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August 19, 2008

Does Security Require the Loss of Liberty?

Drlogo11 This week's Daily Record column is entitled "Does Security Require the Loss of Liberty?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Does Security Require the Loss of Liberty?

Men fight for liberty and win it with hard knocks. Their children,
brought up easy, let it slip away again, poor fools. And their grand-
children are once more slaves
.”
—D.H. Lawrence, “Classical American Literature,” 1922

I prefer liberty with danger to peace with slavery.
—Unknown

By the year 2010, the New York City Police Department plans to photograph and track every vehicle that
enters Manhattan.

The goal of the program, “Operation Sentinel,” is to fight terrorism by collecting data from every vehicle traveling along seven tunnels and bridges —the Brooklyn-Battery, Holland, Lincoln and Queens-Midtown tunnels, and the George Washington, Henry Hudson and Triborough bridges.

Under the plan, all cars and trucks will be photographed and their license plates will be scanned and saved in a database in Lower Manhattan for at least one month. In addition, sensors will be used to scan each vehicle in an effort to detect radioactivity.

Operation Sentinel will work in tandem with a $70 million federal program, “Securing the Cities,” and the Lower Manhattan Security Initiative, a $90 million project that includes implementation of a video
surveillance system around Lower Manhattan that will track thousands of people each day. The stated goal is to have more than 3,000 cameras in place by the end of the year.

The video surveillance system is being referred to as a “ring of steel” and is modeled after the system used in London’s financial district.

That fact is particularly interesting, given that the video surveillance system in place at the time of the terrorist attacks in London did nothing to prevent the bombings. Rather, the surveillance tapes simply assisted authorities in identifying and rounding up suspects after the attacks occurred.

It would seem, then, based on the lessons learned from the London attacks, that any sense of safety provided by constant governmental surveillance of New Yorkers’ movements would be illusory, at best.

The only aspect of the plan that is arguably preventative is the intent to scan vehicles for the presence of radiation. Brief investigations of positive readings likely would be rare and would serve the stated purpose of preventing an attack, rather than assisting in seeking vindication after the fact.

The need for vindication following a terrorist attack is natural and understandable, but where the vast majority of the $160 million likely will serve to achieve vindication, rather than prevention, it seems a bit excessive.

Last week, New York City Mayor Michael Bloomberg defended Operation Sentinel and offered the following rationale for its implementation: “New York City is something special. It’s not just a very big city in this world. It is, in many senses, the iconic city. It represents Western Democracy.”

Bloomberg is correct. New York City, with the Statue of Liberty in its harbor, is a symbol of the very freedom and liberty upon which our great nation was founded.

If we must erode our civil liberties in the name of terrorism, shouldn’t the primary goal in doing so be prevention, not vindication after the fact? Is the loss of our freedoms truly outweighed by the minimal preventative benefits of surveillance cameras and tracking systems? Is the slow demise of our civil liberties in the name of the battle against the nebulous enemy, “terrorism,” truly worth it?

August 18, 2008

The New York Legal Blog Round Up

Blawgs It's Monday and time for the weekly round up of interesting posts from my fellow New York blawgers:

Coverage Counsel:

New York Federal Criminal Practice Blog:

New York Law Blog:

Second Opinions:

Simple Justice:

Wait a Second!:

August 17, 2008

Define That Term #293

Dictionary_2 Last weeks term was effluxion of time, which is defined as:

The normal expiration of a lease due to the passage of time, rather than due to a specific event that might cause the lease to end, such as destruction of the building.

No one guessed this time around.

This week's term is:

means test.

As always, no dictionaries.

August 13, 2008

I'll Be in New York This Weekend

Checkmark I made a last minute decision to take a trip to NYC this weekend.  If any of my New York peeps are interested in meeting for coffee on Saturday, drop me an email.

The New York Legal News Round Up

Latest_news It's the middle of the week and time for the weekly round up of New York law-related news headlines:

August 12, 2008

War on Terrorism Collides with Attorney-Client Privilege

Drlogo11 This week's Daily Record column is entitled "War on terrorism collides with attorney-client privilege."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

******

War on terrorism collides with attorney-client privilege

In an effort to combat the somewhat nebulous concept of “terrorism,” laptops and other digital devices are currently subject to warrantless inspections at the border.

On July 16, in response to demands from civil liberties groups, two Department of Homeland Security agencies, the U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, released policies on border searches of electronic devices, such as laptops and smart phones. The policies obviously are of great interest to any lawyer who travels internationally, in light of ethical obligations and the confidential nature of the information likely stored on such devices.

