Recent Articles in Civil Rights & Privacy Law from LexMonitor

charonqc

Tue, 16 Mar 2010 10:51:12 GMT

Shortfalls in CPS leads to hundreds of defendants avoiding trial The Times reports: ” Failings in the Crown Prosecution Service (CPS) in London have allowed hundreds of defendants to go free without facing trial, inspectors have found. A hard-hitting report published today says that defendants are more likely to escape trial because of [...]

Shortfalls in CPS leads to hundreds of defendants avoiding trial

The Times reports: ” Failings in the Crown Prosecution Service (CPS) in London have allowed hundreds of defendants to go free without facing trial, inspectors have found. A hard-hitting report published today says that defendants are more likely to escape trial because of prosecution blunders than they are to be cleared by a jury.It found that prosecutors have been bombarded with management initiatives that forced them to neglect their core duty of bringing criminals to court. Case preparation was weak with a “lack of intellectual rigour” and poorly-instructed advocates having to prepare cases on the morning of trial. As a result, more cases are dropped before trial than anywhere else in the rest of England and Wales — a total of 15.4 per cent compared with 11.6 per cent elsewhere. Some of these are abandoned unavoidably, such as witnesses changing their minds or new evidence coming to light, but others are down to prosecution failings.

Keir Starmer, the Director of Public Prosecutions, said he was confident that the performance could be turned around. “I am fully aware that CPS London needs to perform much better than it does now and making that happen is a process which I will be closely involved with,” he added.”

Inevitably, with cuts, we are going to see a deterioration in all public services and the criminal justice system – policing through to prosecution – is going to shoulder some of that burden, no matter how ‘tough’ the politicians talk in terms of ‘Law and Order’. Is this, partly a problem caused by the CPS taking work in-house and not relying so heavily on the independent Bar? When I interviewed Keir Starmer QC back in the autumn of last year for a podcast, he told me, inter alia, that he disagreed with the views of the independent bar that the CPS was too reliant on in-house prosecutors. Chickens and coming home to roost… part of the issue here? As always, I am interested in the views of those who practise at the sharp end.

‘Misleading’ rape conviction statistic will not be dropped, says solicitor general

“Britain’s low conviction rate for rape should continue to be highlighted according to the solicitor general despite the recommendations made in a report by Baroness Stern today.The landmark Stern review into the handling of rape complaints found that the common claim that only 6 per cent of rapes lead to a conviction was misleading and it should be emphasised that almost 60 per cent of those charged with rape are convicted.Baroness Stern said women might be put off by the low conviction rate and, in an attempt to encourage more women to report rapes, she suggested setting up specialist sexual violence centre within every police force area.

But Vera Baird, the solicitor general, said: “I do have reservations about ceasing to refer to the widely used 6 per cent figure, which reflects the percentage of reports that produce a conviction. “Although we don’t count any other offence in this way, it is particularly meaningful as it reflects the high number of rape victims who drop out before they get to court, and we really need to focus on that group, as Baroness Stern herself says.”

The Times

Police could face legal action over ‘unfair’ searches

It would seem that the Police have still not quite got the hang of policing with consent or a grip on the extent of their powers or the skill of using those powers effectively and sensitively. The Independent reports: ” Police forces were threatened with legal action today as the Government’s equality watchdog said black and Asian Britons were still being unfairly targeted for stop and searches. Most constabularies in England and Wales are continuing to use the powers “disproportionately” against ethnic minorities, a review by the Equality and Human Rights Commission concluded.”

Are we in danger of running military campaigns through populist sentiment whipped up by the tabloids?

The Times reports: Giving soldiers human rights in war zones ‘will hamper battlefield commanders’

A mother’s battle to ensure that soldiers in war zones have their human rights protected will be challenged by the Government today as it argues that commanders will fear being sued for decisions made in the heat of battle. The Supreme Court will hear Ministry of Defence submissions over a landmark ruling that soldiers must be protected by the Human Rights Act when fighting outside their bases in countries such as Afghanistan and Iraq. Last May the Court of Appeal ruled in her favour, sparking concern among some commanders. Major-General Patrick Cordingley, who commanded 7th Armoured Brigade in the Gulf War and retired from the Army in 2000, said: “Life is hugely complex in battle situations and commanders cannot be expected to have to worry about every aspect of the Human Rights Act once they’re engaged in operations.”

The Ministry of Defence is worried that guaranteeing soldiers the rights and freedoms enshrined in the Human Rights Act when in an inherently dangerous situation would put an unreasonable burden on the Government and would affect the ability of commanders to make decisions that expose their troops to risk.

“British commanders engaged in battle with the Taleban in Afghanistan need to know that the decisions they take in hostile environments will not be challenged at a later date in the courts,” a spokesman for the MoD said.

Human Rights laws are fundamental to our society – although not all are convinced by a need for the Human Rights Act in its present form. There are dangers, however, in applying them in a way which raises the phenomenon of ‘unintended consequences’. We have already seen how health and safety laws have hampered police in the execution of their duties – both for police officers and PCSOs – are we to go down the same route and hamstring commanders and soldiers in the field as well? The problem, inevitably, is that there is a lawyer out there to put a case for every police officer, soldier or other public servant injured or killed in the line of duty – rightly, but are lawyers bringing cases too frequently which have no prospect of success and raising expectation in the mind of the victims and their families? How far should the Human Rights Act and considerations of health and safety be applied to police and forces personnel – men and women who, after all, are not conscripted but volunteer, knowing the dangers and risks?

The base proposition must be, surely, to ensure that our police and troops are properly equipped and trained to do the dangerous tasks we ask of them – but leave commanders and people in the heat of battle or criminal investigation to use their training to best advantage without being worried that their reasoned and legal actions will result in legal liability later?

Cash rap for lawyer – The Sun

“a TOP-earning barrister was slammed yesterday for trying to increase his publicly funded fees. Jeremey Rosenblatt had “brought discredit on the bar” in a payment claim which was “neither justified nor decent” a tribunal ruled. He was listed as the country’s highest-earning civil lawyer in legal aid in 2008, with an income of £500,000-plus. London based Rosenblatt was found guilty of two cases of ‘discreditable conduct’ and cleared of three. The Bar Standards Board banned him from taking on new legal aid clients for three months.”

I phoned the Bar Standards Board to check the Sun’s report – only to be referred to Webber Shandwick who handle the BSB’s press and PR.I got through to an answerphone which, at 10.30 am, was a bit puzzling. While the BSB published the hearing and charges there is, as yet, no report on the tribunal’s findings on the BSB website. This will, no doubt, go up soon. Curiously, and this may be pure coincidence… but after my phonecall to the BSB I tried to locate the BSB page with details of the hearing only to get a “404 Page not found”. Curious, indeed.

