There has been a lot in the news lately about employers asking potential employees for Facebook or other social networking site passwords during the interview process.  A search of Westlaw’s ALLNEWS database shows over 250 results in the last 30 days for the following query:

facebook /s employ! /s potential applicant & da(last 30 days)

Facebook itself has jumped into the fray, warning potential employers not to ask a potential employee for his or her password, and several U.S. Senators are pushing for a Department of Justice investigation into the practice.  See 2012 WLNR 6534354.

Questions about this employment practice have been coming from a number of sources, and both sides of the political spectrum.  There has also been a spate of newly introduced legislation in response to this practice, with more states introducing legislation seemingly daily.  Minnesota is among the most recent, with a bill in the Minnesota Senate, 2011 MN S.F. 2565 (NS), and it’s companion bill in the Minnesota House, 2011 MN H.F. 2963 (NS).

Minnesota joins California (2011 CA A.B. 1844 (NS)), Maryland (2012 MD S.B. 433 (NS)), and Illinois (2011 IL H.B. 3782 (NS)) in considering legislation to prohibit this practice.  It seems likely more states will follow.

To stay up to speed on the status of these bills, or when new bills are filed in any state, you can set up a WestClip in the BILLTXT database using the following query:

employer /p username password (social +1 network! media) facebook e-mail

To watch for federal legislation on this topic, you can run the same query in CONG-BILLTXT.

It seems certain that the debate on this issue will continue and grow going forward, so it will be very interesting to watch the legislative developments and the number of states that consider bills to address this yet this session.

Arizona Congresswoman Gabrielle Giffords, who was seriously wounded in a shooting on January 8, 20011 at a constituent event in Tuscon, announced yesterday that she was resigning her seat in Congress to focus more fully on her recovery.

Arizona Rep. Gabrielle Giffords, who became a symbol of Americans’ hope and resilience as she tenaciously recovered from a gunshot wound to the head over the past year, announced Sunday that she is resigning from Congress this week.

. . . .

“I have more work to do on my recovery,” the Democratic congresswoman says in the video. “I’m getting better. Every day my spirit is high,” she says, speaking directly, deliberately and somewhat haltingly. “I will return, and we will work together for Arizona.”

2012 WLNR 1486923

As Rep. Giffords departs Congress, you can check out her legislative legacy on Westlaw using the following resources:

Floor speeches she made are available in the Congressional Record (Database ID: CR)

Search:  SP(Giffords) (189 docs)

The bill tracking for legislation she authored or sponsored during her time in Congress can be found in the Historical Bill Tracking database (billtrk-old).

Search:  au(giffords) & ci(federal) (60 docs)

Examples of her testimony before various committees in Congress can be found in the USTESTIMONY database.

Search: sp(giffords) (24 docs)

December 7 this year marked the 70th Anniversary of the attack on Pearl Harbor which signaled the entry of the United States into World War II.  As a remembrance of that fateful day, the federal government in 1998 enacted 36 USCA 129, establishing National Pearl Harbor Remembrance Day.  In that same act, Congress established the Pearl Harbor Survivors Association.  See 36 USCA 170301 – 170313.

As this is the 70th Anniversary of the attack, the ranks those who were there and experienced the events that day firsthand have begun to dwindle precipitously.

A fraction of the 84,000 U.S. service members who were at Pearl Harbor are alive today to bear witness. The Pearl Harbor Survivors Association counts 2,700 members, a number that grows smaller by the week. The November issue of the association’s quarterly newsletter, the Pearl Harbor-Gram, pays tribute to 44 members who’ve died. And the national president delivers the painful and “inevitable” news: The Pearl Harbor Survivors Association will be dissolved Dec. 31. 

2011 WLNR 25312907

Westlaw actually offers an interesting collection of materials related to the Pearl Harbor attack, including legislation passed in response, secondary sources, and even cases.  To see a good sampling, I ran the following search on WestlawNext in the All Federal jurisdiction:

adv:”pearl harbor” /s attack

You can view a PDF version of the actual Declaration of War at 55 Stat. 795.

Amazon.com’s recently unveiled Kindle Fire tablet computer is being hailed as the first serious competitor to Apple’s industry-leading iPad. The Fire features a smaller 7 inch screen with no camera and no network plan, but amazon.com will provide access to thousands of apps for the Android-based operating system and free cloud storage. With a starting price of $199, it offers a substantially less expensive option than the iPad, which starts at $499. It also undercuts Blackberry’s Playbook, which was starting at $499, but those prices were slashed days before the reveal of the Kindle Fire.