The polices provide, in relevant part:

[O]fficers may examine … computers, disks, hard drives, and other electronic or digital storage devices…absent individualized suspicion…transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States. ... Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. … [I]f after reviewing the information there is not probable cause to seize it, any copies of the information must be destroyed… To assist CBP in determining the meaning of such information, CBP may seek translation and/or decryption assistance from other Federal agencies or entities. Officers may seek such assistance absent individualized suspicion. … [However] [n]othing in this policy limits the authority of an officer to make written notes or reports or to document impressions relating to a border encounter.

Attorney-Client Privileged Material. Occasionally, an individual claims that the attorney-client privilege prevents the search of his or her information at the border. Although legal materials are not necessarily exempt from a border search, they may be subject to special handling procedures. Correspondence, court documents, and other legal documents may be covered by attorney-client privilege. If an officer suspects that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the officer must seek advice from the Associate/Assistant Chief Counsel or the appropriate U.S. Attorney’s office before conducting a search of the document.

In other words, U.S. officials virtually have unfettered discretion to conduct warrantless, suspicionless laptop and smart phone searches at the border, a policy that seemingly flies in the face of the Fourth Amendment and causes extreme consternation for privacy and civil rights advocates.

Despite the obvious privacy implications of the border search policies, so far both the Fourth and Ninth U.S. Court of Appeals for the Fourth and Ninth Circuits have upheld the legality of such searches, likening the search of a computer’s hard drive to the search of the contents of a briefcase.

However, congressional hearings recently were conducted to examine the constitutionality of such searches and Senator Russell Feingold has said he intends to introduce legislation that would require reasonable suspicion as a prerequisite to border searches of electronic devices. 

The border searches present a unique set of issues for lawyers who travel internationally. While the policies regarding the searches purport to provide for special procedures in the event attorney-client privilege is asserted, there is ample room for the arbitrary exercise of discretion on the part of border
patrol agents when making the determination as to whether a device is subject to the special handling procedures applicable to attorney-client material.

A foolproof method for protecting confidential information has yet to be agreed upon universally. Some computer experts have suggested lawyers consider encrypting confidential client files, while others recommended using Web hosting services for e-mail and file storage in lieu of storing such information on a device’s hard drive.

Until suspicionless laptop searches are declared unconstitutional or otherwise restricted, lawyers traveling internationally will face an unresolved ethical quandary worthy of inclusion on a bar exam.
 

August 11, 2008

The New York Legal Blog Round Up

Blawgs It's Monday, the beginning of a new week that this particular blogger welcomes with open arms, and time for the weekly round up of interesting posts from my fellow New York law bloggers:

New York Attorney Malpractice Blog:

New York Federal Criminal Practice:

New York Personal Injury Law Blog:

Rochester Family Lawyer:

Wait a Second!:

August 10, 2008

Define That Term # 292

Dictionary_2 The most recent term was in terrorem, which is defined as:

Latin meaning "in fear." This phrase is used to describe provisions in contracts or wills meant to scare a person into complying with the terms of the agreement. For example, a will might state that an heir will forfeit her inheritance if she challenges the validity of the will. Of course, if the will is challenged and found to be invalid, then the clause itself is also invalid and the heir takes whatever she would have inherited if there were no will.

Edward Wiest got it right!

Today's term is:

effluxion of time.

As always, no dictionaries, please.

August 06, 2008

The New York Legal Blog Round Up

ILatest_news t's the middle of the week and time for the weekly round up of New York legal news headlines:

August 05, 2008

Wannabe Lawyers Gamble on the New York State Bar Exam

Drlogo11 This week's Daily Record column is entitled "Wannabe Lawyers Gamble on the New York State Bar Exam."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

******

You only get one chance to roll the dice of life, make your bet wisely.”
   —Nathan Detroit, “Guys and Dolls”

Just last week, aspiring lawyers across the state endured the anxiety-ridden hazing ritual of sitting for
the New York bar exam. Some chose the traditional method of writing out their answers longhand. Others, despite last year’s laptop fiasco, which resulted in lost essay questions due to unforeseen technical glitches, made the seemingly brazen choice of utilizing laptops for the essay portions of the exam.

The decision to use laptops might seem perplexing to the technologically-challenged lawyers amongst us
who are risk averse. However, the choice is less puzzling when one considers the environment in which
this younger generation was raised and educated.

