The National Law Forum

APPLY NOW: Government of District of Columbia Now Hiring: Supervisory Attorney Advisor (Deputy General Counsel)

GOVERNMENT OF THE DISTRICT OF COLUMBIA

DEPARTMENT OF GENERAL SERVICES

The District of Columbia’s Department of General Services is seeking candidates for the Supervisory Attorney Advisor (Deputy General Counsel) position. The Deputy General Counsel will specifically provide management and support in the following areas: real estate transactions, leasing, real estate portfolio management, energy, sustainability and green initiatives and other agency operational issues as needed. The Deputy General Counsel reports to the General Counsel and will supervise at least two other attorneys.

The incumbent of this position will provide legal counsel and support to DGS in the following activities:

negotiating and preparing commercial leases and other real estate documents—rights of entry, license agreements, etc.;
handling real estate transactions;
providing legal support for lease administration, including preparing amendments, work agreements, estoppels, SNDA’s, extension requests, termination notices, default notices;
providing litigation support;
advising the agency in matters related to energy, sustainability and green initiatives; and
providing assistance, as needed, in all operational areas of the agency including: contracts, procurement, facility management, security services and human resources.

A successful candidate must:

have a law degree;
be a member of the District of Columbia Bar Association or eligible for waiver into the bar. If selected and not a member of the District of Columbia Bar, he/she must apply for membership and show proof of such prior to the commencement of employment.
have at least 10 years of experience in the following areas: local government, real estate, leasing and/or procurement law.
have the skill and ability to gather, develop, evaluate and analyze investigative information from a variety of sources to determine compliance with District government and federal statutes, rules and regulations.
have experience in negotiating, drafting and reviewing commercial real estate documents including drafting of commercial leases and land purchase and acquisition contracts.

How to Apply:

Applications for this vacancy must be submitted online at www.dchr.dc.gov for consideration. When completing applications, candidates submit resume and respond to specific ranking factors that will be used in the evaluation process. In responding to the ranking factors, please describe specific incidents of sustained achievements from your experience that show evidence of the level at which you are applying. You may refer to any experience, education, training, awards, outside abilities described in ranking factors. The information given in response to the ranking factors should be complete and accurate to the best of your knowledge, FAILURE TO RESPOND TO ALL RANKING FACTORS WILL ELIMINATE YOU FROM CONSIDERATION.

Deadline: Closing date for the vacancy announcements until 11:59 pm on December 12, 2014.

Contact Information: All inquiries related to employment and job applications should be directed HR Answers, (202)442-9700—please reference agency (DGS) and vacancy number (26253).

2000 14^th St. NW, 8^th Floor Washington DC 20009 |Telephone (202) 727.2800 | Fax (202) 727-7283

A New Judge is in Town to Rule on I-9 Violation Penalties

Last week Stacy Stiffel Paddack was announced as the newest Administrative Law Judge (ALJ) at the Office of the Chief Administrative Hearing Officer (OCAHO). Judge Paddack will rule on the proper penalty in immigration compliance (Form I-9 violations) cases brought by U.S. Immigration and Customs Enforcement (ICE). Welcome aboard, Judge Paddack.

The statutory range for I-9 violations is $110 – $1100 per defective Form I-9. In calculating the proposed penalty amount for I-9 violations, ICE divides the number of violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage. This percentage is used as a baseline fine amount, with deviations available depending on factors such as whether or not this is the employer’s first offense, size of the employer, and whether unauthorized aliens were working for the employer. ICE applies a mechanical calculation when determining the penalty amount and there is little discretion exercised benefitting the employer. ICE’s standard fine amounts are listed in the table below:

	Standard Fine Amount
Substantive Verification Violations	1st Offense $110 – $1100	2nd Offense $110 – $1100	3rd Offense + $110 – $1100
0% – 9%	$110	$550	$1,100
10% – 19%	$275	$650	$1,100
20% – 29%	$440	$750	$1,100
30% – 39%	$605	$850	$1,100
40% – 49%	$770	$950	$1,100
50% or more	$935	$1,100	$1,100

OCAHO is not bound by ICE’s methodology, and ALJs like Judge Paddack can consider factors not included in ICE’s chart when determining the proper penalty amount, such as ability to pay the proposed penalty and any deterrent effect of the proposed penalty, and can weigh the different factors unequally. A review of OCAHO decisions reveals that the final penalty amount ordered by OCAHO is often significantly lower than the figure on the ICE penalty chart.

