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WhatsApp Photo Leads To Drug Dealer’s Arrest


As the BBC succinctly put it, “An image of a man holding ecstasy tablets in his palm was found on the mobile of someone arrested in Bridgend.”  Bridgend is a city in Wales in the UK.  That “someone arrested” was 22-year-old Aaron McKay.

So began a first-of-its-kind investigation that would ultimately lead to 11 convictions, including that of a so-called drug “kingpin.”  All of these individuals were either offering the drugs for sale or locating them for purchase, using the popular messaging app owned by Facebook.

What makes this case interesting is that police did not even need the “kingpin’s” cell phone to bring an entire drug ring down.  Authorities got all they needed when they arrested McKay and took possession of his cell phone.  On it, they found the image in question, which is shown above.  

Facing a daunting task considering that most of the hand is covered by plastic, the police used a combination of photo enhancement and advanced fingerprint technology to match the uncovered part of the hands to the fingerprints of the “kingpin,” 28-year-old, Elliott Morris.  An evidently enterprising young man, Morris had taken over the local ecstasy business from his parents, Darren and Dominique, who hands-down win the “parents-of-the-year” award.  Morris and his parents are shown below.

The moral of this story is that, if you are a criminal, do not take selfies with your cell phone.  If you are a criminal, taking selfies – of any part of your body – is one of the stupidest things you can do, especially when the photo reveals criminal activity or the fruits of a crime. 

If you do not believe this story, check out all these other examples of selfies that got the photographers caught red-handed or shortly after the crime was committed.  If that article does not convince you, maybe you heard about the Chicago man that brutally murdered his own father and then posted a selfie with dad’s battered head on Facebook.  Still not persuaded?  Well then, there were the Ohio bank robbers who posted numerous selfies on Facebook displaying the cash they had stolen.  Below, we see one of those robbers pretending to eat the ill-gotten cash like a delicious ham sandwich.  Now that’s brilliance personified.

To put it in simpler terms, an idiot with a cell phone is usually not a good thing – unless you’re a cop.  If you’re a copy, an idiot with a cell phone – whether it’s yours or someone else’s – is evidence.

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Lawyer’s Hourly Rate Calculator

calculator-image-clipart-9You have just hung out your shingle, but you do not know what amount to charge clients for your hourly rate.  What do you do?  There is a lot of advice out there.  One solution might be to ask around and find out what the market rate is for legal services in your area, with your level of expertise.  That makes sense to a certain extent, but from a marketing standpoint, does it make even more sense to charge a discount from the market rate in your area as a means to attract new business?  If so, how much of discount can you offer?  Do you simply pick a number at random?

Questions such as these vex new and seasoned attorneys alike.  Today, I found a handy online calculator over at Lawyerist.com, which offers a methodology for figuring out what hourly rate to charge clients.  The calculator asks you how much you would like to earn in after-tax income as well as how many hours you want to spend working.  It also takes into account monthly office expenses.  It then calculates an hourly rate.  Nice, right?

If you are a new attorney or one with experience, and are uncertain how much you should be charging as an hourly rate, you might want to play around with this online calculator.  It is easy to use and might help shed some light on a persistent problem.

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Is Donald Trump’s Twitter Feed A “Public Forum?”

This is precisely the question being raised by the Knight First Amendment Institute at Columbia University on behalf of two Twitter followers blocked by President Trump after they expressed critical or opposing views on the President’s personal Twitter feed, @realDonaldTrump.  In essence, these Twitter followers analogize their situation to one where a politician impermissibly blocks an individual from attending a town hall event held at a private location because the individual criticized that politician.  Twitter, they assert, is a “public forum” just like the town hall meeting, and as such, the President cannot refuse their entry or participation.  In blocking the Twitter followers, they allege the President violated their First Amendment rights to free speech.

In the U.S., the right to free speech is broad, especially as it applies to critiques of public officials.  Is it broad enough to prevent the President from blocking an opposing user from his personal Twitter feed?  While novel, it is an interesting question, especially in light of how frequently, and I daresay effectively, this President uses Twitter as a means of advancing his own political agenda.

The Knight Institute sent a letter to the President on June 6, 2017, demanding that he unblock the two Twitter followers and anyone else he has blocked.  Only time will tell if this demand ripens into an actual lawsuit.  If it does, you can be sure we will hear about it @realDonaldTrump.




