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August Newsletter: Lessons from Summer in Computer, IP, and Trial Law

Firm News

Watch a video of Mark introducing TorMark Law on Facebook

Having established a nationwide practice in computer fraud trials, partners Tor Ekeland and Mark Jaffe are expanding our practice to better serve the needs of our diverse clientele. So we sent Mark out to California to expand on what he has been doing for more than a decade: serving the needs of startups and creative professionals, helping them prosper, and protecting their intellectual property. Emerging companies need informed representation on both New York and California law, but few boutique law firms represent these needs simultaneously. With TorMark Law, leverage our experience, assisting creative companies who need legal representation to protect their interests, comply with applicable regulations, and seek effective conflict resolution. Facebook Twitter Instagram

A Word From Tor

“It’s like special forces training for trial lawyers.” Thus spoke one of the lawyers by the fireside one night at Gerry Spence’s Trial Lawyers College (TLC) in rural Wyoming. 55 of us had gathered for a three-week, invitation only, intensive of 12 hours a day of trial technique practice, off the grid on a sprawling ranch, with only three days off. It was a profound and rewarding experience. Gerry Spence is one of the greatest trial lawyers of the last hundred years. He’s never lost a criminal case (he started out as a prosecutor) and hasn’t lost a civil case since 1964. He’s 89 now and retired after a storied career representing famous, infamous, and private clients including Karen Silkwood, Randy Weaver, and Imelda Marcos. Gerry started TLC because law school doesn’t teach trial skills. What little you learn of trial advocacy in law school , you quickly learn, at trial, is mistaken. As another famous trial lawyer once said, “Evidence professors have ruined trial practice.” In other words, you can’t object or bluster your way to victory, whatever you may have seen on television or movies to the contrary. The fact that the legal academies have a stranglehold on the teaching of law (a relatively new development) and are so abysmal at teaching practical skills goes a long way to explaining why the crucial constitutional right to a jury trial is rapidly disappearing. No one who graduates from law school is prepared to do a trial. And few lawyers ever learn how to, as most cases settle these days. Our criminal justice system has mutated into a plea bargain system where many innocent defendants enter a guilty plea rather than run the risk of the harsh penalties they may face if they lose at trial. At TLC, I met someone who spent 24 years in prison for a crime they didn’t commig. Prosecutors routinely load up indictments with every charge they can think of to force a defendant to plea. TLC’s mission is to restore the civil and criminal trial to the primacy our Constitution gives it. For three arduous weeks you practice jury selection, opening statements, direct and cross examinations, and closing arguments in a hands-on environment. Your teachers are experienced trial lawyers from all over the country. Academic discussion is frowned upon, you got plenty of that in law school. The statement “Show, don’t tell” is common. Some of the techniques are radical, but are tried and proven. The week after our session ended, one of our classmates had a federal criminal trial. After he employed his new-found techniques at jury selection and opening statements, the government dismissed the case. None of us were surprised. The three weeks at TLC were ones well spent in a rewarding and profound environment. We are extremely proud of the trials we’ve litigated to date, along with the experience and skills of our attorneys, with Tor’s new insights from Gerry Spence we are excited to bring even more expertise to the table.

Intellectual Property News

On July 2, the Supreme Court of California issued a ruling that will sharply limit removal of defamatory comments from third-party websites. In Hassel v. Bird (San Francisco), a personal injury lawyer sued a former client for defamation over a negative review the client posted on Yelp. After the defendant client failed to appear in court, the plaintiff obtained a default judgment, meaning that the client was held liable for defamation. The lawyer then obtained an order requiring Yelp, a non-party to the defamation action, to take down the review. Yelp objected leading to this key decision in California’s highest court. If the plaintiff had sued Yelp directly, this would have been an easy issue to resolve. Under the federal Community Decency Act (typically referred to as the “CDA” or “Section 230”), a third-party website like Yelp is deemed to not be the “publisher” of information uploaded by users. Thus, Yelp and similar websites cannot be held liable for allegedly defamatory reviews. In Hassel, however, the plaintiff did not sue Yelp for defamation and did not seek any damages from Yelp. Nevertheless, the Supreme Court of California held that plaintiff was seeking an “end-run” around Section 230 which would “subvert a statutory scheme intended to promote online discourse and industry self-regulation”. The court reasoned that if plaintiff were successful, the maneuver would be widely adopted by litigants, particularly in situations where defaults are likely, just to have unfavorable information removed from websites. The Takeaway: The end result of this opinion is that, at least in California, it might be nearly impossible to have unwanted information removed from third-party websites through the court system. That doesn’t mean that there is no recourse for false reviews. Yelp and other websites have their own takedown mechanisms so that false or obscene material can be removed. This has been increasingly common where an establishment’s actions have gone viral, leading to hundreds of Yelp reviews from people who hadn’t ever visited the place. For instance, the Red Hen restaurant in Virginia was flooded with negative Yelp reviews after it reportedly refused to serve Press Secretary Sarah Huckabee Sanders, In fact, unaffiliated restaurants across the country with the same name also received dozens of fake, negative reviews. Yelp removed reviews from people who hadn’t visited these restaurants but were only reacting to viral news. Note: Section 230 doesn’t apply to copyright. Copyright holders may use DMCA takedowns to have infringing material removed from third party websites, unaffected by Section 230.      Partner Mark Jaffe counsels tech companies on Section 230 and DMCA protection, and other regulatory compliance.