I always check acts when I see reports in newspapers about lawyers behaviour, in this case with the BSB. I spoke to Webber Shandwick (using the cunning ploy of dialling their ‘direct’ number on their website, and they provided me with a link to the story as reported in The Telegraph: Jeremy Rosenblatt: top-earning barrister guilty of inflating legal aid fee

The Telegraph report is interesting for it refers to ‘practices’ being encouraged by judges. The Telegraph noted: “The board said the barrister’s sense of personal responsibility was “anaesthetised by what he understood to be common practice”

Chambers and Partners, which publishes a directory of barristers and their chambers, describe Mr Rosenblatt as “a barrister with an uncompromising style” who “takes no prisoners” according to observers. Fluency of address and the will to win characterise this advocate, who “seems to have a tongue that runs on ball bearings”.

A tongue that runs on ball bearings? I’ve heard of ’silver tongued’ and ‘forked tongued’ but ball bearing tongued? What on earth does that purple prose mean? A bizarre business.

Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Tue, 16 Mar 2010 01:24:29 GMT

Today, the British Columbia Court of Appeal held that the police did not violate section 8 of the Charter by conducting aerial surveillance of a rural property from in excess of 1000 feet by using a digital camera equipped with a telephoto lens. The police obtained a search warrant based partly on the surveillance evidence. The [...]

Today, the British Columbia Court of Appeal held that the police did not violate section 8 of the Charter by conducting aerial surveillance of a rural property from in excess of 1000 feet by using a digital camera equipped with a telephoto lens.

The police obtained a search warrant based partly on the surveillance evidence. The pictures showed plants of a “distinctive green” colour through the opaque walls of a number of greenhouses. The grounds for the search warrant were also based on the location of the greenhouses on the rural property, which suggested they were meant to be obscured from public view, and a variety of observations taken from an adjacent property.

The Court held there was no search that engaged section 8 of the Charter. In doing so, it said:

The greenhouses were visible from the air and anyone in an airplane, helicopter, or other aerial device would have been able to see what the police observed and photographed. Anyone using binoculars would have seen what the police saw and the zoom lens employed by the police is readily available at retail stores. It is not advanced or unique technology and did not permit the police to determine what activities were taking place inside the greenhouses that were not otherwise observable given the translucent walls of the structures. Additionally, the police were able to see a marihuana plant through a greenhouse door left open. Obviously, the plant was thus in public view.

The Court also held that the police did not need to announce their presence on the property given it was a large rural property. It said, “To require the police to first alert persons working in or around the greenhouses was, as the trial judge accepted, impractical and an invitation to those present to flee, destroy evidence, or set up an ambush.”

R. v. Kwiatkowski, 2010 BCCA 124.

HITECH Act Rulemaking and Implementation Update

Mon, 15 Mar 2010 18:55:58 GMT

OCR posted the following announcement on its website suggesting that information regarding specific compliance and enforcement dates will be included in the rulemaking. The Department did not provide any information on when to expect a proposed privacy regulation.

*****

OCR will implement important privacy and security provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act through notice and comment rulemaking, as required by the Administrative Procedure Act. These provisions include: business associate liability; new limitations on the sale of protected health information, marketing, and fundraising communications; and stronger individual rights to access electronic medical records and restrict the disclosure of certain information. OCR continues work on a Notice of Proposed Rulemaking (NPRM) regarding these provisions. Although the effective date (February 17, 2010) for many of these HITECH Act provisions has passed, the NPRM and the final rule that follows will provide specific information regarding the expected date of compliance and enforcement of these new requirements.

However, interim final rules implementing HITECH Act provisions in two areas have already been issued and are currently in effect: enforcement and breach notification. New civil money penalty amounts apply to HIPAA Privacy and Security Rule violations occurring after February 17, 2009. Covered entities and business associates must comply now with breach notification obligations for breaches that are discovered on or after September 23, 2009. OCR announced previously that it would use its enforcement discretion not to impose fiscal sanctions with regard to breaches discovered before February 22, 2010. Since that date has passed, OCR will enforce the Breach Notification Interim Final Rule, including with the possible imposition of sanctions, as it does with the HIPAA Privacy and Security Rule requirements.

Life Unlocked? FTC and 35 State Attorneys General Ding LifeLock, Inc. for Deceptive Claims and Poor Data Security

Mon, 15 Mar 2010 15:50:04 GMT

On March 9, 2010, the Federal Trade Commission and 35 state attorneys general announced a negotiated settlement with LifeLock, Inc. and its co-founders, Richard Todd Davis and Robert J. Maynard. The settlement, which will require the identity theft protection services provider to pay $11 million to the FTC and an additional $1 million to the group of participating state attorneys general, resolves charges that LifeLock misrepresented the nature and effectiveness of the identity theft protection services it offers, and made false claims about its own data security practices. Specifically, the FTC alleged that LifeLock promised its customers complete protection against all types of identity theft, but the fraud alerts that LifeLock placed on its customers’ credit files protected only against certain forms of identity theft, which did not include medical identity theft, employment identity theft or the misuse of existing accounts – the most common form of identity theft. Moreover, the FTC alleged that even with respect to new account fraud, the type of identity theft for which fraud alerts are most effective, they do not provide absolute protection. LifeLock therefore deceived consumers by making statements like “LifeLock protects against [identity theft] ever happening to you. Guaranteed.”

In the words of FTC Chairman Jon Leibowitz, “While LifeLock promised consumers complete protection against all types of identity theft, in truth, the protection it actually provided left enough holes that you could drive a truck through it.”

The FTC further alleged that LifeLock misrepresented the company’s data security practices to its customers. Among other things, LifeLock claimed that “only authorized employees of LifeLock will have access to the data that you provide to us, and that access is granted only on a ‘need to know’ basis” and promised that “all stored personal data is electronically encrypted.” In reality, according to the FTC, data was not encrypted and was not shared only on a “need to know” basis. Consequently, sensitive personal information about LifeLock customers was susceptible to exploitation by those seeking access to customer information.

In addition to carrying a hefty penalty, LifeLock’s settlement with the FTC and state attorneys general prohibits the company and its co-founders from making deceptive claims, misrepresenting the “means, methods, procedures, effects, effectiveness, coverage, or scope of any identity theft protection service,” or misrepresenting the risk of identity theft or the manner and extent to which the company’s services protect against this risk. LifeLock also agreed to implement a comprehensive information security program to protect customer information, obtain independent audits of the program every other year for the next twenty years and comply with certain record-keeping obligations. The FTC will use the settlement funds to provide refunds to LifeLock customers.

Massachusetts High Court Extends Fair Report Privilege

Mon, 15 Mar 2010 15:34:51 GMT

In late January, the Supreme Judicial Court of Massachusetts affirmed that the fair report privilege applied to information attributed to an anonymous source. The 6-1 decision in Howell v. The Enterprise Publishing Company dismissing the plaintiff's complaint held that so long as the reporter accurately reported what the confidential source reported to him or her, the privilege applied.