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Senate To Consider Nationwide Protections For Online Reviews


On September 9, 2014, California’s Governor, Jerry Brown, signed into law a bill aimed at protecting Californians who review products and services online.  Unofficially dubbed the “Yelp Bill,” A.B. 2365 prohibits businesses from forcing California consumers into contracts which waive the consumer’s right to review products or services they receive. The law also prohibits businesses from penalizing consumers who write negative reviews.

Fines for violating California’s law can be stiff.  A.B. 2365 imposes a fine of $2,500 for the first violation and $5,000 for each subsequent violation.  If a violation is found to be willful, intentional or reckless, the fine increases to $10,000.

Online review services such as Yelp celebrated California’s new law. However, many businesses across the country cling to so-called “non-disparagement” clauses in their contracts with consumers.  In many instances, these clauses are buried in form contracts set up as “click through” agreements on a business’ website where consumers have no realistic opportunity to negotiate the contract terms.

Examples of cases where businesses have pressed “non-disparagement” clauses on consumers are numerous.  You can read more about some of the examples in this article from the Electronic Frontier Foundation.

Following on the heels of California’s “first-in-the-nation” legislation, the U.S. Senate appears poised to debate federal legislation that would extend California-style protections to all U.S. consumers. Introduced in the Senate on September 16, 2015, following an unsuccessful introduction in the House, the Consumer Review Freedom Act of 2015 (CRFA) would prohibit several ways that businesses try to prevent consumers from posting negative online reviews.  The CRFA would, in cases where a consumer does not have the ability to negotiate or change the terms of a contract with a business, void:

  1. Clauses in the contracts that restrict a consumer’s ability to post a review of the business;
  2. Clauses that impose fees on consumers who post negative reviews; or
  3. Clauses that attempt to transfer intellectual property rights in a review to the business.

Under the CRFA, businesses would be prohibited from presenting contracts with such clauses to consumers.

The CRFA is not perfect.  The Electronic Frontier Foundation has expressed concern about some loopholes and other problems with the bill that should be remedied before it is enacted.  Still, the CRFA is a significant step in the right direction for consumer protection.

Statistically, the importance of online reviews for businesses cannot be overstated. Recent studies confirm the growing popularity of online reviews with consumers who rely on them when choosing a business with which to work.  In 2013, for example, a Local Consumer Review Survey of over 3,500 people in the U.S. and Canada was conducted by BrightLocal, an SEO company.  That survey found that 85% of consumers regularly or occasionally read online reviews when selecting a business, up from 76% in 2012.


When the same survey was completed in 2014, 88% of consumers reported that they regularly or occasionally read online reviews when selecting a business.  Only 12% of consumers surveyed responded that they did not read online customer reviews to determine whether a business was good or bad.


There is an old saying, “If you don’t have anything good to say, don’t say anything at all.” With legislative reforms like the CRFA on the horizon, and the reality of statistics such as those listed above, businesses that wish to impress that adage on consumers with “non-disparagement” clauses are engaging in nothing more than wishful thinking.  Those days are over.  Whether they are good or bad, online reviews are here to stay, and smart businesses will take advantage of them by providing excellent products and services to consumers.




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Uber Faces Onslaught Of Legal Challenges, Both At Home And Abroad – Updated

Uber company iconBack in February, this blog featured an article discussing a pair of lawsuits filed against tech startups, Uber and Lyft, challenging the companies’ characterization of their drivers as independent contractors.  According to a website providing information about the Uber lawsuit (and created by the plaintiffs’ attorneys in that case), the suit is set for a hearing on class certification in August.  The outcome of that hearing may determine whether the Uber plaintiffs can proceed in their class action lawsuit or face arbitration of their claims.

On June 17, 2015, in a case brought by an Uber driver seeking reimbursement of out-of-pocket expenses, the California Labor Commissioner ruled that the driver was, in fact, an employee, not an independent contractor.  As a matter of California law, that ruling is non-binding on the class action lawsuits (and Uber has appealed the ruling in any case, seeking a trial de novo in the trial court), the Labor Commissioner’s ruling may, nevertheless, have some effect on the class action lawsuits.  Even if it does not, there remains the possibility of additional Labor Commissioner proceedings brought by other drivers, which could – as one article described it – “clobber” Uber.

