Author: TSA Press

According to Vault’s Annual Associate Survey for 2020, which Biglaw firm ranked first in each of these quality of life rankings: Overall Best Law Firm to Work For, Overall Diversity, and Overall Best Summer Associate Program?

Hint: It was the first time ever a firm got top marks in each of those big ticket categories.

See the answer on the next page.

Tesla shares have tripled over the last four months. Elon Musk is taking victory pot shots. That can only mean one thing: David Einhorn’s brief remission from the Teslan strain of Ackmania was just that, brief, and appears to be metastasizing around Netflix.

Greenlight Capital fell 7.6% across the funds in January, according to an investor update on Friday viewed by Bloomberg…. Einhorn added to his short position in Netflix in the fourth quarter, saying the company’s bullish growth narrative is “finally coming to an end” and that there’s “a lot of downside” to the stock. The streaming company’s shares rose about 6.7% in January.

The Montana GOP is learning the hard way that not all publicity is good publicity. On Friday, State Rep. Rodney Garcia sidled up to the microphone at a GOP election event to ask former Montana congressman Ryan Zinke a pointed question about the raging epidemic of socialists “entering our government” and generally ravaging Big Sky Country. Why, wondered Mr. Garcia, were patriotic Montanans not shooting them dead as the Founders intended?

“So actually in the Constitution of the United States (if) they are found guilty of being a socialist member you either go to prison or are shot,” he clarified to reporters later, adding, “They’re enemies of the free state. What do we do with our enemies in war? In Vietnam, (Afghanistan), all those. What did we do?”

Well, yes. But we don’t generally point to the My Lai massacre as the legal standard for behavior in a civil society which is not, in fact, at war with “socialism.”

When pressed, Rep. War Crimes was unable to cite the specific constitutional provision allowing civilians to impose the death penalty on their ideological opponents.

“I agree with my Constitution,” Garcia told the Billings Gazette. “That’s what makes us free. We’re not a democracy, we’re a Republic Constitution.” (Does he mean constitutional republic?)

Citing unspecified Facebook ads, the father of six insisted, “They’re teaching that to kids. Thank God my grandkids know it’s wrong because I teach them. And it’s a very dangerous situation.”

Perhaps Congressman Zinke did perceive a dangerous situation from an obvious lunatic threatening death to anyone who disagrees with him. After all, Montana does take a pretty relaxed approach to concealed carry permitting. Or perhaps Zinke is just a political coward. In any event, faced with Garcia’s ranting, he ducked, saying, “You know, Montana’s a great state.”  Which is true, but not an answer.

This is not Mr. Garcia’s first visit to the Crazytown Rodeo. Last March, he told the rightwing conspiracy blog “North West Liberty News” that parents have the right to physically retaliate against Montana Child and Family Services employees investigating child welfare complaints. Or as he described it, “trying to kidnap them.”

“If they don’t like it, they have a right to grab them by the collar and the seat of the pants and throw them out their door,” Garcia said. “They’re invading their personal property.”

Which is excellent legal advice if you want to add an assault charge to the child endangerment file.

In the end it fell to MT GOP executive director Spenser Merwin to correct the record.

“The Montana Republican Party wholeheartedly condemns the comment that was made and under no circumstance is violence against someone with opposing political views acceptable,” he told the Gazette, clarifying that extrajudicial killings are definitely not part of the GOP platform. “It’s disappointing that this isolated incident took away from the weekend’s events which showcased the strength of our statewide candidates and the importance of the upcoming election.”

Your circus, your monkey, Mr. Merwin.

Billings legislator insists Constitution says it’s OK to shoot socialists [Billings Gazette]
Billings lawmaker accuses state employees of ‘kidnapping’ children [Helena Independent Record]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

Date: February 6th, 2020
Time: 4pm ET / 1pm PT

In our earlier webinar with our friends at Ooma, we explored the ways in which the humble telephone remains the most important piece of legal technology for your practice.

In our next webinar, we will take a look at how to OPTIMIZE your phone system. Webinar will touch on:

• Studies show clients want information about the legal process via voicemail, so learn how to utilize voicemail features to create compelling messages.
• Never let a client call go unanswered: Leverage phone system’s routing functionality.
• Meet the challenge of implementation in a firm-wide environment, with a discussion of how to optimize a phone system for a large group of staff.

Join us on February 6th and learn how to optimize your practice’s phone system.
Learn from the experts, from our friends at Ooma all about the benefits of a truly efficient, economical phone system fully integrated into your attorney workflow.

Can’t make the live event?  Register anyway and webcast will be available on-demand 24 hours after the live event. 

Five U.S. law firms — three in the last 24 hours — have been among the companies and organizations targeted by a new round of ransomware attacks. In two of the cases, a portion of the firms’ stolen data has already been posted online, including client information.