As reported by the First Amendment Center, the case involved claims for defamation, intentional infliction of emotional distress and invasion of privacy brought by the former superintendent of the town sewer department who, the defendant reported, had been fired for having pornography on his work computer and for alleged conflicts of interest.

The paper wrote a series of more than 10 articles about the scandal, many of which quoted anonymous sources who reported what happened at various closed-door meetings concerning the superintendent (Howell). For example, the paper reported:

A town official close to the investigation who spoke on condition of anonymity said the allegations against Howell include improper use of town equipment for personal business. The source declined to specify the type of equipment that was used but alluded to a possible criminal investigation by Abington police.

In a later article, the paper reported:

"These were images you wouldn't want your children to see," the commission member said. Commission members would not say who came forward with the allegations against Howell. "The point is, it happened. The board, acting on behalf of the town, was forced into action and would have been negligent if it had not acted. The potential is still very real for a sexual harassment lawsuit," the commission member said. The source added that Howell "thinks he did nothing wrong."

In dismissing Howell's claims, the Court engaged in a lengthy analysis of the history and policy considerations underlying the privilege. The Court identified two key policies supporting broad recognition of the fair report privilege. The first, the Court said, "protects the press when it reports on official actions and statements that members of the public could have witnessed for themselves, that is, when it acts as the public's eyes and ears." The second key policy is that of "public supervision," meaning the role of the media in serving as "a check on the power of government by giving the public the opportunity to be informed citizens and voters."

In the case of a report of government action (i.e., "official action") whose source is anonymous, the Court said

Reports of official statements are covered by the privilege so long as the reports fairly and accurately describe the statements, even though the statements themselves may contain defamatory material, or inaccurately report on official actions in a defamatory way. But an anonymous statement is not an official one. The privilege to report official actions would mean very little, however, if to qualify for its protection, the media were limited to reporting such actions solely on the basis of on-the-record statements by high-ranking (authorized to speak) officials or published official documents. Consequently, the privilege extends to reports of official actions based on information provided by nonofficial third-party sources. It should be of no moment that a reporter's source is, in fact, a high official, a low official, or a mere witness who overheard the proceedings, so long as it is official action that is reported. If, however, the source is an unofficial or anonymous one, a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into unprivileged territory.

Thus, the Court established that so long as a news report of official action based on material from an anonymous source fairly and accurately reports what the source said, it will be privileged.

Given the increasing prevalence of off-the-record or "background" sources in news stories concerning issues of public concern, this decision may be an important landmark in protecting the media from otherwise baseless lawsuits.

Florida Agency Expands Subjective ID Methods

Mon, 15 Mar 2010 13:32:45 GMT

Last week, we saw an article in the Daytona Beach News Journal that exemplifies the problem with how the method of identifying owners of fingerprints is described to the public by law enforcement. For example: A new, $7.4 million computer system [...] Related posts:

Last week, we saw an article in the Daytona Beach News Journal that exemplifies the problem with how the method of identifying owners of fingerprints is described to the public by law enforcement. For example:

A new, $7.4 million computer system has the software capability of storing and examining palm prints and larger areas of the finger lifted from crime scenes. In addition, the new program — called the Biometric Identification System — for the first time is able to retain suspects’ mug shots, as well as images of a crook’s tattoos and other identifying marks, said Florida Department of Law Enforcement crime analyst Stacy Colton-Clark.

. . .

Crime analysts have a “hit” when the finger or palm print of an unidentified suspect matches with prints already stored in the computer system. Anytime an individual is arrested, his or her fingerprints — and now their palm prints — are taken by the arresting agency. Those prints are stored in the state’s Automated Fingerprint Identification System, commonly known as AFIS.

First, the reporter over simplifies the process by which fingerprints in the database are matched to suspects. A fingerprint is never a “match” per se. Rather, when an unknown print is entered into AFIS or this new system, it may produce a “hit” which means that the computer think there are enough consistencies between the unknown print and the hit. However, that isn’t the end of the story. Then a fingerprint analyst at the law enforcement agency will then have to do a side-by-side comparison and subjectively determine whether the prints are consistent enough with each other to verify the hit.

So there is a not a computer-driven scientific certainty involved here. In fact, this method is burdened by the same subjective (and often unreliable) methods as other forensic “matching” methods.

The article also judges the dividends of spending $7.4 million on this program by how many more hits are achieved but does not investigate whether those hits were accurate or the reliability of the method.

See this is the problem with fingerprints (and many other individualizing forensic assays)–they are based on a number of assumptions:

1) that every person has a unique fingerprint design (which has never been studied or proven);

2) that mere experience at performing subjective fingerprint comparisons guarantees reliability (it doesn’t–proficiency testing has demonstrated that when the same comparison was performed by multiple analysts, different results were achieved and that the error rate in some cases has been as high as 50%);

3) there is no bias involved (this obviously isn’t true–the comparisons are being performed by a law enforcement agency whose job it is to get a “match,” and by an analyst who knows that the known print they are comparing to just was spit out as a “hit” by a computer system. There is no way this is an unbiased process).

It can’t be that we judge the success of any forensic method on how many “hits” we get or whether the person is eventually convicted because that is a self-fulfilling prophesy.

I would submit that instead of spending many millions of dollars expanding the system in place, that money would be better spent, as the National Academy of Sciences Report suggests doing, on coming up with a new method of examining prints that diminishes human observer bias and increases reliability.

charonqc

Mon, 15 Mar 2010 13:22:58 GMT

Privacy's Trajectory

Sun, 14 Mar 2010 18:12:35 GMT

As many of our readers know, the International Association of Privacy Professionals (IAPP) will celebrate 10 years this Tuesday, March 16. In connection with that anniversary, the IAPP is releasing a whitepaper, "A Call For Agility: The Next-Generation Privacy Professional," tomorrow, March 15. Monday morning you can find the whitepaper here. I am honored that the IAPP has given me the opportunity to read and blog about the whitepaper in advance of its official release. Where exactly is privacy going in today's environment? What is the role of the privacy professional over the next 10 years? And, a lot of people I know and love (you know who you are) would ask, what in the world is a privacy professional anyway?

Of late, I have found myself reiterating, and getting a lot of positive feedback for, the following proposition: with data (massive amounts of it) as the new currency, the explosion in outsourcing to "trusted partners," and the growth of legal risks associated with an ever-expanding body of privacy and data security regulation, the role for professionals who understand privacy is becoming increasingly important. Further, such professionals are uniquely positioned to bring together various key stakeholders in an organization, including Information Security, Legal, IT, and various business units. Why? Because privacy professionals are, by virtue of what they do, multidisciplinary. And the growing opportunities for such professionals are inextricably intertwined with that quality. The IAPP has summed this up succinctly, and eloquently in its whitepaper, as follows:

The next 10 years will see more types of data collected from more people, and more privacy laws in more places. A deepening and broadening of data protection regulations in the industrialized world will spread to emerging markets and place a higher premium on legal and compliance acumen. In addition, an expansion of health information networks, smart grid networks and cloud computing platforms will make industry and technology expertise a more indispensable part of practicing privacy.

