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Surveillance and Computer Cloning: Practical Information Every

Attorney Needs to Know

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Jacob Laufer

Philip M. Rosenthal

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SURVEILLANCE AND COMPUTER CLONING:

PRACTICAL INFORMATION THAT EVERY ATTORNEY NEEDS TO KNOW

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for February 9, 2016

Program Chair and Moderator: Martin Friedlander, Martin Friedlander P.C.

Faculty: Jacob Laufer, Jacob Laufer P.C.; Philip M. Rosenthal, PMR Group

International

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours: 1 Professional Practice/Law Practice Management; 1 Skill.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 2 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification

Surveillance and Computer Cloning: Practical Information that Every Attorney Needs to Know

February 9, 2016; 6:00 PM to 8:00 PM

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Surveillance and Computer Cloning: Practical Information Every Attorney Needs to Know

Tuesday, February 9, 2016 6:00 PM to 8:00 PM

Program Chair and Moderator: Martin Friedlander, Martin Friedlander P.C.

Faculty: Jacob Laufer, Jacob Laufer P.C.; Philip M. Rosenthal, PMR Group International

AGENDA

5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introduction and Announcements 6:10 PM – 8:00 PM Presentation and Discussion

Eavesdropping Jacob Laufer, Esq. February 9, 2016

New York's wiretapping law is a “One-Party consent” law. New York makes it a crime to record to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents.

New York Standard

New York CPLR: § 4506. Eavesdropping evidence; admissibility; motion to suppress in certain cases

1. The contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof; provided, however, that such communication, conversation, discussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.

2. As used in this section, the term “aggrieved person” means:

(a) A person who was a sender or receiver of a telephonic or telegraphic communication which was intentionally overheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver, by means of any instrument, device or equipment; or

(b) A party to a conversation or discussion which was intentionally overheard or recorded, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment; or

(c) A person against whom the overhearing or recording described in paragraphs (a) and (b) was directed.

3. An aggrieved person who is a party in any civil trial, hearing or proceeding before any court, or before any department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof, may move to suppress the contents of any overheard or recorded communication, conversation or discussion or evidence derived therefrom, on the ground that:

(a) The communication, conversation or discussion was unlawfully overheard or recorded; or

(b) The eavesdropping warrant under which it was overheard or recorded is insufficient on its face; or

(c) The eavesdropping was not done in conformity with the eavesdropping warrant.

4. The motion prescribed in subdivision three of this section must be made before the judge or justice who issued the eavesdropping warrant. If no eavesdropping warrant was issued, such motion must be made before a justice of the supreme court of the judicial district in which the trial, hearing or proceeding is pending. The aggrieved person must allege in his motion papers that an overheard or recorded communication, conversation or discussion, or evidence derived therefrom, is subject to suppression under subdivision three of this section, and that such communication, conversation or discussion, or evidence, may be used against him in the civil trial, hearing or proceeding in which he is a party. The motion must be made prior to the commencement of such trial, hearing or proceeding, unless there was no opportunity to make such motion or the aggrieved person was not aware of the grounds of the motion. If the motion is granted, the contents of the overheard or recorded communication, conversation or discussion or evidence derived therefrom, may not be received in evidence in any trial, hearing or proceeding.

N.Y. C.P.L.R. 4506 (McKinney)

New York Penal Law § 250.05 Eavesdropping A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. Eavesdropping is a class E felony.

N.Y. Penal Law § 250.05 (McKinney)

Wiretapping

When a person intentionally overhears or records a telephonic or telegraphic communication, without the consent of a party to the communication, by means of an instrument, device or equipment [Penal Law § 250.00(1)]

Mechanical overhearing of a conversation

Prohibits a person who is not present at a conversation or discussion from intentionally overhearing or recording the conversation or discussion, by means of an instrument, device or equipment, without the consent of a party to the conversation or discussion. [Penal Law § 250.00(1)]

Electronic communication

Any non-aural communication, not expressly excluded from the definition, which is transmitted “in whole or in part” by a wire, radio, electromagnetic, photoelectronic or photo-optical system. [Penal Law § 250.00(1)] Includes:

Communications transmitted by facsimile machines, computers (e.g., electronic mail), display pagers, and the “digital information captured by a pen register.” People v. Kramer, 92 N.Y.2d 529 (1998).

