Novalawcity

"Don't Ask, Don't Tell" May Be Repealed

The White House and the U.S. military, with the support of Chairman of the Joint Chiefs of Staff Admiral Mike Mullen, are moving to end the "don't ask, don't tell" policy, codified at 10 U.S.C. §654 (1993). Under "don't ask, don't tell," service members are not questioned over their sexual orientation but are subject to discharge if they reveal publicly that they are gay or lesbian. Accoding to the New York Times's coverage, the Obama administration was faced with a choice: move away from the policy, or defend in court a policy which President Obama had long thought was wrong.

Here are some more links about "don't ask, don't tell":

• Google has a timeline of the debate, starting in 1993.


• Center for Military Readiness President Elaine Donnelly opposes repeal.


• The New York Times published an editorial advocating the repeal of "don't ask, don't tell.


• Former Chairman of the Joint Chiefs of Staff and Secretary of State Colin Powell now favors repeal.


• Retired Navy Capt. Joan E. Darrah, who served 29½ years as a naval intelligence officer and was chief of staff and deputy commander at the Office of Naval Intelligence, describes her experiences under "don't ask, don't tell."

National Security Letters, Internet Privacy and the First Amendment

Internet Archive, which runs the Wayback Machine, has successfully challenged the FBI's demand that they turn over the name, address and e-mail records of one of their subscribers.  The Wayback Machine is an archive of 2 billion web pages that allows users to look at what “used to be” on the web.  The FBI sought to obtain the subscriber’s records via a national security letter (NSL), which operates as a subpoena, but does not require judicial approval.  NSLs contain gag orders that prohibit recipients from revealing even the existence of the letter.  Use of NSLs has skyrocketed since 2001, and the FBI now issues more than 30,000 each year, up from the historical figure of 300 per year.  According to a report from the Justice Department’s inspector general in March, the bureau often uses the letters improperly and sometimes illegally.  Readers may remember the case of George Christian, a Connecticut librarian who received an NSL and a gag order after someone made a terrorist threat on a computer in a Connecticut library.  Christian challenged the gag order in court.  After the Christian case, the Patriot Act was amended to largely exempt libraries from national security letters.

A New York federal judge held that the original provision in the Patriot Act violated the First Amendment right of free speech.  The same New York judge struck down the successor version as well. The revised Act sought to avoid the constitutional difficulties of the original by requiring that the FBI certify in each case that disclosure might harm national security, criminal investigations, diplomacy or people’s safety.  In the Act as revised, judicial review was provided for, but under extremely deferential standards.  The New York judge held that not only the First Amendment but also the principle of separation of powers was violated by the revised Act.

In the Internet Archive case, the FBI agreed to settle and allow public discussion of the case.  An attorney for the Electronic Frontier Foundation, which helped represent the Internet Archive, speculates that the FBI did so out of a desire to avoid further negative precedent. 

Hat tip to Law.com.

Managing your reputation

Eweek Careers reports that 83% of recruiters now use Google to research prospective employees, up 9 points from two years ago.  Even more striking is that the number who report having eliminated a candidate based on web search results has risen from 25% to 43%. 

The article goes on to explain ways you can use the rules of Google's page rank system to improve the quality of results that your name generates.  One that can be implemented in a number of ways is to be proactive, creating positive pages and links that will show up high, pushing less desirable results lower.  If you use Facebook and MySpace for personal contacts and keep your profiles private, sign up and configure a public profile at professional networking site LinkedIn.com, which has a high page rank.  Get out there and comment intelligently on websites and blogs in your field using your name with a link to your own website, blog, or your LinkedIn profile. 

For more about the pitfalls of social networking with links to additional tips for cleaning up and managing your web reputation, see this Novalawcity post.

Hat tip: FSU College of Law Research Center Blog

Social networking sites as litigation tools

From our director Lisa Smith-Butler comes this article from Law.com, Finding Treasures for Cases on Facebook.

At Malbrough & Lirette in Houma, La., a secretary browses MySpace and Facebook Web sites each day.

She's not checking the online social networking sites for personal reasons, but is performing one of her job duties.

. . . .

In one case, Malbrough said she helped secure shared custody for the father after finding his wife had posted sexually explicit comments on her boyfriend's MySpace page. In another case, a husband's credibility was questioned because, on his MySpace page, he said he was single and looking.

. . . .

Steve Balash of Santa Barbara's Balash & Haaland-Ford said that Jessica Binkerd was sentenced in January to five years and four months in prison after she drove under the influence of alcohol and got into a crash in which her passenger was killed.