ARTICLE BY

Scott T. Decker

Greenberg Traurig, LLP

More GMO Woes: Another Corn Exporter Sues Syngenta for its Failure to Isolate its GMO Corn

Last month, Archer Daniels Midland Co. (“ADM”) joined a slew of corn exporters and other stakeholders who have sued Syngenta based on allegations that China rejected these exporters’ products because Syngenta’s genetically modified corn seed, which contains a trait that China has not yet approved for import, was not kept separate from the plaintiffs’ products.

Corn Thrasher

Syngenta’s corn seed contains MIR 162, a patented genetically modified (“GMO”) trait that may protect corn crops from insect damage. This corn is also known as “Viptera corn.” The ADM suit against Syngenta, which was filed in Louisiana state court on November 19, alleges that Syngenta was negligent in marketing its GMO corn.

The complaint explains that although Syngenta told the U.S. Department of Agriculture that it would put into place programs to keep the GMO corn separate from other strains so that it would not end up on ships headed for countries that have not yet approved the import of foods containing MIR 162. Syngenta has not implemented any such programs.

One major issue stemming from Syngenta’s alleged failure to isolate GMO corn is that MIR 162 has not been approved in all major export markets, including China, the world’s second-largest consumer of corn behind the United States. Therefore, when the Syngenta seed is mixed with other corn seed during shipment, as corn in the United States is “commoditized,” or mixed together, during export, the entire lot is rejected when it reaches China because MIR 162 has not yet been approved for import. Over the past year, China has rejected over one million tons of U.S. corn and corn products because they contained MIR 162.

ADM, which alleges “substantial economic losses and damages” due to these rejections, joins over one hundred farmers and corn exporters who have filed lawsuits against Syngenta for damages stemming from Syngenta’s failure to segregate its GMO corn seed. For example, corn exporters Cargill Inc. and Trans Coastal Supply recently sued Syngenta for damages suffered due to China’s rejection of their corn shipments.

Additionally, groups of Midwestern farmers filed proposed class actions in Nebraska and Illinois federal courts in October 2014, in which they accused Syngenta of continuing to market and sell seeds containing MIR 162 and misleading farmers into planting this GMO corn alongside the rest of their corn crops. In response to these prior suits, Syngenta has continually stated that these cases have no merit. For example, in a recent conference call with analysts, Syngenta’s CFO stated that the company believes that it has complied with all laws, rules, and regulations in all of the countries in which it sells its GMO corn.

As we’ve explored in past posts, GMO foods continue to be controversial in the United States. The ADM case is just one example of how the development and use of GMO foods in the United States can have far-reaching effects that extend beyond American consumers and legislation and into international trade. Stay tuned for updates regarding Syngenta’s response to the ADM complaint.

ARTICLE BY

Michelle Gillette

Dominique L. Windberg

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

You Better Watch Out! New Legal Risks for Hosted Web Videos

Websites are facing lawsuits alleging that the information collected and transmitted about viewers of their video content violates the Video Privacy Protection Act (VPPA), a 1988 law originally aimed at prohibiting video rental companies from disclosing the video tape rental records of consumers. In recent years, federal courts have held that the law applies to all video, regardless of technical format. Even more recently, plaintiffs are using the law to apply to website operators that host streaming video.

The Video Privacy Protection Act

The VPPA prohibits a video tape service provider from knowingly disclosing, to any person, personally identifiable information concerning any consumer of the provider without the consumer’s informed, written consent. VPPA provides for a private right of action, including statutory damages not less than $2,500 per consumer plus attorneys’ fees. Ouch.

Personally identifiable information for purposes of the VPPA means information that identifies a person as having requested or obtained specific video materials or services from a video tape service provider, i.e., any information that ties an identifiable viewer to a video.

Service providers to which the law applies are also subject to record destruction requirements. Personally identifiable information must be destroyed as soon as practicable, but not later than one year from the date that the information is no longer necessary for the purpose for which it was collected and there are no pending court orders or requests from law enforcement.