Excludes: a) any telephonic or telegraphic communication, since such communications are included within the definition of “wiretapping”; (b) a communication by a paging device which transmits a tone only, as opposed to a paging device which transmits an aural or visual message; (c) a communication transmitted by a “tracking device,” such as a “beeper” device which when attached to a person or object will transmit a signal which may be used to track the movements of the person or object; and (d) communications “readily accessible to the general public,” such as those transmitted on a “citizens‘ band” radio. N.Y. Penal Law § 250.05, Practice Commentaries (McKinney)

CASE LAW • Sharon v. Sharon, 147 Misc. 2d 665 (Sup. Ct. Nassau Co. 1990)

• Husband sought to introduce evidence recordings made by son of conversations between wife and a third party. • Son had been listening to radio program and the telephonic conversation was accidently transmitted. Recognizing the voices on the line, he turned the

recorder on. • Evidence suppressed because recording made through shortwave radio receiver of conversation conducted through cordless telephone would be

considered illegally made in violation of penal statute proscribing eavesdropping.

• Gurevich v. Gurevich, 24 Misc. 3d 808 (Sup. Ct. Kings Co. 2009) • Wife sought to introduce emails from husband’s email account that she accessed by using his password after the parties had separated. • Husband argued that emails were stolen from him without permission. He argued that he never gave her permission to access his email (even while they

were married), and that regardless, the start of an action for divorce should constitute an implied revocation of authority to access a spouse’s email. • Court held that evidence was admissible because the wife did not “intercept” husband’s emails. The emails were not in transit when she had obtained

them, but rather, stored in her husband’s email account. Wife’s retrieval of information from a computer did not fall within the strictures of the statute.

• In the Matter of Harry R. v. Esther R., 134 Misc. 2d 404 (Fam. Ct. Bronx Co. 1986) • Father in custody battle with his ex-wife over their two children sought to introduce in court recordings of his telephone calls with his children, which were

made without his children’s knowledge or consent. The mother objected. • Recordings were not “illegal eavesdropping” under the New York statute because the conversations were recorded by the father “as either the sender or

receiver of these communications.” • Nevertheless, the court found the recordings inadmissible because they violated the confidence and trust between the father and his children: “These

children, like any other children, are entitled to feel that they may communicate freely with their parents without fear that those communications will be recorded and revealed later. The court cannot prevent Mr. R from recording these conversations. But it can preclude their use in this proceeding, although otherwise admissible, to protect the spirit of trust and confidence that needs to exist between child and parent in order for the children’s emotional health to be safeguarded.”

• Berliner v. Berliner, 33 A.D.3d 744 (2nd Dept. 2006) • Husband found in civil contempt of court for disobeying court order prohibiting communication with his office prior to compliance with discovery order

relating to his alleged unauthorized copying of wife’s files onto his office computer.

CASE LAW (continued) • People v. Badalamenti, 124 A.D.3d 672 (2nd Dept. 2015)

• Court properly admitted evidence of conversation that father recorded of defendant berating and threatening infant child. • Father acted in good faith and had an objectively reasonable basis to believe that recording was necessary for child’s welfare and therefore

consented on child’s behalf.

• People v. K.B., 43 Misc. 3d 478 (Sup. Ct. Kings Co. 2014) • In a rape case, Defendant objected to introduction of recording between minor victim and himself wherein defendant pleaded with victim not

to get him arrested and that he was sorry for what he had done. Defendant argued victim, a minor, lacked the ability to consent to recording. • Court held that even though minors generally unable to consent, the victim purposefully recorded the conversation and therefore consented.

• Nader v. General Motors Corp., 25 N.Y.2d 560 (1970) • Author of book on auto safety complained that General Motors (or its agents) engaged in unauthorized eavesdropping. • Court accepted complaint as a valid cause of action under District of Columbia’s laws on invasion of privacy.

• Gidatex, S.r.L. v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999) • Federal Lanham Act false advertising case where, prior to filing its complaint, Plaintiff’s attorney sent investigators to record conversations with

defendant’s sales clerks. • Court held that while not a crime, unethical for an attorney to record his conversation with another person without their knowledge or

consent. But, use of private investigators, posing as consumers and speaking to nominal parties who are not involved in the litigation, does not constitute an end-run around attorney client privilege. The investigators, “merely recorded the normal business routine” in the defendant’s showroom.

• And, New York State courts will admit evidence procured in violation of ethical rules (Stagg v. New York City Health and Hosp. Corp., 162 A.D. 2d 595 (2d Dept. 1990).

