Monthly Archives: February 2010

Facebook: do what it takes to protect your image online

I cannot connect to Facebook during work hours, due to a nefarious blocking service that ensures I stay productively at work for the duration of the time I am paid to be at my desk, energetically pouring over  contracts, letters of intent, amendments and other legal documents.  Nevertheless, I am still on Facebook.

I cannot connect to Facebook during work hours, due to a nefarious blocking service that ensures I stay productively at work for the duration of the time I am paid to be at my desk, energetically pouring over  contracts, letters of intent, amendments and other legal documents.  Nevertheless, I am still on Facebook.

Without a doubt, this presents a quandary.  In recent years, Facebook usage has exploded, becoming the social networking destination for over 350 million (!) users.  (Apropos: only about 100 million of them are in the US, and the second largest group comes from Turkey…who would have thought?).  Further, I use Facebook for both social networking and professional networking because, really, is there a clear line between the two?  I make friends with people I work with, and I hope my friends will send work my way.

All this is complicated because Facebook, like so much of the web now days, on occasion changes their rules and regulations, updating what can and cannot be seen by viewers on the web (beyond my “friends” that I’ve already permitted to visit my page).  With so much personal information available online, a few precautions are wise.  Dennis Kennedy, an attorney from St. Louis, had some great suggestions for a starting point:

1) Use a strong password and change it on a regular basis. A corollary: Don’t give your Facebook password to anyone who asks for it, especially if the request comes in an e-mail or message. Phishing is the term used for efforts made by the bad guys to obtain your username and password, and phishing efforts abound in the Facebook world. There are also plenty of stories of passwords being guessed or stolen and accounts compromised and misused.

The solution is to take great care with your password, use a strong password and change it on a regular basis. By “strong” I mean a password consisting of a string of eight or more characters with a combination of letters, numbers and symbols that don’t include words, a common pattern or obvious numbers or names. The best thing you can do after reading this column is to change your Facebook password.

2) Review and make appropriate changes to your privacy settings. Facebook has a profile privacy page that lets you establish settings for who can see a variety of different types of information and otherwise lets you control your privacy settings. Go to it, review and understand the default settings, and make appropriate adjustments. A word to the wise: Think long and hard before you make anything available to everyone.

3) Be discriminating in your use of Facebook apps. Several people I know have installed Facebook apps (games, etc.) and later found, to their embarrassment, that all their Facebook friends had learned the latest movie they saw or how much they won playing online poker. Apps also ask for your username and password, another area of concern.

4) Take control of what others can put on your page. Your wacky friends in real life are likely to be wackier on Facebook. Some of their material might be displayed on your Facebook page or “wall” unless you adjust your settings. A common area of concern is photos that people tag with your name.

5) Consider using “friend lists.” Facebook allows you to create lists of friends (family, work, classmates, etc.) and treat the friends in each list differently in terms of what they can see and do.

And what to do when a boss “friends” me?  Likely, I will have to accept, and then just be aware of what I post.

What do you do to protect your online presence?  Do you have one?  How do you manage to keep it safe?

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Christianity and the Common Law

Of all my posts, the question I tweeted a few weeks back about Christianity and the common law has gotten the most views, much to my surprise.  Despite the attention, I have no idea whether Christianity is a part of the American legal system’s common law.  Justice and mercy, and crime and punishment, the language of contracts and torts can all find correlating vocabulary in the Christian syntax and doctrines.  But is Christianity itself a part of the common law?  And has it ever been?

Naturally, my first stop to find out was Google.  My search was something along the lines of  “christianity as part of the common law” and nearly all my results referred back to Thomas Jefferson.  Interesting…

Apparently, according to some sources, in the early days of the American republic the question of whether or not Christianity was part of the common law was a point of discussion in the legal community.  Thomas Jefferson mentions it repeatedly in letters to associates and in his notes as early as the 1760s and on until the 1820s.  In a celebrated letter to Major John Cartwright, Jefferson argued that Christianity was not part of the common law but had been foisted into the law as an act of judicial legislation (what we now call judicial activism).  Incidentally, this is the same letter that gave rise to Jefferson’s famous quote about a “wall of separation”  between church and state.  The argument against Christianity as a part of the common law was that because the common law was rooted in Anglo-Saxon history to before the advent of Christianity in Britain, it was a late comer to the legal system and had therefore never been a basis for the common law.

