Cloud Encryption

Cloud backup is great. But one of the major concerns for lawyers (and I am assuming many other professions) with sending their files into the web is the security and confidentiality of the files. Lawyers have an obligation to keep client information confidential. It can be hard to argue that you are keeping files confidential when you are sending them unencrypted and stored on remote servers you have no control over (see Megaupload).

SpiderOak is the first service I am aware of where a lawyer can be certain that the backed-up files remain confidential. SpiderOak performs client-side encryption before transmitting to the cloud. That means, all files sent out are encrypted and confidentiality is maintained. It should be noted that this does not mean files on your computer are encrypted. To do that I would recommend TrueCrypt (free).

Differences with Dropbox

SpiderOak, however, is not simply Dropbox with encryption. Dropbox gained prominence because of its ease of use. Dropbox creates a folder on your computer and any files in that folder were automatically synced to the web and any other device you had installed Dropbox on.

SpiderOak splits the backup and sync functions and allows a much more granular backup and sync. When a user starts SpiderOak, they select a folder to backup. You can choose any existing folder or set of folder already on your computer. So you do not need to re-organize your file structure. Once the backup is set up on at least two devices, you can also choose to sync one folder from one device with another folder on another device. The folders do not have to be named the same (although I am sure that would help). The level of control SpiderOak gives is very convenient but does make the setup process more involved.

Cost

The other major difference at the moment is cost. Both Dropbox and SpiderOak give 2gb of free storage. Dropbox gives 500mb additional storage for referrals while SpiderOak gives 1gb. For users wanting more space, Dropbox charges $10/month for 50gb while SpiderOak charges the same for 100gb.

Both Dropbox and SpiderOak have their uses and I will probably use both moving forward. However, professionals should take a look at SpiderOak for its encryption feature as a way to ensure that cloud backups stay confidential.

Welcome!

My name is Nathan Briley. I am a California-licensed attorney specializing in Civil Litigation and Immigration Law. I also enjoy and frequently write about new technology and the intersect between technology and the law.
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On the surface, the proposal seems to comport to traditional notions of law. For example, statute of limitations rules are in place, in part, because people forget and can’t be expected to defend themselves from suits years old. However, I can see no practical application that would allow a digital right to forget. Proposals are either an opt-out or opt-in solution.

Opt-out
The current proposal is an opt-out provision. Individuals would have the right to delete their information. However, this assumes that the only location of the information is at the site where the information originated. At this point, it should be common knowledge that most all social sites make money by selling user information. In addition, other sources attempt to gain the information for free by scraping the website. Thus, it seems impossible to truly delete any information once it has been shared because information online multiplies and moves to a variety of sources.

Opt-in
Another proposal is that users would have to opt-in to their information being shared or collected. For many websites, it would seem impossible to use the site at all without opting-in. Imagine using Facebook without it collecting any data on you. There could be no profile or friend list. In addition, For the same reasons that opt-out would not work, opting-in after using a site seems impossible because the information is already out there.

So, the only option that is left for a person who wants a “right to forget” is to just not share digitally in the first place. As a result, individuals will be left with a choice to either not participate in the growing global digital culture or have a permanent digital memory. Therefore, the right to forget becomes pointless as individuals must make the choice to share or not share and live with the consequences.

One of the things that has struck me recently when dealing with clients is the need to take action. In several instances, clients have faced challenges by not acting quickly. I have taken this to heart in considering my own practice. Failing to act can lead to several problems:

• Failing to Act Costs Money – The old maxim that “time is money” is certainly true. When potential litigation occurs, many individuals wait to make up their minds about what they want to do going forward. While people sit and think (and this certainly applies to lawyers), money is sitting in the wrong hands.
• Failing to Act Weakens Your Case – Many clients have the problem that they don’t think about protecting themselves when a problem arises. As a result, they might not save that receipt showing they actually paid or take pictures of damage to property as soon as it occurs. When we linger, evidence can get lost. Without all the evidence, a case gets weaker and the ability of the client to prevail declines. Taking time to act would lead to stronger cases and better recoveries.
• Failing to Act Saves Time - The excuse I usually give myself (and often hear from clients) is that I am too busy to do this or that. The reality is that problems don’t get smaller by waiting. If I take time to act, I can handle the problem before it gets too big and takes more time.

The simple answer is that the response was different because this was a criminal matter. The long answer requires a look into MegaUpload’s business strategy.

MegaUpload (and many, many sites similar) is a site that allows users to upload files. Each file has a webpage filled with ads that lets another user download the file. The downloader is delayed unless he or she pays for “premium” access. The uploader also gets a cut of the income from the file.

Two factors likely pushed the actions into a criminal matter. First, there doesn’t appear to be a legitimate use to the site. I cannot think of a file that would be so large that I would need to post it to a file locker site such as MegaUpload. Most files can now be sent easily through email. The one exception may be video. Still, the government is claiming evidence shows a majority of the files (as most everyone already knows) were pirated.

Second, by paying uploaders, MegaUpload was encouraging piracy. This is a key difference from YouTube which does allow ads but does not pay for files.

Still, key to the story is knowledge of infringement. Court documents state that they have evidence of knowledge.

Conspiracy theorists may claim this is in retaliation for the dust up with UMG but likely this is a story that became criminal due to the pay to play nature of MegaUpload.

Edit: Direct from the DoJ (http://www.justice.gov/opa/pr/2012/January/12-crm-074.html)

“The indictment states that the conspirators conducted their illegal operation using a business model expressly designed to promote uploading of the most popular copyrighted works for many millions of users to download. The indictment alleges that the site was structured to discourage the vast majority of its users from using Megaupload for long-term or personal storage by automatically deleting content that was not regularly downloaded. The conspirators further allegedly offered a rewards program that would provide users with financial incentives to upload popular content and drive web traffic to the site, often through user-generated websites known as linking sites. The conspirators allegedly paid users whom they specifically knew uploaded infringing content and publicized their links to users throughout the world. “

Update 2: well it appears there were some legitimate uses for MegaUpload that I hadn’t considered such as sharing open-source software such as android roms. Ars Technica has a good run down although I still think it is likely that most content was not legitimate.

