November FDA Update – Approval of St. Jude’s Amplatzer PFO Occuder Device

Jeffrey Cullen

As of December 2015, President Barack Obama was prepared to sign a new bill pertaining to cybersecurity based upon the increased cyber attacks. It has been observed that many cyber attackers use the same strategies on subsequent attacks.[1] This bill is designed to allow companies to legally share with each other and the government data about the cyberattacks they experience to enhance their ability to prevent attacks in the future. Companies would be protected by law in sharing these communications.

Privacy advocates have criticized this new bill. These advocates are concerned that the bill serves to expand surveillance on the population and deteriorates peoples’ right to privacy. Companies may turn over information that is intimate in detail under the veil of what is considered to be pertinent to cybersecurity, which is broad.[2] Senator Ron Ryden was quoted in the article saying that Americans are entitled to policies that protect both their security and their liberty and that this bill fails in both areas. Is this bill the most effective way to counteract cyber attacks? If this bill goes forward, should the definition of what is pertinent to cybersecurity be narrowed in order to protect consumers’ information?

 

[1] Tal Kopan, Obama to sign cybersecurity bill as privacy advocates fume, CNN (Dec. 18, 2015). http://www.cnn.com/2015/12/18/politics/cybersecurity-house-senate-omnibus/index.html

[2] Id.

Christopher W. Folk

This is to attempt to glean through both their words and actions what the principle candidates’ positions are on cyber security.  Excluded here are any specific remarks that either candidate may have directed at the other candidate’s cyber security posture.

Hillary Clinton – The Democratic Nominee

Clinton has served in various political (appointed and elected) positions, and thus there is not only rhetoric but also a track record from her time in public service.

Cybersecurity

Clinton appears to be largely in favor of the policies begun under President Obama — namely promoting multi-factor authentication (MFA), credit card transaction security, and the creation of a Federal Chief Information Security Officer (a post created by Obama with the first appointment going to Brig. Gen (Ret.) Gregory Touhill, as announced on Sept. 8, 2016).[1]

Clinton made remarks in February acknowledging the threat posed by nation-states while also recognizing that rogue hackers potentially represent even greater threats.[2]  This is significant in that it implicitly invokes the issues of asymmetry wherein one side has a much greater stake in the game.  Consider, for instance, the dichotomy between life in the U.S. and a group of hackers using a satellite uplink, a generator and a room full of computer equipment in a remote, desolate location. In the US, any number of critical infrastructure components could be disrupted through a cyberattack with significant impacts. In contrast, levying a similar attack or even moving to conventional weapons would have a far lesser impact on those in the remote scenario.[3]

In the first presidential debate, the candidates were asked about recent cyber-attacks and Clinton responded by essentially re-iterating her remarks listed above — namely, that cyber security and cyber warfare are going to be some of the biggest challenges facing the next president and that they involve both independent groups as well as state-actors.  Clinton said we will need to send a strong message but failed to elaborate on exactly what that message might be.[4]

 

Encryption

As far back as 2010, Sec. Clinton made remarks on internet freedom in which she espoused technology and its ability to provide communication outlets for oppressed people living under the thumb of authoritarian regimes while at the same time allowing terrorist groups to communicate in a free and unfettered manner, leveraging these same technologies.[5]  Clinton went on to say that new technologies should not be used to punish peaceful political speech or religious minorities; although those that use technology to recruit terrorists or distribute misappropriated intellectual property should be policed.[6]  The problem then becomes one of the “how,” as in how does one effectively differentiate between these two categories of uses without reviewing the actual content of messages? Is she advocating deep packet inspection of all Internet traffic to see whether the packets carry data to peaceful political activists or to terrorists?  Clinton indicates that we need to attack criminal hacker and organized crime syndicates through international cooperation to aid in the prosecution of offenses.

Clinton shared the example of a program in Mexico developed to curb drug violence that allowed people to provide untraceable reports in order to avoid retribution.  This is the closest reference we found to “encryption or obfuscation” in these remarks, but it seems that both would be needed in order to implement such a system.  Similarly, Clinton indicated that in Pakistan, the “Our Voice” social mobile network was developed to allow Pakistanis to communicate outside the reach of violent extremism. [7]

Again, she made no actual mention of encryption nor the caveat that there are necessary trade-offs.  If you develop obfuscated and encrypted communication channels you cannot control the users of these systems.  So just as a Pakistani could communicate using “Our Voice” for political dissent or religious freedom, so too could they (and anyone else) communicate via this masked medium to plot terrorist activity or any criminal enterprise for that matter.

