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July Newsletter: Sun, Sand, and Cyber Security

Before You Go, Limit the Risk:

*If possible, use “clean” devices, with only the data you’ll need during your trip, not your normal every-day laptop. Delete unneeded data and if you use a secure cloud server, keep data there instead of saved to your devices. * Make sure the operating systems are up to date, backup your devices, sign out of websites, * Encrypt your devices, unless travelling to a country with restrictions on encryption. * Use a secure password management program, keep it closed when not in use. Use passwords not face recognition and fingerprint locks. * Before travelling internationally, check for travel alerts and warnings, particularly any tech and encryption restrictions. While Traveling: * Use your laptop on the lowest privilege level (not Administrator). * Turn off you’re your devices before arriving at a border to take full advantage of encryption. * Use a privacy screen and be very conscious about who can peep over your shoulder. Your Rights: *Within the US TSA agents cannot confiscate your tech and you don’t have to provide your password, but it is important to note that hundreds of TSA agents have been caught stealing devices. *U.S. Border Patrol and Customs agents can confiscate your devices, search unsecured digital devices, and copy anything they find.  Your best protection is to limit what is on your devices. *Internationally laws vary wildly. Be aware that your data and communications may be monitored and searched, and encryption may be illegal.

Click Here For Our Cheat Sheet 

Where We Are This Summer

Tor is planning to fly to Oslo in August, like he does every year. This year his plans include client meetings around Scandinavia. If you’d like to meet up while he’s there, reach out!
Mark will be in New York for a longer than usual stay this August, reach out to schedule a meeting.
Fred Jennings will be at BSides Las Vegas, August 7-8. This is an annual open forum for discussion and debate for security engineers and their affiliates to advance Information Security If you’re going too, schedule a meet-up with Fred.
Fred will be at The Circle of HOPE in New York July 20-22 H.O.P.E stands for Hackers On Planet Earth, this hacker conference has been running for 24 years with a diverse array of speakers: Will you be there? Let us know!

Computer Fraud and Abuse Act

Updates and commentary on the “worst law in technology.” The CFAA is a federal civil and criminal statute (18 U.S.C. § 1030) that prohibits unauthorized access or damage to a computer. Whatever that means. We litigate civil and criminal CFAA cases nationally.

2nd Circuit decision on US v. Gasperini Holding that CFAA isn’t unconstitutionally vague

The Second Circuit’s decision in U.S. v. Gasperini informs a long-open legal question about the CFAA. The Constitution’s 5th and 14th Amendments prohibit laws which create a criminal punishment but fail to specify which conduct is punishable. However, courts have largely upheld laws with terms one could consider vague, on the notion that breadth alone does not render something vague. Here, Gasperini challenged the definitions of “access,” “authorization,” “information,” and “protected computer” as unconstitutionally vague. However, Gasperini only raised this vagueness issue on appeal, not at trial, so as a procedural matter the Second Circuit reviewed under a “plain error” doctrine. This doctrine gives great deference to the trial court’s decision unless that decision is contrary to well-established law. Very few cases address this issue, and none rise to what a court would call “well-established,” so the Second Circuit court held that he did not establish plain error by the trial court. The Second Circuit went on to discuss in dicta that Gasperini’s conduct fell “squarely and unambiguously” within the statute’s prohibition, so even a successful argument showing potential vagueness would not have changed the outcome on appeal. – Frederic Jennings 

The Take-Away: Preserving arguments for appeal is an important part of a good trial strategy and another reason why it is important to have a lawyer who understands CFAA.

What We Are Learning

Tor has been given the honor to attend Gerry Spence’s Trial Lawyer’s College this July. Gerry Spence has been called “the greatest trial lawyer of a generation”. He has continued his journey in fighting injustice through the foundation of his Trial Lawyer’s College, begun in 1994, which educates warriors dedicated to the pursuit of justice on behalf of real people. Congrats, Tor!   After more than 10 years in HR and Business Management, Elissa has decided to take the Society for Human Resources Management Senior Certified Professional (SHRM-SCP) Exam next winter and is studying up.  Ed Sheeran Has Been Hit With A $100 Million Lawsuit Click Here

Intellectual Property Law

In what seems to be a growing trend of songwriter lawsuits over sound-alike songs, Ed Sheeran is being sued for copyright infringement over his song “Thinking out Loud” by a co-owner of the Marvin Gaye classic “Let’s Get It On”. It’s not the only copyright infringement lawsuit Sheeran has faced in the U.S. over the last few years. It’s not even the first lawsuit filed against Sheeran over the same songs. And unlike the “Blurred Lines” lawsuit, whose surprising verdict was likely the spark for the rest of these lawsuits, Marvin Gaye’s heirs are not parties to any of these lawsuits.             “Let’s Get It On” was co-written by Gaye and Edward Townsend. Following their deaths, ownership of the composition became a little more complicated. According to these lawsuits, Townsend died intestate, that is, without a will. Under the Copyright Act, ownership of his copyrights were divided equally to his heirs, his children. Several of those children sued Sheeran and other defendants in 2016, including one child whose status as a statutory heir is being challenged by the defendant.             However, one of Townsend’s children didn’t join that lawsuit. That’s because, the second lawsuit alleges, he sold his entire interest in the composition to Structured Asset Sales, LLC, an organization owned by David Pullman. Pullman is best known as the creator of “Bowie Bonds”, debt offerings from David Bowie and other songwriters with extensive catalogues, backed by a security interest in the songwriter’s compositions. Pullman’s company had previously sought to intervene in the 2016 lawsuit, but the court dismissed his claims because it held that the company waited too long to join it.             As mentioned above, the likely spark for so many lawsuits is the surprising jury verdict in favor of Marvin Gaye’s heirs in the copyright lawsuit versus Robin Thicke and Pharrell Williams. The trial included the services of a musicologist to discuss the similarities in the sheet music of Thicke’s “Blurred Lines” with Gaye’s classic disco crossover “Got to Give It Up.” It’s hard to know if that verdict was an anomaly, but it seems to have spurred many legacy songwriters to speak up when newer songs sound like theirs. Since then, many settlements have been reported over songs that kind of sound like previous songs, with the previous songwriters given songwriting credit on the newer songs.               I wrote extensively about the Marvin Gaye lawsuit following the verdict. Then I cautioned that lawsuits over “your song sounds like my songs” aren’t necessary good for songwriters and can have unwanted consequences for the people who brought them. For one thing, the Blurred Lines verdict might prove to be an anomaly. These lawsuits are justifiably difficult to win. If the same facts were before a different judge, it’s possible that it never would have made it to trial. More importantly, any time an owner of a copyright brings an infringement action, the defendants will strike right at the core, by challenging the plaintiff’s ownership. I wrote that, Marvin Gaye and his heirs “lost” by bringing the lawsuit over Blurred Lines, because the end result was the defendant successfully chipped away at the scope of Gaye’s authorship. The Take-Away: Preserving arguments for appeal is an important part of trial strategy and another reason why it is important to have a lawyer who understands CFAA. These more recent lawsuits involve complex ownership issues that will be fought by the defendants. Anyone bringing these kinds of lawsuits must be careful of the possible results, because they could possibly end up with less than they started with. Partner Mark Jaffe worked for recording companies and artists for ten years before becoming a lawyer. As a lawyer, he is committed to helping artists and other creatives maintain and protect and control their creations. 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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