3 Geeks and a Law Blog

Image [cc] Josh Bancroft

This morning, the American Library Association came out against the FBI's attempt to order Apple to unlock an iPhone connected to the San Bernardino shooters, who murdered 14 people and injured another 22 back in December 2015. ALA's Managing Director of the Office of Government Relations issued the following statement:

The only thing that could make last December’s attack in San Bernardino more horrible would be its use to profoundly erode the Constitution’s protection of our fundamental freedoms. Man­dated 'back doors' into encrypted systems cannot successfully be labelled 'Bad Guys Keep Out.'  The only way to protect our data and, ultimately, our freedom is to fight any attempt by the courts and Congress to hack the Constitution.  ALA stands with Apple.

I also stand with Apple on this issue, and encourage my peer Law Librarians and Legal Information and Technical professionals to do the same. Librarians have always stood up for the rights of citizens against government intrusion. Long before there was a public uproar, or Edward Snowden, Librarians were pointing out and fighting the privacy breaches of the PATRIOT Act. It is time to stand up again and support the Constitution over the individual situation, regardless of the horror and tragedy surrounding the reason we wish to bend the rules.

Apple's CEO, Tim Cook, issued a response this week rejected the United States government's request where he underlined the dangerous precedent this order would create:

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

It appears that the primary reason that the FBI is asking Apple to break the encryption and open the phone is one of convenience and cost. The government has not exhausted less intrusive methods of opening the shooter's phone. Yes, it may cost more money and time to unlock the phone without Apple's help, but it will cost far less in what this dangerous precedent creates if the Government successfully orders Apple to unlock that phone.

I stand with Apple.

I recently gave a 'client case study' presentation at the HighQ Client Forum in NYC (recapped here). On the day, I opened my talk thusly:

I am of the opinion that I could tell you absolutely everything I have done at the firm for the last three years in excruciating detail, with charts, graphs, and full step by step explanations and you could take that back to your firm and it would be of almost no value to you. Except in so far as it may provide you with a bit of inspiration to try something similar, or a map to avoid some of the pitfalls that I have encountered.

That was the set up of my opening joke to explain why I was speaking in extremely generic terms about my 'case study' and also to justify why all of my screenshot examples looked like this.

In short, my firm did not share my generous opinion on sharing.

That is certainly their prerogative and they are by no means alone.  I find that most law firms feel similarly about their various technology projects. Most people who work in law firms are to some degree fearful of speaking publicly in detail about any projects they are working on. Not because they think they are somehow giving away the farm, but because they don't want to raise the ire of the managing partner or the marketing director.

One low level techno-peon, whose firm belongs to a knowledge sharing consortium of non-competing regional firms, told me that she was told to forward any information she receives from the group to the managing partner, but that she was never to share anything with the other firms.   I'm willing to bet that most staff in the consortium have received similar instructions from their firm's management.  In the upper echelons of law firm management, it seems to generally be believed that the use of specific technologies, in a particular way, to solve a problem or build a product, constitutes a 'competitive advantage' of some kind.

It does not.

We are all using the same tools to build the same kinds of products and services for the same potential clients.

If I tell you that I am using tools A, B, and C to develop a solution that does X, Y, and Z. Even if I show you detailed screenshots of my final product, or give you a demo of its various features, you cannot recreate what I've done.  Even if I gave you the completed product itself, along will full rights to use it as you saw fit, you couldn't get anyone at your firm to sign off on it.  Trust me, it's hard enough to get two lawyers at the SAME firm to agree on simple introductory wording for a product let alone actual legal interpretations; lawyers from different firms agreeing on anything is nearly unthinkable.

The competitive advantage, the 'secret sauce' if you will, has absolutely nothing to do with the technology or how I/we/you put it together.  The advantage is in the knowledge and intelligence that your firm's lawyers bring to the product/service/solution and that will be different at every firm. Even if the outward appearance and general construction of the eventual product is identical. (Which it can't possibly be.)

In addition, it is highly unlikely that your technologists or consultants have discovered a unique combination of tools and resources that no one at any other firm has ever thought of.  The one exception would be if your in-house development team built something entirely from scratch, but then I would argue that any immediate advantage you may gain is more than offset by the long term headache of software maintenance and support, and you're actually digging an innovation hole.

