Author: TSA Press

Ed.
Note:
Welcome
to
our
daily
feature

Trivia
Question
of
the
Day!

In
the
2020
presidential
election,
which
state
had
the
highest
voter
turnout?

Hint:
Overall,
66.7
percent
of
eligible
voters
cast
ballots
in
the
last
presidential
election,
but
80%
of
the
electorate
did
in
this
state.
The
state
with
the
lowest
voter
turnout
in
2020
was
Oklahoma,
with
only
55%
of
voters
casting
ballots.

See
the
answer
on
the
next
page.

In
a
coincidence
of
timing
that
reflects
how
legal
professionals
are
wrestling
with
issues
around
generative
artificial
intelligence,
the
supreme
courts
of
Delaware
and
Georgia
issued
orders
within
a
day
of
each
other
last
week
relating
to
the
use
of
AI
in
the
courts
and
by
legal
professionals.

On
Oct.
21,
the
Delaware
Supreme
Court

adopted
an
interim
policy
providing
guidance
on
the
use
of
gen
AI
by
judges
and
court
personnel.

The
next
day,
the
Supreme
Court
of
Georgia,
following
up
on

its
August
order
forming
an
Ad
Hoc
Committee
on
Artificial
Intelligence
and
the
Courts,

appointed
the
committee’s
16
members,
who
held
their
first
meeting
the
next
day.

Delaware:
‘Users
Are
Responsible’

The
Delaware
policy
was
developed
and
recommended
by
the
Delaware
Commission
on
Law
and
Technology,
which
the
court
originally
established
in
2013
to
provide
lawyers
with
guidance
and
education
regarding
the
use
of
technology
in
law
practice.

The
policy
allows
the
use
of
gen
AI
tools
by
“all
judicial
branch
judicial
officers,
employees,
law
clerks,
interns,
externs,
and
volunteers.”
It
sets
out
five
policies
regarding
use
of
gen
AI
by
those
employees
(the
following
is
quoted
directly
from
the
policy):

1. Authorized
   User
   Remains
   Responsible.
   Any
   use
   of
   GenAI
   output
   is
   ultimately
   the
   responsibility
   of
   the
   Authorized
   User.
   Authorized
   Users
   are
   responsible
   to
   ensure
   the
   accuracy
   of
   all
   work
   product
   and
   must
   use
   caution
   when
   relying
   on
   the
   output
   of
   GenAI.
2. Informed
   Use.
   Authorized
   Users
   should
   not
   use
   Approved
   GenAI
   without
   a
   working
   knowledge
   and
   understanding
   of
   the
   tools.
   Authorized
   Users
   should
   be
   trained
   in
   the
   technical
   capabilities
   and
   limitations
   of
   Approved
   GenAI
   prior
   to
   use.
3. Decision
   Making.
   Authorized
   Users
   may
   not
   delegate
   their
   decision-making
   function
   to
   Approved
   GenAI.
4. Compliance
   with
   Laws
   and
   Judicial
   Branch
   Policies.
   Use
   of
   GenAI
   must
   comply
   with
   all
   applicable
   laws
   and
   judicial
   branch
   policies.
5. Non-Approved
   GenAI.
   Authorized
   Users
   may
   not
   input
   any
   Non-Public
   Information
   into
   Non-Approved
   GenAI.
   Non-Approved
   GenAI
   may
   not
   be
   used
   on
   State
   Technology
   Resources.

The
policy
also
creates
a
category
of
“Approved
GenAI,”
which
are
tools
that
have
been
approved
by
the
court
system’s
administrative
office.

Georgia:
Protecting
Public
Trust

In
Georgia,
the
Supreme
Court
issued
an
order
appointing
the
members
of
its

Ad
Hoc
Committee
on
Artificial
Intelligence
and
the
Courts.
Their
charge
is
to
assess
the
risks
and
benefits
of
the
use
of
gen
AI
on
the
courts
and
to
make
recommendations
“to
ensure
that
the
use
of
AI
does
not
erode
public
trust
and
confidence
in
the
judicial
system.”

