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Indiana visits SCOTUS: Sandifer v. United States Steel Corp.

On the slate for this year’s Supreme Court term is a case out of Indiana, Sandifer v. United States Steel Corporation, discussing whether steel workers should be paid for the time it takes to put on and remove their work clothing.  Oral arguments occurred on Monday and have already garnered some enthusiastic responses, so we thought we’d share a little more information about and coverage of the case.

Summaries of the facts and arguments of the case:

7th Circuit Opinion (678 F.3d 590 (2012))

Docket

Summaries from:

News coverage:

The main issues:

Petitioners Respondent
Clarity of Fair Labor Standards Act, §203(o), or “What are ‘clothes’?”
Clothing of steel workers should be exempted from this provision because of its protective nature, functioning more as a tool than as something to cover the body Such an exemption would make 203(o) confusing and difficult to enforce
Collective Bargaining
Labor unions have the power to bargain over issues of wages, hours, and working conditions and those agreements should be upheld The steel workers already had a collective bargaining agreement in place that could have covered this, so they must already be getting some benefit as a concession, and straying from that agreement would harm the collective bargaining process

Ch-ch-ch-changes: How the Internet and modern computer technologies have entered the ABA Model Rules of Professional Conduct

Computer technology is pervasive in our everyday lives.  Certainly technology plays a role in our private lives, whether it be our social media accounts, communication via Skype or text, cloud storage of personal photos and documents, or perhaps all of the above, and then some.  Outside of our personal lives too, whether in our professional capacities or preparing for class, technology plays a significant role.

Since the computer and mobile technology invasion began, attorneys and professional organizations have been aware of the ethical impact these technologies inevitably have on legal practice.  Thus, CLEs, ethics opinions, and law review articles abound discussing the ethics of social media use by attorneys, cloud computing in firms, and e-discovery.  The ABA took this one step further last August, adopting several amendments to the Model Rules of Professional Conduct, discussing the lawyer’s roles and responsibilities when it comes to technology. (Note: where I’ve directly quoted the changes, italics indicate the changed language.)

Rule 1.0 – Terminology – 1.0(n) “Writing” or “Written” – where previously e-mail was listed among the examples of this term, this has been changed to the broader category of “electronic communications.”

Rule 1.1 – Competence – Comment 8 – “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology…”

Rule 1.4 – Communication – Comment 4 – This comment formerly contained a statement about prompt return of client phone calls.  This has been changed to say that “[a] lawyer should promptly respond to or acknowledge client communications.”

Rule 1.6 – Confidentiality of Information – Comment 18 – This comment discusses the necessary safeguards attorneys must take to protect client information.  “Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).”  Both comments 18 and 19 of this rule additionally discuss data privacy as governed by state and/or federal law, and that, owing to such laws, the attorney may be bound to follow additional safeguards to maintain the privacy of client data.

Rule 4.4 – Respect for Rights of Third Persons – 4.4(b) – “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”  Comment 2 to this rule states that electronically stored information includes “email and other forms of electronically stored information, including embedded data (commonly referred to as ‘metadata’), that is subject to being read or put into readable form.  Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.

Rule 5.3 – Responsibilities Regarding Nonlawyer Assistance – Comment 3 – This comment, pertaining to nonlawyers outside the firm, states that “[a] lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client.”  It cites as examples of this a document management company that creates/maintains a database for your firm; using a third party for printing and scanning client documents; and storing client information via an “Internet-based service.”  This comment goes on to say that, much like the ethical requirements regarding nonlawyers within the firm, the lawyer must take reasonable steps to ensure that the outside nonlawyers follow the ethical standards of the attorney when it comes to maintaining the confidentiality and privacy of the client’s information.

Rule 7.2 – Advertising – Several comments to this rule have been updated to include “Internet-based advertisements” and “other forms of electronic communication” among the many forms of lawyer advertising that fall under this rule.  Comment 3, moreover, states the power of electronic advertising in its many forms: “Television, the Internet, and other forms of electronic communication are among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public.”

Rule 7.3 – Solicitation of Clients – Comment 1 – This comment discusses the difference between a solicitation and a regular advertising communication, and discusses it in the context of various different types of advertising, including several ways in which an attorney’s services can be advertised online.

So what does all of this tell us?  For the most part, these changes are simply expansions of previously existing rules and comments to recognize the role that computer technology plays in attorney practice and advertising; however, some of the other changes go beyond this, discussing for example issues of data privacy and the balance between maintaining that privacy to the utmost through certain software and the difficulty and technical issues such high privacy standards can cause, potentially affecting the attorney’s use of that data.

