11 November 2008

Cyberspace December 2008

Feeling flush?

Disgruntled that you can't get the .com or .com.au domain name you want? There are only 21 non-country top level domains, so ICANN (http://www.icann.org) has released an explanatory memorandum on a global top level domain (gTLD) program that could see me registering .calvin for a mere USD$185,000 plus extensive annual costs. So, let's say I was an apparel and cologne manufacturer I could then have web sites at cologne.calvin, shirts.calvin, briefs.calvin and so on.

ICANN thinks that there might initially be 500 applications - I imagine many of these would be from global organisations keen to protect their branding. However, setting up and maintaining a gTLD is a very complex and expensive task, so the business case for an application to protect intellectual property alone would be a tough call. So are there other reasons for having your own gTLD?

Let's say you are a member of a world-wide organisation such as Rotary International with 1.2 million members... If the .rotary domain existed you, as a proud member, might be happy to pay $50 a year to be sally@au.rotary (assuming Sally lives in Australia) and have a permanent email address for life. If 50,000 members signed up, and Rotary partnered with Google to host the mail (http://www.google.com/apps/intl/en/business/), Rotary might see a gross income of $2,500,000 pa. Now it starts to look a bit more interesting...

Obviously there is potentially a lot of money at stake, and so the domain squatters/entrepreneurs will be watching closely. The opportunities for disputes abound (the late Felix Wankel, inventor of the rotary engine, might otherwise have been in competition with Rotary International), so a draft dispute policy exists for public comment. It seems that if you want to object to an application you must pay a filing fee - that seems a bit much if someone else is going to be infringing your IP rights!

Another possibility is a geographical name - imagine if someone registered .australia, and then set up state or regional subdomains, such as .nsw.australia, theShire.australia or sports-based sites, such as mariners.australia. Again, Bill the soccer fan would be happy with bill@mariners.australia! It appears that ICANN will require the applicant to provide some sort of government approval before such an application will be successful.

Some names will be ruled out, such as those consisting only of numbers (bad luck for the mobile operator 3) or reserved words (no .test for the cricket fans) but names with non-english characters will be permitted.

Yeah, right

The European Court of Justice has held that companies' web sites must provide for a way for consumers to contact them. They must "allow him to be contacted rapidly and communicated with in a direct and effective manner." (Article 5(1) of the E-Commerce Directive). The actual method of communication is not prescribed, so it could be telephone or it could be a web form inquiry where answers are supplied within 60 minutes. Of course this would be hilarious in Australia if it applied to most banks or telecommunication companies...


Some people want to post their own material on the Internet, but don't want anyone to be able to find it. Gordon Parker sued Yahoo! and Microsoft (he had previously sued Google) in the USA (07-2757 Eastern District of Pennsylvania) for copyright infringement by indexing and caching copies of his content. The court followed the Google case and held that by not using usual webmaster opt-out techniques, Parker gave search engines an implied licence to index and cache the content.

14 October 2008

Cyberspace - November 2008

Law Society Journal 



Some years ago I wrote about the widespread availability of free Internet access because people were buying wireless modems and not turning on the security settings. This is handy for holiday makers who can sneak a few emails or make a Skype (http://www.skype.com) phone call for free. In Sydney it's hard to find an unsecured wireless network, although in the USA they are much more common because many ISPs in the USA have download caps of 250GB or more (eg http://www.comcast.com). Australians with only 10 to 60 GB are a bit more jealous of our bandwidth and want to keep freeloaders out.


However, the main reason to secure your wireless network is security. Casual users can access files, alter your router settings (even lock you out!), use your network to download illegal items and do other damage. If you log into your wireless router you'll see that it offers at least WEP encryption, although you should also see WPA or WPA2. WEP encryption is thoroughly broken, and can be hacked in a few minutes, so the credit card industry is is going to ban WEP on any wireless merchant device from April 2009 (http://tinyurl.com/58tf7a). The standard also deals with many other issues designed to protect cardholder data, such as firewalls, not using default passwords, auditing and security testing.