Risks for Streaming Video

The statutory damages prescribed in the VPPA, combined with the award of attorneys’ fees, have led plaintiffs’ attorneys to argue for the statute’s application to streaming video. Courts have generally obliged, finding that the VPPA protects viewers of videos regardless of the medium of transmission. Plaintiffs have then sought to prove violations of the VPPA by arguing that by sharing usage statistics with data analytics vendors such as comScore, streaming video providers are disclosing personally identifiable information in violation of the statute. How much consumer information may be permissibly shared with analytics vendors under the law and in what form are far from settled legal issues, but the key question in each case is, can the data shared with third parties, taken together, personally identify viewers with their video choices?

In the most recent ruling on the applicability of the VPPA to streaming video, a federal judge in Seattle ruled that the sharing of anonymous data alone, in the form of a unique serial number to a streaming video player, does not violate the VPPA, but if shared along with other correlative data capable of personally identifying viewers in combination, the provider could potentially be liable. Similarly, federal judges have held that other anonymous unique identifiers, including mobile device IDs or cloud service IDs, even when combined with video viewing history, do not personally identify users and therefore their transmission is not a violation. However, courts have also suggested that other login information, such as a social media ID provided through a “Like” button on a website, may constitute personally identifiable information subject to the VPPA. A provider may also be liable for information transmitted in cookies placed on its website by third parties, even if the provider cannot read or control the contents.

Although large media companies are the obvious targets for plaintiffs’ lawyers, with potentially millions of separate violations in the case of the largest services, any website or other online service that provides video content to consumers is potentially subject to legal risks under the VPPA. Companies whose websites provide even incidental video content should review their data collection and retention practices for risks that third parties with access to user data may be able to tie personally identifiable information to video viewing history. Some questions to consider include the following:

Is personally identifiable information collected when a user views hosted video content?
Is personally identifiable information passed to third-party advertising services or analytics vendors?
Do analytics vendors or advertising services have direct access to user information? Is that information capable of being correlated with video viewing history?
Is video viewing history stored in cookies? If so, is that information shared with advertisers or otherwise persistent across third-party services?
Are any social media–sharing features, such as a “Like” button, presented with video content?

QVC Sues Shopping App for Web Scraping That Allegedly Triggered Site Outage

Operators of public-facing websites are typically concerned about the unauthorized, technology-based extraction of large volumes of information from their sites, often by competitors or others in related businesses. The practice, usually referred to as screen scraping, web harvesting, crawling or spidering, has been the subject of many questions and a fair amount of litigation over the last decade.

However, despite the litigation in this area, the state of the law on this issue remains somewhat unsettled: neither scrapers looking to access data on public-facing websites nor website operators seeking remedies against scrapers that violate their posted terms of use have very concrete answers as to what is permissible and what is not.

In the latest scraping dispute, the e-commerce site QVC objected to the Pinterest-like shopping aggregator Resultly’s scraping of QVC’s site for real-time pricing data. In its complaint, QVC claimed that Resultly “excessively crawled” QVC’s retail site (purpotedly sending search requests to QVC’s website at rates ranging from 200-300 requests per minute to up to 36,000 requests per minute) causing a crash that wasn’t resolved for two days, resulting in lost sales. (See QVC Inc. v. Resultly LLC, No. 14-06714 (E.D. Pa. filed Nov. 24, 2014)). The complaint alleges that the defendant disguised its web crawler to mask its source IP address and thus prevented QVC technicians from identifying the source of the requests and quickly repairing the problem. QVC brought some of the causes of action often alleged in this type of case, including violations of the Computer Fraud and Abuse Act (CFAA), breach of contract (QVC’s website terms of use), unjust enrichment, tortious interference with prospective economic advantage, conversion and negligence and breach of contract. Of these and other causes of action typically alleged in these situations, the breach of contract claim is often the clearest source of a remedy.

This case is a particularly interesting scraping case because QVC is seeking damages for the unavailability of their website, which QVC alleges to have been caused by Resultly. This is an unusal theory of recovery in these types of cases. For example, this past summer, LinkedIn settled a scraping dispute with Robocog, the operator of HiringSolved, a “people aggregator” employee recruting service, over claims that the service employed bots to register false accounts in order to scrape LinkedIn member profile data and thereafter post it to its service without authorization from Linkedin or its members. LinkedIn brought various claims under the DMCA and the CFAA, as well as state law claims of trespass and breach of contract, but did not allege that their service was unavailable due to the defendant’s activities. The parties settled the matter, with Robocog agreeing to pay $40,000, cease crawling LinkedIn’s site and destroy all LinkedIn member data it had collected. (LinkedIn Corp. v. Robocog Inc., No. 14-00068 (N.D. Cal. Proposed Final Judgment filed July 11, 2014).