In The News This Month

Feds Cuff Suspected Super-Crooks After $$$m Stolen From 15m+ Credit Cards The One Law That’s The Cause Of Everything Good And Terrible About The Internet    The Greatest Law School Movie Of All Time 

Trademarks For Creative Companies

Thank you to all who attended our presentation in Berkeley! We will be taking this presentation to other locations in the Bay Area and New York locations. If you’d like to join us next time, would like to host a presentation, or would be interested in a webinar let us know!

Cybersecurity and Data Breaches

Your behavioral response to the breach can be far more damaging than the hack itself. That’s because your business reputation and legal and regulatory standing are on the line.

The Average Cost of a Data Breach

In this year’s study from the Ponemon Institute, it was found that:
  • The average cost of a data breach, per compromised record, was $148,000.
  • It took organizations 196 days, on average, to detect a breach.
  • The mean time to contain a breach was 69 days. 25% of breaches were caused by employee error.
Data Breaches have a major, often devastating, impact on a company’s time, money and reputation. Every business owner needs a multifaceted data breach strategy, involving strong comprehensive employee and vendor agreements, clear policies, and a response plan for if a breach does occur.   If you are an employee, a customer, a bug hunter, understand that too often the knee-jerk response to exposure of an embarrassing data breach or vulnerability is to attack the messenger who points out their failures. It can mean the loss of employment, fail time, and BIG fines. If you are the messenger, we can help.  offers goods or services in the EU, it might have to comply as well, even if you have no physical presence in the EU.

A Glimpse Into DEFCON26 with Sr. Associate Frederic Jennings

DEFCON day 1: After several hours in line I met with several clients and former clients, and got dinner with some friends of the firm in the NYC hacker community. DEFCON day 2: Started the day at the Wireless Village and Packet Hacking Village, and talked to some folks at each about the current state of wireless security. Volunteered at the CryptoPrivacy Village and caught Brendan O’Connor’s meme slideshow on the GDPR. Also went over to the Blue Team Village to meet with the folks at GrayLog, who demoed their new release of Nzyme. Met with a group of prominent technology lawyers for dinner, and discussed recent cases and legislation affecting the security community. DEFCON day 3: Ran afternoon speaker operations at CryptoPrivacy Village, where I saw several talks including some groundbreaking research on adversarial machine learning exploits, and a discussion with the creator of the Tor Project. Met up with several contacts from the NYC, DC, and SF hacker communities for dinner and lively discussion of the legal risks facing hacktivists, and the lack of direct legal support options for that community. DEFCON day 4: Met up with a technology lawyer for a lunchtime discussion of software licensing and copyright issues. Attended the DEFCON demo labs, where GrayLog debuted their Nzyme tool. Explored the Hardware Hacking Village and the Tamper Evident Village, which had some tamper protection evasion tools on demo that provide some informative ideas about physical evidence protection. Also stopped by the Lockpicking Village and Vintage Computing Museum. Ended the day discussing the politicization of trolling and social media operations with a penetration tester and a researcher from Data & Society.  In addition to his work with as a trial lawyer in federal and state courts, Frederic heads the firm’s information technology and e-discovery management programs. He has advised and represented clients in a wide variety of practice areas, including computer crime defense, intellectual property, corporate and commercial law, and state and federal criminal defense. Fred is licensed in New York.

What We Look Forward To

Members of the New York Public Library, including the Brooklyn and Queens Systems can now go online and download day-long Culture Passes for free entry into 33 cultural institutions. There are a limited number of passes so make sure you set your calendars to snap one up when they become available on the first of each month. While you’re at it, if you sign up for Kanopy through the public libraries you’ll get access to over 30,000 movies with a focus on indie, documentary and international films. Our Business Manager has been using their collection of South American films to study Spanish.
It’s the last weeks of summer and we plan on spending a few nights catching movies in the park! Here’s a list of what’s coming up in August in New York and in Berkeley. While you’re at it, if you sign up for Kanopy through the public libraries you’ll get access to over 30,000 movies with a focus on indie, documentary and international films. Our Business Manager has been using their collection of South American films to study Spanish. Facebook Twitter Youtube Linkedin Instagram ]]]]> ]]>

Road to Nowhere

In Liminae: The Road to Nowhere

It takes us about six hours to drive to the rural state jail (that’s owned by two judges) the Feds contracted with to hold our client. Accused of computer crimes, he can’t effectively review evidence in jail – there’s no practical access to computers in the gulag. They’ve seized all his assets claiming they’re the ill-gotten gains of crimes the government can’t identify, and their computer forensics – if you can call them that – have no scientific basis and are full of basic errors and typos. In my decade as a federal criminal defense lawyer doing computer cases across the country, I’ve never come across a case where the government was so completely off.

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Guilty Until Proven Innocent

A defendant’s view from the trenches of federal criminal court This post is originally published to Substack. You can read and follow us there.

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