RECENT CASE LAW

• Crocker C. v. Anne R., 49 Misc. 3d 1202(A), 2015 N.Y. Slip Op. 51365(U) (Sup. Ct. Kings County, Sept. 18, 2015)

• Husband planted spyware on Wife’s iPhone before filing for divorce. • Court takes adverse inference against Husband because he asserted his Fifth

Amendment Privilege when asked about the spyware during depositions. • Justice Sunshine orders Sherriff to seize Husband’s computer devices for

review. • Judge recommends independent referee to conduct an in camera

examination of Husband’s computer devices. • Case is ongoing.

What about GPS?

New York Penal Law § 120.45 Stalking in the Fourth Degree The term “following” includes “the unauthorized tracking of such person’s movements or location through the use of a global positioning system (GPS) or other device.” - This crime is a Class B Misdemeanor Installing a Global Positioning System (GPS) tracking device to an individual’s vehicle and subsequently using the device to monitor the vehicles movements constitutes a search under the Fourth Amendment. United States v. Jones, 132 S. Ct. 945 (2012)

Hiring a private investigator to install GPS qualified as stalking under NYPL § 120.45. People v. Tyrrell, 44 Misc. 3d 1211(A) (Poughkeepsie City Ct. 2014)

CASE LAW • Cunningham v. NY State Dept. of Labor, 21 N.Y.3d 515 (2013)

• GPS attached to employee’s automobile (without his knowledge) revealed that employee was falsely reporting work hours.

• While attachment of GPS constituted a “search” under the 4th Amendment, such action came within the “workplace” exception to search warrant requirements.

• Employee had a diminished expectation of privacy regarding location of his care during hours he reported to be at work.

• Carniol v. New York City Taxi and Limousine Com’n, 42 Misc. 3d 199 (Sup. Ct. New York Co. 2013) • Taxi and Limousine Commission (TLC) mandate that all cabs be equipped with Taxi Technology System (TTS) to ensure drivers

do not overcharge passengers. • Plaintiff was a taxi driver who allegedly overcharged passengers 91 times. • Court held that TLC had authority to require installation of GPS device on taxis as driver had knowledge of TLC regulations

and therefore no legitimate expectation of privacy and even if driver could show privacy expectation, it is outweighed by the legitimate government interest.

Federal Standard

18 U.S.C. § 2510 (THE WIRETAP ACT) Prohibits the interception of wire, oral and electronic communications

i.e. Wiretap, recording someone else’s conversation Penalties:

- Up to $10,000 per violation - Up to 5 years imprisonment

Federal Standard (continued)

Federal wiretapping law is a “One-Party consent” law making it a crime to record to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents. 18 U.S.C. § 2511(2)(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

What about stored communication?

18 U.S.C. § 2711 (STORED COMMUNICATIONS ACT) Protects emails that are stored electronically or for backup protection

i.e. unread emails Penalties:

- Up to $1,000 per violation - Up to 1 year imprisonment for first offense

Two Party Consent States

• California • Connecticut • Florida • Illinois • Maryland • Massachusetts • Montana • New Hampshire • Pennsylvania • Washington (States not listed are One-Party Consent states)

WHEN THE LAWS CONFLICT

• Locke v. Aston, 31 A.D.3d 33 (1st Dept. 2006) • Plaintiff from California (a Two Party State) sued New York (a One Party State) Doctor

for Breach of Contract. Doctor countersued for surreptitious taping pursuant to California Invasion Privacy Act.

• Court applied New York law • Defendant “is not within the class of persons intended to be protected by [the California]

statute.” • Interest analysis principle to determine choice of law – New York has a greater interest as

invasion of privacy occurred there.

• Heffernan v. Hashampour, 26 Mass. L. Rptr. 541 (Superior Ct. Mass., December 19, 2009)

• Defendant was in Virginia (a One Party State) and recorded calls with Plaintiffs who were in Massachusetts (a Two Party State).

• Court applied Massachusetts law – as Plaintiffs were in Massachusetts and that is where the invasion of privacy occurred.

WHEN THE LAWS CONFLICT (continued)

• Golden Archer Investments, LLC v. Skynet Fin. Sys., 908 F. Supp. 2d 526, 537-39 (S.D.N.Y. 2012)

• New York party tape recorded calls with party in Illinois (Two Party State). • Court upheld a cause of action under Illinois statute because the New York party

knowing that the other party was in Illinois, “knowingly reached into Illinois and committed a tort against an individual and corporate entity in Illinois.”

• Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006) • Business in Georgia (a One Party State) recorded calls with California (Two Party

State) customers. • Court held that the failure to apply California law in this context would impair

California’s interest in protecting the degree of privacy afforded to California residents by California law more severely than the application of California law would impair any interest of the State of Georgia. In fairness, the Court made liability only prospective.

