The LegalTech 2012 Conference last week was a bit overwhelming for me as a first-time attendee.

As a knowledge management (KM) lawyer / law librarian, my continuing legal education opportunities tend to focus more on conferences related to KM or law libraries, such as the upcoming annual conference of the Canadian Association of Law Libraries / L'Association canadienne des bibliothèques de droit held in Toronto in May.

However, I think it was worthwhile attending LegalTech, although I might not need to attend every year. The main difference for me was the large number of technology vendors exhibiting or presenting their technology.

There were several themes I saw from the conference, including e-discovery and predictive coding, enterprise search, the use of iPads in legal practice (including mobile device management), and working in the cloud. Of these themes, e-discovery seemed to dominate.

Because my technology interests are currently not focused on e-discovery, I found many of the seminar sessions to be less relevant for me. That said, the keynote sessions were interesting and I enjoyed the session called iLove for the iPad: Tips, Tricks & Apps. From that session, I realized I am likely under-utilizing GoodReader for iPad, which – in addition to reading PDF files – also allows you to manage and transfer your files. A number of other PDF apps were mentioned, including PDF PROvider for iPad (which allows you to create PDF files) and PDF Expert (which lets you easily use PDF forms and signatures). The speakers also recommended the Atomic Web Browser as an alternative to the native iPad web browser since you have an option to have this web browser "mimic" your web browser of choice. I also likely taking notes in iWriter, mentioned by the speakers, since it has keyboard "arrows" allowing you to more accurately move the cursor on the screen). The other app I will likely explore is SoundNote, which records the speaker's voice and synchs up the recording with notes you are writing on the iPad. There is of course also the two high-end apps for lawyers, being TrialPad for iPad (which allows trial lawyers to easily use their iPad to present visual evidence to the court) and TranscriptPad for iPad (which allows you to easily review, tag, and annotate examination for discovery transcripts).

Ultimately, however, I found that perhaps the most useful thing to do was to meet with vendors and find out about their technology.

Library Boy told us last year about some tentative steps that courts were making to embrace – or to sniff around tentatively – the whole subject of social media. Today's announcement from the UK Supreme Court that it will start official tweets of judgments – this in anticipation of the Assange extradition decision – represents the first wholesale adoption by a final court of appeal.

It overshadows Chief Justice McLachlin's announcement within a speech at Carleton University on the Media and the Courts, that the Canadian judiciary should start to think seriously about social media.

See the Globe, the Star, CTV and the Halifax papers

You can see a brief video clip here.

I understand that the Australians may be thinking about the issues too.

Two weeks ago federal prosecutors in the US shut down MegaUpload, one of the most popular file-sharing sites on the Internet. The site was a widely-used "digital locker" that stored files for millions of users world-wide. Some of those users, however, used the side for illegitimate purposes, turning the site into a hub of what the US prosecutors characterized as "massive worldwide online piracy."

While there's no question large quantities of illegal, pirated material was successfully removed with the MegaUpload takedown, thousands of innocent users have lost access to their files as a result of the takedown. The legality of the takedown has been questioned by lawyers from around the world, and the Electronic Frontier Foundation has promised to take legal action against the US Government if data is not returned to legitimate users promptly.

When considering the risks of storing data in the cloud, becoming collateral damage from an over-reaching takedown order is not something the typical consumer will - or should – have to contemplate. The US Government deserves strong pushback on this kind of action, as other file storage services, such as Dropbox, Box and others – could face the risk of being summarily shut down because a subset of its users choose to misbehave.

Congratulations to law firm Harrison Pensa in London, Ontario who have just relaunched their website. While launching a new site is not necessarily newsworthy (well, unless you are a member of the firm itself), in this case HP have used some fresh thinking which makes this redesigned site stand out.

A few features of the site:

• the look of the site is bold, personable, and still professional
• rather than stock photos, they feature their own lawyers prominently
• lawyer bios include links to their lawyers on social media sites (notably LinkedIn) and also allow for readers to share the bios across the web with a social media "share" button
• they have three blogs on the site (HP Business, HP Community, and Students), again with share-ability
• they are one of the few law firms taking advantage of the popular software WordPress.

Why is it interesting that they are using WordPress? WordPress is a free, Open Source platform that has become widely adopted around the world both for blogs and for websites as an easy-to-use content management system (CMS). According to Matt Mullenweg (WordPress originator) last August in his "State of the Word" report, WordPress is running on 15.5% of all websites, and accounts for over 54% of CMS marketshare. 22% of domains registered in the U.S. are running WordPress. That is a huge adoption rate, and yet law firms have a tendency to look for something other than this obvious solution. So, kudos to HP for joining the "cool kids" in using WordPress. It makes sense to use something that is widely known, and has a community around it for support.

HP are also tying the launch of their new website in with a campaign to raise funds for the London Food Bank. For every person who "likes" their Facebook community page, they will be donating a pound of food to the food bank. Kudos on this idea to give back!

For a more in-depth discussion of why the Harrison Pensa website is significant, see also Jordan Furlong's post on the Stem Law Firm Web Strategy blog from February 1st.

The Paris court of appeals has decided that a suggested search query generated by the Google Suggest function defamed the company whose name was first entered into the search box. This feature works by displaying the most popular searches performed by other Google searchers associated with the text typed into the search box. So Google doesn’t decide what is displayed; its machines just count and show.

Turns out that one of the most popular associations with the name of the plaintiff company was ‘escroc’, which in French means crook or swindler.

Is this a kind of ‘crowd-sourced’ defamation? What can Google or any search engine realistically do about it? Can the company program its suggestion feature to avoid any words in any language that may have a defamatory meaning? (I guess defamation by context or innuendo may be harder to demonstrate in this process.)

Would it be defamatory if a search for Company X turned up, as an ‘auto-suggest’, CompanyXSucks.com?

The damages were pretty stiff, it seems to me – 50,000 euros.

So: is there a problem here, in your view? Would Canadian law produce the same result? How would you advise your client, the search engine? What about your client Company X, in my hypothetical?

I have a tendency to want to keep my gravy out of my peas — control issues, I know. This makes me work to keep my social media in silos as much as possible, fearing, I suppose, the further loss of privacy if Facebook gossips to Twitter about me and vice versa. The devil — or the deity, if you prefer — is in the intersections, the linkages, the relationships.

This desire for some crafted anonymity or at least a tad of privacy is a forlorn hope, I realize, if I'm online and tweeting, blogging, "plus"-ing and the like, whether or not the right hand knows what the left hand is doing. And it seems that folks younger than me, which is to say most folks by far, are blithely uncaring about privacy when it comes to social media: the more the merrier and let it all connect.

In that spirit, IFTTT ("if this, then that") has launched an intriguing set of functionalities that allow you to explicitly establish linkages among your online activities to suit your particular needs. These linkages are, in effect, simple programs established on the coding model "if this, then that." So, for example, I can tell IFTTT that if I star an item in Google Reader, then send a note of that item to my Evernote account; or, if my Facebook profile picture changes, then change my Twitter photo to the new one also.

The units that you get to control are your social media accounts, which IFTTT calls "channels," and there are some 40 of them (Twitter, Facebook, email, LinkedIn, your telephone, etc. etc.). Channels are connected via "recipes," IFTTT's term for the condition and action parts of the program. There's no list of which actions are available or permissible, so far as I can tell, though there's a long list of "recipes" cooked up by others that will give you a pretty fair idea of what's possible. As you build your own recipe, the site offers you the various options available. When you've done, you've created a "task" that will execute itself.

I've only begun to explore what might be useful to me or, indeed, to those in the legal professions. But off the top of my head, it seems that you might want to keep a record of your tweets (which Twitter won't do for you); in which case a task that archives your tweets to another app so that you've got a good record of what you've said and when you said it might make sense. (As might the ability to trigger your phone to ring when you send a text message — if you find yourself in a lot of meetings.)

Take a look at see what you can come up with. Let us know by way of a comment if you cook up a recipe that might be of interest to others. Peas can taste good with gravy on them.

After a 6 week break the Members of Parliament return to Ottawa today starting at 11 am ET. The Projected Order of Business mentions resumption of the debate over Bill C-25, Pooled Registered Pension Plans Act. CBC's Kady O'Malley has her take on today's proceedings over on the CBC website.

We are expecting a new Federal budget in the next few weeks. And according to CBC News Now, other major legislation that will be dealt with this session includes immigration, financial services review, copyright reform (Bill C-11), the omnibus crime bill (Bill C-10) and doing away with the long gun registry (Bill C-19).

Coverage is currently available from the CBC Politics page. You can also see Kady O'Malley's live coverage via Twitter from the Hill Ticker.

The Senate returns tomorrow.

On January 24th, Google announced a sweeping overhaul to its privacy policies that will take effect March 1, 2012. Rather than maintaining 60+ distinct privacy policies for its various properties, Google has created a single, unified privacy policy that will provide what Google describes as a " beautifully simple and intuitive experience" across all of the company's sites.

The company should be commended for rolling out these changes in a completely transparent way: it has advertised the changes across its properties, and given users over a month to review the changes prior to them taking effect. Google's educational site does an admirable job of outlining the motivation for the changes. However, this does little to address concerns the updated privacy policy will provide Google an all-too-powerful window into our lives.

Importantly, the change in the privacy policy broadens the scope of how Google can use information gathered from its users:

We use the information we collect from all of our services to provide, maintain, protect and improve them, to develop new ones, and to protect Google and our users. We also use this information to offer you tailored content – like giving you more relevant search results and ads.

The new policy allows Google, for the first time ever, to freely share information between its various sites so it can create a more accurate model of users' interests and, thus, target ads more accurately. Short of deleting your Google account, there is no way to opt out of the forthcoming privacy changes.

Google's announcement has already generated a substantial backlash among users and lawmakers alike, forcing the company to defend the upcoming privacy policy changes.

Many users would rather give up a bit more privacy than give up Google. How about you?

Despite anecdotal evidence of jurors misbehaving when using the Internet and social media (for instance, the recent article on Slaw English Court Jails Juror Who Used Internet Search), a recent survey of members of the U.S. federal judiciary reveals that the problem appears less widespread than many assume.

The Federal Judicial Center was asked by a committee of the policy-making Judicial Conference of the United States to survey federal judges on the issue (response rate was 53%).