. . . the privacy professional’s success in the next decade will demand greater adaptability and most importantly, agility. The agile privacy professional is the next-generation privacy professional: an expert practitioner who is keenly attuned to cultural and regional distinctions as these continue to grow in an increasingly interconnected data economy; who can migrate and adapt to different roles within an organization and offer value at each; who exhibits both comfort and grasp of legal/compliance and technical disciplines; and who instills direction and leadership of privacy management within the organization.

The following analysis and discussion of the IAPP's whitepaper is completely my own. I think that the paper raises some incredibly important points about the need for privacy professionals to lead the way for more effective information governance. As an outside lawyer (with my own unique perspective), my key takeaway is the following -- privacy professionals must understand law AND technology, and must facilitate dialogue between those two disciplines and as between those disciplines, on the one hand, and the business side, on the other.

The importance of a "privacy professional" understanding both legal and technical disciplines cannot be overstated:

The central role of regulatory and IT drivers shaping the privacy profession almost ensures an ongoing need for privacy professionals to be conversant in not one, but both of these disciplines.

Regulation and "Reasonable Security"

I believe this is largely due to what the IAPP describes in the whitepaper as the "Second Wave of Regulation," which began in approximately 2003 with California's landmark data breach notification legislation, Civil Code section 1798.82 (for private entities), often called SB 1386. On the heels of that came 44 additional such state laws, DC, Puerto Rico, the Virgin Islands, and now some similar European legislation, as discussed in the whitepaper. And, with the light now shining on security risks and failures within private organizations, additional security standards and legislation began to emerge - most notably, as highlighted by the IAPP, the Payment Card Industry (PCI) Data Security Standard (DSS) and laws such as Nevada's (SB 227) that incorporate that Standard. For more on that, see Dave's posts here, here and here. Further, as noted in the whitepaper,

A number of factors have spurred North American (and particularly American) organizations to dedicate more resources to privacy process improvement: most notably, PCI DSS enforcement, FTC enforcement, and data breach notification.

Not discussed in the IAPP whitepaper in depth, but just as important, a number of states have crafted legislation designed to require "reasonable" security or safeguards to address security risks in a more proactive fashion, as opposed to the traditional reactive breach notification approach. Massachusetts, Massachusetts M.G.L. c. 93H and 201 CMR §§ 17.00-17.05, is of course the most recent, most detailed, and most well known, but many states require the same "reasonable security" (sometimes for all personal information, sometimes for just Social Security numbers), including, but not limited to, California (Civ. Code §§ 1798.81, 1798.81.5, and 1798.85), Arkansas (Code Ann. §4-110-104(b)), Colorado (Rev. Stat. Ann. §6-1-713), Connecticut (HB 5658), Maryland (Com. Law Code Ann. § 14-3503), Nevada, as mentioned above (Rev. Stat. § 603A.210 and SB 227), Oregon (Rev. Stat. § 646A.622), Rhode Island (Stat. § 11-49.2-2), Texas (Bus. & Com. Code Ann §§ 48.102(a) and 521.001, .052, .151) Utah (Code Ann. § 13-44-201), and Washington (Rev. Code Ann. §19.215.020 to .030). There are more, I could go on.

What in the world is "reasonable security"? A privacy professional who understands the law and traditional notions of negligence, various concepts of privacy (Fair Information Practice Principles, etc.) as embodied in different standards and legislation around the world (from EU to Australia), and the evolution of information security (as a technical matter) is ideally positioned to help assess what "reasonable security" means and determine what will be compliant, what will be legally defensible, what will be best practice, and what will be just good business. And such a privacy professional can facilitate discussions among stakeholders that speak somewhat different languages in this regard to reach solutions that are acceptable to all involved.

From Privacy to Information Governance

As a lawyer, I am also extraordinarily pleased to see, in the IAPP's whitepaper, a reference to the new ediscovery rules that came into play in the latter half of the 2000s, most notably the amendments to the Federal Rules of Civil Procedure in 2006. What does privacy have to do with ediscovery? Everything. As noted in the IAPP's whitepaper, the amended rules "increased the need for organizations to conduct data inventories and implement data-retention policies." How do you protect sensitive data (personally identifiable information, trade secrets, IP, etc.)? You figure out where it is first. And thus, as the IAPP points out, we start to see the "privacy" role evolve into an information governance role.

Speaking of information governance, let's return to technology. States the IAPP: cloud computing will set the pace for the next decade:

One of the clear directions of technology in the past 10 years as it pertains to personal data has been more—more types of data collected from more people in more ways, and shared with more entities. The emergence of cloud computing—essentially a new computing paradigm in which data is stored off-premises and by a range of third parties—sets the pace for the next decade. Short of a wholesale social movement to opt out of information technology and “go dark,” the conveniences and commercial benefits of more data collection and sharing seem to point in the direction of more. People will not 'go dark,' we estimate, because the utility of sharing information will continue to well exceed the risks of doing so.

Thus, the IAPP stresses the need for agility and identifies five strategies for action:

(1) Redefine the privacy role [information governance]; (2) Rotate through departments/business units; (3) Develop multi-cultural literacy; (4) Understand legal and technical disciplines; and, (5) Instill direction and leadership.

Bottom line? Proactive, multidisciplinary solutions to information governance that incorporate information technology savvy and that address compliance, legal defensibility, and best practices, are now and will become increasingly crucial to any organization that handles sensitive data. Privacy professionals are well positioned to lead those efforts. Congratulations to the IAPP on its 10th anniversary! I look forward to the next 10 years.

charonqc

Sun, 14 Mar 2010 08:41:53 GMT

Cher Reader, Je vous écris de ma Cabines (Staterooms) sur les questions relatives à la Entente Cordiale avec les Français … vendeurs de missiles Exocet à la ARGIES dans la guerre des Malouines, des perdants au Trafalgar et Waterloo, et now having a larf at our economy. The Independent reports: “David Cameron has become embroiled in an [...]

Cher Reader,

Je vous écris de ma Cabines (Staterooms) sur les questions relatives à la Entente Cordiale avec les Français … vendeurs de missiles Exocet à la ARGIES dans la guerre des Malouines, des perdants au Trafalgar et Waterloo, et now having a larf at our economy.

The Independent reports: “David Cameron has become embroiled in an embarrassing row with Nicolas Sarkozy after it emerged that the French have complained about a series of jibes at their leader’s lack of height. French officials have lodged a protest after the Tory leader appeared to make a comment about “hidden dwarfs” in relation to a photo of himself and the 5ft 5in President Sarkozy, according to a report in The Mail on Sunday.”

