Secretly Recording Public Officials: Challenges to the Massachusetts Wiretap Act

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by Ryan E. Ferch

Legal Analysis

The proliferation of electronic recording devices and media sharing platforms has drastically changed our daily interactions and views about privacy. Perhaps nowhere is this effect more apparent than in civilians’ recordings of public officials, in particular, law enforcement officers. The publication of these recordings raises profound issues about racial and ethnic disparities and public accountability, the effectiveness of police training and community policing strategies, the risk of violence law enforcement officers face in the performance of their duties, and society’s treatment of the mentally ill, among others.

Massachusetts courts and the First Circuit have grappled with the nexus between electronic recordings and rights protected by the First Amendment since the enactment of the Massachusetts wiretap statute, G.L. c. 272, § 99 (“Section 99”), in 1968. But until Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), no court had addressed squarely whether secret recordings are protected by the First Amendment. In Project Veritas, the First Circuit concluded that Section 99 violated the First Amendment in one specific circumstance: as applied to the statute’s criminalization of “secret, nonconsensual audio recording of police officers discharging their official duties in public space.” Project Veritas, 982 F.3d at 844.

Less than six months after Project Veritas, the Supreme Judicial Court (“SJC”) in Curtatone v. Barstool Sports, Inc., No. SJC-13027, 2021 WL 2408015 (June 14, 2021), also addressed Section 99 in the context of a recording of a public official. Although Curtatone did not delve into the constitutionality of the statute, the SJC held that a recording made openly and with the speaker’s knowledge was not a “secret recording” even though it was obtained by false pretenses.

Prior Decisions on the First Amendment and What Is “Secret”    

Section 99 provides in relevant part that it is a crime to intentionally, secretly record, or attempt to record without a warrant—i.e., “to intercept”—a wire or oral communication without permission of all participants. G.L. c. 272, §99 B(4).[1] Thus, prior to Project Veritas, Section 99 was interpreted to criminalize all non-consensual, surreptitious recordings regardless of any reasonable expectation of privacy by the recorded party. See Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001) (Section 99 is “intended … strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge”). Foreshadowing Project Veritas, however, the dissent in Hyde cautioned that such a reading of Section 99 “threaten[ed] the ability of the press—print and electronic—to perform its constitutional role of watchdog.” Id. at 613 (Marshall, C.J., dissenting).

The requirement in Section 99 that all parties to a recorded communication must consent is colloquially referred to as “two-party consent.” Unlike most states’ wiretap laws, Section 99 does not provide an exception to the consent requirement for parties who have no reasonable expectation of privacy. See Project Veritas, 982 F.3d at 817, 840. Although nonconsensual audio recordings without a warrant generally violate Section 99, the SJC has also held that “actual knowledge of the recording” by the party being recorded is sufficient, and affirmative authorization or express consent is not required to avoid liability under the statute, Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), even when the party being recorded is a police officer, Hyde, 434 Mass. at 605 (citing Jackson, 370 Mass. at 507).

No prior First Circuit decision—nor any other federal case before Project Veritas—addressed directly whether First Amendment protections extended to secret recordings of public officials, including law enforcement. Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011), for example, rose out of an arrest for openly filming police officers arresting an individual on the Boston Common. There, the First Circuit defined the scope of recording activity that triggers First Amendment protection to include the “right to film government officials, including law enforcement officers, in the discharge of their duties in a public space.” Id. Similarly, Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), addressing the New Hampshire wiretap statute, extended the reasoning of Glik and held that the First Amendment protects the open recording of a police officer conducting a traffic stop. Id. at 2-3, 7. Although limited to open recordings, in Project Veritas the First Circuit observed that these decisions “suppl[y] strong support for the understanding [that First Amendment-protected recording of police] encompass[es] recording even when it is conducted ‘secretly,’ at least as Section 99 uses that term.” Project Veritas, 982 F.3d at 832.

Project Veritas: First Amendment Protects Secret Recording of Police Officers Performing Their Duties in Public

Project Veritas consolidated the appeals of two groups of plaintiffs. The plaintiffs in one appeal (the “Martin plaintiffs”) are civil rights activists who openly record police officers performing their duties in public and who sought declaratory and injunctive relief in their First Amendment challenge to a portion of Section 99. The First Circuit considered their challenge to Section 99 “insofar as it applies to bar the secret, nonconsensual audio recording of police officers discharging their official duties in public places.” Project Veritas, 982 F.3d at 826. The plaintiff of the second appeal, Project Veritas—a national media organization “dedicated to undercover investigative journalism”—challenged the constitutionality of Section 99 on several broader First Amendment grounds: (1) as facially overbroad in its entirety; (2) as applied to the prohibition against the “secret, nonconsensual audio recording of any person who does not have a reasonable expectation of privacy in what is recorded”; and (3) as applied to the prohibition against the “secret, nonconsensual audio recording of all government officials discharging their official duties in public spaces.” Id. at 822-24, 840-42. 

Applying intermediate scrutiny,[2] the First Circuit addressed the merits of the Martin plaintiffs’ claim and affirmed that Section 99 was unconstitutional in a narrow and specific set of circumstances: insofar as it imposed an outright ban on “secret recordings” made in “public spaces,” of police officers, during the discharge of their “official functions.” Id. at 827-28. The court determined Section 99 was not narrowly tailored enough to further the government’s legitimate interest in preventing interference with the officers’ ability to do their jobs and in protecting the privacy of citizens. Id. at 836. Instead, Section 99 impermissibly prohibited all secret recording, “notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public’s ability to hold them to account for their wrongdoing.” Id. at 835-37.

In balancing the government’s interests, the court recognized that police officers surrender some of their privacy when performing their official functions and then delved into the privacy interests of the variety of citizens who interact with the police—which can include anyone from confidential informants to rape victims, minor victims, and witnesses. Id. at 838-39. As the court recognized, there is inherent tension here—citizens have greater privacy interests at stake than uniformed officers, and notice of recording may help them avoid shame or embarrassment. Id. at 839. Nonetheless, the First Circuit concluded that Section 99’s “blunderbuss prohibitory approach” was too broad to serve the important interests implicated in the Martin plaintiffs’ circumstances, noting that police officers presumably are already careful when having sensitive conversations within earshot of others, and that individuals’ privacy interests are “hardly at their zenith” when speaking to police officers in public. Id. at 837-39.

Justiciability of Pre-Enforcement First Amendment Challenges

The discussion of justiciability in Project Veritas—namely whether the plaintiffs’ pre-enforcement First Amendment claims were ripe—is thorough and a useful guide for future pre-enforcement cases. To determine whether the plaintiffs’ various claims were ripe, the First Circuit applied the two-part test from Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), and evaluated: (i) the fitness of the issue for judicial review (in terms of finality, definiteness, and sufficient development of facts) and (ii) the hardship to the parties of withholding adjudication (in terms of creating a direct and immediate dilemma). Project Veritas, 982 F.3d at 825-26. Characterizing the Martin plaintiffs’ single claim as presenting a narrow facial challenge to Section 99 as applied to the secret, nonconsensual audio recording of police officers discharging their official duties in public, the First Circuit concluded the claim presented a purely legal challenge that met Article III’s ripeness demands. Id. at 825-30.  

In contrast, Project Veritas’s as-applied challenges—that Section 99 violates the First Amendment by prohibiting (i) the secret recording of all individuals who have no reasonable expectation of privacy and (ii) the nonconsensual recording of all government officials in their discharge of duties in public space—evidenced “serious ripeness concerns.” Id. at 842-44. Specifically, the court concluded that the disparity between Project Veritas’s proposed secret newsgathering actions and the scope of relief sought was too great to present a well-defined, live, justiciable, pre-enforcement controversy. Id. at 842-43. Importantly, these rulings significantly narrowed the ultimate decision by vacating the lower court’s ruling on the merits that would have allowed the secret recording of any “government official” performing official duties in a public space. Id. at 824, 843-44. Also, the First Circuit affirmed the rejection of Project Veritas’s facial overbreadth claim, which would have invalidated Section 99 in its entirety, noting that Project Veritas “fails to show, as it must, that the unconstitutional applications are ‘substantial’ relative to the extensive range of applications [of Section 99 not challenged as unconstitutional].” Id. at 841. See also id. at 844 (emphasizing “the substantial protection for privacy that [Section 99] provides in contexts far removed from those that concern the need to hold public officials accountable”).  

Project Veritas has sought certiorari review of the First Circuit’s denial of its facial overbreadth challenge and determination of insufficient ripeness as to its as-applied claims. The treatment of this petition will be interesting, as the Supreme Court has never addressed the prohibitions on open or secret recording of law enforcement. See id. at 835.

Curtatone: What Is “Secret Recording” that Constitutes Prohibited “Interception”?

Although Curtatone did not address the constitutionality of Section 99 like Project Veritas, it did involve an actual, discrete recording of a public official. The SJC held that a recording made openly and with consent—even if induced under false pretenses of who was recording the communication—is not a “secret recording” so as to give rise to a cognizable claim of unlawful “interception” within the meaning of Section 99.

In Curtatone, an employee of Barstool Sports, using his real name and affiliation, requested an interview with Joseph Curtatone, the mayor of Somerville. His request was unsuccessful. He then contacted a Somerville official identifying himself as a specific reporter for the Boston Globe and asked to interview Mr. Curtatone. The mayor agreed to that request, believing it to be with the Boston Globe reporter. During the interview, the Barstool Sports employee continuously maintained he was the Boston Globe reporter. Critically, at the beginning of the interview the mayor consented to it being recorded. Barstool Sports later posted the interview on its blog. Slip op. at 4.

The SJC concluded that to violate Section 99, the recording itself that must be “(1) secretly made and (2) without prior authority by all parties” to constitute a prohibited “interception.” Id. at 6. That is, “it is the act of hearing or recording itself that must be concealed to fall within the prohibition against ‘interception’ within [Section 99],” and the “identity of the party recording . . . or, indeed, the truthfulness with which that identity was asserted is irrelevant.” Id. at 8. In short, where the [act of] recording but not the [true] identity of the recorder was known and agreed upon” by the speaker, the recording was not made “secretly.” Id. at 10.

