August 2017

XXXXVI NO. 1

AALS - The Association for Arkansas Legal Support Professionals

T H E I N F O R M E R

T h e T i m e i s N o w

INSIDE THIS ISSUE

AALS Mission Statement / AALS Vision Statement/ 2017 - 2018 AALS Officers & Committee Chairs Page 1

President’s Message Page 2

Certification Committee Report Page 3 AALS Spring Meeting Minutes Page 4 - 8

Presidential Trivia Page 9 - 10

2017 AALS Fall Educational Conference Information Page 11 - 14

CLE Article - Everyone’s Favoriate Co-Worker -YOU! Page 15 - 17

CLE Article - Alexa, How PRivate is my Home: Page 18 - 21

Member Vacation Photos Page 22 - 24

Upcoming Events Page 25

1

AALS MISSION STATEMENT

AALS - the Association for Legal Support Professionals is dedicated to supporting and inspiring its members in the legal profession by:

1. Providing quality continuing legal education and resource material;2. Promoting and supporting professional certifications;3. Enhancing networking opportunities;4. Adhering to a strong Code of Ethics and professional standards; and,5. Encouraging community involvement.

AALS VISION STATEMENT

AALS - the Association for Arkansas Legal Support Professionals is the driving force for educating, inspiring and supporting legal professionals statewide.

MARTHAKARA JOYCE

DEBBIE TAMIDIANNE

Tami

DannyMimi

LindaDianne Sharon

2017 - 2018 AALS Officers

President: Tami Dodd, PP, PLSPresident Elect: Danny Looney-YoderExecutive Secretary: Linda Adair, PLS Treasurer: Mimi JacksonImmediate Past President: Dianne Meriweather, PLSParliamentarian: Sharon Davis, PLS

Minutes of AALS Spring Membership Meeting 2017 - 3  

Committee Chairs for 2017-2018:

Parliamentarian: Sharon Davis, PLS

Publications Director: Sheila Brown, PP, PLS

Membership Director: Janice Miller, PP, PLS, CPS

Marketing Director: Debbie Johnson, PLS, ALP

Historian: Belinda Penn, CCM

Certification: Martha Cox, PP, PLS

Nominations & Elections: Linda Jones, PLS

Scholarship/Grant: Joyce Morgan, CCM

Award of Excellence Tami Dodd, PP, PLS

CLE Council: Mimi Jackson, Chair (2017-2019)

Cheryl Summerhill, PLS (2016-2018)

Janet Gordon, PP, PLS (2016-2018)

Martha Cox, PP, PLS (as Certification Chair)

Amelia Harris (2017-2019)

Ways & Means Bonnie Moore, ALP

Financial Review: Erma Brady, PLS and Dianne Gibson, PLS

Chapter Presidents: NEALSP: Kara Whitehead

WCLSP: Danny Looney-Yoder

Saline County LSP: Martha Cox, PP, PLS

2

Wow! Another summer has passed, and what a Summer it has been. It is amazing how fast time goes when you live in the NOW and not in the past or future! Living in the Now lets you make the most of your time. You can go on adventures, follow your dreams and do what makes you happy, NOW! Living in the NOW means never looking back and wishing because you will have no regrets…. Okay maybe a few But I can promise you not as many as you would have if your mind was always looking at the past or yearning for the future. Speaking of now, I cannot believe that school will be starting next week! It seems like just yesterday my son came home for the summer. I sure have enjoyed having my boy home from Ole Miss for the summer while he worked his summer internship at a local CPA firm. It is hard for me to believe that NOW he will be heading back to Ole Miss next week for his final semester before earning his BA. I sure am proud of him. Speaking of being proud, as most of you may know by now, Ms. Linda Adair, PLS, has been chosen as a finalist for the NALS Award of Excellence! What an honor and an accomplishment and, how cool is it that we have another Arkansan representing us at the National level. Talk about our time being NOW! It sure is. We will be rooting for you all the way Ms. Linda as you embark on this wonderful journey, but know that you are already a winner in our eyes and hearts. I hope everyone had a great summer and that you are all ready to begin a new season NOW. I look forward to seeing everyone at the Fall Membership Meeting on September 9th. It is going to be a great time of fun and fellowship and I hope many of you will be able to make it to dinner the evening before! Until then, I will leave you with this quote:

“I, not events, have the power to make me happy or unhappy today. I can choose which it shall be. Yesterday is dead, tomorrow hasn't arrived yet. I have just one day, today, and I'm going to be happy in it.”― Groucho Marx,

3

CERTIFICATION COMMITTEESubmitted by Martha Cox, PP, PLS

Congratulations to Bonnie Moore, ALP, and Toni Smith, ALP! Bonnie is a member of NortheastArkansas LSP, and Toni is an AALS member-at-large. Both sat for the ALP exam in May 2017and passed. AALS is very proud of these two members, and both will be recognized at theAALS Annual Conference in 2018.

