Quote of the Day - Its pretty rare for companies to have a snooping policy, although it is getting more common.
What's In Those Privacy Disclosures From AT&T?
You likely don't read the privacy disclosures that periodically come in the mail from various companies, and you likely haven't read the one from AT&T. Even though Cingular and the Yellow Pages are part of AT&T, Cingular wireless has its own policy as does the Yellow Pages, if you're a business customer. The policies are printed in small fonts, they usually come in nondescript envelopes that you're more inclined to throw away than open, and they're boring. In other words, full of legalese.
While I haven't talked with the attorneys at the Electronic Frontier Foundation who filed the suit against AT&T, I'm guessing that they will consider the following section to be the most troublesome part of AT&T's newly revised policy: "While your account information may be personal to you, these records constitute business records that are owned by AT&T. As such, AT&T may disclose such records to protect its legitimate business interests, safeguard others, or respond to legal process."
Disclosure here: I used to work for AT&T, specifically one of the Bell companies, the Chesapeake & Potomac Telephone Company of Virginia, for several years just after I graduated from college and before I went to law school. Monopoly aside, Ma Bell provided great phone service, and I've listened to many people since then complain about consequences of the breakup of (when it was called) THE phone company. There were some benefits, too. Even so, AT&T has slowly started to reassemble itself in the ensuing 30 years and may once again become the kind of monopoly Microsoft is now. Whether that's good or bad, today's privacy issue is nothing like it was then. And neither is the rest of the world.
Coast to Coast Internet Radio Questions the JuryJurors who lie or conceal information on their jury questionnaires are causing problems in the courts. Should there be background checks performed on jurors? Is this a violation of our rights? Join me and my co-host Bob Ambrogi, fellow attorney and Law.com blogger, as we discover what is going on in the jury system across the United States. Coast to Coast welcomes, Professor Randy Jonakait, professor of law at the New York Law School and author of 'The American Jury System" and Dr. Phillip K. Anthony, CEO of DecisionQuest and a highly sought-after expert on trial consulting. Give a listen.
Navigable Wetlands Doesn't Mean That Puddle In Your Backyard
Wetlands is a really dry subject, especially considering the litigation involved with it. On one side, environmentalists and the agency regulating federal wetlands (the United States Army Corps of Engineers) believe that "waters of the US" - the operative words invoking government control in the Clean Water Act - mean practically any surface water in the United States. On the other side are developers and most conservatives who believe that "waters of the US" includes that part typically left out, "navigable."
The plurality of the recent Supreme Court opinion appears to have sided with the "navigable" part, although the concurrences and dissent may confuse readers and leave them to believe there's something for everyone. That reading would be a mistake. Regulation of wetlands is no longer limitless, and the waters to be regulated must be relatively permanent navigable waters, severely curtailing the USACOE's jurisdiction.
MIPTC covered the lead-up to this opinion, and closely predicted Roberts' concurrence. Roberts chastised the USACOE and the USEPA for adopting "essentially limitless" boundaries of regulation of wetlands. He suggest that had both agencies followed the Court's decision in SWANCC, then the Supreme Court's decision to rein in the regulators could have been avoided. Interestingly, he equally chastised his fellow members of the Supreme Court for not providing a unified opinion to guide regulators and developers, but excused this failure by citing to other court opinions where the same thing happened.
Roberts is wrong and he is right. This opinion could have been avoided had the USACOE agreed to limit its jurisdiction in a more reasonable fashion instead of requiring the Court to do so. The perspective that this plurality opinion is excusable because previous Supreme Courts have done the same thing is wrong.
The Court is the court of last resort. Clarity and consistency are essential. While some members of Congress may not agree with the final legislation sent to the President to sign, they don't have a right to issue separate concurrences or dissents from the law. Maybe it's time we reigned in the Supreme Court and required one opinion per case.
MIPTC Named Finalist For LA Press Club Journalism Award
MIPTC is pleased to announce that it is one of three finalists (scroll down to I.16.) for the 48th Annual LA Press Club Journalism Awards for individual weblog. The other finalists are the LA Times' Lakers Blog and LYT Rules blog. I've skimmed the blogs of the other finalists, and have enjoyed reading both - very different perspectives and very different styles.
The Times commented that its writers have never read MIPTC and probably couldn't understand a lawyer blog if they tried, but I'm betting they probably could. The Times asked me for my opinion on the Lakers' first round draft pick options. While I'm way out of my league here, I'll go out on a limb and recommend that they should pick a big man who can rebound and score. But that's just me. And yes, I'd be happy to help draft that contract.
Along with the other bloggers, MIPTC walks down the red carpet, rubbing elbows with the likes of Larry King (wink, wink) for the Awards Ceremony at the Biltmore Hotel this Saturday night, and I'll report back on the winner next week. Meanwhile, congrats to the other finalists!
