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Drug Testing In The Workplace? The Tradeoff Between Employee Productivity, Firm Cost & Future Lawsuits

It’s been a quarter of a century since the federal Drug-Free Workplace Act was passed, which created requirements for federal government workers and contractors. Today, more than a third of private employers have drug-testing policies, reports NPR. However, with marijuana now legal in two states and approved for medical use in nearly half, what is the future for U.S. drug policies?

Lara Makinen, legislative affairs director in Colorado for the Society for Human Resource Management, says employers are getting a very mixed message.

“We’re being told, ‘Keep your policy as it is, but proceed with caution, because if people are fired…” said Makinen to NPR.

“We probably will see lawsuits.'”

But lawsuits aren’t new to the drug-testing industry.

In 2011, a federal judge issued a temporary injunction against the enforcement of a divisive Florida law that requires “suspicionless drug testing” for all welfare applicants before distributing benefits.

The American Civil Liberties Union (ACLU) filed on behalf of a single father in Orlando a lawsuit that alleges Florida’s law violates Fourth Amendment rights for safeguard against unreasonable search and seizure.

Enacted in May 2011, the new law applies to any adult applying to the federal Temporary Assistance for Needy Families program. Those who qualify for assistance are reimbursed for the test in their welfare benefits.

Florida Gov. Rick Scott was one of the law’s biggest advocates, claiming the law would evoke “personal accountability.” Scott also said it would be “unfair for Florida taxpayers to subsidize drug addiction,” quotes John Couwels in an article for CNN.

Governments are not alone in believing individuals should be held personally accountable for abusing illicit drugs, which is why polls show over half of employers in America (57%) still conduct drug tests. Some agencies report this number is on the rise.

Obviously, law firms, like all businesses, aspire for a drug-free workplace. But they also aspire for a productive one. And, it turns out, whether because they represent a level of distrust on the part of the firm or because employees dislike the violation of their privacy, drug testing decreases productivity in the workplace.

A recent study investigated 63 “hightech” firms in the computer equipment and data processing and found that drug testing had “reduced rather than enhanced productivity,” reports the ACLU. Firms with pre-employment testing, versus those with no drug testing at all, scored 16 percent lower on productivity measures. Firms with both pre-employment and random testing were 29 percent less productive than those companies without drug tests.

In addition, drug testing is expensive.

In 1990, the federal government spent $11.7 million to test selected workers in 38 federal agencies. However, of the roughly 29,000 tests taken, only 153 (.5%) were positive for illicit substances. The cost of finding a single drug user—and in this case, over half were moderate, occasional users of marijuana—amounted to $77,000, according to the ACLU. Not to mention, among these employees, there’s always a risk of a false positive.

These reasons might explain why the percentage of employers with testing programs has dropped steadily over time, from 81 percent in 1996 to 62 percent in 2004, according to the American Management Association, cited by TIME. The trend is expected to continue.

Drug testing is no guarantee that you’ll actually catch a drug user.

In Colorado, for example, which has legalized pot, the standard urine test most commonly used in employer drug testing measures the presence of THC—a psychoactive compound in marijuana. But this compound stays in the body for days, weeks, and sometimes longer. So a positive marijuana test may not, necessarily, mean the person taking the test is high on the job. It may not even mean the user has taken the drug recently. Read more about this type of situation on NPR’s story, “Colorado Case Puts Workplace Drug Policies To The Test.”

In the end, if your firm has concerns, there are myriad other more effective and less invasive means to encourage a drug-free workplace:

Substance Abuse Programs And Counseling. Make sure substance abuse, mental health, and counseling programs programs are covered by employer-paid medical insurance. When an employee requests a mental health holiday, accept it.

Preventative and remedial measures to permanently eliminate addiction is far better for the firm and its associate than just identifying such a person, and putting them out on the street.