All
but
three
of
the
16
committee
members
are
judges,
clerks
and
court
administrators.
Of
the
other
three,
one
represents
the
State
Bar
of
Georgia,
one
represents
the
Public
Defender
Council,
and
one
is
the
solicitor-general
for
Georgia’s
Cherokee
County.

The
committee
held
its
first
meeting
on
Oct.
23.

Ed.
note:
This
is
the
latest
in
the
article
series,


Cybersecurity:
Tips
From
the
Trenches,
by
our
friends
at

Sensei
Enterprises,
a
boutique
provider
of
IT,
cybersecurity,
and
digital
forensics
services.

As
November
begins,
it’s
a
great
time
for
lawyers
to
spend
a
few
moments
reflecting
on
tips
and
lessons
learned
during
the
annual
Cybersecurity
Awareness
Month
that
just
concluded.
There
have
been
vast
changes
in
the
cybersecurity
realm
over
the
past
year,
including
the
dominance
of
Artificial
Intelligence
(AI)
and
its
effect
on
cybersecurity,
both
the
good
and
bad,
and
the
persistence
of
phishing
attacks.
With
each
passing
day,
month,
and
year,
cybersecurity
challenges
continue
to
grow
for
lawyers.

Microsoft
has
released
its
rundown
on
the
year
in
review,
offering
simplified
advice
and
cybersecurity
steps
to
help
protect
your
data
and
systems.
Lawyers
love
it
when
complex
technical
jargon
is
broken
down
into
easy-to-understand
concepts
with
steps
to
implement,
especially
when
the
information
is
free.

Use
Strong
Passwords
and
a
Password
Manager

Microsoft
now
recommends
that
passwords
never
expire.
Yes,
you
read
that
correctly.
You
can
increase
your
firm’s
Secure
Score
(a
percentage
value
of
your
Microsoft
365
environment
security
settings
compared
to
firms
of
similar
size
and
industry)
by
setting
up
your
users
with
passwords
that
do
not
expire.

That
seems
contradictory
to
the
last
20
years
of
password
policies.
By
using
a
complex
password
of
14
characters
or
more,
in
coordination
with
a
password
manager,
users
no
longer
must
change
their
passwords
every
30,
60,
or
90
days
–
in
many
cases,
users
by
habit
will
just
increase
the
number
at
the
end
of
the
password
or
write
the
password
down
on
paper
(or
keep
it
in
a
Word
file)
if
too
complex.
Users
should
be
using
a
password
manager,
so
they
don’t
have
to
remember
strong,
complex
passwords
–
let
the
software
do
it
for
you!
This
also
can
eliminate
password
reuse
between
different
accounts
–
another
big
cybersecurity

no-no.
There
are
many
different
password
managers
out
there,
including
the
Microsoft
Authenticator
app
–
which
you
probably
are
already
using
for
MFA
(and
it’s
free).

Here
is
a
gentle
reminder
for
all
lawyers.
Do
not
save
your
passwords
within
your
browser.
It
doesn’t
matter
which
browser
you
use,
Chrome,
Firefox,
Edge,
or
Safari,
do
not
do
it.
Close
out
of
the
prompt
or
select
the
Never
option
when
the
browser
prompts
you.
If
your
computer
were
to
be
compromised,
attackers
would
have
quick
access
to
all
the
keys
to
your
firm’s
kingdom.

Turn
on
Multifactor
Authentication

There’s
not
much
to
expand
on
here
and
we
are
well
beyond
the
complaining
about
the
“inconvenience
to
users”
phase
of
this
foundation
for
a
strong
cybersecurity
posture.
If
MFA
is
offered
by
your
service
provider,
which
it
probably
is
these
days,
turn
it
on.
Only
MFA
can
prevent
up
to
99.99%
of
business
account
takeover
attacks
and
keep
the
attackers
out
of
your
mailbox
and
bank
accounts.

