A Shoveler’s Manifesto: Can I Lay Claim To That Parking Space?

Should I have a property right in the parking space I laboriously shoveled out after yet another New England winter storm?  Can I lay any legal claim to that space when I leave it, such as by placing a marker of some kind in it?  Should I be entitled to slash the tires or break the windows of a car that takes the space I shoveled out?

I’m sure these thoughts seem absurd (especially to those outside of urban areas in New England), but I can’t help but ponder them when I spend hours trying to find, clear out and keep a parking spot on my street in Somerville, MA (New England’s most densely populated city).  It doesn’t help matters when the city declares a snow emergency, towing cars parked on the even side of the street and cutting the number of available parking spaces in half.

The visceral notion that “I shoveled it, I should get to keep it,” rings true in a classic Lockean way: the labor of your body and the work of your hands is properly yours.  See John Locke, Second Treatise of Civil Government, Chapter 5, §27.  But from a modern legal standpoint, it would seem impossible for a private citizen to obtain any kind of property right in what is certainly government property.  It’s not the wild west, you can’t stake a claim to a piece of pavement simply because you surveyed it, dusted it off and tied your horse up there.  Methods other than simply staking your claim don’t look promising.  Generally, adverse possession is not an option, as most States explicitly exempt public roadways from adverse possession by statute.  See, e.g., Colo. Rev. Stat. § 38-41-101(2) (2008).  Notably, Massachusetts is an exception to this rule, only disallowing adverse possession against the commonwealth and its political subdivisions except in connection with land used for certain environmental purposes.  See Mass. Gen. L. Ch. 260, §31; Lawrence v. Concord, 439 Mass. 416 (2003).  Still, because of the unlikelihood of occupying a city parking space for 20 years in any urban area of the Commonwealth without someone breaking the continuity, adverse possession isn’t a realistic option, even in Massachusetts.

Nonetheless, a longstanding snowstorm practice, especially in South Boston, is to put lawn furniture, traffic cones, trash cans, cinderblocks and any other large object in resident-cleared parking spaces in order to reserve them.  These rights are vigorously defended in that neighborhood, resulting in the aforementioned slashed tires, broken windows, and even the occasional assault.  This is a place where you simply do NOT want to take someone’s clearly marked space.

Despite the questionable legality of this process, it has been sanctioned by Boston mayor Thomas M. Menino, to a limited extent.  In 2003, in response to some South Boston residents reserving spaces for three weeks after a two-inch snowfall, Menino put in place a 48-hour cap on the reservation of shoveled out spaces, implicitly endorsing the practice.  A long battle between Menino’s garbage crews (who pick up the milk crates, barrels and shopping carts used to save spaces) and South Boston residents have ensued, epitomized by South Boston city councilor James M. Kelly’s declaration to Menino that “I’ve got more barrels than he’s got trucks.”

It’s questionable whether Menino even has the authority to allow the private reservation of public property, even for a limited time, but only in the most academic sense.  The fact is that parking spaces will continue to be reserved in South Boston and other urban areas of Massachusetts, whether legally or not, and municipalities will implement their own policies to prevent, curtail or begrudgingly accept the practice for practicality’s sake.  So as I continue to battle the relentlessly falling snow, increasingly discolored by salt, sand and cat litter, I will consider the prospect of defending the product of my labor as John Locke would say I should… and probably just look for another parking space.

The Game of E-Discovery

An entertaining and informative piece on the “game book” for conducting e-discovery, using the metaphor of a basketball game. Practical and specific points and tips for anyone interested in the new world of electronic discovery.  

“[I]f you play hide the ball in e-discovery, and get caught, you may not only lose the case, but you may lose your job, and maybe even your license. … Instead, an e-Discovery Team plays a series of games that culminates in throwing the ball to the other side, not hiding it.”

Privacy in Web-Based E-mail

Given the way that the gov’t can discover your personal information–name and address–from your IP, if you care about privacy, then you should care about how your IP is revealed. Now this can be done in many ways regarding web browsing, but how about web-based e-mail? I’ve looked at Gmail and Yahoo!, and Yahoo! puts your client PC’s IP address in the e-mail headers; Gmail does not. Yahoo! makes this clear in their “privacy” policy:

Yahoo! Mail includes IP addresses in outgoing mail message headers, as specified by standard Internet protocol.       