I have been reflecting on the way we do discovery in large matters. I think that the days of the huge discovery with carefully indexed documents are numbered. If I was faced with more than a hundred thousand documents I would make an application to the Court at an early stage with a view to crafting careful orders for a custom discovery regime. Of course I would first attempt to agree the approach with my opponent and seek consent orders, but experience has shown that the lack of understanding of technology amongst the profession would make that very difficult. I suspect that the application could be expensive and involve expert evidence, but would produce a better result for all concerned.

Review of volumes of electronic documents to remove privilege can be a difficult task. One usually starts by set up full text indexes and doing keyword searches. Searching for the names of regularly retained law firms and their solicitors usually locates a lot of the material, but after that it's trial and error. The USA is trying to address inadvertent waiver by a new Federal Rule of Evidence (502) that provides that disclosure of privileged material does not amount to a waiver if it is inadvertent and reasonable steps were taken to avoid and rectify it. Of course, that only keeps the document out of evidence and your opponent will be on notice of the subject matter.


That is just one issue that you might address in a custom discovery regime. The Court has the power to make directions and orders for the conduct of proceedings (UCPR 2.1), and in the light of recent judicial comment about the cost of litigation it is probably timely that solicitors consider carefully how they can best deal with expensive, but procedural, matters such as discovery and inspection.

As an example, a series of related price-fixing cases in the USA (USD$731 million in fines!) involved 1,500 boxes of paper (2.5 million pages) and 280 GB of data (19 million files). This was clearly a task that could not be handled in the way we handle electronic discovery today. For a story on how one firm handled this see the article at Law.com (http://tinyurl.com/3v4o6y). I think that the lessons learned in these huge matters should be applied to much smaller matters.






22 September 2008

Starship Troopers

I have to say that Robert A Heinlein's book found a place in my heart. He was a preacher in every way, but he just didn't know what religion he was.

Verhoeven made the first movie which was vaguely related to the book, in the sense that they used the same words. The second movie was, honestly, nasty, but the third movie is a piece of excrement that tools cannot be used to hide. Look after yourself and your loved ones and read Robert's book and stay away from these nasty movies.

15 September 2008

Cyberspace October 2008

Discovery can affect you too

Your client's child is sick, but her health fund won't pay for treatment. The child suffers from anorexia nervosa and the insurer wants proof that it is a biological, not psychological illness. Finally you start proceedings against the insurer and suddenly the child is hit with an order for discovery covering the child's diary, emails, instant messenger conversations, Facebook and MySpace profiles and communications, blog posts and other online activity. Suddenly you are now retaining a computer forensic specialist to examine her home computer, mobile phone for SMS, school computer, HotMail account and anything else she's ever touched.

This isn't pure speculation - parts of it happened in Beye v Horizon Blue Cross Blue Shield Of New Jersey, Inc (New Jersey District Court 2:2006cv05337) and another matter which was consolidated for discovery purposes. The court had ordered that the child not be deposed, so the defendant had to look elsewhere for indications as to the cause of the disorder. Initially the order dealt with communications with others, but it was later widened to include any writing, such as diaries. There was naturally opposition to this, and particularly the diaries, as these could be theraputic tools for the child and not necessarily of probative value.

One plaintiff claimed that they had no responsive documentation, but the insurer responded that it had seen copies of emails from the family's Yahoo! email account to a treating doctor and therefore the plaintiff was either hiding information or not diligently searching for documents.

It's easy to see how costs could go well beyond that normally expected in such a case. The cost of forensically imaging relevant computers, inspecting them for responsive documents, trawling the internet for postings, and possibly dealing with mobile phone carriers for SMS remaining on their systems is likely to be very significant. If proper care of the computers is not taken (probable for a home computer) then the defendant is likely to be able to rely on adverse inferences and the whole claim is in disarray. This is happening to defendants in music-sharing cases today, who being unrepresented when a statement of claim arrives, immediately react by wiping their computer. Such destruction of obviously relevant material gives rise to significant adverse inferences under common law, and statute law in Victoria.

Jury trials

New Zealand District Court Judge David Harvey recently ordered that online media not publish the names of two accused. This resulted in The New Zealand Herald being able to publish the names in the print version on 26 August 2008 (and evening tv news named them as well), but not able to place the same information on its web site.

