Should lawyers learn to code?

There have been many articles written suggesting that lawyers should learn how to code software.  This Wolfram Alpha article is a good one, although many of the articles are far more adamant that every lawyer needs to learn how to code.  The rationale is that because software will have an increasing effect on how lawyers practice, and who will be competing with us to provide our services, we should learn to code.

So should we learn how to code?  For most lawyers, probably not.

I knew how to code before law school, and for me it has been very useful.  Since my practice is largely around IT issues, it has helped me understand those issues and discuss them with clients.  It has also influenced my drafting style for both contract drafting and the way I communicate with clients.

But the thought that learning how to code will give us a leg up against competitors who are developing or adopting intelligent solutions to replace our services, or will help us develop our own systems to compete or make us more efficient, is flawed.  The systems that are going to have the biggest impact are based on artificial intelligence.  That is very sophisticated, cutting edge stuff, and learning how to code is not going to help with that.  It is something that we need to leave to the experts, or hire experts to do.

Lawyers interested in this can find resources discussing artificial intelligence and where it is headed (such as the artificial lawyer site and twitter feed that posted the Wolfram Alpha article).   Looking at where this is headed, and how it might effect the practice of law would be more productive than learning how to code.

Cross posted to Slaw

Cloud computing: It’s all Good – or Mostly Good

A ZDNet article entitled Cloud computing: Four reasons why companies are choosing public over private or hybrid clouds makes a case for the value of the public cloud.

The reasons:

  • Innovation comes as standard with the public cloud
  • Flexibility provides a business advantage
  • External providers are the experts in secure provision
  • CIOs can direct more attention to business change

This is all good – or mostly good.

The caveat is that the use of the cloud can fail if a business adopts the cloud without thinking it through from the perspectives of mission criticality, security, privacy, and continuity.  If a business runs mission critical systems in the cloud, and that system fails, the business could be out of business.

The IT Manager no longer has to consider day to day issues around keeping software and security up to date.  But they still have to consider higher level issues.

It is important to understand what the needs are for the situation at hand.  A system that is not mission critical, or does not contain sensitive information, for example, would not require as much scrutiny as a system that runs an e-commerce site.

Issues to consider include:

  • how mission critical the system is
  • what the consequences are of a short term and long term outage
  • how confidential or personal the information is in the system
  • can the information be encrypted in transit and at rest
  • how robust the vendor’s continuity plan is
  • the need for the business to have its own continuity plan – such as a local copy of the data
  • how robust the vendor’s security is
  • does the vendor have third party security validation to accepted standards
  • does the vendor’s agreement have provisions that back these issues up with contractual terms and service levels with meaningful remedies

Cross-posted to Slaw

CASL still confusing

CASL, the Canadian anti-spam legislation, came into force on July 1, 2014. July 1, 2017 will be an important date for CASL, as a private right of action will become available. Anyone (class actions are likely) will be able to sue CASL violators. Statutory damages means that it won’t be necessary to prove actual damages.

CASL is a complex, illogical statute. Many businesses don’t comply because they don’t think emails they send could possibly be considered spam. After all, spam is about illicit drugs, diets and deals scams, right? Not according to CASL.

Nor do they understand they must keep detailed records to prove they have implied or express consent for each person they send an email to. Or they may be rolling the dice that they will be a low priority for CRTC enforcement. (That approach risks personal liability for directors and officers.)

Once the private right of action kicks in, the enforcement landscape changes. If a business has not yet come to grips with CASL, the spectre of private suits for violations may offer an incentive to comply.

In the long term, the private right of action could provide a couple of silver linings.

Getting CASL in front of the courts may provide some badly needed guidance on how to interpret and apply it in practice. So far, the handful of cases the CRTC has made public have not provided enough detail to help with that.

There is some thought that CASL could be struck down on constitutional grounds. Any business sued under the private right of action should include that in its defence.

The possibility of CASL being struck down should not, however, be a reason not to comply with CASL. It could take years before an action gets far enough to see that result. And that result is by no means assured.

Cross-posted to Slaw

CRTC advisory on CASL consent record keeping

The CRTC recently issued a media advisory entitled Enforcement Advisory – Notice for businesses and individuals on how to keep records of consent.  It doesn’t add anything new – but reinforces what the CRTC is looking for.  This is important because CASL requires a business to prove that they have consent to send a CEM (Commercial Electronic Message).  CASL has a complex regime of express and implied consent possibilities.

The advisory states: “Commission staff has observed that some businesses and individuals are unable to prove they have obtained consent before sending CEMs. The purpose of this Enforcement Advisory is to remind those involved, including those who send CEMs, of the requirements under CASL pertaining to record keeping.”

The problem in practice is that keeping those records can be a herculean task.  I’m concerned that the difficulty of getting this right will make many businesses fodder for CASL breach class action lawsuits when that right becomes available in 2017.