PRIVATE CAUSES OF ACTION • Talmor v. Talmor, 185 Misc. 2d 293 (Sup. Ct. Nassau Co. 2000)

• No private cause of action arises under Penal Law § 250.00 for two reasons. No private cause of action is ordinarily inferred from violation of a Penal Law provision; and there is no “common law” right of privacy cause of action under New York law.

• Congress did not intend that the federal wiretapping laws should apply to situations where a party to a matrimonial action engages in wiretapping of the telephone in his or her own home in preparation for litigation….This has been so held even where the offended spouse resided in the same home…[T]he cases in this circuit have distinguished between those cases where a defendant has wiretapped the telephone in his own home (which is the case here) and those cases where the defendant has invaded the home of another to accomplish the act of wiretapping. The Act has been found applicable to the latter situation, but not to the first.

PRIVATE CAUSES OF ACTION (continued) 18 U.S.C. § 2520:

(a) In general.--Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

(b) Relief.--In an action under this section, appropriate relief includes--

(1) such preliminary and other equitable or declaratory relief as may be appropriate;

(2) damages under subsection (c) and punitive damages in appropriate cases; and

(3) a reasonable attorney's fee and other litigation costs reasonably incurred.

(c) Computation of damages.—

(1) In an action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:

(A) If the person who engaged in that conduct has not previously been enjoined under section 2511(5) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and not more than $500.

(B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 2511(5) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $100 and not more than $1000.

(2) In any other action under this section, the court may assess as damages whichever is the greater of--

(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

(d) Defense.--A good faith reliance on--

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under section 2518(7) of this title; or

(3) a good faith determination that section 2511(3) or 2511(2)(i) of this title permitted the conduct complained of; is a complete defense against any civil or criminal action brought under this chapter or any other law.

(e) Limitation.--A civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.

(f) Administrative discipline.--If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

(g) Improper disclosure is violation.--Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of information beyond the extent permitted by section 2517 is a violation of this chapter for purposes of section 2520(a).

Ethical Considerations As a starting point, it is difficult to express a clear rule regarding the recording of a person who has not consented. There are opinions that declare it is an ethical breach for an attorney to do so without the other person’s knowledge. NYS Bar Ethics Opinion 328 (1974); Opinion 515, 1979 WL 15770. In this formulation, exceptions are recognized in order to document criminal utterances, threats, obscene telephone calls and the like, and for testers in investigations for housing discrimination and trademark infringement. ABA Formal Op. 01-422, pg. 2. But there is substantial authority to the contrary. Gidatex, S.r.L. v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999) • In a federal Lanham Act false advertising case, prior to filing its complaint, the plaintiff’s attorney sent investigators to

record conversations with defendant’s sales clerks. Court held: Although it is not a crime in New York State, there is authority for the proposition that it is unethical for an attorney to record his or her conversation with another person without the knowledge or consent of the person being recorded. But, use of private investigators, posing as consumers and speaking to nominal parties who are not involved in any aspect of the litigation, does not constitute an end-run around the attorney/client privilege. The investigators “merely recorded the normal business routine” in the defendant’s showroom. Additionally, New York State courts will admit evidence procured by unethical or unlawful means in violation of ethical rules, citing Stagg v. New York City Health & Hosp. Corp., 162 A.D.2d 595 (2d Dept. 1990).

United States v. Parker, 165 F. Supp. 2d 431 (W.D.N.Y. 2001) • “Defendants fail to explain what specific conduct employed by investigators in this case could conceivably be viewed as

deceptive and unethical within the meaning of any rules of professional responsibility. Indeed, opinions of state and local bar associations hold DR 1–102(A)(4) does not apply to prosecuting attorneys who provide supervision and advice to undercover investigations. N.Y. State Bar Assoc. Ethics Comm. Opinion No. 515 (1979); Assoc. of the Bar of the City of N.Y. Comm. on Professional Ethics Opinion No. 696, 1993 WL 837936. See also Gidatex v. Campaniello Imports, Ltd., 82 F.Supp.2d 119, 123 (S.D.N.Y.1999) (prohibition against attorney misrepresentations in DR 1–102(A)(4) not applicable to use of undercover investigations initiated by private counsel in trademark infringement case).”

Mena v. Key Food Stores Co-op., Inc., 195 Misc. 2d 402 (Sup. Ct. Kings Co. 2003) • “Contemporary ethical opinions hold that a lawyer may secretly record telephone conversations with third parties without

violating ethical strictures so long as the law of the jurisdiction permits such conduct. ABA Formal Ethics Opinion 01–422 (2001)6; New York County Lawyers' association Committee on Professional Ethics, Opinion No. 696 (1993).”