A lot of internet commentators laughed at the judge, but he had a very good point. Jurors regularly, despite warning to the contrary, carry out their own research. This makes it easy to find out if accused have prior charges or convictions. I have a close friend who was called up for jury duty in the trial of Bruce Burrell for the murder of Dorothy Davis. I knew, but she didn't, that he had previously been convicted of the murder of Kerry Whelan. A quick Google would have set her straight, and one wonders how that would have affected jury deliberations.


I've warned in the past about the consequences of putting your profile up on sites such as MySpace or Facebook - one has to consider the effect they may have on your employability or reputation. In the USA some prosecutors are using unflattering photographs from such sites during sentencing or character cross-examination. Photographs of drunken defendants on a wild night out are being put to witnesses in drink-driving cases, and they probably carry more weight than the obligatory character reference from the local priest and school teacher.

11 August 2008

Cyberspace September 2008

Not interested

Have you ever been at a web site and filled out a form requesting further information about the site's products and services, never receiving a reply? I recently read that over 40% of these go unanswered, and that rings true for me. I recently contacted two superannuation funds through their web forms and neither had the courtesy to reply.

One of the projects I'm working on involves purchasing AUD$500-750k worth of software. There are probably four or five vendors who I will short list, and I have contacted two of them several times using their web site and I haven't received a response; either the web form sends the inquiry to an unmonitored email address (most likely) or they have sales staff who don't want a bonus this year.

Does your firm have a web contact form? Do your clients have them? Have you ever tried submitting a request yourself to see if it still works? Give it a try - you might be shocked to find out what (doesn't) happen.

Managing a team

Your team has a bunch of tasks to do; you're busy too and your firm or business doesn't use timesheets. How do you monitor how much work is being done and regularly review your team members? Some people ask for a summary from staff at month end, but there might be easier ways. One answer is ididwork (http://www.ididwork.com/).

It's a web site that lets you and your team record short descriptions of what you did, and optionally tag it (say, matter number or name) and add time spent on the task. Users can ask to see what their fellow members are up to. Reviews can be automatically scheduled by the team or the manager, and the manager is prompted about outstanding reviews. For each review the manager will receive a work summary and can then enter feedback.

You can analyse how you've spent your time in a couple of charts, and export it all to Excel. It currently has a bug related to time zones and I've not used it in a team so I can't vouch for its long term effectiveness, but I think it has a place in some people's lives. I currently use Microsoft OneNote for exactly this purpose, but am on the lookout for something better.


We leave a lot of debris behind us every day, and teenagers more so, but not in the way you think. Digital cameras and mobile phones create vast amounts of information, as a lawyer in Texas discovered (http://tinyurl.com/64l9ge). After a university student died from alcohol poisoning in a fraternity induction the fraternity met and agreed to destroy all their photos.

However, the family's lawyer went to the dead man's My Space (http://www.myspace.com) account and found names of people posting condolences. They tracked down those people and found that many photographs and videos hadn't been destroyed. As they found more photos they found more potential witnesses. The photos had date/time stamps on them so the order of events of the night could be assembled in a database that recorded names and times. Eventually they identified 99 defendants and settled the claim for USD$4.2M.

You could take this approach even further today. Mobile phone records can of course establish times and rough locations, but some (and some digital cameras) now have built in GPS which tag the location of the photograph to within 10 metres. Software (eg http://www.acdsee.com or http://picasa.google.com) can easily take photographs from many sources, tag them by user name, and sort them in time/date order. Even if you knew little about the events of the night initially, viewing the photographs sorted in this way would quickly convey the events to any investigator.

06 August 2008

Bitter old has-been

Paul Keating should stick to what he knows - oh, he has been doing that - giving gratuitous advice on things he knows nothing about. What a poor old bitter man.

03 August 2008

Further erosion of civil rights in NSW

When you have a government that wants to sit in the pocket of the police commissioner, you end up with a premier like Morris Iemma. Is he a dill or a dilemma?

15 July 2008

Is the NSW Labor Government Retarded?