And With Tax, Your Total Comes To...
Lawyers in New Jersey may soon utter those words to their clients , and likely a few others to the state legislature if a plan put forward by that state's Democrats to make up a $4.8 billion shortfall in the budget succeeds. That's right, your neighborhood legislator is thinking about taxing fees charged by lawyers, accountants, consultants and other professionals.
Lawyers there are none too happy (subscription required) about it, even though it would also affect about 55 legislators who hold professional licenses.
The plan was first tried in Florida, but was repealed there because professional work flew out of town faster than a speeding bullet and resulted in low revenues. The idea hasn't been well received anywhere.
The cost of consulting a professional is already high, and may become just a bit higher in New Jersey. The legislators there have until the June 30 deadline to figure out how to make up the shortfall.
Here's another way: cut the budget.
Headlines And Unfortunate Photographs: Are You My Sperm Donor?
Your last case before you retire from the bench is a joke. Literally.
Seems that Marilyn Drake didn't like Jay Leno's jabs about a headline and photograph in the New York Times that discussed fertility clinics and sperm and ovum donors. The headline, "Are You My Sperm Donor? Few Clinics Will Say" led into a story about fertility clinics' unwillingness to share information about sperm and ovum donors with recipients. In what was an unfortunate segue, a photograph underneath that headline featured Ms. Drake seated on a couch next to her dog. Ms. Drake was an ovum donor.
Leno joked about the headline and photograph, using an imagined dialog between Ms. Drake and her dog, "Are you my sperm donor?" No! I have fake testicles! How could I be your sperm donor?"
Ms. Drake was not pleased and sued, as detailed in her Complaint. The case landed in the lap of Judge James Warren, who hears the "odd numbered cases" for writs and receivers in San Francisco County Superior Court, and is slated to retire. This was his last case.
He denied her claims and dismissed her Complaint, granting the defense's anti-SLAPP motion, designed to insulate protected First Amendment speech from lawsuits. Stanley Goumas Hilton was the Plaintiff's attorney.
As far as more puns or jokes go, you're on your own on this one. MIPTC doesn't want to have to file another anti-SLAPP motion, and I'm sticking to just the facts, ma'am.
Coast to Coast Internet Radio Looks Into Patent Law's Invasion of Attorney-client Privilege
This edition of Coast to Coast explores what happened when in-house counsel became the focal point during the TiVo vs. EchoStar patent infringement case with regard to attorney-client privilege. Join me and my co-host Bob Ambrogi, fellow attorneys and Law.com blogger, as we peek inside the TiVo V. EchoStar case with the experts - Attorney Blair Jacobs, partner at Sutherland Asbill & Brennan LLP and Attorney Christine Byrd, a litigation partner with Irell & Manella LLP and a member of the legal team for TiVo at trial. You'll hear how 'advice of counsel' played a role. Give a listen!
Supreme Court Announces 'No Knock But OK to Pounce' Rule
The US Supreme Court has changed the "Knock and Announce Rule" to "No Knock, but OK to Pounce." MIPTC is still reviewing the opinion, and will provide updates later today or tomorrow. You can read about the opinion, and see the actual opinion here.
6/16 Yes, I changed the headline and the intro after reading the case. That's one of the dangers of headline writing before you actually do the work. Oops.
When the police executed a warrant, they were required under the Fourth Amendment to knock first and then announce their presence. You've seen the process innumerable times on television (if you thankfully haven't been on the receiving end of a battering ram and gun barrels). The police bang on the door, yell "Police, open up" and then they break the door down. There's no set time that they're required to wait between the knock and announce, but we do know a very short time isn't enough. Emily Post it's not, however.
The court cited many reasons why they rejected this rule: social costs in excluding otherwise incriminating evidence if the rule is violated, releasing dangerous criminals, restraint by police officers that risk injury to them, destruction of evidence and deterrence. Conservatives on the court won over the liberal wing on this one, 5-4, with Alito apparently providing the swing vote. The case was reargued after O'Connor left, who likely would have tipped the scales 5-4 against given the style of her questions in the oral arguments.
One wonders whether it's a case of bad facts making law, and whether the decision would have been the same had the police raided the wrong home. Here, the raid found drugs and guns, and large rocks of cocaine in the defendants pockets.
The old "knock and announce" law was described by the court as an "ancient' law, extending back to English jurisprudence, and although a short opinion, it drew a much longer dissent from Justice Breyer. His perspective on the case knocks the majority for exercising judicial instinct rather than respecting precedent and honoring Constitutional requirements.
The majority, on the other hand, believe that the police are well-trained and use adequate discretion when exercising search warrants. The Court believes that there is no need to deter the police from violating the Constitution because they're not doing it now.
What's your read on it?