Westlaw provides many business news and company information resources that may help answer that question.

Analysts Reports (INVESTEXT-PDF)

This collection includes full-text research reports written by investment specialists from leading brokerage houses, investment banks, and financial research firms (Cathay, Datamonitor, Bear Stearns, Credit Suisse, and many others).  A simple search for “tablet” in the title of these reports delivered many results including:

Amazon Fires Up the Kindle, Changes the Tablet Landscape from Current Analysis.  It includes the following sections.

Competitive Strengths Competitive Weaknesses Response & Recommendations

Perphaps the real benefit of this search, however, is that it shows us how we might search for future analysis.  Our relevant result was indexed like this:

Industry: TELECOMMUNICATIONS Language: ENGLISH Report Type: IR

So, a recommended query for a WestClip alert might look like this:

IND(“TELECOMMUNICATIONS”) & TI(TABLET) & RT(IR)

The abbreviations here have the following meanings:

IND = Industry

TI = Title

RT=Report Type

IR = Industry Report (vs. Company Report)

You might consider alternative terms for “tablet” or leave the term out of the title field.  Or, include the term “Kindle,” of course.  The query searches a shell document which houses basic bibliographic information, the table of contents for the report, and a pdf of the report itself .  The search is free.  You pay for the pdf.

Fair Disclosure (FINDISCLOSURE)

This database includes very frequently-requested company information: transcripts of analyst’s calls to the executives of publicly traded companies. This database is also indexed for company name, industry, and other information.  For our purposes, however, we found simple key word searches seemed to work the best:

hld(apple amazon) & ipad! kindle!

The hld (headline) field helps ensure the transcript is from the company you wish to research.  However, we found several transcripts where various firms discussed their use of these devices.  So, if setting up an alert to track adoption and use, the best search might simply be:

ipad! kindle!

EDGAR

EDGAR is another source for valuable corporate financial information.  You’ll also find it on the Westlaw Company Information or Securities Practitioner tab.  For Amazon.com securities filings form the last two years, try the following search:

cn(amazon.com) & da(aft 2009)

Stock Prices

Amazon’s stock price may be another barometer of the Fire’s initial reception.   For daily and historical quotes, try the Quotes Service.  On Westlaw.com you’ll find it on either the Company Information or Securities Practitioner tab, or via Site Map under “Alerts.”  On WestlawNext select “Business Information” on the “All Content” tab. Get the last closing price or track closing prices over a daily, weekly, monthly or yearly range.

News

Of course, there’s always news. For Kindle Fire news and product reviews, try the following search in the database ALLNEWSPLUS on Westlaw.com or the News content on WestlawNext (you may want to sort your results by date):

hld(kindle-fire)

With the field of presidential candidates taking shape, and Election Day only 14 months away, national campaign and election issues are again coming into focus.   There are many resources available on the Westlaw Elections tab to facilitate researching these issues.  Here are a few of the highlights.

The Elections tab contains State and Federal election law cases (ELECTION-CS), federal election statutes (ELECTION-USCA) and regulations (ELECTION-CFR), as well as a very useful selection of 50 State Surveys for election law issues, including Candidate Filing Requirements, Limits on Contributions and Marking and Counting Ballots.

Court filings are found in ELECTION-FILING and ELECTION-BRIEF.  Try the  following query to retrieve campaign advertising-related filings:

ADVERTI! /10 CAMPAIGN

The database ELECTION-2008 is a nice combination of election-related trial filings and news, including newspapers, magazines, journals, transcripts and wires, not limited to the 2008 election.  To demonstrate its currency, try the following search:

 BACHMANN /p DEBT-CEILING

In what it claims is the first offering of its kind in the world, a Chinese company, Sunshine Insurance Group Corporation, is offering an insurance policy for virtual property owned in cyberspace.  The company seeks to fill what, I presume, is a market void in the offering of coverage for property held in fee simple absolutely imaginary.

The market for role playing games has proven to be a profitable one, with users buying the games, paying monthly access fees, and in many cases, using real money to purchase property and items in the virtual realm.  It only stands to reason that the people putting that money out want to know that their interests are protected.  According to China Daily (database identifier CHDY), the company seeks to create the virtual property insurance amid an increasing number of disputes between online game operators and their customers, often related to the loss or theft of players’ “virtual property” such as “land” and “currency.”