Three judges of the Federal Court of Australia have held that recent regulations intended to be used against NSW citizens by Morris Iemma's government were ultra vires, and therefore invalid. In Evans v State of New South Wales [2008] FCAFC 130 (15 July 2008) (http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/130.html) the Court ordered that:

1. It be hereby declared that Clause 7(1)(b) of the World Youth Day Regulation 2008 is invalid, as beyond the regulation making power conferred by s 58 of the World Youth Day Act 2006 (NSW), to the extent that it purports to empower an authorised person to direct a person within a World Youth Day declared area to cease engaging in conduct that causes annoyance to participants in a World Youth Day event.

2. The application be otherwise dismissed.

Now, I've never drafted a regulation (although I wrote the first draft of a Supreme Court Practice Note), but you'd think either Parliamentary Counsel wrote this under duress, or just wasn't thinking.

Of course, this is just another episode in the story of the NSW Labor government giving the Police whatever they want, and removing the rights of NSW citizens. Gee, and all this in a month when five NSW police officers have been charged with assault...

14 July 2008

Cyberspace August 2008

Hilarity ensued

I spend a lot of time trying to make agreements logical, readable and concise. I suspect you do the same. However, some companies take a different approach... I recently purchased a subscription to Microsoft Technet (http://technet.microsoft.com) for AUD$307. If you are an IT tinkerer this is a good thing to do, as it provides you with access to almost every operating system, server and most business applications by Microsoft. The operating systems can be installed and activated up to 10 times, so it's not a bad investment every few years.

I installed Vista Ultimate which includes Windows Media Center (WMC). WMC is designed to display video, photos and music details on your TV. During set-up of my digital TV receiver (Compro U100 - AUD$75) in WMC I selected "Australia" as my region for local television guide services. It then displayed "downloading the most up-to-date TV setup options for your region." Next, I was asked to read 68 screens of licence information for the TV Program Guide, and was told I should print it out. Unfortunately WMC has no print function at all, so it is physically impossible to do what is required by the licence. Apparently the licence is available on the web, but that means you must write down the URL, quit WMC so you can access a web browser, and then start over (or go to another PC). There is also no guarantee that what is on the web is the same text as that you agree to in WMC.

It's obvious that most people are just going to click through without reading anything. I wonder if the licence would be set aside by the Court due to the unwieldy nature of the process? It also said (in all capitals -the equivalent of shouting) "ALL OF THE TERMS OF THIS AGREEMENT ARE VERY IMPORTANT, SO YOU MUST READ AND AGREE TO THIS ENTIRE AGREEMENT." Unfortunately, this nugget of wisdom was on screen 5 of 68, so I remain the sole person on Earth who has seen it. "If you accept these terms and conditions we recommend that you print a copy for your records" (see above) and "Microsoft may prove your agreement of consent to the terms and conditions of this Agreement in any manner..." Oh really?

On screen 11 of 68 it told us where we might find the agreement (as amended, not as agreed during this procedure) on the Internet. So, we get out a pen and paper, write down the URL, go to another PC and type in the link to find out what was going on. I kept reading, AND THERE WERE LOTS OF CAPITAL LETTERS RANDOMLY distributed throughout THE AGREEMENT. On 60 of 68 it stated "The parties... confirm that this Agreement... has been and shall be drawn up in the English language only." On 61 of 68 it suddenly launches into one sentence which appears to be French. Hmm...

I eventually decided I could pretend I agreed with all this and clicked "I agree". I was then asked for my postal code (I had previously indicated I was in Australia), which I entered, and clicked "Next" and was told "TV Program Guide listings are not available for your country or region." Umm... they could have asked me that before spending time on the licence, and then aborted the whole procedure... Not only do we have a ridiculous agreement, we also have a ridiculous process that should never have been unleashed on the public.

Oh, and the privacy statement was a comparatively concise 38 screens. It also provided an address on the last screen to give privacy feedback, although you couldn't click on it - you had to write it down and wander off to another computer.