My personal view continues to be that the prime effect of CASL is to add a huge compliance burden to legitimate businesses.   It may give some tools to attack actual spam, but its approach is fundamentally flawed, and the cost/benefit is way out of whack.

Cross-posted to Slaw

Privacy by Design is Crucial to avoid IoT Disasters


If anyone doubts that Privacy by Design is not a fundamentally important principle, consider these two recent articles.

This Wired article describes a hack being detailed at the upcoming Defcon conference that can easily read and type keystrokes from wireless keyboards that are not Bluetooth.  So you might want to consider replacing any non-Bluetooth wireless keyboards you have.

Security expert Bruce Schneier wrote this article entitled The Internet of Things Will Turn Large-Scale Hacks into Real World Disasters that explains the IoT risks. The fundamental problem is that not enough attention is being paid to security for IoT devices.  This leaves a door open to situations where a hacker can, for example, easily get in to your thermostat and then use that as a connection point to your network.  Cory Doctorow of Boing Boing refers to this as a coming IoT security dumpster-fire.

Bruce describes it this way:

The Internet of Things is a result of everything turning into a computer. This gives us enormous power and flexibility, but it brings insecurities with it as well. As more things come under software control, they become vulnerable to all the attacks we’ve seen against computers. But because many of these things are both inexpensive and long-lasting, many of the patch and update systems that work with computers and smartphones won’t work. Right now, the only way to patch most home routers is to throw them away and buy new ones. And the security that comes from replacing your computer and phone every few years won’t work with your refrigerator and thermostat: on the average, you replace the former every 15 years, and the latter approximately never. A recent Princeton survey found 500,000 insecure devices on the internet. That number is about to explode.


Cross-posted to Slaw

Rio Olympics Social Media guidelines

It seems that dubbing major sporting events the “largest social media event ever” is even trendier than the social networking platforms themselves, and Rio 2016 is no exception. All hype aside, the Rio Olympics haven’t reinvented the wheel, and seem to impose similar restrictions as their predecessors.

The IOC describes appropriate uses and prohibitions in their Social and Digital Media Guidelines. All accredited individuals (athletes, coaches, and officials) who are not accredited as media are allowed to “share their experience at the Games through internet or any other type of social and digital media, provided that it is done in a first-person, diary-type format”. Individuals posting must “conform to the Olympic values of excellence, respect and friendship” and “should be within the bounds of dignity and good taste”.

Those restrictions are similar to many corporate social media policies. But it gets more restrictive and allows accredited persons to share only “still” images to social and digital media taken within the Olympic venues. Audio or video taken in Olympic venues can’t be shared on social media without IOC consent. There are also “no picture areas”.

Restrictions exist for spectators pursuant to the Ticket Holder Policy (there are 19 pages of conditions attached to a spectator ticket) which says in part:

12.6.3 Ticket Holders may capture, record and/or transmit still images and/or data taken within venues including by sharing such still images and/or data on social media and the internet provided such capture, recording or transmission is made solely for personal, private, non-commercial and nonpromotional purposes.

12.6.4 Ticket Holders may capture, record and/or transmit audio or video taken from venues, solely for personal, private, non-commercial and non-promotional purposes, with the exclusion of licensing, broadcasting and/or publishing any such video and/or sound recordings including on social media and the internet.

Frankly, I don’t know what that last one means – it seems to give permission and take it away at the same time.

Many of the restrictions are well intentioned – for reasons such as athlete security and privacy. Much of it will be to satisfy mainstream media and sponsors that pay huge amounts of money for exclusive rights. But some of it seems unrealistic. It will be interesting to see how aggressively they will be enforced.

I wonder what the IOC will think about athletes and spectators playing Pokemon Go at Olympic venues?

Cross-posted to Slaw.

Raspberry Pi workshop at UnLondon makerspace

Makerspaces (sometimes called hackerspaces) are community workspaces – generally in the tech and digital arena.  Entrepreneurs might use them as workspaces and to collaborate with colleagues.  Hobbyists might use their tools to make something.  They often put on workshops – typically around tech and equipment – such as 3D printers.  They perform a valuable service to foster learning, creativity, and entrepreneurship.

I learned how to use a Raspberry Pi yesterday at a workshop at UnLondon.  (Harrison Pensa is a sponsor of UnLondon, and of their recent Explode conference.)  The first project was to wire and code (in Python) an app to create a blinking LED.  Crude, yes, but a good, quick introduction.

For those not familiar with the Raspberry Pi, its a tiny, inexpensive computer that is almost as powerful as a desktop.  Google Raspberry Pi to see hundreds of things people have made with them – including robotics controllers, TV set-top boxes, arcade games, networking equipment, and home automation.