Comprehensive Reference Checks. In-depth reference checks of potential future employees are equally effective as drug testing. It’s more than likely that a previous employer has noticed patterns of abuse, or has an opinion regarding that employee’s professional conduct. Ask to speak with the employee’s former supervisor, as opposed to the Human Resources representative. Don’t be afraid to ask blunt (but not discriminatory) questions.

Workplace Training and Employee Investment. Enroll your law firm partners and administrators in programs geared toward the identification of drug users in the workplace. These programs also teach remedial actions to confront and appropriately advise these users.

In addition, instead of corporate retreats or costly drug tests, spend money on employee wellness programs—including fitness programs, healthy meals, or in-house massages.

Reducing stress in the office will keep your employees from self-medicating during those long work hours and client meetings. Plus, it sends the opposite message, from mistrust, as with drug tests, to one of support and advocacy.

Learn how to transform your tired, disengaged workforce into a motivated team of top-notch employees — in any economic climate. By participating in C4CM’s in-depth audio conference “10 Critical Methods to Increase Employee Engagement and Improve Job Satisfaction.”

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Reach, Engagement & Shareability: Metrics That Matter For Law Firm Social Media & Attracting New Clients

The Internet age. Upside, you get to work from home when you don’t feel like going to the office. Downside, you have to work at home when there’s a blizzard.

Alleviate your workload through social media, if not through a snow day (due to Juno’s underwhelming presence).

Social media has empowered businesses and consumers alike. Individuals have never held so much influence in changing the world with just one click of a button. At the same time, businesses are empowered to advertise their products and services to a market much larger than before.

At first, law firms were a bit slow to take advantage of digital days. Not anymore. Now it’s necessary to task young associates with managing your Facebook page, Twitter account, and—hopefully—blog posts, or risk your bottom line by falling behind.

Here’s how your firm gets noticed:

1. Publish your posts on media aggregators.

Upside: Websites like Reddit, Shoutwire, and Digg allow individuals to submit links to websites, blog posts, or any Internet-based page. The community of readers then votes up (or down) the link based on a review of its content. Create flashy titles and you’ll likely see in a flash the rise of your readership.

Downside: Comments by readers can be harsh. The anonymity of the Internet allows people to wriste down criticisms (NSFW) that may end up permanently cached on the World Wide Web.

2. Add website sharing buttons.

Upside: Your firm’s website should have links to all of your social media accounts, as well as ways to share your posts. Programs like “Click to Tweet” make this easy.

Downside: Your firm may need a small amount of Internet savvy to create buttons on your website and restore broken links.

3. Create interesting content.

Upside: Remember to write thoughtful arguments accompanied with eye-catching photos. There’s so much competition already when it comes to online content, your firm’s additions must stand out.

Downside: Yes, this requires a little more time and thought to write captivating posts and tweets. Consumers would rather see the “Yeti Seen Prowling the Streets Near Boston” than your tips about hiring Of Counsel at your company.

4. Do your research.

Upside: If you know what time your readers are logging on then you’ll know the best time to publish your posts. Maybe you’re getting a lot of hits first thing in the morning. People are remiss to start work at 8am and decide to read legal news or browse the web. With this knowledge, you can now set your social media to publish at certain times to target your audience.

Downside: Due diligence on your casework is no longer enough. Time to do due diligence on your business development, too.

5. Crossover multiple social media platforms.

Upside: Happy you finally mastered the art of blogging for your firm? Time to summarize that blog post on your LinkedIn and Facebook page and compile a 140-character hook for your Twitter account. Don’t be afraid to repeat the same ideas on different mediums.

Downside: Now you’ll have to memorize more usernames and passwords. More social media means more potential backlash.

In the end, it’s possible to get your firm’s name and reputation out there. In fact, the Social Law Firm Index, developed by the Above The Law Blog has a formula that measures social-media metrics. It looks at:

Reach. Represents the total number of unique people who had an opportunity to see the firm’s content. Reach would include number of followers on Twitter and/or LinkedIn, company page likes on Facebook, and followers or subscribers on other social media channels (for example: YouTube channel subscribers or Slideshare followers).