The results, based on the responses of 508 responding judges, indicate that detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom. The most common strategy is incorporating social media use into jury instructions (…) Also common are the practice of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom. Judges admit that it is difficult to police jurors.

Only 30 of the 508 judges who responded reported instances of detected social media use by jurors during trials or deliberations.

I wouldn't be surprised to find out that the situation is similar in Canada.

Maybe all the fuss over Juror (Mis)Behavior in the Information Age is exaggerated. Of course, it is also possible that a lot of the illicit juror tweeting, Google searching, LinkedIn'ing and Facebooking may very well escape the attention of judges. Most judges find out about juror misuse of Net media from tattling by other jurors or lawyers (perhaps lawyers who feel they are losing the case?).

On Friday I had the pleasure of speaking to an audience of lawyers at The Commons Institute's eCommerce and the Practice of Law conference in Toronto. I was given the large topic of using social media in a legal practice.

Below are the slides I started with in the discussion, but the real meat of it was the many excellent questions that were put to me by the group. I hope to blog more about those questions, either here or over on my personal blog (will let you know!). In the meantime, I hope these slides are helpful.

Here are just a few links to what seems the most thoughtful commentary on the aftermath of the Jan. 18 Blackout. Add more in the comments, if you got 'em.

• SOPA support in Congress
• PIPA vote postponed
• Why the strategy failed
• Whose daily life the blackout affected
• The significance of the effort
• The whole thing explained in 13 minutes

Also, using copyright laws to justify civil rights infringements is not over

The general public can already get legal information and/or advice from public legal education websites or from legal clinics and pro bono groups.

Some city councils in the United Kingdom are going one step further. Birmingham and Westminster are teaming up with videoconferencing firm Instant Law UK to offer free legal advice via webcam in public libraries:

"The plan is now to be in 100 locations within 12 months and 360 locations in 24 months. Though it will continue to place kiosks in those shopping centres which have already been identified – with three set to launch at the end of January – the focus is now on libraries. Services will in time be extended to cover non-legal issues such as debt problems."

"Users will access the service through a dedicated computer screen and webcam in a secure location in the library."

It will be interesting to watch this experiment as it unfolds. Will Canadian public libraries follow suit?

From an item I just posted on Stem's newly launched blog The Greenhouse, a javascript library is now available called impress.js that replicates many of zooming effects found in Prezi.com. For those not familiar with Prezi, this web presentation tool delivers a number of cool 3D effects, zooming in and out of your presentation elements.

The impress.js library offers similar effects, but without the flash technology. Developed by Bartek Szopka, it is also open source, and utilizes CSS3 3D transitions found in newer webkit supported browsers — which means you'll need Chrome or Safari to see the effects in this demo.

It's interesting to see some of the Prezi presentation experience recreated in webpages. It also demonstrates how far web presentation on open web standards has truly come.

If the geeky webby code-mongering doesn't bother you, please drop by The Greenhouse for more in the future! :)

On January 18, 2012 you will not be able to read anything from the English version of Wikipedia.
Building on Jack's post yesterday, there is indeed a BIG fuss about SOPA. As Jack mentioned, Reddit and Boing Boing are also going dark in protest.

Wikipedia explains their blackout here, but I found this expert particularly interesting:

My hope is that when Wikipedia shuts down on January 18, people will understand that we’re doing it for our readers. We support everyone’s right to freedom of thought and freedom of expression. We think everyone should have access to educational material on a wide range of subjects, even if they can’t pay for it. We believe in a free and open Internet where information can be shared without impediment. We believe that new proposed laws like SOPA and PIPA, and other similar laws under discussion inside and outside the United States — don’t advance the interests of the general public.

There is a lengthy list of those who oppose PIPA and SOPA at the Protect Innovation website as well as advocacy and background materials.

Do you know of other sites going dark in protest on January 18?

Controversy and anger over the US Stop Online Piracy Act (SOPA) has been gathering since the bill was introduced nearly three months ago.

Corporate supporters of the bill have been the targets of organized boycotts. GoDaddy, for example, was a supporter of SOPA until December 29's "Dump GoDaddy Day" gained enough traction to force the company to reverse its position on SOPA.

Meanwhile, popular websites such as Reddit and Boing Boing will show their opposition to SOPA by "going dark" (i.e., shutting down) for one day on January 18th. Google and Facebook are being campaigned to undertake a similar shutdown to show their opposition to SOPA.

So what's all the fuss about? SOPA grants copyright holders the ability to launch legal action against "rogue websites" that had, directly or indirectly, facilitated the unauthorized distribution of their content. While the propose bill sounds, on the surface, to be serving a noble purpose, opponents criticize the bill as too far-reaching, vague in its definitions, and at risk of detrimentally impacting legitimate websites. Furthermore, the bill's proposal to implement DNS blocking would undermine a key element of the Internet's infrastructure. An exhaustive list of why SOPA and the related Protect IP bills are fatally flawed authored by Mike Masnick is available on TechDirt.

Even the Obama administration has weighed in against the bill, citing the DNS-related provisions of the bill as a major concern.

It will be interesting, to say the least, to see how Congress reacts as opposition to SOPA culminates this week.

The 2011 Website Award of the International Association of Law Libraries (IALL) went to the Kenya Law Reports.

The winner was announced in December at an IALL meeting in Kuala Lumpur, Malaysia.

The Award seeks to recognise and promote free legal information websites that are authoritative, comprehensive, up-to-date, useful, and user-friendly.

Other nominees in 2011 included:

• Europeana
• Global Legal Information Network
• HuriSearch
• International Comparative Legal Guide Series
• Legifrance
• openDOAR
• RIS – Bundeskanzleramt Rechtsinformationssystem
• THOMAS
• War Crimes Research Office, Jurisprudence Collections
• WebLaw

A list of winners from previous years can be found on the IALL website.

Today AvoidAClaim posted about three new fraud scams that lawyers alerted us to. All were similar to other scams we have seen in the past.

• A commercial debt collection scam by Grenham Donal Falley
• A breach of contract scam by Chan Li
• A collaborative family law agreement scam by Michelle Eley

This goes to show that the frausters are always at work coming up with new names, new email addresses, and new variations of the same scam to keep ahead of our efforts to publicize the information. See our Fraud Fact sheet for all the information you'll need to help spot the red flags of scams like these.

Over the last four days there has been a massive spike in bad cheque frauds targeting lawyers in across Canada (BC, Ontario and Quebec), the U.S. (NC, NY) and several other countries around the world (including Australia, Fiji, Italy, Scotland, Sweden, Turkey and the U.K.).

Almost 300 lawyers notified us that they received an initial contact message on one of these frauds. As LAWPRO would receive reports on a fraction of the attempted frauds, it would appear that thousands of lawyers have been targeted over the last four days. Several thousand lawyers have visited the AvoidAClaim blog for more information on these frauds.

Roughly half the frauds reported to us were from someone purporting to be Nan Zhang of NPI Lease Company Limited seeking help on a breach of lease matter.

About one third were from someone purporting to be Kiyoshi Yukio of NPI Lease Company Limited seeking help on a breach of lease matter.

We have several reports of someone purporting to be Jane Zhu of China Harbour Engineering Company Limited seeking help on a breach of lease matter.

This was the first time we have seen this lease scam and all three of the above names are new to us as well. In this bad cheque fraud the ‘customer’ accused of breaching the lease agreement will quickly send a (counterfeit) cheque for damages to the lawyers office, and the lawyer will be asked to wire the funds (minus fees and costs) to an offshore account. Click on the above links for more details on these scams. These email messages on them were more convincing than some of the ones we have seen in the past as they are personally addressed to the lawyers they were sent to (not BCC messages sent to large numbers of people).

Over the last four days we also received several reports of attempted frauds using names and scams we have seen many times before including:

• Zaira Hoshiko re collecting a spousal support payment from her ex-husband Allen Hoshiko further to a Collaborative Law Agreement.
• Brianna Shunshi re collecting a spousal support payment from her ex-husband Bill Shunshi further to a Collaborative Law Agreement.

If you have been targeted by these or similar frauds, please forward any of the emails and supporting documents that you have received to fraudinfo@lawpro.ca.

The Electronic Frontier Foundation (EFF) offers a terrific suggestion for a New Year's resolution that you might actually have a decent chance of keeping: enabling full disk encryption on all of your computers.

Full disk encryption means that if your computer's hard drive falls into the wrong hands – because of theft, loss, or other causes – it remains unreadable until the correct "passphrase" is entered. If, for example, you lose your laptop full of sensitive client data while traveling, you can rest easy knowing that the data on your laptop is protected from prying eyes thanks to the digital vault full disk encryption provides.

Aside from loss and theft, full disk encryption offers the benefit of protecting your data from prying eyes at the U.S. border.

If you're not already using full disk encryption, you should be. The EFF offers suggestions for tools that can be used for full disk encryption in the full article on bringing in 2012 with full disk encryption.

Last May I attended a talk by Ron Deibert, Director of Citizen Lab, part of the Munk School of Global Affairs, University of Toronto, at the annual Mesh Conference in Toronto. He talked about cyber crime having become one of the world's largest growth sectors, with savvy young coders from poorer nations leading the way. Cyber crime, he explained, takes advantage of:

• mobile networking and reliance on the web for our computing
• lack of controls (i.e. regulation and legislation) internationally
• proper security practices and policies not yet in place

Deibert has written a report for GISWatch (Global Information Society Watch) entitled Toward a Cyber Security Strategy for Global Civil Society? (December 2011) in which he explains the forces affecting cyberspace:

• "The internet’s de facto and distributed regime of governance – largely informal and driven up to now by decisions of like-minded engineers – has come under massive stress as a function of the internet’s continuing rapid growth."
• "…there has been a vast growth in the developing world, as millions of new digital natives come online. With these new digital natives come new values and interests that in turn are affecting internet governance, as governments like China, Russia and India exercise their influence."
• Television, telephony and radio have been integrated into what we know as cyberspace to make one big communications system. "This paradigm shift has upset the principles, norms and rules of what used to be just the “internet”, with implications for freedom of speech and access to information."
• Transnational corporations are acting as gatekeepers. "Market considerations can easily outweigh privacy and other rights concerns, and have already made largely irrelevant so-called 'end-to-end' principles that once ensured network neutrality."
• "…the private sector is being pressured, compelled, and even incentivised to 'police the internet' by governments looking to download their growing cyberspace controls." He points to the proposed "Omnibus Crime Bill" (Bill C-10, Safe Streets and Communities Act) in Canada as an example of a government requiring ISPs and telecommunications companies to "retain user data, process the data in ways that make it amenable to law enforcement and intelligence, and then share that data with law enforcement representatives – all without judicial oversight."