Learn
to
Recognize
and
Report
Phishing

Phishing
attacks
remain
the
number
one
concern
of
IT
and
cybersecurity
departments
and
continue
to
cause
long,
sleepless
nights
for
firm
management.
The
primary
way
for
users
to
get
better
at
detecting
a
phishing
email
and
not
falling
victim
to
it
is
through
training.
Mandatory
cybersecurity
awareness
training
with
phishing
simulations
is
the
best
way
to
educate
your
users
and
increase
their
ability
to
detect.
When
a
user
doesn’t
pass
the
simulation
test,
they
can
be
presented
with
short,
educational
videos
to
help
reinforce
detection
concepts.

Training,
in
coordination
with
a
strong
email
protection
solution,
can
help
keep
those
persistent
phishing
attempts
out
of
your
inbox.
Phishing
emails
are
getting
harder
and
harder
to
recognize
with
the
use
of
AI
to
generate
the
content
for
them.
And
yes,
users
should
never
provide
credentials
when
clicking
on
a
link
from
an
unrecognized
sender,
let
alone
enter
their
MFA
code.
Instead,
users
should
report
the
phishing
attempt
to
IT
support,
and
shift-delete
the
email
out
of
the
mailbox.

Keep
Your
Software
Updated

Vulnerabilities
should
never
be
overlooked
or
forgotten.
Zero-day
exploits
and
critical
security
patches
and
updates
to
fix
them
are
released
frequently
throughout
the
year,
by
most
vendors.
Keeping
your
systems
and
software
updated
continues
to
remain
a
priority
in
a
good,
well-established
cybersecurity
plan.

Taking
users
out
of
the
equation
is
the
best
course
of
action.
Automating
both
operating
system
updates
and
third-party
software
updates
is
key
to
patches
being
applied
rather
than
put
off
by
users
–
a
common
reaction
to
the
pesky
Windows
prompts
that
updates
are
ready
to
be
installed
and
the
computer
restarted.
If
your
firm
is
using
Microsoft
Intune
for
device
management,
you
can
create
a
policy
to
apply
to
your
devices
to
automate
this
process
at
no
added
cost.

If
your
firm
is
working
with
a
managed
IT
services
provider,
ask
them
about
automating
the
process
for
you,
since
they
probably
have
Remote
Monitoring
and
Management
(RMM)
software
installed
on
your
endpoints.
For
mobile
devices,
users
should
download
and
install
the
updates
when
they’re
prompted.

See,
that
wasn’t
too
bad.
These
four
simple
steps
can
be
quickly
implemented
by
lawyers
at
no
or
little
additional
cost.
One
day
firm
management
may
be
able
to
sleep
well
at
night,
but
not
anytime
soon.
Especially
if
you
haven’t
started
to
take
the
most
basic
cybersecurity
steps
to
protect
your
accounts
and
client
data.

---

Sharon
D.
Nelson
([email protected])
is
a
practicing
attorney
and
the
president
of
Sensei
Enterprises,
Inc.
She
is
a
past
president
of
the
Virginia
State
Bar,
the
Fairfax
Bar
Association,
and
the
Fairfax
Law
Foundation.
She
is
a
co-author
of
18
books
published
by
the
ABA.

John
W.
Simek
([email protected])
is
vice
president
of
Sensei
Enterprises,
Inc.
He
is
a
Certified
Information
Systems
Security
Professional
(CISSP),
Certified
Ethical
Hacker
(CEH),
and
a
nationally
known
expert
in
the
area
of
digital
forensics.
He
and
Sharon
provide
legal
technology,
cybersecurity,
and
digital
forensics
services
from
their
Fairfax,
Virginia
firm.

Michael
C.
Maschke
([email protected])
is
the
CEO/Director
of
Cybersecurity
and
Digital
Forensics
of
Sensei
Enterprises,
Inc.
He
is
an
EnCase
Certified
Examiner,
a
Certified
Computer
Examiner
(CCE
#744),
a
Certified
Ethical
Hacker,
and
an
AccessData
Certified
Examiner.
He
is
also
a
Certified
Information
Systems
Security
Professional.