Engagement. Measures the actual interaction with the firm’s content via social media. This would include comments or likes (for status updates) on Facebook, RTs or mentions on Twitter, and likes on LinkedIn.

Owned Media. An assessment of the firm’s own site (including microsites) based on, among other things, the proportion of non-promotional content, frequency of updates, and shareability of content.

So, what conclusions were drawn from this study?

First, size matters. If you’re a small law firm, it’s likely that your reach will never meet that of a Top-20 firm. See, for example, the Top 10 ranking in this Social Law Firm Index here.

But, there’s still hope for small firms. There was a much lower correlation between firm size and engagement. That means small firms can still have high interaction by potential clients in terms of likes (for status updates) on Facebook and LinkedIn, as well as retweets on Twitter.

It’s quality—not quantity—that matters.

The next finding is that from 2013 to 2014, the largest U.S. firms improved both the reach and audience engagement levels by more than 60 percent, on average. That means firms are getting more savvy about their social media and—more importantly—people are listening.

For law firms looking for reasons why they should spend time and money on social media, this finding is especially pertinent. Consumers of legal services are reaching out via social media. Facebook, LinkedIn, blog posts, and Twitter are helping reach new clients at an increasing rate.

Finally, the last important finding worth mentioning is that many firms that were lagging behind in 2013 moved to catch up with market leaders. And this was achieved at rates much more significant than the improvement among already active firms.

What does this mean for you? There’s still time to push social media at your law firm.

Your firm won’t regret that embarrassing Tweet sent out to its thousands of followers; it will only regret not tweeting at all.

How can you maximize the potential of social media while ensuring the appropriate use of intellectual property and customer information? What can counsel do to proactively protect brands from infringement by social networking website users?

As more and more businesses incorporate social media into the promotion of their products and services, they’re also finding that unauthorized use of their trademarks, service marks and trade names are emerging through these same channels.

In fact, a global infringement that once took weeks, months or years to occur, can now take shape as fast as someone can hit “enter” on their keyboard. And, once the infringement is out there in cyberspace, there’s no way of knowing if the offending material is ever truly deleted.

Take the Center for Competitive Management’s audio course, “Copyright and Trademark Enforcement in Social Media: Policing and Protecting Against Brand Infringement,” to learn more.

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Do Workplace Dating Policies Reduce Risk? An Unorthodox Solution By Philosopher Blaise Pascal.

When Blaise Pascal was just a teenager in seventeenth century France, he invented the first mechanical calculator.

Son of a tax collector in Rouen, perhaps Pascal’s interest in numbers and organization is not that unusual.

But Pascal applied his talent in mathematics in a variety of surprising ways.

At age 16, Pascal had already written a treatise on projective geometry and worked with Pierre de Fermat to develop theories in probability theory. Pascal was also an accomplished physicist.

However, Pascal is most likely remembered for his thoughts (Pensées) as a philosopher and mystic.

This month, albeit roughly 360 years earlier, Pascal had a mystical experience. He wrote down the date and from that point forward, always kept it on his person. The date, November 23, 1654, was found sewn into the coat that he was wearing on his death, writes the Guttenberg Project.

This conversion profoundly influenced Pascal’s future research. And, still with logic and statistics in mind, Pascal started to argue the existence of God.

The argument, called Pascal’s Wager, posits that humans all bet with their lives either that God exists or does not exist—imagine a statistical theory and its counterfactual.

Whether God does or does not exist—and assuming the infinite gain (heaven and reward) associated with the belief in God or infinite loss (hell and damnation) with the disbelief—Pascal claims a rational person should always live as though God exists. In the end, if God does not exist, such a person will risk minimal finite losses (certain pleasures, luxuries, etc.) whereas in the counterfactual case, such a person risks infinite perdition.

So, why are we discussing Pascal’s Wager? Well, lawyers, the same logic can be applied to the question: Do workplace dating policies reduce risk?

