Defense Counsel Journal 

About: Defense Counsel Journal is an academic journal. The journal publishes majorly in the area(s): Plaintiff & Supreme court. It has an ISSN identifier of 0895-0016. Over the lifetime, 259 publications have been published receiving 672 citations.

Reel to Real: Should You Believe What You See?

Abstract: Keeping the good and eliminating the bad of computer-generated evidence will be accomplished through methods of self-authentication and vigilance IN THE acclaimed and popular motion picture Titanic, the opening scene shows hundreds of people seeing off the ill-fated vessel on its maiden voyage. But the scene was created through digital techniques using fewer than 20 actors. In fact, one of the Academy Awards the film received was for best visual effects. Of course, Titanic is only a movie, whose audiences may not expect to see scenes true to life. What if the scene were played out in a courtroom for a jury? Who could say whether it is real or not? This example highlights the persuasive power of digital imaging as evidence of reality. Modern jurors have grown up with television, and they believe and remember what they see. Advocates must realize digital imaging is the future, and the future is now. Today's jurors must be shown as well as told. IMAGES AS EVIDENCE The legal system uses a targeted concept of evidence, defined by Black's Law Dictionary as "[a]ny species of proof[] or probative matter ... by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention." Evidence, including image-based or computer-generated evidence, is divided into two broad categories--substantive and demonstrative. Substantive evidence is defined as that "adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i.e., showing that he is unworthy of belief), or of corroborating his testimony." Demonstrative evidence is defined as that "addressed directly to the senses without intervention of testimony.... Such evidence is concerned with real objects which illustrate some verbal testimony ... [and] may include maps, diagrams, photographs, models, charts, medical illustrations, X-rays." The purpose for which one intends to use computer-generated evidence such as charts, diagrams, simulations and reenactments may determine its admissibility.(1) A. Substantive Evidence The initial admissibility determination for computer-generated evidence remains with the trial judge using a preponderance of the evidence standard.(2) When witnesses are not testifying as experts, their testimony is admitted regarding observation and first-hand knowledge(3) but limited when based on opinion or inference.(4) The purpose of the Federal Rules of Evidence, as well as state rules, includes assuring that all scientific, technical, or specialized knowledge evidence and testimony admitted is relevant and reliable.(5) "High technology" evidence embodying independent probative value may be used as substantive evidence.(6) The rule for general acceptance of scientific evidence dates from the 1923 decision in Frye v. United States,(7) in which the D.C. Circuit required "general acceptance" within the scientific community from which the novel scientific evidence arose before it could be used as evidence. The Frye standard ruled for about 70 years, keeping several advances in scientific knowledge from being used as evidence until they were no longer novel. Some of the advances raising evidentiary issues include photography,(8) x-rays,(9) the polygraph,(10) hypnosis,(11) and more recently videotape,(12) computer simulations and animations,(13) and DNA.(14) Holding that the Federal Rules of Evidence superseded the Frye standard, the U.S. Supreme Court in 1993 in Daubert v. Merrell Dow Pharmaceuticals Inc. rejected the "general acceptance" standard as the sole test for admissibility of scientific evidence.(15) That case involved limb reduction birth defects allegedly linked to the mother's ingestion of Bendictin. The district court had granted summary judgment to the drug's manufacturer, holding that the plaintiff's expert evidence did not meet the general acceptance standard, and the Ninth Circuit agreed that the expert opinion was inadmissible because it was based on reanalysis of statistical data in earlier published studies, a technique not generally accepted. …

