18. REPORT ON PRIVACY AND PUBLIC ACCESS TO ELECTRONIC CASE FILES, JUDICIAL CONFERENCE COMMITTEE ON COURT ADMINISTRATION AND CASE MANGEMENT (2001); Brian Krebs, Judges OK New Rules on Privacy, Court Records Online, WASH. POST, Sept. 19, 2001 (visited Sept. 24, 2001) < http://www.newsbytes.com/news/01/170288.html>.
19. See supra note 18.
20. See Kate Marquess, Open Court?, ABA JOURNAL, April 2001, at 58-59.
21. REPORT OF THE PUBLIC ACCESS SUBCOMMITTEE OF THE JUDICIARY INFORMATION SYSTEMS POLICY COMMITTEE (1996, rev. in 1998) (visited Sept. 25, 2001) <http://ctl.ncsc.dni.us/publicaccess/states/NJ/Documents/Report,%20NJ%20Supreme%20Court%20(1996).pdf>.
22. See National Center for State Courts, Public Access to Electronic Court Records and Competing Privacy Interests (visited Sept. 25, 2001) <http://www.ncsc.dni.us/ICM/distance/access_to_electronic_court_records.html>.
23. See THE LITIGATOR, supra note 3.
24. See Courtlink, <http://www.courtlink.com>.
25. See supra note 10; THE LITIGATOR, supra note 3.
26. See supra note 10; THE LITIGATOR, supra note 3.
27. See Honorable Fred Edwards, A Judge's Perspective of E-filing, 6-9 (2001) (unpublished conference paper, on file with the author).
28. See J. DOUGLAS WALKER, ELECTRONIC COURT DOCUMENTS 15-27 (1999).
29. PA. C.R. 205.4(b) , cited in Honorable Robert S. Blasi , Philadelphia Municipal Court CLAIMS Project The Electronic Court House 6 (2001) (unpublished conference paper, on file with author).
30. CO. R.C.P. Ch. 17A, Rule 121, Sect. 1-26 (2000).
31. VA. C.R. 1.17, reprinted in <http://ecf.co.fairfax.va.us/rule.htm>.
Scanning irreplaceable documents in case of disaster
By Marilyn Monrose, Legal Word Processing "Doctor"™
Many things have changed since September 11, especially the way we do business. Law firms that resided in the World Trade Center lost untold thousands of documents. Files that were not sent to outside storage facilities were placed in closets, hallways, conference rooms-- wherever space could be found until someone got around to sending them out. Never could these law firms have imagined or believed that they would lose tons of valuable and irreplaceable documents in what could be classified as the worst American tragedy in recent times. The Twin Towers were branded as "indestructible," especially after the 1993 bombing. Back in the 1960s and 70s when the Towers were being built, the architects designed them to withstand earthquakes, hurricane-force winds and jumbo-jet impacts. Unfortunately, we now realize that nothing is "indestructible." To believe otherwise is to fall into a "Titanic" mentality. A hundred years ago, people believed that nothing could take down this ship either, but who would have thought that a simple block of ice would forever change the course of history for the Titanic and its passengers?
Protect your documents
Luckily, many of the firms that resided in the WTC were networked and were able to back up many of their "typeable" documents. But what about their exhibits? Some things like charts, pictures, birth records, deeds, important signature pages, etc., cannot be replaced so easily. In many instances it will take months, even years to get copies of these documents back again, if ever. How can you protect yourself? By scanning your exhibit documents onto a computer, network or CD Recordable disk.
Invest in a high quality flatbed scanner that will scan graphics, photos and text, with graphics being the most important. You should save all of your exhibit documents in two file formats: TIFF (Tagged Image File Format) and JPEG (Joint Photographic Experts Group). TIFF is a file format that keeps all of the original scanned image data intact. JPEG uses a method of data compression to make image files smaller, easier to download for the web and to send by
e-mail. It is also referred to as a "lossy" format, because the image loses some detail when it gets saved. TIFF files stay the same, but take up more of your hard drive space. By the way, "compression" in computer lingo means to shrink the "internal" components of your file, not the size of your graphics or photo. (For more information about the scanning process go to the Webmonkey.com website and read their article, "Scanning 101." It's a wonderful tutorial that will guide you through scanning basics).
