July 6, 2008
Day Three of the National Institute on Cyberlaw
Whitney Scott - A 3L at Stetson University College of Law
On the third day of the ABA National Institute on Cyberlaw, the first session was an overview of Digital Evidence and Documents Ethics. The panelists discussed how metadata ought to be treated in discovery, the implications of stamping every attorney email, "Privileged and Confidential," and the fact that only Adobe versions 8 or 9 have actual redaction capability.
The panelists and audience also made some recommendations on how to advise clients to deal with email. First, attorneys should remind clients to put nothing in email that they wouldn’t want the whole world to see. Clients should also avoid email reply chains.
The second session addressed the criminal aspects of identity theft, including financial records, data mining, and online threats. The panelists defined and gave examples of the various methods used including botnets, packet sniffers, and data breaches. There are several federal bills pending that address identity theft and data breaches, including a bill that would allow victims of identity theft to sue the thief for the victim’s loss of time to deal with the identity theft. The panel was also asked about the future of identity theft. The panel answered with possibilities ranging from cell phone attacks to vulnerabilities in a personal computer resulting from file sharing. The panel also mentioned that they foresee future policy taking into account the impact of identity theft on individuals and business, harmonization of privacy legislation and policy, and more cooperation between the various agencies who are dealing with identity theft.
The afternoon breakout session on Computer Crime and Procedure dealt with examples of various methods of computer crime activity, some possible defenses, and the latest hot issues. Professor Orin Kerr spoke on these hot issues and said that the top three are how the Fourth Amendment applies online, the prosecution of child pornography, and the new use of 18 U.S.C. 1030 to prosecute in the MySpace cyberharassment case.
What I think was the most interesting topic at the Cyberlaw Institute was the last session on the future of cyberlaw. The focus was on online virtual worlds such as Second Life and World of Warcraft. There are many others and distinctions were drawn between worlds where users create things and can have some ownership interest in those things, and worlds in which things in the world are already created and are simply interacted with by the players. This results in different kinds of law that apply to virtual worlds. Real world law will apply in some circumstances and issues will arise concerning jurisdiction and conflict of laws. End user license agreements create another kind of law, and then there is law that is created within and applies to violations that occur only in the virtual world. There is a criminal presence in the virtual worlds. The panelists described such offenses that have occurred, such as theft, fraud, money laundering, drug offenses, pornography and child pornography, and even virtual rape. The panelists also said that the FBI, the National Security Agency, and other law enforcement agencies do maintain a presence on virtual worlds.
Future trends to watch for regarding virtual worlds are the possibility that acts done online would be attributed to the real person behind the avatar, the interconnectivity of different virtual worlds such as SIMS Online and Second Life, and the use of virtual worlds for work, training, and social interaction. One of the panelists, J.P. Allen, offered his blog website on which he promised to post a slideshow on virtual worlds and some informative links. The link is here.
Overall the institute was a great crash course in cyberlaw and I am very glad I attended.
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