In the meantime, since the class action lawsuit was filed against Uber, the company’s legal problems have accumulated faster than a speeding rideshare.  In August 2014, for example, an Uber customer filed a $2 million lawsuit against the company, alleging that an Uber driver stabbed him repeatedly in the chest and arm.

But that’s not all.

On September 9, 2014, the National Federation of the Blind brought suit [PDF] against Uber in California federal court, alleging its drivers refused to provide rides to blind customers with service dogs in violation of the Americans With Disabilities Act and California state law.  The suit claims that Uber’s drivers abandoned blind customers when the drivers realized they were accompanied by service dogs.  The suit further alleges that, in at least one instance, a driver placed the customer’s service dog in the trunk of the car, then refused to pull over and let the customer exit the vehicle when the customer realized what had happened.  Uber sought to dismiss the suit, but a federal judge ruled that Uber must defend the matter.  You can read more about this lawsuit here from the Washington Post and here from the Consumerist.

In January 2015, a New Delhi woman sued Uber in California federal court, alleging that she was violently raped by one of its drivers.  Her suit specifically faulted Uber for approving the driver based on faulty credentials and without doing a proper background check.

Speaking of background checks…Enter yet another class action lawsuit against Uber.  Filed in California federal court on June 29, 2015, this lawsuit alleges that Uber violated the Fair Credit Reporting Act when conducting background checks of its drivers.  Lyft was also named in a similar, separate class action lawsuit.

Apart from these legal woes, Uber faces other challenges to its business model.  For example, drivers unhappy with their working conditions have begun organizing online under the title UberPeople.  Uber drivers in Southern California have formally associated with the Teamsters Union as the California App-Based Drivers Association.  It remains to be seen how effective these developments will be.

Abroad, Uber faces additional obstacles – nothing new for the company.  According to an article in Legal Tech News, Uber has been forced to suspend its French operation after “two of its senior European managers were detained on July 6 and ordered to stand trial, charged with ‘deceptive commercial practices’.”  In Mexico, regulations are in the works “that will require drivers and cars to be registered, and also require Uber to pay into a fund for transportation infrastructure.”  Uber has already suspended operations in Spain and New Delhi, India.

As the saying goes, “there is no such thing as bad publicity.”  However, the reality of that is open to debate.  At some level, the considerable negative publicity Uber earns with each lawsuit – particularly lawsuits questioning rider safety – will start harming its bottom line.  And no one should think that Uber has yet seen the last of its legal troubles.  Actions by foreign countries, like those taken in France and elsewhere, may impede Uber’s expansion into new, lucrative markets.  Back in the U.S., the class action lawsuit seeking to declare Uber drivers as employees threatens to upend the company’s business model entirely.

So, what about that business model?  Uber functions on a business model that attempts to transfer all of the company’s risk to its drivers and customers, while retaining little risk – or accountability – for itself.  If just the lawsuits currently filed are believable, Uber’s business model has already endangered customer safety and possibly violated its customers’ civil rights.  While Uber’s business model may, for now, be sound from the perspective of the company’s balance sheet – Uber is, after all, worth $50 billion – do we need to question whether it is a sound business model from a public policy perspective?

Update, 7/18/2015

To add to its growing list of legal problems, Uber was fined $7.3 million by a California administrative law judge on July 15 for refusing to provide information to state regulators about its business operations.  Providing this information was a condition of Uber being allowed to operate its taxi alternative company in California.  In light of the lawsuit brought against Uber on behalf of blind riders, it is interesting that one piece of information Uber was required to show California regulators is how accessible its cars are to the disabled.

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Lawyer Disbarred For Unethical Use Of Social Media

Scales of justice with social media iconsLawyers really should learn how to use technology, particularly social media, appropriately.  We read story after story about lawyers getting into trouble for tweeting, how a blog post jeopardizes a lawyer’s career or reputation, or simply how a lawyer’s use of social media is in plain bad taste.

Enter the latest example in this string of lawyers using new technology unwisely.  According to an article from the ABA Journal, a Louisiana lawyer, Joyce Nanine McCool, has been disbarred by that state’s Supreme Court for using Twitter and an online petition-signing drive to influence the actions of two judges in a custody case.  McCool tweeted

McCool argued that her use of social media was protected speech under the First Amendment.  In a 4-3 ruling, the Court characterized McCool’s argument as an “artful” attempt to use the First Amendment as a shield against “clearly and convincingly proven ethical misconduct.”  The Court went on to write that McCool showed an “utter lack of remorse” and that her social media postings contained “false, misleading and inflammatory statements” about the way the two judges handled the case.

