Our New Pad

After a year of chillin’ in this delightful location, Cal Law is moving to a flashier pad. Henceforth, you’ll find the Legal Pad blog at http://legalpad.typepad.com, where we hope to continue to bring you thrill-a-minute commentary on California’s legal community and items of interest — nay, fascination — to lawyers everywhere. This blog will stay right here as an archive of a year’s worth of posts, so if you bookmarked somethin’ special, it ain’t goin’ anywhere anytime soon. But drop by the new site and update your bookmarks, your RSS feed (we’re still working on that — it’s been a hell of a move, and everything is still in boxes …)

Thank you to all the readers who have spent time here. We hope to see you (and read your comments) at the new Legal Pad.

— Brian McDonough, blog editor

GooTube’s Strange Bedfellows

Making the rounds of the Internet so you don’t have to, Legal Pad stumbled over Columbia Law School professor Tim Wu’s Slate article about whether YouTube is, in fact, a litigation mine field for its new owner, search behemoth Google.

Conventional wisdom (the blathering of blog and main-media expertologists) has it that YouTube, being riddled with obviously copyright-violating content, is gonna lose hard when the ever-litigious Powers That Beat in the entertainment industry (and their L.A. law firms) come gunning for it.

HP on the Hill: The Buck Never Stops

The Hewlett-Packard folk testifying before Congress today passed the buck so many times, it should’ve been the trigger for some unlikely C-SPAN drinking game. Start with Larry Sonsini, who in an e-mail to board member Thomas Perkins had said he’d look into the matter, only, no he didn’t. He told House members that he’d merely asked HP’s legal folks (Ann Baskins, this buck’s for you) if they were within the law, and got a yes, and said so in an unofficial capacity without even knowing what “pretexting” meant.

Patricia Dunn, the chairwoman who took no responsibility for the scandal but resigned anyway, was amazingly disingenuous about the infamous project smeared with her fingerprints. Oregon Republican Greg Walden marveled to HP CEO Mark Hurd that e-mails showed Dunn involved in everything from resources used to the names of the two-part leak probe (Konas 1 and 2 — Dunn likes Hawaii), while saying her testimony put her involvement “at the 30,000-foot level.”

E-mail Snooping Draws Fire in HP Hearing

The House Energy and Commerce Committee’s hearing on Hewlett-Packard’s boardroom mess this morning didn’t just focus on pretexting, the low-tech art of lying to people. Texas Rep. Michael Burgess got pretty worked up over a stealth technology that would’ve tracked a News.com reporter’s e-mail (if it had worked).

Burgess compared the e-mail bug to a wiretap on the phone in questioning Fred Adler, a former FBI agent who works in HP’s security unit. Adler disagreed.

“This was not a real-time interception that involves the reception of personal data,” he parsed.

“It’s like going through the mail in my mailbox,” Burgess replied, incredulous.

“I didn’t go through your mail,” Adler said flatly.

“It gives me the creeps that someone would do that,” Burgess said a few minutes later to former Chairwoman Patricia Dunn.

“It is surprising that it’s legal, isn’t it?” Dunn replied, unusually contentious after a morning of slightly befuddled testimony.

Dunn also fought hard when Florida Rep. Cliff Stearns tried explicitly to get her to accept some blame in the scandal. Dunn referred to her submitted testimony and squabbled with the congressman a bit before insisting, “I do not accept personal responsibility for what happened but I’m very sorry.”

Stearns suggested the scandal might’ve led her to consider resigning.

“I did resign,” Dunn said, brightly offering to do so again if it’d help.

Elaborating more soberly on why she quit if the scandal wasn’t her responsibility, she blamed the press coverage.

“I think finally the board decided I was a major distraction to the company getting over this problem. They asked me to resign,” she said.

— Brian McDonough

Google PACs for Washington

The Silicon Valley giant Google, the search engine whose motto to do no evil has not always allowed it to avoid controversy, is making a hardcore move into the world of politics. News.com confirms an earlier report in Washington that the company has formed “Google NetPAC,” a political action committee with the mission of advocating, you know, stuff that’s good for Google.

