the millions and contrasted the significance of his fine with the maximum.

“That to me sends a message of ‘We considered your side with some legitimacy,’” he said. “$4.5 million would have been, ‘We don’t buy it at all.’”

He added he will file for bankruptcy if the verdict stands.

The verdict seems extremely excessive to me.  It’s like punishing someone speeding on a highway with a ticket for $5,000 when everyone else is speeding too.

Massachusetts Bar is now on Twitter

The Massachusetts Bar Association is now on Twitter.  Click here to get up-to-date information on MBA CLE programs and conferences, legislative activities and events. In addition, the MBA will post daily legal headlines and published e-Journal and Lawyers Journal articles.

RI ACLU Challenges Family Court Order Restricting Free Speech Rights on the Internet

In a case raising important issues of freedom of speech on the Internet, the Rhode Island ACLU has intervened in Family Court on behalf of a Barrington woman who has been barred by the Court from posting on the Internet any details about a pending Family Court custody proceeding in which her brother is involved. In a motion filed with the Court, RI ACLU volunteer attorney H. Jefferson Melish calls the ban a violation of Michelle Langlois’ First Amendment rights. The motion also argues that the Family Court had no jurisdiction to issue the order because the proceeding was filed in Kent County, even though neither party lives in that county.

Ms. Langlois’ brother is involved in a child custody case with his ex-wife. After Ms. Langlois posted information about the case on her Facebook page, the ex-wife filed a “domestic abuse” petition against her, claiming that Ms. Langlois’ postings constituted “harassment.” The ex-wife’s petition sought a court order barring Ms. Langlois from posting any information about the case on the Internet. In late June, Family Court Judge Michael Forte issued such an order. When Langlois contacted the ACLU about the matter, the ACLU agreed to provide her representation to challenge the constitutionality of the Internet restriction.

RI ACLU executive director Steven Brown said today: “The court order issued in this case is a significant intrusion on the First Amendment. Every person has the right to comment on public court proceedings, and the court order that prevents Ms. Langlois from doing so on the Internet is precisely the sort of prior restraint on speech that the First Amendment was designed to protect against. Ms. Langlois should no more be barred from speaking out about this case than should a reporter seeking to post information about it on a newspaper web site. We are hopeful that this troubling order will be dismissed.” Michelle Langlois added: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”

A court hearing on the ACLU’s motion to dismiss the petition is scheduled for July 29th at 11 AM in Kent County Family Court.

WRNI on New Media and Politics

Ian Donnis interviewed me for his lengthy feature on new media and politics.  The story also features freshman State Representative Chris Fierro and Barack Obama’s state coordinator, Rep. Ray Sullivan.   Click here to check it out.

The social messaging service Twitter has figured prominently during recent unrest in Iran. Activists have used short Twitter messages to share information about protests and to counter the government’s official statements. Closer to home, Twitter, YouTube, Facebook, and other forms of new media are also remaking American politics. But can they bring change to the tradition-bound Rhode Island state house? WRNI political reporter Ian Donnis describes the outlook.

NC Judge Reprimanded for Facebooking with Counsel During Trial

Continuing our “Courts Meet the 2.0 World” series (see here and here), a North Carolina Judge was recently publicly reprimanded by the state’s Judicial Standards Commission for “friending” defense counsel in a case before him and then (obliquely) discussing the case via posts on Facebook.  The Commission correctly noted that these posts were ex-parte communications that were prohibited by the Judicial Code of Conduct.  Here is an excerpt from the Commission’s finding of facts in this child custody case:

On or about the evening of September 10, 2008, Judge Terry checked Schieck’s “Facebook” account and saw where Schieck had posted “how do I prove a negative”.  Judge Terry posted on his “Facebook” account, he had “two good parents to choose from” and “Terry feels that he will be back in court” referring to the case not being settled. Schieck then posted on his “Facebook” account, “I have a wise Judge”.

…On or about September 11, 2008, Judge Terry wrote on his “Facebook” account, “he was in his last day of trial”. Schieck then wrote “I hope I’m in my last day of trial.” Judge Terry responded stating “you are in your last day of trial”.

Rhode Island Superior Court Addresses Juror Tweeting

As we have previously written, juror use of new technological tools like Twitter, Facebook and Google have been causing havoc in courtrooms around the country.  Kudos to Superior Court presiding Judge Joseph Rodgers for issuing a new policy that addresses this issue.

Judge Joseph F. Rodgers Jr. can rattle off what he’s told jurors at the end of a day of testimony for the last three decades.

Don’t discuss the trial. Or form any opinions. Or read, listen to or watch the news.

One day, Rodgers, Superior Court presiding justice, looked around and realized things were changing. Judges elsewhere were declaring mistrials over jurors conducting Google searches, updating Facebook, and using something called Twitter in courts from Philadelphia to England.

“The fact is young people now, because of their training, their lifestyle, they’re much more intelligent than we old folks are in terms of accessibility and what info can be retrieved instantaneously,” he said. “That does present a serious problem.”

Until now, Rhode Island took jurors at their word that they wouldn’t talk about the case or conduct outside research. But on May 4, Rodgers handed out a revised juror policy to Superior Court judges, one that puts the emphasis on technology and eliminates some of the wiggle room left before by the technology gap.

Ethics, Law and Facebook

More fascinating news from the world of social networking and the credibility of witnesses.  From the ABA Journal:

A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.

Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.

Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,” the opinion explains.

“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”

Facebook and MySpace profiles are different from public spaces where one can freely film and record others, the opinion says, because an invitation is required to access them, notes a Social Media Today post on the opinion.

Plaintiff’s attorneys should be careful to review their client’s social networking information as early as they can.

What Works for Lawfirm Websites

In the current issue of the ABA Journal, there is an interesting look at what works for lawfirm websites:

Websites have become the shingles, business cards and phone-book ads of modern lawyering.

Even law firms that don’t expect much interest from the Internet crowd are being pressed to put up some sort of site, including one called “the world’s worst” by its Aussie firm owners.

But what makes a good website? In many ways, it depends on what the site owners want it to do.

We asked several experts in Internet presence to recommend websites they feel work well within certain categories. Their choices are meant to be exemplary, not exhaustive.

Here’s what our panelists recommend:

Branding, Burkey Belser

Solo, Susan Cartier Liebel

Innovation, Tom Mighell

Virtuality, Richard Granat

All Business, Neil J. Squillante

Youth Appeal, Rex Gradeless