Digital Due Process

WebPro News reports on a lobbying initiative by a coalition of leading U.S. corporations and organizations to convince America's Congress to modernize the country's outdated digital privacy laws.

The excerpt below is from Chris Crum's article, Google, Microsoft Part of Coalition to Get Privacy Law Updated:

A coalition that includes Google and Microsoft is aiming to get the Electronic Communications Privacy Act updated to reflect the needs of today's technologically fast-paced world, where much consumer and business data resides in the cloud.

...Jim Dempsey of the Center for Democracy and Technology... ran down the four principles the coalition is trying to get instilled in the legislation. As laid out on the coalition's site, these include:

- A governmental entity may require an entity covered by ECPA (a provider of wire or electronic communication service or a provider of remote computing service) to disclose communications that are not readily accessible to the public only with a search warrant issued based on a showing of probable cause, regardless of the age of the communications, the means or status of their storage or the provider’s access to or use of the communications in its normal business operations.

- A governmental entity may access, or may require a covered entity to provide, prospectively or retrospectively, location information regarding a mobile communications device only with a warrant issued based on a showing of probable cause.

- A governmental entity may access, or may require a covered entity to provide, prospectively or in real time, dialed number information, email to and from information or other data currently covered by the authority for pen registers and trap and trace devices only after judicial review and a court finding that the governmental entity has made a showing at least as strong as the showing under 2703(d).

- Where the Stored Communications Act authorizes a subpoena to acquire information, a governmental entity may use such subpoenas only for information related to a specified account(s) or individual(s). All non-particularized requests must be subject to judicial approval.

...So far, members of the coalition include: ACLU, American Library Association, Americans for Tax Reform, AOL, Association of Research Libraries, AT&T, Center for Democracy & Technology, Citizens Against Government Waste, Competitive Enterprise Institute, Computer and Communications Industry Association, eBay, Electronic Frontier Foundation, Google, Information Technology & Innovation Foundation, Integra Telecom, Intel, Loopt, Microsoft, NetCoalition, The Progress & Freedom Foundation, and Salesforce.com.

More information about the initiative can be found at DigitalDueProcess.org.

- Garry J. Wise, Toronto

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Ruling: "Virtual" Law Offices May Not Satisfy N.J. Ethics Regulations

Virtual law offices have received much hype in some circles as the way of the future for legal practitioners.

Some juridictions, however, maintain "brick and mortar" regulations that call the legality of such offices into question. Law.com reports today on a New Jersey decision holding that some forms of virtual offices do not comply with that state's ethical code:

In an action that could affect large numbers of New Jersey practitioners, two court regulatory committees said on Friday that "virtual offices" staffed by receptionists who are mere answering services do not satisfy New Jersey's bona fide office rule.

Virtual offices, time shares in an office building on an hourly or daily basis, are popular with lawyers who work from their homes but need someone to take their calls and a conference room to meet clients.

But these lawyers are violating Rule 1:21-1(a), the Advisory Committee on Professional Ethics and the Committee on Attorney Advertising said in a joint opinion, ACPE 718/CAA 41.

The rule defines a bona fide office as a place where an attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by courts,

..."A 'virtual office' cannot be a bona fide office since the attorney generally is not present during normal business hours but will only be present when he or she has reserved the space," the opinions say. "Moreover, the receptionist at a 'virtual office' does not qualify as a responsible person acting on the attorney's behalf who can answer questions posed by the courts, clients or adversaries."

Read more: 'Virtual Offices' Aren't Bona Fide, N.J. Committees Say

- Garry J. Wise, Toronto

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20 Things To Do With Matzah

Happy Passover...

- Garry J. Wise, Toronto

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Domestic Terrorism

Andrew Sullivan, on the latest round of U.S. domestic terror arrests:

Surely we can all assent to the notion that a Christian militia of the type now accused of planning domestic terrorism is not Christian. This is why I call them Christianist. Anyone planning to murder innocents by way of IEDs cannot plausibly call himself or herself a follower of Jesus of Nazareth.

