Materials accompanying discussion with Chris Kelly over Internet Policy at the IP and the Internet Conference.

1. Ethical
and
Privacy
Challenges
in
Internet
Policy
Q&A
with
Chris
Kelly

2. Some
Thoughts
on
the
Internet
The
Internet
is
merely
a
reflection
of
who
we
are
as
a
society;
and
thus
is
a
tool
for
good
and
for
bad
and
a
source
of
great
volumes
of
information
and
disinformation
alike.
-­‐-­‐Abraham
Lincoln

3. Privacy

4. Ethics
1:
Ensure
Faith
in
Business
– "One
of
the
most
important
lessons
we
can
learn
from
an
examination
of
economic
life
is
that
a
nation’s
well
being
as
well
as
its
ability
to
compete,
is
conditioned
by
a
single,
pervasive
cultural
characteristic:
the
level
of
trust
inherent
in
the
society."

5. Ethics
2
Protect
Others
From
Harm

6. Ethics
3
Law
as
a
Normative
Statement
of
Values

7. About
CHRIS
KELLY
Chris
Kelly
is
the
founder
of
Kelly
Investments
and
part
owner
of
the
Sacramento
Kings.
He
served
in
the
Clinton
Administration
before
going
on
to
become
Facebook’s
Chief
Privacy
Officer
and
Director
of
Global
Policy.
He
was
a
candidate
for
California
Attorney
General
in
2010
and
led
the
fight
for
California’s
Proposition
35
fighting
sex
trafficking.
BENNET
KELLEY
Bennet
Kelley
is
the
founder
of
the
Internet
Law
Center
in
Santa
Monica
and
host
of
Cyber
Law
and
Business
Report.

8. Ethical
and
Privacy
Challenges
in
Internet
Policy
Appendix
Bennet
Kelley

9. “Honest”
Abe
2.0
– ABA
Model
Rule
4.1(a)
"In
the
course
of
representing
a
client
a
lawyer
shall
not
knowingly:
(a)
make
a
false
statement
of
material
fact
or
law
to
a
third
person.
.
.”
– ABA
Model
Rule
8.4(c)
Prohibits
“conduct
involving
dishonesty,
fraud,
deceit
or
misrepresentation.”
– California
Business
&
Professions
Code
Section
6106
“The
commission
of
any
act
involving
moral
turpitude,
dishonesty
or
corruption,
whether
the
act
is
committed
in
the
course
of
his
relations
as
an
attorney
or
otherwise,
and
whether
the
act
is
a
felony
or
misdemeanor
or
not,
constitutes
a
cause
for
disbarment
or
suspension.”
– Vega
v.
Jones,
Day,
Reavis
&
Pogue
121
Cal.App.4th
282,
291-­‐294
(2004).
A
lawyer
may
not
knowingly
make
false
statements
of
material
fact
to
a
third
party.

10. SDCBA
Legal
Ethics
Opinion
2011-­‐2
(Adopted
by
the
San
Diego
County
Bar
Legal
Ethics
Committee
May
24,
2011.)
FACTUAL
SCENARIO
– Attorney
is
representing
Client,
a
plaintiff
former
employee
in
a
wrongful
discharge
action.
While
the
matter
is
in
its
early
stages,
Attorney
has
by
now
received
former
employer’s
answer
to
the
complaint
and
therefore
knows
that
the
former
employer
is
represented
by
counsel
and
who
that
counsel
is.
Attorney
obtained
from
Client
a
list
of
all
of
Client’s
former
employer’s
employees.
Attorney
sends
out
a
“friending”1
request
to
two
high-­‐ranking
company
employees
whom
Client
has
identified
as
being
dissatisfied
with
the
employer
and
therefore
likely
to
make
disparaging
comments
about
the
employer
on
their
social
media
page.
The
friend
request
gives
only
Attorney’s
name.
Attorney
is
concerned
that
those
employees,
out
of
concern
for
their
jobs,
may
not
be
as
forthcoming
with
their
opinions
in
depositions
and
intends
to
use
any
relevant
information
he
obtains
from
these
social
media
sites
to
advance
the
interests
of
Client
in
the
litigation.
QUESTION
PRESENTED
– Has
Attorney
violated
his
ethical
obligations
under
the
California
Rules
of
Professional
Conduct,
the
State
Bar
Act,
or
case
law
addressing
the
ethical
obligations
of
attorneys?

11. SDCBA
Legal
Ethics
Opinion
2011-­‐2
(Adopted
by
the
San
Diego
County
Bar
Legal
Ethics
Committee
May
24,
2011.)
– Rule
2-­‐100(A)
“While
representing
a
client,
a
member
shall
not
communicate
directly
or
indirectly
about
the
subject
of
the
representation
with
a
party
the
member
knows
to
be
represented
by
another
lawyer
in
the
matter,
unless
the
member
has
the
consent
of
the
other
lawyer.”
– Contact
Violates
Rule
2-­‐100(A)
“But
to
obtain
access
to
restricted
information
on
a
Facebook
page,
the
attorney
must
make
a
request
to
a
represented
party
outside
of
the
actual
or
virtual
presence
of
defense
counsel.
And
for
purposes
of
Rule
2-­‐100,
that
motivated
communication
with
the
represented
party
makes
all
the
difference.”
– Contact
Also
Constitutes
Deception
“But
is
it
impermissible
deception
to
seek
to
friend
a
witness
without
disclosing
the
purpose
of
the
friend
request,
even
if
the
witness
is
not
a
represented
party
and
thus,
as
set
forth
above,
subject
to
the
prohibition
on
ex
parte
contact?
We
believe
that
it
is.”