The vast majority of recent law graduates grew up around computers and were allowed —some might even say encouraged — to utilize technology as part of the educational process. They were able to take classroom notes on laptops and, in many respects, keyboards essentially replaced longhand.

Thus, not surprisingly, the prospect of taking a written exam as lengthy as the bar exam likely seemed a daunting prospect to many of them.  The option to utilize laptops for the essay portion of the exam was no doubt an appealing alternative to this technologically-savvy bunch despite the obvious riskspresented by this choice.

Of course, this year, the New York State Board of Law Examiners did what any self-respecting groups of lawyers would do on the heels of last year’s debacle —it issued a lengthy disclaimer and required those choosing to utilize laptops to sign a detailed waiver.

The disclaimer provided for the procedure to be followed in the event of a technological failure and placed the burden of risk squarely upon the shoulders of the exam-takers:

Technical difficulties may occur before, during or after the bar examination. Technical difficulties may include hardware or software malfunctions, data saving or retrieval problems, operator errors, upload or download problems, or the loss of electrical power at the examination facility. In the event any technical difficulties occur during the bar examination, you must handwrite your essay answers in the answer books provided and no additional time may be allowed...

If you no longer have access to the computer after the conclusion of the examination, you may not be able to retrieve files which could assist in the recovery of missing portions of your essay answers. Should you choose to rent or borrow a computer, you should arrange to keep the computer until after the results of the examination have been released.

In other words, those who chose to utilize the technology which they had been conditioned to use and
upon which they increasingly relied were essentially penalized in the event of a technical glitch.

Furthermore, the laptop program implemented this year made it nearly impossible for many test-takers to participate, since it inexplicably precluded the use of Apple computers, which are used in increasing numbers by law students. Apple computers were not permitted even though the software used for this year’s bar exam can run on Apple computers. In fact, students taking the Maryland bar exam, which used the same software, were allowed to use Apple computers. 

Suffice to say, I am not envious of the choices presented to my computer-reliant, future colleagues: Abandon the technology upon which you’ve been trained to rely or utilize it at your own risk.

August 04, 2008

The New York Legal Blog Round Up

Blawgs I'm back from the beach, and it's back to work for me and time to round up  posts from my fellow New York law bloggers:

New York Attorney Malpractice Blog:

New York Federal Criminal Practice:

New York Law Blog:

New York Personal Injury Law Blog:

Rochester Family Lawyer:

Simple Justice:

July 29, 2008

TWiL Podcast

Checkmark Recently, I was lucky enough to be invited by the inimitable Denise Howell to participate in one of the most well known legal podcasts, TWiL.   The podcast is now available here.

In TWiL 16, host Denise Howell, Ernie Svenson, Marty Schwimmer, Evan Brown and I discuss iPhone unlocking, FBI child porn baiting, electronic discovery, Viacom v. YouTube, and more.

July 28, 2008

Back in a week

This blogger is at the beach.  Blogging will resume next Monday.

July 24, 2008

Is New York Taxing Out the Elderly?

Erandisi_2_2_2   My evidence for this is completely anecdotal, but it seems like more and more of my clients these days are considering moving out of state for estate tax reasons. 

     New York has an unlimited marital deduction for estate taxes, which means that assets passing from one spouse to the other upon the first death are tax-free.  However, when the second spouse dies, there is a $1 million exemption, and anything over $1 million is taxed at approximately a 10-17% rate. 

     It's understandable for a lot of our snowbird clients, that when the first spouse dies, the survivor moves to Florida permanently.  There is currently no estate tax in Florida, but that does not seem to be the motivating factor.

     However, I have a current client considering a move to Texas, and one considering a move to New Hampshire, and one of the big factors in each decision has been the New York estate tax.  The clients and their children have told me it "shouldn't be" their motivation, but admit that it is. 

     As a practitioner, I prepare estate tax returns, and as a New York resident, I take advantage of many state programs that they fund, and so I can't honestly advocate in favor of abolishing them.  However, it concerns me that my clients are choosing where they will spend the rest of their lives based on provisions of tax law. 

     I invite comments from other estate attorneys:  are you seeing the same thing among your clients?  Is Upstate New York losing its elderly, as well as its twentysomethings?  Or am I making a mountain out of a molehill here? 

-Authored by Elizabeth Randisi, a Rochester, New York attorney associated with the law firm WeinsteinMurphy.  Her practice focuses on Trusts and Estates and elder law.

July 23, 2008

The New York Legal News Round Up

Latest_news It's time for the weekly round up of interesting New York law-related news headlines:

Criminal Law in New York

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