Thus, Curtatone further narrowed the reach of Section 99 by rejecting the mayor’s argument that the recording at issue was secret and violated Section 99 because (a) both parties must provide “actual consent” for a lawful recording, and legally effective consent was not possible to provide where he did not know the true identity of the interviewer; and (b) the Barstool Sports employee secretly heard and recorded the conversation or illegally intercepted the communication because the mayor was falsely led to believe the employee was someone else. Id. at 5. Notably, in rejecting the mayor’s assertion that his privacy rights were violated, the SJC found it “relevant to note that the plaintiff was a mayor of a city with more than 80,000 people, [who] believed he was speaking on the record to a newspaper reporter,” notwithstanding that Section 99 provides no exemption for an individual with no expectation of privacy. Id. at 10.

What’s Next?

Project Veritas and Curtatone raise several questions. For one, how will police interactions with private citizens in public spaces change, if at all, given the new ability to secretly record? Also, given the recognition that citizens retain their privacy interests, will there be efforts to protect the rights of informants, witnesses, and victims of crime? Also, will there be another attempt to expand the scope of permissible recording to other types of government officials performing their duties in public spaces? On this point, the First Circuit recognized that the “First Amendment analysis might be appreciably affected by the type of government official who would be recorded”—an elected official, a school teacher, or a bus driver. Project Veritas, 982 F.3d at 843. Similarly, the SJC’s analysis anticipates that the identity of the public official is critically relevant to determining the applicable privacy interest. And finally, over fifty years since enactment of Section 99, will the Massachusetts Legislature reexamine the wiretap statute in light of the rapid developments in technology and recent court rulings?

[1] In addition to criminal penalties, Section 99 provides a civil cause of action for individuals whose “communications were intercepted, disclosed or used except as permitted or authorized” by Section 99, or whose privacy was so violated. G.L. c. 272, § 99 Q.

[2] “Intermediate scrutiny” requires the determination of whether the law is “narrowly tailored to serve a significant government interest” and “must leave open ample alternative channels for communication,” but need not be the “least restrictive means of achieving the government’s interests.” Project Veritas, 982 F.3d at 834-36. This procedural issue had not been addressed squarely before in similar First Amendment cases and the First Circuit’s detailed discussion is worth careful review.

Ryan E. Ferch is currently Senior Counsel at the Massachusetts Bay Transportation Authority.  Until 2017, as an Assistant Attorney General, he represented the defendants in the Project Veritas and Martin cases.


Warrant-Based Searches Do Not Override Statutory Consent Requirement for OUI Blood Draws

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by Emma Quinn-Judge

Case Focus

A licensed driver who uses the public roadways in Massachusetts has agreed—implicitly—to submit to blood alcohol testing (BAC) or a breathalyzer test if arrested for operating under the influence of alcohol (OUI). If the driver refuses to take a BAC test, the driver’s license is suspended for 180 days or longer. While there are consequences to declining testing, the Commonwealth’s implied consent statute is unequivocal: Where a driver declines a blood test, “no such test . . . shall be made.”

Drawing a blood sample is a search and seizure for constitutional purposes, because individuals have an expectation of privacy in their blood. However, both the Supreme Court of the United States and the Supreme Judicial Court (SJC) have long held that law enforcement may draw blood without consent where there is either a search warrant supported by probable cause, or exigent circumstances justifying a warrantless search. Schmerber v. California, 384 U.S. 757, 767 (1966); Commonwealth v. Angivoni, 383 Mass. 30, 32 (1981).

In Commonwealth v. Bohigian, 486 Mass. 209 (2020), the SJC considered whether, in an OUI prosecution, a BAC test performed without consent, but with a warrant, was admissible. In a 4-2 decision, the SJC concluded that the implied consent statute “flatly and unambiguously prohibits blood draws without consent,” and as such, BAC evidence obtained by a warrant is inadmissible. Id. at 214.

Following an accident in which he seriously injured another driver, Charles Bohigian refused to consent to a blood draw. A State Trooper obtained a warrant to draw Bohigian’s blood. After being presented with the warrant, Bohigian refused again to have his blood drawn. Troopers ultimately held down his arms and legs while a nurse drew his blood. A chemical analysis of his blood revealed that Bohigian’s BAC was more than twice the legal limit. See G. L. c. 90, § 24 (1)(a)(1). Bohigian was charged with and convicted of, among other things, OUI.

General Laws c. 90, § 24(1)(f)(1) provides that an individual operating on a public road “shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor.” If, however, “the person arrested refuses to submit to such test or analysis [and is informed of the consequences of such refusal], no such test or analysis shall be made.” G.L. c. 90, § 24(1)(e)(1) makes such tests admissible in OUI prosecutions, “provided . . . that if such test was made by or at the direction of a police officer, it was made with the consent of the defendant.” Thus, “[t]ogether the two subsections provide that, if an arrestee consents to a BAC test, the results are presumptively admissible at trial for a charge of OUI under § 24(1)(a).” Bohigian, 486 Mass. at 212.

Prior appellate decisions suggested that the statutory framework provided a right of refusal that was independent of, and in addition to, any constitutional requirements. In Commonwealth v. Davidson, 27 Mass. App. Ct. 846, 848 (1989), the Appeals Court noted that “[w]here there is probable cause to believe that a defendant has been operating a vehicle while under the influence of intoxicating liquor, the defendant has no constitutional right to refuse a blood test or breathalyzer test,” but rather, the “right of refusal he does have stems from the statute, which requires that a test not be conducted with his consent.” In Commonwealth v. Dennis, 96 Mass. App. Ct. 528, 532 (2019), the Appeals Court reiterated that “a requirement of consent is imposed by statute even when, because there is probable cause and exigent circumstances, one is not imposed by the Federal Constitution.”

Davidson and Dennis, however, both concerned how to evaluate consent. Neither case involved a situation in which police officers had obtained a warrant for a blood draw after an unequivocal refusal. Bohigian squarely presented that question for the first time and, following the reasoning and statutory interpretation in these earlier cases, the SJC held that the “plain statutory language . . . creates a blanket prohibition against blood draws without consent in the context of OUI prosecutions.” Bohigian, 486 Mass. at 213. While an individual’s blood may be drawn pursuant to a warrant in other contexts and for other purposes, the right of refusal in OUI cases is absolute.

The SJC’s decision treated constitutional rights as a floor or baseline for individual rights. “It is well within the Legislature’s authority to provide additional privacy protections over and above those granted by the Federal Constitution and the Massachusetts Declaration of Rights.” Bohigian, 486 Mass. at 216. Viewing the statute within this analytical framework, the Court examined the plain language, giving weight to Davidson and Dennis, which articulated a longstanding interpretation of the statutory language. Indeed, the SJC noted that the legislature had repeatedly amended the relevant statutory provisions since Davidson was decided in 1989, without ever changing the consent requirements. The Court also pointed out that the Massachusetts statute was adopted just one year after the Supreme Court decided Schmerber v. California, 384 U.S. 757 (1966), implying that the legislative choice to require consent was made knowingly in the aftermath of a landmark Supreme Court decision establishing that blood draws are permissible with a warrant or under exigent circumstances. Moreover, the Court noted that other states with similar statutory schemes have interpreted them to categorically bar blood draws without consent. Finally, the SJC emphasized that there are valid public policy reasons to strike the balance the legislature struck, including the interest in avoiding violent confrontation and the risk of injury to patients and health care providers.

Justice Lowy, joined by Justice Kafker, dissented on the ground that the decision of a “neutral and detached magistrate” to issue a warrant upon a finding of probable cause, “bears no relation to the suspected offender’s consent, nor does it implicate the regulatory apparatus of implied consent or its effects on evidentiary admissibility.” Bohigian, 486 Mass. at 221. In other words, the dissent viewed constitutional provisions regarding unlawful search and seizure not as the minimum level of protection for individual rights, but rather as an exception to the rights set forth by statute. Rejecting the majority’s statutory interpretation, the dissent focused on the statute’s overriding public safety purpose: “[F]or every hemophiliac, diabetic, or person on anticoagulant medication who is arrested for OUI, or for every medical worker who is injured by a sharp needle when blood is drawn . . . immeasurably more danger results from permitting repeat OUI offenders to get behind the wheel.” Bohigian, 486 Mass. at 235.

In cases where a defendant unequivocally refuses to take a breathalyzer or BAC test, the implied consent statute establishes an unambiguous standard: “[N]o such test or analysis shall be made.” G.L. c. 90 § 24(f)(1). The civil penalties for refusal are not insignificant: They include immediate license suspension for at least six months per test (and for substantially longer periods for those with a record of prior OUI convictions), with no right to reinstatement or a hardship permit during the period of suspension, as well as vehicle impoundment and related costs. The statute provides that the minimum periods of license suspension apply to each refusal, with suspensions to run concurrently, not consecutively “as to any additional suspension periods arising from the same incident, and as to each other.” Id.

Bohigian has simplified the legal questions for a driver who refuses a blood alcohol test. Because not all individuals refuse testing as clearly as Mr. Bohigian did, whether a driver—especially a highly-intoxicated or seriously-injured driver—has legally consented to a blood test is likely to remain contested in many cases. The answer to that question will still require a court to analyze whether the driver consented voluntarily, within the meaning of the Fourth Amendment. And where the Fourth Amendment is satisfied, a court will need to examine whether an individual has met the lower statutory standard for consent discussed in Dennis and Davidson (i.e., the “traditional indicia of waiver of rights”). While Bohigian may be the final word on refusal, it is unlikely to be the last word on consent.

Emma Quinn-Judge is a partner at Zalkind Duncan & Bernstein LLP, where she focuses on criminal defense, employment litigation, and appeals.