Hackers' Bazaar: The Markets for Cybercrime Tools and Stolen Data

Abstract: MALICIOUS hackers and cyberattacks are getting more attention these days--a result of both an uptick in the number amount of attacks as well as of increased public attention and fascination. 2014 was the year the hack went viral. Notable data breaches included those at retail giants Target and Home Depot, health-care provider Community Health Systems, financial institution J.P. Morgan Chase, and entertainment giant Sony. For the retail sector in particular, the stolen data from these hacks appeared within days on black market sites. These cyber black markets offer the computer-hacking tools and services to enable and carry out cybercrime attacks, as well as the byproducts from those attacks the stolen credit cards, personally identifiable information, and intellectual property. The RAND Corporation, with support from Juniper Networks, wanted to under stand the landscape and the character of these cybercrime black markets: what the markets look like today, where they came from, as well as where we're headed in the future. To do so, we sought out and interviewed experts ranging from academics, to Different Types of Cyber Threat are distinguished by motivation and intent: * Cybercriminals: use cyber means to go after financial data * Nation-States: use cyber means to monitor, exploit, or attack * Hacktivists: use cyber means to send a message, sometimes politically motivated * Cyber-terrorists: use cyber means to recruit, spread propaganda, or instill fear security researchers, reporters, security vendors and law enforcement personnel folks who have a personal connection to these markets, from a variety of angles. We also reviewed literature and technical reports on this topic and personally observed some of the marketplace forums and websites. The markets for cybercrime tools and stolen data have become so pervasive and accessible that the malicious hacking trade today can for some people in certain aspects be more lucrative and easier to carry out than the illegal drug trade. The hacking trade has matured into specialized markets, in which those who have gained the greatest access deal freely in its tools and spoils: exploit kits (software for creating, distributing, and managing attacks), bot-nets (remotely controlled computers used for sending spam or flooding websites), "as-a-service" offerings (hacking for hire), compromised hosts, and a continually flooded market for stolen credit-card numbers and other personal credentials. These markets are dispersed, diverse, and segmented; constantly changing and innovating to both keep pace with consumer trends as well as to prevent law-enforcement and security vendors from understanding them. They come in many forms. Some are dedicated to one product or a specialized service. Others offer a range of goods and services for a full lifecycle of an attack--from the tools needed to exploit a system, all the way through to the cyber laundering of the stolen goods. I. The Current State of These Markets: Where Are We Now? Today, the markets for cybercrime tools and stolen data are quite advanced. Cybercrime markets are rapidly growing, maturing, and continuously innovating. They are full of increasingly sophisticated organizations, people, products, and methods for communicating and conducting business transactions. They are resilient in the face of takedowns and constantly adapting to new tactics and techniques of law enforcement and computer security vendors. Finally, they are easy to enter. Cyber Crime markets: The collection of skilled and unskilled suppliers, vendors, potential buyers, and intermediaries for goods or services to facilitate digitally based crimes (e.g., stealing financial data, ecommerce accounts, and social media credentials; intellectual property theft; and takedowns of sites) II. How Did We Get Here? Less than 15 years ago, cybercrime was committed by ad hoc networks of individuals motivated largely by ego and notoriety, who mostly wanted to get on to systems and prove themselves to one another. …

