Ninth Circuit notices that we still have some constitutional rights, holding that rights exist at border crossings


I was concerned when United States v. Cotterman was originally decided by the Ninth Circuit in 2011.  In that decision, the panel held that personal property, such as laptops and other digital storage devices, could be transported to a secondary site for a thorough inspection, even with no reason for suspicion.  En banc review was granted in 2012.  On March 8, 2013, in United States v. Cotterman (9th Cir. 2013), the Court, en banc, modified that terrible holding.

The Court observed:

Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW). As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets. And, in the case of Howard Cotterman, child pornography.

Slip op., at 5-6.  Framing the issue, the Court continued:

Although courts have long recognized that border searches constitute a “historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained,” United States v. Ramsey, 431 U.S. 606, 621 (1977), reasonableness remains the touchstone for a warrantless search. Even at the border, we have rejected an “anything goes” approach. See United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008) (en banc).

Slip op., at 7.  The Court recognized that a search of electronic devices must be reasonable, even at the border, given the character of digital information:

Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.

Slip op., at 22.   "This is not to say that simply because electronic devices house sensitive, private information they are off limits at the border. The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property."  Slip op., at 24.

In this case, the majority concluded that, under the circumstances of the case, the search was reasonable.  Regardless, I am encouraged that, as of now, the mere use of a password to protect data does not provide a reasonable basis for detailed inspection of a computer.

A note on the Class Re-Action Podcast

I have received some feedback on the sound quality, and I want anyone who has listened to the premier episode to know that the sound quality isn't where I want it either, but it will get there.  I had to process out a lot of background noise coming in from one of the connections, and heavy noise removal causes other issues.  In the long run, I will likely provide better microphones to repeat guests.  There simply is no comparison between a good microphone and the built-in microphone that comes with many laptops or webcams.  Anyhow, thanks to all the people that have given the show a first listen.

Dear Congress: Get your grubby paws off the internet - I'm looking at you, SOPA and PIPA

In case my opinion isn't entirely clear, SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) are junk.  The laws display a catastrophic ignorance about how the Internet actually works, are so poorly written as to invite abuse, will most certainly be abused (based on how the MPAA and RIAA have conducted themselves in the past), and will move the United States uncomfortably down the road towards a fragmented, censored Internet.

If you aren't all that technical and want an idea of what's wrong with these laws, reddit has a good post on the topic.

CM/ECF errors in the Central District?

Some time in the last week my address and e-mail information reverted back to old information in the CM/ECF system for the Central District of California.  It happened to at least one other attorney.  Have you heard about this happening to anyone else?

Collaborative editing now available for the Microsoft Word Web App

Microsoft announced today that it is adding the ability for multiple authors to simultaneously edit Word documents on SkyDrive using the Word Web App.  Imagine sitting at a mediation, working on part of a settlement MOU while someone back at your office edits or adds content to some other part of the document.  You could even quietly collaborate on a settlement agreement with opposing counsel so that you had a long form agreement ready for signatures right there.  Crazy.  Microsoft has been slow to refocus on new areas of competition, but it is building a head of steam with Google in its sights.

Adobe Acrobat X Review Part 2 – Feature Focus: Portfolios and Redaction Tools (Updated)

In Part 1 of my Acrobat X review, I provided an overview of changes to Acrobat X and described changes to the look and feel of the Acrobat X family of products.  But no list of new features will matter unless those new features matter to you.  With that in mind, I want to dive into a few of the new and enhanced features of Acrobat X that are likely to be of use in the legal setting.

PDF Portfolios

Adobe introduced “PDF Portfolios” in Acrobat 9.  Acrobat X enhances the PDF Portfolio concept in crucial ways, filling some gaps from the first version of the tool and fixing a key issue that prevented me from making more than passing use of the PDF Portfolio tool.

If you haven’t seen a PDF Portfolio, think of it as a wrapper, much like a zip file, but with interactive properties.  When you assemble a PDF Portfolio, you can include multiple files, of different file types, inside the Portfolio.  Once created, the PDF Portfolio is more like an electronic binder that can hold Microsoft Office files, pdfs, flash videos, graphic file formats, and, interestingly, folders and web pages, among other types of supported content.