And I’ve verified this through some e-mail tests. So if you send e-mail to a government address–whether it’s fake, spoofed, a honeypot, what-not–through Yahoo! Mail, then you’re basically telling the recipient who you are in real life. Even anyone with easily Google-able tools on the Internet, can find out your general location and information on your ISP.

Update: Hotmail also passes your IP address in the headers, too. (It’s passed as “X-Originating-Ip.”) So watch out for Yahoo! and Hotmail.

How the Government Attributes Internet Traffic to a User

Pretty straightforward description of how to grab an IP (probably via a honeypot) and attribute it to a downloading user.

From U.S. v. Carter, No. 2:07-CR-00184-RLH (GWF), 2008 WL 623600, at *4 (D. Nev. March 6, 2008):

The Affidavit then described the steps taken by the Government to identify the user of Internet Protocol (IP) address 68.108.184.145. A search of the publicly available website arin.net revealed IP address 68.108.184.145 was controlled by Cox Communications. On October 31, 2006, the Government served an administrative subpoena on Cox Communications to identify the individual subscriber to IP address 68.108.184.145 on October 25, 2006 at 7:12 p.m. PDT when a user of this IP address first attempted to download the posting created by SA Luders on the Ranchi message board. On November 10, 2006, Cox Communications responded to the subpoena by identifying Luana Carter, 3815 North Nellis Boulevard, Number 26, Las Vegas, Nevada 89115, telephone number 702-860-7293, as the subscriber to IP address 68.108.184.145. Exhibit “A”, p. 16, ¶¶ 35-38. On January 17, 2007, the Government conducted a search of the public records data base LexisNexis which indicted that Luana Carter resided at the above listed address and that Defendant Travis Carter was a household member at that address. Id., ¶ 39. On January 17, 2007, the Government also checked Nevada Department of Motor Vehicle (DMV) records which revealed a current driver’s license for Luana Carter, with the same social security number, date of birth and physical address obtained through LexisNexis. Exhibit “A”, pp. 16-17, ¶ 40. On February 8, 2007, the Government also served an administrative subpoena on Nevada Power Company for subscriber information for 3815 North Nellis Boulevard, Number 26, Las Vegas, Nevada 89115. Nevada Power Company’s response to the subpoena listed Luana Carter as having an active account at that address since June 22, 2001 and listed her home telephone number as 702-860-7293. Id., ¶ 4.

A recent thread of comments on Lifehacker shows how non-governmental organizations are using this method to track down copyright infringers. If you use a P2P service such as BitTorrent, you reveal your IP to any seeder (or any other leecher in the swarm), and if the seeder is, for example, the RIAA, then they know your IP. A simple request to your ISP will cough up your name and address. And then they can get a search warrant to grab your computer(s).

If you read the rest of the case, then you’ll see that part of defense hinges upon a “wireless defense”–the “I have an open wireless router, and it could have been someone else besides me” defense. Well, that might be true, but it can’t upset the “fair probability” that the person doing the downloading the IP might have been the owner of the wireless router. I wonder, though, what the physical circumstances of the defendant was… Was he merely positing the hypothetical for his house in the countryside? Was he merely hoping for war drivers? Or was he living in an apartment building where folks on his floor and the floors above and below him–as well as war drivers–could leech his wireless bandwidth?

I wonder if the “fair probability” might erode a bit more in a high-density situation. If you really do share your wireless bandwidth with a handful of other users, is there still a “fair probability” that any Internet traffic is attributable to the router owner? Looked at another way, if someone could leech off another person’s wireless bandwidth, then maybe that person would be given freer rein to use the bandwidth in less savory ways. I mean, that’s largely why people war drive in the first place.

Cool Queuing Theory Model Suggests Continuations Not the Problem at the PTO

Recently on Bill Heinze’s I/P Updates, I read about a note published by George Mason authors entitled “Improving Patent Examination Efficiency and Quality, An Operations Research Analysis of the USPTO, Using Queuing Theory“. 17 Fed. Cir. B. J. 133, 163 (2007).    The authors were attempting to validate validate the PTO’s concern with excessive continuation filings and proposed new rules regarding continuations.  The model, which incorporated feedback and branching of applications, was based on two assumptions:

1. A priority queue processes higher priority items first, giving them a shorter queuing delay – but at only at the expense of longer queuing delays for lower-priority arrivals. Since the USPTO gives higher priority to RCEs and continuing applications than to regular new applications, large numbers of RCEs and continuing applications should result in disproportionate waiting times for regular new applications.
2. At the very least, a limit on the number of continuing applications would be desirable because continuing applications can produce multiple generations of unlimited numbers of high priority offspring. RCEs and multiple non-final office actions both contribute to the risk of starvation, but pose less potential risk than continuing applications because they do not produce parallel offspring (branching feedback).