Foreword from the Editors

In our digital age, technology has brought attention to “privacy” in unprecedented ways.  And privacy, although a term frequently used, has no set meaning.  Ready electronic access to information, for instance, raises questions about the misuse of public records (and, more broadly, whether one can or should ever be forgotten), while lack of access raises concerns about government abuse going unobserved.  Near-daily stories of data breaches now have a connection to matters that are surprisingly close to home, as the “internet of things” means that even our home appliances are collecting and sharing our goings-on.  Businesses need to consider not only whether they are adequately protected against cyberattacks, but also whether they have adequate cyber insurance in place. In this special issue, we reflect on these timely and compelling questions.

– The Boston Bar Journal Board of Editors


Cyberattack Risk: Not Just For Personal Data

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by Mark Szpak, Seth Harrington and Lindsey Sullivan

Practice Tips

In August, the United States Department of Justice (“DOJ”) and the Securities Exchange Commission (“SEC”) unsealed complaints alleging a scheme to hack into computer systems of newswire services in order to steal material nonpublic information, which the hackers then allegedly used to place trades.

This case is strikingly different than many other recently reported data-breach cases.  Typically such cases have involved an attacker breaking into a company’s network to access personal nonpublic information (e.g., credit card numbers, medical history, social security numbers) that potentially could be sold to other criminals who would use it to attempt to commit identity theft or fraud.  This hack involved information concerning publicly traded companies, obtained not from the companies themselves, but third-party newswire services.  These complaints highlight that cyberattack risk is not limited to the theft of personal information but extends to any confidential information that hackers may seek to exploit for financial gain – trade secrets, insider information, customer prospects, bid packages, marketing data, business plans, etc. Companies need to understand this risk as well as how to prevent it and manage it if it occurs.

The Alleged Hacking and “Insider” Trading Scheme

The criminal complaints filed by the DOJ allege that nine individuals hacked into the computer systems of newswire services Marketwired, PR Newswire, and Business Wire, accessed nonpublic information, and allegedly used it to generate $30 million in illegal profits.   The civil complaint, brought by the SEC against 32 individuals, alleges that the defendants generated more than $100 million in illegal profits by trading on the stolen nonpublic information in violation of federal antifraud laws and related SEC rules.

These newswire services were engaged by major publicly traded companies to publish corporate releases and, as a result, received confidential information hours and even days before the information was publicly released.  By infiltrating the computer systems of these newswire services, the criminals were able to access – and act upon– the releases ahead of the market.

Few are surprised that the newswire services were targeted, but the extent of the scheme is drawing attention.  The hacking allegedly lasted five years, during which the criminal attackers allegedly accessed over 150,000 press releases.  In one instance, according to the SEC complaint, the hackers and traders were able to act within the 36-minute period between when the press release was provided to the newswire service and public disclosure of the release, executing trades that resulted in $511,000 in profit.

Potential Exposure

Compared to other cybercases, these complaints represent the relatively rare occurrence in which claims are brought against the perpetrators of the data breach and the individuals who seek to use and profit from the stolen information.   As this article goes to press, no litigation is known to have been initiated against either the newswire services or the companies whose information is alleged to have been stolen in this attack.   Yet, based on trends in litigation and regulatory enforcement efforts in matters involving data breaches of personal information, one can expect that claims against hacked entities or their clients may begin also to arise even where only nonpersonal information is involved.

With respect to private litigation, potential claims could face a number of hurdles.  Any potential plaintiff would have to allege a cognizable injury as well as the breach of a duty owed by the defendant to the particular plaintiff.  Many courts in breach cases have dismissed claims (under both tort and contract theories) based on the attenuated relationship between the plaintiff and defendant regarding an alleged duty to safeguard information for the benefit of the plaintiff.  As we move beyond personal information, each new digital information context will raise questions regarding whether a duty to anticipate and protect against criminal cybertheft can be fairly imposed, in what  circumstances, pursuant to what standards, and, if so, to whom is it owed.

With respect to regulators, the SEC has made clear its position regarding the importance of cybersecurity.  In March 2014, Chair Mary Jo White explained that “the SEC have been focused on cybersecurity-related issues for some time” because “[c]yber threats [] pose non-discriminating risks across our economy to all of our critical infrastructures, our financial markets, banks, intellectual property, and, as recent events have emphasized, the private data of the American consumer.”  Other regulators (most notably the FTC) have also staked out a position of overlapping jurisdiction.

Best Practices for Companies

In a world where the electronic landscape and the sophistication of cyberhackers are both moving at high speed, here are nonetheless a few best practices that companies facing an actual or potential data security incident (i.e., all companies) can follow to mitigate potential risk:

  • Think carefully about third-party vendors— Companies rely on numerous third parties for everything from corporate disclosures to marketing advice. Thoughtful contracting and training can go a long way to reducing the risk of loss or misuse.
  • Supplement perimeter detection systems— According to the indictments in the newswire case, the criminal hackers were resident in the victims’ systems for years. The case illustrates the potential significance of taking a “defense-in-depth” approach to security and system monitoring.
  • Be realistic about law enforcement and regulators— Notifying and cooperating with law enforcement can be important for many reasons, and the same is true for governmental regulators.  But law enforcement usually focuses on getting the criminal attacker, while regulators (by comparison) often focus instead on examining any role the company had in having been criminally attacked.  Keeping that difference in mind can be significant in dealing simultaneously with these respective governmental actors.
  • Involve outside experts (both legal and forensic) at the earliest sign of a possible problem— Never guess or assume what may have taken place. Forensic experts can help your team assess whether an attack or breach has occurred, the actual scope of the breach, and how to contain it, while legal experts (both internal and outside counsel) can direct that forensic review and assess potential legal obligations involving notification, public statements, remediation, responding to law enforcement, dealing with regulators, preparing for litigation, and protecting the record.
  • Carefully draft external statements— When an incident occurs, all outward facing statements should be carefully crafted to say only what is necessary, and to avoid committing to specifics until facts are definitely known. Before an incident occurs, promising any level of protection is risky because, if a hacker makes it into the system, the company’s statements will inevitably be second-guessed.
  • Check your insurance— For the sake of planning, assume that erstwhile attackers will be able to access any system in your network. Consider, then, what kind of attack or what kind of data loss could cause the most exposure or disruption.  Then make sure your insurance will actually cover those costs and that any related exposure to liability is indeed included.  Evaluate your incident response preparedness through “tabletop exercises” to confirm that you have identified the potential risks and expenses.
  • Avoid creating a bad record— Preservation of evidence after discovering a data breach often involves much more than just the usual email and paper files. In a network attack, the relevant evidence may include large groups of servers, firewall configuration records, network access logs, security management databases, vulnerability scan results, software hotfix schedules, or any number of other forensic or technical data sources that in most litigation rarely come into play.  Identifying that relevant forensic and technical evidence and then maintaining it, while preserving applicable privileges and minimizing the interruption of critical ongoing company operations, can in many cases pose enormous challenges.

The panoply of costs that a cyberhack can impose make it clear that a well-developed program to secure all types of business information, not just personal information, can provide a competitive advantage.  And when data thieves strike, regardless of the type of data they target, following a prompt and careful response protocol can pay significant legal dividends.

Mark Szpak is a partner in Ropes & Gray’s privacy & data security practice. He focuses on the wide range of challenges that arise after a computer network intrusion, including defending against multidistrict class actions in the U.S. and Canada, handling forensic investigations and responding to regulators.

Seth Harrington, also a partner in Ropes & Gray’s privacy & data security practice, represents clients in all aspects of the response to a privacy or data security incident, and he regularly advises clients on indemnification and insurance matters, including cyber risk insurance.

Lindsey Sullivan is an associate in Ropes & Gray’s business & securities litigation practice, where she focuses on assisting clients through forensic investigations and preservation efforts around privacy and data security breaches.

 


Cyber/Privacy Insurance: A Very Brief Primer

Reisch_Alanby Alan M. Reisch

Practice Tips

“If you don’t know where you are going, you might wind up someplace else.”
Attributed to Yogi Berra

Massachusetts has one of the country’s most stringent statutory and regulatory schemes relating to data privacy and security. The complexity and scope of available insurance products dealing with “cyber” exposures, in Massachusetts and throughout the business world, has dramatically increased over the past several years and is now as fractured and complicated as is the law, which differs from state to state and from country to country. Insurance underwriters, insurance brokers, technologists, security professionals, pundits and others offer conflicting advice about how to best move through this maze of insurance policies, technology, and the many potentially applicable state and federal regulations that often conflict. Imagine that there is growing apprehension that a company is at risk. At some point, a lawyer is called to advise on insurance protection. What is that lawyer to do?

The first step is to establish a team of professionals and client representatives who will, together, work through the issues that will allow the development of a meaningful strategy. The team should include the lawyer, an insurance professional, a technology resource (internal to the client’s business operations or external), and a representative of the client who is sufficiently vested with authority so that access to required information will be facilitated. Once the team is in place, the following should happen, in more or less this sequence:

1. The team should develop a realistic understanding of the client’s cyber/privacy and data risk profile. It is important to analyze not just electronic exposures, but traditional paper-based exposures as well. Among the many factors to consider are the following:

A.  The type and location of protected information that is procured, handled, managed and stored by the client. Protected information includes, but is not limited to, private personal information (which is defined differently in various jurisdictions and under different regulatory schemes but often consists of an individual’s first name, last name, and either a social security number, bank account number or other similar data point), and confidential business information.

B.  The federal, state, and local statutory and regulatory schemes that impact the client’s obligations with respect to protected information. Most states have adopted data privacy regimes that are grounded in statutes (in Massachusetts the applicable statute is Mass. Gen. Laws ch. 93H) and implemented through a series of regulations. Several federal agencies, including the FTC and the SEC, are focused in meaningful ways on the security of personal and other confidential information that is handled by businesses. Courts are, in most instances, finding statutory and regulatory support for robust enforcement actions by these agencies. It is important to keep in mind that many states, Massachusetts among them, have taken the position that their privacy schemes are meant to be protective of their citizens wherever those citizens conduct commerce.

