Look around a courthouse, high-rise office building or over-priced martini bar and it seems you can’t swing a dead cat without hitting an attorney glued to their smartphones. Chances are, you’re one of them. Which ultimately leads to the question, what…

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Technologist Cynthia Hsu

Remember that clever New York teenager who was selling the white iPhone kits online – before Apple released the white iPhone? He was hit with a white iPhone lawsuit by Apple. Fei Lam, 17, got the idea to sell white…

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Technologist Cynthia Hsu

Maybe you’re tired of playing Angry Birds all the time. Maybe you want to stop streaming YouTube during meetings. Maybe you feel like you need to justify that $500 iPad price tag. Look no further – there are actually some…

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Technologist Cynthia Hsu

There’s an app for that. Or at least now there is. Court Days Pro is the newest app in the field of iPhone legal technology, and as the first rules-based legal calendaring app, its goal is to make calendaring an…

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Technologist Stephanie Rabiner

The smart phone war is being waged in the courts, and the Nokia-Apple battle is heating up. The two phone manufacturers have been engaged in a patent dispute since 2009. Adding to the never-ending litigation, Nokia has added seven more…

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Technologist Stephanie Rabiner

Do you use your iPhone a lot? Do you have AT&T? Do you get a lot of dropped calls? If you answered yes to these questions, AT&T is running an offer that you will definitely want to look out for….

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Technologist Jason Beahm

What do you get when you sell a mobile phone that is literally made out of glass? First, a lot of broken phones. Second, a lot of litigation. Class action, that is. California resident Donald LeBuhn is suing Apple Inc.,…

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Technologist Jason Beahm

Well, not yet anyway, but it makes me wonder what daring lawmaker will introduce that piece of legislation at some point in the near future.  (Hopefully it won’t be anyone in Massachusetts.)  However, Carl Kruger, a state legislator in New York, has recently introduced a bill to make it illegal for pedestrians to use an “electronic device” while crossing the street.  So if you use your cell phone or iPod while crossing, you face a $100 fine.

The rationale for the bill?  I suppose that depends on how cynical you are.  The stated rationale according to Kruger is to minimize the casualties that distracted pedestrians cause.  The more cynical among us may believe that such an “interesting” piece of legislation garners Kruger a great deal of publicity that he would have otherwise never received.  And the most cynical among us may even believe that such a law would do nothing but generate tons of revenue for the cash-strapped state.  But I’m a lawyer so I could never be that cynical.  Ahem. 

But let’s give the state senator the benefit of the doubt and say that the law is meant only to punish and deter distracted pedestrians.  Is it any more distracting than say, looking down at your feet while walking?  Or talking to a colleague who’s walking with you?  Or being engaged in deep thought?  Or doing any number of other things?  I would even argue that talking on the phone or listening to your iPod (at a reasonable volume) while walking is perhaps even less distracting than looking down at your feet or talking to someone you’re walking with, because at least you can still keep your eyes ahead on where you’re going. 

Many of us have seen the recent video of the woman in the mall who walked into a fountain while texting.  And let’s face it … it’s funny.  The type of funny that could best be categorized as “I’m-glad-it-wasn’t-me-because-it-easily-could-have-been” funny.  Having been a distracted pedestrian on more than one occasion—and who hasn’t?—I can relate.  In fact, given the apparent upsurge of this phenomenon, let’s even coin a new term for it.  Let’s call those texting-while-walking folks, ”Petextians.” (Hey, it’s the best I can do this late in the day.) 

Bad sniglets aside, do we really need laws against it?  Doesn’t a good cautionary laugh and widespread circulation in the media and on the Internet help to achieve the same result?  Seriously, who wants to be that woman (or for that matter, the lawyer who’s representing her in the ensuing ridiculous lawsuit).  It highlights the problem better than any law ever could.  And no matter what anyone may say, it’s just not the same thing as laws which seek to restrict such activities by drivers (or even bicyclists).