The remark, made in a newspaper interview six months ago, was followed by another slight, when the Shadow Chancellor, George Osborne publicly described a box placed at a speaker’s lectern as a “Sarkozy box”.

This, following ex UKIP leader Farage’s extraordinary outburst against EU President Van Rompuy… “”Who are you? I’d never heard of you, nobody in Europe had ever heard of you,” Farage proclaimed. He said van Rompuy had the “charisma of a damp rag” and compared him to a “low-grade bank clerk”. For good measure he also insulted the EU President’s homeland, saying Belgium was “pretty much a non-country”. is ensuring that Britain is placed right at the heart of European politics.

I suppose it is fortunate that this year’s World Cup is in South Africa not Europe – because we do have form when it comes to sending yobs to Europe to run riot and behave badly to our European neighbours.

Tom Harris MP describes it as an act of political malevolence…but which Tory shouted ‘Object’ and scuppered Andrew Gwynne’s anti-poverty Private Member’s Bill?

The Guardian reports: “Pressure is growing on David Cameron to identify the mystery Tory MP who deliberately scuppered a landmark anti-poverty bill that could have stopped “vulture” bankers profiteering from the developing world’s debt burdens. Debt campaigners have reacted in fury and disbelief to the killing of the bill and Labour MP Sally Keeble, one of the bill’s backers, has accused the Conservatives of “duplicity” by pretending to back the legislation and then sabotaging it at the last minute.”

Pretty shoddy…and the failure to own up or report the MP (Pre-pubescent public school concerns about ’sneaking’? – surely not!) doesn’t really bode that well for what journalists are still calling ‘joined up government’ in the future. Why do journalists still use that awful old cliche…joined up government…joined up education policy etc etc etc..?

As Tom Harris MP said..“Whoever did it is no friend of those charities working hard to improve the lot of the developing world and to stop bankers profiting from misery.”

Hey ho… or should that be “heigh-ho, heigh-ho its orf to work we go”… a new anthem from the Tories when they get stuck into CUTS, should they be elected on 6th May?

Anyway…. in the interests of political balance (!)… I am happy to report that Guido Fawkes is reporting..

+ + + Lord Paul Repays Fiddled £38,000 Expenses + + +

“Telegraph is reporting that Lord Paul has repaid the £38,000 in expenses he claimed for a flat he never slept in. He says it is not an admission of guilt. So why is he repaying it?”

Well…there we are… a fine Sunday morning.. le soleil is shining and all is well with the world.. now it is time for me to go and read the newspapers, drink some cafe at a cafe and smoke Les Gauloises…Bleu! Vive la France … Vive la différence

Au revoir

Best as always

Charon

Asset Search News Roundup: March 14, 2010

Sun, 14 Mar 2010 05:00:59 GMT

The March 14, 2010 "Asset Search News Roundup" first highlights ex-Detroit councilwoman Monica Conyers and then mentions Madoff Trustee Irving Picard:

*As The Wall Street Journal described at "House Judiciary Chairman’s Wife Sentenced to Prison" and "Lawmaker's Wife Sentenced to Jail", ex-councilwoman Monica Conyers was sentenced to 37 months of prison for her public corruption scheme. "Public Corruption Charges Against Two Politically Exposed Persons", was the last time I discussed Ms. Conyers.

*Yesterday's post "Mr. Cook Continues His Incarceration For Civil Contempt", recounted that Madoff Trustee Irving Picard had pursued forced collection proceedings in multiple jurisdictions. "U.S. judge backs Madoff trustee's claims method", recently reported on a separate issue involving Trustee Picard-- a controversy stemming from his valuation of investor's claims. Trustee Picard's efforts to recover assets through clawback claims in the Madoff case has also been debated by some.

Florida Bill Limiting Access to 911 Calls Moves Forward

Sun, 14 Mar 2010 01:42:02 GMT

A committee of the Florida legislature this week approved on a party-line vote a bill that would require a court order to access 911 call recordings. This development follows on the heels of efforts in several other states to curtail access to 911 calls under state sunshine laws, a trend on which we previously reported.

On Wednesday, the Government Affairs Policy Committee of the Florida House of Representatives approved by an 8-5 vote proposed committee bill 10-03a, with all Republicans on the committee voting for it and all Democrats voting against. The bill would exempt "Any recording of a request for emergency services or report of an emergency using an emergency communications E911 system" from the public disclosure requirements of Florida's public records laws, including Section 119.07(1) and Section 24(a) of Article I of the Florida State Constitution. A 911 recording could be released pursuant to a court order finding good cause for disclosure. Upon request, a person could obtain a transcript of a 911 call, after 60 days and with all personal identifying information redacted.

The Miami Herald has reported that the 911 bill is a top priority of the Speaker of the Florida House, Larry Cretul, who took the unusual step of stacking the Government Affairs Policy Committee meeting Wednesday with an extra Republican to ensure passage. A powerful ally of Speaker Cretul has urged Cretul to secure passage of such a law after he lost his son and subsequently heard a recording of the 911 call on a news broadcast.

The Florida bill therefore follows a pattern we noted in other states where similar bills are under consideration -- anecdotal evidence of the broadcast of wrenching 911 calls is cited in support of sweeping measures that would eliminate access to 911 recordings in most cases. These bills appear driven more by a misguided desire to exercise editorial control over the use of 911 recordings by news organizations than by any genuine problem associated with access itself. In fact, the Florida bill recites as a policy basis the notion that "there are those persons, who, for personal, private gain or for business purposes, would seek to capitalize on individuals in their time of need."

This bill and others like it underscore a prominent person upset with the use of a public record in a particular circumstance can succeed in having legislative bodies consider wholesale changes to everyone's access to public records. This is a troubling trend.

The Florida bill faces an uncertain fate, as it is opposed by Florida Democrats and Governor Crist, and it must pass by a supermajority vote. We will continue to follow the progress of this bill.

Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Sat, 13 Mar 2010 17:34:31 GMT

On February 24th, the Ontario Superior Court of Justice declined to disqualify plaintiff counsel for its contact with a former employee of the defendant who the defendant alleged had received related confidential information in the context of a solicitor-client relationship while employed. Plaintiff counsel represented various adult entertainment establishments in an action against the Toronto Police [...]

Plaintiff counsel represented various adult entertainment establishments in an action against the Toronto Police Services Board for matters arising out of a large scale investigation that was led by O’Mara. It claimed the TPSB was vicariously liable for O’Mara’s conduct.

In 2001, right around his retirement, O’Mara met with lawyers for the TPSB to discuss his evidence. Sometime later O’Mara contacted plaintiff counsel about providing them with private investigation services. In 2003 plaintiff counsel retained O’Mara on two files unrelated to the action against TPSB in which he prepared affidavits. It’s not clear why, but the plaintiffs produced the affidavits in the TPSB action, at which point the defendants objected to plaintiff counsel’s contact with O’Mara.