However, in one of the early, yet still leading cases on scraping, eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000), the district court touched on the foreseeable harm that could result from screen scraping activities, at least when taken in the aggregate. In the case, the defendant Bidder’s Edge operated an auction aggregation site and accessed eBay’s site about 100,000 times per day, accounting for between 1 and 2 percent of the information requests received by eBay and a slightly smaller percentage of the data transferred by eBay. The court rejected eBay’s claim that it was entitled to injunctive relief because of the defendant’s unauthorized presence alone, or because of the incremental cost the defendant had imposed on operation of the eBay site, but found sufficient proof of threatened harm in the potential for others to imitate the defendant’s activity.

It remains to be seen if the parties will reach a resolution or whether the court will have a chance to interpret QVC’s claims, and whether QVC can provide sufficient evidence of the causation between Resultly’s activities and the website outage.

Companies concerned about scraping should make sure that their website terms of use are clear about what is and isn’t permitted, and that the terms are positioned on the site to support their enforceability. In addition, website owners should ensure they are using “robots.txt,” crawl delays and other technical means to communicate their intentions regarding scraping. Companies that are interested in scraping should evaluate the terms at issue and other circumstances to understand the limitations in this area.

ARTICLE BY

Jeffrey D Neuburger

Proskauer Rose LLP

Social Media Marketing for Lawyers: What It Can Do for You, How to Do It Right

Many attorneys I talk with want to know if social media will deliver real value for the investment in time and effort that it takes to develop and implement a social media marketing program.

Here is what I tell them:

Social media will help you build trust, but it will not make a “bad” reputation better. Social media is a meritocracy – if you’re good, people will know it. Conversely, a bad experience will also get talked about. Building trust is crucial for attorneys, and social media helps you build trust by providing a robust platform for sharing your particular insights and knowledge. Once people trust that, they will use you and recommend you to others.

Social media will get you leads, but it will not turn them into paying clients. People who follow you on Twitter, are a fan of you on Facebook or interact with you in any way on a social network have indicated an interest in what you have to say. These are leads. To capitalize on them and turn them into paying clients, however, requires effort on your part in following up.

Social media will give you visibility, but it will not replace a good client experience. Social media is a 365/24/7 world, allowing you to engage with prospects at any time, and they with you. You must be vigilant about responding to posts and questions the same way you would in responding to a prospect that calls or emails you. Every point of contact is an opportunity to make a great impression.

Social media is the fastest way to build your sphere of influence, but it won’t happen overnight. Your sphere of influence is defined as how many people know (1) who you are, (2) who you help, and (3) why you are different. If you only have 20 people who know enough about you to send you the right referrals, then you are severely limited in how much you will be able to grow your practice. Social media is a long-term play, and you need to commit to spending the time and money (either yours or hiring someone else) to achieve success.

ARTICLE BY

Stephen Fairley

The Rainmaker Institute

I’ve Never Seen ANYTHING Like This Law Firm’s Holiday Card. Never.

I’ve ranted about and railed against boring or clichéd holiday cards for decades, yet nearly every day in December another one or two (or ten) bland and politically correct cards featuring snowy landscapes or skylines, ice skaters, or children’s holiday artwork arrive, unsigned, in my mailbox. <Open. Glance. Toss.>

Today’s mail, however, was pretty interesting. I received just two cards, juxtaposed below. The one on the right was a fairly typical example, from an old friend, a terrific T&E lawyer I’ve known since we were ten years old. Great guy, but I don’t love his annual too-safe “Seasons Greetings” cards.

Two different holiday cards

The card on the left was from California’s Springer & Roberts, “Disability Lawyers You Can Trust ®.”

Disability Lawyers You Can Trust ®

(First, I’ve never liked the “… you can trust” tag lines, because it implies that your competitors are liars or cheats. Plus, I’m immediately wary of anyone who promises that I can trust them. But that’s not the point here.)