Why not just covert all your files to pdfs and then combine them into one giant pdf?  There are actually many reasons why using a PDF Portfolio can prove to be a superior alternative to merging multiple files into a single PDF: 

  • You can add or remove whole files easily, without having to find and select the specific pages that come from one file.
  • You can preview files without having to open them in their original, native applications.  In other words, you or your recipient can view a word document or an excel spreadsheet without ever having to leave Acrobat.
  • You can change individual files within the PDF Portfolio without affecting the other files. For example, you could renumber pages in one document without renumbering other documents in the PDF Portfolio. You can also edit other file types in their native applications from within a PDF Portfolio.  Changes you make are saved to the file within the PDF Portfolio.
  • You can sort component files with the help of user-created categories.  These categories can be changed, removed, or hidden.  Once you’ve created categories, sorting is as simple as clicking on a column name to sort the list, just like you would do in Explorer.  [More on a sorting-related enhancement below.]
  • You can print all the PDFs in a PDF Portfolio, or selected certain PDFs.
  • Search one or all files in a PDF Portfolio, including different file types incorporated as component files.
  • Add non-PDF files to a PDF Portfolio without converting them to PDF.
  • The original source files added to a PDF Portfolio are not changed when you create a PDF Portfolio. Changes you make to the component files within a PDF Portfolio do not alter the original files. You can move a PDF Portfolio without any risk of losing its components.
  • Include the same file in multiple PDF Portfolios.

PDF Portfolios have a number of use cases that should be of interest to the legal profession.  In my case, I have used PDF Portfolios to create mediation briefs with exhibits.  I have prepared mediation briefs that incorporate as many as 30 attached exhibits, all wrapped into a PDF Portfolio.  At least for Mediators that are tech-fans, this was easier and less expensive than sending everything to a printer for binding.  But when I created PDF Portfolios in Acrobat 9, I found that I had to use a file-naming trick to organize the files in my Portfolio.  Acrobat 9 did not allow you to control the order of files in a PDF Portfolio; they were alphabetical, using alpha-numeric rules.  To sort the exhibits to my mediation briefs, I had to use a two or three digit number with the exhibits to get them to sort right (e.g., “Tab 01 – Name1” “Tab 02 – Name2,” etc.).  If I used a single digit for “Tab 1,” it didn’t sort correctly when I made it up to “Tab 11.”

Acrobat X fixed that difficult limitation.  Now drag-and-drop organizing is available.  This makes the PDF Portfolio so much more flexible.  Now you can create a Mediation brief, a client document package, or an evidence repository, complete with customized tags for sorting and a comment field for annotations.  You could actually use a Portfolio as a “hot documents” binder that you update as a case moves along.

The interface, like the rest of the program, is clean and attractive: 

Screenshot 1

Acrobat X also includes a number of additional tools for layouts, themes, backgrounds and colors.  A Portfolio can be branded with a firm’s identity colors and logo (but don’t overdo it; heavy-handed branding makes my head hurt): 

Screenshot 2

The PDF Portfolio tool is now a feature with some punch, thanks, in no small part, to the small but crucial addition of drag-and-drop sorting to organize the PDF Portfolio.

Redaction Tools

You’ve probably heard the stories about firms filing “redacted” documents with courts, only to become front page legal news when someone discovered that the “redaction” was an easily removed black box over the sensitive information.  And despite those stories, I still encounter law firms that don’t understand how to use the redaction tools in Acrobat.  For example, opposing counsel in a case that I am currently working on revealed personal contact information because of an incorrect redaction.  Things like this should no longer be happening.

While redaction was available in Acrobat 9, the redaction and security tools are enhanced in Acrobat X.

Among the new features in Acrobat X Pro is the ability to customize the appearance of text or images marked for redaction. You can change the fill color and the opacity at the bottom of the window to personalize how redaction marks appear before they are applied.  I find this enhancement helpful when reviewing a long document for redaction.  A fill color makes an unapplied redaction stand out until you are ready to apply it.