The Court held that disqualification was not justified because O’Mara did not receive confidential information attributable to a solicitor-client relationship. In doing so, it declined to apply a rebuttable presumption that such information was communicated because O’Mara did not meet with the TPSB as a client and, unlike in the Court of Appeal’s recent Humber v. Stewart decision, was a neither a potential expert witness nor responsible for giving instructions to counsel as a member of management. It said:

In light of the above, there is no reason to consider that the communications between counsel and O’Mara were other than an ordinary interview with a potential witness to obtain information from the potential witness. The fact that the potential witness was still, at the time, employed with the TPS does not change the nature of the communications. They were part of an interview with a potential witness, and not shown to be of a kind to make it reasonably likely that confidential information would be imparted to Mr. O’Mara.

In obiter, the Court also held that the relationship between O’Mara and plaintiff counsel did not support a presumption that any information within O’Mara’s knowledge would likely have be misused.

728654 Ontario Inc. (Locomotion Tavern) v. Ontario (Attorney General), 2010 ONSC 1184 (CanLII).

charonqc

Sat, 13 Mar 2010 14:58:51 GMT

Barristerman Pencil on paper Charon 2010

Barristerman
Pencil on paper
Charon
2010

Right to Bear Arms? Massachusetts Supreme Judicial Court & U.S. Supreme Court--Recent Activity

Sat, 13 Mar 2010 12:14:27 GMT

Days ago, the Massachusetts Supreme Judicial Court affirmed the Second Amendment to the United States Constitution imposes no limitations on the Massachusetts Legislature to regulate the possession of firearms. See Commonwealth v. Richard Runyan (slip opinion).

The Second Amendment reads,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This case brings up the national debate on the right to bear arms and the Second Amendment. Is it a private individual’s right or, in the alternative, is it a State’s right--so the State may maintain a militia to defend itself? Grossly simplifying the theories, if it’s a State’s right, then the States can regulate it. If it’s an individual right, then that leads to a different analysis.

The SJC’s is an interesting decision in the wake of the U.S. Supreme Court’s 5-4 decision in Heller where the Supreme Court held the Second Amendment protects an individual’s right to possess a firearm in D.C. (D.C. is unique as it is a federal enclave and not a “free State.”)

The MA SJC reasoned the protection of the Second Amendment does not apply to the States as a matter of substantive due process under the Fourteenth Amendment to the United States Constitution. That is, the Second Amendment only prevents Congress, not the MA Legislature (until the Supreme Court says otherwise) from imposing limitations on the right to keep and bear arms.

We recognize that each of the cited cases limiting the application of the Second Amendment to the Federal government preceded the Supreme Court's selective incorporation of some provisions of the Bill of Rights under the due process clause of the Fourteenth Amendment, and that each was decided without reference to or consideration of the requirements of substantive due process. …

It's interesting to note that the much talked about case of McDonald vs. Chicago was also recently heard before the U.S. Supreme Court on March 2, 2010. Here the U.S. Supreme Court will likely decide the question of whether the Second Amendment becomes recognized as being incorporated into the the Fourteenth Amendment and therefore becomes applicable to the States.

Indications suggest the Court will recognize the right as being incorporated, but with questions arising as to what limitations might apply. If the Court does incorporate the Second Amendment and articulate rights held by individuals, then the SJC decision of earlier this week may ultimately provide short-lived precedent in Massachusetts. Perhaps the SJC sensed this, too, when it wrote:

Nonetheless, these cases are the law of the land until the Supreme Court decides otherwise, and we are therefore bound by them. …

Only time will tell, but the result will likely have far reaching implications. For in-depth coverage of McDonald vs. City of Chicago visit the SCOTUS Wiki for a wealth of information, resources, and always thoughtful analysis on Supreme Court cases.

charonqc

Sat, 13 Mar 2010 11:09:51 GMT

Delighted to have a cameo role in GuyNEWS latest televised bulletin about the prosecution of MPs and the release of Nick Hogan. If you do not subscribe to Guido’s GuyNews, then you will have to wait until Monday – but you can subscribe for future GuyNews bulletins here and get them on the Friday. [...]

Delighted to have a cameo role in GuyNEWS latest televised bulletin about the prosecution of MPs and the release of Nick Hogan. If you do not subscribe to Guido’s GuyNews, then you will have to wait until Monday – but you can subscribe for future GuyNews bulletins here and get them on the Friday. This week’s edition is amusing and Emily Nomates, Harry Cole and Old Holborn et al have done the business!

I’ll come to the prosecution of the MPs shortly but, first, a word about alleged ‘trougher’ Baroness Uddin from Guido Fawkes and then a quick analysis of the extraordinary statement from Keir Starmer QC, the Director of Public Prosecutions…

+ + + Baroness Uddin – No Charges + + +

This isn’t a surprise. The Clerk of the Parliaments, Michael Pownall, gave the Lords almost free reign to continue troughing by ruling that there is no definition of main residence for the purposes of expenses. A ruling almost designed to make a prosecution impossible. Uncharged is not the same as innocent…

Lords place themselves beyond reach of the law

The Times reports: Peers who have claimed hundreds of thousands of pounds for homes they rarely visit will escape prosecution through a House of Lords loophole. Keir Starmer, the Director of Public Prosecutions, denounced the change, which was made last month. It allows peers to designate as their main home a property they visit no more than once a month — a ruling Mr Starmer said caused him “very real difficulty”.

The Crown Prosecution Service announced yesterday that it could not bring criminal charges against Baroness Uddin, a Labour peer who received more than £100,000 in allowances by claiming that her main residence was outside London. Her family home is in Wapping, East London, where she has lived for more than a decade. Mr Starmer told The Times: “You could not have a looser definition. It would be nigh on impossible to find a neighbour who could act as a witness and who could say that a peer had not once stayed at a house — short of mounting 24-hour surveillance.”

It is quite extraordinary to have the DPP making a public statement that a prosecution cannot be brought because the Lords changed the rules. The Telegraph reports: “The Director of Public Prosecutions, Keir Starmer, has blamed the House of Lords for derailing attempts to prosecute Baroness Uddin over her expenses claims.”

While Baroness Uddin may well be relieved that she does not face prosecution, she now has to face a Lords internal investigation- as, some say, do up to 20 other peers. This nonsense has gone on long enough. Not all MPs worked the system and, certainly, most peers did not either. If the Lords are to have any credibility and relevance, and win back the trust and approval of the electorate, they have to be seen to act quickly and robustly with those of their members who have played the system. For my part, Baroness Uddin is an irrelevance. She has, clearly, not done anything for which she can be prosecuted, but it may well be that she has not acted with the integrity we are entitled to expect from those who sit in what, after all, is one of the Houses of Parliament. We shall see if the Lords are prepared to deal with any form of corruption or inappropriate behaviour, whether proven in this case or not, in their ranks. As Guido Fawkes commented..perfectly reasonably…Uncharged is not the same as innocent…

Only the Lords can now reveal the truth of the matter.