NEW YORK COUNTY LAWYERS' ASSOCIATION Committee on Professional Ethics

QUESTION NO. 696

TOPIC: SECRET RECORDING OF TELEPHONE CONVERSATIONS

DIGEST: A LAWYER MAY SECRETLY RECORD TELEPHONE CONVERSATIONS WITH THIRD PARTIES, PROVIDED ONE PARTY TO THE CONVERSATION CONSENTS AND THE RECORDING DOES NOT VIOLATE ANY APPLICABLE LAW OR SPECIFIC ETHICAL RULE. CODE: DR l-102(A)(4);

DR 7-102(A)(S); DR 7-104(A)(l);

DR 7-109(A).

New York County Lawyers Association

June 23, 1993

QUESTION This Committee has received various inquiries from lawyers who wish to record their telephone conversations with third parties, including clients and other lawyers, without such third parties' knowledge and also to assist clients in secretly recording their telephone conversations with third parties. We have been asked to address whether secretly recording such telephone conversations violates any provision of the Lawyer's Code of Professional Responsibility (1990) (the "Code") .

OPINION

Numerous bar associations have opposed lawyers' participation in secret recordings of telephone conversations on the ground that such conduct involves "dishonesty, fraud, deceit or misrepresentation" within the meaning of DR l-102(A)(4). See, 'ABA 337 (174); N.Y. State 328 (1974). In fact, this Committee stated that "[t]he tape recording of a telephone conversation between two attorneys, whom the Committee assumes are adversaries, by one of the participants for future use in pending prospective litigation is underhanded and deceptive and fails to satisfy the standards of Canon 22 (of the Canons of Professional Ethics (1908) requiring that all acts of a lawyer be characterized by candor and fairness], and, consequently is unethical and nonprofessional.“ N.Y. County 552 (1967). Both ABA 337 and N.Y. State 328 prohibit secret recordings unless sanctioned by express statutory or judicial authority. The ABA opinion, while citing various state ethics opinions, provides no independent reason for the prohibition. Likewise, the N.Y. State opinion provides no. independent reason for prohibiting secret recordings, but rather relies on such concepts as "elemental fairness". We find such reliance unpersuasive for reasons articulated by the New York City ethics committee: (W]e do not believe that ethical committees are free to determine what conduct is unfair or lacking in candor in a vacuum. Unlike more explicit ethical prohibitions, concepts like candor and fairness take their content from a host of sources-- articulated and unarticulated--which presumably reflect a consensus of the bar's or society's judgments. Without being unduly

relativistic, it is nevertheless possible that conduct which is considered unfair or even deceitful in one context may not be so considered in another. N.Y. City 80-95 (1981) We believe that the secret recording of a telephone conversation, where one party to the conversation has consented, cannot be deceitful per se. Since such conduct is authorized by New York Penal Law §§ 250.00 and 250.05 (McKinney 1967), a party to a telephone conversation should reasonably expect the possibility that his or her conversation may be recorded. See N.Y. State 515 (1979) (permitting lawyer to counsel client about legality of client secretly recording conversation with third party). In fact, the rule against secret recordings has been relaxed with respect to prosecutors and defense counsel involved in criminal investigations. See, e.g., N.Y. City 80-95. Prosecutors use secret recordings pursuant to Title III of the Omnibus Crime Control Streets Act of 1968, which specifically authorizes the use of secret recordings by the federal government where one party to the conversation has consented. As well, normative standards change over time. Advertising, for example, was once considered to be unprofessional and, hence, unethical by this committee. After the decision of the United States Supreme Court in Bates v. State Bar, 433 U.S. 350 (1977), however, most of the ethical strictures against advertising were removed. Similarly, former pronouncements that secret recordings by lawyers are inconsistent with standards of candor and fairness are no longer viable in

today's day and age. Perhaps, in the past, secret recordings were considered malevolent because extraordinary steps and elaborate devices were required to accomplish such recordings. Today, recording a telephone conversation may be accomplished by the touch of a button, and we do not believe that such an act, in and of itself, is unethical. It should be noted that there may be circumstances in which a secret recording would violate specific provisions of the Code and thus would be ethically improper. DR 7-102(A)(5) provides, for example, that a lawyer may not "[k]nowingly make a false statement of law or fact." Accordingly, if a lawyer is asked by the other party to the conversation whether the discussion is being recorded, the lawyer may not falsely assert that the conversation is not being recorded. Similarly, DR 2- 102(A)(4) states that a lawyer shall not engage in conduct involving misrepresentation. Thus, a lawyer may not use recorded statements out of context or in an otherwise misleading way. As well, DR 7-104(A)(l) states that a lawyer shall not "(c]ommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so." DR 7-104(A)(l) requires a lawyer to make reasonable inquiry to determine whether a person with whom he wishes to communicate is represented by counsel in the matter. See, e.g., N.Y. State 607 (1990). It would be ethically improper under this disciplinary rule for an attorney to record or cause to be recorded any conversation with an adverse party or witness