Clinton further discusses censorship and our deeply held belief that censorship is a bad thing.[8]  Here too, one must recognize that censorship is content based and thus to decry censorship one must come to the conclusion that encryption is a technology that can defeat content-based restrictions by rendering the content indecipherable through the use of encryption technologies.  Again, the flip side is that that if you cannot examine content then you cannot distinguish between higher-purpose communications (political discussions, the marketplace of ideas) and those of people who wish to do us or others harm (e.g. terrorism-related content).

Clinton then discusses the difficulty in balancing anonymity when used for “good” and anonymity when used for purposes such as intellectual property theft.  Clinton says this is difficult and will need to be solved with the guidance of technology experts.  We agree, this is a difficult and thorny issue.

Analysis — Clinton:

Much of Clinton’s remarks are consistent over the years, as she has long touted the need to spread internet access as a basic human right and has also stated that technology offers a voice and a medium for political discourse and a way for the oppressed to be given an anonymous and uncensored platform for their dissent.  This, however, is contrasted with various activities undertaken while Clinton served as Secretary of State, such as the use of a personal e-mail server through which government e-mails were routed, and the use of a personal blackberry.  It is interesting that Clinton made remarks back in 2010 concerning the “Our Voice” social mobile network in Pakistan and Mexico’s technology program to protect the identity of informants and yet even with this apparent knowledge of censorship, attribution, and retribution Clinton failed to employ any of the technology she hopes to expand under her administration.  In her own administration at the Department of State, she did not use encryption, multi-factor authentication and the use of technology experts to tackle our cyber problems.   Consequently, irrespective of where one falls with regard to the culpability of an official routing classified materials through unsecured off-site, personal servers, surely one can agree that engaging in activities of this sort indicates a general failure to take cybersecurity seriously.  However, it should be noted that having endured this and the aftermath, it is quite likely that Clinton is now far more aware of the need for a strong cybersecurity posture than she was prior to this.

Overall, Clinton’s approach seems like a continuation of the Obama approach: engage in talks with Nation-states (such as China), acknowledge the issues we face, and talk at a very high level about changing our approach and being safer and stronger in the cybersecurity realm.  While we have had some successes — some public, some not — overall we face increasing challenges in cybersecurity.  We have seen some very high-profile data exfiltrations and hacks across the private as well as public sectors.  It seems clear that rhetoric is not solving this particular problem.

 

Donald Trump – The Republican Nominee

 

Donald Trump’s position on cyber security was relatively unknown, though this seems to have been fleshed out somewhat and specifically in remarks that Mr. Trump made on Monday, Oct. 3, 2016, in speaking with the Retired American Warriors PAC in Herndon, VA.[9]

Cybersecurity

Trump indicated that cyber security is one of the most important aspects of America’s national security framework and that cyber needs to be a top priority for the government and private sector.  Trump equated cyber theft with the rise of the mafia and our success in controlling their advances and mitigating their reach through a joint coordinated effort between the Department of Justice, the DEA, the FBI, as well as state and local police and prosecutors.  Trump indicated that as President he would charge the DOJ with creating a joint task force to work domestically and in partnership with international forces to thwart cyber crime.

Additionally, Trump indicated he will task the Secretary of Defense and Joint Chiefs with the  development of  recommendations for making Cyber Command (CYBERCOM) stronger and more relevant to increase its offensive and defensive capabilities.  Specifically, Trump indicated he would like CYBERCOM to develop the ability to launch “crippling cyber counter attacks.  And I mean crippling, crippling.”[10]  Previously, in the first debate, when Trump was asked about cyber security he indicated that we should do better than anybody else. We have to be tough on cyber and cyberwarfare, even though the security aspect of cyber is very difficult.[11]  Some good observations but a little light on substance.

