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Law.com
What's Next
Future + Law
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Ben Hancock
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Hello and welcome to another edition of What’s Next. I’m Ben Hancock in San Francisco, and I’d love to hear what you’re anticipating in the coming year. Will GDPR implementation be the regulatory equivalent of Y2K? Will the SEC keep going hard after coin offerings?
Send your predictions to bhancock@alm.com. And of course, don’t forget to subscribe. This will be the final edition of What’s Next until the first week in January. Happy New Year to all you readers!
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Watch This Space: Blockchain and Criminal Justice
Hopefully, you’ll never experience firsthand the Dutch criminal justice system after, say, a low-level drug offense. Like justice systems in other countries, processing alleged offenders can be a slow, bureaucratic exercise. There are the police, the prosecutors, the forensics experts….you get the idea. Make yourself comfortable in that holding cell.
Into this space comes Amsterdam-based blockchain startup LegalThings. The company recently began a pilot project with with the Public Prosecution Service of the Netherlands (known as the “Openbaar Ministerie,” or OM) to build a system to quickly process low-level offenders, after winning a “blockathon” competition in September. The goal is to make the law understandable, and create records that are both secure and unchangeable.
What that would mean in practice is that someone caught with a little baggie of drugs can choose whether to have a lawyer appointed to them, get an explanation of the consequences of that choice, and agree to pay the corresponding fine — all on their smartphone. In an interview, Sanne Giphart, innovation manager at OM, said that could shrink processing time from two days to about a half an hour. That’s time saved not only for the offender, but for prosecutors who probably want to be spending time on bigger cases.
So far, OM — which is akin to an amalgam of the Department of Justice and local prosecutors' offices in the U.S., since it handles cases large and small — has only experimented with the technology on “dummy data,” Giphart said. “The next step is to let people get familiar with this type of technology within the [prosecution service] and then hopefully we can implement on one stream of cases,” Giphart added.
Is this the future of criminal law enforcement? Maybe, but it might require some changes in the way we think about how records are kept. “With this system, there’s really no backsies,” says Arnold Daniels, the co-founder and lead software architect behind LegalThings, explaining that the underlying blockchain technology uses cryptography to make sure records can’t be fudged. “You can correct it, but you can always see your initial action”
It’s not the only way that blockchain technology is intersecting with the criminal justice system. The New Yorker recently wrote about Bail Bloc, which raises money for a non-profit helping free incarcerated people awaiting trial by having users’ computers mine cryptocurrency.
>>Think Ahead: With strained budgets, courts and criminal justice agencies struggle to keep pace with technology. Giphart says adopting a blockchain software could be one way to build on outdated systems and allow all stakeholders in the justice process to connect.
[Photo: Shutterstock]
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On the Radar: 3 Things to Know
1. The net neutrality lawsuits are coming.
● As the Federal Communications Commission voted to end open internet regulations last week, state attorneys general and other organizations promised to fight the move in court, C. Ryan Barber reports for The National Law Journal.
● “We are 5-0 against the Trump administration because they often fail to follow the law when taking executive action,” Washington Attorney General Bob Ferguson said in a statement moments after the repeal vote.
>>Data Point: The fight will likely center on the Administrative Procedures Act. Commissioner Michael O’Rielly, a Republican member of the FCC, has dismissed the idea that the large number of fake comments over the repeal has any bearing on APA compliance.
2. Google is tightening app privacy rules, and the GDPR might have something to do with it.
● Google recently updated its “Unwanted Software Policy” to mandate that app developers selling or providing their products through Google’s marketplaces abide by new rules by January 30, 2018, reports my colleague Rhys Dipshan.
● Under the new policy, app developers that handle personal user data will be “required to prompt users and to provide their own privacy policy in the app.” That mirrors the obligations under the EU’s upcoming General Data Protection Regulation.
>> Takeaway: “The GDPR is obviously driving the mobile app ecosystem globally to disclose more about their data collection practices,” says Jarno Vanto, a shareholder at Polsinelli.
3. Kaspersky Lab is testing the limits of executive power over software security.
● The Russia-based anti-virus firm Kaspersky Lab Inc. on Monday sued the Trump administration, claiming the government has unlawfully banned the company’s software from within U.S. federal agencies.
● The complaint accuses U.S. officials of denying Kaspersky any meaningful chance to defend itself, and argues that the government did not have sufficient evidence to stop using the company’s software products.
>>Think Ahead: The ban came about after fears arose about ties between some Kaspersky officials and the Kremlin. But the suit seems to raise broader questions about the government’s power to debar contractors over security concerns.
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“The funds are there and the funds appear to not be able to be moved even if someone wanted to move them."
U.S. District Judge Richard Seeborg of the Northern District of California, rebuffing a bid to temporarily freeze the assets of defendants involved in the Tezos project. Investors have sued the various individuals and entities behind the blockchain startup, which raised what may now be some $1 billion worth of Ether and Bitcoin.
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In Futuro: Apples to Bitcoin?
The skyrocketing prices for cryptocurrencies are making for some interesting legal battles, but they also present another novel question to lawyers: What if my client wants to pay my legal fees in Bitcoin? In an op-ed, Kaufman Dolowich & Voluck attorney Ian Anderson walks through the ethical and practical considerations of that question — and notes that Bitcoin isn’t treated by the IRS as legal tender.
“Like the country lawyer accepting a bushel of apples for drafting a will, payment in Bitcoin is payment in property,” Anderson writes. He also notes that payment in cryptocurrency raises money laundering concerns, and that if the value of the token goes to zero, it could put the client and attorney in conflict.
>>Takeaway: “Some attorneys believe … that such flexible payment models attract new clients. But for cases with minimal fees or attorneys who are not tech-savvy, receiving payment in Bitcoin may be more trouble than it’s worth.”
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Dose of Dystopia
A couple weeks back, I mentioned a Washington Post report about the iPhone X’s facial recognition features and how facial data was being shared with app-makers. I wondered aloud about the privacy implications of that, and whether this might lead to more sophisticated surveillance in public space.
Well, they aren’t using Apple-provided data (yet), but German authorities are already testing a new “electronic anti-crime identification system” that uses advanced facial recognition, reports broadcaster Deutsche Welle.
“In an unspectacular room with a glass window above the western hall of Berlin Südkreuz train station, three laptops have been working round the clock for the past six months scanning the faces of those descending the escalator and stairs. The scans are then compared with a database of photos to identify crime ‘suspects.’
" [...] In more than 70 percent of cases, we have positive identification of people we're looking for," [German Interior Minister Thomas] de Maiziere said. "That's a very good number — much better than in a similar test 10 years ago.”
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That's all for now — Stay tuned for What's Next!
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