You should have two copies of each exhibit on your system, because you'll need at least one copy in its original format to print on paper (TIFF) and another for email or web purposes (JPEG). It isn't mandatory to have both file extensions, but you never know when you might need to have an exhibit copy emailed to you at another location.
Below are some useful scanning tips to help get you started.
(1) If you're going to be printing your file (TIFF), set resolution to 200 to 300 dots per inch (dpi) at 100 percent. For online or emailing purposes, a lower resolution such as 72 dpi at 100 percent is better.
(2) Scan all of your hard-to-come-by documents (i.e., photos, charts, documents with signed signature pages, birth records, deeds, etc.) on the system as TIFF files, then resave them again in an image editing (graphics) program such as Adobe Photoshop™ or Paint Shop Pro 7™ as JPEG files. (Note: To learn how to scan transparencies, read "Scanning Transparencies" at www.scanhelp.com. This tutorial describes the best way to scan transparencies and the types of scanners to use for them.)
(3) When you are ready to scan, select the preview or prescan option (your scanner may have a different name for it, but it's the option that allows you to preview your document before the actual scanning process.) After your scanner sends the image of your file to the monitor, you will be able to adjust the brightness, contrast and color levels to get the image to look just the way you want it before you make the final scan.
(4) Ordinarily, after making the above changes, I would tell you to select the parts of your document that you want scanned, but in this case you want everything scanned: the date, time stamp, any and all handwritten text, etc., because this will be your "computerized" permanent file.
(5) Scan your documents. Remember to save them as TIFF files first, then convert them over to JPEG with your image editing (or graphics) software later.
How do you find a good scanner?
Even the pros have a hard time answering this question, but here are some basic features to check for:
* It's compatible with your operating system: Windows 95/98/NT/ME/XP;
* It doesn't create photo or dust scratches (aka "noise"). This can usually be taken care of by calling tech support or reading the tech manual;
* It offers 2400 dpi resolution;
* It scans legal-sized documents;
* It scans transparencies (if you don't use transparencies, then don't worry about this);
* It includes a sheet feeder (nice, but optional);
* It has the new updated Universal Serial Bus (USB), not an outdated SCSI; and
* It has great technical support. Not being able to access technical help when you need it can seriously disable your willingness to keep a product you can't work with. Make sure you can access the company's tech department the same way you can contact their sales division.
For more help with scanner recommendations visit ZDNet.com. They also have an excellent article entitled, "What to look for: Scanners," that does a very good job of answering most of scanner questions. Also, try doing a search on the Internet by typing the words, "best scanners," in the search engine.
One last thing: I know many of you are probably saying, "Well, what happened in New York, won't happen to my firm, because we're not in a high risk area." How do you know what the enemy considers a good target? Not only that, a fire or flood can happen anywhere at anytime. Remember, the events of September 11, 2001 have proven that nothing is everlasting.
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Marilyn Monrose, the Legal Word Processing "Doctor,"™ temped for ten years as a legal word processor at many of New York's top law firms, and is now a computer trainer and author. Ms. Monrose can be reached at 212-579-9306 or e-mail: Legaltraining@dialalesson.com.
The benefits of digital dictation and transcription
By Adrienne Albrecht
A few months ago, there was a lengthy debate on the ISBA Internet discussion group about the relative benefits of digital recorders. The two voice recognitions programs in general use have achieved an accuracy percentage in the high nineties; but the hours of painstaking training and editing are still more than most lawyers are willing to devote. However, Carl Draper pointed out the significant benefits of digital recording over a network even when the users are not employing voice recognition technology. Digital recordings can be individually labeled and transmitted over the office network. That means no more tapes to lose or waiting for the transcriptionist to get to the most urgent item. It also means that the lawyer can transmit the instructions with the recording. Also, by encrypting the digital voice file, a lawyer can send dictation to his or her office from remote locations via the Internet. The cost of high-end dictation equipment that facilitates part of this organization is still substantial.