May we also assume that every single one of these terror suspects is innocent until proven guilty, and shouldn't be seized as enemy combatants and tortured until they confess? Will even Andy McCarthy concede that? Or not?

Also see: Hutaree militia members charged with seditious conspiracy

- Garry J. Wise, Toronto

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Video - 40 Birds Play the Electric Guitar

Too crazy... enjoy the weekend:

- Garry J. Wise, Toronto

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On Health Care Reform, Sex Offenders and Viagra

The antics never end in Washington, D.C.

Republicans were mighty busy Wednesday night, tabling proposed amendments to the health care reconciliation bill that is currently been debated in the Senate. The Democrats have made it known that all amendments will be defeated, as any change to the bill will derail their delicate health care reform agreement with the House.

Since they can't win on health care, the Republicans are taking the opportunity to get some interesting campaign-oriented sound-bites out of the process.

Digby explains:

Yes, they're just trying to improve the bill. You've undoubtedly heard about the important improvement to keep Viagra from sex offenders. Here are just a few more:

Brownback 3653 –“To promote the production of renewable fuel.”

Brownback 3690 -- “To provide for the relocation of the United State Embassy to Jerusalem.”

Vitter 4872 – “To repeal the law that provides automatic pay increases for members of Congress.”

David Dayen at Firedoglake:

Republicans have something of a free shot in the reconciliation bill. Democrats have already signaled that they will whip against any amendments and changes to the bill, in an effort to pass it intact and send it directly to the President, avoiding another vote in the House. So Republicans can write virtually any amendment, forcing Democrats into terrible votes, without much consequence, knowing they will be defeated and providing campaign ad fodder

TPM:

As the Senate gets closer to voting on a health care reconciliation bill, the Republican strategy to derail the Democrats' plans is getting creative--and dirty. Their strategy is clear: with Democrats determined to pass a clean bill, Republicans will force them to vote down politically juiced-up amendments, and likely turn them into political ads meant to characterize Dems as sympathetic to sex offenders and fraudsters.

The goal is simple. To expedite its passage, Democrats need to keep the changes to the reconciliation bill to a minimum, and so have committed to voting down all amendments, even ones that they like. And Republicans want to turn those votes into negative campaign ads ahead of this November's election.

Once the votes are cast, the ads all but write themselves.

"Senator X voted to preserve sex offenders' right to Viagra."

And so on.

Let the games begin.

Politico: Dems reject amendment to ban Viagra for sex offenders.

- Garry J. Wise, Toronto

UPDATE: New York Times reports that due to parliamentary concerns regarding peripheral issues in the bill, the reconciliation bill will have to go back to the House for yet another vote, after all.

“The parliamentarian struck two minor provisions tonight from the Health Care and Education Reconciliation Act,” the spokeswoman, Kate Cyrul, said. “These changes do not impact the reforms to the student loan programs and the important investments in education. We are confident the House will quickly pass the bill with these minor changes.”

- GJW

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Pirate Matzah

Passover alert from the holy land.

- Garry J. Wise, Toronto

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Free Speech Wars - Here We Go Again

Frum - Canada's Free Speech Problem

Olson - Canada's Coulter Climate

Levant - Coulter Protesters Attack Free Speech

Nonetheless, Scott Tribe and some enquiring minds at CBC still want to know - Ann Coulter Ottawa 'cancellation' a mere publicity stunt? On a similar note, BCL lays out the case and thinks he smells a rat: Coulter - The Aftermath.

- Garry J. Wise, Toronto

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U.S. 'Democracy Restoration Act' Seeks to Reinstate Voting Rights of Felons on Release

Via Talk Left:

The Democracy Restoration Act would restore federal voting rights to felons who have served their sentences. The bill was introduced last summer by Sen. Russ Feingold and Rep. John Conyers. The Judiciary Committee, Constitution, Civil Rights, and Civil Liberties Subcommittee held a hearing on the bill last week.