He states that "the securitisation of cyberspace – a transformation of the domain into a matter of national security – is perhaps the most important factor shaping the global communications ecosystem today." Cyberspace is now affecting national security, and has brought with it a whole new set of products, services and policy around cyber securitisation.

He says it is also affecting Internet censorship, and this will become an increasing threat to civic networks that are interested in open data. The threats are real, he insists, so if civic networks want to see their interests maintained on the Internet, they must get involved in helping to find "grassroots" solutions to the Internet's security problems before governments dominate with their interests only:

Civic networks need to be at the forefront of security solutions that preserve cyberspace as an open commons of information, protect privacy by design, and shore up access to information and freedom of speech, while at the same time address the growing vulnerabilities that have produced a massive explosion in cyber crime and security breaches.

He states that civic networks–like large corporations–are transnational in scope, and are therefore well placed to bring public pressure to bear on the private sector. He also explains:

Part of the civic strategy must also include a serious engagement with law enforcement – another traditional anathema for civil society. Law enforcement agencies are often stigmatised as the Orwellian bogeymen of internet freedom (and in places like Belarus, Uzbekistan and Burma, they are), but the reality in the liberal democratic world is more complex. Many law enforcement agencies are overwhelmed with cyber crime, are understaffed, lack proper equipment and training, and have no incentives or structures to cooperate across borders. Instead of dealing with these shortcomings head on, politicians are opting for new “Patriot Act” powers that dilute civil liberties, place burdens on the private sector, and conjure up fears of a surveillance society. What law enforcement needs is not new powers, it needs new resources, capabilities, proper training and equipment. But alongside those new resources should be the highest standards of judicial oversight and public accountability. Civic networks can articulate the differences between powers and resources, and highlight the importance of public accountability to liberal democracy as an example to the rest of the world without alienating what could be an important natural ally.

I encourage you to read the full paper as this only gives a taste of Deibert's full intention.

While this paper is a call to action to "civil networks" to step up to the plate, I wonder who these networks are specifically. Who will take up the call, who will lead the way? Other than the OpenNet initiative and the Electronic Frontier Foundation mentioned in the article, I don't get a sense of exactly who is meant to carry this through. No doubt all of us as citizens, but I expect it will take a lot of coordination.

Photo credit: Binary Code 2 by Flaivoloka, from stock.xchng.

I read Steve Matthew's Slaw.ca column today Web Law Predictions for 2012 with great interest. I noted especially the prediction that "Firms Abandon Content, Blame Subsequent Failures on Social Media," with the implication that firms can't just by-pass creating great blog content and expect to get traction and otherwise build their reputations online.

One great start to blogging is to think about commentary that would have previously gone out via newsletter or email to clients, and make that available on the internet via a blog. However, writing for the printed text and writing for the web are two different things.

Write for your audience

First, you must consider your audience. Who are you writing for–lawyers? Or clients? Lawyers tend to like text-heavy documents, but most other audiences do not. If you are writing for clients, do not assume they will have time or the inclination to read long tracts.

Have a look at what else your audience reads and figure out what appeals to them. Perhaps video is the way to go instead with the audience you are trying to appeal to? It is very possible that clients in different industries consume content in different ways and prefer their content in different formats.

Make blog posts more readable

It can be more difficult to parse text online, and so we use a number of techniques to break up text for a blog:

• Consider breaking up a longer written article into a few smaller blog posts. You will get more mileage out of the content, and it will be easier for your audience to dip into.
• Use smaller paragraphs. I am always surprised at how a standard paragraph looks so long in a blog post. You will likely need to break these down more than you otherwise would think necessary. For example, the first two paragraphs in this blog post were originally one, but when I previewed them as a blog post, looked far too dense and so I broke them up.
• Use headings and bulleted or numbered lists inside longer blog posts to help the reader easily scan the content.
• Consider putting key words or phrases into bold to make them stand out, as I have done with this bulleted list.
• Use images to make blog posts more visually interesting. There is an interesting post today from Problogger: How to Use Images in Your Blog Posts. It is a nice introduction to using images.
• Use other media such as audio and video to lend some variety to your content. Selecting a video from another source, dropping it into your blog post with the "embed code," and then adding your own commentary to it is a nice way to change things up. If you get daring, you can try creating your own audio or video content. However, for a professional setting I suggest getting professional assistance to learn this part since it can be difficult to do well and is therefore time-consuming to get started on your own.

Vary the content

You need to keep the audience interested and engaged. Writing just commentary about recent case law is probably not going to keep them coming back for more. (I am assuming you want them to come back!) Don't forget to add a personal touch, lending a human voice with some personality. As audiences, we relate far better to other people than we do to faceless organizations.

Here are some additional ideas for content, and no doubt you can think of many more:

• discussion of newly introduced legislation
• other developments in the industry, such as new requirements from government
• what you learned at a conference or seminar
• a summary of recent surveys or report findings
• upcoming events
• a good, related article you read and your additional comments
• a review of a related book
• an interview with someone in the industry

What other types of blog posts do you like to read or write?
Image: courtesy of brainloc via stock.xchng

The 2011 Apple in Law Offices Survey saw over 750 respondents provide insight on how Apple devices, ranging from the iPhone to the MacBook, are impacting the way they practice law.

iPad

Unsurprisingly, the iPad saw a huge jump in usage. In the 2010 survey, 26% of respondents used an iPad in their law office; in the 2011 survey, that figure jumped to 56%. The remaining 44% of lawyers without an iPad apparently don't plan on going without one for long: 71% of respondents were considering purchasing iPads for their law office in the next year:

Mobile

On the mobile front, iPhone and Android continued to surge in usage at the expense of BlackBerry and Palm:

The Cloud

Cloud-based applications work across iPhone, iPads, Macs and PCs alike, and the 2011 Apple in Law Offices Survey shows cloud-based applications are rapidly becoming an integral part of Apple-using law firms.

The top 5 cloud-based applications were:

• Dropbox (used by 26% of respondents)
• Clio (used by 22% of respondents)
• Google Apps (used by 16% of respondents)
• iCloud (used by 15% of respondents)
• Box.net (used by 5% of respondents)

Popular Desktop-based Applications

The top 5 desktop applications used by respondents were:

Why Lawyers Choose Apple

Why are lawyers continuing to “go Apple”? 46.5% of respondents said they chose Apple hardware over PC options because the technology was more reliable and secure. Usability was next on at 33.8%. Familiarity due to home use of Apple/Mac products was 9.8%, and surprisingly aesthetics and design came in fourth at only 3%.

The Apple in Law Offices Survey is co-sponsored by Clio and MILOfest.

'Tis the season for law firms (and no doubt others) to send out season's greetings by email, most often accompanied by the usual wordy and sometimes bilingual notices that the content of the email may be confidential, privileged and subject to diverse prohibitions that we are more or less politely admonished to comply with.

Here's a typical, though polite, version (French omitted):

CONFIDENTIALITY NOTICE: The contents of this electronic mail message are confidential and strictly reserved for the sole use of its intended recipients. This message may contain information protected by the solicitor-client privilege. If you receive this message in error, please notify the sender immediately and delete the original message as well as all copies. Any disclosure, copying, distribution or reliance on the contents of the information is strictly prohibited. Thank you.

This year I have seen one that despite its economy of expression has an element that's new to me: a copyright claim. It's in an email whose subject line is "Happy Holidays from Your Friends at [Big Law firm]" and besides the medium-tech 'e-card' to which it links, its only content is this (I omit the French):

"This e-mail message is privileged, confidential and subject to copyright. Any unauthorized use or disclosure is prohibited."

The usual question arises whether it is helpful to claim privilege in something that is clearly not privileged, or whether that undermines one's assertion of privilege when the content really is privileged.

The new question, for me, is why one asserts copyright. Copyright arises automatically in our law, though possibly protecting it internationally would be helped by an assertion – but doesn't the Berne Convention require the use of © to do that, and a date?

Is the idea to prevent recipients from borrowing/pirating/emulating the firm's finely honed expression of its legal work (assuming charitably that it did not insert the copyright claim solely into its holiday greetings)? Given the amount of borrowing from long-standing and widely-distributed precedents in legal drafting, does that really hold water anyway? I suppose emails are not usually drafted using the forms books…

Is it an attempt to prevent people from posting online cease-and-desist notices that law firms send out to people who their clients think have defamed them? It is becoming common for such letters to show up on the recipients' web sites, partly to expose what the recipients perceive as bullying, and partly to laugh at the pomposity of some of the writers. (Drafters of such letters, take note.)

Is there a new problem that this new notice is aimed at resolving, or is it just another cautionary note from a profession that is good at detecting risk and trying to avert it? Or is it a bit of overkill?

The Bessemer Cloudscape

For all the talk about cloud computing and the security and ethics implications thereof, for many the concept remains a nebulous one. Earlier this month Bessemer Venture Partners, a leading venture capital firm, helped make the concept of cloud computing much more concrete by creating and publishing the Bessemer Cloudscape, a "visual to track the leading companies in this revolution."

Bessemer has invested heavily in cloud computing, and is in an excellent position to map the cloudscape. The firm sees cloud computing not only as one of the most important technology transitions to have ever occurred, but also as potential catalyst for a broader economic recovery:

Even as global markets struggle beneath the weight of unemployment, government paralysis, debt crises and Occupy Wall Street, one segment of the economy enjoys explosive growth with the promise of leading the recovery, one job at a time: cloud computing.

Cloud computing is no longer at the leading edge of the software world, but rather from the perspective of a growth investor, entrepreneur, or technology buyer, cloud computing IS the modern software industry. This multi-billion dollar, high-growth segment of technology now encompasses hundreds of exciting companies, covering every major segment of the software ecosystem.