The deadline to apply online for the upcoming ALP, PLS, and PP examinations is August 20,2017, with the testing to take place on Saturday, September 30, 2017. AALS applauds thosemembers who have accepted the challenge to become certified and submitted their application totake a certification exam.

NALS offers the ALP exam again on December 2, 2017, with an application deadline ofOctober 15, 2017. For those who would like to take the ALP, PLS, or PP certification exams inMarch 2018, the deadline to apply will be in January 2018 (watch the NALS website or TheDocket for the exact deadline).

NOW is the time to set your goal to attain a certification – it’s within your reach!

4

Minutes of AALS Spring Membership Meeting 2017 - 1  

AALS – the Association for Arkansas Legal Support Professionals Minutes of Spring Membership Meeting

Little Rock, Arkansas Saturday, May 6, 2017

President Tami Dodd, PP, PLS called the meeting to order at 9:45 a.m. The Opening Prayer was offered by Janet Gordon, PP, PLS of White County LSP. Margarett Wilson, PLS, Member-at-Large, led the Pledge of Allegiance. Cheryl Summerhill, PLS of White County LSP then read the NALS Code of Ethics & Professional Responsibility and led the members in reading the AALS Mission Statement and AALS Vision Statement.

President Dodd welcomed everyone to the 2017 AALS Spring Membership Meeting, and recognized and expressed appreciation to the AALS Past Presidents aka The Gavel Gang for organizing the 2017 AALS Annual Educational Conference. President Dodd introduced the members of the Executive Committee (EC), Tami Dodd, PP, PLS, President; Danny Looney-Yoder, President-elect; Mimi Jackson, Treasurer; Linda Adair, PLS, Executive Secretary; Dianne Meriweather, PLS, Immediate Past President, and Sharon Davis, PLS, Parliamentarian.

Heather Edwards was given an AALS pin for her first time attendance at the Winter membership meeting (pins were not available at that time). There were no secondary members present. Shirley Thompson and Luther Mitchell were visitors. President Dodd recognized the AALS past presidents who were in attendance.

Amelia Harris was appointed as the official timekeeper; Belinda Penn, CCM and Mary Hand, PP, PLS were appointed as tellers for the meeting.

The Consent Agenda was approved as distributed. The President-elect’s pin was presented to Danny Looney-Yoder.

Action Items:

1. The minutes of the 2017 Winter membership meeting were approved as printed. 2. The bid to host the AALS 2018 Fall membership meeting timely submitted by Saline County LSP

was accepted by acclamation. 3. The bid to host the AALS 2019 Winter membership meeting submitted by NEALSP was accepted

by acclamation.

Actions Taken:

1. Upon EC recommendation, a motion carried to approve the slate of Appointed Officers and Committee Chairs. President Dodd administered the oath of office. See attached.

2. Upon EC recommendation and after explanation by Membership Director Janice Miller, PP, PLS, CPS, a motion carried to accept the proposed membership drive with a budget of $350. See attached.

3. Upon EC recommendation, a motion carried to approve a drawing for a free registration to the Fall membership meeting open to all members. Notice of the drawing shall be sent to the membership at least three (3) weeks prior to the registration deadline. Winner shall be required to attend the entire conference; cost of any event not attended shall be reimbursed to AALS. In the event the employer has paid the registration fee, reimbursement will be made to the employer.

5

Minutes of AALS Spring Membership Meeting 2017 - 2  

DISCUSSION ITEMS:

Mimi Jackson, as a member of the host committee, shared a preliminary financial report. Editorial note: Final figures are 29 full registrations ($2900); 15 partial registrations ($620); ads and sponsorships ($1,770) for a total income of $5,290. Expenses totaled $3,848.62 for a net profit of $1,441.38. A copy of the final report will be shared with the membership after financial review.