In the meantime, the troughing MPs who are facing prosecution are pleading parliamentary privilege and argue that no court, save for Parliament, can deal with their behaviour. Guido Fawkes, as always, covers the appearance of the MPs and one peer at Westminster Magistrate: Oink! Oink!

MPs and peer to fight expenses prosecution with 1689 law

The Independent reports: Three Labour MPs and a Conservative peer told a judge today they will use a 320-year-old law to argue they should not be prosecuted over the expenses scandal. MPs David Chaytor, Elliot Morley and Jim Devine, along with Lord Hanningfield, will insist their case should not be tried by a jury and instead dealt with by House of Commons authorities.

I have no difficulty with lawyers using the law to present the best defence of their clients – it is for the courts to rule whether the argument raised in relation to the MPs is right or wrong in law. We are, however, entitled, as many do, to argue that parliamentary privilege should not be used in this way on moral and ethical grounds.

The Independent reports: Barrister Julian Knowles, for the MPs, told the court they would argue they were protected by parliamentary privilege, covered in the 1689 Bill of Rights. “My clients should not be understood as saying that they are above the law – that would be quite wrong,” he said. “Parliamentary privilege is part of the law – and it is for Parliament to apply the law in their cases.” He said the case was of “high constitutional importance” but added the criminal courts had “no jurisdiction” over them.

We won’t have to wait long…the troughers will have their opportunity to argue their position – hopefully from the dock – on March 30th when they appear at Southwark Crown Court. I may well exercise my right to see ‘justice being done’ and turn up myself. I won’t need a mask… some say that my own visage is horrific enough… They are right. In any event, the troughers are entitled to a fair trial…as everyone is and it is for the Crown Court – if it rejects the parliamentary privilege point, to determine whether the troughing is criminal or merely “within the (rather badly drafted) rules”

AND now… to other matters….

I am not a great fan of George Osborne as a potential Chancellor..and, it would appear that The City would prefer Ken Clarke – but I was amused by Osbore’s ridiculing of French president Sarkozy at a speech last year when he made reference to the removal of a box at the lectern, presumably used by a previous speaker, and asked if if it was Sarkozy’s box. A career at the Foreign & Commonwealth Office may not be open to Osbore should Cameron (who is not afraid to sack Osbore), sack Osbore.

I’m afraid that I did find Osbore’s comments about the “Sarkozy box” amusing – but I was pissed when I saw it first on the news last night and I am not trying to be Chancellor. Have a look – it is amusing.

Good to see that our law firms are getting one up on American law firms…

British law firm cleared way for Lehman cover-up

The Times reports: “Linklaters, one of Britain’s leading law firms, approved controversial accounting practices that allowed Lehman Brothers to shift billions of dollars of debt off its balance sheet and mask the perilous state of the bank’s finances before its catastrophic collapse in 2008.A 2,200-page report into the collapse of the 158-year old institution has uncovered evidence that Lehman used “balance sheet manipulation” in the form of an accounting practice known as “Repo 105”, without telling investors or regulators, that made the business appear healthier.

Lehman initially had sought legal clearance from an American law firm to permit Repo 105 transactions but was denied. It then sought advice from Linklaters in London, which said that the deals were possible under English law.”

The Law Society comes under the steely gaze of RollonFriday News this week… The Law Society seeks slave labour…”The Law Society is offering a “internship” position in its Chancery Lane headquarters on no pay. For three months. The job is advertised as starting from mid May, would suit “a graduate or similar“, and is described as “varied and creative“. And a great degree of creativity will certainly be required to live in London for twelve weeks on a salary of absolutely nothing. A spokeswoman for the Society said that the internship “is an excellent addition to any CV” and claimed that “travel costs and subsistence are paid” – although there’s no mention of this in the ad.”

RollonFriday notes that law firms have been using the ‘internship ploy’ as a means of getting no cost labour (and internships may, in other areas provide good experience for young people), but asks whether The Law Society – representing the profession, should be doing so. I’m not so sure they should be – they should pay at least the minimum wage and set an example. Law is a business – it is not a vocation, an art studio, a craft shop, a not very well resourced publishing business…. a museum or art gallery.

New Mobile Phones Capable of Monitoring Employee's Every Move?

Sat, 13 Mar 2010 05:19:39 GMT

New mobile phone technology may allow employers to track very precise movements and activities of employees, such as walking, climbing stairs or even cleaning. As reported by Michael Fitzpatrick of BBC News, the technology developed by KDDI Corporation, a Japanese company, “works by analyzing the movement of accelerometers, found in many handsets.” This enhanced level of monitoring likely will raise serious concerns for courts seeking to balance an employer’s legitimate need to monitor employees with an employee’s expectation of privacy.

To get a sense of how sensitive this technology is, Mr. Fitzpatrick notes that a KDDI mobile phone

strapped to a cleaning worker's waist can tell the difference between actions performed such as scrubbing, sweeping, walking and even emptying a rubbish bin.

Employers should proceed with caution. There certainly are legitimate business reasons for gathering and analyzing this kind of data:

Improving customer service
Enhancing employee productivity
Identifying safety concerns and rectifying them
Ensuring employees are performing only assigned tasks
Confirming employees are working when they say that they are

At the same time, significant concerns about the technology and how it is implemented, together with the potential for unintended consequences, should motivate employers to think carefully before using this equipment:

Does the technology really work as advertised?
Can employees manipulate the “accelerometers,” creating false positives for employers?
When should/must employers turn the monitoring off?
Will effects will data capable of showing the time, date and duration of certain activities have in the areas of wage and hour law, collective bargaining, classification of workers as employees versus independent contractors, workers’ compensation, administration of leaves of absence, and so on?
Will data collected constitute personal information to be safeguarded and retained?
Will employers be required to produce information collected through these mobile phones in unrelated litigation, such as where an employee’s spouse seeking to prove claims of adultery in a divorce action seeks “phone” records to show the location and activity of the employee-spouse?
Some states already have laws dealing with electronic monitoring, but it is unclear how those laws will apply to this new technology. For example, a Connecticut statute prohibits employers from recording or monitoring the activities of employees in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges operating. When Connecticut employers perform permissible electronic monitoring on their premises, they must provide employees with prior written notice.

However, if these phones work as intended, the level of intrusiveness likely will spur opposition by privacy advocates and additional legislation. It also is possible that the U.S. Supreme Court’s decision in City of Ontario, Ontario Police Department, and Lloyd Scharf v. Jeff Quon, et al., currently before the Court, will provide guidance for employers and lower courts as they consider the effects new technologies have on workplace privacy issues. In that case, one issue the Court is considering is whether a California police department violated the privacy of one of its officers when it read the personal text messages on his department issued pager.

There is no doubt technology will continue to advance and bring with it enhanced functionality and capabilities. While the law will try to keep pace, employers will be challenged to apply these technologies in ways that meet the demands of their business, while avoiding the pitfalls of law not yet clearly established.