The Bessemer Cloudscape is divided into three "layers":

Software-as-a-Service. This includes companies in virtually every segment of the market, which Bessemer divides into CRM, Marketing Demand Generation, Human Resources, Finance & Accounting, Content Management, Vertical (e.g. legal, healthcare), Enterprise Social Media, Marketing Analytics, Retail & E-Commerce, Collaboration, Business Intelligence and Ad Tech. The Software-as-a-Service layer of the Bessemer Cloudscape is targeted primary at corporate and consumer end-users. You'll recognize many names in this layer of the cloudscape, including Salesforce, LinkedIn, Box, Dropbox, Clio (my own company), Twitter, Google, and Facebook.

Platform-as-a-Service. This segment includes companies such as Heroku and New Relic. This segment of the cloud computing market is targeted primary at developers, which in many cases are using these Platform-as-a-Service companies to help deliver their own Software-as-a-Service products.

Infrastructure-as-a-Service. This is the segment of the cloud computing market that provides the foundation atop which Software-as-a-Service and Platform-as-a-Service companies build their offerings. Companies at this level of the cloud operate huge datacenters with hundreds of thousands of servers.

We read from time to time that Internet defamation is worse than that in other media because of its global reach and persistence over time. Thus the Ontario Court of Appeal in Barrick v Lopehandia 2004 CanLII 12938 issued an injunction against further defamation, in part because of the Internet’s character as “potentially a medium of virtually limitless international defamation” (the Court quoted Matthew Collins, The Law of Defamation and the Internet.) The court (by majority) also increased fivefold the damages awarded at trial, for similar reasons.

Recently the British Columbia Supreme Court granted ex parte injunctions against publication of defamatory material. Nazerali v Mitchell 2011 BCSC 1581 (CanLII) (and against any transfer of domains or material that might facilitate the spread of the libel). See a comment on the case here.

On the other hand, the Ontario Superior Court recently held in Baglow v Smith 2011 ONSC 5131 (CanLII) that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog. The readers are expecting a reply, not a lawsuit, said the Court. It was not appropriate for a participant in a comment thread to go off to court, dropping out of the debate. One can ‘remove the sting’ by responding. The judgment quotes Justice Binnie in the SCC’s WIC Radio decision on fair comment, that public controversy can be a rough trade, and the law needs to accommodate its requirements.

Are the rules about what one can or should say online different from those that apply in print? Should one be compelled to defend oneself online? Are insults less defamatory there (here)?

Just when we were getting used to Twitter's new interface, along comes an even newer one. Twitter is introducing a new interface that has a consistent layout across the mobile and Internet applications. The new version is gradually being rolled out; I have seen it on the iPhone but not yet on the Internet. The iPad version is still being developed.

More information is given at fly.twitter.com.

According to Kevin O'Keefe on his Real Lawyers Have Blogs blog, this redesigned Twitter will be better for lawyers. He maintains the layout is easier to use, and it is more professional in appearance:

Twitter is likely to win over more lawyers and law firms who have found Twitter difficult to use and a bit unprofessional in their minds. Twitter is already mainstream among influencers (bloggers, reporters, association leaders) of a law firm's clients and prospective clients as well as clients themselves. These changes will get lawyers sitting in the fence as to Twitter engaged in using it.

For authors on SLAW, you know that in today's world, obtaining a publishing agreement with a traditional publisher means that you have to show your publisher how YOU will market and promote your own book. Those authors with a broad reach will of course be more attractive to a publisher. By the time you contact a publisher, you likely have some blog postings and perhaps print articles on your CV, but how about Twitter, Facebook, LinkedIn and other online marketing tools? What to do and where to do them? And a biggie – how much time to spend marketing rather than writing and perhaps making a living! I recommend all authors (and others interested in online marketing and publicity) take a look at the Wiley Author's Guide to Online Marketing & Publicity.

The Attorney General for England and Wales, Dominic Grieve gave a very interesting speech on December 1 entitled 'Contempt – A Balancing Act: balancing the freedom of the press with the fair administration of justice' to journalism students where he commented on his approach to contempt of court.

'Citizen journalists' should not think they are immune to the law of contempt, that there is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. While he accepts the danger posed to the administration of Justice by many bloggers is minimal, he say that we should not underestimate the potential for a blog or tweet to go viral.

We have seen in recent years not only the rise of social media but also the blog and the citizen journalist. Unlike major news organisations, which on the whole act in a responsible and measured manner, the inhabitants of the internet often feel themselves to be unconstrained by the laws of the land. There is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. This is mistaken.

Whilst I accept the danger posed to the administration of Justice by many bloggers is minimal, we should not underestimate the potential for a blog or tweet to go viral. As incautious city bankers and brides to be have discovered to their cost, comments on the web can soon be published far beyond their original, limited audience. And I use the word published advisedly, as publication is of course the phrase used within the Contempt of Court Act – an online article which breaches the strict liability rule runs the risk of running afoul of the law of contempt.

……………………..

The last case which I would like to mention involves something with which I suspect many of you are very familiar – Facebook.

A defendant in a trial had been acquitted of the charges she faced but the jury continued to consider their verdicts regarding her co-defendants. The night of her acquittal, one of the jury decided to go online and chat on Facebook.

Unfortunately she chose to track down the acquitted defendant on Facebook and proceeded to let her know her thoughts on the trial and the ongoing debate in the jury room. Knowledge of jury discussions is forbidden to all outside the jury. It is an offence under the Contempt of Court Act 1981 to 'obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings'

In this case the juror and the former defendant engaged in a Facebook chat about what was happening in the jury room. Their conduct came to the attention of the Judge and eventually to me. Again, in my Public Guardian role, proceedings for this type of contempt of court cannot be instituted save by or with my consent or on the motion of a court having jurisdiction to deal with it. I concluded a contempt had been committed.

The juror admitted her contempt and was committed to prison for 8 months. The former defendant denied wrongdoing but, after a brief trial, was found also to be in contempt – she too was committed for 2 months, although in her case the order was suspended for 2 years as she had been on remand for some months before the trial of the original matter.

The case highlighted important principles and again that the internet does not provide some form of immunity from prosecution. Jurors must feel able to openly express their views and opinions to their fellow jurors without fear that they will be subjected to public exposure and possible ridicule or disgust. This prevents juries from being inhibited as they discuss the merits of the evidence which they have heard. It is essential that the sanctity of the jury room is preserved.

The revolution in methods of communication cannot change what the Lord Chief Justice has termed 'essential principles' and that is why contempt proceedings will be brought by me when required.

Here is the Evening Standard's take, the Guardian, and the Daily Telegraph.

This isn't just about speech making. Last week, he applied to the High Court for permission to bring contempt proceedings against Theodora Dallas, a juror in a trial at Luton Crown Court. Ms Dallas was told by the trial judge not to conduct research on the internet. The case she was trying, which involved three defendants charged with causing grievous bodily harm, was discharged and a retrial ordered. Apparently, she deliberately looked up information about one of the defendants, a court was told last week.

As the Telegraph reports, Louis Mably, counsel for the Attorney-General, said: “Next day, when the jury retired, she informed other members of the jury. Her conduct was reported to the court and the judge discharged Ms Dallas and the remaining jurors.”

The Telegraph also reports on an interview which is behind the Times' firewall:

In an interview with The Times Mr Grieve admitted the internet did present challenges but it was only a “lawless territory” to the extent that it made enforcing contempt laws more difficult if “people post things on the net abroad”.

He also dismissed “tittle-tattle on Twitter” as necessarily posing a problem to enforcing the contempt laws.

“Ultimately, no one thought that the contempt of court rules, even before 1981, would prevent dinner party tittle-tattle and nor should we necessarily get too exercised about that,” he said.

He added, however, that if comments went “viral” and were “reached by thousands or millions of people accessing a particular site or blog then of course we are going to be exercised about it”.

Mr Grieve said: “Judges have been given directions to jurors for a long time not to discuss cases with those who are outside the jury room. We know that long before the internet some failed in their duty occasionally and were punished for it.”

I am unaware of any of the Canadian Law Officers of the Crown having spent this much time thinking about these issues.

Love them or hate them, Apple devices such as the iPhone, iPad and MacBook are rapidly changing the way lawyers practice law. In just a few short years the technology lawyers use has shifted homogeny of PCs and BlackBerries to a diverse mix of PCs, Macs, iPads and iPhones. RIM, meanwhile, is imploding.

To try to keep a pulse on the rapidly shifting IT landscape, Clio, in cooperation with MILOfest, is holding the second annual Apple in Law Offices Survey - please take the survey. There's a chance to win an iPad 2 to boot!

As I did last year, I will publish the results of the survey here. This is the last week to participate in the Apple in Law Offices Survey.

Now being reported widely (5, 6, 7), Wikileaks and partners have documented an international market in computer, cellphone, and GPS surveillance software that can and has be used by governments for the use of tracking down dissidents. Muammar Qaddafi is the poster child, at the moment, but the practice is widespread, as indicated on this interactive map.

I have a friend who jokingly teased me for imagining that governments could possibly care what I say or who I call. When it is this easy, though, it would seem almost perverse for them to deny themselves the opportunity, unless, of course, there were laws around it. Unsurprisingly, what lawful access requirements do currently exist are being undermined (Says Ontario's Privacy Commissioner) in favour of unrestricted (2011 ABCA 94 (CanLII)) snooping ( see last year's bills C-50, 51 and 52 which have been re-appearing since 2005).

The Clawbies website design is now updated, and the season opening post is up. Yes, it's time for the (6th!) Canadian Law Blog Awards!

Whether you're a blogger or blog reader, the month of December has become the time to shine a light on your favourite Canadian law blogs and bloggers. And if you're new to the Clawbies tradition, please make careful note of 'the humble Canadian rule' — don't toot your own horn! Your blog gets automatically nominated when you nominate and link to other bloggers! Yes, it's a wink-wink, nudge-nudge concept, but take a look around at the nomination posts from prior years for examples. Or search for 'Clawbies 2010' or 'Clawbies 2009'; you'll get a clearer picture — our goal is to have fun with it!

Once again, I am honoured to have colleague Jordan Furlong on the Clawbies judging panel. I am also extremely pleased to announce that Slaw's Simon Fodden has also agreed to lend a helping hand in deciding the (virtual) hardware.