Items Approved by EC on Friday, May 5: 1. Approval of Appointed Officers and Committee Chairs. 2. Approval of drawing for a free registration to the Fall membership meeting. 3. Approval of AALS membership activities as submitted by Membership Director Janice Miller, PP,

PLS, CPS.

President Dodd encouraged members to register for the AALS Professional Enhancement Retreat in June; send any information for the website to Tami at tdodd@mwlaw.com; sign up on the website to receive notices when new items are posted; and send reports to Publications Director Sheila Brown, PP, PLS by August 4 for publishing in The

Informer.

Ways and Means reported a total of $25.93 in Lighten Your Load and $447.50 in Silent Auction bids. The 50/50 fundraiser netted $149; the winner of 50% of the proceeds was Danny Looney-Yoder ($74).

The meeting adjourned at 10:45 a.m.

Respectfully submitted,

Linda Adair, PLS AALS Executive Secretary

6

Minutes of AALS Spring Membership Meeting 2017 - 3  

Committee Chairs for 2017-2018:

Parliamentarian: Sharon Davis, PLS

Publications Director: Sheila Brown, PP, PLS

Membership Director: Janice Miller, PP, PLS, CPS

Marketing Director: Debbie Johnson, PLS, ALP

Historian: Belinda Penn, CCM

Certification: Martha Cox, PP, PLS

Nominations & Elections: Linda Jones, PLS

Scholarship/Grant: Joyce Morgan, CCM

Award of Excellence Tami Dodd, PP, PLS

CLE Council: Mimi Jackson, Chair (2017-2019)

Cheryl Summerhill, PLS (2016-2018)

Janet Gordon, PP, PLS (2016-2018)

Martha Cox, PP, PLS (as Certification Chair)

Amelia Harris (2017-2019)

Ways & Means Bonnie Moore, ALP

Financial Review: Erma Brady, PLS and Dianne Gibson, PLS

Chapter Presidents: NEALSP: Kara Whitehead

WCLSP: Danny Looney-Yoder

Saline County LSP: Martha Cox, PP, PLS

7

Minutes of AALS Spring Membership Meeting 2017 - 4  

Proposed Membership Activities

From: Janice Miller Sent: Wednesday, May 03, 2017 8:48 AM To: Tami Dodd <tdodd@mwlaw.com> Subject: Need EC approval please...

Since I am going to be in charge of Membership activities for AALS this year, I wanted to go ahead and get my “plan” approved by the new EC, please.

First – I will have about a 10 minute presentation at the Spring meeting – probably just at the point where in the Agenda you ask for additional reports from the floor, Tami.

I have contacted all of our members and asked them for the name of their own sponsor/recruiter and I have a visual display showing AALS being a tree, with roots (Dolph Parker, Bobbie Jones, Wanda Salter, Robbie Peyton) being the charter members who began our association.... and then the tree limbs being some of the chapters... and then the core members..... and each member/recruit showing up on the leaves. I’m going to talk about the one to one connections that have to happen in order for our association to grow, and talk about the things that drew each of us to be members.

With your theme as The Time is NOW, I will share some special quotes about NOW –

“The beginning is always NOW.” – Roy T. Bennett “Always do your best. When you plant NOW, you will harvest later.” - Og Mandino “Let us make our future NOW, and let us make our dreams tomorrow’s reality.” – M. Yousafzai “Start by doing what’s necessary NOW; then do what’s possible; and suddenly you are doing the impossible.” - Francis of Assisi “If you are waiting for just the right time? .... it’s NOW!” – Anonymous

And the Membership Competition is going to be:

Notice One Winner Name One Winner Nominate One Winner Nurture One Winner

I have ordered membership packs from NALS and I am praying that they arrive via UPS today or tomorrow. They are supposed to! So my plan is to have those supplies available and on a table (@Laws, Membership Applications, Information about NALS, Clear covers) - I’m going to talk about the fact that each one of us was singled out by a previous member because that person saw a WINNER when they looked at us. That they interact with folks all day every day that you automatically recognize as being a winner and having potential, and that what I want them to do is put together a membership packet (however they want to) and take a minute to Notice One Winner – think about who you would like to be a member of our association. Then write their name(s) down right now. Then take the packet home with them and “Nominate One Winner” by giving them the packet of information and explaining to them why you picked them! Make sure that you sign your name as their sponsor on the application. Then, once they become a member, it is up to you to Nurture your new member. Then REPEAT.

Here's where the competition comes in - The first person who recruits one, wins our “Recruit Package Winner.” You will win a $50.00 VISA card at the next meeting.