You can also repeat a redaction mark across multiple pages when, for example, a number or e-mail address repeats across pages.  Just mark the first instance, right-click and select “Repeat” to apply the same redaction to additional pages.

Acrobat X has also improved its ability to find and permanently remove metadata, annotations, attachments, form fields, layers, and bookmarks.  The Remove Hidden Information feature can now find content including JavaScript, links, and overlapping images and shapes.  I haven’t tested this yet, but this enhanced tool might help when a pdf is rejected by an electronic filing system, such as the painful system used by the U.S. District Court for the Central District of California.

PDF Portfolios and enhanced redaction and security tools are two feature sets that law firms should take into account if an upgrade to Acrobat X is under consideration.  Importantly, these two feature sets are only available in Acrobat Pro X and above - two good reasons to spring for Acrobat Pro X.

You (or your support staff) should know this Acrobat feature

I'm working on Part II of my Acrobat X review.  Until that is finished, here's a bit of instructional advice that will help you survive that dreaded court requirement to consecutively number exhibits.  Compliments of PDF for Lawyers, the "Header & Footer" option in the Document menu allows for the addition of all sorts of numbering and labeling schemes.  I must confess that the ease with which pdfs can be created and assembled and the increasing ease with which documents can be e-filed with some courts has had an unexpected side-effect on some of my filings - I forget the exhibit labeling requirements imposed under some rules of court.  It was almost easier to remember when you had to go to the trouble of hand stamping each page or running the exhibit through a laser printer a second time.

AT&T finally allows (err, finishes testing) updates for two of its Windows Phone 7 handsets

The Windows Phone 7 update debacle is crawling to its final resting place (at least for the current set of updates...for some U.S. customers...on AT&T).  As of April 19, 2011, Microsoft was allowed by AT&T to deliver updates to Samsung Focus and LG Quantum owners (but not the HTC Surround).  Microsoft engaged in some speculation about whether the carrier-specific updates could be received by phones that had been updated though "hacker" means, such as the ChevronWP7.Updater technique delivered by Chris Walsh (who was, allegedly, told by Microsoft that his update method would prevent phones from receiving future updates), when it suggested to the public (contrary to what it told Walsh) that such updating techniques might block future updates.  As an aside, Chris became a verb when phone treated to his update tool were characterized as "Walshed."

Well, I can now confirm that the fears of brickdom were greatly overstated.  My Samsung Focus, which was somehow updated (Walshed) with the ChevronWP7.Updater tool (I am shocked, shocked to learn of "hacker" updates on my phone), recevied and applied the carrier-specific and OEM firmware updates through the normal channel yesterday.  The AT&T address book tool was installed.  The Focus-specific firmware was also updated.

As far as the potential of Windows Phone 7 for the legal set, this OS will need the "Fall" update, called "Mango," before it will have all the tools in place that most attorneys/IT departments/corporations would want for a wide deployment.  New development tools are about to be released, with access to a huge number of new APIs.  Major software developers should be able to deliver much improved productivity tools with the Mango release this fall.  What I can't wait whether the ChevronWP7.Updater tool that evidently worked very well for the current round of updates will be able to pull the Mango update as soon as it is ready.  This would allow phone owners to bypass the many months of "testing" that AT&T will perform.  That's right - I can't wait to read about that.

Microsoft finally admits that carriers can block updates to Windows Phone 7 without using word "block"

Not that anyone believed otherwise, but Microsoft admitted this morning at MIX'11 that the update process for Windows Phone 7 can be stifled by mobile carriers.  The Live Blog at Day 2 of MIX'11 in Las Vegas includes comments from a number of reporters that specialize in Microsoft coverage.  My Windows Phone 7 (running the NoDo update on an AT&T phone thanks to the intervening magic of technology pixies) is fantastic, but it's hard to recommend this train wreck to law firms as the mobilie solution for attorneys.  I'll take a wait-and-see-and-don't-hold-my-breath approach as we run through this firedrill again in the fall with the much more substantial "Mango" update.