I’m going to make something with mine for my office – perhaps an information display of some kind – but I’m open to suggestions.


Cross-posted to Slaw.


Three Business IP Scams to Watch For

It’s summer vacation season, and worth a reminder about some common business IP scams to watch out for.  Staff covering for vacations and unfamiliar with these may be more vulnerable to them.  While there are lots of scams out there, these three are the ones I get asked about most by clients.

The trademark registration scam.  Scammers monitor the trademark application process, and send an invoice to the trademark applicant that looks like it is part of the trademark application process.  If you read it very carefully it says it isn’t an invoice, and it is a pitch for a service, but its easy to mistake it for a legitimate invoice and pay it.  Most of these originate offshore, so good luck trying to get your money back.

The directory scam.  You get an invoice for the registration of your business in an important sounding directory.  Again, if you read it carefully it says it isn’t an invoice.  If you pay it, you may actually get listed in the directory – but the directory is useless.  And again, most of these originate offshore, so good luck trying to get your money back.

The domain name scam.  You get an email from an offshore domain name registrar saying that someone else has asked them to register your name as a domain name.  Their goal is to get you to pay them to register your name instead.  Of course it’s all a ruse.  If you do think it might be a good idea to get that domain registration for yourself, go through your normal registrar, not this one.

Cross-posted to Slaw

Emerging tech – potentially awesome and a privacy quagmire

I attended an event last night where Duncan Stewart of Deloitte talked about their TMT predictions for 2016.

It reinforced for me that the future of tech and what it will do for us is potentially awesome.  But also at the same time the amount of information that is being collected and stored about each of us is staggering.  That creates real privacy challenges, and real possibilities for abuse.  And because the information is there, there is a tendency for government and business alike to want to use it.

One scary aspect is that the more we get used to more information being collected about us, the more complacent we get.  Our personal freaky line – the line at which we stop using services because we are concerned about privacy issues – moves a little farther away.  That is in spite of the fact that the more information there is about us, the more ripe for abuse it is, and the more that we temper or alter our behaviour because we know we are being watched.

Think for a moment about all the information that is increasingly being collected about us.

  • Smartphones that know our every move and the most intimate and personal aspects of our lives.
  • Intelligent cars that know where we go and how we drive.
  • The internet of things where the stuff we own collects information about us.
  • Wearable tech that collects information about our fitness, and increasingly our health.
  • The trend for information and services to be performed in the cloud rather than locally, and stored in various motherships.
  • Big data that functions by saving as much information as possible.
  • Artificial intelligence and cognitive learning tools that can turn data into useful information and make inferences based on seemingly unconnected information.
  • Blockchain technology that has the potential to record surprising things about us.

On top of all this, it is becoming increasingly harder to understand when our info is staying on our device, when it goes somewhere else, how long it stays there, who has access to it, when it is encrypted, and who has access to the encryption keys.

It is in this context, and the fact that we just don’t have the time to spend to understand and make all the privacy choices that we need to make, that the Privacy Commissioner of Canada last week released a discussion paper titled Consent and privacy: A discussion paper exploring potential enhancements to consent under the Personal Information Protection and Electronic Documents Act

The introduction states in part:

PIPEDA is based on a technologically neutral framework of ten principles, including consent, that were conceived to be flexible enough to work in a variety of environments. However, there is concern that technology and business models have changed so significantly since PIPEDA was drafted as to affect personal information protections and to call into question the feasibility of obtaining meaningful consent.

Indeed, during the Office of the Privacy Commissioner’s (OPC’s) Privacy Priority Setting discussions in 2015, some stakeholders questioned the continued viability of the consent model in an ecosystem of vast, complex information flows and ubiquitous computing. PIPEDA predates technologies such as smart phones and cloud computing, as well as business models predicated on unlimited access to personal information and automated processes. Stakeholders echoed a larger global debate about the role of consent in privacy protection regimes that has gained momentum as advances in big data analytics and the increasing prominence of data collection through the Internet of Things start to pervade our everyday activities.

Cross-posted to Slaw

Enemy of the State – still topical

I recently watched the 1998 movie Enemy of the State .  It is a spy thriller about a lawyer being smeared by politicians because they believe he has information that can implicate them in criminal matters – the murder of a politician who was opposing a privacy bill that is really a bill empowering mass surveillance.  They use sophisticated, unsavoury, unethical, and illegal methods to watch him, discredit him, and retrieve the evidence.  No one is watching the watchers, who are out of control.

While like any disaster movie the plot is a bit over the top, it was fascinating to watch the movie again from a 2016 lens.  I challenge anyone to watch it and still say “I have nothing to hide” to dismiss privacy and surveillance concerns.

In a related sentiment, a recent study confirms that the knowledge that we may be watched puts a chilling effect on what we do.  This Techdirt article is a good summary of that study.


Cross posted to Slaw.