ABA Issues Opinion on Social Media Ethics

May 7, 2014

The most common question in cases involving Open Source Intelligence (OSI) to support an electronic investigation, is: “To what extent may an attorney ethically use social media during case investigation and discovery?”

The question is not at all surprising.  The extent to which we can develop and use information from social sites, and other types of OSI, has a really high “creep factor”.  My answer has always been:  “If a person has given up information and made it publicly available to anyone with a browser and knowledge of where to look, then what’s the question?”.

Two weeks ago, the ABA agreed… mostly.  In the ABA’s “Formal Opinion 466”, issued on 4/24/2014, the ABA states, in part:

A lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.

In summarizing, the opinion states:

In sum, a lawyer may passively review a juror’s public presence on the Internet, but may not communicate with a juror. Requesting access to a private area on a juror’s ESM is communication within this framework.
The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b).

While this opinion is specific to jurors, might it also apply to witnesses, attorneys, and other parties to a case?  I would think so.

Link to the ABA Journal’s Final Opinion PDF

Deepweb and Google Cheatsheets Updated

If you are interested in researching OSI (Open Source Intelligence), and are an attorney, you will want to request a login to Vidoc Razor’s RazorSuite.  The RazorSuite includes a connector to conduct your own OSI searches in a fraction of the time, and with more information, than manual techniques.  You can request a login here.

If you prefer to do your own manual work, I have been maintaining two “Effective Internet Search” cheat sheets since 2009. The cheat sheets cover the best sites for developing information manually, as well as how to use Google’s advanced features effectively when performing online searches of people, places, and companies.

Link to the updated DeepWeb Cheat Sheet

Link to the updated Google Search Cheat Sheet


Weekly Highlights: April 21, 2014

April 22, 2014

FRCP Rule 37(e) (Preservation) is Changing

On April 11th, the Civil Rules Advisory Committee approved a  revision to Rule 37(e) (the section covers failure to preserve Electronically Stored Information (ESI)).  The new draft reads, as follows:

“(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1) Upon finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation,

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.”

You’ll note that the existing Rule 37e language is nowhere to be found:

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

You can read the proposed changes on the US Courts site, here.

 Popular Legal Websites Affected by the Heartbleed Flaw

Robert Ambrogi’s blog, “LawSites” had a post listing sites, popular with attorneys, that were affected by Heartbleed.  You can view that site here.  If you don’t know what “Heartbleed” is, you will need to.  You can view the Inforensics Blog post, to catch up.

Box.com, and Dropbox.com were, according to Ambrogi’s research, affected by the flaw.  If you use these sites, it is a good time to review and change passwords.  Also, read the Inforensics Blog post on Password Re-use.

 

Changing Metadata Leads to Sanctions

You may have missed the following case.  Remember: It doesn’t take an expert to alter data, and attempt obfuscation, just some software from your local Best-Buy:

T & E Inc. v. Faulkner, 2014 WL 550596 (N.D. Tex. Feb. 12, 2014)

In this case, sanctions were sought for alleged manipulation of metadata, in an attempt to hide the existence of a computer that had not been produced.  A successful motion to compel the defendant to produce computers gave a specific timeline for production.  A forensic expert found evidence that, during the time given to produce, the opposing party created a new user profile on a computer, copied data to it, and used a commercial software to alter times on files in order to make the system appear as though it had been in use, in an effort to hide the “real” computer that had been in use.  Spoliation sanctions were awarded in the form of an adverse inference, and $27,000 dollars.

 


Making Sense of “Heartbleed”: Information Security Catastrophe/Nightmare

April 11, 2014

The term “Internet Security Nightmare” has been used.  This is not an exaggeration, and not an example of hyperbole; Heartbleed is a security catastrophe that cuts a wide swathe across the internet.

If you are not aware of the recently discovered Heartbleed flaw: An extremely critical security flaw has been identified in a cryptographic software component that affects an estimated two-thirds of Web servers, as well as many devices and programs that rely on the software component.  The flaw has been nicknamed “Heartbleed” because of the methodology used to exploit it.  The flaw allows an attacker to retrieve active contents in memory, including private security keys, unencrypted information, and usernames and passwords.