Office romances are highly pervasive.

“According to CareerBuilder’s 2012 annual office romance survey, 38 percent of respondents have dated a co-worker at least once in their career, and one-third of them ended up married,” writes a Workforce article.

Unfortunately, these office romances can lead to sexual harassment suits, claims of nepotism, and other liabilities for your firm.

Take a lesson from Above The Law reader whose windshield was smashed in by a colleague he dated (and whose chances of employment after his legal internship are now dubious at best). Define your workplace dating expectations and follow them yourself.

Whether it’s a zero-tolerance fire-able offence policy; a “love contract” where employees sign statements admitting an office relationship is consensual; or confidential disclosure where employees alert firm HR representatives of potential complications, define a policy. Circulate it. Enforce it.

Law firm professionals know best that there are always ways to shirk contractual obligations, terms of agreement, or policy requirements. But, implementing such policies is better than nothing at all and often works as a deterrent to litigation.

Think about Pascal’s Wager. If workplace dating policies don’t reduce legal liability risk, you’ve spent a minimal amount of time and effort implementing one.

However, if the liability does exist and policies deter or reduce this risk, then hammering out dating policies can substantially lower the costs of litigation.


Gossip about office romances? Learn how to cub this toxic talk with C4CM’s guide Effective Management of Workplace Gossip.

Need help drafting workplace policies? Bonus material includs sample social media politic and case studies.

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David Beats Goliath In Patent Troll Lawsuit

Is there any hope for small start-up companies involved in patent troll litigation? Underdog company Newegg seems to think so. With a recent win against mega-giant Alcatel-Lucent, Newegg gives hope to the little guy facing large legal power in patent disputes.

“It is truly, truly tragic how the mighty have fallen,” says Chief Legal Officer Lee Cheng about the Alcatel-Lucent corporate trolling activity to ars technica.

In 2011, Alcatel-Lucent looked like it was dominating the e-commerce market. Not in market share, but in market power—the kind of muscle that beats its way to the top. After suing eight major retailers, as well as Intuit, Alcatel-Lucent had settled each suit, one by one.

Even though Kmart, QVC, Lands’ End, Zappos, Sears, and Amazon all eventually folded, Newegg (and Overstock.com) held out.

“It’s an operating company that happens to hold a patent,” said Cheng to ars. “But it does nothing at all to bring the benefit of that patent to society.”

On principle, Newegg pursued the case, and won. First at trial in Texas, then last Friday in Federal Circuit court appeal via summary affirmance. It took the judges just three days to uphold the Texas trial ruling.

Apparently Alcatel-Lucent was not earning $12 million from Newegg for nothing.

“These are the Bell Labs patents,” Cheng explains. “This company was once the pride of American innovation, a company that has roots going back to Alexander Graham Bell. And it ended up selling off its patents for a few bucks. What Alcatel-Lucent did was really offensive.”

Offensive in the strategy sense, as well as the moral stance.

Cheng refuses to let Alcatel-Lucent off the hook. He continues (via ars):

“They systematically sent thousands of letters out saying, ‘Hey, we own 27,000 patents, and here are some patents we think you infringe.’ They had a whole licensing group whose job was to monetize these patents, by threatening litigation and in some cases litigating. It didn’t actually matter if you did your own analysis and got back to them and said, ‘Hey guys, we actually think we don’t infringe.’ The response was something to the effect of, well, we have 27,000 patents—and you probably infringe something, so give us a licensing fee.”

It’s not just a message to patent trolls that companies are prepared to fight for their intellectual property; it’s also a message to attorneys that firms are capable of combatting these suits successfully. With just three days for summary judgment, patent troll suits can even be defeated within a reasonable timeframe.

For companies looking to legitimately protect their patents, Newegg’s experience is also a good lesson in boilerplate legal jargon. Sometimes it’s necessary to pay your lawyers to investigate individual patent disputes and customize letters to infringers. From small to large, companies are no longer afraid of legal threats to sue. In fact, many are looking for you to do just that.