8

Minutes of AALS Spring Membership Meeting 2017 - 5  

Every person that recruits someone will get their name in the box for a drawing at the next meeting for a $50.00 VISA card, and we will repeat that from meeting to meeting.

At next year’s annual meeting, we will have everyone’s name in the box for a drawing for the grand prize – YOU and YOUR RECRUITS names will be in the box – and the winner will get their NALS Dues paid for by AALS, or $100 VISA Card, their choice.

And I think I’ll have each new recruit’s “leaf” added to the display as we go along – maybe do that at Retreat, at the Fall Meeting, the Winter Meeting, and then at Annual. (My plan is to at least double our membership this year.)

NOW is the time, after all.

9

PRESIDENTIAL TRIVIA

1. Which President lost an entire set of White House china in a game of poker?

Warren G. Harding – his inner circle was known as the “poker cabinet”

2. Which candy is or was President Grover Cleveland famous for?

Baby Ruth – named after his first daughter

3. Besides Theodore Roosevelt, who was the one other President known for his wrestling abilities?

Abraham Lincoln – he was a well known wrestler

4. Which President married his teacher that he had a crush on when he was in school?

Millard Fillmore

5. Who is the first President to use telephone while in office?

Rutherford B. Hayes – phone was installed in White House in 1879

6. Who is the only President who made his own clothes?

Andrew Johnson – he also made his own cabinets

7. Which President had the biggest feet?

Warren G. Harding – size 14

8. Which President threw pool parties where skinny dipping was the rule?

John F. Kennedy

9. Which President was once pulled over for speeding?

Ulysses S. Grant – pulled over for speeding in a horse carriage

10. Which President collected miniature pigs?

Franklin D. Roosevelt

11. Which President banned broccoli from the White House menu?

George H. W. Bush

Questions and answers for the Presidential Trivia questionnaire that was included in the program book for the annual meeting for those who are curious! Submitted by Janet Gordon, PP, PLS

10

12. Which President was an architect?

Thomas Jefferson

13. Which President was incredibly afraid of electric lights?

Benjamin Harrison

14. Which President loved jelly beans and kept a jar of them on his desk?

Ronald Reagan

15. Who was the only President sworn in by a woman?

Lyndon B. Johnson – sworn in by Judge Sarah Hughes while on Air Force One

16. Which President (and his wife) spoke Chinese?

Herbert Hoover – they often spoke Chinese in the White House in case someone was eavesdropping

17. Which President received the oath of office from his father?

Calvin Coolidge – Calvin received word that he was president on August 3, 1923. By light of kerosene lamp his father, a notary public, administered the oath of office. Calvin placed his hand on the family Bible.

18. Which President helped develop one of the richest gold mines in the world?

Herbert Hoover – he was rich by the time he was in his thirties

19 Which President fathered the most children?

John Tyler – he was 56 when his 15th child was born

20 Which President could simultaneously write Greek with one hand and Latin with the other?

James A. Garfield – learned this trick while in college

11

Atención! Atención!

Make plans NOW to join AALS . . . the association for Arkansas Legal Support Professionals andthe hosting chapter, Saline County Legal Support Professionals, for a fun and fact-filled weekend.

The first opportunity for networking will be on Friday night, September 8,2017, at 7:30 p.m. at Chuy’s restaurant in North Little Rock for food, fun, andfellowship (see more information in this publication). RSVP requested.

Then, on Saturday, September 9, 2017, beginning at 9:30 a.m. at the Cox Creative Center locatedat 120 River Market Avenue, Little Rock, Arkansas, in the third floor conference room, the AALSFall Educational Conference and Membership Meeting will be held. NOW is the time to learn andearn three hours of CLE (see Registration Form in this publication).

The first hour of CLE will be presented by Tina Medlock, who is the ActingDirector of Communications and the Law Library Coordinator at the William H.Bowen School of Law Library in Little Rock. Ms. Medlock will give us tips andmethods to writing effectively, clearly, and concisely.

The second speaker will be Attorney Tracey Dennis, Assistant VP and TrustOfficer, Wealth Management & Investments, Relyance Bank, Pine Bluff, Arkansas. Her presentation will be on planning your financial future and how to identify theprimary factors that support or weaken an American woman’s financial security.

After lunch, the final speaker will be Layne D. Gimnich, who is a member of theComputer Analysis Response Team at the FBI office in Little Rock and will bespeaking about digital forensics.