The card shows two lawyers dressed up in ballerina costumes while holding (1) a Benefits Law book and (2) a legal pad. Four adorable jammie’d kids, obviously their children are asleep below, “while visions of ERISA lawyers danced in their heads.”

Close-up of Holiday Cards featuring two Attorneys dressed up as Ballerinas

Now THAT is pretty gutsy, and the card certainly caught my attention. I don’t know these lawyers, but I can infer that they’re family-oriented and don’t take themselves too seriously.

The card’s punny headline, “We never dance around insurance companies, and our ERISA litigation is always en pointe!” is pretty forced.

We never dance around insurance companies, and our ERISA litigation is always en pointe!

But overall, you must respect the effort. These lawyers clearly know who they are and their clients apparently like this about them. They’ve broken through the clutter and conveyed their message pretty effectively. They took a big risk, but I think it worked well for them. (I wonder what their card looked like last year? Is this an annual thing? )

while visions of ERISA lawyers danced in their heads

Of course, if you wanted to learn more about them, their website contains 2,000-word biographies, possibly the longest I’ve ever seen (that’s 8 double-spaced pages!). I obviously only skimmed them, but I still got the sense that they’re nice, smart, and dedicated lawyers.

**I’m glad these lawyers sent me their card. And that’s not something I say every day.**

All images are copyrighted.

ARTICLE BY

Ross Fishman

Fishman Marketing, Inc.

HIPAA Considerations In The Event Of Employee Death or Incapacitation

The Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA, acts in part to provide federal protection for identifiable health information retained by covered entities, which includes most businesses that offer company health plans. While many employers have policies and procedures in place to ensure HIPAA compliance in routine, every day matters relating to the management of employee health data, few employers have developed policies or even considered how to manage protected health information in the unfortunate event of employee death or incapacitation.

Employee Benefits Folder

Importantly, HIPAA’s protection of identifiable health information does not expire in the event of incapacitation or even the death of an employee. In fact, HIPAA continues to protect identifiable health information for 50 years after death. Consequently, it is important for employers to know to whom protected health information may be disseminated during this time period in order to continue to ensure compliance and avoid the assessment of steep penalties and fines.

Covered health information for the deceased or incapacitated employee during this time may be released to their legal representative under state law. In most instances involving a diseased employee, this would be the appointed administrator of the deceased’s estate. It is permissible to release protected health information to non-representative family members, including but not limited to spouses, domestic partners, parents, children, or siblings, unless doing so is inconsistent with any prior expressed preference that is known to the covered entity. However, the information released to a non-representative family member must be limited to that information which is relevant to that person’s involvement in the decedent’s or incapacitated employee’s care or payment for care. The regulations leave the determination of this relevancy up to the entity’s “professional judgment.” 45 CFR 164.510(b)(5).

The Department of Health and Human Services gives the following example of what could be released: “For example, a covered health care provider could describe the circumstances that led to an individual’s death with the decedent’s sister who is asking about her sibling’s death. In addition, a covered health care provider or pharmacy could disclose billing information or records to a family member of a decedent who is assisting with closing a decedent’s estate. However, in both cases, a provider generally should not share information about past, unrelated medical problems.” (Click here to directed to The Department of Health and Human Services website.)

Consequently, unless protected information is requested by the legal representative of the deceased’s estate, or the information requested is directly related to the requestor’s involvement in the deceased’s care prior to death or payment for the deceased’s care prior to death, a signed HIPAA release by the legal representative is required prior to release of the protected information. Other exceptions allowing the release of protected health information covering special situations are also available, including the allowance of release to law enforcement to assist in a criminal investigation.

Medical History Questionnaire with Pen

It is important that employers understand their responsibilities to protect identifiable health information covered by HIPAA and develop policies to ensure compliance.

ARTICLE BY

Brandon K. Johnson

McBrayer, McGinnis, Leslie and Kirkland, PLLC

Law Professors’ Letter Advocate that Executive Authority to Extend Deportation Deferrals

On December 3, 2014, NBC News reportedly obtained a November 3 letter written by Shoba Sivaprasad Wadhia, Stephen Legomsky, Hiroshi Motomura, and Michael Olivas – four distinguished immigration law professors. The professors did not take a position on who should be included in the President’s executive action, but instead advocate that the President is not limited in using prosecutorial discretion to individuals whose dependents are lawfully present in the United States. The professors further encourage the Administration to consider the “broad prosecutorial discretion grounded in the Constitution and other laws of the United States.”