According to the Brennan Center for Justice, an estimated 5.3 million American citizens cannot vote because of a criminal conviction. Of these, 4 million are out of prison and living and working in the community. Restoring a person’s right to vote is a critical element to successful reentry into society after incarceration and consistent with our democracy’s modern ideal of universal suffrage. 4 million Americans cannot vote because they suffered a felony conviction.

Canada has no equivalent restriction on voting.

In fact, as noted at Elections Canada online, the right to vote in Canada extends even to all incarcerated persons:

1.15 Right to Vote of Inmates Serving Sentences of Two Years or More

Sections 246 and 247 of theCanada Elections Act, which set out the process for voting in provincial correctional institutions, should be amended to provide a similar process for voting in federal institutions. This would ensure the existence of a process through which prisoners serving a sentence of two years or more might exercise their right to vote, pending a legislative response to the striking down of paragraph 4(c) by the Supreme Court of Canada in 2002.

Sections 246 and 247 of the Act set out the process whereby persons incarcerated in provincial correctional institutions can exercise their right to vote, by means of a special ballot. The Act provides no similar process for persons incarcerated in a federal penitentiary, because the current wording of those provisions reflects the prohibition in paragraph 4(c) of the Act that directs that every person who is imprisoned in a correctional institution and serving a sentence of two years or more is ineligible to vote. Prisoners serving sentences of two years or more are generally incarcerated in federal institutions.¹⁶ However, paragraph 4(c) was struck down by the Supreme Court of Canada in 2002 in its decision inSauvé v. Canada (Chief Electoral Officer).¹⁷ As a result, all persons who are otherwise eligible to vote in a federal election are entitled to vote, regardless of the length of their sentence of incarceration.

In every by-election and general election since the decision of the Supreme Court of Canada in Sauvé, the Chief Electoral Officer has used his authority under section 17 of the Act to adapt sections 246 and 247 to provide a process for voting by individuals incarcerated in federal penitentiaries.

- Garry J. Wise, Toronto

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Fired on Facebook

Fired via Facebook - a U.K. first?:

"hiya Chelsea its Elaine from work. I had to tell the owner bout u losin that tenner coz obviously the till was down. she wasn't pleased and said I have to let u go. I'm really sorry. If u call in in the week with your uniform i'll sort your wages out. Elaine xx."

- Garry J. Wise, Toronto

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Link Love

Thanks to Canadian Cynic and Toronto Marketing Blog for their links today to Wise Law Blog.

And welcome to readers from those sites.

- Garry J. Wise, Toronto

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Opening and Closing Statements in Ontario Civil Jury Trials

The Ontario Court of Appeal has concisely restated many of the key "rules of the road" on lawyers' civil jury addresses in a new decision, Fiddler v. Chiavetti, 2010 ONCA 210, released March 19, 2010.

Also of note, the decision establishes that the current cap on damages awards under Ontario's Family Law Act for loss of care, companionship and guidance is $125,000.00.

- Garry J. Wise, Toronto

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David Frum on the Republican Health Care Defeat

David Frum's verdict is in. This pretty much sums it up:

We followed the most radical voices in the party and the movement, and they led us to abject and irreversible defeat.

The commentary is, of course, entirely correct.

Having said that, wouldn't it have been easier to swallow this stirring indictment of conservative hyperbole if it had come from someone who hadn't played so vital a role in coining the neocon catchphrase, "axis of evil" that was at root of so much of the tumultuous, global reverberation America faced by the end of the last Bush presidency?

It wasn't so long ago that Mr. Frum's own talking points were being eagerly fed to, lapped up and ramped up by the very voices he now castigates and blames for everything.

Mr. Frum, former Bush speechwriter, states, "I’ve been on a soapbox for months now about the harm that our overheated talk is doing to us."

He might want to face that soapbox toward a conveniently located mirror. He is not without personal responsibility here for the tenor of America's current political dialogue.