Law firms and their corporate clients should work together on an IP strategy, where an offensive policy doesn’t have to be an offensive one.

Sometimes IP litigation seems more like slinging gunfights in the Wild West, as opposed to educated businessmen deliberating on the bench. For now, Newegg’s president in patent protection should keep bandits at bay.


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Court Case To Decide Future Of FTC Regulation Of Firm Cyber Security Systems

America, in the 1800s, was filled with trusts. “Trusts” referred to giant businesses that controlled the lay of the land.

Think about the major economic drivers in the Wild West—railroads, oil steel—or other commodities—sugar, for example—and you’ll likely find a trust behind it. U.S. Steel and Standard Oil once ruled the supply, controlled the price, and generally monopolized the market in American in the nineteenth century.

The rich seemed only to get richer, which is why President Theodore Roosevelt sought to break up these trusts through legal action.

Teddy, with the help of Congress, soon passed The Sherman Act in 1890, which became the country’s oldest anti-trust law. In 1914, another anti-trust bill, the Clayton Act, was passed by Congress under President Woodrow Wilson. With it came the Federal Trade Commission, or FTC.

The FTC was an agency tasked to enforce anti-trust laws and regulate and oversee business practice to ensure fair and equitable competition.

More recently, the FTC started to work in conjunction with the Department of Justice to promote consumer protection and anti-competitive business practice.

The FTC’s professed mission, specifically, is to “prevent business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive process; and to accomplish this without unduly burdening legitimate business activity.”

The key players in trust regulation in Progressivist America could never envision the lack of trust consumers face today with the evolution of e-commerce. Today, the FTC’s mission of protection is being challenged on its home turf—in court.

Adding to the U.S.’s long history of anti-trust regulation, a case pending in the federal court for the District of New Jersey will decide whether or not the FTC has the right to oversee and regulate data security services provided to consumers by private firms.

Hotel conglomerate, Wyndham Worldwide Corporation, is challenging the authority of the FTC to enforce action against Wyndham and several of its subsidiary companies. The FTC’s action alleges Wyndham failed to secure the data and privacy of its customer accounts after a hacking incident claimed more than $10.6 million from Wyndham’s customers via fraudulent charges and the loss of information belonging to 500,000 individuals, according to the Westlaw Insider.

Deciding whether or not the FTC’s authority extends to oversight and regulation of the operations and other practices of private companies will definitely change the way firms can and will business. Audits to ensure firms have incorporated sufficient security measures are on the horizon, and fines for insufficient security measures would, then, be imminent.

And, although consumer protection and privacy concerns should be considered paramount to businesses, to what extent should the government be privy to the same concerns and information? Also, to what extent are businesses liable for implementing state-of-the-art cyber-protection software in the eyes of the law?

These days, breaches of online security—from cloud computing espionage to electronic spam to broken passwords (despite the alphanumeric complexity)—are common place.

The Wyndham case should certainly prompt law firms and the clients they represent to tighten those security belts before driving down the information superhighway—not just because it’s good sense and safe, but because it may soon be the law.

In our modern world, the Wyndham case serves as a gentle reminder for firms to be wiser about their computer security hardware and software, but also for governments to implement constitutional measures to find the source of this malware without violating the same privacy they seek to protect.

For more information about how to protect your firm, read “Cyber Attacks: Why Your Firm Is At Risk & How To Prevent Them.”


Read more about the history of the FTC in a fact sheet, here.

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Law Firm Security In The Age Of Technology–Human Error & Some Things That Never Change…

Security is on the minds of Americans these days. And, it seems, at least one law firm has developed paranoia.

King & Spalding announced to its employees this week that private e-mail will no longer be accessible at work. And, in the event firm network blocking measures are inadequate, employees have been advice not to open personal email accounts from a firm computer, according to a King & Spalding e-mail released by Above The Law Blog.

