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Blogger reads between lines of NSA lawyer’s ‘false myths’ speech, knowing what we know now

Posted Jun 7, 2013 8:30 AM CDT
By Sarah Mui

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Forbes blogger Kashmir Hill remembers a speech that National Security Agency general counsel Rajesh De made at Georgetown in February.

"In light of recent reports that the NSA has been routinely sweeping up metadata from phone companies about all calls made in the United States, it’s worth revisiting the remarks (PDF)," Hill wrote at the Not-So Private Parts.

The first "false myth" was that "the NSA is a vacuum that indiscriminately sweeps up and stores global communications." Technically true: "It now appears that the NSA 'indiscriminately sweeps up and stores' all Americans’ phone records—which numbers call which numbers and from which devices—but not their conversations, a.k.a. communications," Hill wrote. "Legally, it seems that it’s all about drawing the line in the sand at the actual content of the phone calls, as opposed to the more general metadata about who was making them and when."

But metadata, which can reveal a caller's location, can sometimes be more useful than the content of a call. "With all of our communication phone calls, text messages, emails, Twitter DMs, Facebook messages—these days flowing through third-party providers, we are creating gajillions of potential data points for the mining," Hill wrote. "And the NSA is on it."


When to say no

"Recently, I’ve been joking about doing a CLE seminar titled 'I Don’t Do That Work,' " Brian Tannebaum, who represents lawyers in professional conduct and li­censing matters, wrote at Above the Law. Why? Because he sees "lawyers just taking fees first, and then worrying about whether they can do the work."

He knows he's not the only one who sees it. "It’s that lawyer on your listserv who handles wage and hour cases who is asking, 'Does anyone has a sample complaint for a construction defect case?' You, well, maybe not you, just shake your head. ... Those doing this type of “I’ll take anything” practice don’t realize, and don’t care, that their public pronouncements of incompetence are the talk of their colleagues."

Lawyers who are "in this for the long term" would be better off making a good referral than taking on cases they don't know if they can handle. "Don’t take on work for the money," Tannebaum writes. "I know, easy for me to say, but that few grand you take for some 'small' matter where you read how to handle it on the Internet or got a copy of a pleading from your listserv will haunt you forever if you screw it up."

Martin Cole, director of Minnesota's Office of Lawyers Professional Responsibility, told the Minnesota Star-Tribune last month that he thinks the down economy is prompting more lawyers to take on cases they can't handle and helping to fuel record numbers of lawyer sanctions in that state this year.


Continuing ed credit for legal blogging?

A blogger, eh? Good news. The Law Society of Upper Canada has made changes to its continuing professional development requirements to allow lawyers to count blogging for up to 6 hours of credit per year. "This might give a little boost to those who might otherwise hesitate" to blog, Simon Fodden wrote at Slaw.

The rule itself says blogging is ineligible, but Fodden checked with the society's coordinator of CPD Accreditation and was assured: "Provided the purpose of the blog is not to advertise the lawyer or paralegal's services, then yes—publishing a blog post is an eligible activity for purposes of the CPD Requirement."


Witch way do you see it?

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Image from Shutterstock.

Abnormal Use notes a story from the State about Richard Clark, of Sumter, S.C., who was found not guilty by reason of insanity for burning down his own home because he thought witches were in it. He was sentenced to no more than 120 days in a mental health facility.

"Before we chalk this story up as another case of offbeat South Carolina news, let’s pause," Gallivan, White & Boyd associate Nick Farr wrote. "If one believes witches are inhabiting his home, who are we to say he wasn’t justified in burning it down?"

He takes his fantasy hypo further. What if there had been witches burned along with the house? "Assuming the witches are of the supernatural, broom-flying variety and not practicing Wiccans, the court would be faced with determining the rights of creatures formerly believed to be mythical. Should witches really be treated as humans in a court of law? Answering the question in the negative would certainly breed a witch-led civil rights movement worthy of an episode of True Blood.”

Taking a more serious look at the case, University of California-Los Angeles law professor Eugene Volokh is more concerned. "It may well be that Clark isn’t morally culpable enough to be punished, but he also seems to be dangerous enough that he needs to be off the streets, and I don’t see why it’s likely that he’ll be cured in 120 days," he writes at the Volokh Conspiracy. "What other witches might he run across after he’s released, and what is he likely to do to them? Or am I missing some treatment methods that are reliable enough to adequately protect Clark’s neighbors?"

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