A Sunshine Insurance spokesman said the insurance will help to reduce operating risks for online gaming companies, as the companies which purchase the insurance will be covered to compensate customers in the event of lost or stolen property.

The spokesman said that the insurance agreement is also a landmark achievement for the insurance industry, as it marks the industry’s first foray into the online gaming sector.

7/7/11 WRLDNWSC 07:49:02

So does a gamer have an insurable interest in his pretend property?

According to Couch on Insurance, they just might!

Generally, a person has an insurable interest in a property whenever he or she would profit by or gain some advantage from the property’s continued existence or suffer some loss or disadvantage by its destruction.  If the insured would sustain a loss by the destruction of the insured property, it is immaterial whether he or she has any title in, lien upon, or possession of, the property itself.  Any right that may be enforced against the property and that is so connected with it that its injury or destruction will cause loss is an insurable interest.  Thus, any interest in property, legal or equitable, conditional, contingent, or absolute is insurable.  Even a mere right to use property is insurable, and the lack of an obligation to pay rent is inconsequential to the property’s insurability.

3 Couch on Ins. § 41:11

So if the loss or destruction of your Abandoned Greatsword puts you at a disadvantage against the trolls and goblins, you might be able to collect!  I wonder if this means I can carry full coverage on my Mario Kart?

Other References

See also this from Robert Paul Norman:

This article discusses some of the insurance issues arising from e-commerce conducted under traditional insurance products and reviews the new policies being promulgated for cyberspace.

Virual Insurance Risks, Brief, FALL 2001, at 14, 15

Undoubtedly the recent revelations regarding “Operation Fast and Furious” conducted by the Bureau of Alcohol, Tobacco, and Firearms raises a whole host of legal issues.  But one in particular that surfaced in a new report the other day sparked my interest. 

A piece in the Washington Times on July 6th contained this snippet:

In the letter Tuesday to Mr. Holder, Mr. Grassley and Mr. Issa said they were “disappointed” that the Justice Department failed to tell Mr. Melson he had the right to choose a voluntary interview rather than participate with counsel representing the department’s interests.

Now to me, this poses that classic law school professional responsibility query:  Who is the client?  When a Department of Justice lawyer represents the head of a government agency at a Congressional hearing, who is the client?  Is it the administration at whose pleasure the attorney serves, the DOJ, the ATF, or the individual himself?

Turning to a quick plain language search of All Federal materials on WestlawNext,

client of federal government attorney (14) Content: Overview Jurisdiction: All Federal

 perhaps the most interesting guidance comes from the CFR.

 Attorneys employed by any component of the Department of Justice who participate in any process utilized for the purpose of determining whether the Department should provide representation to a federal employee, undertake a full and traditional attorney-client relationship with the employee with respect to application of the attorney-client privilege.    

28 C.F.R. § 50.15(a)(3).

 Under the circumstances described in section 50.15, where a government official has been “sued, subpoenaed, or charged in his individual capacity” and “when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee’s employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States,” the individual is the client.  So Ken Melson, acting director of the ATF would be the client in a hearing before Congress.

But what if Melson is ultimately determined to be the one responsible and he now faces criminal charges stemming from this program?  Again, section 50.15 provides an answer, but it doesn’t really lay the question to rest.

Representation generally is not available in federal criminal proceedings. Representation may be provided to a federal employee in connection with a federal criminal proceeding only where the Attorney General or his designee determines that representation is in the interest of the United States and subject to applicable limitations of § 50.16. In determining whether representation in a federal criminal proceeding is in the interest of the United States, the Attorney General or his designee shall consider, among other factors, the relevance of any non-prosecutorial interests of the United States, the importance of the interests implicated, the Department’s ability to protect those interests through other means, and the likelihood of a conflict of interest between the Department’s prosecutorial and representational responsibilities. If representation is authorized, the Attorney General or his designee also may determine whether representation by Department attorneys, retention of private counsel at federal expense, or reimbursement to the employee of private counsel fees is most appropriate under the circumstances.

28 C.F.R. 50.15(a)(4)

If the prosecuting division indicates that the employee is the subject of a federal criminal investigation concerning the act or acts for which he seeks representation, the litigating division shall inform the employee that no representation by Justice Department attorneys will be provided in that federal criminal proceeding or in any related civil, congressional, or state criminal proceeding. In such a case, however, the litigating division, in its discretion, may provide a private attorney to the employee at federal expense under the procedures of § 50.16, or provide reimbursement to employees for private attorney fees incurred in connection with such related civil, congressional, or state criminal proceeding, provided no decision has been made to seek an indictment or file an information against the employee.