“The firm’s internal security experts, as well as our outside security experts, have advised us that accessing Personal Email Accounts from firm computers creates a significant security risk,” the widely-circulated e-mail states.

“The firm has installed a wireless network called ‘ksmobile’ in each office. This wireless network is reserved for K&S personnel (not clients or visitors who should be directed to the ksguest network), is a direct route to the Internet, and is appropriately sized to accommodate the many personal devices that are being used by K&S personnel.”

So, although checking personal e-mail on firm computers is prohibited, responsible and irresponsible Internet browsing is permitted on mobile devises, like smartphones. With network firewalls and digital security measures improving day-to-day, some wonder if this announcement isn’t a bit technologically too late.

However, what any number of firewalls, complex passwords, and e-mail prohibitions can’t solve is human idiocy.


“There’s no device known to mankind that will prevent people from being idiots,” Mark Rasch, director of network security and privacy consulting for Falls Church, Virginia-based Computer Sciences Corp. (CSC), said to Bloomberg.

Rasch is responding to an experiment conducted by The U.S. Department of Homeland Security where, in order to determine how easy it was for hackers to manipulate employees or gain access to computer systems, Homeland Security employees secretly dropped computer discs and USB thumb drives in the parking lots of government buildings and private contractors.

Not only did workers pick up those devises, but 60 percent of them plugged in the USB drives and inserted the discs into their office computers. If the devise displayed an official logo, 90 percent of workers installed the drive.

It turns out, curiosity does kill the cat—or, rather, scrambles the cat’s computer screen, steals its social security number, and swipes its confidential data through viruses, clandestine computer programming, and general digital mayhem, describes The Center For Competitive Management (C4CM)’s law blog.

“The test showed something computer security experts have long known: Humans are the weak link in the fight to secure networks against sophisticated hackers,” reports Bloomberg.

And, because 92 percent of lawyers agreed that email was the primary function of their smartphone in an ABA Legal Technology Resource Center survey, perhaps King & Spalding’s reaction isn’t as misguided as first believed. Accessing personal e-mails from a smartphone, according to participants, was more important than making a call, which goes to show how frequently lawyers rely on electronic communication, concludes an article about attorney mobile phone use.

Coupled with curiosity, perhaps law firms should consider even more stringent Internet policies.

It’s surprising how many liabilities and issues accompany Internet access in the office. And, smartphones open up an additional can of worms for curious cats.

Write a smartphone policy that addresses:

  • Handing data breeches
  • Use of company phones outside work
  • Wage and hour compliance
  • Text, talk driving issues
  • Text harassment
  • GPS tracking
  • Lost devices
  • Etiquette
  • Employee productivity
  • Photography in and out of the office

If you’re unsure how to draft a policy, including what kind of language and tone to use, take C4CM’s audio conference on crafting a bulletproof workplace policy for smartphones.

In the end, it’s important to write and implement a concrete and clear policy regarding Internet access, e-mail, and mobile phones. It’s important to highlight the security risks and repercussions for both employees and clients.

Make sure your employees know how to safely navigate the world wide web, only then will law firm managers have piece of mind when engaging in legal technology and software.

Remember, the “smart” in smartphone refers to requirements of the user, not the gadget.


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What Law Firms Need To Know About The Computer Fraud & Abuse Act

Earlier this month, during the opening day of the Austin music festival South by Southwest, an audience gathered to commemorate the life and achievements of Reddit founder Aaron Swartz, who—faced with serious computer-related charges—recently committed suicide with the weight of litigation and public pressure on his shoulders.

Aggressive prosecution under the Computer Fraud and Abuse Act has become the rule rather than the exception in the U.S.

Earlier this week, a federal judge sentenced notorious hacker Andrew Auernheimer to 41 months in prison for illegally accessing email addresses and other data belonging to more than 120,000 iPad subscribers from AT&T’s networks, reports Computer World, in conjunction with the Computer Fraud and Abuse Act.