Trump indicated that US cyber security issues/areas include the following:

• Government
• Business
• Trade secrets
• Citizen’s sensitive information
• Attacks such as JPMorgan Chase, eBay, and Target
• Trump alluded to the OPM hack and the extensive data that was contained within the SF-86 forms
  • Trump equated data related to FBI background checks that was exfiltrated during this attack is a veritable “treasure trove” of information
  • Also indicating that this data can serve as the basis for blackmail and “other reasons by the enemy”
• Identity theft
• Financial laundering
• Ransom and ransomware

While not directly mentioning the ongoing issue with attribution, Trump did say that the US must develop the ability to track down and incapacitate those responsible for cyberattacks.[12] Trump further stated that a team should be created that includes the best civilian, military and private cyber security experts to review our cyber security systems and technologies.  Said team would begin with the most sensitive systems, eventually analyzing as much as possible and then securing all of these systems.  This review, assessment, and hardening would include internal monitoring, attack and penetration testing, investigations into suspected hacks or rogue employees, and identity protection services for government employees. Part of this will be accomplished by developing continuing education and training programs so that cyber security experts stay up to date and users also remain abreast of the latest developments.

Encryption

It seems there is very little to go on here, save some remarks that Trump made back when the FBI was trying to get Apple’s assistance in unlocking an iPhone used by the San Bernardino terrorists (see the embedded video above).  Trump said that Apple should be boycotted until they decrypt it or help the Feds.

It seems somewhat paradoxical that the self-proclaimed quintessential “businessman” would openly call for a boycott of a bellwether U.S. technology company; That, however, is a topic better suited to a different style of blog.   From a strictly legal standpoint, using something such as the all-writs-act to compel Apple to render assistance would likely have a greater Constitutional and statutory basis and may have been a more appropriate path to take versus advocating a boycott of a private U.S. company.

Analysis — Trump:

Trump mentioned a number of issues directly and alluded to several more. One of the key aspects of cyber security defense and counter cyber-operations is the ability to tackle the attribution problem.  The ability to definitively identify the source and identity of a cyber attack is of paramount importance and is much more difficult than in traditional warfare.  The ability to leverage encrypted tunnels and IP spoofing and masking (amongst other means) allows state and non-state actors to obfuscate their source addresses thereby making it extremely difficult to ascertain exactly “who” is behind any given attack.  Furthermore, in the world of cyber, even if signatures and styles give clues as to the “who”, it may not allow you to pinpoint the geographic location of the attacker(s).  Merely being able to say that “we believe this attack may have originated from China” is insufficient to then state that something was a state action versus a non-state action and to further isolate the attack to a specific region, let alone a specific office, home, or government building.

Attribution then is one of the greatest issues we face in the realm of cyber, if you cannot identify the source of an attack, then having extensive offensive capabilities is of no consequence.  Once you couple the issues of attribution with the asymmetric world in which we live, the problem intensifies.  Even if you do solve the attribution enigma you are still faced with the prospect that offensive cyber or conventional weapons have little to no deterrent effect based on the source of many of the “rogue” attacks.  Of even greater significance may be the ability of developing nation-states to rely on multi-pronged attacks wherein the first wave consists of a debilitating cyber-attack followed by conventional warfare.  Imagine if China, Russia, North Korea, or Iran were to launch a cyberattack against our critical infrastructure, and in the days and weeks following that launched more conventional forms of warfare.  We would likely be ill-equipped to deal with a crippled infrastructure and a conventional battle simultaneously.[13]

Here too, it seems there are a lot of comments and ideas at a very high level with no real form nor substance.  Building greater offensive cyber capabilities is wonderful but that does not help deterrence when facing the issues of asymmetrical cyber warfare.  It would be nice to see a solid plan that includes understanding the limitations of technology and realizing that attacks ranging from ransomware to malware, to spoofing, all too often turn on the human element.  Thus, until we engender better knowledge transfer we are going to continue to fall victim to attacks, some of which are technologically sophisticated and some of which rely almost solely on social engineering.

Overall

It is difficult to reconcile the two candidates. One speaks of lofty ideals in the realm of cyber and public discourse while acknowledging the fact that some technology users are focused on nefarious activities.  The other candidate talks about striking back and getting tough on cyber, without ever developing a process through which malfeasors can be properly identified.

Neither candidate talks candidly about the hundreds of thousands of unfilled cyber security jobs and a clear plan to invest in and push cyber education in the K-12 framework (although Clinton has indicated that STEM programs should be bolstered and that every child should be given the opportunity to complete coursework in computer science – but not specific to Cyber security).[14]  Each candidate has some talking points on cyber security, but, as is often the case with high-level politics, there is little actual substance.