E-Mail Monitoring in the Workplace: The Good, the Bad and the Ugly

Abstract: In this fledgling field of law, the safest course for employers is to have a clear written policy that is made known to employees and uniformly enforced "Gentlemen don't read each others mail." Henry L. Stimson, explaining (some say facetiously) the decision of the War Department to close its decoding office. "The joke around here is, `Why did it take you 1,700 pages to say: The employer can do it?'" Ohio State law professor Camille Hebert, author of Employee Privacy Law (West 1993), as quoted in "High Tech, Low Privacy," by Michael Higgins, ABA Journal, May 1999. IF E-MAIL is not already the most frequently used means of communicating in the workplace, it is close to it and gaining on its only rivals--face-to-face meetings and telephone conferences. This year, it is expected that 40 million e-mail users the world over will transmit more than 60 billion electronic communications.(1) Many of these will be sent from, to and within the senders' workplaces. According to a 1998 survey conducted by the American Management Association, 20 percent of companies monitor their employees e-mail, an increase of 5 percent from a similar 1997 survey.(2) As the years pass, it can be presumed that the numbers will be even higher. These staggering figures epitomize e-mail monitoring by employers and employee privacy rights are significant and timely issues facing the employers and their workplaces. What are the issues surrounding employer e-mail monitoring, including the rights and needs of companies to protect their property and themselves from liability, particularly with respect to harassment suits? The rights and needs of the workplace must be balanced against the privacy rights of employees. Do employees have a legitimate expectation of privacy with regard to e-mail and Internet use? One must examine the constitutional, statutory and common law origins of privacy protection for employees, along with applicable case law that has explored privacy issues in the workplace, including e-mail monitoring. The case law and statutes have yet to keep pace with the changing technologies. Currently, there are no clear guidelines with respect to these monitoring issues, but it is evident that employers have the proverbial "upper hand," at least for the time being. The best defense for an employer in light of the case law and statutory ambiguities is to have a clearly written, uniformly enforced e-mail policy that is disseminated to all employee e-mail users. THE NEW ENVIRONMENT For most employers and employees, as well as the rest of us, e-mail is a relatively new phenomenon. It was not so long ago that e-mail was called "electronic mail" and was as foreign a concept as that "information superhighway." E-mail's days of anonymity are long gone. Today, it is a common, if not necessary, tool used to facilitate communication, particularly in the workplace. It has revolutionized the workplace. E-mail use has exploded, primarily because it is fast and easy to use. In a world of increasing workloads and decreasing available time, e-mail provides a way to manage the burden. If people need an answer to a question, they can just "shoot an e-mail" to our more knowledgeable co-worker. No need to worry about listening to voice mail, or worse, listening to co-workers pontificate on subjects on which they are self-proclaimed experts. No need to worry about the formalities, as well as the time and expense, that a letter requires. E-mail is at once less formal and potentially more personal. These attributes also may some of e-mail's biggest shortcomings. Less formal means that senders have devoted less attention to what is being written. More personal means that senders may include confidential, offensive or sensitive information, believing that they are sending private, intimate message for the recipients' eyes only. E-mail has the added benefit of being more direct. …

Romantic Relationships at Work: Does Privacy Trump the Dating Police? Courts Generally Have Upheld Fraternization Policies That Balance Employer and Interests Carefully and That Are Administered Impartially

Abstract: The Privacy Project Courts generally have upheld fraternization policies that balance employer and interests carefully and that are administered impartially IN TODAY'S work-oriented culture, of fice romances and the related topics of sex and privacy have become important issues confronted by most employers. With more employees working longer days and spending so much of their time on-the-job, romantic relationships at work are developing more frequently.1 Workplace romance may be the only option for employees whose workload limits their outside activities; but for employers, this trend may prove problematic as the potential liability associated with these relationships rises.2 A 1998 survey by the Society for Human Resource Management predicted that 55 percent of office romances would likely result in marriage, but that 28 percent of these office relationships may result in complaints of favoritism from coworkers, 24 percent in sexual harassment claims, and another 24 percent in the decreased productivity of the employees involved.3 Statistics such as these have motivated employers to adopt prophylactic policies in an effort to avoid the potentially complicated and unsavory outcomes of office affairs and to maintain a strictly professional work environment. As protection from litigation and potential liability, some employers adopt policies directly addressing dating in the workplace. These policies range from the very strict, such as a comprehensive prohibition of dating between employees, to the more lenient, such as a policy that actively discourages, but ultimately allows, employees to fraternize.4 Even a simple policy requiring employees to notify management when coworkers are romantically involved provides documentation of a consensual relationship that could be helpful to an employer's defense against a sexual harassment claim, should one arise.5 Perhaps daunted by problems of implementation and enforcement, other employers have avoided adopting any formal policy explicitly addressing the issue of romance in the workplace, choosing instead to rely on unwritten rules or other policies already in place. Studies indicate that some employers choose to "rely on a quiet form of persuasion ... [believing that despite having no written rules, their employees understand that as a matter of corporate culture or implied policy .. . supervisorsubordinate relationships" will be discouraged or simply not tolerated.6 Although employers generally enjoy the right to promulgate rules and regulations restricting dating on the job as they deem necessary, this right must be weighed against the countervailing privacy rights of their employees.7 Courts considering these issues have balanced the employer's legitimate business interests in avoiding unnecessary litigation and potential legal liability and in maintaining a fair and professional work environment, against the privacy rights of employees.8 EMPLOYERS' BUSINESS INTERESTS Many employers adopt anti-fraternization policies in an effort to avoid the numerous types of liability they might otherwise confront.9 Liability may attach to an employer confronted with an office romance in a variety of ways.10 First, a romantic relationship between a manager or supervisor and his or her subordinate may result in allegations of favoritism, with coworkers claiming that the subordinate has received preferential treatment as a result of the relationship. For example, the subordinate may receive longer breaks, be given preferred shifts or receive unfairly favorable reviews. Over time, this perception of favoritism could lower employee morale and productivity-two business elements that employers have a vested interest in protecting.11 These complaints also may trigger a sexual harassment claim against an employer under Title VII of the Civil Rights Act, 42 sec U.S.C. 2000e, which enables employees to base claims of sexual harassment on, first, a "quid pro quo" argument where an employer conditions benefits, promotions or even employment itself on the receipt of sexual favors, or, second, an argument that sexual harassment has produced a hostile work environment. …