Justice Story, of the US Supreme Court and a devout Unitarian, did not agree with Thomas Jefferson, and in 1833 he rebutted Jefferson’s attack on Christianity in the Cartwright letter.  However, his response was regarded as largely weak.  For example, he noted that reviling was the root for the English common law doctrine of criminal libel.  However, Story’s argument is often seen to have boiled down to a support for legislation that prosecuted for blasphemy, the very thing that Jefferson argued was not prosecutable in his letter to Cartwright.

Other quotes at the time seemed to support Story’s perspective, viewing Christianity as a way to guide and provide for the virtues that would protect society.  Matthew Hale said “Christianity is part of the Common Law of England.”

For a look from Jefferson’s work on the topic, check here,  here and here.

Despite the dissent from Christianity as part of the common law by Jefferson, the discussion and application to Christianity as part of the common law persisted until at least 1927, when it last was cited in a case before the Pennsylvania Supreme Court.

Some might suggest that there are those today who see Christianity as part of the common law.  The US Supreme Court’s chambers has a large image of Moses on its fascia and on its wall among the great law givers of history. Recently, a decision by the Supreme Court allowed a monument depicting the 10 Commandments to remain in on an Alabama court’s property, ruling it was not an endorsement of Christianity but of the supremacy of the rule of law.

James Madison, the bookish and quiet little man we call the Father of the Constitution, was the champion of the Bill of Rights.  Of the 19 amendments to the constitution that he proposed, only 10 were passed, but among those the most important to him was the First Amendment with its grant of the freedom to worship according to the dictates of one’s conscience.  Despite this, it was 1833 before the last state did away with any established religion under state laws.  Today, we take it for granted that religions do not receive any preference from government.  But asking the question–is Christianity a part of the common law?–raises the question of whether there are roots of todays legal system in the past, even the distant past.

Do you see Christianity in the common law?

A Blog You Should Read: The Volokh Conspiracy

Quickly, because it is Friday and my brain also feels like it’s ready to explode, I want to throw in a plug for one of my favorite blogs, the Volokh Conspiracy.  To be sure, I don’t know a ton about any of the contributors, other than their names and that they are largely comprised of law professors.  The blog is always  active, and the comments are almost as enlightening and interesting a discussion as the original posts themselves (if not sometimes more so).  The range of interests cross the spectrum from legal to political to society and even sports…pretty much whatever the writers are thinking about.

So, if you haven’t checked in their yet, find some time to do it this weekend.

“Live Free, or Die Hard,” or Big Brother is watching? The Brave New World of cell phone tapping. PART I

Among the coolest of gadgets are those which use an internal GPS device to tell you where you are on the map.  I use one in my phone and, thanks to an app from Google that I downloaded for free, it allows me to pinpoint my location, pin it on a map, and plot out the fastest route between point A and point B.  As a former Boy Scout who proudly brought home his Orienteering Merit Badge as a teenager in the early 1990s, I think the technology  that to make a map, put myself on it, and find any address–all within my phone the size of my palm–is about as cool as it gets.

It appears, however, that the information on my forays using my phone’s GPS capabilities are not limited to me.  It was only a few years ago that cell phones were the size of bricks and limited to only the most wealthy.  As they have become ubiquitous, the ability access them has increased, too.  No longer just phones, they are practically personal computers, and it won’t be long before the line between the two disappears altogether.   And, as they have gone from being a luxury to almost a necessity, from just a phone to performing many of the functions of a PC, the ways and means to access the private information they carry has increased, too.  The phone calls I make  and the data I access and store might be available to a person with the right means and technology, or, almost more frighteningly, the government.

