Blog Ipsa Loquitur

Exams are over. They actually finished on December 19th, but one consequence of the intensive preparation and examination period is an aversion to anything even remotely intellectual for a week or two afterward. But now, as my brain cells have emerged from their self-imposed hiatus, I thought it fitting to discuss what drove them into exile.

I’ve always been good with dates and bits of trivia. As a small child, that meant I won my school’s spelling bee yearly. As a slightly older child, that meant I was always picked first for in-class Jeopardy! games. And when I got to high school, that meant I was the annoying guy who pointed out the teacher misstated the date of the fall of the Roman Empire. (I swear I have people skills now.)

As such, when I was first considering applying to law school, I explained to my friends that being a lawyer was all about knowing the obscure bits of laws and even more obscure cases that ruled on those laws. I wasn’t completely wrong, but being a good lawyer involves a lot more than just being good at trivia.

As it turns out, I was closer to describing law school itself than actual lawyerdom. (Note to self: register for use when you pass the bar exam, and have to abandon The fact is that you have to know a lot of stuff to really succeed in law school. There’s no way around it.

But a law school exam doesn’t just pose questions about which judge wrote which opinion in which case in which year in which jurisdiction wearing which powdered wig. Law school exams typically revolve around the dreaded fact pattern: a long and often silly story about people named Peter Plaintiff and Wendy Witness.

Sidebar: For examples of how silly some fact patterns can be, do check out some law school practice exams. You can search for them on your own on Google, but Law Nerds has a few that are kind of silly. Alternately, if you’re a University of Kentucky law student, your school has made available to the entire internet you some practice exams. (Do note that if you’re violating the terms of use of those exams, you may be a federal criminal!)

At the end of the fact pattern, your professor may ask you a series of questions about specific issues she wants you to address. For instance, on a Civil Procedure exam, the professor may pose questions about where Peter Plaintiff can sue, and what laws should be in effect if he does, and so on.

Most of my professors don’t do this, which means that before you even get to start writing down all those laws that you spent so much time memorizing, you have to do the leg work yourself. The most important skill for a law student taking a test (if not for lawyers in general) is the ability to spot issues that arise from the facts. You get points for recognizing the issues, and it follows that without recognizing the issue, you won’t be able to write your brilliant discussion of the law, so you lose out on even more points, too.

After your magnificent issue spotting has netted you a few points, you get more points for knowing the law that pertains to this issue. As laws aren’t ever really crystal clear, simply stating the law isn’t enough. You get more points for correctly applying the facts to the law: knowing which parts of the law depend on which facts (and which cases help you rule either way) is where you pick up all kinds of points.

So for the trivia nut (that means you, 23 year old me) who thinks that law school is simply a high-stakes game of Trivial Pursuit, you’d do well to practice applying facts to the law and knowing what issues look like. I outperform people who spend all day learning the laws because I’m obsessive about knowing how the laws work. Similarly, I’m outperformed on exams by people who have dissected the laws and are intimately familiar with their history and principles; all these things make for a more pleasant law school exam week.

You know, like how woolen socks make for a more comfortable root canal.

Published on under A Day in the Life

Repent, all ye slackers: Exampocalypse is nigh!

Those three months of classes were really just the first half of the semester. The second half is finals week, which starts on the 10th. As such, I’m disappearing for a couple of weeks.

See you on the other side, internet.

Published on under A Day in the Life

Courtesy of Harry Lewis, author of the very insightful book Blown to Bits:

Ethical or not, it looks like using [fake names to protect your privacy online] could set you up for doing some hard time in a federal penitentiary. Lori Drew was convicted of violating the Computer Fraud and Abuse Act because the jury deemed that by creating a fake identity as a boy, she had gained “unauthorized access” to the servers of MySpace, whose Terms of Service state that registration information must be truthful. By that logic, anyone using Bug Me Not is setting themselves up for indictment on the same charge.

The rest of the post, including some context if you’ve never heard of the wonderful web service Bug Me Not, is available at Mr. Lewis’s website here. And if you’re a little shaky on the technological side of some of these issues, I recommend Blown to Bits to help you understand the issues of the day.

Published on under Legal Theory

We’ve all heard of the Megan Meier story, yes? A thirteen year old girl killed herself because she was tormented by a fictional sixteen year old boy. The boy was actually the online alter ego of a pair of adults, one of which has just been convicted of a federal crime.

As it happens, my very first post on Almost Legally was about the silliness of the term “cyber bullying,” and yet, here we sit five months later; cyber bullying is apparently not only real, but a federal crime.


To quote myself:

In all honesty, given the name of the act (the Megan Meier Cyberbullying Prevention Act), bullying over the internet is probably perceived as more reprehensible because adults can get in on the act. While adults generally can’t go to a schoolyard and insult the kids, the former and the latter can mingle freely on various websites.

In Megan’s case, it was on - though this is arguably no different from allowing your child to freely interact with complete strangers who may or may not be adults. The internet is full of weird people.

As it turns out, there is no current law prohibiting cyber bullying. It’s a lot like regular bullying. You don’t arrest children on playgrounds, but you probably could arrest adults bullying on playgrounds. But if there is no law regarding cyber bullying, what was Lori Drew convicted of?

The specific crime Lori Drew the Cyber Bully was convicted of is an anti-hacking statute called the Computer Fraud and Abuse Act. (If you’d like to read a reasonably current version of the law, Cornell has kindly provided one here. It’s long, and we won’t be going over the whole thing.)

For our very oversimplified purposes, the statute prohibits unauthorized access of a computer system. In this case, Myspace’s servers are the computer system. The problem is that “unauthorized” can be kind of vague. We know what is really really really unauthorized, and what is really really really authorized, but the middle ground can be tricky.