Interestingly, this letter preceded the President’s announcement and advocates a broader use of prosecutorial discretion than the Department of Justice’s Office of Legal Counsel. As discussed in another blog post, 17 states are suing the Administration over immigration executive actions.

Obama’s executive action is of major significance to businesses because it includes development of heretofore unavailable mechanisms for certain individuals to gain lawful employment status as well as addressing issues related to individuals in the US in H-1B and H-4 status, such as work authorization for dependent spouses. The potential for up to 5 million individuals gaining lawful work status has broad implications for employers who may discover that existing workers are undocumented or have questions about employing workers with temporary work permission. Employers are cautioned however that implementing regulations may not be issued for several months, so taking a wait and see attitude rather than initiating discussions with their workforce may be the most prudent course at this time.

ARTICLE BY

Nicola Ai Ling Prall

Jackson Lewis P.C.

Court-Appointed Experts: The Future of Litigation?

After black-market dealing for approximately two years in relative anonymity, the secretive Silk Road drug-dispensing site was targeted by U.S. federal authorities and was subsequently shut down. Its alleged owner and operator was arrested.

However, one lawyer and technology expert is claiming that the FBI is lying about how it found the Silk Road server that allowed authorities to seize the site as well as millions of dollars in cyber coinage. It is a complicated question of computer evidence, one which the courts may not be capable of fully understanding.

As the worlds of cybercrime, criminal law, economics, and evidence continue to collide, the technological war between law enforcement and crypto-criminals is requiring prosecutors to enter a new realm of trial advocacy and courtroom tactics – one in which tech experts and computer specialists are vital for judicial clarity and jury instructions.

At a time when iron bars and jailhouse walls can do little to stop crimes and communications from taking place over the intangible and worldwide web connections, stopping cybercrime is one thing, but explaining it to a judge or jury is a much different task.

From Drug Money to Bonafied Bitcoins

Earlier this month, after Silk Road 2.0’s alleged owner and operator, Blake “Defcon” Benthall, was arrested by the FBI, the defendant reportedly began tweeting, just hours after his arrest, from jail and requesting bitcoin donations. Many law enforcement officials didn’t even know what this meant or what the defendant was soliciting.

Bitcoin is a form of cryptocurrency that has garnered international recognition in the last couple of years after it was revealed to be the form of monetary tender used to purchase drugs from the original Silk Road website.

However, the currency also opened the eyes of legitimate businessmen, economists, and financial experts as well – some of whom believe that bitcoin and other cryptocurrencies could become the money form of the future. Our BullsEye blog examined the world of bitcoins in a March 2014 article entitled “What The #!$% Is Bitcoin?”

Three months after that article’s publication, the U.S. Marshal’s Service held an online auction and sold nearly 30,000 of the bitcoins it had seized from Silk Road. At the time, the value was approximately $18 million. They were purchased by American venture capitalist Tim Draper, who has just brought in former SEC Chairman Arthur Levitt as an advisor for his new bitcoin-investor platform rebranded as “Mirror.”

The FBI, however, claims that the auctioned bitcoins that Draper purchased represent less than a quarter of those seized from Silk Road and its alleged mastermind Ross William Ulbricht. Thirty-year-old Ulbricht, of Austin, Texas, is alleged to be the original Silk Road founder, who called himself “Dread Pirate Roberts,” named after the sword-wielding character in the movie The Princess Bride.

In a September 2013 interview with Forbes magazine, the libertarian-minded Dread Pirate Roberts is quoted as saying, “We’ve won the State’s War on Drugs because of Bitcoin.”

Ulbricht was arrested in San Francisco just days after the article was published. He was charged with money laundering, computer hacking, conspiracy to traffic narcotics, and attempted murder of witnesses. His federal trial is expected to begin in January in Manhattan.

The FBI said that it is holding on to the 144,342 bitcoins seized from Ulbricht’s computer until after the resolution of the criminal trial. Presumably, if Ulbricht is convicted and the seizure is deemed valid, the bitcoins will be auctioned off to the public. The approximate value of that cache of bitcoins is over $56 million today.