This according to Brett Callow, a threat analyst with Emsisoft, a cybersecurity company that is also an associate partner in the No More Ransom Project, an initiative between multiple law enforcement agencies and the private sector.

Hackers have stolen data from at least five law firms, using the threat of releasing the data to extort payment from the firms, Callow said. In the two cases in which hackers already posted law firm data, they published it on the clear web where it can be viewed by anybody.

The hackers are using the so-called Maze ransomware, which was the subject of a warning issued to companies earlier this month by the FBI. Earlier this week, Ars Technica reported that victims of the Maze  ransomware attacks have included a grocery chain, a CPA firm, and a college.

The hackers infiltrate systems using email with malicious attachments, Callow said. He does not know the exact nature of the emails being used against law firms, but he assumes they are being crafted in such a way that lawyers are likely to open them.

Their modus operandi is to initially name the companies they’ve hit on their website and, if that doesn’t convince the companies to pay, to publish a small of the amount of their data as “proofs.”

“This makes sense,” Callow said. “The more data they publish and the more sensitive that data is, the less incentive an organization has to pay to prevent the remaining data being published. It’s the equivalent of a kidnapper sending a pinky finger.”

If the organization still doesn’t pay, the remaining data is published, sometimes on a staggered basis, he said.

The group has also published data in Russian hacker forums with a note to “Use this information in any nefarious ways that you want,” Callow said.

Once a company does pay, then its name is removed from Maze’s website.

If any reader has more information on the nature of the emails being used, please let me know and I’ll update this post.

Let’s face it: people are sensitive when it comes to facial recognition technology. Having your photo as part of a database for servicing of tailored advertising to you is one thing, but being a part of a surveillance platform is another. Having large amounts of photos in a database is nothing new, but the advent of artificial intelligence (AI) has created new ways to analyze and use such images and related data. Any way you look at it, the advent of AI is changing, well, the face of facial recognition technology. The problem, however, is that the technology is outpacing the ability of the law to catch up.  When it comes to technology, let’s just day that there’s more to your face than meets the digital eye.

As I have written here before, your face may simply not be “yours” anymore. In a report from Georgetown Law’s Center on Privacy and Technology, the Center found more than 117 million adults are part of a “virtual, perpetual lineup,” accessible to law enforcement nationwide. Yep — even though you may not have ever gotten anything more than a speeding ticket, your photo may be part of digital lineup of more than 3 billion faces. Think I am exaggerating? Think again — back in 2011 Google itself admitted that it built, then withheld, facial recognition technology because of the potential for its abuse.  More recently, a company called Clearview AI has made news for developing a facial recognition app that over 600 law enforcement agencies are apparently using to solve cases ranging from shoplifting to child sexual exploitation cases. The point is that the concern is more than an academic one.

Although I applaud the evolution of this technology, I worry about its application under the existing legal framework. Why? Let me count (a few of) the ways:

• Privacy. The right to privacy is not specifically enumerated in the U.S. constitution, and is only protected under SCOTUS precedent, some federal laws (such as for personal health information, nonpublic personal financial information, etc.) and a patchwork of state laws. None of these laws specifically provide a “right to privacy” in one’s face. Although state privacy torts may provide recourse against the use of one’s likeness for commercial gain, this is far from perfect. Worse, the combination of AI and large photo databases is incompatible with the reasonable level of anonymity currently enjoyed by the general public as they go about their daily lives. Let’s “face” it — from doorbell cameras to security monitors to electronic toll booths, the gathering of photos and the databases holding them are only going to continue to grow and proliferate.
• Copyright. Using the photos is one thing, but how the photos in these databases are acquired is another. As I have explained before, some of these photos are taken from surveillance cameras being used by city governments across the country, while others seem to have been compiled from less obvious sources (like IBM engaging in facial recognition research derived from publicly available collections for research purposes to “train” their algorithms). These uses may qualify as “fair use” under Section 107 of the Copyright Act for research purposes, but such use in the context of commercial apps is far less clear (if not altogether improper). In some cases (such as with Clearview AI), the images appear to have been scraped from Facebook, YouTube, and many other sites, which leads to questions regarding whether such acquisition is legally permissible under the terms of use for those as a sublicense or otherwise require the consent of the copyright owner.
• Scope of Use. The possibility for abuse of such datasets using AI cannot be overstated. Depending upon the underlying rights in and to the images within the dataset, there may or may not be constraints on use of the images. In its review of Clearview AI, for example, the New York Times reported that the company did not return the reporter’s telephone calls or emails, but called police officers who ran the reporter’s face through the Clearview AI app to see if they were talking to the media. Further, the technology may be prone to false positive matches, depending upon the programming — a troubling fact in the context of facial recognition.