The
RNC
clownsuits
have
already
begun!
This
afternoon,
RNC
lawyer
Alex
Kaufman
donned
his
big
red
nose
and
stomped
his
giant
clown
shoes
all
over
the
federal
docket
in
the
Southern
District
of
Georgia.
And
for
it,
he
got
read
for
filth
by
Judge
R.
Stan
Baker,
a
Trump
appointee.

“I
understand
that
in
today’s
day
and
time,
individuals
may
play
fast
and
loose
with
the
facts,
but
we
don’t
do
that
in
this
courtroom.
When
a
lawyer
speaks,
this
court
expects
that
the
lawyer
and
their
clients
present
nothing
more
than
the
ruth.
Our
system
of
justice
demands
it,”
he
said
from
the
bench.
“Plaintiffs
counsel
missed
that
mark
in
this
case.”

The
gravamen
of
the
complaint
was
that
election
officials
in
several
counties
accepted
hand-delivered
absentee
ballots
over
the
weekend,
and
that
is
against
Georgia
law.
Or
if
it
is
not
against
the
law,
other
counties
did
not
accept
ballots
over
the
weekend,
and
that
violates
the
Equal
Protection
Clause.

The
problem
with
the
first
argument
is
that
Fulton
County
Superior
Court
Judge
Kevin
Farmer
already
dropkicked
it
last
week,
lecturing
Kaufman
that
he
was
confusing
advanced
voting
with
absentee
voting.
And
the
problem
with
the
second
argument
is
that
slightly
different
ballot
access
between
counties
has
never
been
deemed
to
violate
Equal
Protection.
Plus
the
plaintiffs
had
no
idea
which
counties
accepted
ballots
over
the
weekend,
and
which
did
not
—
indeed,
their
complaint
alleged
that
Athens-Clarke
County
remained
open,
and
its
lawyer
represented
to
the
Judge
Stan
Baker
that
it
did
not.

But
other
than
that
…
bang-up
job,
RNC!

The
four-hour
hearing
was
what
could
charitably
be
described
as
a
shitshow.
Kaufman’s
first
witness,
an
RNC
official,
was
unable
to
explain
why
his
organization
was
surprised
to
find
election
offices
open
over
the
weekend.
Was
this
standard
practice
over
several
election
cycles?
(Yes.)
Did
the
counties
provide
adequate
notice
that
they
intended
to
accept
absentee
ballots
over
the
weekend?
(Also,
yes.)
He
could
not
say!

His
second
witness
was
a
Georgia
GOP
official
who
testified
that
she
filmed
herself
trying
to
observe
the
receipt
of
absentee
ballots
in
Fulton
County,
but
was
turned
away.
This
appears
to
have
been
the
result
of
a
mix-up,
and
within
a
couple
of
hours,
observers
were
allowed
in.
The
witness
conceded
that
she
was
permitted
to
enter
the
building
once
she
promised
to
stop
filming,
but
declined
the
offer.

When
counsel
for
Chatham,
Cobb,
Clarke,
Clayton,
Gwinnett,
and
DeKalb
Counties
were
up
for
argument,
they
pointed
out
that
the
state
court
had
explicitly
rejected
Kaufman’s
interpretation
of
Georgia
law,
which
turns
on
a
seemingly
deliberate
confusion
of
absentee
ballots
and
early
voting.
They
noted
that

most
counties
across
the
state
kept
the
doors
open
and
accepted
hand-returned
absentee
ballots,
but
the
RNC
chose
only
to
challenge
the
practice
in
seven
large,
Democratic-leaning
counties.
And
they
accused
the
plaintiffs
of
forum
shopping,
since
most
of
the
defendant
counties
were
in
the
Northern
District
of
Georgia,
not
the
Southern.

If
that
last
accusation
was
correct,
the
RNC’s
plan
appears
to
have
backfired
in
spectacular
fashion.
From
the
first,
Judge
Baker
refused
to
accept
that
allowing
voters
to
cast
ballots
had
a
partisan
valance,
tut-tutting
that
referring
to
them
as
“Democrat
counties”
was
inappropriate.

When
Kaufman
and
his
colleague
Dwight
Feemster
suggested
that
they
believed
other
counties
did
not
accept
ballots
over
the
weekend,
the
judge
chided
them
for
failing
to
submit
evidence.