C.  The commercial obligations that have been assumed by the client by contract or otherwise in connection with data security and privacy. These should be charted, and compliance measured.

D.  The security of non-electronic records that contain protected information.

E.  The client’s network and electronic information storage infrastructure. As with non-electronic records, this infrastructure should be assessed by qualified professionals, and a plan should be established for correction of deficiencies.

2.  Next, insurance coverage that is already in place should be reviewed. Among the policies to be reviewed are:

A.  General Liability policies

B.  Directors and Officers Liability policies

C.  Errors and Omissions policies

D.  Fiduciary policies

E.  Crime policies

F.  Professional Liability policies

G.  Commercial Property policies

The risk profile that has been developed should be reviewed in the context of the insurance coverage that is present in these policies (there are no true “standard forms” and careful, term-specific analysis is required). The insurance professional who is part of the team should assist in identifying potential exposures that are not within the scope of the existing coverage.

3.  Having established a risk profile, assessed the protection afforded by the insurance coverage in place and begun the process of correcting deficiencies, the team should next consider whether existing coverage should be supplemented, including whether stand-alone cyber/privacy coverage should be procured. The policy wordings that might be employed to supplement existing policies, and the policy forms that are available as stand-alone products, are not standard forms of insurance. Nearly all wordings can and should be specially negotiated.

As the stand-alone cyber/privacy insurance market has evolved, these general coverage types have become “standard” in most offerings (with the caveat that while the coverage “type” may be standard, the implementation varies from insurer to insurer, and from product to product, in meaningful ways):

A.  Third party coverage against claims asserting a “data privacy wrongful act,” a “network security wrongful act,” or other similar coverage grant. This coverage affords the cyber/privacy equivalent of general liability coverage. A client purchases this coverage to protect against third party claims alleging damages due to the client’s handling of protected information.

B.  Third party coverage for claims relating to violation of intellectual property rights or copyright.

C.  Various types of first party coverages (coverage that will pay an insured for loss that the insured suffers itself, rather than indemnifying an insured for claims asserted by others), such as:

1.  Notification and related expense coverage;

2.  Coverage for regulatory fines and penalties;

3.  Coverage for the expense of recreating information that is damaged, compromised or destroyed as the result of a data security incident, or other covered occurrence;

4.  Coverage for the expense resulting from the inability to use a network or other asset as the result of a covered event; and

5.  Coverage for fines and penalties payable as the result of a failure to maintain appropriate levels of Payment Card Industry compliance in connection with credit or payment card exposures (this is not as generally available).

There are, of course, additional issues that will arise in the course of developing an appropriate mitigation strategy and insurance structure. For example, it may be necessary to allow an insurer, or several insurers, to independently audit a client’s infrastructure. It may be that an insurer adds exclusions to a policy that render otherwise appropriate coverage difficult to accept – for example, adding an exclusion that would allow an insurer to avoid payment obligations in the event that there is a change in network structure, levels of security protection, or the like. These types of potentially devastating exclusions, sometimes based on ambiguous terms that are difficult to either understand in an operational sense or manage, can make otherwise meaningful protection unacceptable.

So, dealing with the structure of an effective cyber/privacy insurance program requires knowing what you’ve got, knowing what’s lacking, and filling gaps in a targeted way. Know where you’re starting, understand the potential end points, and you’ll get where you’re going and not someplace unexpected.

Alan M. Reisch is a Director in the Litigation Group at Goulston & Storrs, as well as a Founder of the firm’s risk management affiliate Fort Hill Risk Management, and counsels clients in connection with insurance coverage and portfolio analysis, risk assessment and management, fraud, data privacy and other related issues.


The Misuse of MassCourts as a Free Tenant Screening Device

caramello_esmeduke_annetteby Esme Caramello and Annette Duke

Heads Up

“If I see that a prospective tenant has ever had a lawyer in any proceeding at http://www.masscourts.org as of this case forward I no longer take them as a tenant. This is a free country. They certainly have a right to hire a lawyer and I have a right to not take them as tenants because of that.” Massachusetts Landlords Blog, June 12, 2015.

The Trial Court’s Electronic Case Access system (MassCourts) was not intended to be a direct, online “free tool for tenant screening.” But that is how it is increasingly being promoted and used:

“After years of lobbying from rental housing groups, the Massachusetts Housing Court has finally announced a powerful new and free tool for tenant screening: public internet access to all Summary Process, Small Claims, Civil and Supplementary Process case types…. This new system will enable landlords to research whether a potential or current tenant has been a party to a previous eviction, small claims or related housing case.” The Massachusetts Real Estate Law Blog, “ Massachusetts Housing Court and Tenant Eviction History Now Online,” April 24, 2013 (emphasis added).

While careful, conscientious tenant screening can help landlords avoid problems with new tenants, the automatic refusal to rent to anyone whose name appears in an online court database is a dangerous form of tenant blacklisting. Tenants are sometimes forced by absentee or unscrupulous landlords to access the courts to protect their families from unsafe conditions. For example, one tenant, 8½ months pregnant and shoveling the walkway in front of her unheated apartment, turned to the court to force an unresponsive bank that owned her building to pay its bills and maintain the property. Another faced a retaliatory eviction lawsuit after reporting a building-wide bedbug infestation affecting the health of her neighbors, families, and friends. Still another was brought into court after her landlord discovered she had a female partner. Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.

While some landlords undoubtedly look beyond the mere fact of a tenant’s appearance in MassCourts to the actual “Disposition” or docket itself, even this increased level of scrutiny may not elicit an accurate picture of a tenant. MassCourts was not designed as a tenant-screening tool.  It is a case management database built to assist the court system in managing litigation, and it uses shorthand that suffices for that purpose. It does not tell the real story behind any landlord-tenant dispute. Most summary process dockets, for example, ultimately reflect a judgment for the landlord. This does not equate to a finding the tenant was at fault. The vast majority of tenants are unrepresented, and the few who are lucky enough to access legal assistance often do not agree to have a judgment enter against them, but instead secure dismissal of the case or a straight agreement (with no judgment of eviction) in which the parties make commitments to each other, such as payment of rent in exchange for repairs.

To make matters worse, there are inaccuracies in the MassCourts database. For example, a review of housing cases closed by the Harvard Legal Aid Bureau in 2013 showed that in nearly 10% of the cases, MassCourts incorrectly displayed a judgment of eviction against the tenant when there was none. In MassCourts, “no-fault” evictions are sometimes miscoded as “cause” cases. Cases that have been dismissed may appear as open, active cases or even judgments in favor of the landlord. Minor children may erroneously appear as parties in their parents’ eviction cases, potentially hurting their creditworthiness before they have a chance to enter the adult world. MassCourts remote access takes these errors and turns them into major barriers to housing, with no way for a tenant to even know that this information is being used by a landlord and no clear way to challenge its accuracy.

Other states have recognized the problems with court-enabled tenant screening and scaled back access. For example, in 2012, the Chief Administrative Judge of the New York State Office of Court Administration announced that the court would no longer include in the electronic data feed it sold to tenant screening companies the names of tenants involved in New York City Housing Court evictions. See Hon. Gerald Lebovits and Jennifer Addonizio, The Use of Tenant Screening Reports and Tenant Blacklisting, New York State Bar Association (2013). Applauding this action “to protect both New York’s tenants and the integrity of the court system,” one legislator explained: “When the fear of being ‘blacklisted’ causes many tenants to avoid the court and relinquish their legal rights, access to justice is fundamentally undermined.” Sen. Krueger Announces Courts to End Electronic Sale of Housing Court Data Used in “Tenant Blacklists (2012).

Massachusetts, through the Trial Court Public Access to Court Records Committee, can and should implement safeguards that protect tenants without impairing the public’s right to open courts. A very limited change to how party identification information is displayed online could counteract the misuse of MassCourts: tenant names should be replaced with numbers or initials in the online database. Parties and attorneys would still be able to access case information online with docket numbers. The official case record would still be public, would still include parties’ names, and could be accessed by going to court. This change would balance protecting tenants’ rights with keeping court records public.

With 40,925 eviction cases filed in Housing and District courts across the Commonwealth in FY 2014 alone, the easy, online use of MassCourts as a free tenant screening tool has become a serious access to justice issue. Without reform, tenants will increasingly fear that the consequences of coming to court will be that they won’t be able to find housing in the future, and they will not see courts as a place to seek justice.

Annette Duke is a housing attorney at the Massachusetts Law Reform Institute, a statewide nonprofit poverty law and policy center. She specializes in public housing and landlord-tenant law and is currently working with the Massachusetts Access to Justice Commission and a broad coalition of organizations to expand housing courts statewide.

Esme Caramello is the Faculty Director of the Harvard Legal Aid Bureau, a century-old student-run legal services organization that represents low income clients in housing, family, wage and hour, and government benefits cases. She is also a Clinical Professor at Harvard Law School, where she teaches courses in housing law and policy and legal skills and ethics.

 


The Unwarranted Secrecy of Criminal Justice Information in Massachusetts

Pyle_Jeff by Jeffrey J. Pyle

Legal Analysis

In the past year, the normally sleepy topic of public records law has caught fire in Massachusetts.  Thanks to extensive reporting by the news media, the public has become aware of widespread problems accessing public records, including questionable denials of access, demands for exorbitant fees, and ineffective administrative oversight.  The Center for Public Integrity has given Massachusetts an “F” grade for its public access to information, and our State Police recently won the 2015 “Golden Padlock Award,” a national “honor” bestowed by Investigative Reporters & Editors to acknowledge “the dedication of government officials working tirelessly to keep vital information hidden from the public.”