Box lunches will be catered by the Bookends Café. Throughout the day,soft drinks, water, and snacks will be provided by AALS and the hostchapter.

After a day of CLE, NOW is the time for the membership to come together to discuss the businessof AALS. Beginning at 1:45 p.m., AALS President Tami Dodd, PP, PLS, will preside at the FallMembership Meeting of AALS.

12

Meal will be Dutch treat but please RSVP by September 7 to Martha Cox, mcox@boswellaw.com or (501) 847-3031 so sufficient seating may be reserved.

Hola amigos, Únete a nosotros for a time of food,

fun, and fellowship! When: Friday, September 8, 2017

Time: 7:30 p.m.

Where: Chuy’s Restaurant

5105 Warden Road

North Little Rock, AR

13

NOTICE AND CALL TO THE AALS 2017 FALL EDUCATIONAL CONFERENCE AND MEMBERSHIP MEETING

TO: All MembersFROM: Linda Adair, PLS, AALS Executive SecretaryDATE: August 4, 2017

Pursuant to Article IX, Section 2(b) of the Bylaws of AALS – the Association for Arkansas Legal Support Professionals, the AALS 2017 Fall Educational Conference and Membership Meeting will be held at the Cox Creative Center, Third Floor Conference Room, 120 River Market Avenue, in Little Rock, Arkansas, on Saturday, September 9, 2017.

During the Fall Membership Meeting, all individual, retired, life, and gold members of AALS in attendance have the right, privilege, and responsibility to enter into discussion of any issue, to make and second motions, and to vote.

Schedule of EventsAALS 2017 Fall Educational Conference and Membership Meeting

Saturday, September 9, 2017

9:15 a.m. – 9:30 a.m. Registration

9:30 a.m. – 10:30 a.m. Tina Medlock, Assistant Director of Communications and Law Library Coordinator at The William Bowen School of Law, UALR(Legal Writing)

10:30 a.m. -- 10:45 a.m. Break

10:45 a.m. – 11:45 a.m. Tracey Dennis, Esq., Assistant Vice President & Trust Officer, Relyance Bank (Planning Your Financial Future)

11:45 a.m. – 12:30 p.m. Networking Luncheon (catered by Book Ends Cafe)

12:30 p.m. – 1:30 p.m. F.B.I. Forensic Examiner Layne Gimnich (Digital Forensics)

1:30 p.m. -- 1:45 p.m. Break

1:45 p.m. Fall Membership Meeting

14

AALS 2017 Fall Educational Conference and Membership MeetingSeptember 9, 2017 - Cox Creative Center

Third Floor Conference Room120 River Market Avenue, Little Rock, Arkansas

Hosted by Saline County Legal Support Professionals

REGISTRATION

Name Member #

Address

Chapter _

Employer Daytime Telephone

Email address First time attendee? Yes ( ) No ( )

*****************************************************

9:30 - 10:30 Tina Medlock "Legal Writing"Member

$10.00

Non-Member/Guest

$15.00

10:45 - 11:45 Tracey Dennis "Planning Your Financial Future" $10.00 $15.00

12:30 - 1:30 Layne Gimnich, F.B.I. "Digital Forensics" $10.00 $15.00

11:45 - 12:30 Networking Luncheon $10.00 $10.00

1:45 Fall Membership Meeting $ 5.00 $ 5.00

Full Registration $45.00 $60.00

TOTAL ENCLOSED: $_________ $_________

A $10.00 late fee will apply for registrations received after September 1, 2017. Make checks payable to AALS and mail to Mimi Jackson, P. O. Box 1267, Jonesboro, AR 72403.

15

16

17

Submitted by Linda Adair, PLS

18

How Private Is Your Home in the Age of Alexa? Carl A. Aveni, Litigation News Associate Editor

Alexa. Cortana. Siri. Odds are good that you own

devices connected to at least one of these voice-activated digital assistants. A phone in your pocket. A

laptop on your desk. Perhaps a smart TV or an Amazon Echo sitting somewhere in your home.

Convenient to use, perhaps, but also omnipresent. Listening. Collecting both your active search

requests and all of the accompanying ambient sounds of your household, for streaming and storage in

the cloud. As these voice-activated devices become ubiquitous, new questions are emerging about

how this technology changes traditional notions of privacy—and the trade-off between convenience

and confidentiality.