Cyberspace July 2008


The Lawyer (http://www.thelawyer.com) recently reported "Linklaters is set to launch a series of virtual offices based in London as it axes its real offices in Bratislava, Bucharest, Budapest and Prague. The firm will install ­country desks in London for Ukraine, Kazakhstan, Turkey and Saudi Arabia." I assume that one has to speak in the relevant language when hovering around a country desk, but it does raise a few thoughts... What are the local admission requirements? Do they have an empty serviced office in each country with a table, chair, monitor, web-cam and a microphone for virtual meetings with clients? Or perhaps it's cheaper to fly there on a regular basis rather than maintain a regular office? It certainly solves some expatriate business migration problems. I wonder how that could work in the wide open spaces of Australia? A number of firms have occasionally attended offices in smaller centres, and I doubt that it would be cost efficient to do anything except jump in the car once a fortnight. But what if you could build a virtual office in Collarenabri (http://www.nnsw.com.au/collarenebri/tourism.html)? Your clients could attend an office, opening the door via a one-time keypad PIN that you had given them over the phone. Once inside there would be a room with a table, chairs, 32" screen, web cam and microphone, a document scanner, printer and a computer screen that you can control and share with the clients. After discussing a contract which was viewed on the computer screen, you could print out the document you just collaboratively amended, ask your clients to sign it and drop it into the feeder on the scanner. A few minutes later you have a high-resolution image of the document in your office, your client has a copy they can keep (or post if necessary), and everybody's happy. All you need now is a credit-card reader for them to swipe so they can open the door to exit.


The Council of Europe's Convention on Cybercrime (http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm) isn't something you're likely to have read much about, although it was recently reported that the Federal Government is considering becoming a signatory to it. The Convention requires member countries to pass legislation dealing with specified issues, such as making certain activities criminal offences, such as copyright infringement, access to computer systems without permission and creating software cracks. It also requires the enactment of enabling powers, such as preservation of evidence and the tracking of data. The implications of Articles 16 and 17 are huge, as it will require ISPs to log and maintain a great deal of information about their clients. It also requires the expeditious disclosure to an authority of data enable the identification of ISPs involved in transmission of data. Like all wide-ranging laws these could be used for great good, and could be manifiestly misused as well. I wouldn't like to see them enacted in places where political dissidents are arrested and imprisoned. Fortunately we don't currently live in a place like that, but I deeply trust that the Federal Government will engage in wide consultation before becoming a signatory to the Convention.

It's mine

A USA District Court upheld the right of a man to sell software that he had purchased. Sounds self-evident, doesn't it? Autodesk, the manufacturer of AutoCAD, tried to stop him selling the software on the basis that he didn't own his copy of the software - it was merely licensed to him. The Court held that he owned his copies of the software and was entitled to sell them on eBay, even though the original licence forbade the sale or transfer of the licence. Imagine buying a car, and then when you wanted to buy a new one you had to give the old one back!

19 May 2008

Cyberspace June 2008

Job satisfaction

Some people like routine, and, more importantly, repeating a process usually makes you better at it until you become an expert. However, some tasks in practice are repetitive, and you might consider whether they're candidates for some sort of automation. You probably know that most lending institutions or debt collection agencies have armies of clerical staff, technology, and only one lawyer to prepare documentation. At the same time, it's obvious to us that many things require the attention of a lawyer on an individual basis.

Large corporations with in-house legal teams face the same issues. A property developer retains consultants such as surveyors, water experts, interior decorators and others on a daily (sometimes hourly) basis. These agreements are usually in the tens of thousands of dollars, so must be managed. However, the risk in these contracts is usually relatively low (the risk usually arises in the selection of the consultant and the wording of the brief - not the terms upon which it is engaged).

Preparing documents can be tedious, but it's capable of automation. Microsoft Word has rudimentary document assembly in its merge feature. However, real document assembly software such as HotDocs (http://www.hotdocs.com) or Rapidocs (http://www.rapidocs.net) goes much further. You build "interviews" which collect information from the user to fill in blanks and customise the document. The interviews can change dynamically, adding or removing questions dependant on previous answers, and pull in clauses from a central library.

The ability to fill out a "package" of forms at once is a great feature if you have to prepare a few court forms at once. You can even fill in as much as you know now, and go back and fill in the blanks later. I can imagine that some lawyers are probably filling in the details during an interview with a client, resulting in a part or fully completed document by the time the client leaves the office.