Notably, McCool apparently tweeted that the judges refused to admit certain evidence in the case when the evidence had not even been presented.  She also encouraged readers of her social media posting to contact the judges directly to express their feelings about the case.

Like so many of the other stories of lawyers behaving badly with social media, let McCool’s fate serve as a cautionary tale – be careful what you post on social media.  It could come back to haunt – or even disbar – you.

You can read the full text of the ABA Journal article here.


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Google Earth Evidence Is Not Hearsay, 9th Circuit Rules

Google Earth

In 2013, Border Patrol agents arrested Paciano Lizarraga-Tirado in Arizona, near the U.S.-Mexico border, and charged him with illegally re-entering the U.S.  Mr. Lizarraga-Tirado had been removed from the U.S. in 2012.

At his trial, Mr. Lizarraga-Tirado argued that the agents had crossed into Mexico when they arrested him.  However, one agent had recorded the coordinates of the arrest using a handheld GPS device.  To demonstrate these coordinates, the government introduced a Google Earth satellite image, which placed the arrest on the U.S. side of the border.  Mr. Lizarraga-Tirado was, subsequently, convicted.

On appeal to the U.S. 9th Circuit Court of Appeals, Mr. Lizarraga-Tirado argued that the Google Earth satellite image and digital tack amounted to impermissible hearsay because they asserted where the agents worked and where they responded. The 9th Circuit disagreed.  In an opinion authored by Judge Alex Kozinski, the Court ruled that machine-generated proof is not hearsay, writing:

Here, the relevant assertion isn’t made by a person; it’s made by the Google Earth program. Though a person types in the GPS coordinates, he has no role in figuring out where the tack will be placed. The real work is done by the computer program itself. The program analyzes the GPS coordinates and, without any human intervention, places a labeled tack on the satellite image. Because the program makes the relevant assertion—that the tack is accurately placed at the labeled GPS coordinates—there’s no statement as defined by the hearsay rule.

In United States v. Washington498 F.3d 225 (4th Cir. 2007), a DUI case, the majority wrote that machine-generated data of a positive test in a blood sample was not a statement and, therefore, not subject to the hearsay rule.  Rather than being a statement by lab technicians, the 4th Circuit found that the proof was generated by a computer analyzing the sample.

Machine-generated proof has also been addressed by the 3rd Circuit.  In United States v. Khorozian, 333 F.3d 498 (3rd Cir. 2003), the Court ruled that “neither the header nor the text of [a] fax was hearsay.”  (Id. 506.)   According to the 3rd Circuit, the rule against hearsay bars only statements made by persons.  Therefore, “nothing ‘said’ by a machine…is hearsay.”  (Id.)

Other federal courts have reached similar conclusions in a variety of contexts.  In United States v. Safavian, 435 F.Supp.2d (D.D.C. 2006), for example, the District Court for the District of Columbia held that certain portions of email communications were nonassertive verbal conduct falling outside the rule against hearsay.  Likewise, in Telewizja Polska USA v. Echostar Satellite Corp., 2004 WL 2367740 (N.D. IL 2004) (summary available here), the Court ruled that images and text posted on a website offered to show what the website looked like on a particular day were not “statements” within the meaning of the hearsay rule.

For some time now, state courts have reached the same conclusion regarding machine-generated proof.  An early example of such a case is State v. Armstead, 432 So.2d 837 (La. 1983), which involved the admission of computer printouts to prove obscene telephone calls originated from the defendant’s telephone.  There, the Louisiana Supreme Court ruled that digital evidence is not hearsay when it is “the by-product of a machine operation which uses for its input statements entered into the machine” and “was generated solely by the electrical and mechanical operations of the computer and telephone equipment.”  More recently, the Mississippi Court of Appeals ruled in a capital murder case that Facebook notifications were not hearsay because there was no assertion made by a human. (State v. Smith, Case No. 2012-KA-00218-COA).

The ruling by the 9th Circuit Court of Appeals joins a growing list of courts across the U.S. ruling that machine-generated proof is not hearsay.  Rulings such as these should make it easier to admit such proof.  You can read the full text of the 9th Circuit’s opinion here, provided by Justia.

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