So please consider taking part: explore lawblogs.ca; see the Clawbies winners from prior years; and read the great legal content from bloggers who work and write about the law in Canada. Write a blog post with your nominations (or tweet with the #clawbies2011 hashtag) by December 28th, and we'll announce the winners on New Year's Eve!

Dropbox has suffered through a number of security- and privacy-related incidents over the past year, which has left its frustrated but loyal userbase asking how they can continue using Dropbox while still properly securing their data.

SecretSync, a new startup, hopes to be the answer to that question. SecretSync encrypts sensitive data that you place in Dropbox so that, in the event Dropbox releases your files to law enforcement agencies or inadvertently makes your data public, you have nothing to worry about: your data will be completely inscrutable thanks to the client-side encryption used by SecretSync. Because your data is encrypted before it leaves your computer, client side encryption means you can safely store your data with a third party that you don't necessarily trust.

Unlike other client-side encryption solutions, such as TrueCrypt, SecretSync is designed from the ground up to work transparently with Dropbox. You don't need to tweak or customize Dropbox in any way – just install SecretSync, and any sensitive data you place in your new SecretSync folder will be transparently encrypted and synchronized with the SecretSync folders on your other computers.

Security does come at a price though, both in financial terms and in lost Dropbox functionality: the service is free for up to 2GB of data, but costs $39.99 – 59.99/year if your storage requirements are higher; also, files stored in SecretSync cannot be shared via Dropbox's web interface with other users.

The European Court of Justice issued its breathlessly awaited (at least by some) decision in SABAM v. Scarlet today, striking a serious blow to those imposing intense international pressure with the objective of securing exceptional enforcement for intellectual property rights online. These efforts aim to leverage Internet intermediaries such as ISPs, hosting sites, domain name registrars and even individual blogging sites in order to stomp out any infringing activity occurring on the platforms they operate.

As these intermediaries process and host vast amounts of online conduct, they are uniquely placed to impose unprecedented levels of monitoring and control onto users in order to find and prevent ‘undesirable’ activity. A number of recent endeavours such as the French HADOPI framework and the US proposed ‘Stop Online Piracy Act’ initiative have sought to force various intermediaries to participate more actively in protecting intellectual property rights. Often this involves mechanisms to wipe (allegedly) infringing sites or users from the Internets. Many have argued this poses a threat to online innovation, freedom of expression and privacy.

In SABAM, the EU Court of Justice examined a narrower question that nonetheless touches on many of these same issues and the overall ‘balance’ between the need to protect IPRs while ensuring other rights are not trampled in the attempt to do so. SABAM, a rights holder group, had asked the Belgian court to issue an injunction obligating an ISP, Scarlet, to filter all unauthorized peer-to-peer file-sharing transfers of its works. The EU has an overarching legal framework, set out in a number of Directives, that provide guidance on the appropriate scope of liability for Internet intermediaries. Most salient for this case, the EU intermediaries frameworks permits a court to issue injunctions as a remedy for IPR infringement. The Belgian court that first heard the matter was willing to issue such an injunction and this ruling constitutes Scarlet’s appeal to the EU Court of that decision.

The injunction in question would have required Scarlet, the ISP, to monitor all activity on its network, filtering for hash tags of files identified as within the repertoire of the plaintiff. While the technical feasibility of this filtering exercise has been questioned, the Court rested its decision to overrule the Belgian court’s injunction on firmer, more principled grounds. Specifically, the Court found that an injunction of this character violates the rights to privacy and potentially the right to receive or impart information:

51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53 Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

The Court also issued a friendly reminder that, while protection of Intellectual Property is a right protected by the EU Charter, there is “nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.”

Notably, the decision equates ‘filtering’ — where network equipment such as deep packet inspection equipment is calibrated to search for specific files or activities, in this case, likely hash tags — with mass monitoring of user activity. Common counter arguments to this are that ‘filtering’ does not involve mass surveillance, because only the specifically sought infringing activity is identified, while little or no information about other activity is collected. The Court appears to accept, however, that mass monitoring for infringing activity is a serious invasion of privacy even where the only results it yields are to identify infringing works.

Second, the decision is notable in that it recognized the threat to freedom of expression posed by a filtering system of this kind, which is likely to capture legal content along with allegedly infringing content. Indeed, as the Canadian experience has proven, identifying specific files or even applications mid-network while avoiding over-inclusiveness is no easy task! It is greatly complicated where user rights such as fair dealing or fair use complicate what is ‘legal’ and what is not.

The decision is not likely to be the last word on the issue. US legislatures are struggling with a law that will permit entire domain names to be wiped from the DNS system on allegation of IP infringement and it is not clear how this decision will impact on France’s HADOPI ‘3 strikes and you’re out’ system, or on the UK Digital Economy Act’s objective of implementing a similar graduated response regime (the UK act is also under court challenge).

The decision could have implications for Canadian copyright enforcement. While Canadian copyright law (inclusive of coming amendments in Bill C-11, the Copyright Modernization Act), does not envision liability for ISPs for infringing activities of users such as file-sharing, injunctions against ISPs similar to that raised in SABAM are available under Canadian law.

Given our Court’s recent willingness to take into account Charter rights in the development of common law protections in general, there is hope that freedom of expression and privacy will guide any application of this injunction power. Further, as intellectual property rights (or even regular property rights) are excluded from our Charter, countervailing rights of expression and privacy should weigh more heavily in the balance than in the EU.

While many of our ISPs already track use of file-sharing applications voluntarily, in order to carry out their traffic management policies, this should not mean privacy expectations are diminished in any way. To begin with, the type of monitoring envisioned in SABAM is more intrusive than that currently carried out by Canadian ISPs. Current ISP practice is to filter for metrics in order to identify specific applications (BitTorrent clients, for example) while SABAM required filtering of specific files. (The middle case — filtering to block an entire website or service such as Pirate’s Bay or Newzbin2 deemed to be ‘infringing’, has been tentatively approved by UK courts.) Second, the CRTC, in carrying out the privacy-protection component of its mandate, has ordered Canadian ISPs to refrain from using information gained from traffic management practices for any other purpose. These two conditions, taken together, should bolster privacy expectations Canadians can reasonably advance in this context, if the issue were to arise.

Second, our Supreme Court has a solid track for protecting online innovation and freedom of expression and adopting a balanced approach to copyright enforcement.

If you have ten minutes to spare head on over to Google's British Page, where you'll find (to quote The Guardian)

A spiky-haired, bespectacled animation of the Polish science fiction author Stanislaw Lem, as the search engine marks the 60th anniversary of the publication of his first book, The Astronauts.

The North Carolina State Bar has revisited its proposed Formal Ethics Opinion (FEO) on cloud computing and addressed many of the concerns the legal cloud computing community had previously expressed.

The main point of concern with the previous opinion was a list of minimum mandatory requirements that an attorney had to ensure was met by their cloud computing provider. In an open letter to the NC State Bar, the Legal Cloud Computing Association outlined its concerns with the proposed FEO; prominent bloggers such as Carolyn Elefant, Stephanie Kimbro, Erik Mazzone and Niki Black also outlined their concerns about the potential implications of the FEO as written.

The NC State Bar had published the proposed FEO for comments, and to their credit they listened carefully to the feedback they received and have re-issued an updated Proposed 2011 FEO 6 that addresses many of the concerns the LCCA and others had expressed relating to the previous draft.

The NC State Bar has eliminated the mandatory minimum requirement "checklist" from the opinion, rightly pointing out that such checklists are fraught with issues:

This opinion does not set forth specific security requirements because mandatory security measures would create a false sense of security in an environment where the risks are continually changing. Instead, due diligence and frequent and regular education are required.

Instead, the proposed FEO opts for a more flexible set of due diligence requirements:

This opinion does not set forth specific security requirements because mandatory security measures would create a false sense of security in an environment where the risks are continually changing. Instead, due diligence and frequent and regular education are required.

Although a lawyer may use nonlawyers outside of the firm to assist in rendering legal services to clients, Rule 5.3(a) requires the lawyer to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the professional obligations of the lawyer. The extent of this obligation when using a SaaS vendor to store and manipulate confidential client information will depend upon the experience, stability, and reputation of the vendor. Given the rapidity with which computer technology changes, law firms are encouraged to consult periodically with professionals competent in the area of online security. Some recommended security measures are listed below.

• Inclusion in the SaaS vendor’s Terms of Service or Service Level Agreement, or in a separate agreement between the SaaS vendor and the lawyer or law firm, of an agreement on how the vendor will handle confidential client information in keeping with the lawyer’s professional responsibilities.

• If the lawyer terminates use of the SaaS product, the SaaS vendor goes out of business, or the service otherwise has a break in continuity, the law firm will have a method for retrieving the data, the data will be available in a non-proprietary format that the law firm can access, or the firm will have access to the vendor’s software or source code. The SaaS vendor is contractually required to return or destroy the hosted data promptly at the request of the law firm.

• Careful review of the terms of the law firm’s user or license agreement with the SaaS vendor including the security policy.

• Evaluation of the SaaS vendor’s (or any third party data hosting company’s) measures for safeguarding the security and confidentiality of stored data including, but not limited to, firewalls, encryption techniques, socket security features, and intrusion-detection systems.4

• Evaluation of the extent to which the SaaS vendor backs up hosted data.

The NC Bar's proposed FEO, like the ABA 20/20 Ethics Commission Proposals, makes the "reasonable care" standard the baseline to be adhered to, and affirms that a lawyer's duty to protect the confidentiality of client data "does not compel any particular mode of handling confidential information nor does it prohibit the employment of vendors whose services may involve the handling of documents or data containing client information."

The new proposed FEO strikes the right balance of providing guidance to the Bar's members without overly restricting technological freedom. The opinion, as written, can serve as a model for other Bars looking to provide increased clarity on the ethics of cloud computing to their membership.

I recently posted about hyperlink being legally defined and that got me ta thinkin', in terms of Internet innovations has the hyperlink been topped? In many respects one could assert that the hyperlink is the Internet as we know it today. Yes, I know that the 'Net is an interconnected web of computers etc. etc. but in terms of modern usage of the 'Net, absent the hyperlink most would not recognize the Internet, and we would all know far more command prompts.

