Today is National Voter Registration Day. What a perfect occasion to view the Harris County Attorney’s Office recorded program, Voter Registration CLE and Voter Registration Training, which was presented on August 31, 2018 at the HCAO Conference Center. Texas attorneys can earn 1.0 hour of CLE credit and .25 hour of ethics credit for viewing the video.
Legal Tech Institute Vendor Visit - Lexis Advance - FREE CLE
Register today for a Legal Tech Institute Vendor Visit on Wednesday, September 26, 2018. Program will cover legal research techniques using Lexis Advance, a powerful legal research platform available for free at the Harris County Law Library. This Vendor Visit will carry 1.0 hour of CLE credit for Texas attorneys. The session is conveniently scheduled during the lunch hour, from noon to 1 p.m.
All of the databases covered during training sessions are accessible for free on the Law Library’s legal research computers, which are open to the public. Visit Our Services page for more information about the digital resources available for your legal research needs.
For additional details about other upcoming LTI programs and events, please visit us online at www.harriscountylawlibrary.org/tech
Facial Recognition, Biometrics, and the Law in Texas
Starting in December of last year, social media was full of more selfies than usual. That's when the Google Arts and Culture app launched its image-matching feature. Here's how it works. A user opens the app, finds the "Is My Portrait in a Museum?" prompt, and snaps a selfie with her camera. The image is uploaded into the Google cloud which then works its Google magic to find her doppelganger in a vast collection of digitized paintings culled from museums throughout the world. All of this sounds like a fun and harmless diversion, and, indeed, the app's sudden rise to the top of the charts attests to it widespread popularity. However, some worry that the app is inherently risky, and they question how Google will use the data it collects. In other words, the app is free, but at what cost to the user. In some jurisdictions, including Texas (and Illinois), biometric privacy protections are codified into the law in attempt to address exactly these concerns.
The use of facial recognition data for identification purposes is expressly prohibited in the Texas Business & Commerce Code, Section 503.001 unless certain requirements are met. Namely, the person or company who collects the biometric data must (1) inform the individual before capturing the biometric identifier and (2) receive the individual's consent. The Google Arts and Culture app does indeed prompt the user to accept the privacy agreement and states that Google "will only store your photo for the time it takes to search for matches." Nevertheless, Google has blocked the selfie-matching feature in Texas (and Illinois) fearing, presumably, the imposition of a $25,000 fine per violation of the Texas law.
It's been suggested that this denial of service may be Google's way of signaling to states who restrict the use of certain technologies that they won't be able share in all the benefits that tech companies have to offer. Perhaps it's a snub to those who won't cooperate with the tech giants by permitting the legal collection and use of biometric data. In any case, concerns about the collection of facial geometry data by Google, Facebook, Amazon, and others are very real, and although no federal laws yet exist to prohibit the use and retention of such data, this area of the law is sure to develop as the technology advances. Until then, there are ways to circumvent the Google restrictions in Texas and to find your look-alike in the art of the world. Have fun...if you dare!
Further reading:
Torn from the Headlines -- How Tech is Changing Law
In recent weeks, stories about tech in the practice of law have been filling our news feeds. Our last Tech Tuesday blog post focused on high profile failures and flubs. Today's stories reveal more productive uses of technology while demonstrating how the everyday online communication tools we now use are transforming the practice of law.
Lawyers are employing technology in novel ways to serve process and consult with colleagues. As described below, the authorities that govern these developments -- legislation, court rules, case law, and ethics opinions -- are (slowly) evolving as well. Twitter and Facebook are at center stage in these new approaches, as is digital communication itself. From the social media tools we use to the new literacy we've developed (e.g., abbreviations, emoticons, emoji, Bitmoji, stickers, memes, and more), tech is changing the law.
DNC Serves Subpoena on Wikileaks via Twitter
Earlier this month, a law firm representing the Democratic National Convention used Twitter to serve legal documents on WikiLeaks, an international nonprofit organization that facilitates the release of classified information, obtained from anonymous sources, via its website. Aside from the high profile parties to the case and the controversial claims it makes, the newsworthy aspect of this story, particularly for those in the legal field, is that the subpoena was served with a tweet. According to the Federal Rules of Civil Procedure, a court may serve an individual in another country through a number of channels, and although service by social media is not addressed specifically, Rule 4(f)(3) does allow for service "by other means not prohibited by international agreement, as the court orders." The Texas Rules of Civil Procedure include a similar provision. Rule 106(b)(2) states that a court may authorize service "in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."
This may be a first for Twitter, but Facebook has been used a number of times to legally notify a hard-to-locate party. In a 2015 New York divorce case, a woman was permitted to serve her estranged husband through Facebook. A New Jersey court relied on that decision to allow the same method of legal notice in a similar case later that year.
Routine use of social media as an alternative method of service is still a topic of debate, but plenty of digital ink has been spilled discussing its benefits and risks. In 2013, a bill was introduced in the Texas legislature to allow substituted service through social media websites, but the bill was never referred to a committee, and the topic hasn't been addressed since.