But how scared are we?  While cell and computing technology has flown forward at a blinding pace, the law regarding the access of private information has not kept pace (no surprise there, actually…).  Yet, even as more private information has become accessible, and I’m not talking about your status updates to Twitter and Facebook, are we really that worried about it?  Perhaps we are already expecting it?  Television and movies are so full of  the government’s use of GPS and cell phone data that it is almost passé. I can’t remember the last time I saw a police procedural–other than perhaps Law and Order–where the crime was solved without appealing to cell phone records.  Think 24, Live Free, or Die Hard, or the recently popular Castle. Some shows are probably more accurate than others, but regardless of how accurate, the point is that the access to cell phone records is pervasive throughout television.  Can’t find where the suspect was during the time in question?  Just get a warrant for his cell phone records…unless you’re Jack Bauer.  Then you just do it, because that’s how he rolls, and there probably isn’t time to get a stupid warrant, anyway. (See also: disregard of the Constitution in television, torture, repetitive plot lines, and television characters that don’t eat or use the restroom.  Ever.)

Unfortunately, the law regarding the government’s right to access our phone records isn’t very developed, yet.  In law school, we were taught that the Fourth Amendment protected persons from government search without a warrant:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Warrants must be based on probable cause (which, if you’re Jack Bauer, means he can search you because he says so), the most common definition of which is the “reasonable belief that a crime has been committed.”  There’s a whole long line of Supreme Court jurisprudence about what qualifies as probable cause, which I won’t go into here, but suffice to say: the law allows that a search can only be conducted under certain situations, is limited to certain parameters defined in the warrant, and if these parameters are violated, or if the search was conducted without a valid warrant, any evidence found can be excluded from the trial of the suspect.

Maybe that’s why Jack seems to always knock off the bad guy–killing the bad guys provides a much cleaner ending to a crisis than a long and drawn out court case, which I am sure Eric Holder is thinking right about now.   Until and unless Jack Bauer and the executives at Fox run the world of crime fighting and criminal prosecution, though, the rest of us are protected from the abuse of government by the Constitution.

Which brings me to the point: where do cell phones and the data they transmit fit into that scheme?  It is a useful tool for law enforcement, even if the exact parameters of that use is still gray.  CNET reports that:

Two years ago, when the FBI was stymied by a band of armed robbers known as the “Scarecrow Bandits” that had robbed more than 20 Texas banks, it came up with a novel method of locating the thieves.

FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.

The FBI got the bad guy, but who determines which of us is that bad guy before the government starts looking into our records?  The Obama Administration is thinking about this, thank heavens.

In briefs filed for oral argument on February 12, the Obama Administration argued that Americans enjoy no expectation of privacy in their phone calls, or at least their whereabouts when making those calls.  Requesting the right to demand a phone service’s records, the “U.S. Department of Justice lawyers say that ‘a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records’ that show where a mobile device placed and received calls.”

Naturally, this has the ACLU and company gathering up their pitchforks, hot tar and feathers.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation […]. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

To be continued…

Your Blackberry Could Save Your Life

This post has nothing to do with the law, but everything to do with your Blackberry.  From Josh Blackman’s blog (who quotes WDTN):

A Dayton woman escaped injury when a stray bullet hit her BlackBerry and not her. ”The BlackBerry was in the right place at the right time and the bullet hit her in the right spot,” explained Butler Twp. Police Capt. Carl Bush. Bush said Anthony Holtvogt was with his girlfriend at Fricker’s restaurant on Miller Lane Feb. 6, 2010 when he accidentally shot her. Bush said Holtvogt, who has a concealed carry permit, was putting on his jacket when the gun discharged. ”While he was adjusting his jacket, he noticed that the slide was back on the gun and then it fired,” Bush said. “The bullet did not penetrate the cell phone. [It] bent the cell phone a little bit and made the cell phone unusable.” Thanks to the bulletproof BlackBerry, the woman walked away with just a hole in her pants and a bruise on her leg.