Particularly interesting is the comment to Rule 1.1 on attorney competence that states that an attorney must possess knowledge of the “benefits and risks associated with technology” to comply with this rule.  Is this simply a cautionary comment, to make sure attorneys desiring to use cloud-based storage, for example, know the risks of involving a third party in housing clients’ data and information?  Or is it equally addressed to attorneys who have not jumped into the latest technologies, suggesting that, to be the best attorney you can be, it is important to utilize the best and most efficient means of representing your clients, which may very well include the introduction of certain software and Internet services into your practice?

I would imagine that further interpretation of these changes will be forthcoming through CLEs and ethics opinions, but students preparing to enter the legal profession will do well to keep these changes in mind, and, as the language of the previously mentioned comment suggests, consider the “benefits and risks associated with technology” as you prepare to practice.  Technology can certainly do a lot to enhance the legal profession, but with each new service comes new legal and ethical implications to be considered.

Check out the full text of all the August 2012 changes approved by the ABA House of Delegates.

The Consequences of “Saying Cheese” – Instagram and Clickthrough Agreements

Instagram LogoFirst, there were “shrink wrap” contracts – contracts accompanying physical products, such as software, in which the consumer “agreed” to to the contract by breaking the shrink wrap.  In the digital age, we have become accustomed to “clickthrough” or “clickwrap” contracts – the user agreements requiring us to click OK in order to, say, download the latest version of iTunes.  (And let’s be honest here – just as with the shrink wrap contracts, not many of us can claim to carefully read these before clicking OK.)  In legal terms, these are considered contracts of adhesion, a “standardized contract form offered to consumers of goods and services on essentially a ‘take it or leave it’ basis without affording consumer[s] realistic opportunity to bargain and under such conditions that consumer[s] cannot obtain [the] desired product or services except by acquiescing in form contract” (Black’s Law Dictionary, 6th ed.).  Due to the lack of bargaining power, courts may be lenient when it comes to particularly outrageous provisions in these contracts, but by and large they are not considered unconscionable.

To say these types of contracts are commonplace today would almost be an understatement – there are very few products you can download or internet services you can sign up for these days without encountering such an agreement.  However, as recent news reminds us, the savvy person will make an effort to know what s/he is signing up for.  This week, Instagram, a photo-sharing service that makes it simple to share photos taken with your phone, has come under a great deal of heat about the recent changes to its user agreement.  In particular, the following language has come under fire:

“Some or all of the Service may be supported by advertising revenue.  To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.”  Instagram Terms of Use – Rights, #2 – effective Jan. 16, 2013

This language is in contrast to the provision’s previous version:

“Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.  The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.”  Instagram Terms of Use – Proprietary Rights in Content on Instagram, #2 – in effect until Jan. 16, 2013

Comparing the two provisions, they do not seem all that dissimilar.  Other provisions in both versions of the Terms of Use unequivocally state that ownership of the photos remains with the user.  However, the new provisions make clear that Instagram can financially profit from advertisers buying certain rights to your photos and information (such as username) to advertise their products.  While many Instagram users and news sources declare these changes to be an outrage and an invasion of privacy, others see it, as does Instagram, as the service’s move to be more fully functional within Facebook, which bought Instagram in September.  For example, with these new provisions, advertisers would be able to use your Instagram content to create ads for Facebook such as “6 of your Friends like this product.”  As anyone using Facebook knows, Facebook already does this; since Instagram is owned by Facebook, this change does not seem to be as great a shock.

What will be more interesting, perhaps, is to see how else the language of these new provisions can be interpreted.  Beyond Facebook advertising, what else might advertisers be able to do with your content?  Given the immediate backlash, will Instagram simply back off and retain its current Terms of Service instead?  With the story still in development, only time will tell.  If nothing else, this is a great example of the risks of clickthrough agreements and a lesson in safe consumerism.

We Want a Death Star!

The White House has created a means by which the American people can voice their concerns on any range of issues and urge POTUS to take action.  “We the People” is the site where you can create a petition or browse and sign other petitions.

According to the How & Why, “If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.”

I wonder what the official response might be to the petition urging construction of a Death Star.

As of this posting, the Death Star petition has received over 1,400 signatures.  This petition suggests that “[b]y focusing our defense resources into a space-superiority platform and weapon system such as a Death Star, the government can spur job creation in the fields of construction, engineering, space exploration, and more, and strengthen our national defense.”

Check out some of the other pending petitions, which include the following:

Lawyers Behaving Badly

With the final Multistate Professional Responsibility Examination (MPRE) of the year looming on the horizon, ethics may be at the forefront of your mind.  While the MPRE tests for knowledge of the Model Codes for Professional Responsibility and Judicial conduct, as well as common law principles related to attorney discipline, there are guaranteed to be a nearly infinite number of ethical quandaries that won’t make it onto the exam.  Fortunately, there are resources available to help law students and practitioners navigate these issues.