I actually applaud this evolution of this technology, but caution should be exercised. In much the same way that the privacy of personal health information (and the technology used in obtaining, storing, and transmitting it) garnered the passage of federal legislation and regulations to protect it (i.e., HIPAA and the HITECH Act) , some form of federal legislation and regulation is required to address the collection photos and data for facial recognition to ensure that the technology is not misused. Needless to say, the continued evolution of AI and facial recognition technology will challenge current notions of privacy, but such challenges should not erode (or worse, eviscerate) our right to privacy as we know it. Face it — that would be something worth smiling about.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

I’ve never had a Facebook account, but I do lurk on Twitter. So I use a different name and I never tweet myself. But, you know it’s sort of interesting what you see sometimes.

— Justice Elena Kagan, describing her social media habits during prepared remarks at the New York State Bar Association’s annual gala, where she received the organization’s 2020 Gold Medal for her impact on the legal profession. Kagan says she uses an anonymous name on Twitter so she can see what other people are tweeting.

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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 Twitter or connect with her on LinkedIn.

When you think about the litigation finance industry, you obviously think about the Insane Clown Posse’s seminal “Miracles.” Actually, you almost certainly don’t, but let’s roll with it. Much like the magnets the group holds out as an inscrutable natural wonder to be cherished, litigation finance is increasingly a reality of the legal landscape but very few people take the time to consider how this industry really works.

Bloomberg Law put together this short video to explain this growing business. There’s enough information here to blow your brains.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

A lot of television trucks and reporters were stationed outside 100 Centre Street last week continuing the stakeout of the Harvey Weinstein sexual assault trial.

Eccentric people were there as well. The lady who, on exiting criminal court, saw a ready audience and gave a three-hour extemporaneous harangue against her ex-boyfriend. The single protestor holding a sign calling for the revocation of the recently implemented bail laws in New York. The women wearing red and black with black lace tied around their eyes pointing toward the courthouse.

Media draws attention seekers, and the Weinstein trial had its fair share.

But something important was happening in the courthouse across the street, too, that was just as media worthy. It spoke to why every defendant, even someone like Harvey Weinstein, merits the presumption of innocence.

Rafael Ruiz was convicted after trial of being part of a gang that raped an 18-year-old woman on a Harlem rooftop in 1984. Even though he took the stand and testified that he could not have been a participant for a number of logical reasons, he was still found guilty and sentenced to 25 years.

He served that time, got out and, only this week, was exonerated for the rape he didn’t commit. Due to a series of missteps by police and witnesses, the victim identified Ruiz as being among the men who’d raped her. They’d arrested Ruiz after the victim gave the wrong number for the apartment she’d visited and, by happenstance, when police went there, Ruiz was visiting his brother. Even though he didn’t match the description of the perp the victim gave, his photo was put in a photo array and she picked him out. Then instead of using a five-person line-up, police placed Ruiz alone in a room behind a two-way mirror. She identified him as being one of the gang who’d raped her.

She claimed Ruiz had driven her to the scene of the rape, but Ruiz testified he didn’t know how to drive.

In 2003, after losing his appeal, Ruiz’s family hired an attorney to investigate the case anew. William M. Tendy discovered the mistake involving the apartment address and spoke to the victim. She admitted feeling pressured by police to identify someone. She also said she was uncertain she’d picked out the right man.

Finally, in 2019, the Innocence Project determined that DNA from the rape kit in the case did not match Ruiz’s DNA.

Last Thursday, Ruiz was in court to hear a judge pronounce him innocent.  Having withstood the horror of spending 25 years in prison for a crime he never committed, and being unable to find stable work for the past ten years due to that criminal record, being pronounced not guilty was a moment of elation. Reporters followed him through the hallway to ask questions and take photos of him with his defense team.

Just 20 feet away, another phalanx of media waited for developments in the Weinstein trial. They didn’t turn to watch Ruiz’s moment in the spotlight, but his exoneration is a lesson for all of us.

No one is guilty, no matter how heinous the crime, until proven so by a court of law.

Weinstein had a tough week watching witness after witness describe sexual encounters with him. None of them painted him in a favorable light. One went as far as describing him as having “deformed” genitals and being “intersex.”  She called him dirty and said he “smelled like poop.” But what she didn’t say was that he raped her using physical force that placed her in fear of “immediate death or physical injury” –- elements of the crime of Rape in the First Degree. In fact, she continued in a sexual relationship with him even after the first encounter which, according to her, involved coerced oral sex.

The Weinstein case differs from the Ruiz trial in that Ruiz’s was a case of mistaken identity. Weinstein’s lawyers admit he was involved in sexual escapades with women but argue that they consented to his advances for their own personal gain.

He may have been disgusting, pushy and insistent, but unless the jury matches the evidence with the very specific elements of the crimes of Predatory Sexual Assault (an A felony) — and Rape in the First Degree (a B felony), he should not be found not guilty of the top counts, and deserves the presumption of innocence as much as Ruiz did so many years ago.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.