Between the Devil and the Deep Blue Sea: Monitoring the Electronic Workplace; Employers Should Have Detailed, Understandable and Fair Computer, E-Mail and Internet Usage Policies Impartially Administered

Abstract: The evil that men do lives after them; The good is oft interred with their bones; --William Shakespeare, Julius Caesar, Act III, scene 2 I have come to believe that if anything will bring about the downfall of a company, or maybe even a country, it is blind copies of e-mails that should never have been sent in the first place. --Michael Eisner (commenting to the graduating class at the University of Southern California) I suggested deleting some language that might suggest we have concluded the release is misleading. --E-mail sent by Nancy Temple, in-house counsel for Arthur Andersen, referring to an e-mail that was central to the jury's decision to convict the accounting firm WITH JUST a few clicks of a mouse, an employer may lose valuable trade secrets and confidential information, be liable for violating copyright laws, or be exposed to claims that it permitted a hostile work environment. The pervasive and ubiquitous nature and exponential growth of electronic mail and the Internet highlight the need to monitor the electronic workplace to curb that liability. Just consider: * The number of e-mail users increased from 8 million in 1991 to 108 million in 2000. (1) In 2000, 40 million employees exchanged more than 60 billion messages daily. (2) * According to a 1999 study by the American Management Association, at least 50 percent of all workplace Internet activity is not business-related. (3) * A study by the ePolicy Institute found that 85 percent of employees admit to recreational surfing at work. (4) Seventy percent of employees admitted to receiving or sending adult-oriented personal e-mails at work, while 60 percent admitted to exchanging e-mail that could be considered racist, sexist or otherwise "politically incorrect." Most traffic to Internet pornographic sites occurs during regular business hours, probably because Internet connections usually are faster in the workplace. Companies have taken note of these statistics and have adopted e-mail and Internet usage policies that may contain provisions for continuous or random monitoring of usage. The ePolicy Institute study reports that 77 percent of employers monitor employees' e-mail and Internet use. In fact, 10 percent of workers with e-mail/Internet access (about 14 million people) are under continuous online surveillance. (5) About two thirds of employers have disciplined or terminated employees for violating electronic usage policies. (6) Employers give several reasons for monitoring. Generally, they wish to maintain their professional reputation and image. They also are concerned with employee productivity and business efficiency, as "cyberslacking accounts for 30 to 40 percent of lost worker productivity." (7) With respect to legal liability, one commentator has stated, "Via the recent expansion of the strict liability doctrine of respondent superior, an employee may be held strictly liable for the foreseeable torts and crimes of employees." (8) Therefore, monitoring may assist employers in preventing and discouraging sexual or other illegal workplace harassment, defamation, copyright violations from the illegal downloading of software, music and movies, and the deliberate or inadvertent disclosure of trade secrets and other confidential information. The ePolicy Institute study showed that 68 percent of employers that monitor cite legal liability as their primary reason. No federal or state statute currently prohibits employers from monitoring their electronic workplace. The federal Electronic Communications Privacy Act and similar state laws provide some limitations, but these limitations can be overcome in the workplace through various exceptions in the statutes. (9) The federal act prohibits the interception of electronic communications such as e-mail. It defines "interception" to mean the "contemporaneous acquisition of the communication," so an interception takes place only when an individual sends an e-mail and a third party is able to obtain a copy of the transmission at the time it is sent. …