Read the entire David Frum commentary: Waterloo.

- Garry J. Wise, Toronto

UPDATE: Also see Mr. Frum on video:

- GJW

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Spammiest. Professional Announcement. Ever.

I have no idea whether the law firm involved had anything to do with the creation of this "press release" (and I suspect it did not - I'd like to believe that nobody who writes so poorly could ever have made it through three years of law school), but someone, somewhere sure does like using the keyword phrases "Ottawa Family Law lawyers" and "Ottawa Wills and Estates lawyers."

The phrases makes numerous redundant appearances in a professional announcement, published online, that announces the addition of two "Ottawa Family Law lawyers" and "Ottawa Wills and Estates Lawyers" to a "premier Ottawa law firm," thereby purportedly adding to the "depth of the firm."

This exciting career news of these two "Ottawa Family Law lawyers" and "Ottawa Wills and Estates lawyers" was published on March 19, 2010, according to the notice's text.

Which is quite interesting, given that one of the lawyers welcomed by the announcement has apparently been with this firm since 2004, according to the very same news release.

Huh?

(Better late than never for professional announcements, I guess?)

The phrases "one of the top estates lawyers," "one of the top family lawyers," and "one of the best family lawyers" also make regular cameos in the online announcement.

This appears potentially problematic, in view of the commentary to Rule 3.01 (2) of the Ontario Rules of Professional Conduct, which precludes "suggesting qualitative superiority to other lawyers" in professional marketing materials.

But as far as keyword spam goes, this is apparently the natural order of things.

Does anyone know - are these sorts of monstrous affronts to the English language created solely through automated means, or are humans actually involved?

- Garry J. Wise, Toronto

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U.S. Democrats Release Final Health Care Bill

U.S. Democrats have released their final health care bill.

A vote in the House of Representatives on the landmark legislation is expected Sunday.

Among the bill's highlights:

• 32 million currently-uninsured Americans will gain health care coverage by 2014;
• No public option or government insurance plan is included in the legislation;
• Most Americans will be legally required to buy health care coverage;
• Denials of coverage for children with pre-existing conditions will be immediately prohibited;
• Denial of coverages for all adults with pre-existing illnesses will be banned, effective 2014;
• The bill does not include the restrictive abortion language demanded by Representative Bart Stupak.

The new legislation is summarized here by AP: Democrats release final health care overhaul bill

- Garry J. Wise, Toronto

Update - Obama Says Bill Will Pass

US President Barack Obama led Democrats in a triumphant, fist-pumping rally Saturday and confidently predicted Congress would rise to a century-old challenge and pass his health care overhaul.

"It is in your hands, it is time to pass health care reform for America, and I am confident that you are going to do it tomorrow," told his allies on the eve of a cliffhanger House of Representatives vote. "Let's get this done."

...Using a blend of expanded government health programs and subsidies for millions to buy private insurance, the bill would add some 32 million Americans to the ranks of those covered for a total of 95 percent of Americans a century after Theodore Roosevelt called for a national approach to US health care.

- GJW

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Stewart on Beck

Comedian Jon Stewart riffs for fifteen minutes on Glenn Beck, and leaves me thinking, yet again, that he might well be the most astute, incisive - and influential - progressive thinker in America.

See: Tonight, the Role of Glenn Beck will be Played By...... John Stewart.

- Garry J. Wise, Toronto

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Court of Appeal Upholds Ontario "Stunt Driving" Law

We reported last November on decisons by Welland and Belleville courts holding the Province's stunt driving laws unconstitutional. In those rulings, Provincial Court Judges aquitted two Ontario drivers of "stunt driving, or driving in excess of 5o kilometres over a posted speed limit:

In view of the very significant penalties applicable under the section, Mr. Justice West ruled the provision unconstitutional:

[33] It is my opinion that the subject matter of the legislation in issue is undoubtedly speeding, which the Court of Appeal has defined as an absolute liability offence. I am bound by that characterization. Further, it is my view that calling the conduct “stunt” driving does not change its characterization – it is still a speeding offence albeit by a different name. There is nothing about the manner of driving 50 or more kilometres above the speed limit in section 3(7) of the Regulations that elevates or differentiates the conduct from the conduct set out in section 128 (a speeding offence).