First, always start with the rules governing professional responsibility.  It is sound advice to familiarize yourself with the Rules of Professional Conduct in your jurisdiction.  The current version of Indiana’s rules can be found on the judiciary’s website.  In addition, attorney disciplinary opinions are available online at the Indiana Judiciary website, with coverage from 2004 to present.  Periodically, the Indiana State Bar Association (ISBA) publishes ethical advisory opinions.  This ethical guidance can be retrieved through the ISBA’s website.  For coverage of other jurisdictions, Bloomberg BNA and the ABA collaborate to produce the Lawyers Manual on Professional Conduct.  This online resource can be accessed by selecting “BNA Premier” from the Online Resources menu and choosing the “ABA/BNA Lawyers’ Manual on Professional Conduct” from the BNA “All Resources” list.

Next, keep abreast of changes – in both the legal field and society at large.  The advent of the Information Age, and its resulting technological advances, has added another layer of complexity in legal ethics.  Electronic discovery methods, and even simple email correspondence, can imperil the otherwise well-intended attorney.  Res Gestae, the journal of the Indiana Bar Association, includes a column in each issue devoted to ethics called “Ethics Curbstone.”  The law library keeps recent issues of this publication in the reference collection behind the circulation desk, shelved in the final row closest to the computer bank.  Res Gestae is a great current awareness resource for ethical concerns that are emerging or otherwise newsworthy.

Finally, don’t be afraid to reach out to a friend or colleague.  In each state, there is help available to attorneys and judges struggling with mental health and substance issues.  In Indiana, the Judges and Lawyers Assistance Program (JLAP) provides a variety of services to members of the legal community trying to cope with these types of difficulties.

Remain informed by using the myriad resources and advice available concerning legal ethics.  Be diligent and thoughtful in your professional and personal conduct.  Take care of your mental and physical health.  Lastly, remember that when you are an attorney, or even an aspiring one, what happens in Vegas, doesn’t necessarily stay in Vegas.

Copyright Law in the Digital Age

The law library recently added the Hathi Trust Digital Library to our list of electronic resources.  The Hathi Trust is a cooperative digitization effort by many major research institutions, including Indiana University, with a goal of preserving and providing access to library collections in digital format for use now and in the future.  With so many institutions contributing, collections within the Hathi Trust are vast, including such subjects as nineteenth century German texts, eighteenth century cookbooks, and many historic government documents that can be difficult to locate, such as Patent Indexes going back to the 1800s.

With the natural (and sometimes unnatural) deterioration of print materials, being able to digitize these works helps to ensure their preservation and accessibility for the future.  However, for a little over a year the Hathi Trust has been involved in a copyright lawsuit by the Authors Guild for copyright infringement.  The Authors Guild claimed that creating digital copies of copyrighted works infringed the authors’ copyright, because no permission was sought from the copyright holders, and that such wide-scale distribution (as is afforded by digital access) overstepped the allowances provided for in the Copyright Act’s fair use provisions.

On Wednesday, however, the presiding judge in this case ruled in favor of the Hathi Trust, finding that fair use was met, both because the digitization process was sufficiently transformative (the digital versions of the works in the Hathi Trust are full-text searchable in the database) and because this process provides much-needed access for disabled students (who can now read the digitized works through the help of assistive software).

Copyright law originates in the U.S. Constitution, Article 1, Section 8, Clause 8, endowing Congress with the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The U.S. Copyright Act can be found in Title 17 of the U.S. Code.  For more information on U.S. copyright law, see this booklet from the U.S. Copyright Office.

If you’re interested in further research into copyright law, try searching the subject heading Copyright–United States in IUCAT, or browse the shelves around the KF 2994′s (second floor of the law library).

99 Problems and the Fourth Amendment

If you have heard Jay-Z’s song 99 Problems, you know it is about a true incident that occurred in 1994 when he was pulled over for a seemingly arbitrary traffic speed enforcement. The suggestion is that the cop’s use of traffic laws was a mere pretext for searching his car, as he fit the profile for a drug smuggler.

The song is pregnant with Fourth Amendment issues, particularly the question, “When can you use a traffic stop to search for drugs?” A lot can be gleaned from the lyrics, both truths and inaccuracies. It is perhaps no surprise then, that Jay-Z’s lyrics can be used to gain a better understanding of Criminal Law.

In a line-by-line analysis, Southwestern Law School Law Professor Caleb Mason (in his Saint Louis University Law Journal article, “Jay-Z’s 99 Problems, Verse 2: A Close Reading With Fourth Amendment Guidance for Cops and Perps”) offers a fantastic and enjoyable explanation of this area of law using the lyrics as a touchstone. For those of you who are interested in pop culture representations of criminal justice, you will love the examination given by this writer.