28 C.F.R. 50.15(a)(8)

The Department can’t represent an individual it knows it intends to prosecute.  But what if it doesn’t know and the Congressional hearing provides the impetus for the charges?  That opens a whole new can of worms.

All in all, with so many questions and problems swirling around this issue, if I were in Melson’s shoes, I think I’d be giving a long hard look at 28 C.F.R. 50.16 - Representation of Federal employees by private counsel at Federal expense.

As I was reading about the launch last week of Facebook’s face recognition software that automatically “tags” photos that look like you, I was reminded of those “separated at birth” magazine features that would pair two carefully selected photographs of unrelated celebrities and the juxtaposition would highlight their similarities to funny, sometime hilarious, effect.  Now, instead of magazine editors eyeballing side-by-side photographs, Facebook software is drawing the comparisons. While having a computer map your face and match it to a photo might be kinda creepy, I for one will not object to an automatic photo tag and might even enjoy a mis-tag if it means the revelation of some random far away twin.   

Privacy advocates are less humored.  The Electronic Privacy Information Center (EPIC), joined by The Privacy Rights Clearinghouse and Consumer Watchdog and others, has filed a complaint (pdf) with the Federal Trade Commission (FTC) to order Facebook to suspend the feature.  Members of the Congress have expressed public support for the complaint and have encouraged further FTC involvement. Yesterday the Connecticut Attorney General requested a meeting with Facebook to discuss photo tagging. 

The concerns center less on the creepy factor, and more on Facebook’s policy of automatically enabling the feature instead of offering its users the option of enabling it themselves in the first instance. Unless Facebook users affirmatively opt-out by following a series of detailed steps on the site, they will automatically be subject to the feature and run the risk of having the system identify (or misidentify) them is photos. Further, once an automatic tagging takes place, the tag might be shared and stored without the knowledge of the user. To undo this, users are forced to search for the disclosures and then figure out how to deactivate the tags. 

Facebook defends opting-out by pointing out that the policy facilitates “sharing” and “community building,” concepts that all Facebook users buy into when they sign up for the service.  But some commentators are suggesting ulterior motives – that by capturing identity information from unwitting users and those less savvy about navigating the (somewhat confusing) privacy settings, Facebook is mining for data in an attempt to “inflating its commercial value as it nears an initial public offering.”    

Facebook is certainly no stranger to privacy objections. EPIC  has now filed three complaints with the FTC questioning Facebook privacy settings and challenging the dissemination of address and phone information to third-parties.  Facebook has also been listed as a defendant in at least a dozen cases involving privacy concerns, the two most notable of which are the In re Facebook Privacy Litigation (5:10cv02389) case currently making its way through the Northern District of California court system and a class action complaint (2011 WL 1663627) filed in the Eastern District of New York just last month alleging that Facebook misappropriated the names and likeness of minors without parental consent.* 

But it remains unclear whether any laws have been broken or rights violated.  Courts have long held that there is no expectation of privacy in information an individual knowingly exposes to the public. See e.g. California v. Greenwood, 486 U.S. 35 (1988).  Nor was I able to find any case drawing into question the practice of up-front gathering of personal information on websites for behavioral or advertising purposes.

To date, no court has ruled against Facebook in a case with wide ranging privacy implications.  

*I searched Westlaw for Complaints against Facebook using the following terms and connectors in FILING-ALL:

 (TI,PR(FACEBOOK) & (PRIVACY /3 INV! ACT SETTING CONCERN) & (CONSUMER /3 PROTECT!) (UNFAIR! /3 COMPET!)) & ((DT(COMPLAINT PETITION) % DT(BRIEF MOTION MEMORAN! REPLY RESPONSE ANSWER COUNTER-CLAIM COUNTER-PETITION CROSS-CLAIM COUNTER-COMPLAINT COUNTER-SUIT)))

I follow the legal happenings of the amusement industry as part of another blog I write. I find it useful to set up a Westclip as a way of monitoring recent opinions issued in the amusement industry area.  Based on the number of type of results I received over the past 9 years, I have tweaked my Westclip on several occasions to add new concepts to my search.