Texas Lawyers May Seek Input from Colleagues via Facebook
Just weeks ago, the State Bar of Texas Professional Ethics Committee considered this question: Can lawyers use social media to seek advice from other attorneys without violating the Texas Disciplinary Rules of Professional Conduct? According to the Committee, the answer is a qualified Yes. Attorneys may consult with their lawyer colleagues and seek their professional advice regarding client-related issues in online forums if and only if they honor their duty of confidentiality and respect the attorney-client privilege. The best source for further exploration of this topic is, of course, the opinion itself along with this report from the Texas Lawyer which provides an excellent overview of the State Bar's newly sanctioned activity.
Federal Court Uses Poop Emoji in a Published Opinion
The Seventh Circuit Court of Appeals recently published an opinion that included the poop emoji. There's almost nothing worthwhile to say about its appearance in this opinion except to recognize it as a historic first. To be fair, the poop emoji appeared as part of a quote from a message shared via Facebook. It was submitted as evidence in an employment discrimination case that ultimately hinged on the content of the quoted message. As it turns out, the use of emoji in employment suits has been discussed before. Legal scholars have also weighed in about emoji and the law and emoji as evidence, topics which are explored in the articles linked below.
- Emoji as Language and Their Place Outside American Copyright Law (NYU Journal of Property & Entertainment Law)
- The Emoji Factor: Humanizing the Emerging Law of Digital Speech (Tennessee Law Review)
- Your Clients Use of Emoji: It Matters (Ingham County Bar Association BRIEFS)
Torn from the Headlines -- Tech Flubs in the News
In recent months, stories about the use -- or misuse -- of technology have been filling social media news feeds. Some of these flubs, committed by those unfamiliar with basic technology, have caused great embarrassment; public ridicule by news media, Twitter trolls, and Facebook users has not been the worst outcome, however, as the examples here will show. These cautionary tales about the importance of developing basic tech competency reinforce the growing imperative for lawyers to stay current in tech.
Paul Manafort’s Trail of Converted Documents
In an attempt to misrepresent the profits and losses of his company, President Trump's former campaign manager, Paul Manafort, allegedly emailed falsified financial documents to his assistant, Rick Gates, thereby creating an incriminating paper trail that resulted in Mr. Manafort's indictment on February 22, 2018. Details of his document-doctoring efforts and his motivation for manipulating his company’s earnings have been covered extensively in any number of news publications, but the important takeaway for those of us in the real world is this: knowing the benefits and risks of using technology is a must. Mr. Manafort's lack of sophistication in using basic tech undoubtedly contributed to his legal trouble because he himself unwittingly preserved the digital evidence of his alleged crimes. Specific proof that he and Mr. Gates falsified financial documents is noted in the indictment as follows:
“Manafort emailed Gates a .pdf version of the real 2016 DMI P&L, which showed a loss of more than $600,000. Gates converted that .pdf into a “Word” document so that it could be edited, which Gates sent back to Manafort. Manafort altered that “Word” document by adding more than $3.5 million in income. He then sent this falsified P&L to Gates and asked that the “Word” document be converted back to a .pdf, which Gates did and returned to Manafort. Manafort then sent the falsified 2016 DMI P&L .pdf to Lender D.”
Kris Kobach’s Metadata Oversight
Kansas Secretary of State, Kris Kobach, has built his reputation on ferreting out fraud at the polls and toughening voter ID laws. The enhanced voter ID laws that Kobach promotes as the solution to voter fraud deny new Kansans the right to vote unless they can produce citizenship documents. The ACLU, describing the ID requirement as arbitrary and discriminatory, brought an action against the law that Kobach is now fighting in court. In the resulting trial, Kobach filed in federal court a document in which he forgot to delete his office’s editorial note (saying that a particular argument was “PROBABLY NOT WORTH ARGUING”) and failed to provide a citation for a separate argument. (See p. 62 of the document here.) A revised version of the document was subsequently submitted but not before several news outlets picked up the story of his blunder. The key takeaway here? Be sure to review your work carefully before filing it in court. If you need to inspect your document before sharing it with another party, use the Microsoft Word Document Inspector, which allows you to strip your documents of any hidden metadata.
Broward County’s Redaction Error
Following the tragic shooting at Marjory Stoneman Douglas High School in Broward County, Florida on February 14, 2018, the Broward public school system commissioned a report to investigate the therapeutic services provided by the school district for the shooter, Nikolas Cruz. Broward County Circuit Judge Elizabeth Scherer ordered that the report be released to the public. To protect the shooter’s privacy rights, nearly two-thirds of the content was to be redacted. However, the district failed to use a proper redaction method, allowing a more savvy user to cut and paste the text into another document. The “redacted” text was made visible, revealing a detailed account of the actions taken by the school district to provide services for Nikolas Cruz. Specific information about what emerged from the report is available here. Using proper redaction software such as Adobe Pro or Nitro or any number of other redaction programs is a more effective and reliable way to ensure that the sensitive data contained in your documents is protected.
These are just a few examples of how technology errors can have serious repercussions. Visit the blog again tomorrow for an additional tech flub, again committed by Paul Manafort, that illustrates the importance of protecting the confidential data you store and share on the cloud.