From the one candidate’s perspective, it would be difficult during the campaign to outline tangible cyber security activities since anything proposed is likely to be contrasted with practices which were actually employed while in public service.  Meanwhile, the other candidate has little incentive to do a deep dive, because cyber security is so poorly understood that it lacks mass appeal beyond merely uttering the words “cyber security.”

Consequently, the salient points seem to be that we have an unknown unknown and a known unknown.  Trump’s actual cyber security practices, as well as any that he might implement if elected, are nebulous at best. We know neither what he has done, or what he will do, and have very little in terms of concrete proposals.  Clinton’s track record on cyber security has received significant attention; what is unclear is what, if any lessons were learned from that and which would be applied towards a national directive on cyber security were she to be elected.

Ultimately, one need only skim the myriad news articles over the past several months to conclude that we face a pervasive cyber security issue.  As we move to the Internet of Things (IoT), and technology permeates every aspect of our lives, the asymmetrical issues increase exponentially.  We are becoming increasingly dependent upon technology for every facet of our daily lives. We often consider the implications of losing the grid, or loss of internet connectivity.  Imagine if we were merely to lose the ability to use GPS location data.  How many millennials are unable to navigate using actual maps, or merely by ascertaining their positional data through geographic features and landmarks?  The more dependent we become on technology, the easier it becomes to launch a crippling attack from which many of us lack the skills and wherewithal to persevere.  We should introduce basic cyberhygiene practices in the K-12 system and simultaneously teach traditional skills (something as innocuous as being able to locate true North could prove useful).  This might also have the advantage of showing people that as convenient as technology makes our everyday lives, it is possible to exist in the absence of it.  Perhaps a more holistic approach to life will help people to consider their digital footprints and the reasons and rationale for safeguarding their personal data — a small step, but a step nonetheless in the right direction.  After that, we can work on cyber weapons so we can launch crippling cyber attacks.[15] We also believe that encryption should not be viewed in a binary fashion as either good or evil.  If one views privacy as a fundamental right, then it seems mutually exclusive to indicate that you are in favor of the Constitution and also in favor of encryption back-doors or law enforcement workarounds. As we shift into a more tech-focused world we seem to be moving away from conventional intelligence gathering and investigative tools.  Once we allow a government intrusion into our data via weak or “master-key” encryption we negate the safeguards put in place to protect us from the very authoritarian regime from which the revolutionaries broke.  In a digital world, we depend on encryption to ensure our most basic functions, and providing a mechanism through which law enforcement can crack our encryption moves us closer and closer to the type of state that from which our founder’s sought to distance themselves.  Bad people will use good to further their goals, that is an axiom as old as humankind itself.  We cannot abdicate our personal liberties and our rights to privacy, for in so doing we may prevent some attacks but we will have already lost the war.

 

[1] Thorin Klosowski, Hillary Clinton and Donald Trump’s Cybersecurity Platforms, Compared LifeHacker (Aug. 4, 2016), http://lifehacker.com/hillary-clinton-and-donald-trumps-cybersecurity-platfor-1784790979.

[2] Katie Bo Williams, Clinton: Cybersecurity will be challenge for next president TheHill (Feb. 3, 2016), http://thehill.com/policy/cybersecurity/268121-clinton-cybersecurity-one-of-the-most-important-challenges-for-next.

[3] Richard A. Clarke & Robert K. Knake, Cyber War: The Next Threat to National Security and What to do About it 226 (EPub Edition, March 2010).

[4] Chris O’Brien, Here’s what Trump and Clinton had to say about cybersecurity and cyberwarfare in the debate VentureBeat (Sep. 27, 2016), http://venturebeat.com/2016/09/27/heres-what-trump-and-clinton-had-to-say-about-cybersecurity-and-cyberwarfare-in-the-debate/.

[5] Hillary Rodham Clinton U.S. Sec’y of State, Remarks on Internet Freedom, http://www.state.gov/secretary/20092013clinton/rm/2010/01/135519.htm (Jan. 21, 2010).

[6] Id.

[7] Id.

[8] Clinton, Remarks on Internet Freedom.

[9] Daniel White, Read Donald Trump’s Remarks to a Veteran’s Group (Oct. 3, 2016) Time, http://time.com/4517279/trump-veterans-ptsd-transcript/.

[10] Id.

[11] O’Brien (Sep. 27, 2016).

[12] Id.