Recently, my Westclip informed me of the case of Pickaway County Skilled Gaming, L.L.C. v. Cordray 2010 WL 3972575 (Ohio 2010), in which the Ohio Supreme Court reviewed Ohio Statutes R.C. 2915.02(A)(2) and R.C. 2915.01 (AAA)(1) when an operator of a members-only amusement game arcade that handed out cash prizes to players challenged the $10 prize limit for each play on its machines, arguing that the limit was not rationally related to determining whether amusement machines are based on skill or on chance which violated the Equal Protection Clause of the United States and Ohio constitutions.  R.C. 2915.02(A)(2) states that no person shall “[e]stablish, promote, or operate or knowingly engage in conduct that facilitates * * * any scheme of chance.” R.C. 2915.01(C) defines “scheme of chance”; the subsection specifically states that a “scheme of chance” does not include a skill-based amusement machine. These types of machines range from games (e.g., Skee-ball and Whack-a-Mole) commonly found at fair and amusement-park midways and in family fun centers to more sophisticated skill-based games found in the members-only arcade that was involved in this case.

In response to a documented “increase in the number of illegal gambling machines around the State of Ohio,” Ohio Governor Ted Strickland issued Executive Order 2007-28S on August 22, 2007.  Through this Executive Order, Governor Strickland declared an emergency justifying suspension of the normal rulemaking process and authorized the attorney general to immediately adopt former Ohio Adm.Code 109:4-3-31. Executive Order 2007-28S at ¶ 9-10.  Shortly thereafter, the Ohio Attorney General closed Pickaway County Skilled Gaming (“Pickaway”) in violation of the new rule and Pickaway challenged the rule and requested an injunction.  While the challenge was pending, the Ohio House of Representatives passed Sub.H.B. No. 177, which, among other provisions, amended R.C. 2915.01(AAA). The bill incorporated into the statute much of the language defining “skill-based amusement machines” that had been set forth in Ohio Adm.Code 109:4-3-31, including the ten-dollar prize-value limit.  Now the Ohio Attorney General defends the statute saying that the limit is rationally related to two legitimate government interests: (1) establishing economic regulations governing the operation of skill-based amusement machines and (2) protecting against criminal acts and enterprises as a prophylactic measure against illegal gambling.

The Ohio Supreme Court agreed with the Attorney General.  According to the Court, “[t]he rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952.  The Court agreed that R.C. 2915.01 does help protect two valid government interests and “[u]nder the rational-basis standard, a state has no obligation to produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State Univ. Chapter, 87 Ohio St.3d at 58, 60, 717 N.E.2d 286. “[S]tatutes are presumed to be constitutional and * * * courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.” Eppley, 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12, citing Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323.

So how does one cope to have games within the statutory limits but offer big prizes?  As Pickaway stated in the case, because the dollar limit is based on each play, and R.C. 2915.01(AAA)(1) does not limit the number of times an individual can play a skill-based amusement machine, players can amass endless vouchers and redeem them for valuable prizes.

Don’t Ask, Don’t Tell *may* just have been made a thing of the past.

On Tuesday, U.S. District Judge Virginia Phillips issued an immediate injunction against the U.S. government’s further enforcement of its Don’t Ask, Don’t Tell (DADT) policy.  The government was additionally ordered to immediately cease all active discharge proceedings and investigations. The order can be found on Westlaw at 2010 WL 3960791.

Judge Phillips, at the end of a two week trial initiated by the Log Cabin Republicans and Service Members United, ruled the law to be unconstitutional as it violates service members’ free speech rights, due process rights and the right to petition the government for redress of grievances.

All eyes are now on the Obama administration.  Should the administration appeal the ruling, DADT may continue on as a policy.  If not, DADT may be done.  According to Fox News:

If the government does not appeal, the injunction cannot be reversed and would remain in effect. If it does, it can seek a temporary freeze, or stay, of her ruling. An appeal would go to the U.S. Court of Appeals for the 9th Circuit. Either side could then take it to the U.S. Supreme Court.

The administration has 60 days (and no legal obligation) to appeal Phillip’s ruling. If the November elections result in a Republican Congress, the likelihood of Congressional action to end DADT drops significantly,  making Obama’s campaign promise to end DADT unreachable but through his refusal to appeal this ruling. 

The clock is now ticking on the fate of this policy.

UPDATE: According to Reuters, the Obama administration has decided to request the judge stay her ruling pending appeal. //