You can set rules, such as "You can only retain a surveyor for less than $50,000 - after that you must get individual advice on the contract." The software might ask a question about whether one of the parties is a trust entity - if so, stop the process and get the legal department involved. Working out these rules is a critical component of the process, as is integrating with other systems you have. There's no point in re-typing a client's name or address when it's already stored in your practice management system.

Risk arises when non-legal staff amend precedent agreements or use them in ways not intended by the draughtsman. That means that you either have to remove the risk in allowing laymen to prepare contracts, or keep all contracting in the legal team. The latter will result in low job satisfaction for the lawyers, who will spend a disproportionate amount of time on low-value work. It also means that there is a delay to the business - they have to brief the legal team, await legal deliberation and finally use the resulting documents (which may require further amendment). However, if you don't adequately remove risk in delegating control over routine contract matters to the business units you end up with the legal team enhancing the likelihood of poor outcomes.

In a similar way, as a private practitioner you may have a steady stream of such work from a client or type of client. It's easy to do, low risk and pays the bills (eg: some Family Court documents might be candidates). Your client gets a useful document and knows that there is PI insurance standing behind you. You both benefit. If you can safely automate document production you reduce the time and risk spent, feel happier, and charge a per-unit rate that reflects the benefit to your client - not the hours you spent on it.

15 April 2008

Cyberspace May 2008


My recent jaunt through the European Union gave me an education on privacy law; in short, we don't take it very seriously in Australia, and despite a lot of EU law, EU business don't either, as evidenced by the number of data blunders recently. APEC has also been fiddling around with a privacy framework for at least the last four years, with little impact on law or commerce. Cross-border data transfer doesn't sound very exciting or even relevant, but you might like to consider the last time you rang your bank or telco and ended up with an operator in Asian region. How did your data get there? Who is adminstering it? What legislative and contractual controls exist to protect you? Is your data exposed to subpoenas, or perhaps government inquiry without judicial process, in that country? You might have a right to privacy, but who is it that has the obligation to provide it? Many countries have legislation on privacy, including Australia (http://tinyurl.com/6e5eeb) and Canada (http://www.canlii.org/ca/sta/p-8.6/), but we are now seeing the rise of data retention laws, which some see as the opposite of data privacy. The EU has a Data Retention Directive (DRD) (currently being challeneged by Ireland and others in the European Court of Justice), which requires, among other things, telcos to retain records of who rang who for how long and when for up to two years. One basis of challenge is Article 8 of the European Convention on Human Rights (http://tinyurl.com/5hhvvr), which states that "Everyone has the right to respect for his private and family life, his home and his correspondence." This is of course topical because of current Australian intentions to amend the Telecommunications (Interception) Act, 1979 (although workplace surveillance is already legal in Australia subject to conditions).

The EU muddle

The EU also has a Data Protection Directive (DPD), and a group named the Article 29 Working Party, which recently stated that search engine companies such as Google should delete data after it has been used for its intended purpose, and at any rate delete the data after six months (http://tinyurl.com/6kedsf). Google is now in the position of working out how it can comply with the DRD, the DPD, and the Working Party's opinion while achieving its commercial goals (Google currently keeps search logs for 18 months). A key statement by the Working Party is that the DPD applies to organisations doing business in the EU, even when their headquarters are outside the EU. The Working Party also stated that IP addresses (routinely collected by web sites, including corporate extranets) are personal information, and must be protected accordingly. My employer has a subsidiary in the UK, and therefore the DPD applies to it, and getting a handle on EU data retention and privacy is now of major interest to me; but what is it to you? One lesson is that the area is a minefield for conflicting legislation and obligations, and Australia doesn't seem to have a coherent, unified approach to dealing with privacy, retention, FOI and national security (if we do, it's probably an accident). We have the common law and some State codification on data retention, Federal and State privacy and FOI legislation, and recent privacy intrusions based on claims of national security. Other lessons abound: if you have a client in NSW who does business in Victoria then it is possible that it may have a higher standard of document retention where litigation is anticipated. If you use a laptop with a wireless network you should consider how secure that communication is. Public networks at airports and coffee shops are inherently insecure, and you should get advice on how to use them securely. Finally, your client may be subject to foreign privacy law if its website is more than just "brochure-ware" (http://tinyurl.com/5dbc9e).

