Ethics of Storing and Sharing Information in the Cloud

Fluffy clouds over happy trees.

In yesterday's Tech Tuesday blog post, we looked at news stories about the consequences of not knowing how to use basic technology. Keeping pace with current events, we draw your attention to another example from Paul Manafort's woe. While out on bail and awaiting trial on his federal conspiracy and money-laundering charges, Mr. Manafort was further indicted for obstructing justice and conspiring to do so by influencing the testimony of potential witnesses. He was caught using the encrypted messaging app WhatsApp in order to secretly communicate with people he expected to testify in his case. Unintentionally documenting his deception, he accidentally automatically backed up those WhatsApp communications to his iCloud account, providing an access point for authorities to obtain the messages. The end-to-end encryption capabilities of WhatsApp were rendered pointless when he uploaded an unencrypted copy of the transcript to the cloud.

"The Cloud" refers to shared storage and system resources made commercially available through the magic of the Internet. Essentially, rather than using your own space and materials to store information, either electronically or in physical files, you can store your information using someone else's space and materials. But unlike the old days when your file boxes might be hauled off in a truck to a warehouse where you could request to have them pulled on demand and driven back to your office, information stored in the cloud is available immediately, 24/7, as long you have Internet access and your login credentials. 

This has obvious appeal for lawyers, especially attorneys in small practices, who in the past were forced to dedicate a substantial portion of office space to document retention. Still, the ethical implications of simply passing client materials off to the control of a third part gives pause. As state bar associations weigh in, cloud computing is an increasingly legitimate way to retain attorney work product, but lawyers must know how to vet cloud services and otherwise hold up their end of the bargain.

A great way to learn more, and to earn free Texas Ethics CLE credit from the comfort of your own home, is to watch "The Ethics of Cloud Computing" as part of the Harris County Law Library Legal Tech Institute "Learn on Demand" series. Check it out today!

Judicial Review

Justice John Marshall was the first to flex SCOTUS's Judicial Review muscle. 

There is a commonly held, but incorrect, belief that Judicial Review in the United States began with Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). While this ruling marked the first time the Supreme Court held a law passed by Congress to be unconstitutional, the roots of Judicial Review in our land go even deeper, stemming beyond the Constitutional Convention, beyond Federalist No. 78, and even beyond 18th century British colonization in North America.

Jamestown, the first successful, permanent British settlement in North America, was established by the Virginia Company of London in 1607. Puritan separatists landed near Plymouth Rock in 1620. Judicial review existed in some form or another in 17th century England until William of Orange overthrew James II in 1688, but remained in the collective consciousness of the geographically separate North American colonists. By the time the Constitutional Convention rolled around in 1787, a majority of the newly formed states had already witnessed the power of Judicial Review exercised by their own supreme courts.

Despite dying in Greenwich Village in 1804, Alexander Hamilton can now be seen nightly on Broadway.

Though the Federalists and the Anti-Federalists argued over the level of power the Federal Judiciary should be able to wield over the co-equal Executive and Legislative branches, the record is clear that Judicial Review was a foregone conclusion on both sides, and the question was one of limitation. Jefferson fretted that the Judicial Branch would become the ultimate arbiters of what is or is not Constitutional, and would rule like oligarchs. Hamilton argued that the Judiciary was the weakest branch, and that its existence would ensure its own continued weakness by encouraging the Legislative and Executive Branches to preemptively conform their works to Constitutional restraints.

The 1953 Warren Court attempted to desegregate American schools through its Brown ruling.

Fashion Law: A New Frontier

Law librarian uniform, standard issue.

Law librarians are no strangers to fashion. Anyone familiar with our cardigan game knows what I’m talking about. Increasingly, other lawyers are catching up, with fashion law rapidly expanding as both a practice area and a field of general interest.

What even is fashion law? It covers everything from intellectual property, to business, to international human rights.

Classic cinema.

Traditionally, fashion has enjoyed only limited intellectual property protection in the United States, where clothing design has been considered such an essential (or maybe inessential, depending who you ask) part of culture development that copycats have been encouraged by the market and the lack of legal constraints. Readers may recall the classic scene in “The Devil Wears Prada,” when Runway Magazine editor Miranda explains this phenomenon to fashion neophyte Andy, who had no understanding of the lofty origins of her "lumpy blue sweater."

A recent Supreme Court ruling, however, has shifted the conversation. In Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. ___ (2017), the Court held that graphic designs applied to useful articles can be subject to copyright, even if those designs are apparently essential to the usefulness of the article. This ruling certainly favors large shops with the resources to create novel designs, register them with the Copyright Office, and litigate against smaller operations with fewer resources. However, it also means that independent artists will now have recourse when their designs are mass produced without permission by behemoths like Walmart or Urban Outfitters.

The cheerleader uniforms at the heart of the Star Athletica case.

View of the Dhaka, Bangladesh river walk.

The fashion industry is using the law to combat human rights abuses long associated with “fast fashion.” An international organization called Fashion Revolution is leading the charge to provide safe working conditions and fair wages for everyone employed by the industry, including floor shop laborers in developing nations. International scrutiny of these issues increased significantly in the wake of the November 2012 Tazreen Fashion factory fire, which killed at least 117 workers in Dhaka, Bangladesh.

Attorneys and legal professionals can now obtain specialized degrees in fashion law. The Fashion Law Institute at Fordham Law School offers both an LLM and MSL in this burgeoning space, as well as two CLE “bootcamp” events, one in New York and the other in San Francisco.

Interested to learn more? Check out The Fashion Law, which tracks legal developments in the fashion industry.