represented by counsel without that party's consent or prior knowledge. We caution that the practice of secretly recording telephone conversations raises various practical concerns. For example, if it becomes commonplace for lawyers to record conversations with other lawyers, lawyers may become overly guarded in their oral communications, thus impeding the lawyering process. Lawyers may also incur unnecessary costs to clients if tapes are to be transcribed. As well, a client who discovers, after the fact, that his or her lawyer recorded their telephone conversation may feel betrayed and lose confidence in his or her lawyer. Finally, by recording a telephone conversation with a client or between a client and a third party, a lawyer may be creating discoverable evidence. This may result in an accompanying duty not to suppress such evidence. See DR 7-109 (A). These and other practical concerns may rise to the level of ethical problems in light of a lawyer's duty to act competently, DR 6-lOl(A), and not to intentionally prejudice or damage a client during the course of the professional relationship. DR 7-10l(A)(3). Thus, a lawyer should carefully consider the practical effect of secretly recording a telephone conversation before proceeding.

CONCLUSION Subject to the caveats described above, a lawyer may secretly record telephone conversations with third parties including other lawyers, provided one party to the conversation has consented and provided that such recording does not violate any applicable law or a specific ethical rule. June 21, 1993

Questions?

Jacob Laufer is the founding partner of Jacob Laufer P.C. Mr. Laufer’s practice has focused mainly on white-collar criminal defense litigation and investigations, complex commercial litigation, and entertainment litigation. He served as a Special Attorney with the U.S. Department of Justice’s Organized Crime & Racketeering Section, and as an Assistant U.S. Attorney in the Southern District of New York. After leaving the federal prosecutors’ office, in 1979, Mr. Laufer, has in the past 35 years, successfully represented clients in matters before federal and state agencies. He has prevailed in arguments before the Supreme Court of the United States, the New York State Court of Appeals and the Second Circuit Court of Appeals. Additionally, Mr. Laufer has appeared in federal and state trial and appellate courts throughout the United States, including New York, Chicago, Boston, Baltimore, Philadelphia, Washington, D.C. and Phoenix. Mr. Laufer has handled complex criminal and commercial litigation, in both trial and appellate courts, involving a broad variety of legal areas, including issues relating to the Racketeer Influenced and Corrupt Organizations Act, money laundering, SEC, CFTC, HUD, IRS and FDA regulations, export control laws, mail and wire fraud, criminal and civil forfeiture, mortgage fraud, tax fraud, false arrest, insurance law, homicide, entertainment litigation, labor and union regulations, antitrust law, corporate partnership disputes, professional malpractice, age discrimination and sexual harassment. Mr. Laufer has represented a foreign government, numerous community organizations, including schools and non-for-profit charitable organizations, a labor union, a judge, law enforcement officers, a bank chairman, bank officers, union officials, lawyers, doctors, accountants, domestic and foreign businessmen and a member of a local civilian patrol organization. Mr. Laufer has also successfully represented many prominent entertainment figures.

Presented by: Philip M. Rosenthal

Digital Forensics

Philip M. Rosenthal 212-461-3301

info@pmr-group.com

Certifications: ISFCE – Certified Computer Examiner Cellebrite – Certified Physical Analyst Cellebrite – Certified Logical Analyst Berla – iVE – Certified Vehicle Forensics

Elements of Digital Forensics

What is Digital

Forensics?

What are the Impacts?

Double Edged Swords

What is Digital Forensics?

If the device runs on batteries or electricity and stores data, it is likely to have valuable intelligence on it.

Data can come from numerous sources. Computer, Cellphones, Home/Office Phones, Fax, navigation Systems, etc.

Digital Forensics

Evid

ence

Gat

herin

g How do we get the evidence? Getting the evidence is one thing. Being able to use it, is something else entirely. Fruit of the Poisonous Tree!

• Image vs. Clone?

• “Write” or Read Only?

• “Inside” assistance?

• Surveillance?

• Overt or Covert?

What are the impacts?

What is allowable?