[13] See Christopher Folk Cyber Round Up: Iranian Cyberattack on NY Dam was “Shot Across the Bow” (Mar. 16, 2016) CyberSecurity Law and Policy http://blog.cybersecuritylaw.us/2016/03/16/cyber-round-up-iranian-cyberattack-on-ny-dam-was-shot-across-the-bow-possible-amex-data-breach-are-data-breaches-on-the-rise/.

[14] Hillary Clinton’s Initiative on Technology & Innovation (last accessed Wed., Oct., 5, 2016 at 10:08 P.M), https://www.hillaryclinton.com/briefing/factsheets/2016/06/28/hillary-clintons-initiative-on-technology-innovation-2/.

[15] Christopher W. Folk, Input to the Commission on Enhancing National Cybersecurity (Sep., 9, 2016) https://www.nist.gov/sites/default/files/documents/2016/09/15/c.folk_rfi_response.pdf (All levity aside, I actually responded with some comments on potential actions we might want to consider in the context of cybersecurity).

 

Cecilia Santostefano

Since its discovery in 1930, it has been difficult for astronomers to observe Pluto because of its small size. NASA has utilized telescopes like the Hubble to learn about Pluto in the past, but the latest mission involves the New Horizons spacecraft. Images reveal the planet covered in water-ice mountains, plains of frozen nitrogen, and blue skies may also have clouds.[1]

Following the cancellation of the Pluto Fast Flyby and the Pluto Kuiper Express, the National Aeronautics and Space Administration (NASA) developed another interplanetary space probe to explore Pluto. This spacecraft was named New Horizons. While planets like Earth and Venus are classified as “rocky planets,” Pluto and its largest moon Charon are categorized as “ice dwarfs.”[2] This is because they have solid surfaces, but unlike Earth, Venus, and other terrestrial planets, a large portion of their mass is icy material.[3]

The mission to Pluto addressed three objectives: (1) what Pluto, Charon, and the other four moons look like, are made of, and the nature of Pluto’s atmosphere, (2) variability in temperature to track activity, and (3) the radii, masses, densities, and orbits of Pluto and the other moons.[4] To reach its objectives, the spacecraft was equipped with a radioisotope thermoelectric generator (RTG) to measure temperature and a long-range reconnaissance imager (LORRI) for high resolution images. New Horizons launched from Florida back in 2006 and reached Pluto in 2015. As of October 2016, New Horizons completed its Pluto flyby.

During the flyby in July 2015, New Horizons obtained images of a primarily cloud-free Pluto.[5] At an annual meeting of the American Astronomical Society’s planetary scientists in October, principal researcher Alan Stern presented images of seven separate cloud candidates that imply clouds form at dusk and dawn on Pluto.[6] Not a vast amount is known about this planet, but scientists are already aware that the level of brightness indicates surface activity on the planet. Scientists are also already aware of layers of hazes (which are not clouds) up to 200 km above the surface. This evidence now suggests condensation.[7] The seven cloud candidates are, however, different than the clouds found on Earth because they do not appear layered.[8]  Stern reported “. . . individual, discrete potential cloud features” are seen.[9] Since the potential clouds are so close to Pluto’s surface, nothing can be confirmed without further investigation. Stern informed fellow scientists confirmation requires   “. . . more instrumentation and more time.”[10]

New Horizons wrapped up its Pluto flyby in mid-October and is continuing to other regions in the Kuiper Belt. The mission was extended over the course of summer 2016, and the spacecraft is set to continue through the Kuiper Belt in search of information as to how Pluto fits into the solar system.

 

[1] Kenneth Chang, Pluto May Have Clouds, New Data Indicate, NY Times, (Oct. 18, 2016), http://www.nytimes.com/2016/10/19/science/pluto-clouds.html?rref=collection%2Fsectioncollection%2Fscience&action=click&contentCollection=science&region=rank&module=package&version=highlights&contentPlacement=5&pgtype=sectionfront.

[2] Brian Dunbar, New Horizons: The First Mission to the Pluto System and the Kuiper Belt, National Aeronautics and Space Administration, (Aug. 24, 2015), https://www.nasa.gov/mission_pages/newhorizons/overview/index.html.

[3] Id.

[4] Science Objectives, Space Flight 101, (2016), http://spaceflight101.com/newhorizons/science-objectives/.

[5] Chang, supra note 2.