Surprisingly, the study found that continuing applications were not the primary cause of congestion of patent applications at the PTO.  According to the model, the excessive number of non-final rejections per application was the main culprit. The non-final rejections in each round of prosecution exceeded by far the number of second and later RCEs and continuation applications.   Thus, limiting or prohibiting successive generations of RCEs and continuation applications as the only change will not be effective in reducing the backlog.  Instead, reducing non-final rejections per application would be more effective because it would relieve the PTO of its primary burden on the system. 

The note went on to say that hiring additional examiners is not an effective solution because the PTO would need to exponentially increase its personnel in order to keep up with its load of patent applications.  Instead, a policy change addressing the source of the problems is required.

 Thus, it looks like it is time for the PTO to revise its rules, which have already been brought into question by Tafas v. Dudas, described in my blog from Nov. 2.  Using research data and mathematical models may prove to be a valuable aid as the PTO leadership considers its next move. 

Another Criticism on the Demise of OiNK (and the Problems of Class and Indie Rock)

Great post from marathonpacks (via fluxblog) on the demise of OiNK:

Yet what these people don’t understand, or at least won’t admit to understanding publicly, is that OiNK was a symbolic subcultural mirror of exactly everything they profess to hate about their vision of mainstream culture. You can’t deny that OiNK was itself a culture: it was private and elite, it had clearly elaborated and lengthy rules for membership that included an annoyingly audiophilic standard for musical “quality” and sanctions for not tithing as much as you took. It had forums where people discussed meta-level issues about its functionality. OiNK clearly had its own set of ideologies, and they were far from liberatory. While it’s only a symbolic gesture, I’m glad to see OiNK disappear for the same reasons I’m so glad to not be part of a music “scene” anymore; I don’t miss blue-blooded conservativism masquerading as originality and protest.

Also, included for free, support of the much-needed criticism of “Sasha Frere-Jones’ New Yorker article discussing race and indie rock.”

Fittingly, the most popular forms of “indie” music today—formerly accessible on OiNK by sorting in order of popularity—reflect its generic status as not one decided by instrumentation or miscegenation as much as social position. And, sad as it might be, that will probably (hopefully) be OiNK’s legacy 20 years from now: a cultural snapshot of music fandom and/of 00s indie rock as the express domain of the parochial and privileged.

Maybe places like this should take notice of the dangerousness of closed, elite communities.

Another Court Recognizes an Expectation of Privacy Over E-mail

From National Economic Research Associates, Inc. (“NERA”) v. Evans, 21 Mass.L.Rptr. 337 (Mass. Super. 2006):

NERA contends that any reasonable person would have known that the hard disk of a computer makes a “screen shot” of all it sees, which the computer then stores in a temporary file, including e-mails retrieved from a private password-protected e-mail account on the Internet. NERA further contends that any reasonable person would have known that these temporary files, although not readily accessible to the average user, may be located and retrieved by a forensic computer expert. This Court does not agree that any reasonable person would have known this information. Certainly, until this motion, this Court did not know of the routine storing of “screen shots” from private Internet e-mail accounts on a computer’s hard disk.

Furthermore:

The bottom line is that, if an employer wishes to read an employee’s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company’s Intranet, the employer must plainly communicate to the employee that:
1. all such e-mails are stored on the hard disk of the company’s computer in a “screen shot” temporary file; and
2. the company expressly reserves the right to retrieve those temporary files and read them.
Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.

Choosing Strong Passwords

Not quite a “law hack,” barely a “life hack,” maybe just a “memory hack.” But in response to this Lifehacker mention of an algorithm to create answers to “dumb” security questions, I decided to throw out my method of making memorable, strong passwords.

As time passes, password systems are requiring stronger passwords. Needs to be at least six characters wrong, mix up capital and lower case characters, has to have non-alphabetical characters, or even non-alphanumeric characters. Can’t have any words or names. And so on.