“You
don’t
believe
it,
but
there’s
no
evidence
in
the
record,
correct?”

And
when
they
mumbled
that
the
Georgia
statute
in
question
was
complicated,
he
cut
them
off,
saying,
“Just
because
it
cuts
against
your
client
doesn’t
make
it
difficult?”

After
a
brief
recess,
Judge
Baker
returned
to
issue
his
ruling
from
the
bench.
He
denied
the
request
to
segregate
the
ballots
accepted
over
the
weekend
for
all
the
reasons:
lack
of
jurisdiction,
comity,
traditional
injunction
factors, Purcell
principle,
laches,
lack
of
evidence,
etc.
He
also
read
Kaufman
and
Feemster

for
filth
in
a
hearing
that
was
telecast
live
—
almost
like
he
knew
that
this
shit
matters
for
a
functioning
democracy!

In
a
folksy
ruling,
read
out
in
his
strong
Georgia
twang, the
judge
dinged
the
lawyers
for
failing
to
exercise
“basic
reading
comprehension
skills,”
joking
that
the
defendants
would
require
a
“flux
capacitor”
for
time
travel
to
comply
with
the
plaintiffs’
interpretation
of
the
law.

“If
you
read
the
entirety
of
the
statute
instead
of
cherry-picking
it,
you’d
realize
that
the
defendants
did
not
violate
it
at
all,”
he
scolded.

He
seemed
incredulous
that
the
plaintiffs
would
demand
that
legitimate
voters
who
cast
their
ballot
in
good
faith
would
have
their
votes
discarded
in
“Democrat
counties,”
while
voters
who
did
the
same
in
“Republican
counties,”
who
were
not
named
as
defendants,
would
not.
How
could
this

not
be
a
violation
of
Equal
Protection,
the
court
wondered.

And
he
accused
the
plaintiffs
of
making
arguments
that
were
“factually
and
legally
incorrect”
to
reinforce
false
narratives
about
voting.

“Lawyers’
words
matter,”
Judge
Baker
admonished,
warning
that
there
could
be
“fierce
repercussions
for
lawyers
who
violate
that
duty
of
candor.”

And
although
he
declined
to
impose
sanctions,
he
warned
against
further
shenanigans
when
the
country
is
on
edge.

“Please
don’t
take
us
any
closer
to
that
ledge,”
he
concluded.

All
in
all,
it
was
a
helluva
day
for
the

vaunted
legal
machine
the
RNC
spent
the
past
four
years
building,
to
the

potential
exclusion
of
GOTV
efforts.
Lara
Trump,
take
a
bow!

RNC
v.
Mahoney [Docket
via
Court
Listener]

---

Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

Almost
every
year,
there’s
an
issue
about
a
poll
worker
not
showing
up
or
delay
in
a
polling
station
to
be
open…
You
have
complaints
about
long
lines
of
polling
stations.
I
hope
that
what
we
are
doing
is
providing
a
service
to
voters
to
ensure
that
they
can
go
out
and
vote
and
understand
that
their
votes
will
be
counted.

—

Jeff
Wilhelm,
counsel
at
Reed
Smith,
in
comments
given
to
the

American
Lawyer,
on
how
he’s
trying
to
coordinate
logistics
of
the
in-person
command
center
for
the
national
nonpartisan
Election
Protection
voter
hotline
(866-OUR-VOTE)
at
the
firm’s
Pittsburgh
office.
The
command
center
is
charged
with
monitoring
issues
reported
to
the
hotline
and
coordinating
responses
for
escalated
issues.
Hundreds
of
lawyers
hailing
from
Baker
McKenzie;
Cooley;
Davis
Polk;
Dechert;
Gibson
Dunn;
Lowenstein
Sandler;
Manatt
Phelps
&
Phillips;
Morgan
Lewis;
Mayer
Brown;
Proskauer
Rose;
Reed
Smith;
Stinson;
and
Wilmer
Hale
are
staffing
the
Election
Protection
voter
hotlines
this
Election
Day.

---

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.