The Heartbleed flaw affects a software module that is in use by everything from routers and web servers, to some phones and devices.

Here are some steps you should take now to give yourself a fighting chance against this flaw:

1) Examine your own practice first:  Are you using hosted email, providing client portals, file upload services, or other web- or internet- enabled services for your clients?  If the services offer SSL, or access using encryption then you need to check with your hosting provider or IT company to confirm that they have patched, or otherwise mitigated the issue.

2) Change your passwords AFTER you have confirmed the service has been fixed: This flaw is being actively exploited.  If you change your password BEFORE the service is fixed, then you are still at risk.  Confirm first, change after.

3) Be aware of “password re-use”:  This flaw has existed for 2 years, and has only now come to light.  Some companies have gone back to review logs, and have found active attacks against this flaw from before March.  If you use the same password in multiple locations, then it is time to change all your passwords.  Recommended reading:   Because One Thing Leads to Another: Data Breach and Password Re-Use

I have included a simple chart below, as an example of high profile services to review (source: Mashable):

Social Networks

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Facebook Unclear Yes Yes “We added protections for Facebook’s implementation of OpenSSL before this issue was publicly disclosed. We haven’t detected any signs of suspicious account activity, but we encourage people to … set up a unique password.”
LinkedIn No No No “We didn’t use the offending implementation of OpenSSL in http://www.linkedin.com or http://www.slideshare.net. As a result, HeartBleed does not present a risk to these web properties.”
Tumblr Yes Yes Yes “We have no evidence of any breach and, like most networks, our team took immediate action to fix the issue.”
Twitter Unclear Unclear Unclear Twitter wrote that OpenSSL “is widely used across the internet and at Twitter. We were able to determine that [our] servers were not affected by this vulnerability. We are continuing to monitor the situation.”Twitter has not yet responded to Mashable‘s request for comment.

Other Companies

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Apple Unclear Unclear Unclear Apple has not yet responded to a request for comment.
Amazon No No No “Amazon.com is not affected.”
Google Yes Yes Yes “We have assessed the SSL vulnerability and applied patches to key Google services.” Search, Gmail, YouTube, Wallet, Play, Apps and App Engine were affected; Google Chrome and Chrome OS were not.*Google said users do not need to change their passwords, but because of the previous vulnerability, better safe than sorry.
Microsoft No No No Microsoft services were not running OpenSSL, according to LastPass.
Yahoo Yes Yes Yes “As soon as we became aware of the issue, we began working to fix it… and we are working to implement the fix across the rest of our sites right now.” Yahoo Homepage, Yahoo Search, Yahoo Mail, Yahoo Finance, Yahoo Sports, Yahoo Food, Yahoo Tech, Flickr and Tumblr were patched. More patches to come, Yahoo says.

Email

Was it affected? Is there a patch? Do you need to change your password? What did they say?
AOL No No No AOL told Mashable it was not running the vulnerable version of the software.
Gmail Yes Yes Yes “We have assessed the SSL vulnerability and applied patches to key Google services.”*Google said users do not need to change their passwords, but because of the previous vulnerability, better safe than sorry.
Hotmail / Outlook No No No Microsoft services were not running OpenSSL, according to LastPass.
Yahoo Mail Yes Yes Yes “As soon as we became aware of the issue, we began working to fix it… and we are working to implement the fix across the rest of our sites right now.”

Stores and Commerce

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Amazon No No No “Amazon.com is not affected.”
Amazon Web Services(for website operators) Yes Yes Yes Most services were unaffected or Amazon was already able to apply mitigations (see advisory note here). Elastic Load Balancing, Amazon EC2, Amazon Linux AMI, Red Hat Enterprise Linux, Ubuntu, AWS OpsWorks, AWS Elastic Beanstalk and Amazon CloudFront were patched.
eBay Unclear Unclear Unclear “The vast majority of our services were not impacted and our users can continue to shop securely on our marketplace.”
GoDaddy Yes Yes Yes “We’ve been updating GoDaddy services that use the affected OpenSSL version.” Full Statement
PayPal No No No “Your PayPal account details were not exposed in the past and remain secure.” Full Statement
Target No No No “[We] launched a comprehensive review of all external facing aspects of Target.com… and do not currently believe that any external-facing aspects of our sites are impacted by the OpenSSL vulnerability.”