Cybercrime Confusing Courts

Expert witness and attorney Joshua J. Horowitz, however, claims in court documents released last month that the FBI is lying about how it accessed the Silk Road back-end server. In an 18-page declaration filed with the U.S. District Court for the Southern District of New York, Horowitz writes about “Nginx access logs,” “tarball mtimes” and “phpmyadmin virtual host site configurations,” claiming that he can show that the FBI could not have infiltrated Silk Road via the manner that it claims in the indictment and other court documents.

“[B]ased on the Silk Road Server’s configuration files provided in discovery, former Special Agent [Christopher] Tarbell’s explanation of how the FBI discovered the server’s IP address is implausible,” Horowitz states.

However, much of Horowitz’s technologically sophisticated declaration is unreadable and incomprehensible to an average attorney or jurist. With many of these issues being evidentiary in nature, the question of whether certain physical evidence is admitted at trial will be left up to one judge.

How will a federal judge – many of whom were middle-aged well before Steve Jobs and Steve Wozniak began tinkering away inside a garage in 1976 – be capable of ruling on these evidentiary issues based on court documents and legal arguments that are communicated in a specialized, seemingly foreign, language?

“The critical configuration lines from the live-ssl file are: ‘allow 127.0.0.1; allow 62.75.246.20; deny all;.’ These lines tell the web server to allow access from IP addresses 127.0.0.1 and 65.75.246.20, and to deny all other IP addresses from connecting to the web server.… Based on this configuration, it would have been impossible for Special Agent Tarbell to access the portion of the .49 server containing the Silk Road market data, including a portion of the login page, simply by entering the IP address of the server in his browser,” Horowitz writes, seemingly in an attempt to “dumb down” the explanation of the process.

While the Kentucky-born, Yale-educated U.S. District Judge J. Paul Oetken is very young compared to his life-appointed colleagues, to assume that the 49-year-old jurist (or even his law clerk) can understand even the basics of Horowitz’s argument is unlikely. In order for him to rule on these evidentiary issues properly, one would assume that technology experts will need to be hired by the courts to examine the specific allegations and pretrial disputes.

Unlike the decision to admit or deny expert witnesses in federal court, during which the judge must determine whether the witness is qualified enough to proffer evidence to the jury, the decision to entirely admit or deny the actual physical evidence that was searched and seized is solely up to the judge. In the case of the Ulbricht prosecution, one would assume that allowing the FBI’s evidence gathered from the Silk Road site to be admissible at trial would be far more critical than any other issues presented before the jury once the evidence is deemed admissible.

This will not be an easy decision for the judge.

“The active phpmyadmin configuration file contained in Item 1 of discovery contains the following lines: ‘listen 80; root /usr/share/phpmyadmin; allow 127.0.0.1;.’ These lines direct the phpmyadmin virtual host to listen on port 80, which is the standard port for web traffic, and also tells Nginx to serve files from the phpmyadmin folder. The absence of ‘deny all’ means that it would be possible for an IP address outside the Tor network to connect to the .49 server. However, an IP address outside the Tor network would have been able to access only the login page for phpmyadmin and the files contained in the phpmyadmin folder, not any part of the Silk Road market or even the login screen, as claimed in the Tarbell Declaration,” Horowitz explains further.

If Judge Oetken thinks this is confusing, just wait until the experts start explaining what a bitcoin is.

When it comes to complicated technological issues that are procedural in nature and that are therefore not intended for the jury, will courts now need to hire experts to explain and inform judges? Or do today’s judges really have no business making these highly specialized decisions on evidence?

ARTICLE BY

Ryan Thompson, Esq.

IMS ExpertServices

The National Law Forum

APPLY NOW: Government of District of Columbia Now Hiring: Supervisory Attorney Advisor (Deputy General Counsel)

The incumbent of this position will provide legal counsel and support to DGS in the following activities:

A successful candidate must:

How to Apply:

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I’ve Never Seen ANYTHING Like This Law Firm’s Holiday Card. Never.

**I’m glad these lawyers sent me their card. And that’s not something I say every day.**

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Law Professors’ Letter Advocate that Executive Authority to Extend Deportation Deferrals

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From Drug Money to Bonafied Bitcoins

Cybercrime Confusing Courts

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