[6] Alan Yuhas, Nasa Findings hint of clouds on Pluto during New Horizons mission, The Guardian, (Oct. 18, 2016, 5:48 PM), https://www.theguardian.com/science/2016/oct/18/nasa-spacecraft-new-horizons-hints-clouds-on-pluto.

[7] Id.

[8] Id.

[9] Chang, supra note 1.

[10] Yuhas, supra note 6.

Samantha Cirillo

On Thursday October 27th, federal officials delivered a ruling that was a major win for online consumer privacy. The Federal Communications Commission (FCC) issued new rules that require internet providers to receive explicit consent from consumers before using their browsing data. Before the new rules, internet providers were able to access consumers’ data including: internet history, app usage, mobile location data, financial information, content from emails, and health data. They would they sell the data to advertisers without the consumer’s permission. The new rules require internet providers to inform customers on what data they are collecting and also alert them of any data breaches.

Although these rules are a huge win for online privacy, there has been serious push back from Republican FCC officials and major businesses like AT&T, Verizon, and Comcast. The main reason internet providers want to collect consumers’ information is for targeted advertising. Because the rules only apply to internet providers, arguments have been made that the ruling provides an unfair advantage to companies such as Google and Facebook that still able to make large profits off selling consumer information. Republican FCC officials argue that the regulation should be uniform and should apply to all companies on the web.

FCC Chairman, Tom Wheeler has responded to these arguments by stating that ultimately “It is the consumer’s’ information. How it is used should be the consumer’s choice”. He has also repeatedly stated that he declines to extend the new rules to individual websites such as, Google and Facebook.

Brian Fung and Craig Timberg, The FCC just passed sweeping new rules to protect your online privacy, T?? W????????? P??? (Oct. 27, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/10/27/the-fcc-just-passed-sweeping-new-rules-to-protect-your-online-privacy/

Lishayne King

With the advent of technological advances, many are beginning to wonder if “privacy” still remains. The most intimate details of a person’s life may now become public at the click of a button or with the snap of a picture. One platform that illuminates the questionable privacy of our daily lives is social media. It is not only tempting, but highly rewarding and gratifying for many to watch their “likes” increase and the number of “comments” on their posts multiply. These instant gratifications fail to warn us of their legal danger and consequences, however, and likelihood for decreasing the chances of success in the courtroom. Against this backdrop of increasing concern, it is important for legal practitioners to be aware of and prepared to resolve the ill effects of social media for their clients.

One lawyer recounted the tale of a client, who at first, appeared to have a strong case for wrongful termination against a previous employer. It was not until the courtroom that this lawyer became aware of the mistakes made by his client on social media. His client had claimed and provided sufficient evidence demonstrating that her former employer’s abusive practices significantly impacted her mental health. Upon further questioning by the opposing counsel, it was revealed that a Facebook post from this client detailed a weekend trip to a Caribbean resort all while this client “was suffering from generalized anxiety disorder, post-traumatic stress syndrome and depression.” This post, along with additional information this client failed to relay to her lawyer, served to transform a relatively strong case to a weak one.

In another case, a concrete company was sued for the wrongful death of the plaintiff’s wife after the truck rolled onto her car. The company’s discovery request included the production of the information on the plaintiff’s Facebook account. Before delivering the information on the plaintiff’s account, his attorney instructed him to remove 16 photos. After examination of the plaintiff’s IP address, it was determined that 16 photos were removed, contrary to the statements made by the plaintiff and his lawyer. In the end, the plaintiff’s lawyer was required to pay over $500,000 in reasonable expenses and attorneys fees to the defendants, for violations which included “fraudulent[ly] signed discovery responses” and dishonesty by the plaintiff’s attorney “regarding the cause of the omission.” If that was not enough, the plaintiff was instructed to pay $180,000 for following the instructions of his attorney, and the $8.6 million verdict was reduced by over $4 million due to “inappropriate conduct.”

So what are the main takeaways? It is imperative that legal practitioners do the following:

1. Although the conversation may seem intrusive and/or uncomfortable, ask your client whether or not he/she has posted information to his/her social media account that could be relevant to your claim. Emphasize the importance of disclosing this information earlier, rather than later.
2. Do not, by any means, instruct your client to remove information from his/her social media account after the information has been obtained through discovery. However unpleasant and problematic the information may be, it will be better for both yourself and your client if you remain honest and work to deal with problems that may arise from the distasteful information, rather than pretending that the information never existed.
3. Remember your Model Rules of Professional Conduct. Be honest with your client – if the information on his/her social media account presents problems, discuss them with your client. Work through strategies and solutions for dealing with the problematic content. Both you and your client will be better for it.