Banks and Brokerages

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Bank of America No No No “We’re currently taking precautions and steps to protect customer data from this threat and have no reason to believe any customer data has been compromised in the past.”
Chase No No No “These sites don’t use the encryption software that is vulnerable to the Heartbleed bug.”
E*Trade No No No E*Trade is still investigating.
Fidelity No No No “We have multiple layers of security in place to protect our customer sites and services.”
PNC No No No “We have tested our online and mobile banking systems and confirmed that they are not vulnerable to the Heartbleed bug.”
Schwab No No No “Efforts to date have not detected this vulnerability on Schwab.com or any of our online channels.”
Scottrade No No No “Scottrade does not use the affected version of OpenSSL on any of our client-facing platforms.”
TD Ameritrade No No No TD Ameritrade “doesn’t use the versions of openSSL that were vulnerable.”
TD Bank No No No “We’re currently taking precautions and steps to protect customer data from this threat and have no reason to believe any customer data has been compromised in the past.”
U.S. Bank No No No “We do not use OpenSSL for customer-facing, Internet banking channels, so U.S. Bank customer data is NOT at risk.”
Wells Fargo No No No No reason provided.

Government and Taxes

Was it affected? Is there a patch? Do you need to change your password? What did they say?
1040.com No No No “We’re not vulnerable to the Heartbleed bug, as we do not use OpenSSL.”
FileYour Taxes.com No No No “We continuously patch our servers to keep them updated. However, the version we use was not affected by the issue, so no action was taken.”
H&R Block Unclear No Unclear “We are reviewing our systems and currently have found no risk to client data from this issue.”
Healthcare .gov Unclear Unclear Unclear Healthcare.gov has not yet responded to a request for comment.
Intuit (TurboTax) Yes Yes Yes Turbotax “has examined its systems and has secured TurboTax to protect against the “Heartbleed” bug.” Full Statement
IRS Unclear Unclear Unclear “The IRS continues to accept tax returns as normal … and systems continue operating and are not affected by this bug. We are not aware of any security vulnerabilities related to this situation.”

Other

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Dropbox Yes Yes Yes On Twitter: “We’ve patched all of our user-facing services & will continue to work to make sure your stuff is always safe.”
Evernote No No No “Evernote’s service, Evernote apps, and Evernote websites … all use non-OpenSSL implementations of SSL/TLS to encrypt network communications.”Full Statement
LastPass Yes Yes Yes “Though LastPass employs OpenSSL, we have multiple layers of encryption to protect our users and never have access to those encryption keys.”
Netflix Unclear Unclear Unclear “Like many companies, we took immediate action to assess the vulnerability and address it. We are not aware of any customer impact.”
OKCupid Yes Yes Yes “We, like most of the Internet, were stunned that such a serious bug has existed for so long and was so widespread.”
SoundCloud Yes Yes Yes “We will be signing out everyone from their SoundCloud accounts … and when you sign back in, the fixes we’ve already put in place will take effect.”
Spark Networks (JDate, Christian Mingle) No No No Sites do not use OpenSSL.
Wunderlist Yes Yes YesYes “You’ll have to simply log back into Wunderlist. We also strongly recommend that you reset your password for Wunderlist.”Full Statement

Weekly Highlights: September 17, 2012

September 17, 2012

Things You Might Have Missed Last Week

(Highlights in legal, forensics, and electronic discovery news for the past week)

Interesting Electronic Evidence Cases

Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 (S.D. Ohio Aug. 28, 2012)

The defendant inadvertently produced almost 350 pages of email. Even though, after in camera review, the court found that many of the produced materials were “within the ambit of attorney-client privilege”, the court found that privilege had been waived.