Balash said he expected Binkerd to get probation, but she received a prison sentence in large part because her MySpace page showed her wearing an outfit with shot glasses and an alcohol advertisement after the accident.

"That's all the judge talked about," said Balash, adding the outfit was a part of a Halloween costume and his client had not been drinking at the time. "He never got past that. He said she learned no lesson and showed no remorse."

Future lawyers should also be careful about what they post on their social networking profiles.  Here are some resources with tips about limiting public availability of your social networking profiles:

• Common Sense Facebook Advice for Students
• How to clean up your digital dirt
• How to use Facebook without losing your job over it
• MySpace, Facebook, and Job Searching

                                        

The Truth About Cell Phones And The Do Not Call Registry

Are your friends and family forwarding you dubiously sourced emails that make you worry that every telemarketer in the land will soon have their grubby mitts on your private cell phone number?  You could check the story on urban legend depository and fact checking site Snopes.com, but an authoritative source is even better.  Courtesy of BeSpacific, here's a link to press release on the Federal Trade Commission's website to share with them.

The FTC reminds us:

• Contrary to the e-mail, cell phone numbers are NOT being released to telemarketers, and you will NOT soon be getting telemarketing calls on your cell phone.
• Federal Communications Commission (FCC) regulations prohibit telemarketers from using automated dialers to call cell phone numbers. Automated dialers are standard in the industry, so most telemarketers are barred from calling consumers on their cell phones without their consent.
• There is only ONE National DNC Registry.  There is no separate registry for cell phones.
• While the telecommunications industry has been discussing the possibility of creating a wireless 411 directory, according to the FCC, even if a wireless 411 directory is established, most telemarketing calls to cell phones would still be illegal, regardless of whether the number is listed on the federal government’s Do Not Call Registry.

Visit the FTC site for additional details.

Need to register a number to avoid telemarketers? Head over to the Do Not Call Registry and follow the directions there.

Identity theft in the courts

Campus Technology reports that a judge has dismissed the case of two Ohio University alums who wished to sue the university for damages when their personal information was obtained by hackers through a computer security breach.

[Plaintiffs'] Attorney Marc Mezibov told the Athens (Ohio) News that courts have been hesitant to acknowledge the harm done to a person whose personal information has been stolen in a computer breakin unless it can be tied to a subsequent instance of identity theft.

"It's frustrating," he told the News. "Courts are reluctant to grant the proposition that when personal data is lost ... there is harm," unless the consequences can be proved.

OU President Roderick McDavis sympathizes, but thinks the judge ruled correctly.

"I understand how people felt when they learned that their data may have been exposed, because I was one of those people. . . .It can be frightening to think your personal information could be vulnerable."

Domestic snooping

The Center for Democracy and Technology has set up a bibliography of resources on the NSA Domestic Snooping issue. 

LexisNexis data theft discovery worsens

The original discovery of personal data theft from LexisNexis has grown from 30,000 individuals to over 300,000.  The Palm Beach Post reports on the numbers of victims by state with California with the largest number (64,145) and Florida with 15,615 victims.  LexisNexis will notify the individuals involved and is offering free credit bureau reports, credit monitoring and fraud insurance.  For more stories see Google News.

LexisNexis database breached

In a scenario similar to the ChoicePoint scam, LexisNexis-owned Seisint is reporting that "intruders got access to personal information on as many as 32,000 U.S. citizens."  The story broke this afternoon on data that was stolen in January.  See "Another big data broker reports breach" and this Reuters story.  The Washington Post has been following this thread for several months, earlier mentioning both LexisNexis' and Westlaw's vulnerabilities in "Databases called lax with personal information."  The Washington Post reports on the current LexisNexis story in "Data Under Siege."  Seisint is located in Boca Raton, Florida and was purchased by LexisNexis this past summer for $775 million in cash. 

ChoicePoint

Napsterization points to an excellent post on the ChoicePoint scandal at bIPlog (berkeley intellectual property blog).  The author discusses the inaccurate press on the incident saying that technically, ChoicePoint's network was not hacked.  True.  For more background on ChoicePoint, the Washington Post (subscription required) wrote a detailed account of ChoicePoint's operation on Jan. 20, 2005, before the scandal surfaced.  See "In the Age of Security, Firm Mines Wealth of Personal Data."  A chart is attached to the online story that illustrates the depth of the data collected and who taps into it.