12. NSA
&
Privacy
While
the
scope
of
and/or
legality
of
methods
used
as
part
of
the
NSA
surveillance
programs
are
still
being
determined
and
we
offer
no
opinion
on
this
point.
In
general,
attorneys
must
be
mindful
of
the
following
with
respect
to
advising
potential
violations
of
the
law:
– Rule
3-­‐210
A
member
shall
not
advise
the
violation
of
any
law,
rule,
or
ruling
of
a
tribunal
unless
the
member
believes
in
good
faith
that
such
law,
rule,
or
ruling
is
invalid.
A
member
may
take
appropriate
steps
in
good
faith
to
test
the
validity
of
any
law,
rule,
or
ruling
of
a
tribunal.
– Penal
Code
§31
Persons
who
"aid
and
abet
.
.
.
[or]
have
advised
or
encouraged"
a
crime
are
punishable
as
principals.

13. HUMAN
TRAFFICKING
STATISTICS
– Human
trafficking
exists
all
over
the
United
States,
but
California
is
California
is
a
hot
spot
for
domestic
and
international
human
trafficking
because
of
its
large
population,
international
borders,
large
economy,
extensive
ports,
and
metropolitan
regions.
– The
average
entry
age
of
American
minors
into
the
sex
trade
is
12-­‐14
years
old.
– Many
victims
are
runaway
girls
who
have
already
suffered
sexual
abuse
as
children.
– California
harbors
3
of
FBI’s
13
highest
child
sex
trafficking
areas
in
the
nation:
Los
Angeles,
San
Francisco,
and
San
Diego.
– Foreign
nationals
are
also
brought
into
the
U.S.
as
slaves
for
labor
or
commercial
sex
through
force
or
fraud.
– The
prevalence
and
anonymity
of
the
internet
has
fueled
the
rapid
growth
of
sex
trafficking,
making
the
trade
of
women
and
children
easier
than
ever
before.
– REFERENCES
The
National
Report
on
Domestic
Minor
Sex
Trafficking:
America’s
Prostituted
Children,
Shared
Hope
International,
May
2009.
The
Federal
Bureau
of
Investigation’s
Efforts
to
Combat
Crimes
Against
Children,
Audit
Report
09-­‐08,
January
2009.
Trafficking
in
Persons
Report,
U.S.
Department
of
State,
June
2011.

14. PROP
35
(CASE
Act)
Summary
CALIFORNIANS
AGAINST
SEXUAL
EXPLOITATION
ACT
("CASE
ACT”)
– Increase
prison
terms
for
human
traffickers
– Increase
fines
for
human
traffickers,
up
to
$1.5M
to
fund
victim
services
– Remove
the
need
to
prove
force
to
prosecute
sex
trafficking
of
a
minor
– Mandate
human
trafficking
training
for
law
enforcement
– Make
sex
traffickers
register
as
sex
offenders
– Require
that
all
sex
offenders
to
disclose
internet
accounts
– Prohibits
use
of
sexual
history
to
impeach
or
prove
criminal
liability
of
trafficked
victims

15. Doe
v.
Harris
Case
No.
3:12-­‐cv-­‐05713-­‐THE
(N.D.
Cal.)
Case
Nos.
13-­‐15263,
13-­‐15267
(9th
Cir.)
– Challenge
to
requirement
that
sex
offenders
provide
their
ISPs
and
“internet
identifier”
which
is
defined
as
an
“electronic
mail
address,
user
name,
screen
name,
or
similar
identifier
used
for
the
purpose
of
Internet
forum
discussions,
Internet
chat
room
discussions,
instant
messaging,
social
networking,
or
similar
Internet
communication.”
– Jan
13,
2013
-­‐
Judge
Henderson
granted
a
preliminary
injunction:
“On
the
current
record,
the
Court
concludes
that
Plaintiffs
are
likely
to
establish
that
the
challenged
provisions,
when
combined
with
the
lack
of
protections
on
the
information’s
disclosure
and
the
serious
penalty
registrants
face
if
they
fail
to
comply
with
the
reporting
requirements,
create
too
great
a
chilling
effect
to
pass
constitutional
muster.
While
the
government
may
be
able
to
demonstrate
narrow
tailoring
in
subsequent
proceedings,
it
has
not
done
so
here.
Accordingly,
the
Court
concludes
that
Plaintiffs
are
likely
to
succeed
on
their
First
Amendment
free
speech
claim.”
–
Sept
10,
2013
–
Argued
before
9th
Circuit.