As a result of these embarrassments, the legislature is finally giving serious consideration to updating the Public Records Act, G.L. c. 66, § 10, long viewed as the weakest freedom of information act in the country.  House Bill 3665, “An Act to Improve Public Records,” addresses the substantial procedural obstacles to access, including high fees for production, slow response times, and the inability of courts to award attorneys’ fees to requesters who prevail in court.  As of this writing, the bill remains on hold as sponsors consider objections from some cities and towns to its limitations on search fees and copying costs.

Even if this important legislation is enacted, however, significant barriers to access will remain.  Many have noted that the bill does not address the exclusion of the legislature and the courts from the Public Records Act, and the Governor’s Office will be able to continue to declare itself exempt.  Less remarked upon, but of arguably equal significance, the bill does not address the fact that in the last ten years, through statutory enactments and restrictive interpretation of existing law, vast categories of documents concerning the Massachusetts criminal justice system have been removed from public inspection.  These changes have placed the Commonwealth well outside the norm of other states, and deprived the public of crucial information at a time of heightened public concern about criminal justice policies and police misconduct.

This article will focus on three categories of criminal justice records of particular concern.

Arrest Reports, the Investigatory Exemption and the CORI Statute

The Public Records Law, G.L. c. 66, § 10, provides that all records in the custody of covered governmental entities—including state agencies, municipalities, and law enforcement —are presumptively open to the public.  The law also contains numerous “exemptions” to the statutory definition of “public record” that allow covered entities to withhold documents, but places the burden on the government to prove with specificity that an exemption applies.  The exemptions are to be narrowly construed, and where possible, the government must redact sensitive material rather than deny records outright.  See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979).

One exemption allows the government to withhold “investigatory materials,” only if they are “necessarily compiled out of the public view by law enforcement or other investigatory officials” and their release “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”  G.L. c. 4, § 7 cl. 26(f).  Plainly, this is no “blanket exemption” for all “records kept by police departments,” and it does not permit “every document that may be placed within what may be characterized as an investigatory file” to be kept secret.  Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65 (1976).  Rather, for the investigatory exemption to apply, there must be “specific proof” that the release of a particular record would prejudice the possibility of effective law enforcement.  Because that burden can be established with a showing that release would expose confidential law enforcement techniques or discourage witnesses from coming forward in the future, the conclusion of an investigation does not necessarily eliminate protection.  Nonetheless, courts have ordered the release of citizen witness statements,[i] police incident reports,[ii] and even the interview of a murder suspect,[iii] notwithstanding invocation of the exemption.

The language of the investigatory exemption reflects a legislative intent to balance the legitimate needs of the police against the substantial public interest to know about crime and law enforcement activities.  However, in the last several years, law enforcement agencies have asserted that they need not contend with the narrowness of the investigatory exemption.  They claim that routine police documents, such as arrest reports, incident reports and mugshots are subject to the Criminal Offender Record Information (CORI) statute, G.L. c. 6, § 167 et seq.; that the CORI statute gives police the “discretion” whether to withhold or release such documents; and thus they are “specifically or by necessary implication exempted from disclosure by statute,” in the words of another exemption.

These assertions are incorrect.  While the CORI statute imposes restrictions on the dissemination of “criminal offender record information,” it expressly limits the restriction to information “recorded as the result of the initiation of criminal proceedings.”  G.L. c. 6, § 167.  Routine police documents like arrest reports and mugshots are prepared before and not “as the result” of the issuance of a criminal complaint.  Accordingly, the CORI statute plainly “was not enacted to stop the release of police records,” and does not—“specifically or by necessary implication”—exempt such records from release under the Public Records Act.   This was the analysis of then-Supervisor of Public Records Alan Cote in 2003, in a memorandum deriding a “troubling” law enforcement trend of withholding pre-arrest incident reports under CORI.[iv]

However, in 2010, the Department of Criminal Justice Information Services (DCJIS), which is tasked with implementing the CORI statute, adopted the novel position that the “initiation of criminal proceedings” is not the issuance of a criminal complaint, but rather, the “point when a criminal investigation is sufficiently complete that the investigating officer takes actions toward bringing a specific suspect to court.”  That moment generally precedes arrest and the taking of a mugshot.  The DCJIS later issued a regulation embodying this definition of “initiation.” 803 CMR 2.03(4) and 7.02.  Now, police departments—as well as the current Supervisor of Records—routinely rely on the DCJIS regulations to deny public access to routine police records.

This does not mean that police departments never release arrest reports or mugshots—they often do under another DCJIS regulation that permits, but does not require, the dissemination of CORI records “specifically related to, and contemporaneous with, an investigation or prosecution.”  803 CMR 7.10.  However, when the Boston Globe sought public records concerning the arrests of police officers for drunk driving, police departments almost uniformly relied on the CORI statute to deny the requests.[vi]  Thus, in Massachusetts, reports of arrests—one of the most significant actions the government can take against an individual—are being released only at the discretion of the police, contrary to the strong presumption of openness at the heart of the Public Records Act.

The Boston Globe recently filed a groundbreaking lawsuit challenging the DCJIS regulations and the law enforcement interpretation of the CORI law.  Boston Globe Media Partners, LLC v. Dep’t. of Criminal Justice Information Services, Suffolk Superior Court, No. SUCV2015-01404D.  A decision in the case could affect not only the press and the public, but also attorneys seeking to investigate prior incidents.  If the courts rule in favor of the law enforcement agencies, Massachusetts would become the only state where police are vested with the unfettered discretion over whether and when to grant public access to arrest reports.[vii]

Domestic Violence Records

Massachusetts police departments have long been required to assemble a log of daily arrest reports and keep it open for public inspection.  G.L. c. 41, § 98F.  Journalists use the logs to inform the public about crime in the community and to determine which court proceedings to cover.  But in 2014, the governor signed legislation requiring police departments to exclude from the logs all reports of domestic violence, sexual assault, and the violation of abuse protection orders pursuant to G.L. c. 209A.  Before this change, no type of crime, but for a limited exception, was excluded from public inspection.[viii]  At the same time a different statute, G.L. c. 41, § 97D, was amended to provide that the police must keep all incident reports concerning domestic abuse confidential—that provision had previously applied only to charges of rape and sexual assault.

These changes to the law, included in a larger domestic violence bill, were intended to encourage victims of abuse to report the violence without the risk of embarrassment.  However, the expurgation of the logs can also result in protecting the alleged perpetrators of abuse from publicity, thus arguably removing a deterrent to abuse.  The exclusion also may dampen public awareness about violence in the community,[ix] prevent the public from learning about violence perpetuated by public officials or other persons holding positions of trust, and mask other criminal charges that may accompany domestic violence arrests, such as drug and firearms possession.  While the domestic violence bill did not purport to seal court records (and thus cannot promise true confidentiality to victims), the mandatory exclusion of the information from police logs may hinder the news media’s efforts to learn about crimes in first place.  It may also prevent the public from learning how the police respond to and otherwise handle reports of domestic abuse, thereby creating the risk that the crime could be driven further underground.  This Massachusetts restriction appears to have no equivalent elsewhere in the United States.[x]

Sealing of Criminal Cases

In a celebrated “quartet” of decisions in the 1980s, the Supreme Court ruled that the public has a fundamental right protected by the First Amendment to attend criminal trials and pre-trial proceedings.  One of the purposes of the First Amendment, the Court explained, is to assure “freedom of communication on matters relating to the functioning of government,” and it would be difficult to identify any government function “of higher concern and importance to the people than the manner in which criminal trials are conducted.”  Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980).  Numerous federal courts of appeal have applied the Supreme Court’s reasoning to hold that there is a First Amendment right of access to documents filed in criminal cases.

In 1989, the First Circuit held that a Massachusetts statute requiring the blanket sealing of records of cases resulting in not-guilty findings and other non-conviction dispositions was unconstitutional as written.  Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989).  The court held that records of dismissed or nolle prossed cases may be sealed only upon specific, on-the-record findings that sealing is necessary to effectuate a compelling governmental interest sufficient to overcome the public’s First Amendment right of access to criminal proceedings.  The Supreme Judicial Court followed suit a few years later, ruling in Commonwealth v. Doe that in order to seal such records, the defendant must demonstrate on the specific facts of the case, that “the value of sealing to the defendant clearly outweighs the constitutionally-based value of the record remaining open to society.”  420 Mass. 142, 151 (1995).  The value of open court proceedings is so weighty, and the First Amendment right so strong, that both the Pokaski and Doe courts anticipated that few defendants would be able to seal records under this standard.  Pokaski, 868 F.2d at 506 n. 17; Doe, 420 Mass. at 150 n. 7.

In August 2014, however, the SJC departed sharply from this well-established case law.  In Commonwealth v. Pon, 469 Mass. 296 (2014), the Court decided that the First Amendment does not apply after all, and that henceforth, defendants need show only “good cause,” not a compelling interest, to seal the records of a case ending in dismissal or a nolle prosequiId. at 311-312.  While it remains true that in order to seal these records, defendants must overcome a common-law based “general principle of publicity,” the SJC invited motion judges to abandon the case-specific inquiry required by Doe (and, for that matter, the common law “good cause” test), and instead to “take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities.”  Id. at 315-316.  Pon gives great weight to “the compelling governmental interests in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants,” and only the barest acknowledgement of the public’s “general right to know so that it may hold the government accountable for the proper administration of justice.”  Id. at 315 (emphasis supplied).

The SJC’s ruling in Pon once again puts Massachusetts law at the vanguard of criminal justice secrecy, and in sharp conflict with not only the First Circuit’s Pokaski decision but with every other federal court of appeals to have considered the standard for sealing criminal records.  To be sure, the societal goals cited in Pon are important, but the articulated test makes it likely that many more criminal records—including in cases where the defendant admitted to facts sufficient to warrant a guilty finding in exchange for a continuance without a finding—will be shielded from the press and the public.  While acknowledging in a footnote that a “different analysis may be necessary” if “the defendant is a public figure,” the SJC failed to recognize that today’s private figure can be tomorrow’s candidate for election, and it could be highly relevant to voters that a candidate for office once admitted to a crime.  Perversely, the Pon decision also makes it more likely that the public and the media will resort to third-party background check services, which are likely to be less complete and accurate than official court records that are now permitted to be sealed under Pon.