Is it ok to use a child to help obtain evidence?

Was the data obtained

permissively?

If obtained clandestinely, was it done legally?

Were online/social media accounts accessed?

I know that the opposing client is doing things that are inappropriate! Can we put a GPS Tracker on them?

Can I get away with saying, “A little birdie dropped it in my lap.”?

Illegally Obtained Evidence In September, Assemblyman Will Barclay, R-Pulaski, defended the use by the Republican Assembly Campaign Committee of a GPS tracking device to see whether a Democratic opponent in a downstate race was living in a certain political district. Barclay also voted for Jackie's Law. "If the person was not aware of it and didn't demand it be removed, (using a GPS) would still be legal," Jordan said. U.S. Sen. Charles Schumer, D-N.Y., has proposed federal legislation that would build on Jackie's Law. Under Schumer's proposal, covert use of GPS trackers would be illegal except for use by law enforcement officials, parents of minors, and in specific cases of patients suffering from dementia or similar diagnoses.

Double Edged Swords

An audio or video recording, or digital data from a computer, cellphone or vehicle can be a treasure trove of power… …or could it guarantee a win for the other side and possibly have legal ramifications for your client?

Damning Evidence

Example Images

Standard Optical Mouse Ahh, but Inside…

Example Images

Standard Desktop Hard Drive Standard Laptop Hard Drive

Example Images

Cell Phone Forensic Imager Vehicle Navigation Imager

Example Images

Forensic Computer Processing Computers

Reputation Management

Is a negative posting Slanderous?

How do I remove this stuff?

Can this junk be deleted?

How do I determine the cost of the damage?

What are my rights?

What about my family?

Reputation Management

Create a PR campaign to re-established positive standing

Push negative search results down to oblivion Most people do not look beyond page 3 of results

Rework SEO content to highlight what WE want searches to see

Reputation Management

Delete Public Record Listings

Delete Mug shots or other images that posted from proprietary websites (without a court order)

Pay extortion fees to websites that will remove bad posts for fees

Philip M. Rosenthal 212-461-3301

info@pmr-group.com

Certifications: ISFCE – Certified Computer Examiner Cellebrite – Certified Physical Analyst Cellebrite – Certified Logical Analyst Berla – iVE – Certified Vehicle Forensics

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Welcome to Martin Friedlander, PC

Martin E. Friedlander, the principle of Martin Friedlander, PC, as well as our staff of attorneys, specializes in Family and Matrimonial Law. The firm is renowned for its personalized attention to each client and its prompt response to all queries. The firm handles all aspects of complex litigation, from efforts to resolve matters amicably to Appellate work. Our attorneys have appeared in all Courts in New York City as well as Nassau County. They have appeared and argued cases before the First, Second and Third Departments of the Appellate Division of the State of New York. Many cases that the firm has been involved with have been reported in State reporters as well as featured in the New York Law Journal. Referrals are available to all areas of law. Our attorneys having appeared on behalf of our clients at mediations, arbitrations, and Rabbinical Courts (Beth Din).

Mr. Friedlander graduated from Brooklyn Law School, and has a B.S. from Touro College as well as Advanced Talmudical Degree and Ordination from Yeshiva Torah Vodaath. He is a member of the Brooklyn Bar Association and has been a member of its Board of Directors as well as Vice Chair of its Family Law section. Mr. Friedlander has lectured on Matrimonial matters, and has been consulted by Practitioners from throughout the world as well as by Rabbinical Courts . Mr. Friedlander works closely with Rabbinical Attorneys (Toanim) in representing religious clients before Beth Din and Arbitration Boards. He has also been instrumental in publication of inspirational books to the public.

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Jacob Laufer P.C.65 Broadway Suite 1005 New York, NY 10006

Phone(212) 422-8500 Fax(212) 422-9038

Jacob Laufer

Partner65 BroadwaySuite 1005New York, NY 10006Phone: (212) 422-8500Fax: (212) 422-9038Email: jlaufer@lauferlaw.com

Admissions

• New York State 1975• Washington, D.C. 1975

• U.S. Supreme Court• U.S. Court of Appeals

for the Second Circuit• U.S. Court of Appeals

for the Third Circuit• U.S. Court of Appeals

for the Fifth Circuit• U.S. Court of Appeals

for the District of Columbia Circuit

• U.S. District Court, Eastern District of New York

• U.S. District Court, Southern District of New York

• U.S. District Court, District of Columbia

• U.S. District Court, District of Arizona

Jacob Laufer is the founding partner of Jacob Laufer P.C. Mr. Laufer’s practice has focused mainly on white-collar criminal defense litigation and investigations, complex commercial litigation, and entertainment litigation.