In doing a bit of research it seems that the term "hyperlink" has been around since the early 1960's but I would guess that it did not enter the common lexicon of terms until the early to mid-90's; which is when the hyperlink as we know it started to become prominent. I would be so bold as to assert that the hyperlink has not been topped. The closest development I would say, would be mobile computing; however, mobile computing relies on the hyperlink in order to function and the phrase "mobile computing" is more about the delivery mechanism than the actual functionality. Applications, or Apps, could also be held up to the hyperlink. Apps do not rely on the hyperlink as much as has been the norm in the past; however, apps still require hyperlinks in order to function as well. The App also has not yet displayed the staying power needed to contend for the top of the heap.

So I'm asking Slaw-yers, has the hyperlink been topped?

On ReadWriteWeb there's an interesting map of the metadata that accompanies every one of your 140 character messages on Twitter, which I've reproduced below. (The map is the work of Raffi Krikorian. Click on the image to enlarge it.) There's nothing terribly shocking here, perhaps: much of this metadata can be learned from visiting the Twitter page of the person sending the message. Even so, it's sensible for those of us who are privacy conscious to be reminded from time to time that what seems to us to be a very minimal exposure to the unblinking glare of the internet carries with it a large amount of "body language," so to speak.

Click on image to enlarge.

[Here's the link to the same file as a PDF, so that you can enlarge it even more if you wish.]

These extras—this metadata—is of considerable interest to corporations that want to know which way the winds of commerce are blowing and how best to trim their sheets to capture them (and you) for profit. The ReadWriteWeb post talks about DataSift, a company that can consume the giant Twitter flow along with other gushings and extract information of an aggregate nature that might be useful to corporate clients. One imagines that governments, too, are mining this spate for purposes of their own.

This morning I came across a U.K.-based online quiz setting out various scenarios. Titled "Are you an accidental outlaw", there are 9 questions relating to: twitter, facebook, uploading, music, blogging, online discussions and selling content. After you complete each answer, you click through to your score, with an explanation/advice on the current law and top tips. You may want to ask your fellow employees to take the quiz too. Take the quiz.

Last week I gave a talk at Victor Medina's excellent MILOfest conference about How to Secure Your Mac Law Firm. In preparing for the talk, I developed the following set of best practices that any lawyer using Apple devices should employ to help protect their law firm's data:

Securing Your Desktops/Laptops

• Upgrade to OS X Lion and enable FileVault 2 for full disk encryption. Read more about FileVault 2 and Lion here.
• Enable the off-by-default firewall.
• Set your screen saver / lock screen to activate after 5 or fewer minutes of activity.
• Disable automatic login.
• Enable Find my Mac so you can geolocate your device and/or remotely wipe it if necessary.

Securing Your iPhone / iPad

• Activate the passcode-based lock screen
• Consider enabling complex passphrases for the lock screen
• Consider enabling automatic data wipe on your device is passphrase is entered 10 times incorrectly
• Enable Find my iPhone / Find my iPad so you can geolocate your device and/or remotely wipe it if necessary.

Securing The Cloud

• Employ a password manager such as 1Password to securely generate and manage your various web site passwords. More on the risks of weak passwords here.
• Consider using an encryption tool such as TrueCrypt to protect especially sensitive data you're storing in the cloud. Note that full disk encryption does not automatically encrypt data you are storing in the cloud.
• Dropbox continues to be wildly popular among lawyers despite their various security- and privacy-related failings. Consider using a tool such as SecretSync to encrypt and lock-down your especially sensitive Dropbox data.

This list isn't by any means exhaustive, but it provides a solid foundation for the security of your Mac, iPhone, iPad and cloud-based data. Let me know of any other tips you might have in the comments!

On Wednesday the Canadian Association of Law Libraries will be presenting a webinar with Michel Gamache, Director of Documentation Services, Heenan Blaikie in Montreal. Michel will be explaining how to get started with Yahoo Pipes for working with RSS feeds to customize information for practice groups. Even if you do not work in a law firm, this webinar will help you get started taking your use of RSS feeds to the next level. I myself dabble in the use of Pipes and am looking forward to learning more.

The webinar takes place this Wednesday, November 16, 1:00 – 2:30 p.m. ET. Cost is $45.40 for members and $67.80 for non-members (tax included). For more information and to register, visit the CALL/ACBD website: http://www.callacbd.ca/en/content/webinars.

Here is the full description:

Yahoo Pipes: Slicing and Dicing RSS Feeds for Legal Practice Groups
SPEAKER: Michel Gamache

Yahoo! Pipes has been around since 2007, yet it doesn't seem to have caught the eye of many librarians. However, this is a valuable and simple tool that can be used in the context of web monitoring and information delivery.

This webinar will help you understand what Yahoo! Pipes is all about. You will learn how to create, aggregate, filter and customize feeds. You will also learn how to create widgets so that the contents you manipulate can be made available on intranets.

Michel Gamache has been Director of Documentation Services at Heenan Blaikie since 1999. Previously, he was Library Manager at another law firm in Montreal.

Michel holds a MLIS degree and a Certificate in Industrial Relations both from Université de Montréal, as well as a Bachelor degree in Business Management from Université du Québec à Montréal.

Fellow Ontario lawyer and blogger Antonin Pribetic tweeted the following earlier this evening:

An RT taxonomy: RT+ (agree), RT- (disagree) RT= (indifferent), RT? (confusing), RT± (undecided), RT☀ (interesting), RT! (check this out!)

I really liked the concept and retweeted it. In a Reply to me, Antonin asked me if a RT without comment was a tacit endorsement. In a reply to him, I agreed that this was the case, and I asked if the taxonomy he proposed was his. Antonin indicated that @Charonqc had proposed RT+ and RT- at some point in the past and that he had added to the list. A quick Google search failed to turn up something similar.

Most Twitter users will appreciate that trying to say things in just 140 characters can be a challenge. Using one extra character (or perhaps a few characters) to add some universally recognized comments or context to a RT would be very helpful. Some comments on how I compose tweets will explain why.

Most of the time, I try to tweet or RT things that I think my followers will find helpful or interesting. The best endorsement a tweet or RT can get is a RT by one of your followers. On the less interesting side, I do occasionally tweet personal comments or pictures that rarely get retweeted (but they do get occasionally DMs). In either case, helping people filter content by giving them a bit more context would be great.

In terms of length, I prefer to have tweets that are about 100 characters long (or shorter if the message is all there in fewer words). This means anyone retweeting my tweets will not have to make any edits after their name is added and it makes sure my original message gets through without changes. I generally avoid tweets that are longer than 140 characters because I think many people don't see/read them as many of the Twitter apps don't display all the text in a longer message. Anything that keeps tweets shorter would be helpful.

I do add comments to RTs, usually to strongly endorse the content. Most frequently I will say “A must read” or “Great content” or something similar. I think this is important as it helps my followers filter things and will let them zero in on the high value content. I usually put my comments after the comment and URL that were in the original tweet. Having enough space to make a comment if frequently a challenge. Again, having a way to say things by adding an extra character or two would be great.

Now, some comments on Antonin’s proposed taxonomy. I really like the agree, disagree, interesting and confusing suggestions. They are simple and obvious. They would be helpful for me, and I think they would be helpful for my followers.

I’m not sure I’m keen on the indifferent option as I’m really not sure I want to bother my followers with something I’m indifferent about. Perhaps there would be things I feel indifferent about but that I might still think my followers might otherwise find helpful or interesting, but I can’t think of any at this late hour.

I don’t mind the undecided (Is undecided that different from indifferent?) suggestion, although I’m suspicious that special characters might not be available (i.e., on the keyboards) or display properly on all computer and smartphone platforms.

Am thinking that check this out is not all that different than interesting. As such, I’m wondering if having RT! indicate that something is “must read” would be more helpful.

I find that I sometimes have to edit the original tweet for length (because it is too long as a RT with my Twitter handle added) or for content (because the wording poorly describes the content in the link or I want to put a bit of a different spin on the tweet and still acknowledge the original tweet and tweeter). To do this I suggest we add RT~ to this taxonomy.

Perhaps adding a few similar charaters could indicate the degree of the comment. For example, RT++ means really agree, RT– means really disagree.

I do occasionally add emoticons to my tweets, again, usually after the original content with or with additional comments of my own. To more effectively communicate feeling or emotions about the tweet perhaps we could also use some of the common emoticons in conjunction with the RT to impart other statements or emotions. For example, RT:) for a happy tweet, RT:( for a sad tweet, and so on.

Thus, as a proposed taxonomy, we now have:

RT+ (agree),
RT- (disagree)
RT=(indifferent)
RT? (confusing)
RT± (undecided)
RT* (interesting)
RT! (a must read)
RT~ (original tweet was edited)
RT:) (a happy tweet)
RT:( (a sad tweet)

Please share your thoughts, comments and suggestions on the above.

Loads of lawyers and law firms are posting content in various forms all over the Web. Firm websites, LinkedIn or Facebook updates, tweets, blog posts and comments, and so on. That is great, but it only gets you partway down the path to greater visibility on the Internet.

At the most basic level, the cornerstone to making yourself more visible is good content and linking. Do you know why linking is so important? Do you understand the ranking factors Google and other search engines use to determine what content appears at the top of search results? Are your links trusted and diverse? Do you know how to create a good link and what to do about a bad one?

If you are serious about making yourself more visible on the Web, you should know the answers to all these questions. You can find these answers in Link Building – The Essentials. This post on the distilled blog gives you a ton of great advice for free. People are paying SEO experts for the same information!

A hat tip to my friend Fred Faulkner IV for sharing this great link with me via Google+.

Last month the respected German national newspaper Frankfurter Allgemeine (FAZ) published an exposé in its Sunday edition Feuilleton about a German government computer surveillance program introduced into citizens' computers some years ago and the ease with which it can be cracked and misused. The Staatstrojaner, or "state trojan," is a key-logging program that can record everything entered into an infected computer via the keyboard, and, in this case I believe, control the computer to some degree.

The newspaper's exposé is available in English as a PDF file via Edge.

To uncover and reverse engineer the trojan, FAZ teamed up with Chaos Computer Club (CCC) hackers, an unlikely partnership indeed for a right of centre newspaper.

The German constitutional court ruling in 2008:

sets severe restrictions on the secret services and investigation authorities when they seek permission to infiltrate computers in Germany for the purpose of extracting data and surveying core privacy.