Conclusion

If there is any part of our government that deserves scrutiny by the press and the public, it is the criminal justice system.  More than 130 years ago, then-Supreme Judicial Court Justice Oliver Wendell Holmes wrote: “it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”  Cowley v. Pulsifer, 137 Mass. 392, 394 (1884).  We are in danger of abandoning that important principle in Massachusetts.

Jeffrey J. Pyle is a partner at Prince Lobel Tye LLP in Boston, where he practices in the fields of First Amendment, media law, and litigation. He is a member of the BBA Council, and previously served as Chair of the Amicus Committee and co-chair of the Civil Rights and Civil Liberties Section.

Endnotes

[i] Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 863 (1995).

[ii] Reinstein, 378 Mass. at 291; Globe Newspaper Co. v. Evans, No. CIV.A 97-4102-E, 1997 WL 448182, at *4 (Mass. Super. Aug. 5, 1997) (Burnes, J.).

[iii] Rafuse v. Stryker, 61 Mass. App. Ct. 595, 600 (2004).

[iv] SPR Bulletin No. 3-03, Nov. 21, 2003.

[vi] Todd Wallack, “Ruling Allows Police to Withhold Officers’ Drunken Driving Records,” Boston Globe, March 11, 2015.

[vii] See www.rcfp.org, last visited September 23, 2015.  According to the Reporters Committee for Freedom of the Press (RCFP), which publishes a 50-state guide to access to public records, there is currently no state where police have unfettered discretion whether to withhold routine arrest reports.

[viii] The earlier exception provides that “any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public.”  G.L. c. 41, § 98F (2013).

[ix] After the amendment of G.L. c. 41, § 98F, the City of Waltham noted a significant drop in the overall number of incidents reported in the police log.  See Eli Sherman, “Waltham Police Comply with New Domestic Violence Law; Logs Show Far Fewer Arrests,” Waltham News Tribune, Aug. 28, 2014.

[x] Under California law, the names and addresses of victims of domestic assault may be withheld at the victim’s request.  Cal. Gov’t Code, § 6254.

[xi] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press–Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Press–Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).


Making Sense of the Internet of Things

Lefkowitz_peterby Peter M. Lefkowitz

The Profession

We have seen the marketing. According to a recent report by a top consulting firm, the Internet of Things will have an annual economic impact of between $4 trillion and $11 trillion by 2025.  Another firm has announced that there will be 50 billion internet-connected devices globally by 2020.  And companies already have rebranded in grand fashion, declaring the arrival of “Smart Homes,” “Smart Cities,” the “Smart Planet,” the “Industrial Internet” (the contribution of the author’s company), and even the “Internet of Everything.”  We also have seen the reality of Fitbits that record our activity and suggest changes to our exercise and sleep patterns, cars that accept remote software updates, and airplane engines that communicate maintenance issues from the tarmac.  For all of this potential, and even greater claimed potential, our shared late-night admission is that none of us has a well-defined picture what, precisely, the Internet of Things is or does.

This combination of wide promise and shared confusion is not a trivial matter.  Companies are setting long-term strategy based upon Jetsons-like glimmers of the future; consumer expectations and fears are being set in an environment of rapidly-evolving offerings and — most critically for attorneys providing advice to clients considering investments in this area  — legislators and regulators are being asked to set legal and enforcement frameworks without a clear picture of the future product landscape or whether products still in their infancy will create anticipated harm.  In order to advise properly in this area, and to avoid regulatory frameworks getting far ahead of actual product development, it is important that lawyers appreciate the scope of Internet of Things technology and the policy implications of internet-connected goods and the data they create and use.

So what is the Internet of Things?  Simply put, the Internet of Things, or IoT, is a set of devices that connect to and send or receive data via the internet, but not necessarily the devices people most often think of as being connected to the internet.  In the consumer world, IoT includes smart meters that measure home energy use, refrigerators that can report back on maintenance needs or whether the owner needs more eggs, and monitors that can record blood sugar results and communicate via Bluetooth to a connected insulin pump.  It also increasingly includes cars that sense other cars in close proximity and record and report on driver speed, location and music listening choices.  And in the industrial space, offerings include an array of sensors and networks that measure and manage the safety and efficiency of oil fields or the direction, speed and service life of wind turbines and airplane engines;  X-ray and CT machines with remote dose monitoring; and badge-based radio-frequency identification systems that analyze whether medical providers are washing their hands in the clinical setting and the resulting impact on infection rates.  This definition generally does not include computers, tablets and other computing devices, although — with smartphone apps advancing to the point of measuring movement and heart rate and reading bar codes to compare prices at local retailers — one could argue that the iPhone and Android phone are the Swiss Army Knives of personal internet-based data collection and use.  In turn, IoT devices generate large sets of sensor-based data, or Big Data, which can be aggregated and analyzed to generate observations concerning the world around us and to improve products and services in healthcare, energy, transportation and consumer industries.

These developments have not been lost on government.  The White House has commissioned two major studies on the potential of Big Data.  The Federal Trade Commission held a full-day workshop to discuss IoT in the home, in transportation and in healthcare, and FTC staff subsequently issued a comprehensive report discussing benefits and risks of IoT.  Branches of the European Commission are encouraging companies to establish European research and development footholds for internet-based devices.  The European Commission noted the development of internet-based devices and the prospect of a Digital Single Market as inspirations for the anticipated replacement of the European Data Privacy Directive.  And European Data Protection Commissioners have boldly asserted their authority, declaring that in light of the risk presented by sensor-based devices, “big data derived from the internet of things . . . should be regarded and treated as personal data” under European data privacy law.  Unfortunately, the Commissioners did not distinguish industrial uses such as wind turbines and oil wells from consumer goods that actively collect personal information.

The FTC report above summarizes many of the practical and policy challenges presented by emerging IoT technologies and the views of advocates for industry and consumers.  Security is, for many, the most compelling issue.  Internet-connected devices must collect data accurately; those data sets need to be communicated securely to data centers; and devices and back-end computing systems need to be protected against hackers, both to protect the data collected from devices and to protect the networks and devices against hijacking.  Recent stories of rogue engineers using laptops to break into parked cars and controlling car brakes remotely, and the dystopian nightmare of a hacked pacemaker on the TV drama Homeland, have not helped mitigate these concerns.  This risk is compounded by the prospect of “big data warehouses” that can store and analyze zettabytes of data in support of technological breakthroughs.

Separately, there is the question of notice and consent for the collection and use of IoT data.  As the FTC staff report notes, it is significantly easier to provide notice about a company’s data practices on a computer screen than on a piece of medical equipment or in a friend’s car that already is collecting and reporting a wide array of data.  This problem is compounded in industrial settings, for example, where passenger weight is analyzed to optimize airplane engine function, or where data sets from and surrounding an MRI machine are communicated to the hospital network to read the scan and to the device manufacturer to facilitate maintenance and product improvement.

Other questions abound.  Will data from an internet-connected device be used for unanticipated purposes, such as devising large consumer medical or credit reports, without the consumer having the ability to know what is being done or how to correct or delete data?  Will providers use data to discriminate improperly, or will better use of data create a more level playing field, facilitating new services at lower prices for a wider swath of consumers?  And are some issues already addressed by current regulatory frameworks like HIPAA or the Fair Credit Reporting Act, related standards like the Payment Card Industry security rules, or extensive regulatory frameworks governing security and data use for government contractors, transportation providers and energy providers?

In turn, certain baselines have emerged.  First, “security by design” and “privacy by design,” the practices of building security and privacy protections into the development lifecycle of goods and networks, are essential.  These requirements become even more compelling in light of the recent decision of the Third Circuit in FTC v. Wyndham Corporation Worldwide, holding, among other things, that the FTC has authority to bring claims alleging “unfairness” for a company’s purported failure to properly secure networks and data.  Second, companies collecting data from IoT devices must carefully consider how much data they need and whether it can be de-identified to minimize privacy risk, whether the data will be aggregated with other data, and whether consumer choice is needed to make specific use of the resulting data set.  And in light of privacy and national security laws around the world — including recent data localization and national security laws in Russia and China — companies will need to evaluate where data is transferred globally and where to locate the associated databases and possibly even global computing, service and engineering staff.

Much of the promise and peril of the Internet of Things and Big Data are in the future.  Google and Dexcom, a maker of blood sugar monitoring devices, recently announced an initiative to make a dime-sized, cloud-based disposable monitor that would communicate the real-time glucose values of diabetes patients directly to parents and medical providers.  No date has been announced, although recent advances in remote monitoring suggest hope.  And the journal Internet of Things Finland recently published an article announcing the proof-of-concept for a “wearable sensor vest with integrated wireless charging that . . . provides information about the location and well-being of children, based on received signal strength indication (RSSI), global positioning system (GPS), accelerometer and temperature sensors.”

Thus far, rule-making has focused on security standards for connected devices and related computing networks.  The FDA has issued detailed security guidance for connected devices and systems, and the Department of Defense has issued security standards for contractors that include an expansive definition of government data subject to coverage under the U.S. Department of Commerce’s NIST 800-171 standard for protecting sensitive federal information.  However, there has not been a push in the U.S. for comprehensive legislation governing internet-connected goods and services.   As the FTC staff report explained: “[t]his industry is in its relatively early stages.  Staff does not believe that the privacy and security risks, though real, need to be addressed through IoT-specific legislation at this time.  Staff agrees with those commentators who stated that there is great potential for innovation in this area, and that legislation aimed specifically at IoT at this stage would be premature.”

The marketplace for internet-connected goods and services surely will continue to expand, and the product and service landscape will advance rapidly.  Whether we will see more than $10 trillion dollars of annual economic impact has yet to be determined.  In this fast-moving environment, companies considering investment in the Internet of Things and Big Data and the attorneys who advise them would be well served to monitor the evolving regulatory and legislative landscape.