Mr. Laufer served as a Special Attorney with the U.S. Department of Justice’s Organized Crime & Racketeering Section, and as an Assistant U.S. Attorney in the Southern District of New York.

After leaving the federal prosecutors’ office, in 1979, Mr. Laufer, has in the past 30 years, successfully represented clients in matters before federal and state agencies, including the U.S. Securities and Exchange Commission (“SEC”), the U.S. Commodity Futures Trading Commission (“CFTC”), the U.S. Food and Drug Administration (“FDA”), the U.S. Internal Revenue Service (“IRS”), and the U.S. Department of Housing and Urban Development (“HUD”). Mr. Laufer has prevailed in arguments before the Supreme Court of the United States, the New York State Court of Appeals and the Second Circuit Court of Appeals. Additionally, Mr. Laufer has appeared in federal and state trial and appellate courts throughout the United States, including New York, Chicago, Boston, Baltimore, Philadelphia, Washington, D.C. and Phoenix.

Mr. Laufer has handled complex criminal and commercial litigation, in both trial and appellate courts, involving a broad variety of legal areas, including issues relating to the Racketeer Influenced and Corrupt Organizations Act, money laundering, SEC, CFTC, HUD, IRS and FDA regulations, export control laws, mail and wire fraud, criminal and civil forfeiture, mortgage fraud, tax fraud, false arrest, insurance law, homicide, entertainment litigation, labor and union regulations, antitrust law, corporate partnership disputes, professional malpractice, age discrimination and sexual harassment.

Mr. Laufer has represented a foreign government, numerous community organizations, including schools and non-for-profit charitable organizations, a labor union, a judge, law enforcement officers, a bank chairman, bank officers, union officials, lawyers, doctors, accountants, domestic and foreign businessmen and a member of a local civilian patrol organization. Mr. Laufer has also successfully represented many prominent entertainment figures.

Mr. Laufer’s reputation for attention to detail, oral and written advocacy, client counseling, and client access is well known. It is because of this approach, that Mr. Laufer has been named in the prestigious Super Lawyers magazine every year since 2006 until the present.

Mr. Laufer graduated from Brooklyn College of the City University of New York, and Fordham University School of Law, as a member of the Fordham Law Review.

In his free time, Mr. Laufer enjoys a fresh cigar and collecting fountain pens. Mr. Laufer lives with his wife and family in Brooklyn, NY.

Education

Fordham University School of Law J.D., 1974

Fordham Law ReviewCum Laude

City University of New York, Brooklyn College B.S., 1971

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PHILIP M. ROSENTHAL — COMPUTER & INTERNET SAFETY EXPERT

Philip Rosenthal has been involved in the Computer Industry since 1979. In 1998 he developed, created and implemented the Computer Crime Unit for the Rockland County Sheriff's Department. As a Computer Forensic Investigator he lifts electronic fingerprints and electronic DNA off of hard drives and other electronic storage media, not unlike the forensic work of a crime scene detective lifting fingerprints or DNA off of a doorknob or glass at a bank robbery or murder. There are many types of computer crimes that he investigates.

• His extensive certifications and training include the following: • International Association of Computer Investigative Specialists (IACIS) • National Consortium for Justice Information & Statistics (SEARCH) • New York State Crime Prevention Coalition • Bureau of Justice Assistance — National Institute Against Hate Crime • Simon Wiesenthal Tolerance Center

Philip has assisted the FBI, US Secret Service, NY Attorney General, Israel National Police, New Scotland Yard and countless other Law Enforcement agencies in various high-tech related cases. He is a member of the US Secret Service Electronic Crimes Task Force as well as the High Tech Crime Consortium (HTCC).

He is recognized in the worldwide Law Enforcement community for his vast technical know-how and his real-time experience with the critical detail that is involved with computer related criminal cases. He is on the Board of Directors of the National White Collar Crime Center (NW3C) based in Richmond, VA.

Mr. Rosenthal has spoken extensively around the world regarding obsessive computer behaviors, computer based child abuse, online bullying, online gambling and Internet safety. He is recognized as an expert in his field and is called upon regularly for consultation with mental health care professionals, schools, lay people, and community leaders.

Whether it is a home, a business or a child — I have made a difference. Call me today at(914) 714-3086 to discuss how my presence at your next community or corporate event will improve not only your Internet security but also that of those around you.

Internet Safety for the Home

Internet security for the corporation

Additional Tools: Spector Pro and BeNetSafe

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