Mr. Cook Continues His Incarceration For Civil Contmept

Sat, 13 Mar 2010 05:00:28 GMT

After I wrote my November 28th, 2009 "Asset Search News Roundup" about Minneapolis money manager Trevor Cook, Mr. Cook was incarcerated on January 25, 2010 for civil contempt of court. As the Court stated in its January 25, 2010 Opinion, the Securities and Exchange Commission and the Commodity Futures Trading Commission had previously filed for injunctive relief against Mr. Cook.

They sought injunctive relief because Mr. Cook had allegedly participated in a Ponzi-like securities fraud which might have involved at least $190 million taken from 1000 or more victims. Also according to the January 25th Opinion, Mr. Cook violated a November 23, 2009 asset freeze by dissipating assets. The Court therefore remanded Mr. Cook to jail until "he purges himself of the contempt" by turning over:

$27,061,728.35 in foreign accounts;
$670,000 in cash;
$62,000 transferred to Mr. Cook's brother;
$6,141,470 paid to preferred persons;
$2,005,857.88 in domestic accounts;
$53,000 from the sale of a Maserati & Hummer;
a computer and documents formerly possessed by Mr. Cook's assistant;
a houseboat & a submarine;
his BMW, Lexus 430 & Lexus SUV;
his Bon Jovi tickets purchased in 2009;
and his collections of Faberge eggs and watches;

Furthermore, the Court's minutes reveal that Mr. Cook was still in contempt as recently as last Monday:

On November 23, 2009 the Court had also appointed R.J. Zayed, Esq. as the Receiver over estate assets belonging to Mr. Cook and others in this case. A February 16, 2010 application for fees suggests that Receiver Zayed is trying to interdict Receivership assets in Mr. Cook's case by working with: private investigators from Waypoint Inc., forensic computer examiners, local counsel in Panama, etc.

Pages 6-10 of the Receiver's March 4, 2010 "Second Status Report" additionally indicated that there were Receivership assets in the form of real property located in Panama and Canada. The above-mentioned January 25th Order too showed that $27,061,728.35 in Receivership assets had seemingly been maintained by Mr. Cook in foreign bank accounts. This suspected use of foreign bank accounts and other offshore elements, means that Receiver Zayad could be relegated to forced collection proceedings in multiple jurisdictions.

These are the same kinds of proceedings Madoff Trustee Irving Picard eventually had to pursue. Trustee Picard for example, explained at pp. 27-30 ¶¶ 93-100 of his July 9, 2009 First Interim Report, that Madoff estate assets were parked in: England, Gibraltar, Bermuda, the British Virgin Islands, the Cayman Islands, the Bahamas, Ireland, France, Luxembourg, Switzerland and Spain. Forced collection proceedings are generally available across the globe and can involve the legal remedies outlined by Swiss counsel at "An Asset Search In Geneva".

Mr. Cook Continues His Incarceration For Civil Contempt

Sat, 13 Mar 2010 05:00:28 GMT

After I wrote my November 28th, 2009 "Asset Search News Roundup" about Minneapolis money manager Trevor Cook, he was incarcerated on January 25, 2010 for civil contempt of court. As the Court stated in its January 25, 2010 Opinion, the Securities and Exchange Commission and the Commodity Futures Trading Commission previously filed for injunctive relief against Mr. Cook.

$27,061,728.35 in foreign accounts;
$670,000 in cash;
$62,000 transferred to Mr. Cook's brother;
$6,141,470 paid to preferred persons;
$2,005,857.88 in domestic accounts;
$53,000 from the sale of a Maserati & Hummer;
a computer and documents formerly possessed by Mr. Cook's assistant;
a houseboat & a submarine;
his BMW, Lexus 430 & Lexus SUV;
his Bon Jovi tickets purchased in 2009;
and his collections of Faberge eggs and watches;

Furthermore, the Court's minutes reveal that Mr. Cook was still in contempt as recently as last Monday:

Quickhits: Federal Judge Dismiss Aetna Data Breach Case Due to Lack of "Injury-in-fact"

Fri, 12 Mar 2010 21:23:14 GMT

A Federal judge in the U.S. District Court for the Eastern District of Pennsylvania dismissed a class action lawsuit arising out of a data security breach involving Aetna, Inc. (original compliant found here). The basis of the dismissal was the plaintiff's lack of standing due to its failure to allege an "injury in fact" (the dismissal was under section 12(b)(1) of the Federal Rules of Civil Procedure). In particular the court held that the plaintiff's alleged injury in the form of an increased risk of identity theft is far too speculative based on the factual allegations.

The following quote cited by the court (from another case), is indicative of the court's reasoning:

[f]or plaintiff to suffer the injury and harm he alleges, many ‘if’s’ would have to come to pass. Assuming plaintiff’s allegation of security breach to be true, plaintiff alleges that he would be injured ‘if’ his personal information was compromised, and ‘if’ such information was obtained by an unauthorized third party, and ‘if’ his identity was stolen as a result, and ‘if’ the use of his stolen identity caused him harm. These multiple ‘if’s’ squarely place plaintiff’s claimed injury in the realm of the hypothetical. If a party were allowed to assert such remote and speculative claims to obtain federal court jurisdiction, the Supreme Court’s standing doctrine would be meaningless.

Note that the basis of this dismissal was not a "failure to state a claim" under 12(b)(6). Rather this decision basically held that the plaintiffs could not even get a hearing in court on a 12(b)(6) motion because the court lacked subject matter jurisdiction to hear the case at all. Also note that other courts have found standing for data breach cases, including the Seventh Circuit in Pisciotta. However, those that have proceeded past the 12(b)(2) motion have often been dismissed under 12(b)(6). In all, no matter how it happened, it appears that plaintiffs still have significant challenges moving consumer data breach cases further toward trial.

More commentary can be found here.

Internet Crime Complaint Center (IC3) Releases 2009 Report on Internet Crime

blogs@foleyhoag.com (Foley Hoag) — Fri, 12 Mar 2010 17:42:35 GMT

Today, the Internet Crime Complaint Center (IC3), a federal organization run as a partnership between the FBI and National White Collar Crime Center, released its 2009 Internet Crime Report (.pdf). Highlights include:

IC 3 received 336,655 in 2009, an increase of 22% over the prior year.
The dollar loss caused by incidents reported to IC3 increased more than 100% to $559.7 million.
146,663 complaints were referred to local, state and federal law enforcement agencies.
Complaints were typically not referred when "there was no documented harm or loss (e.g., a complainant received a fraudulent solicitation email but did not act upon it)" or when there was no jurisdictional tie to the United States.
16.6% of all complaints involved fraudsters pretending to be affiliated with the FBI.
11.9% of all complaints involved a seller's failure to deliver items purchased online or a buyer's failure to pay for goods delivered.