My method takes a line of a memorable song, using the naturally mnemonic nature of setting words to catchy music, and then uses the lyrics and the rhythm of the song to make the password sequence easier to remember.

What I do is choose a memorable phrase from one of my favorite songs. Let’s say I’m going to use the “Hey! Ho! Let’s go!” phrase in the Ramone’s “Blitzkrieg Pop.” (Just for the record, I’m not detailing any of my actual passwords.)

First, just take the first letter of each word: h-h-l-g. In the song, they shout this out twice in a row: h-h-l-g-h-h-l-g. Now, maybe there’s some emphasis on the first “Hey!” and “Ho!” and let’s put the exclamation point at the end of each verse: H-H-l-g-!-H-H-L-G-!

And there we go, a pretty strong password: HHlg!HHLG! Try it. Tap it out to the rhythm of the song while you’re singing the lyrics in your head. It works. HHlg!HHLG!

That’s the basic system. But you can get fancier by throwing in a word or two and just flashing it up a bit more:

WBTC,WBTCORARoll! (“We built this city on rock and roll!”)

ComWWS1TBPWYRD! (“Carry on my way-ward son…”)

1ggHiHntoaYC$ (“It’s getting hot in here…”)

Law Hacks

The ABA Journal online published a list of “law hacks” this past summer. They group these “hacks” under E-mail, Your PC, Time Management, Phones, the Web, Software, Low Tech, Your Brain, Your Money, Hardware, and more. (If you’re unfamiliar with the world of “hacks” or more properly “life hacks,” then they’re generally tidbits of advice to streamline your productivity. See Lifehacker for your daily dose.)

It’s pretty much a list scarfed from Lifehacker posts over the years. Only a few of them cater specifically to legal work. But nonetheless it’s a decent summary for people who are too busy to read through Lifehacker archives.

Instead of merely criticizing, here’s me putting my money where my mouth is and starting my own list of law hacks, some replicative of the ABA, others not. (You can read a snippet of my criticisms at the end of the list.)

1. Google Desktop Search (“GDS”) (or Spotlight in Mac OS). This is essential. Whenever I use a case, I save the PDF version in a folder for each client/project. And I allow GDS to catalog the contents. Then if I know I ran across a case about something, I don’t have to dig around—all I do is search. It’s that easy.
2. Name your files usefully. So I have a folder for every client/project. But files often float around independently. If I have a motion to dismiss document for client Smith, then it doesn’t help if the filename is “mot dismiss.doc,” especially if I e-mail it to someone or to myself to work on remotely. Name it usefully. I’ll use “Smith.MtD pers juris.111707.doc.” I won’t even explain what my abbreviations are for. It should be that easy.
3. Add short descriptions to case filenames. Even with GDS, sometimes you do find yourself digging around in folders and files looking for cases. When you’re reading cases, you’re usually looking for one main point of law from each one. So when you read through a case, name the file with the point it’s useful for. For example, “Smith v. Kim (1st Cir. 1992) neg op turn signals.pdf.”
4. Use a wiki or blog as a to-do list and notepad. I use a wiki to keep a running to-do list of short- and long-term tasks. I also have a list of “notepads” linked from the home page of long-term projects or just places to jot down important numbers and passwords, etc. Blogs are sometimes better for to-do lists because every day is a new to-do list and you can track your progress (or lack thereof) by replicating your existing to-do list every day. And keep them password-protected for security.
5. Use del.icio.us (or another bookmark manager). Organize and store all your bookmarks remotely so you can access them from any computer. Check out my bookmarks on rules: http://del.icio.us/pham/rules. Enough said.
6. Keep track of your time daily. Each summer, I had a small notebook for my to-do list that I would check off of and re-create at the end of each day—planning the next day’s work. I would have another small notebook where I’d write down the current project name, the time I started, and the time I stopped. Then at the end of the day or first thing the next day, I’d enter my time. I actually “experimented” by trying to account for time at the end of a week—it was impossible. And I didn’t feel right “fudging” the time, and in the end I’m sure I lost minutes which added up to hours, etc.
7. Use paper wisely—print double-sided and purge or re-use paper. It takes a few seconds to set your default printer to print double-sided. It just makes sense to do it. You’ll cut your paper usage approximately in half. I also think it’s easier to read; it’s more natural, like reading a book. Then, when you’re done with a project, purge as much paper as you can. Get it out of your office and into the recycling bin. Also, if you have to print on one-side, re-use it as scrap paper, put a staple into it and use it as a notebook, or take it home and use it in your inkjet. If you hand-write important annotations on cases, consider using something like Skim (Mac OS) to electronically annotate PDFs.
8. Keep your inbox slim. I talk about this below. You don’t need to empty your inbox every day; just keep it slim. It’s satisfying—or at least not overwhelming—to have a slim inbox. It doesn’t take much. When you get an e-mail, read it immediately and then file it away. If something needs to be taken care of, take care of it ASAP. If you can’t, then keep it in your inbox until you can, but make sure you get to it.
9. Practice voice mail etiquette—keep your greeting short, leave informative messages, use e-mail, text, or IM. Voice mail greetings don’t have to say much—hey, know you’re number, that’s why they’re calling you. “You’re reached [name]. Please leave a message.” And then when you’re leaving a message, don’t just say, “Call me back.” Tell me why. Compel me. Otherwise, you’ve wasted everybody’s time. Or just e-mail me or IM me. Voice mails are passive communications (just like e-mail or IM) that I can’t skim, that I have to work to get to.
10. Use IM. I think IM can be so useful in a work environment. It’s a quick, passive, unobtrusive way to get in touch with people. There’s also the fantastically helpful status message—you can, at a glance, tell if the person is available or not, and if they have informative statuses, what they’re up. (For example: “out to lunch until 1:30,” “working on Smith case,” “anyone know anything about suing a cop,” “afk” (away from keyboard), “working from home,” etc.) And if you use IM for work, don’t use your “BCEaglesROXNUMoneShoRTy” screen name from your foolish youth. Create a just-for-work screen name that’s professional and descriptive, like “johnsmithatXYZ.” And don’t give it out to your friends.