AT&T alleged it spent more than $73,000 for breach notifications as a result of Auernheimer’s actions. However, in addition to full restitution for damages, U.S. District Judge Susan Wigenton of the District Court in New Jersey also attached a prison term.

The breached email addresses belonged to many high-profile names: New York Mayor Michael Bloomberg, New York Times CEO Janet Robinson, ABC’s Diane Sawyer, movie producer Harvey Weinstein, and former White House chief of staff Rahm Emmanuel, to name a few.

But, the true high-profile matter at hand is neither the fame of the hacker nor the celebrity of his victims. It’s the law regulating Internet use and its huge consequences for all world-wide-web users today.

Both private and public lawyers, including the Department of Justice, have been using the Computer Fraud and Abuse Act to prosecute computer hackers and laypersons alike. Anybody who violates the “terms of service” policy is at risk.

These days, a terms of service policy is more prevalent on websites than legal disclaimers, which only increases your risks of being in violation. Unfortuntately, people are unaware of the law, as well as the fine print it’s regulating.

“When judges or academics say that it is wrong to interpret a law in such a way that everyone is a felon, the Justice Department has usually replied by saying, roughly, that federal prosecutors don’t bother with minor cases—they only go after the really bad guys,” writes Tim Wu in an op-ed for The New Yorker.

“That has always been a lame excuse—repulsive to anyone who takes seriously the idea of a ‘a government of laws, not men.’ After Aaron Swartz’s suicide, the era of trusting prosecutors with unlimited power in this area should officially be over.”

Although the constitutional implications of this law are vast, it’s really the pragmatic ones that are of concern for law firms.

Law firms should take the time to understand this law before creating internal Internet policies. For example, what is your law firm policy on Internet use on company time? What about for desktop computers in the office vs. laptops that employees take home?

Under the Computer Abuse and Fraud Act, employees potentially face criminal sanctions by merely checking the latest Facebook posting or sporting events scores at work when it is not “authorized” by the firm (although more recent cases of litigation are going the other way).

Who is liable for potential breaches of the “terms of service” under the Computer Fraud and Abuse Act when employees use firm laptop computers out of the office?

Furthermore, are your clients aware of all the implications of this law for their business and home life?

In light of Aaron Swartz’s suicide, law firms should start to consider providing counseling for those clients who are being prosecuted. Swartz’s suicide is an apt reminder that while you—as a lawyer—may be comfortable with the progress and success of a case, your client may feel uncertain about both its future and his own.

What routines and practices has your law firm put in place to put at ease the minds of its clients?

Whatever your view on the legitimacy of the Computer Fraud and Abuse Act, it’s important to keep up with its most recent developments. The Volokh Conspiracy Blog provides occasional updates on its status in courts and Congress here.

Some argue, like Wu for The New Yorker, that America’s Common Law ancestry leads to a “rule of a lenity”, where ambiguous criminal laws should (de jure and de facto) favor the defendant.

The Supreme Court states, “When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite,” (via The New Yorker).

However, if this week’s events surrounding iPad hacker Andrew Auernheimer and his 41 months in prison is any indication, a rule of lenity doesn’t seem to be much of a rule these days at all.

For more information on the Computer Fraud And Abuse Act, and its implications for your law firms, click here.

In 2011, over 100 employers were accused of improper social media practices or policies, according to The Center For Competitive Management. If not to protect your employees from strict law enforcement, protect your firm.

If you’re unsure where to start, try research and a round-table discussion with a mix of junior and senior attorneys. Along with administrators, ask the group to create a social media policy that reflects their own opinions on the matter. Most likely, your employees will know best what types of social media uses actually constitute abuses.

A round-table discussion will also ensure your employees take the time to read workplace policy; after all, they helped write it.

Finally, if you’re still stuck finding solutions, start by attending C4CM’s course on audio CD, Developing a Social Media Policy: Clear Guidelines to Prevent or Reduce Employment-Related Problems.


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