24 March 2008

Loss of legal professional privilege in NSW

It seems that Morris Iemma approves the bugging of conversations between lawyers and their clients. How can you trust a government that ignores infrastructure needs and due process? http://www.smh.com.au/articles/2008/03/23/1206206927430.html

15 February 2008

Cyberspace March 2008

As you read this I am probably somewhere in Europe, "between jobs", trying to put on weight by sampling every cuisine I encounter. While this has its attractions, it can make contacting loved ones a little challenging. Phone cards now make phoning home an incredibly cheap exercise (once you choose a card from the thousands available - try http://www.cloncom.com/), but I need more. So I took a long hard look at the Asus eee PC (http://eeepc.asus.com), which is a $500 laptop that weighs 0.95 kg, uses memory cards instead of a hard disc, and has built in ethernet and wireless networking, microphone, stereo speakers and video camera. You'll find reviews of this thing all over the Internet, but here's my take:

Provided you have an employer and can salary sacrifice it you will pay for it in pre-tax dollars, making it pretty cheap (I paid AUD$250 post-tax). It has lots of applications installed, including an office suite, Skype, instant messaging, links to Gmail, Hotmail and others, Firefox web browser, Thunderbird email and so on. It also has what I need to copy files up to my web site. One final bit of preparation was to purchase Skype Out credits (http://skype.com). Skype Out lets me use the Skype application on the laptop to ring any phone number in the world from anywhere that I'm on the Internet. It costs 1.7 euro cents per minute to call Australian landlines. One can just use the built-in microphone and speakers, or plug in a $5 headset.

I can now wander into one of the many free (or paid) wireless hotspots in Europe, and call Australia for an hour and pay AUD$1.60. The quality is the same as a normal phone. Of course, while I'm there I can send and receive emails, use instant messenger, write the April edition of this column in Google Docs (http://docs.google.com) and read the newspaper. I can also carry a tiny USB 80 GB hard disc with me that just plugs into the laptop. That is useful for a few reasons: I can store PDFs of all my travel docs, purchased videos and music to entertain, and other important information. In addition, because the laptop has a memory card reader that uses the same cards as my camera I can back up my photos to the hard disc as well as view and cull them on the road.

Finally, because I can easily record video with audio, I can create video "emails" of me and the surrounds which can be either emailed, or uploaded to YouTube (http://youtube.com) or my web site and just the links emailed to friends and family, who I trust will be pleased to hear my voice and see my smiling face.

Any downsides? If you remember what this laptop is all about then there are very few. No CD or DVD drive, small screen (800 x 480), small keyboard (fat fingers need not apply), but what did you expect? It's the size of a paperback book. Not that you could easily tell, but it runs Linux (Xandros to be specific) although you can install Windows XP if you insist, but you'll need to upgrade the RAM from 512 MB to 1 GB (easy to do). It has a nice simple interface that sits over Xandros making it easy for anyone to use. The office suite is OpenOffice (http://openoffice.org), which produces files compatible with Microsoft Office. You can't run Outlook, but there are good options to replace it and even connect to an Exchange server. In effect, it's the answer for someone who travels and needs web-based email (if your organisation uses Exchange, the Outlook Web Access pages work really well) and wordprocessing without carrying around a smart phone or a normal laptop. Your children will want one too.

30 January 2008

Why I have cable internet

The Australian newspaper reported in January 2008 that Telstra (the main Australian phone provider) fixed and/or waterproofed telephone cables with plastic bags (see link above).

That might explain why my ADSL 2+ connection to my local exchange 1,200 m away usually ran at about 1.2 Mb instead of the expected 18 Mb. It also might explain why it acted as a rain detector - every time it rained the connection dropped every few minutes, and I was lucky if I got 256 Kb. I used to be assigned a new IP address every hour or so on sunny days, and dozens of times per day if it rained.

My ISP was stuck in the hands of Telstra, who said it had checked the line and found no fault. After several episodes of Telstra saying that it was all good, I cancelled my otherwise excellent Internode account, and am now in the clutches of Optus Cable, which works flawlessly...