However, lawyers already have most of the equipment to facilitate digital recording and transcription over the office network already. Almost every computer currently comes already equipped with a respectable sound card. The only added features that a lawyer needs to perform digital recording is software and a high quality microphone or headset. In order to efficiently transcribe digital recordings, the users needs only a headset, software, and a foot pedal to start, stop, and pace the recording. One caveat is that there are compatibility issues between digital recorders and some software.
At the ABA Techshow, there were two companies offering digital dictation and transcriptions systems. One company offers the full package, consisting of portable recording machines, software, foot pedals, headsets and some training. It costs upward from $1,000 per user. The other company primarily markets family law software, and is located on the Web at www.legaleasy.com. However, it also sells foot pedals for transcription to use with the law office's existing equipment and free software for $150. Being unable to resist a bargain, several members of the Legal Technology Committee purchased their foot pedal. They sell both a version that connects to the serial port and one that connects to the USB drive. Unfortunately, the serial port version does not work in some chipsets primarily used by Compaq. The USB version works only on Windows 98 and later operating systems. That is because Windows 95 does not support USB drivers well, if at all.
Initially, there was a conflict between the software program and my voice recognition software. Apparently, my Dragon program had captured the driver for the foot pedal. However, the company was so responsive that they rewrote their software and had me download it from their Web site in order to make it work. They knew their system well enough that they were able to tell me that an hour of dictation consumes approximately 2.5 Gb of hard drive space. Their software stores voice recordings in a .wav file; which is a standard format for most digital recorders.
By surfing the Internet, I was able to find more sophisticated software, as well as complete hardware packages. However, this was, by far, the most economical introduction to digital recording and transcribing that I have been able to find. My Parrot headset works just fine for dictation, and my secretary has a standard office store computer headphone. It's a great way to test drive digital dictation technology with a minimal investment.
By Hon. James Bumgarner, Hennepin
Hastened by the September 11th attack on the United States, we now have in place a procedure for global cooperation in the search for crimes being planned, having been committed, and in commission. It is called the "Convention on Cybercrime," and the full text can be found at: http://conventions.coe.int/Treaty/EN/WhatYouWant.asp?NT=185.
Since there is yet no list of declarations, reservations and other communications published at the Web site, it must be assumed that, under this convention, an international investigation can be launched by any member, and the cooperation of the other members be required. This could mean responding to a subpoena, a deposition, or an appearance in person. While the former would require notice, the monitoring of Internet communications would not. Thus it includes search of computer networks and interception of computer traffic.
While we have no control over interception and search that occurs abroad, the fact that most traffic either occurs here or is relayed here, makes our involvement obviously extensive.
Certainly if prosecution is to occur here in the United States, local law would prevail. The convention contemplates this as it provides: "Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the access to the whole or any part of a computer system without right."; and, "Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data." These "Each party" clauses prevail throughout the convention.
On the other hand, what prevails if the request for surveillance or interception comes from abroad? Must the requesting state conform to our requirements for search and seizure? Perhaps not. The exclusionary rule would have no territorial application unless the Supreme Court would find that our law enforcement participation would require the fashioning of a rule to prohibit search and seizures that otherwise would violate our constitution. Aside from the problems of jurisdiction and venue, a good deal of enabling legislation appears to be needed.
As a caveat, according to the summary, the convention will be supplemented by an additional protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence. This latter provision could well be in conflict with our First Amendment. Just look forward to someone arguing that a treaty supersedes it.
As we are in the midst of a war, this convention can be a real asset in our search for terrorists. While this is an admirable goal, it also is fraught with danger to the privacy rights that we value very highly. For this reason, in connection with this convention, one should consider the impact of Carnivore, the federal provision for monitoring Internet communications.1
The convention committee work began in November 1996, and by November 23, 2001, 31 countries of the member states of the Council of Europe and four non-members, including Canada, Japan, South Africa, and the United States, had signed the Convention on Cybercrime. It becomes law after five ratifications are made, including at least three member states of the Council of Europe. As of May 21, 2002, none had. As the publication of this article will occur subsequent to that date, please check the status by going to http://conventions.coe.int/Treaty/EN/WhatYouWant.asp?NT=185.