[47] However, in my view, the combination of section 172 of the HTA and section 3(7) of O. Reg. 455/07 is only open to one interpretation and having regard to my assessment that the conduct described by section 3(7) is an absolute liability offence, the possibility of the imposition of up to six months imprisonment thereby renders this section unconstitutional.

[53] Consequently, section 3(7) of O. Reg. 455/07 is unconstitutional and is of no force and effect. Applying the doctrine of severance, only that subsection need be severed from the Regulations. The charge against Ms. Drutz is therefore dismissed.

According to a National Post report, the Court of Appeal for Ontario has overruled this decisions. Holding that the legislation is constitutional, the appellate court has upheld the Province's gross speeding or stunt driving law, and ordered retrial on the charges against one of the acquitted drivers:

...The Court of Appeal decision overturned a lower court ruling that said the stunt driving law was unconstitutional, because one could be convicted simply for speeding more than 50 kilometres over the limit. There was no requirement to prove the driving was part of a race or stunt.

The courts have previously interpreted speeding as an "absolute liability" offence, which means someone charged is not allowed to present a defence. The Supreme Court of Canada has ruled an offence cannot include potential jail time as a punishment when there is no right to a defence.

In its decision, the Ontario Court of Appeal stated that aggravated speeding or stunt driving charges must be treated differently from regular speeding.

A defendant charged with stunt driving will be permitted to present a "due diligence" defence to show that reasonable steps were taken to speed by less than 50 kilometres per hour.

"I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence," wrote Justice David Doherty, with Justices Robert Blair and Kathryn Feldman concurring.

- Garry J. Wise, Toronto

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Section 13

Our friend BCL provides an update on the (lack of) movement to amend the hate speech provisions of Canada's federal and provincial human rights codes.

See: Section 13 Repeal On Back Burner

- Garry J. Wise, Toronto

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The Legal Profession and Stress - A Therapist's View

You're in Trouble, a provocative article by Manhattan therapist (and former lawyer) Will Meyerhofer, examines the underlying causes of anxiety in the legal profession, and reaches a cloudy conclusion:

The cloud hangs over you in the office and follows you home. When you were a kid, it eventually dissipated, but now it lingers indefinitely. What’s really going on?

A little dose of anxiety is being injected into you, in the form of a thought.

Anxiety is triggered by cognition – predictive thoughts. You predict something bad is going to happen, so you clutch up in preparation – tense up and prepare for attack.

At a law firm, the standard predictive cognition – the expectation – is that you are going to be criticized. They do that a lot at law firms. It is a fair guess that if something goes wrong, you are going to be blamed – and things go wrong all the time.

It got to the point for me, at Sullivan & Cromwell, that I felt my entire body clench in preparation for attack just walking through the doors of 125 Broad Street and stepping into that elevator.

When you spend long periods of time tensed up, on alert for attack, it takes a toll on your nervous system. In fact, it can produce lasting damage.

For Mr. Meyerhofer, the difficulties observed among his lawyer-clients have much in common with symptoms more typically seen in cases of post-traumatic stress disorder:

I’ve worked with lawyers who are literally jumpy from the sense of having enemies – hyper-critical, angry attacking partners – spring out at them whenever they let down their guard.

I’ve seen lawyers who have numbed themselves until they barely admit to feeling emotions, even in a therapist’s office.

And yes, lawyers have nightmares about their firms. One former attorney had a recurrent dream in which he realized he was back in his old office. He knew the dream so well he’d start thinking his way out of it right from the start, telling himself it wasn’t like it used to be – that he’d left the firm, they didn’t own him, they couldn’t hurt him anymore, he could get his coat and leave.