10 January 2008

Cyberspace February 2008

Knowing your responsibilities

The obligation to provide discovery has existed for many years, and it has taken on a new dimension with the advent of computer records. If you're not particularly technology aware then you may find yourself and your client missing discoverable documents, which may lead to some hot water. In Qualcomm v Broadcom (USDC, 05cv1958-B (BLM)) the court ordered sanctions against the plaintiff, as well as referring six of its lawyers to their Bar Association for failing to disclose some electronic documents that they came across during the proceedings.

The judgement referred to above was in relation to applications made after the substantive trial. The history was that a lawyer for Qualcomm was preparing depositions and searched for documents on a witness's laptop. He found some highly relevant emails that had not been discovered, and chose not to discover them. The firm also did not search certain email archives, and in those that were searched, they did not search using certain keywords (that were significant). The attorneys ended up apologising to the judge
"for not having discovered these documents sooner and for asserting positions that [they] would not have taken had [they] known of the existence of these documents."

A few months later Qualcomm searched the email archives of 21 employees and located more than 46,000 documents (300,000 pages), which had been requested but not produced in discovery. It kept searching and found even more documents ... The court ultimately drew very adverse inferences, awarded costs (unusual in the USA) of USD$8.5m, and made some very instructive comments:

"The Committee’s concerns are heightened in this age of electronic discovery when attorneys may not physically touch and read every document within the client’s custody and control. For the current “good faith” discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search. Producing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith and does not satisfy either the client’s or attorney’s discovery obligations."

Qualcomm's attorneys kept good records of which computers were searched, and what the search terms were. However, the court noted that several searches were conducted late in the proceedings and "the fact that Qualcomm did not perform these basic searches at any time before the completion of trial indicates that Qualcomm intentionally withheld the documents" (one of several adverse inferences drawn). Another adverse inference was
"Qualcomm’s claim that it inadvertently failed to find and produce these documents also is negated by the massive volume and direct relevance of the hidden documents."

The Court found
"it likely that... one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was sufficient, to ignore the warning signs that the document search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit."

In addition to the disciplinary referral, the Court ordered the lawyers involved to prepare (supervised by the Court) a lengthy document setting out a detailed analysis of why it all occurred and how it could have been prevented. It also noted that it did not impose a fine on them partially because their client may look to them for compensation.

While writing this column I had a meeting with another lawyer in my firm to discuss electronic discovery obligations in a new matter, and it took over an hour just to outline the important issues. Take care to either get educated, or consider retaining an expert to deal with electronic discovery.

06 January 2008

Social networking sites and business

I recently wrote a discussion paper for the Executive team of my law firm on the utility of social networking sites for our business. It seems now that others would benefit from a similar (but much shorter and heavily summarised) paper aimed at a wider audience, so here it is...

I don't think that a law firm needs to worry about being involved in FaceBook, MySpace, Bebo, Orkut or other social networking sites. That's not to say that they shouldn't use them from time to time in limited circumstances, but basically they have no relevance to our business.

I say this for several reasons:

  • it's not an efficient use of marketing resources and budget
  • your firm may end up being associated with advertising and other material that is not complementary
  • unless your client base is youth with time on their hands you won't find clients there
  • the software is inefficient to use compared to email or even instant messaging
  • they are minefields of phishing and spyware and social engineering
  • prospective employees can shoot themselves in the foot by mixing social talk with business credentials
  • There's nothing like meeting people and talking to them on the phone.
My recommendation is that you limit employee access to these sites in the same way you might limit access to, say, Hotmail or Yahoo! mail (whether by policies or software management).

While I know that there are some groups on FaceBook (for example) based on law firms, these are usually very uncomplementary, or there is no clear reason for their existence. One group based on an international law firm has over 800 members - and you can only join using an inhouse email address! It makes you wonder what they're saying in that group that they can't say internally... or perhaps the firm's IT resources are so lacking that the members have to go outside the firm. I trust those people realise they do not own the data, traffic, friends lists or anything else, and it may be retained by FaceBook indefinitely... I hope none of them go on to public office one day and find this material in the press!