Lately, the company has been the subject of a number of legal questions. It’s book search project has created a lot of foes among copyright holders. The degree of data contained in its databases unnerves some observers (and users), it apparently knuckled under to Chinese censorship, and it has participated in the debate over Net neutrality, in which broadband providers want to charge more to deliver some high-bandwidth content over their networks. Oh, and it was the only major search engine to refuse to give search data to the Justice Department. Top that off with the steady expansion of services offered by the Mountain View company and you’ve got an awful lot of reasons to talk to politicians.

And if there’s one thing Washington politicians are always searching for, it’s a well-funded PAC.

— Brian McDonough

Most Hostile Work Environment: Semi-Finalist

A Ninth Circuit opinion (.pdf) issued today takes up the issue of sexually hostile working environments in a fairly extreme context: A prison full of really, really bad men.

Deanna Freitag was a guard at California’s Pelican Bay State Prison. Her sexually hostile work environment was provided by inmates who took to masturbating in front of Freitag — in the showers or in the prison yard — for up to 30 minutes at a time.  And there were details involving a cafeteria tray that won’t be repeated here. 

Suffice to say, a damned hostile environment. Rather than busting the offending offenders over the head with a club (illegal but not entirely unforgivable, perhaps), Freitag filed the appropriate reports to trigger punishments for the deviant detainees. Her supervisors’ responses were underwhelming, to say the least. Reports were discarded or acted on too slowly to be implemented, and then a pattern of retaliation against Freitag was implemented. The pettiest of which: She was investigated for misusing prison resources — using the copier and phone to pursue her complaints against the prison.

More Woes for Women in the Legal World

Legal Pad got a pretty decent readership spike with the item we posted late last week about the Forbes article suggesting that “career girls” — such as lawyers of a certain gender — make lousy mates. If hiking our hits is as easy as pointing out the crap women have to deal with in the legal profession, our future is secure:

Lawyers Needed in Online Fantasy World

There’s this MMORPG out there, called Eve Online. It is a science fiction virtual universe in which players from around the (real) world log in and play like they’re, um, Vulcans or Cylons or something. There’s rockets and space stations and wretched hives of scum and villainy. One glaring new example: massive fiscal malfeasance — an S&L-style scandal that calls for a virtual white-collar-crime task force. Or, some irate gamers say, real-world legal action.

A Whole New Frontier of Electronic Discovery?

News.com’s Declan McCullough reports that a federal move to log everything you do on the Internet gained a little steam today. Baby Bell broadband provider Qwest Communications has said it backs a bill that would require your broadband provider to keep track of what you do on the Web for at least a year — with an option to let the FCC extend that to “for at least a year after you cancel your service.”

Data retention is being touted as a boon to law enforcement fighting terrorism and child exploitation, but of course, once it’s known that such records are kept, how could local police not want them for a whole range of investigations? How could litigation involving the whole range of civil issues not lead to subpoenas for home broadband records? As the infamous AOL data leak revealed, that kind of information can create a disturbing — and revealing — personal portrait.

“Qwest’s enthusiastic endorsement of mandatory data retention could make it politically easier for members of Congress to enact new laws even if other companies remain staunchly opposed,” McCullough writes amid a fistful of links to the legislation and to coverage of the issues of data privacy.

— Brian McDonough

Law Profs Scrutinize ACLU v. NSA Ruling

If you’re the type to enjoy a meaty discussion of constitutional issues — and who of us isn’t? — you should check out the hubbub over U.S. District Judge Anna Diggs Taylor’s decision in ACLU v. NSA. While every mainstream news outlet has the basics of her fiery opinion, you have to dig a little deeper into the legal community for some of the more interesting discussion.

One of the best places to go is Balkinization, the group blog headed by Yale law professor Jack M. Balkin. Since Thursday, Balkin and co-blogger Marty Lederman, a law prof. at Georgetown, have posted three thoughtful commentaries on the ruling, which have generated interesting discussion from readers. There are also links to the opinion and other media. The profs put Taylor’s ruling under a microscope and find that there’s plenty of rhetorical energy but not a lot of substantive matter underneath.

Balkin’s post mining the “secret advantages” of the ruling — which he sees as a bad road to a good destination — is particularly interesting if you’ve been watching this issue. He suggests Taylor’s opinion may be a masterful preparation for inevitable appellate review: Most of the reasoning, he says, won’t stand up, but she has shaped the argument in a way that is likely to preserve her outcome.

(Legal Pad tips its cap to Slate’s invaluable “Today’s Papers” daily news roundup, which led us to the Balkinization blog.)

— Brian McDonough