Some law firm environments are so punishing and toxic that they produce trauma and trigger PTSD symptoms. At least, that’s what I’ve witnessed over the years from lawyers I’ve seen as clients.

My best advice for anyone working under these conditions is to get some support – and to leave this environment as soon as possible.

This is an important, and too rarely-heard discussion.

The demands of professional practice - and these certainly extend well beyond the critical partners and supervisors Mr. Meyerhofer references - can indeed take a toll on members of the profession. In some circumstances, that toll can become acute.

It is well worth noting that resources and assistance are available for Ontario lawyers experiencing personal and emotional challenges:

The Ontario Lawyers’ Assistance Program (OLAP) is a CONFIDENTIAL provincial program for judges, lawyers, law students and their immediate family members. The services that OLAP provide include professional counseling, peer support, assessment, resource information and referrals to specialized programs and centres. OLAP reflects the commitment and acknowledges the responsibility of the legal profession to assist its members who experience personal or professional distress.

According to its website, OLAP "is funded by LawPRO (Lawyers' Professional Indemnity Company), the Law Society of Upper Canada, and supported by the Ontario Bar Association and by Ontario lawyers. OLAP is a registered charity and operates confidentially and reports to an independent Board of Directors."

Also see ABA Journal: Law Practice Can Trigger Stress Disorder, says Attorney Who Now Works as Therapist

- Garry J. Wise, Toronto

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Ontario To Announce New Taser Guidelies March 30

Canadian Press reports that the Ontario's government is about to announce new guidelines on the use of Taser stun guns by the Province's police forces:

TORONTO — Ontario is poised to revamp its guidelines on the use of stun guns by police, The Canadian Press has learned.

The changes are expected to be made public March 30, sources say, about two years after the governing Liberals launched a review of Taser use in the province.

According to the report, radical change is unlikely. Recommendations that all front line, uniformed police officers be permitted to carry the weapon are not expected to be implemented:

Currently, only tactical officers and supervisors are allowed to carry Tasers in Ontario, but the government is being urged to make them available to all front-line police officers.

It's among the recommendations made by the police standards advisory committee, a group of representatives from police groups and municipalities within the ministry tasked with providing advice to the government about the use of stun guns.

...Government officials wouldn't comment on whether they plan to follow that advice, but hinted that drastic changes are not in the works.

"We have and will continue -- notwithstanding the report -- to have a very measured use of Tasers in the province of Ontario," said Laura Blondeau, a spokeswoman for Community Safety and Corrections Minister Rick Bartolucci.

Progressive Conservative critic Garfield Dunlop said he's planning to re-introduce a resolution in the legislature demanding that all front-line officers carry Tasers.

- Garry J. Wise, Toronto

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Jon Stewart On Politics and Pro Wrestling (and Lawyering Too?)

The Daily Show's Jon Stewart enlists pro wrestler Mick Foley to demonstrate the talent and art of arguing both sides of the same issue with equal vigour and zeal.

While the Stewart satire pointedly targets U.S. congressional politicians, perhaps litigation lawyers might also recognize something vaguely familiar in the point being made.

(No we won't, it has nothing to do with practising law).

........

More on this theme today from Norman J. Orenstein's Hypocrisy: A Parliamentary Procedure:

Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can’t recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi. In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of “deem and pass.” That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration. I don’t like self-executing rules by either party—I prefer the “regular order”—so I am not going to say this is a great idea by the Democrats. But even so—is there no shame anymore?

- Garry J. Wise, Toronto

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Report: Smileys, Frowns Taint Florida Traffic Tickets

According to an investigation by reporter Carmel Cafiero of Fort Lauderdale's WSVN-TV, some Florida police officers scrawl "smileys" and "frowns" on traffic tickets to note their observations on accused drivers' attitudes.

These "doodles" are not disclosed to drivers. They are, however, provided directly to the traffic court magistrates:

- Garry J. Wise, Toronto

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