Peter Lefkowitz is Chief Counsel for Privacy & Data Protection, and Chief Privacy Officer, at General Electric. Mr. Lefkowitz previously served on the Boston Bar Journal’s Board of Editors.


Assessing the Right to be Forgotten

Lyons_Daniel by Daniel Lyons

Heads Up 

From its inception the Internet has been disrupting business models, as once-ubiquitous brands like Blockbuster, Borders, and Encyclopedia Britannica can attest. But as more of our activities move online, society is beginning to realize how it can disrupt individual lives as well. In 2013, the tech world watched in real time as an ill-advised tweet to 170 followers began trending worldwide and cost 30-year-old PR director Justine Sacco her job while she flew from London to Cape Town, oblivious to the firestorm she had ignited below. More recently, the hack of the adultery facilitating website Ashley Madison has revealed financial information, names, and intimate details about millions of users online. Our lives increasingly leave digital fingerprints that can prove embarrassing or damaging when revealed on the network.

The “Right to be Forgotten” is the European Union’s attempt to smooth these rough edges of cyberspace. The term originated with Mario Costeja Gonzalez of Spain, who defaulted on a mortgage in 1998. To foreclose on the property, the bank dutifully published a notice of default in Costeja Gonzalez’s local newspaper and its online companion. Because Google indexed the site, the notice featured prominently in search results for Costeja Gonzalez’s name, even years afterward. Embarrassed that his default was among the first facts the Internet recited about him, Costeja Gonzalez sued both the paper and Google under the EU Data Protection Directive, which governs the transnational flow of personal information in EU countries. He alleged that the notice infringed on his right to privacy and requested that the companies delete them.

The European Court of Justice (“ECJ”) largely agreed, at least as to Google. Deciding the case on laws governing privacy and protection of personal data, the court explained in a decision dated May 13, 2014, an individual should have the right to request that a search engine remove links to information about an individual that are “inadequate, irrelevant or no longer relevant, or excessive.” Importantly, the individual need not show the revelation of the information is prejudicial, because one’s right to privacy should override a search engine’s economic interests in listing search results. But the court was careful to note that there could be an exception if the individual’s right to privacy was outweighed by the public’s interest in having access to the information in question.

The Costeja Gonzalez opinion addresses an important digital-age problem. It is exceptionally easy to post false, misleading, or simply embarrassing personal information online, and once that information is posted, it is exceptionally difficult for the subject to remedy the situation. Costeja Gonzalez’s embarrassment at a decades-old foreclosure may seem trivial. But the same dynamics plague countless others like Ms. Sacco who are forever tarred by a momentary lapse in judgment. It also affects wholly innocent victims whose private details are posted online, such as the subjects of so-called “revenge porn” sites.

Such incidents illustrate the dark side of the information revolution. The genius of the Internet is its ability to reduce information costs. Any information can be reduced to a series of 1s and 0s, replicated, and transmitted anywhere around the world, instantaneously and virtually without cost. This makes it an exceptional tool for communication and learning. But it can hurt those whose self-interest depends upon controlling the flow of information. Dictators have been hobbled by the Internet’s ability to perpetuate ideas and information while connecting underground resistance groups. More benignly, record labels and movie studios have fought a decade-long war against online piracy. What copyright is to Universal, privacy is to the individual: a right to determine if and when certain information becomes public. The Right to be Forgotten is an attempt to force the Internet to respect these rights, by regulating one of the few bottlenecks in the Internet ecosystem: search engines that guide users to information online.

But the ECJ decision is an unworkable solution that risks doing more harm than good. First, the decision applies only to search engines, meaning the information in question is never actually “forgotten.” Google must suppress links to Costeja Gonzalez’s foreclosure notice, but the newspaper itself remains free to leave the notice available online. Second, the court’s standard is astonishingly vague. The decision relies upon Google and other search engines to determine whether a particular link is “inadequate, irrelevant…or excessive,” and if so, whether the “public interest” nonetheless requires the link to remain posted. The court envisions Google analysts assessing the harm that each item causes to the claimant, and carefully balancing that harm against the public’s right to know a particular fact. In reality, Google faces liability for denying legitimate takedown requests but not for granting frivolous ones. This means that the company is likely to err on the side of granting most requests rather than evaluating each request individually—especially when one considers the cost of evaluating potentially millions of such requests each year. Numerous commentators have criticized the similar selection bias evident in the Digital Millennium Copyright Act copyright takedown regime under US law, leading to the removal of a significant amount of non-infringing material.

More generally, the Right to be Forgotten decision raises broader questions about an Orwellian power to distort history. Unsurprisingly, media organizations are some of the decision’s biggest critics, as they fear individuals will misuse the process to sanitize their pasts. There is some evidence to support this concern: among the first claimants was a British politician seeking to hide his voting record from the public and a convicted sex offender who wants his status kept hidden.  In Massachusetts, it runs counter to the current push for broader public access to court proceedings, particularly in cases involving police officers and other public officials charged with criminal offenses.  In this sense, the EU decision is only part of a broader social conversation about selective disclosure, which also includes the ethics of photoshopping models, contracts prohibiting users from posting negative reviews online, and the use of social media to present idealized images of ourselves online. As the merits of the “Right to be Forgotten” are debated in the United States, it is important that any dialogue, as well as any proposed solutions, carefully balance the rights of both the individual and society to open, accurate, and fair historical information.

Daniel Lyons is an Associate Professor (with tenure) at Boston College Law School, where he specializes in telecommunications, Internet law, administrative law, and property.


20/20 on 2020: Predictions for the Future of Social Media and the Law

By David Kluft, Peter Lefkowitz, Martha Mazzone, Zick Rubin and Tom Hemnes

The Profession

This December marks the 10th birthday of the founding of Linkedin.com.  Next year, 2013, will witness the 10th anniversary of both the public launch of Myspace.com and the initial launch of Facebook (nee Facemash) at Harvard.  While the world celebrates the history of social media, the BBJ is taking a few moments to consider its future impact on the law.

To get the ball rolling, we solicited five leaders and practitioners in areas currently affected by social media to offer thought pieces containing their own predictions (or wild speculations) about how this phenomenon will affect the law in the future.  We asked them to use 2020 as reference year, but some of the predictions went a little further.

How do you think electronic social media will affect the future of your legal practice and the legal profession?  Please share your thoughts by commenting on this article in the space provided below (the Boston Bar Journal’s terms of use apply).

There is no wrong answer . . . yet.

Cyborg Evidence, by Dave Kluft

The technology exists in 2012.  Funded by commercial and military interests, universities and hospitals are developing neural interface systems using hardware developed for electrocorticography, electroencephalography and functional magnetic resonance imaging.  These technologies allow human brains to interface with computers by translating neurons into software commands.  By 2006, a subject at Brown University, using technology funded by the Department of Veteran Affairs, played computer Pong with his mind.  In 2012, paralyzed patients can employ neural impulses to direct a prosthetic hand to raise a coffee cup. The principal application of this technology is for severe epilepsy and spinal cord injuries, but the military also is developing “telepathy helmets.”

Application to consumer electronics follows. In 2012, effective neural interface technology requires invasive implants.  By 2017, these can be replaced by headsets and earpieces.  In 2018, the Wall Street Journal reports that social media companies have been making substantial investments in portable non-invasive cyborg technology.

In 2020, a neural interface social media site is beta tested.  Users are able to share simple binary thoughts (e.g., Like/Don’t Like). By 2025, more advanced software allows the recognition of more complete thoughts. Many users allow their thoughts to be transmitted contemporaneously. By 2028, new software translates visual stimuli received by the human retina into rough still images: a user’s perception of a dog is recorded and published as a stock image of a dog. Further refinements allow recognition of the dog’s breed and individual characteristics. By the end of the decade, old-fashioned social media updates give way to cloud-stored virtual records of thoughts and images. By 2035, if you are under 30, Facebook is something your parents used to use.

Early attempts to admit cyborg evidence recorded by social media are barred.  Despite Section 901(b)(11) of the Mass. Guide to Evidence and similar rules providing that expert testimony is not necessary to authenticate digital communications, Judges initially demand onerous expert testimony and doubt the accuracy of the technology.  As neural interfacing becomes more widely  accepted, however, accuracy and security concerns fade.

Cyborg evidence is first considered in non-jury civil contexts.  In 2039, it serves as part basis for a spoliation ruling in a New Jersey state court, in which a product liability defendant who was wearing a neural interface when he deleted a folder is shown to have had knowledge that relevant documents were contained in that folder.  Cyborg evidence is later admitted in other circumstances, and the arguments against its admission shift to hearsay.  Many courts admit cyborg evidence as a present sense impression. Massachusetts courts, which do not recognize the present sense impression exception, cite the excited utterance and past recollection recorded exceptions.

In 2050, in a matter of first impression, the Massachusetts Supreme Judicial Court is asked to decide whether the final thoughts of a vehicular homicide victim, captured by a social media neural interface, are admissible as a statement made under belief of impending death.  The 130-day period has been waived twice. The defendant, citing Confrontation Clause concerns, plans to appeal to the Supreme Court if the admission of the evidence is upheld.

The Regulatory Landscape, by Peter Lefkowitz

The turning point came in 2015.  In the preceding five years, newspapers had covered the social media industry in ever-greater detail; the Federal Trade Commission had issued new notice and consent requirements for web tracking and limits on use of social media to evaluate employment and credit; a number of social media services had been fined heavily for altering privacy terms without notice and for over-collecting, over-enriching and over-using data; and the European Union had issued regulations governing use of cookies and other tracking technologies.  The real change in the landscape, and the real cause for celebration, was that privacy finally became cool.