First of all, while talking on the phone or texting or even listening to an iPod while walking can certainly be dangerous in some instances, it just doesn’t rise to the same level of danger as someone doing so while driving a car.  I suppose the question is this:  To whom is it dangerous?  We’ve all heard stories of distracted or drunk drivers killing entire families or multiple people in accidents, but oftentimes walking away without injury themselves.  Cars can be lethal weapons that can hurt a lot of people.  (Even a speeding bicyclist can hurt a few people if distracted.)  So laws that attempt to punish and deter distracted driving make sense because of the magnitude of harm that they seek to prevent.

But distracted pedestrians?  In most instances, these folks will really only kill or injure themselves.  I’m not saying that some poor driver wouldn’t be traumatized if a “petextian” walked in front of his car and got hit, but it’s really hard to save people from themselves especially in this fast-paced, multi-tasking existence that all of us seem to have now.  I’m also not arguing that minimizing these sorts of individual casualties is an unworthy legislative goal, but just how much should government micro-manage the daily affairs of an individual?  We all walk, after all.  Just how big should the “nanny state” get?

Given how widespread this prospectively prohibited conduct is in a city as big as New York, the potential for abuse and selective enforcement of such laws is enormous.  Just wait until these laws pass and then a ton of videos are posted on YouTube showing cops, politicians, and celebrities crossing the street on the phone or listening to their iPods without ever once having to pay a fine.  Or maybe police officers will just target  the “pretty” girls.  Or better yet, maybe states will just “re-purpose” those ubiquitous traffic cameras with face recognition technology and folks will receive their $100 fines in the mail.  What a great revenue generator that’ll be for a state.

Such laws may sound ridiculous, but don’t count New York out just yet.  Remember that it was the first state to pass a ban of handheld cell phone use while driving.  And all it takes is just one state—particularly a large populous state like New York or California—to open the floodgates to all sorts of new laws.  So when will some enterprising politician introduce the “No Looking Down at Your Feet While Walking” Act?

Hopefully by now, most people who have upgraded to a smartphone (such as an iPhone, Blackberry, or Android) have realized that it’s not simply a phone, but a powerful mobile computer which just happens to be about the size of a 3″ x 5″ index card.  And just like your big heavy personal computer or laptop, it contains all sorts of personal information—perhaps too much information—about you and what you do.  If you haven’t come to that conclusion yet, the increasing police power of the state may soon force you to.  It should also force you to take steps to protect yourself from what could become an overzealous police officer should you ever find yourself in the unfortunate situation of being arrested (even for a misdemeanor).

For me, a big part of being a technology and internet lawyer is privacy law.  While privacy appears to have all but  disappeared in this 24/7 networked world where everyone posts a whole lot of information about themselves, it’s easy to forget that not everything is everyone’s business—especially the police, who may seek to use such information against you for violations of laws that you may not have realized even existed.  Think it can’t happen?  As a lawyer, I’ve seen many overzealous police officers, state agents, and prosecutors looking to establish a name for themselves.  Civil liberties be damned.  (Of course, there are many good ones too, but it’s often the other ones we hear about.)

An insightful article by Ryan Radia discusses the recent California Supreme Court decision in People v. Diaz, which held that police officers can lawfully search a mobile phone on a person they arrest without first obtaining a search warrant.  The court found that mobile phones, like cigarette packs and wallets, fall under the “search incident to arrest” exception of the Fourth Amendment.  While the Supreme Court may have the final say as to whether this is legal, many state courts have come to the same conclusion as California has.

Most significantly, Radia discusses the importance of taking measures to make your smartphone as secure as possible, such as full disk encryption of all content on the device.  He notes that password protection—which is certainly an important first step—may not be enough and is easy to bypass due not only to the rise of digital forensics, but the vulnerabilities in your smartphone’s own operating system that a forensic expert can exploit easily.  While Radia notes that no mobile encryption system at the moment is perfect or especially secure, this will hopefully change.

If you have a few minutes, the article is definitely worth a read.  Whether people realize it or not, privacy is one of the most daunting issues facing us (and lawyers) in this information age, and the law has difficulty keeping up.  And as the Diaz case shows when the law does catch up, it’s usually not in our favor, but works to the benefit of the state’s police power.  At least for now.

It’s official. The iPhone is finally coming to Verizon. After being tied to the AT&T Network since 2007, many people have longed for an iPhone on the Verizon network. Now that we know it is finally happening, smartphone consumers are…

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Technologist Jason Beahm