Amazon has staked new ground at the center of this debate. Faced with a search warrant for access to

a customer’s voice and search data as part of a murder investigation, Amazon asserted that the

responsive materials were protected by the First Amendment. A novel response to a recurring

question, as lawyers and judges struggle to catch up with technological change.

Murder, She Spoke Victor Collins was found dead in a hot tub at the Bentonville, Arkansas, home of his friend, James Bates, on November 22, 2015. Bates had invited Collins and several other friends over for a night of drinking and football. After the other friends left around 1:00 a.m., Bates claims to have retired to sleep. He purportedly awoke hours later to find Collins face down in the hot tub. After Bates called 911, detectives determined that Collins had died primarily of strangulation, not drowning. Collins’s body was bleeding, and the room had signs of both a struggle and cover-up. Bates’s phone showed multiple failed calls throughout the night, at times when Bates claimed to have been asleep. Bates himself had bruises and scratches that he could not account for. And utility records showed an increase in water usage, perhaps to wash down the scene and eliminate evidence. Unfortunately, there were no other witnesses to testify about what they heard at the time of the murder. But Bates had an Amazon Echo device, running its Alexa digital assistant software, right at the scene of the crime.

The Amazon Echo is a hands-free voice-controlled digital speaker. It uses a processor to identify a “wake word” that when triggered connects the device to Amazon’s cloud-based Alexa voice service. Because the device is always on and streams to the cloud not just processed requests and responses but also contemporaneous ambient sounds, Alexa might well have recorded details associated with the murder. The police issued a warrant for all data recorded over the 24 hours surrounding the murder. Amazon filed a motion to quash, urging that the warrant violated the First Amendment rights of both its customer and of Amazon itself.

19

Speech, Perhaps, but Who Is the Speaker? According to Amazon, “the heart of the First Amendment protection is the right to browse and purchase expressive materials anonymously, without fear of government discovery.” Analogizing to earlier cell phone case law, Amazon asserted that Alexa contains “a multitude of data that can reveal much more in combination than any isolated record, allowing those with access to reconstruct ‘the sum of an individual’s private life.’” The data includes both the consumer’s search requests and Amazon’s ordering of potential responses and results—each of which contains expressive content under the First Amendment. For example, Amazon argued, “users may ask for information about a sensitive health condition or a controversial political figure. Users can now order products from Amazon, including books and other expressive materials, using the Alexa Voice Service.” Accordingly, Amazon cited earlier search engine case law that “the fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights.” From that perspective, Amazon claimed, the search requests of its customers are entitled to heightened First Amendment protection from government intrusion.

Amazon asserted that Alexa’s own responses to those search requests are equally protected, analogizing to the U.S. District Court for the Southern District of New York’s conclusion that “the First Amendment protects as speech the results produced by an Internet search engine.” Alexa’s decision algorithms about what information to include in its response, like the ranking of search results, is “constitutionally protected opinion” that is “entitled to ‘full constitutional protection,’” Amazon argued.

Relying on earlier search engine case law, Amazon maintained that the warrant must be quashed, unless the government made a heightened showing of relevance and need for the data. Specifically, the state must demonstrate (1) a compelling need for the information sought, including that it is not available from other sources; and (2) a sufficient nexus between the information and the subject of the criminal investigation. As Amazon noted, courts applying this test in other contexts have concluded “law enforcement officials’ need for the information sought cannot be compelling if there are reasonable alternative ways of conducting an investigation,” and “officials must exhaust these alternatives before resorting to techniques that implicate fundamental expressive rights.”

Skeptics Respond with Speech of Their Own Not everyone is convinced. “Purely private personal expression has always been discoverable, even in civil litigation, under the right circumstances. Diaries, for example, are often discoverable—to say nothing of social media posts,” says Marcus R. Chatterton, Birmingham, AL, cochair of the ABA Section of Litigation’s Intellectual Property Litigation Committee. “The First Amendment argument is not a perfect fit. It’s true that by obtaining this sort of passive information, the government could have a chilling effect. But, it’s not going to be a chilling effect on people saying or doing things in their home,” Chatterton adds. “It would be a chilling effect on people using Amazon’s device. So the chilling effect is not that it’s going to prevent the speech. It’s going to prevent the speaker from using that particular commercially available technology.”