Since the Protocol calls for ratification, it could require the president to act along with the advice and consent of the Senate. Although international law is a total mystery to me, I am not sure this will be required. Treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes, all have, more or less, precise meanings to the Department of State of the United States. Many are signed by the secretary of state, by a commissioner, or by other appointees. I remember being in Japan in 1952, when the Status of Forces Agreement came into effect. It was signed by plenipotentiaries and cited its authority as amplifying a section of a previous treaty. In other words, it required no advice and consent.2
Under this Cybercrime Convention, if ratified, our ability to track down and defeat the terrorists who are throwing our prosperity awry and are killing us without warning should be greatly enhanced. It will be our responsibility as lawyers to make sure it does not go far enough to unduly limit our rights.
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1. Carnivore is a politically correct term for the FBI's electronic eavesdropping system. According to what the FBI has told a congressional oversight panel, the system is used only when approved by a judge. In a further effort to convince the committee of the software importance to the nation, the FBI mentioned that they need to use it for detection of terrorists in addition to capture of criminals.
According to the head of the FBI laboratory where Carnivore was developed, its use is subject to vigorous internal reviews, and its misuse would be a felony. Of course, those who use the Internet and e-mail have reason to be suspicious of such assurances, if they have no way to verify them. Moreover, the secrecy surrounding the programming of the software is closely guarded by the FBI and the Justice Department. Admittedly, it may be a felony to misuse the product, but any number of felonies are committed daily without ever being detected. To counter this argument, the FBI asserts that disclosure of the programming would permit hackers to defeat the system, rendering it useless.
Although it is not clear just how it does so, a computer containing Carnivore software connects to a Internet service provider's network and monitors every byte that passes thought it. While doing this, it detects information meant for the suspect and makes copies of it. Neither is it clear whether the government's computers intercept all of the traffic moving to and from the Internet provider's computers, or that they just intercept messages addressed to the person under surveillance. According to releases, the FBI installs a Carnivore unit at the providers network station and configures it to capture only e-mail to or from someone under investigation. Considering the billions of digital bits that enter, leave, become stored, and get deleted from even a peripheral Internet server, this is a formidable system.
None of these disclosures indicate what the surveillance authorities will do if the transmission is encrypted. Apparently, they are satisfied that they can decrypt the information, as no point is raised as to the earlier demand that all encryption algorithms contain a key giving access to the government. And the prohibition against providing encryption for overseas use has been lessened. For more information, check out "Carnivore is not a Meateating Animal." published by the Standing Committee on Legal Technology (January 8, 2001, Vol. 8, No. 2).
2. This introductory note seeks to provide a basic--but not an exhaustive--overview of the key terms employed in the United Nations Treaty Collection to refer to international instruments binding at international law: treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes. The purpose is to facilitate a general understanding of their scope and function.
Over the past centuries, state practice has developed a variety of terms to refer to international instruments by which states establish rights and obligations among themselves. The terms most commonly used are the subject of this overview. However, a fair number of additional terms have been employed, such as "statutes," "covenants," "accords" and others. In spite of this diversity of terminology, no precise nomenclature exists. In fact, the meaning of the terms used is variable, changing from state to state, from region to region and instrument to instrument. Some of the terms can easily be interchanged: an instrument that is designated "agreement" might also be called "treaty." For more information, visit: http://untreaty.un.org/English/guide.asp#introduction.
Helpful hints--security flaws in Internet Explorer
By David Clark, Newsletter Editor, Standing Committee on Legal Technology
Using a computer, without security from unauthorized entry or from viral and other infections, is a gamble most are unwilling to undertake. Since many of the viruses have come lately to attack through e-mail, specifically targeting Microsoft Outlook or its browser Internet Explorer version 6 as gateways under attack, Microsoft announced an alert warning.
On May 13, 2002, Microsoft identified six flaws in its latest version (Internet Explorer version 6) that give hackers access to personal information about computer users. This backdoor security breach would enable hackers to enter in the guise of the user.
Microsoft advised users of Explorer versions 5.01, 5.5 and 6.0 to download a remedy patch from its Web site, www.microsoft.com/security. This will be critical to close the loophole that was recently discovered and apparently there in earlier versions. The download is provided free and by following directions given through the Web site, effective remedies can fortify users from hacking in this backdoor.
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