Nevertheless, FAZ points out,

Representatives of the investigation authorities and the government have vehemently argued in the Karlsruhe discussion that they need to capture all encrypted communication on a suspect's PC before they become encrypted. The court does not want to completely obstruct this and have permitted "source telecommunication surveillance" – though only "when the surveillance is limited to data from an ongoing telecommunications process. This is to be enforced through technical and legal means."

The newspaper's central concern is that the trojan with which computers are infected is itself insecure and can be easily reprogrammed to violate the restrictions and, indeed, to plant evidence on the host computer. Their partners in this exposé, CCC, were able to do just that.

If you have some notion that encryption is a workable way of frustrating snoops, governmental or otherwise, or that "the authorities" know what they're doing to such a degree that their intrusions into citizens' digital lives will be surgical and secure, as it were, you would do well to read this careful, thoughtful piece.

There is a lot of attention in the USA being paid to the impact of jurors, reporters and members of the public using social networking technologies in the courtroom. Canada is no stranger to the debate.

There is not as much material on the ethics of judges using the same tools such as Facebook or Twitter.

Michael Crowell of the School of Government at the University of North Carolina at Chapel Hill has written a paper on Judicial Ethics and Social Networking Sites that looks at the issue:

For some time now state bar regulatory agencies have been addressing the effect of electronic communication on traditional ethical rules for lawyers ― the extent to which law firm websites constitute advertising, whether e-mail inquiries establish an attorney/client relationship, and so on. Likewise, judges hearing cases have faced new legal issues involving electronic discovery and searches of computers. Judges are becoming familiar, too, with problems of jurors communicating with the outside world and conducting their own research via their Blackberries, smart phones and other devices.

Compared to the information available on those other electronic communication issues, there is relatively little reference material for judges concerning their own social networking and the Code of Judicial Conduct. The purpose of this paper is to share some information addressing questions of judges’ personal use of social networks.

Crowell's paper deals with the situation in the United States.

Participation in social networks by judges in the U.S. has reached a level that prompted the Florida judicial ethics committee to issue an edict in 2009 that judges and lawyers should not be Facebook 'friends,' to avoid appearance of conflict in the event they end up in the same courtroom. Other US state committees on judicial ethics have also taken positions warning judges about the perils of networking.

The Canadian Judicial Council has not yet drafted rules for Canadian judges but it appears to be monitoring the situation south of the border. It has produced a number of recent publications on IT security but no definite guidelines about judges and social networks seem to exist at the moment.

The Council is made up of 39 members and is chaired by the Chief Justice of the Supreme Court of Canada, Beverley McLachlin.

Cross-posted to the Library Boy blog.

Perhaps the thorniest of emerging Internet legal and policy issues these days is the question of Internet intermediaries. It is a feature of the Internet that all online activity is intermediated through at least one and often several service providers, such as ISPs, social networking sites, blog hosting sites, etc. Standing at the crux of all this activity, intermediaries are uniquely placed to exert a great deal of control and surveillance over activities of downstream users, making them a compelling target for policy-makers and aggrieved plaintiffs alike. The Supreme Court of Canada’s recent seminal decision in Crookes v. Newton offers a general reaffirmation of the Court’s continued commitment to maintaining an open Internet and a vindication for hyperlinkers everywhere. More than that, however, it offers some potential insights into how our Canadian legal system might react if faced with future attempts to leverage Internet intermediaries.

One common mechanism for doing so is to impose liability on them for the activity of others. Secondary liability of this kind is typically different in character from stricter liability regimes applied directly to primary authors, and includes a ‘notice’ element. This means intermediaries are not typically obligated to take pre-emptive steps against downstream infringing content, but must still take specific actions upon being asked to or being made aware of alleged rights infringement or face liability in their own right. Common law obligations arising from such notification may include various categories of takedown requirements: a blogger taking down a ‘flagged’ defamatory (or, perhaps, as IP infringing) comment/post after being notified; a blogging platform taking down a blog that has been ‘flagged'; a domain name registrar seizing the domain of a flagged blogging platform; an ISP blocking access to an IP address of a flagged service. Even more aggressive responses have been undertaken by intermediaries voluntarily under threat of liability. Some have adopted a ‘3 strikes’ policy, where 3 accusations of copyright infringement against a customer leads to disconnection, as settlement in a lawsuit initiated by copyright holders.

What does all this have to do with hyperlinking? While a hyperlinker is not an intermediary, she shares essential characteristics with most intermediaries, in that both play primarily facilitative roles. The intermediary provides access to content created by others, while the hyperlinker merely draws reader’s attention to that content. Crookes squarely raises the question of the extent to which we should be making individuals liable for what others have done. In answering this question within the context of defamatory publication, the SCC adopted an approach that affirms a basic, but critical principle of common law — that individuals should not easily be made responsible for the actions of others. As secondary responsibility is at the core of intermediary liability issues, Crookes may inform the Court's ultimate stance on the latter. We are likely to see the question of intermediary liability recur in Canada in the future, so it is worthwhile speculating on ways the Crookes decision may impact on any such future consideration.

a. Freedom of expression and the Internet
In keeping with its recent jurisprudence (see Abella, J., para. 32 for a synopsis of this trend), the majority ruling in Crookes justified its decision on the grounds that existing defamation common law principles conflict with a Charter right, and should adopt to account for this. What is interesting is the manner in which the Court leveraged free expression in this case to “avoid[] a formalistic application of the traditional publication rule” [Abella, J., para. 25].

This ‘leveraging’ is evident in the following majority statement:

The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity. (Abella, J., para. 36)

The Court appears to be drawing links between the right to free expression on the one hand, and the utility of the hyperlinking mechanism, the free flow of information and, more broadly, the Internet itself. The importance of the Internet as a communicative platform has recently been tied to the freedom of expression by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression:

Unlike any other medium, the Internet enables individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an “enabler” of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole.

This is an important development when viewed within a growing international discourse on the interaction between freedom of expression, the proper role of Internet intermediaries and the need to achieve various public policy objectives such as protecting reputation online. This discourse is also gravely concerned with the detrimental impact to freedom of expression that will result from saddling intermediaries with liability for the content of others. Notification-based intermediary liability will, in effect, transform allegations of wrongdoing into restraints on speech quickly, cheaply, and typically before any judicial processing of such allegations has occurred. The reverse onus is then placed on often under-funded users to challenge this claim in court.

In his report, the UN Special Rapporteur unpacked these concerns in greater detail:

…a notice-and-takedown system is…subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown. Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decisionmaking process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.

Our own Supreme Court flagged similar concerns (albeit in the context of copyright infringement) in its assessment of authorization-based intermediary liability in SOCAN v. Bell:

The knowledge that someone might be using neutral technology to violate copyright …is not necessarily sufficient to constitute authorization, which requires a demonstration that the defendant did “(g)ive approval to; sanction, permit; favour, encourage” (CCH, at para. 38) the infringing conduct. I agree that notice of infringing content, and a failure to respond by “taking it down” may in some circumstances lead to a finding of “authorization”. However, that is not the issue before us. Much would depend on the specific circumstances. An overly quick inference of “authorization” would put the Internet Service Provider in the difficult position of judging whether the copyright objection is well founded, and to choose between contesting a copyright action or potentially breaching its contract with the content provider.

The potential impact on expression that motivated the SCC in Crookes is magnified significantly in the context of intermediary liability. Much as with the hyperlinker, intermediaries are chilled from communicating the content of others by the threat of notice-based liability. As with hyperlinker chill, fear of liability causes intermediaries to err on the side of over inclusion. Most accusations of defamation are treated as legitimate, because the intermediary (or hyperlinker) is not in a good position to assess defences such as justification (or, with respect to copyright, fair dealing).

The impact of intermediary chill, however, is more significant than with hyperlinkers, as it is applied platform wide and impacts on downstream expression as well. In a notice-takedown regime, it amounts in effect to a restraint on downstream expression. The primary speaker is prevented from making her statement because the intermediary prevents them from doing so. With notice-takedown liability, this occurs before a judicial finding of defamation has been issued as the intermediary must react quickly to avoid liability in their own right. Such an approach is at odds with the Courts hesitant approach towards issuing injunctions in defamation cases, an option viewed as an “exceptional remedy” reserved for cases where the statements at issue are “manifestly defamatory” (See Canadian National Railway v. Google Inc., 2010 ONSC 3121). Far from applying this rigid standard, notice-takedown regimes are strict liability once the notice has been received, meaning a statement ultimately found defamatory (but still far short of the ‘manifestly’ standard) will lead to liability for the inactive intermediary. Further, as noted above, intermediaries are not remotely well-placed to make such assessments, whether manifest or not.

Where Intermediary liability leads to user disconnection, it is a particularly thorny issue, as it can deprive users from access to an entire communications medium on the basis of one minor facet of their use of that medium. Yet intermediaries are increasingly pushed, under threat of liability, towards adopting voluntary disconnection policies. This raises issues of proportionality, as it involves denying users who have committed one form of infringement (copyright, for example) from access to an entire platform of expression:

The Special Rapporteur is cognizant of the fact that, like all technological inventions, the Internet can be misused to cause harm to others … The Special Rapporteur emphasizes that censorship measures should never be delegated to private entities, and that intermediaries should not be held liable for refusing to take action that infringes individuals’ human rights … While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

Once in place, these voluntary disconnection programs are difficult to dislodge, even after liability issues are clarified ex post. As a broader ‘reconsideration’ of the publication rule appears imminent (Crookes para. 42), and in the absence of a legislative response to defamatory intermediary liability, the buffer provided by Crookes against the use of common law liability as a means of chilling free expression may potentially play a role in defining future intermediary liability or lack thereof.

b. Passive instrumentality of Internet intermediaries
Another factor relied upon by the majority in rejecting hyperlink liability is the passivity of the act of hyperlinking. Historically, even the most tangential participation in the publication chain was sufficient to incur liability. The majority in Crookes points, for example, to the printer’s servant found a publisher in his own right for an act no more significant than the ‘clamping down’ of the printing press (Abella, J., para. 18).

However, as the majority points out, this principle has slowly eroded over time. The Court referred in particular to two UK cases, one against an ISP and one against a search engine and a web host, in concluding: “[r]ecently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication.” (see paras. 21; also 89-90).

In Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765, Justice Eady of the U.K. Queen’s Bench held at paras. 63-64, consistently with Crookes, that where intermediary conduct is limited to merely ‘facilitating access’ or is ‘passively instrumental’ with respect to allegedly defamatory content, publication has not occurred irregardless of whether the plaintiff has requested a takedown or not. Liability remains with the primary author, in such scenarios, and it appears that factors such as ‘passivity’ and ‘instrumentality’ will play a factor in defining the scope of liability. Knowledge and control appear to play a significant (but not determinative) role in assessing the level of passivity, with both factors being necessary, if not sufficient. However, some legislative regimes such as Chile’s recent copyright law have recognized that intermediaries can only be deemed to have ‘knowledge of infringement’ after they are provided with judicial notice of infringing content. If ‘control’ and ‘passivity’ are to be adopted as a new touchstone for publication-based liability, the question of what will qualify as sufficient ‘control’ remains open.

c. Defamatory vindication & control
This focus on primary as opposed to secondary authors as the proper home for vindication also played a significant role in shaping the majority decision. In refusing to apply the traditional publication rule to hyperlinkers, it held:

[40] Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory…

[41] Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations. As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to. If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content.

[42] Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.

While the majority left to another day the question of what constitutes ‘hyperlinking in a manner that conveys defamatory meaning’ (a concurring opinion by McLachlin, C.J. and Fish, J., suggests an ‘endorsement’ standard while the majority may have opted for something more rigorous), the concept that responsibility rests with the primary author is consistent with the normative underpinnings of defamation, if not its historical tendency to catch all participants in its publication web. A finding of defamation is not solely a compensatory regime. A judicial declaration that the author of a statement was ‘wrong’ offers the plaintiff vindication:

This case involves international defendants and activities, suggesting caution and restraint. However, I agree with the motion judge that even if the Ontario judgment is unenforceable in the United States, a judgment would have significant value to Black as a vindication of his Ontario reputation. Black v. Breeden, 2010 ONCA 547, (Ont. C.A.), leave to appeal to S.C.C. granted.

Normatively speaking, it is difficult to see how refusing to remove a comment made on a blog upon request, or to block access to one of the trillions of websites to which an ISP facilitates access is an act that calls for this type of ‘vindication’. Absent liability, many if not most Internet intermediaries premise their takedown decisions on the desire to facilitate interactions on their platform, not necessarily on their approval or disapproval of any single comment. In any case, as pointed out above, intermediaries are not very well placed to assess the defamatory nature of such content (particularly where complex legal concepts such as justification, fair comment or fair dealing must be considered).

There may be practical reasons for maintaining some form of intermediary liability. The Court stresses repeatedly that hyperlinkers have no control over the underlying content — indeed, once the linked content is removed, the hyperlink is immediately stripped of any defamatory import. This is different for intermediaries, who may exercise control over the originating content and restrict access to it. But, stripped of the need for ‘vindication’, what is left are practical considerations and these may well be outweighed by the detrimental impact on free expression that may ensue from imposing liability.

d. Section 230 of US CDA ‘creation or development’
In reaching its decision on the scope of hyperlinking liability, the Supreme Court also relied on part on section 230 of the U.S. Communications Decency Act, a provisions which grants immunity to all Internet intermediaries for any (allegedly) defamatory content where were not involved in its creation or development (Crookes, paras. 28, 103). The premise underlying s. 230 is that online intermediaries should not be held responsible for the content of others:

The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. In specific statutory findings, Congress recognized the Internet and interactive computer services as offering "a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity…None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. (Zeran v. America Online Inc., 129 f. 3d 327 (4th Circ., 1997)

While Canadian common law does not currently reflect CDA s. 230, the Court’s willingness to adapt common law third party liability in order to prevent excessive chill of expression may bode well for those concerned with the broader question of Intermediary liability and, more generally, for those concerned with online speech as the Court subjects the “one writer/any act/one reader paradigm” to “further scrutiny” in the future.

Since Slawyers like to know about cool things, I thought I would share some testing I have done in the last couple of days to build an App. I have been trying out Snappii.

Snappii offers the service of building an app using one of their templates, or from scratch using variou widgets they offer. They have a previewer app which lets you see your app to test it. It works on a username and password registration to their site. The tool is remarkably easy, so I created an (unpublished – more on that later) app to post a tip to our Slaw Tips blog. Of course, there is already an easy email suggest a tip link on the blog for collecting ideas to share, so making this app is somewhat redundant, but it was fun.

First I made a snappii account, then I used the "from scratch and fast with a wizard" method to create a stip submission form. This app sends the suggestion to a Google docs form that I created for that purpose. I downloaded the app previewing tool from iTunes.

Here is a screen shot of the app from the test environment:

The downside to this particular app developer site is the pricing – though I am not certain where Snappii sits in the market for pricing. My frugal self doesn't like the idea of a monthly fee for app hosting. On the really positive side, Snappii has very responsive live chat and they are willing to send an email invoice if you want to pay them for app hosting. The app building tool is also simple to use.

Does anyone have 'build your own app' solutions to share?

Flags are being raised by numerous privacy experts about expected federal "lawful access" legislation. This legislation–expected to be reintroduced–was last seen in the 40th Parliament, 3rd session, which ended March 26, 2011 and includes:

• Bill C-50 – Improving Access to Investigative Tools for Serious Crimes Act
• Bill C-51 – Investigative Powers for the 21st Century Act
• Bill C-52 – Investigating and Preventing Criminal Electronic Communications Act

Excerpted from a commentary by Information and Privacy Commissioner of Ontario Ann Cavoukian published in today's National Post:

At issue is the anticipated re-introduction of a trio of federal bills that will provide police with much greater ability to access and track information, via the communications technologies we use every day, such as the Internet, smart phones and other mobile devices. I have no doubt that, collectively, the legislation will substantially diminish the privacy rights of Ontarians and Canadians as a whole.

Let’s take a brief look at the surveillance bills, which were introduced prior to the last election:

• Bill C-50 would make it easier for the police to obtain judicial approval of multiple intercept and tracking warrants and production orders, to access and track e-communications.
• Bill C-51 would give the police new powers to obtain court orders for remote live tracking, as well as suspicion-based orders requiring telecommunication service providers and other companies to preserve and turn over data of interest to the police.
• Bill C-52 would require telecommunication service providers to build and maintain intercept capability into their networks for use by law enforcement, and gives the police warrantless power to access subscriber information.

I well understand the attraction for law enforcement officials — the increased ability to access and track our e-communications, with reduced judicial scrutiny, would put a treasure trove of new information at their fingertips.

However, we must be extremely careful not to allow the admitted investigative needs of police forces to interfere with or violate our constitutional right to be secure from unreasonable state surveillance. The proposed surveillance powers come at the expense of the necessary privacy safeguards guaranteed under the Charter of Rights and Freedoms.

A number of privacy and Internet experts weigh in on the matter the UnLawful Access website via this video:

And have a petition from Open Media.ca: http://stopspying.ca

As well, there have been letters and articles written; here is a selection:

• Privacy invasion shouldn't be 'lawful' - commentary by Ann Cavoukian, Information and Privacy Commissioner of Ontario, National Post (October 31, 2011)
• Letters to Ministers Toews and Nicholson re: Lawful Access [pdf] – letters by Ann Cavoukian, Information and Privacy Commissioner of Ontario (October 31, 2011)
• Why Lawful Access legislation should not be allowed – David T.S. Fraser, Canadian Privacy Law Blog (October 31, 2011)
• Privacy Commissioner outlines concerns about potential lawful access legislation – News release: Office of the Privacy Commissioner of Canada (October 27, 2011)
• Letter to Minister of Public Safety Vic Toews – Letter, Privacy Commissioner of Canada Jennifer Stoddart (October 26, 2011)
• Laws of the 21st century: Access legislation clarified – Kathryn Blaze Carlson, National Post (October 22, 2011)
• Canada’s forthcoming surveillance bill and how to rein it in – by Christopher Parsons, Vancouver Sun (October 8, 2011)
• Speech for Minister Toews For the Launch of Canada's Cyber Security Awareness Month and Public Education Initiative to Promote Cyber Security Awareness – Public Safety Canada (October 3, 2011).

Even in 2011, I receive a surprisingly large number of documents that require me to print them, sign them, and fax them back to the sender. Ironically, most of these documents are sent to me as PDF attachments to e-mails.

We've banned physical fax machines at Clio, and instead use RingCentral for sending an receiving faxes. My workflow below helps me avoid having to print and scan documents that require completion and signing:

1. Download the PDF document
2. Open in Adobe Acrobat Professional
3. Use the "typewriter" tool to complete form fields
4. Open a separate PDF file where I've signed my name using the "pencil" tool
5. Copy and paste my signature onto the document
6. Save the completed document
7. Upload and fax the document via RingCentral

This beats having to deal with scanners and printers, but it's a laborious process.
HelloFax is a new service that helps make the dream of a paperless office a reality. Completing a form with HelloFax requires only a few steps:

1. Upload your document to HelloFax
2. Fill out fields and insert your signature using HelloFax's web interface
3. Enter fax number or e-mail address, click "send"

HelloFax helps take a huge amount of the pain out of completing PDF-based forms, and has thankfully helped move these "dumb" documents into the 21st century.

Klout’s recent tweaking of it influence scoring algorithm has a lot of people questioning the value of the various online tools that measure influence – especially those that saw their Klout score plummet. Mine actually went up :-)

What do these scores really measure? Do they really mean anything? How do you really measure your online influence?

Listen to this impromptu audio recording by Robert Scoble for his views on the value of online influence ranking tools, and the factors you should consider in accessing your online reach, influence the value of the content your post through social media channels. Hint: it’s all about the content and your participation!!!

I think this is also a great demo of the marketing potential of sending audio out to people via the web (in this case with SoundCLoud’s Flipzu tool).

Beware of “rumor about you” DM that is Twitter account hijack exploit

Earlier this afternoon I received the following message from a lawyer I know: “There is a rumor/blog going around about you http://tdotco/abcdefg might want to read it” (TLD is t.co and other part of the URL is s1bYMHV).

If you click on this link and successfully load this site, it sends this message to all your followers. It is currently circulating among Canadian lawyers. Beware and don’t get fooled.