1. Search results will be different for each person.  Because the new Google search uses your search history, each person’s search result will be different.  This means attorney’s checking to see where they rank online will always see their site first (because they have probably visited it).  An attorney who tries to search and see what his client was searching for will see different results.  It should be noted that these functions can be turned off.
2. What sites you visit may pop up where you might not expect them.  Say for example you search for something late at night that you don’t want others at a shared computer to know about.  Now, when other users are using a shared computer, that past history item will be pushed up search results.
3. Google properties will be heavily favored in Google searches. The new Google search uses sites you have visited plus Google properties such as Google+ and YouTube.  Because of this, Google+ and YouTube results will likely be higher on search results.  For an attorney, this means you will probably want a Google+ page.

More and more people are buying digital goods like music files, ebooks and apps.  Many people do not think about what their rights are with these purchases.  For the most part, we have not had to think about it.  People typically only sell goods when they no longer have a use for them.  As new formats and new devices reach the market, consumers will be ditching their old files.  For example, a Kindle owner who buys a Nook or an iTunes user that wants to start using Ultraviolet may wonder what to do with their old files.  The user may be shocked to find that the issue of whether or not he or she own their previous digital purchases is up in the air.

Content providers are quick to note that digital content is not “sold” but “licensed.” As the purchase is only licensed, the owner of the license can restrict how the user accesses the content.  However, this is not the common perception.  A person buying an ebook would think of the ownership similar to buying a physical book.  This perception problem could lead to a debate over digital ownership this year.

One company is already starting the debate.  ReDigi is a company that provides a marketplace for “used” digital music.  Users can sell their files on the site to another user.  ReDigi claims their efforts are legal under the First Sale Doctrine but the validity of their claim remains to be seen.  ReDigi relies on a concept of ownership of digital purchases rather than mere licenses.

With more content going digital, it is important to consider the property rights involved in digital purchases and hopefully the issue will get a little clearer in 2012.

Well, it has been a month since my last post.  I have been kept quite busy.

I had my car stolen and then found a week later intact.  The thief only (permanently) stole my sunglasses.

I traveled to Tennessee for the holidays and actually had a pleasant time in the airports.  It is quite surprising the difference in customer service with Southwest is vs. the other airlines.

I also got the chance to sample some of Napa’s best (check out The Kitchen Door and Bounty Hunter – both great!)

I also got to see the Sacramento fireworks show from very, very close.  We viewed it from the West Sacramento side and were able to get so close to where the fireworks were lit that they went off right over our heads (tort actions waiting to happen?)

I hope everyone out there is having as happy and busy new year as I have!

The bill would undoubtedly slow regulation by forcing all regulations to be analyzed by the Comptroller of the Treasury for their impact before enactment but would also send all “major rules” through a full committee voting process.

The regulation seems to be very close to being unconstitutional.  The problem is one of presentment.  The courts have considered this issue before in INS v. Chada.  In that case, the court found that a law allowing congress to have a unilateral review of immigration decisions by the executive branch was unconstitutional because it violated the presentment clause.  The presentment clause requires that any legislative action taken by congress be presented to the president for either signature or veto.  When congress avoids approval by the president, the law is unconstitutional.

It seems that the REINS act would fall afoul of the presentment clause.  I see nowhere in the statute where the joint resolutions are presented back to the president.  Therefore, just like in  Chada, the congress would be engaging in unilateral review of executive branch decisions.

Besides being potentially unconstitutional, the act also raises serious federalism concerns because it places the executive in need of permission from the legislative in a broad range of situations.  The $100 million impact on the economy seems fairly arbitrary and the congress could theoretically lower the threshold in the future.  The logical end would be that the executive would need congressional authority for any action it takes which would destroy the separation of powers.  It should also be noted that the bill immunizes congressional approval from review by the courts.

Not only is the REINS act bad legislation from a managerial perspective, it raises to me very serious constitutional issues.

I think that there can be an optimal amount (like any economics problem) of litigation if potential litigants take into consideration the costs and potential benefits of litigation.  Before I get too far into this, I will note that I am not taking into consideration non-economic reasons to sue.  Certainly, groups sue to set precedent or just to make a point to the other party.  However, I think the majority of people who want to sue need to consider the cost-benefit analysis before suing.  Of course, for contingency fee cases, these decisions are pushed onto attorneys who are hopefully better at making the necessary calculus.

The first thing to consider, which I think destroys the arguments of those who think there is too little litigation, are built-in costs of litigation.  For example, for the lady with the broken pot, there will be filing fees and the time out of her day for her or her attorney to appear in court.  There will also be the effort taken to collect any judgment.  Those costs will likely swallow the value of the broken pot making going to court a net loss.  These built-in costs are the reason that many cases, including those complained about by those stating that there is a lack of lawyering, fail to go to court.  There is simply a minimum value threshold for a case to be taken to court.

Of course the value of the case compared to the costs is not just the asked for recovery but the expected recovery.  This concept is common in economics but not amongst lawyers.  Take for example a medical malpractice case where the plaintiff is asking for $50,000 and the expected costs are $25,000.  One would think that an attorney would take the case because the recovery would exceed the costs.  However, if the attorney only thinks that he has a 40% chance to win the case, his expected recovery will only be $20,000.

So what is the point?  If people are discussing whether there is too much or too few cases brought, they first need to consider the cost-benefit of the case.