Sources:

Kurt Olson, The Verdict Is In: Social Media Can Cause Legal Catastrophes, Law Practice Today (Feb. 2013), http://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-archives/february13/the-verdict-is-in.html

Antigone Peyton and Ernest Svenson, Social Media for Litigators, Law Practice Today (June 2012), http://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/june12/social-media-for-litigators.html

Justin Farooq

More than 30 companies, including Google, Intel Corp. and Visa, have filed amicus briefs urging the Supreme Court to end laches as a defense in patent cases.[1]  The case in question is SCA Hygiene Products AB et al. v. First Quality Baby Products LLC et al.  SCA argues that “because Section 286 of the Patent Act of 1952 sets a six-year statute of limitations for patent infringement claims, First Quality Baby Products LLC is wrong to claim that laches, which bars legal remedies when a plaintiff is found to have unreasonably delayed bringing a suit, can be utilized in the instant case.”[2]  This matter was settled regarding copyright in 2014 by Petrella v. Metro-Goldwyn-Mayer Inc. et al.[3]  The Supreme Court held there that laches cannot be used as a defense in copyright cases.[4]  The justices reasoned in Petrella that since Congress established that window, laches may not be used to bar claims filed within that period.  SCA argues that, since Section 286 of the Patent Act of 1952 contains a similar time limits provision, laches should also not be used in patent matters.[5]

First Quality Baby Products argues that Congress’ intent was different in enacting the Copyright Act and Patent Act, and further they argue that while copyright plaintiffs must establish that the alleged infringer copied the plaintiff’s work, patents can be infringed without the infringer’s realization.[6]  Most courts have upheld laches as a defense in patent cases but not copyright cases.[7]  It is now time for the Supreme Court to decide this issue once and for all.    

 

[1] Kevin Penton, Supreme Court Urged To End Laches Defense In Patent Cases, Law 360, https://www.law360.com/ip/articles/852823/supreme-court-urged-to-end-laches-defense-in-patent-cases (October 19, 2016, 4:13 PM).

[2] Id.  See also, 35 U.S.C.A. § 286.

[3] See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1970 (2014).

[4] Id.

[5] Penton, supra note 1.

[6] Id.

[7] Bill Donahue, High Court Gives ‘Raging Bull’ Copyright Suit 1 More Round, Law 360, http://www.law360.com/articles/538794/ (May 19, 2014, 10:17 AM).

Cecilia Santostefano

With climate change a dividing issue in the recent presidential election, biomimicry has received a large amount of media attention. Biomimicry studies and then translates nature into human strategy.[1] There are many designs that exist today to monitor how an ecosystem is operating, so that man-made technology may mirror and improve that given environment.

Eighteen years ago, Dr. Helmuth developed robotic mussels to place among the living mussels nearby. When asked about his tiny robots Dr. Helmuth replied, “you won’t know where to look if you only look from the point of view of a human.”[2] The mussels contain thermometers and data loggers that collect temperatures as the mussels experience them – whether it be from the sun shining or the wind blowing above.[3] The thermometers are then able to detect and document how the animals nearby are reacting to the changing climate.[4]

By placing these mussels in various “hot spots” and not just the locations predicted to be affected by global warming, Dr. Helmuth’s tiny robots have directly rebutted the widely adopted theory that only animals and plants living at the edges of a habitat will be most affected by rising temperatures.[5] As of today, it appears to be another example of how biomimicry is being used to combat climate change.

 

[1] The Biomimicry Institute, Message to COP21 leaders: Need solutions? Ask nature., Biomimicry Institute, (Dec. 1, 2015), https://biomimicry.org/message-to-cop21-leaders/#.WAZkqDKZNao.

[2] Tatiana Schlossberg, Robotic Mussels Track Rising Temperatures for Climate Research, NY Times, (Oct. 17, 2016), http://www.nytimes.com/2016/10/18/science/robotic-mussels-climate-change.html?rref=collection%2Fsectioncollection%2Fscience&action=click&contentCollection=science&region=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront&_r=0.

[3] Schlossberg, supra note 2.

[4] Id.

[5] Id.