Abraham Y. Skoff, New York, NY, cochair of the Trade Secrets Subcommittee of the Section of Litigation’s Business Torts & Unfair Competition Committee, agrees. “If what is being protected is really the company’s interest in maintaining this consumer relationship and protecting a commercial asset, or in profiting from its ability to collect this type of data, I think that a court will see that as a less significant interest than even corporate free speech writings,” Skoff explains, noting that commercial speech has historically received lesser First Amendment protection.

What Happens on Alexa Stays on Alexa Even so, “Amazon is onto something, however. These recordings from inside the home shouldn’t be easily obtainable,” Chatterton notes. “But so far, the legal framework to protect private consumer information hasn’t kept up with technology’s ability to capture it.” Even if the legal framework is underdeveloped, however, the commercial imperative was obvious. “It’s absolutely critical, from a business perspective, for Amazon and every other company in the consumer technology space, to plant a flag and protect their customers’ data privacy,” Chatterton observes, adding that “if they don’t plant the flag here, they’re going to see a real drop in customers willing to adopt their technologies.”

20

Chatterton is not alone in thinking so. “This is an important case for consumers because it’s one of the first to test how well our privacy rights will stand up to the new networked world in which we live,” says James W. Cobb, Atlanta, GA, cochair of the Trade Secrets Subcommittee of the Section’s Business Torts & Unfair Competition Committee. “Lawyers, judges, and consumers are starting to wrestle with whether our smart devices—our coffee machines, our refrigerators, our televisions—can be forced into service as government informants,” Chatterton adds, noting that the stakes couldn’t be more serious, either for business or for consumer privacy. “These concerns will only multiply, as smart devices become more ubiquitous in our homes.”

Skoff shares this worry. “We’re only a short couple steps away from one’s residence essentially knowing almost everything about what a person is doing. Not just what music they’re listening to or what newspaper articles they’re reading, but every part of every minute of their lives,” he explains. “What happens to privacy when the government, a company, or some third party can use the Internet and devices like Alexa to virtually reconstruct every single thing a person did all day long, from morning to night? What privacy is left?”

Older Standards Still Apply Others take a different view. For Anthony J. Carriuolo, Fort Lauderdale, FL, cochair of the Social Media & Website Subcommittee of the Section’s Business Torts & Unfair Competition Committee, there is already a remedy to any constitutional privacy concerns. “The question of whether or not the government can access information generated or gathered by that device is, in my view, a separate Fourth Amendment issue having nothing to do with the commercial interaction for which the customers initially brought the device into their home,” Carriuolo explains. “The government’s ability to gather any citizen information—whether it be on a hand-held dictaphone, a wiretap, or gathered by Alexa and stored in the cloud—is subject to the same constitutional analysis. There should be no difference in outcome simply because of advances in the technology by which the statements were gathered and stored.”

Indeed, Carriuolo wonders whether the privacy concerns have become a bit overblown. As he notes, “this is a commercially generated experience that consumers have elected to bring into the privacy of their homes. And those consumers interact voluntarily and intentionally with it. So I think the Orwellian concerns that have been mentioned in some media don’t fit the commercial realities posed by Alexa and Siri and other artificial intelligence interactives.” For him, the existing search and seizure standards applied to protect citizens in other contexts are amply up to the job posed by digital assistants. “I would continue to vigilantly assert the rights to protect consumer data against government intrusion, and require the government to meet the standards under the Fourth Amendment,” Carriuolo explains.

Changes to the Practice Cobb worries at least as much about how these emerging technologies will change the business and practice of law. He recites a list of discovery questions lawyers should pose to clients in this new era: “Do you use a digital personal assistant that is affiliated with a cloud provider? What are the terms and conditions of your arrangement with that cloud provider? Do you have control, possession, or custody over the data that sits within that cloud provider’s servers? Or does the cloud provider have that control?”

He continues, “If I’m representing a company in a trade secret dispute, and the other party has an Echo in the board room, I’m now going to ask for that Echo’s data in discovery. I’ll include it in a litigation hold notice. I’ll make sure they don’t delete anything from Alexa. And if folks are sitting around in a conference room, and Alexa picks up a snippet of conversation related to the trade secret, I’ve got an argument now that they haven’t taken adequate steps to protect the confidentiality of their alleged trade secret. Maybe it’s not a trade secret anymore.”

Indeed, these issues may also affect the business of law every bit as much as the substantive representations, Cobb notes, thinking about the increasing number of firms that use cloud-based document storage systems. “Some of the issues we face in terms of managing the risk to the firm are similar to the risks that a consumer might face, because a third-party company that hosts the cloud system now has some measure of control over our data.”