By Jen Kulka (Library Intern & Guest Blogger)

The Politics of Cybersecurity

Cybersecurity vulnerabilities have been a cause of anxiety for governments, businesses, and individuals for over a decade. With an estimated 85 to 90 percent of the nation’s computer networks owned and managed by the private sector, resolving this concern has become an issue of upmost importance for Congress. In the first session of the 112th Congress alone, more than 40 bills, resolutions with provisions, and revisions to current laws were proposed. Despite this focused attention, however, none have yet become a law. This impasse occurs despite all parties concerned agreeing that action is needed because there is “disagreement over the role of federal regulations in defending privately owned computer networks, concerns about the privacy and civil liberties ramifications of any bills, and even election year politics.”

If you are interested in researching cybersecurity, I recommend that you first turn to the CRS report,  “Cybersecurity: Authoritative Reports and Resources” (also available at Open CRS).  This is an excellent source that identifies relevant legislation, hearings from the 112th Congress, news stories, Executive Orders and Presidential Directives, data and statistics, and reports from both Congressional Research Service and other organizations. To find the full text of these documents there are a number of resources available to you, including FDsys, Thomas and ProQuest Congressional; or you can contact a reference librarian for assistance.

If you wish to follow cybersecurity in the news, you might want to follow the New York Times Topic: Computer Security (Cybersecurity), Homeland Security News Wire: Cybersecurity, or CQ.com.

By Jen Kulka (Library Intern & Guest Blogger)

Tracking nuclear inspections

On Wednesday, May 23, diplomats from the United States and five other global powers met their Iranian counterparts in Baghdad to continue negotiations aimed at clearing the way for the international community gradually to lift economic sanctions in return for Iran’s agreement to permit independent verification of the non-military nature of its nuclear power program. Any such independent verification would be carried out by the International Atomic Energy Agency (IAEA), an independent agency within the United Nations family.

For those seeking detailed information about the IAEA and its verification practices, the agency’s web site provides a wealth of information about its history, organization, and legal framework. The agency was founded in 1957 as the world’s “Atoms for Peace” organization. The secretariat is headquartered in Vienna, with research centers at various other locations around the world, and is run by a staff of 2300. As an independent international agency, the IAEA’s relationship to the United Nations is regulated by its statute and special agreement with the parent body. Its policy-making bodies include the General Conference of Member States (currently 154) and a Board of Governors, composed of 35 states chosen by the General Conference.
Nuclear inspections are carried out by the Department of Safeguards. According to the Department’s web page, the safeguards system “comprises an extensive set of technical measures by which the IAEA Secretariat independently verifies the correctness and the completeness of the declarations made by States about their nuclear material and activities.” These safeguards include procedures undertaken at sites declared by states to contain nuclear material, as well as “strengthened” procedures designed to permit the IAEA to draw conclusions “about the non-diversion of declared nuclear material and the absence of undeclared nuclear material and activities in that State.” Interestingly, the “strengthened” measures are carried out on the basis of a model Additional Protocol to existing safeguards agreements, which not all member states (including Iran) have ratified. Hence authority for any such strengthened procedures in the current situation will have to be the product of negotiation.
Applicable legal texts, a Safeguards Factsheet, and links to a web page dedicated to the IAEA’s relationship with Iran are available at the Department of Safeguards web site.

Hot Topic: Student Loan Interest Rate Reduction

Direct Stafford Loans, from the U.S. Department of Education’s William D. Ford Federal Direct Loan Program, provide loans to undergraduates to help pay for their education. The College Cost Reduction and Access Act of 2007 has resulted in the interest rates on these loans to being lowered steadily over the last four years from 6.0% to 3.4%. On July 1, however, these interest rates are set to spike, doubling to 6.8%.

According to the White House website, this change will affect over seven million students, who will have to pay an extra $1,000 a year if no action is taken in Congress to prevent the rise before July. Preventing this change, however, comes at a cost. The Congressional Budget Office estimates that it will cost $6 billion to extend the current interest rates for one year. While Democrats and Republicans both agree it is important to keep student loan interests rates low, they are currently at odds with each other on how to pay for it. On May 8, Senate voted against the first attempt to freeze rates. It was a Democratic proposal that suggested an offset could be achieved ending the tax break for the wealthy. Republicans are countering this idea with their own proposition of attaining the money by eliminating a public health fund created by President Obama’s national health care law (the Patient Protection and Affordable Care Act, Pub.L. 111-148, 124 Stat. 119, codified as amended at scattered sections of the Internal Revenue Code and in 42 U.S.C.)

If you are interested in tracking the progress of this issue, I suggest you follow the development of both the House and Senate bills (H.R. 4628, S. 2343). You can do this through the following legislative databases:

Having the history of a bill will also inform you of any members of Congress who have given testimony or a floor statement on the issue, which you can then find in the Congressional Record, which is available through ProQuest Congressional, CQ.com, and Thomas.

By Jen Kulka (Library Intern & Guest Blogger)

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