After several high profile cyber-attacks, privacy became the product and service differentiator for consumer technology.  Browsers were released that allowed consumers to easily surf the web without extensive tracking by individual sites and ad networks.  Computers, phones, tablets, and hybrid computer-phone-tablets arrived on the doorstep with encryption enabled and no passwords stored by default, and credit cards came with pictures, PINs and various means of confirming identity at check-out.  The “Don’t Let Them Find You” advertising campaign ran six times during the Super Bowl, featuring a husband and wife hiding out in their garage, cell phone SIM cards removed, until their new Privacy Phones arrived and they could re-emerge into the sunlight.

The phenomenon was not lost on social media providers.  Having lost valuable traffic, revenue and market cap because consumers feared “being the product,” providers made a point of advertising the information they did not collect and the data they did not share.  Web pages for pharmaceutical products carried banners advertising that they would not track visitors.  Registration pages provided clearly marked options for collecting and sharing information.  And surveys found that consumers signed up for social media services based overwhelmingly on how much they trusted the service provider.

Having become cool, privacy was able to take a short vacation.   Consumers decided once again that they wanted advertising and coupons for their favorite food and their needed drugs and felt empowered to store healthcare and banking data on their cell phones, with greater assurance that leaving a phone in a taxi wouldn’t upend their personal lives.  Consumer technology companies and service providers made sharing information progressively easier (by providing common formats for consumer decision-making) and more lucrative (by openly sharing the benefits of data collection with consumers).   Health care and other scientific fields benefitted from the ability to use “big data” for clinical research.   And regulators shifted their focus back to hackers, phishers, spammers, scammers and other ignoble creatures.

Perhaps most critically, privacy officers became extremely cool.  Their focus shifted from defending against increasingly aggressive regulation and avoiding the next breach to designing privacy features into products.   CPO’s found new allegiance with their development and sales teams, and their budgets grew as they became integral to the design and release of new products across technology, social media and consumer industries.  Admittedly, the latter trends only began to take hold late in the review period and will be covered in greater depth in the follow-on article of 2030.

Landmarks in Copyright Law, by Zick Rubin

January 14, 2014:  After Twitter introduces a simple online copyright application process with PayPal payment options, the Copyright Office receives 14 billion applications to register tweets and begins to collapse under the load. The Office issues a new regulation providing that works containing fewer than 141 characters will no longer be eligible for copyright registration.

February 14, 2014:  Under pressure from Twitter and its users, the Copyright Office rescinds its “No Tweet” regulation.  Twitter supporters point to nursery rhymes, haikus, and aphorisms containing fewer than 141 characters, including Poor Richard’s pithy “He that lies down with Dogs, shall rise up with fleas.”

June 27, 2016.  The Affordable Idea Sharing Act of 2016 is signed into law by President Clinton.  The Act requires all citizens between ages 12 and 80 to make at least one “bona fide” post each week that is dedicated to the public domain, or they will be presumed legally incompetent.  “We all have great ideas,” the President writes in her signing message, “and we have a duty to share them with our friends.”

May 2, 2018.  In a case of first impression, the First Circuit holds that John Peebles infringed Maurice Schwartz’s copyright when Peebles copied Schwartz’s Match.com on-line profile, including his “favorite sports team,” “favorite recording artist,” “astrological sign,” and “favorite color.”  The court concludes that “Schwartz’s favorites – Red Sox, Springsteen, Capricorn, and blue – constituted a protectable compilation with the required minimal level of creativity, though just barely.”

December 9, 2019.  The Republic of Montenegro declares that it owns all content posted on the .me top-level domain, which has been assigned to Montenegro by ICANN (the Internet Corporation for Assigned Names and Numbers), including ask.me, tell.me, and click.me.

January 3, 2020.   The South Sea island nation of Tuvalu declares ownership of all content posted throughout the world on the .tv top-level domain, , including abc.tv, pbs.tv, and mtv.tv.

January 12, 2020.   In retaliation for Montenegro’s and Tuvalu’s “Internet imperialism,” Craigslist founder and customer service representative Craig Newmark announces that Craigslist Podgorica and Craigslist Funafuti have been taken off-line.

June 2, 2020.  In a long-awaited decision, the Supreme Court upholds the constitutionality of the Affordable Idea Sharing Act of 2016.  The Act had been challenged by an order of Trappist monks bound by a vow of silence.  “They have a First Amendment right not to speak,” Justice Michelle Obama writes for the five-justice majority, “but that doesn’t mean they have a right not to text.”

Email: So 2000 and Late, by Marty Mazzone

It’s 2020.  If 2012 was the dawn of social media as evidence in litigation and investigations, it’s high noon now.   And you are Marshal Kane, facing down the discovery enemy: highly connected, complex “awareness” systems incorporating movement, touch, and location feedback, non-computer instant messaging, video and speech, and more – all, by the way, located in the one cloud above Hadleyville (the dusty Western town in the movie).  After the geniuses at MIT developed and commercialized Blossom, the now-ubiquitous multi-person awareness system (http://www.media.mit.edu/research/groups/fluid-interfaces) in 2014, the very conceptual framework of communication changed.  The legal system still depends on the information in the new awareness systems, but how to get it, preserve it, extract it, read it?  That is the challenge.

We have been here before.  The discovery and authentication concerns of 2012 seem almost quaint now but at the time, with the introduction of social media as a primary source of business as well as personal communications, lawyers actually longed for the goold old days of email.   After all, technology races ahead, but the job of a litigator does not change much.  Litigators tell stories to fact-finders, decision-makers and opponents.  They extract support for those stories, in large part, from the records people leave behind.  Where are people, especially younger people, leaving their records today?  No longer in paper correspondence trails, where the story is straightforward – a simple discovery challenge.  Further, although even today in 2020 litigators do not suffer from a dearth of stupid emails, still we find many fewer stories in email.  When we did find them there, we had the tools (even since before 2012) for extracting stories from email: an arsenal of email review, clustering, threading, and analytical software plus an entire professional discipline and infrastructure called eDiscovery.

At that time, though, the social media revolution became a very real legal challenge.  Facebook (bought out by Google in 2014 but a very popular beginner social media site back in the day), MySpace ( anyone remember MySpace?) and something called Twitter (where anyone could express important or, more usually, vapid thoughts), were used by hundreds of millions of people daily.  In Feburary 2012 Facebook reported 845 million active users., and Twitter at the time had over 200 million active users.  Not only were people telling and leaving their stories in these virtual places, they were telling and leaving a LOT of them.  How to get at these stories and tell them in meaningful ways became the focus of the electronic discovery world, while trial lawyers had to figure out how to connect the stories, often anonymized, to the parties in a dispute – how to authenticate them, in other words.

A prescient thinker at the time, John Palfrey, a Harvard Law School professor, wrote a book called  Interoperability: The Promise and Perils of Highly Interconnected Systems.  He foresaw many new challenges in law, such as privacy and data security – he called them “new versions of old problems” in an interview – as the inevitable result of our love affair with connectedness.   (Read about it here at http://cyber.law.harvard.edu/research/interoperability).  (Privacy of our written communications and interactions on the Internet seems such a dated notion today, but at the time many people were frightened at the amount of personal information publically available.)  Similarly, for the eDiscovery profession, the connectedness and complexity of social media posed overwhelming obstacles to collecting and using evidence.  For example, since the information was actually being stored “in the cloud” by a third party (not a client or opponent, on a closed network), how did litigators obtain the information?   How could a litigator ensure preservation and avoid spoliation charges when users could delete information even years after they “posted” it (an old-fashioned Facebook term for affirmatively publishing information)?  And, since posts were followed by responses over a period of days, interspersed with unrelated topics, how did a litigator reconstruct the actual conversation that occurred?  The threading/reconstruction tools that existed for email had not, as yet, been invented for social media.  Once reconstructed, could the evidence be used?  What circumstantial evidence was enough to connect a person to his social media in a world where imposters flourished?

Now, of course, we have technology that effectively preserves and reconstructs meaningful conversations found in older social media technologies.  But no one yet has come up with a practical, cost-effective way to collect facts from communications arising not via the written word (or the spoken one) but through motile (movement), visual, or haptic (touch) feedback.   We used to have digital interfaces that captured information as part of the hardware and software, or at least we could track and connect users to their interfaces.  Now our hands, or the tabletop, or the wall, are the instantly-available and untraceable interfaces.  It’s 2020, and law is in a show-down with technology.  Who will win?

The Legal Landscape, by Tom Hemnes

A new field of legal specialization will develop at the intersection of privacy, data protection and movement, and brand protection law.  Privacy regulation will coalesce around principles of opt-out for non-sensitive data and opt-in for sensitive data.  Efforts to harmonize the privacy laws of the United States and the European Union will fail, but use of the “Safe Harbor” type principles will expand to facilitate international data flow.  Behavioral marketing will be increasingly regulated; the industry will organize itself to lobby against further regulation.  Copyright-like rights in compilations of data will collide with the personal data protection laws.  Law enforcement and security authorities will monitor social media aggressively, leading to thin regulation of their activities in Western countries but no regulation in authoritarian regimes.  Tort remedies for invasion of privacy and of the right of publicity will expand.  There will be proposals to create property rights in personal data, against which the industry will successfully lobby.  By the end of the next ten years social media will have become less revolutionary from both personal and political standpoints, through regulation and ubiquity.

Thomas Hemnes is a Partner at GTC Law Group LLP & Affiliates.  He is a member of the bar in Massachusetts, England and Wales.

David A. Kluft is a Partner in the litigation department of Foley Hoag LLP.  He is a member of the Boston Bar Journal Board of Editors.

Peter M. Lefkowitz is Vice President, Legal and Chief Privacy Officer at Oracle Corporation. He is a member of the Boston Bar Journal Board of Editors

Martha Mazzone is a Vice President and Associate General Counsel at Fidelity Investments.  She is a member of the Boston Bar Journal Board of Editors.  

Zick Rubin practices publishing, copyright, trademark, and higher education law in Newton  (www.zickrubin.com).   In December, 2020, he received the National Medal of Soothsaying.