I have an account with Gmail, and I check my email: that’s authorized. You hacked my Gibson and now my printer won’t stop spitting out LOLcats: that’s unauthorized. It’s the middle grounds that require some thought.

There are three basic tests we talked about in my Internet Law class, which have been adopted by various federal courts at various times.

No Account: the simplest kind of unauthorized access is when you don’t have an account to a computer. For instance, if I hack into Governor Palin’s email inbox, I clearly don’t have authorization from the Governor to do so. Essentially, accessing a computer system for which you don’t have an account is unauthorized.

Unintended Function: the first internet worm was created by a very bright graduate student using a bug in a program called “sendmail.” He used that bug to spread the virus from a school computer he undisputedly had access to: he had an account with his name on it. A federal court ruled that he used sendmail in an unintended manner (spreading self-replicating code), and that was unauthorized access in and of itself.

Terms of Service: as the owner of a computer system, I can authorize people to use my computer on my terms, right? I can tell my friends “yes, you may use my computer to check your email, but don’t read the sonnets I’ve written to Scarlett Johannson.” If I find one of them snickering at my sonnets, they’ve used my computer in a manner that I didn’t authorize. In fact, I expressly forbade it. So that use of my computer system is unauthorized.

Down to business, then.

The first test, “no account,” seems kind of nice. If I have an account, I am authorized to access a computer system. If not, I’m not. But I have an account with Yahoo and I’m still pretty sure I’m not authorized to read Governor Palin’s email. And what if I just guessed her password? It’s still not my account, but I’m using it anyway. We probably want to assume that an account is given by the server operator to one person, and that is as much access as that person has. It’s a relatively tidy solution.

The second test, “intended function,” is pretty common sense, too. A program for sending mail wasn’t intended to spread a worm across the internet in a way that would destroy the internet. But how do you figure out what a program is intended to do? Was “sendmail” only meant to send one email a day? Ten? Ten thousand? Is a spammer a federal criminal because “sendmail” wasn’t intended for spamming, just normal sending? The answer is probably not. It was meant to send mail. If you don’t use “sendmail” to send worms, you’re probably fine.

This brings us to the “Terms of Service,” which is the title of the post, and the reason why Lori Drew was convicted of a federal crime.

She clearly had a Myspace account: it’s the only way to send messages to Myspace users. She was using it for its intended function: she was sending messages to other users. But she was given the account on certain conditions, and she violated those conditions. That was unauthorized access of a computer system, and that made Lori Drew a federal criminal.

I have a Facebook page. I have absolutely no idea what I agreed to when I signed up, because I didn’t read the terms of service. (Which is okay, I suppose, because one of the terms of service is that they can change the terms of service any time they like.) I’m pretty sure my use of their computer system is authorized when I log in to check my messages. But if I do violate the terms of service, am I a wanted man? A federal fugitive? Should I grow a beard and jump out of dams?

At my office, the company I work for says “don’t send personal email from your work computer.” But if I do, is that a federal crime?

Lori Drew didn’t think so, either. What she did was terrible, but the solution is not to make federal crimes out of violating the Myspace terms of service. This a dangerous precedent that I sincerely hope will be appealed.

Published on under The News

The news story “rapist who acted as his own lawyer gets maximum sentence” may do a lot of things for an average reader. It can highlight the importance of effective legal representation. It can also highlight the importance of not raping people. For me, it’s an opportunity for jokes.

Because you know what they say…

“He who represents himself has a rapist for a lawyer!” No, hang on. ”He who rapes his lawyer has to represent himself.” Wait, wait, I’ve got it. ”He who has no lawyer has raped himself.” No, the second one was better.

Yes, that was inappropriate. But he has 156 years to write me a letter about how out of line I was.

Published on under The News

The record companies have made headlines for threatening extremely high-stakes and time-consuming litigation against people who have illegally downloaded songs on the internet. The maximum statutory penalty is $150,000 per song you downloaded. At that rate, the record company’s offer to settle the whole kerfuffle at $4,000 seems positively like a bargain.

This strategy relies on the threat of a horrible outcome (downloading a single 12 song album leaves you open to as much as $1.8 million in liability) to prevent these pirates of the internet from attempting to defend their dastardly digital deeds in court. Do note that the record companies, despite the fact that roughly 800% of all albums in America are downloaded illegally, still have enough collective resources to make defending such a lawsuit extremely expensive.

But what if the tables were turned, and the record companies were staring down the business end of a high-stakes and painfully drawn-out lawsuit?

That is the litigation strategy that the New York Times refers to as Legal Jujitsu. (N.B. if you outlaw jujitsu, only outlaws will know jujitsu.) Instead of defending against a claim of copyright infringement, the strategy articulated by Harvard’s Professor Charles Nesson attacks the copyright holder’s enforcement of criminal statutes.

Professor Nesson spends a large part of his post pointing out that Joel [the college student who has been sued by the RIAA for copyright infringement] has less lobbying power in Congress than the record companies do. He argues to the court, on behalf of Joel, that Congress lacks the ability to place enforcement power for criminal statutes in private hands, and I would tend to agree:

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist.

Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines.

Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

Just as a Congressional act giving private companies the power to write speeding tickets (and keep the money from the fines) should strike you as inappropriate, Nesson is hoping that the law giving record companies the power to enforce an essentially criminal statute strikes judges the same way.

Is this the sort of thing that scares record companies into settling faster than the college students they sue? As my Contracts professor used to say, “I don’t have the foggiest idea. But put enough money on the table in front of me, and I’ll argue either way.”

Published on under The News