Weekly Highlighted Article

From E-Discovery Beat:

Experts Consider E-Discovery Implications of New ABA Ethics Rules Amendments

From BowTieLaw.com:

Forensically Examining a Lawyer’s Computer

Electronic Evidence News

Twitter Gives Occupy Protester’s Tweets to U.S. Judge

Court Issues 20-Year Product Injunction in Trade Secret Theft/eDiscovery Sanctions Case

Samsung Flexes Litigation Muscles at Apple Ahead of iPhone 5 Launch-Again


Weekly Highlights: September 10, 2012

September 10, 2012

Things You Might Have Missed Last Week

(Highlights in legal and electronic discovery news for the past week)

Interesting Electronic Evidence Cases

Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)

The defendant was seeking to compel production of discovery in (among other things) “all social media content involving [Plaintiff] since July 1, 2008” related to the Plaintiff’s “‘emotion, feeling, or mental state,’ to ‘events that could be reasonably expected to produce a significant emotion, feeling, or mental state,’ or to allegations in [Plaintiff’s] complaint.”.

Magistrate Judge Paul Papak (Oregon) found:

“I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

Link to Opinion PDF

Apple, Inc. v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG) (N.D. Cal. July 25, 2012)

The Defendant in this case was sanctioned for the loss of relevant emails due to Defendant’s failure to follow-up with employees to ensure compliance, and the Defendant’s failure to halt the email system’s auto-delete function.  Sanctions included an adverse inference that allowed the jury to presume that the missing evidence was relevant and favorable to the Plaintiff.

Link to Opinion PDF

Weekly Highlighted Case

EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010)

This case can be very useful when dealing with social media electronic evidence matters.  It was utilized by the Oregon magistrate in the above listed case (Robinson v. Jones Lang LaSalle Americas) when forming his opinion.

The defendant in this matter was seeking production of claimants’ social networking site profiles, as well as other communications from social sites used by the claimant.

Last May, the Great State of Texas saw a similar matter that relied, in part, on the EEOC case:

IN RE MAGELLAN TERMINALS HOLDINGS, L.P. AND MAGELLAN MIDSTREAM HOLDINGS GP, LLC 
Link to PDF Document

Electronic Evidence News

State Bar of Texas Alert Says ‘Scam Artist’ Stole Nonpracticing Lawyer’s ID for Fake Website

West Let Off the Hook on Web Malpractice Claim

OJ Simpson Prosecutor: Johnnie Cochran May Have Tampered with Bloody Glove


Weekly Reading List: Week Ending Feb. 6

February 7, 2009

Snow Crash, Neal Stephenson – This week is a little different: fiction for a change.  The story line is good cyberpunk, but what really stands out in this novel is the concept of “memes“.  Stephenson’s presentation of ideas as social viruses (particularly religion) is incredibly thought provoking, and makes the read worthwhile.

While on the topic of Stephenson, there is a leading quote in his book “Diamond Life” credited to Sir Charles Petrie (the historian) from 1960.  This could have been written yesterday:

Moral reforms and deteriorations are moved by large forces, and they are mostly caused by reactions from the habits of a preceding period.  Backwards and forwards swings the great pendulum, and its alterations are not determined by a few distinguished folk clinging to the end of it.

Sir Charles Petrie, The Victorians (1960)


Weekly Reading List: Week Ending January 23

January 25, 2009

Translucent Databases, Peter Wayner – This book is older by technology reference standards (2002), but I find the concepts in it to be critical for secure database design.  The amazing thing is how many databases with sensitive information don’t use these very simple techniques.  The book itself is only around 175 pages.  You can find it on the original author’s site here:  Translucent Databases

Chaos:  Making a New Science, James Gleick – If you can read this book without having your head spin with new ideas and concepts then you might be a zombie.  Mr. Gleick manages to describe key concepts and work being done in the field of  chaos  without bringing in thick math.  This book was a best seller and was nominated for the Pulitzer prize.  You can find the author’s website here: Chaos: Making a New Science