21

Under a strict interpretation of ABA Model Rule 1.6, the mere fact that a lawyer represents a client is itself confidential information, Cobb observes. And yet, if a lawyer uses a cloud-based digital assistant for calendaring or document storage, that information has effectively been shared with the service provider. “A lot of lawyers might not think about the implications of that,” Cobb worries. “As the adoption rate of cloud-based technology increases, I think these are issues that are going to come to the forefront of the business of practicing law.”

The solution may require the law firms to exercise greater diligence with their vendors. “If I decide to use Amazon Echo in my business, I might need to consider going to Amazon and looking at the terms and conditions that are associated with my use of the Echo and, if they’re not sufficiently protective, I might need to negotiate for some more stringent confidentiality protection.”

What Tomorrow HoldsSome of these issues will have to wait for a future case to test their parameters. After Amazon filed its motion to quash, Bates, the criminal defendant, voluntarily waived his own objections and turned his Alexa data over to the prosecutors. In light of that waiver, Amazon withdrew its motion. But few doubt that the issue will arise again, as digital assistants assume a broader role in daily life. “I think you’re going to continue to see these types of issues raised alongside the proliferation of these types of artificial intelligence devices and activities,” Carriuolo acknowledges. “Over the past few years, many more folks have come to realize that nothing’s private. Everything is being heard, everything is being recorded, and everything is being seen. That’s true for outside the home. And with the technologies we invite in for our own purposes, that’s increasingly true inside the home as well.”

Chatterton agrees. “Whether it’s realistic or not, some people fear that they are going to wake up like Jim Carrey in The Truman Show and suddenly realize that their whole lives are being recorded,” he adds ruefully.Skoff is more hopeful that evolving technology may solve the problem that it also created: “Maybe a ‘Snapchat of the Internet of Things’—where they gather the information, distill it to the extent they need it, but then automatically delete it in 20 days. So that if they are subpoenaed within a short period of time, the data is there. But if the subpoena comes later, the data is gone. At least that way, people wouldn’t feel like Big Brother is always looking over their shoulder at what they’ve been doing.”Carriuolo has a slightly different take. “Amazon has been able to convert what was a pretty straightforward criminal prosecution of a customer into a broad marketing campaign for the Amazon Alexa,” he observes, before laughing. “This is great and arguably free promotion for Amazon and its Alexa product. Regardless of the outcome of the prosecution of the case in which these issues were raised, Amazon is clearly a winner in the marketplace.”

Carl A. Aveni is an associate editor for Litigation News.American Bar Association

Submitted by Mary Hand, PP, PLS

Resources

Arkansas v. James Bates, No. CR-2016-370-2 (Benton Cty., AR, 2017).

Debra C. Weiss, “Alexa’s Responses to Customers Are Protected by the First Amendment, Amazon Argues in Murder Case,” ABA J., Feb. 27, 2017, available at http://bit.ly/aba-weiss-ama-zon.

Veronika Bondarenko, “Police Pieced Together That a Husband May Have Murdered His Wife Based on Her Facebook Posts and Fitbit Data,” Business Insider (Apr. 26, 2017), available at http://bit.ly/bondarenko-fitbit.

Robert T. Denny, “Warrantless Search of Cell Phone Violates Fourth Amendment,” Litigation News (May 5, 2016), available at http://bit.ly/Denny-050516.

22

Bruce and I went to Cape San Blas, Florida, with our daughter’s family andherin-lawsthefirstweekofJulyand had a wonderful time.

Margarett Wilson, PLS Member-at-Large

23

White Cliffs of Dover - Mary Hand, PP, PLS

24

25

Editor: Sheila Brown, PP, PLS

*September 9, 2017: AALS Fall Business Meeting hosted by Saline County LSP

September 30, 2017: ALP, PLS, PP Certification Exams

October 4-7, 2017: 66th Annual Education Conference & National Forum Sheraton Norfolk Waterside Hotel 777 Waterside Drive Norfolk, VA 23510

January 2018: AALS Winter Business Meeting hosted by White County LSP

April 2018: AALS Annual Meeting hostged by NEALSP

*Complete information located in this issue

THE TIME IS NOW to start saving things for the history book. Send me pictures, send me information about what you have done, and send me stuff.

Belinda Penn, CCMAALS HistorianEmail: bgpenn@yahoo.com