I don’t quite agree with the e-mail tips. I tend to think that you should keep your inbox small, but it doesn’t need to be cleared every day. My inbox is more of my mid- to long-term to-do list. Anything short-term I read and then archive or accomplish and then archive. Generally, I think once you file an e-mail away, it disappears unless you search for it. So if it’s not addressed or done, it can’t get filed away. But to keep your inbox slim, you have to address e-mails which gives you a satisfying incentive to get things done quick.

The PC hacks are a bit too technical. Plus, the recommendation of Quicksilver–which I use and love and couldn’t live without–is Mac-specific. (Launchy is the not-up-to-snuff PC variant.) But I’m totally on-board with the Google Desktop Search–or just Spotlight on the Mac OS–to search through documents, especially PDF files of cases.

District Court Blocks PTO New Continuation & Claim Rules

The Eastern District of Virginia court hearing the case of Tafas v. Dudas issued a preliminary injunction on Oct. 31 blocking the PTO’s implementation of its new continuation and claim rules that were to go into effect on Nov. 1.  In that case, a number of plaintiffs, including Glaxo Smithkline, had joined together to block the rules.

The court examined the traditional factors in issuing a preliminary injunction: 1) likelihood of success on the merits; 2) irreparable harm in the absence of an injunction; 3) balance of hardships between plaintiffs and defendant; 4) public interest in the injunction. 

The court believed that the plaintiffs could suceed on the merits of the case.  The court noted that 35 U.S.C. 120 may prohibit limiting the number continuing applications that can be filed, and that the new rules could create retroactive effects on settled rights.  More specifically, the court found that plaintiffs had a vested right in the opportunity to file continuations and claims under the old rules, and an agency is not permitted to make retroactive rules.  The PTO’s guidelines for preparing an examination support document were also declared vague.

On the upside for the PTO, the court did rule that the PTO’s new rules were not arbitrary and capricious.

Further, the court agreed that the uncertainty of the new rules would cause plaintiffs irreparable harm.  The balance of hardships weighed in favor of the plaintiffs because they would face immediate harm once the rules were implemented, while any harm experienced by the PTO under a preliminary injunction would be gradual.  Because the public interest requires a stable patent system, an injunction would be appropriate.

Thus, the PTO was enjoined from implementing its new rules.  It was also enjoined from making any other new rules “restricting the number of continuing applications, the number of requests for continued examination, and the number of claims that may be filed with the PTO.”

The PTO posted a notice on its website of the decision, and noted that its examiners and staff would continue examining and processing applications under the old rules until further notice.