Now, to be clear, I am not advocating for a mass uprising of technologists to start spilling their firms' secrets. Nor am I suggesting that I would ever share details of what my former firm was working on against their wishes. Nor will I ever share details of anything that I work on for any company in the future without explicit permission to do so. However, I truly believe that in most cases a strict devotion to the 'competitive advantage' myth actually does a big disservice to the secretive firm itself. They struggle to learn through trial and error what could simply be learned by talking to others who have gone before. Although, if you don't share, no one else is going to share with you.  Those good old kindergarten values at play.

It strikes me that this bizarre behavior is like construction contractors jealously guarding their secret use of wheelbarrows, nail guns, and wooden framing.  Those things constitute baseline technologies for building a house.  However, the fact that a crew uses those technologies has almost no bearing on the eventual quality of the house.  It's the work of the specialized craftspeople that ultimately determines the value of the end product.

The same is true for law firms. Firms should have faith in the skill of their craftspeople (lawyers) and encourage their construction foremen (technologists) to talk to others in the industry about construction (legal technology innovation) best practices.

Otherwise, what is the message we, as an industry, are sending to our clients?

"We'd rather spend our time and money reinventing the wheelbarrow than using technology to solve your legal problems."

I hereby relinquish any claim to copyright on that phrase. If any firm wants to adopt that as their marketing slogan, be my guest.

If you read Legal IT Insider, or if you follow Greg or me on Twitter, you have probably heard the big news regarding HighQ.

1. Don't call out your own firm

Not really a rule so much as prudent self-censorship.  I have openly mentioned my firm only once, when I wrote about the London Office Choir winning a competition.  I've actively avoided writing anything that could be directly attributed to anyone at the firm or would be easily recognized as a response to anything that happened at the firm. (Though I occasionally rode a bit close to that edge, like when I wrote a satirical poem in response to the Texas Bar's stupid Opinion 642 after it caused the firm's CIO's title to be changed to Chief of Information Technology.)  However, those who poke the bear too many times, tend to not remain employed by the circus... if you know what I mean.

2. No advertisements

We occasionally review products, tools, or books, but we generally don't endorse anything.  Also, we allow vendors to write guest posts all the time, but those posts are generally about industry trends or market analysis and not specifically about how great their products are.

3.  The three beer solution

Again, not really a rule, but more of an axiomatic guideline.  "There is no problem that cannot be solved over the course of three beers. And no problem that will not be made worse by ordering the fourth."  Like I said, axiomatic.

I think that's about it.  3 'rules' for 3 Geeks, if you will.  For more than 5 years I have fretted about rule #1 for fear that some marketing stooge would track me down for some innocuous firm 'secret' I divulged, now it's rule #2 that I need to worry about. After all, 3 Geeks is not a platform to extoll the virtues of HighQ products any more than it's a platform to push our firm's legal services. We have the utmost respect for our devoted readers, and while I may openly shill for HighQ products on the HighQ blog, I hereby promise to never use 3 Geeks as an advertising platform for my new employer.

For example, I will never use my 3 Geeks posts to write about how you can use HighQ Publisher as a platform of platforms that can integrate multiple solutions into a single user interface to build revenue generating subscription legal services for your clients. I will never write about the versatile HighQ Collaborate product that can be used as a simple deal room file sharing service, or as a full internal and external social networking tool, or could even be paired with HighQ Publisher to become your firm's modern social intranet. I will not even write a post about the slogan I've been using to sell HighQ inside the firm for years:

"It's like SharePoint. You know, if SharePoint didn't suck."  

I won't write about those things here, but you can be sure I will on the HighQ blog.  So subscribe to the blog or follow me on Twitter if you are interested in those things.

Finally, I just want to say thank you to Greg, Toby, and everyone involved with 3 Geeks, including all of our regular readers.  Without this wonderfully supportive community, I would just be a pissed-off low level IT support guy, struggling to get by in a law firm, frustrated, helpless, and desperately afraid as the industry changed around me.  I'm fairly certain HighQ wouldn't want to hire me then and I doubt anyone else would either.

Thanks for letting me get a few things off my chest for the last 5 years.

More to come...

A few minutes ago, AALL President, Keith Ann Stiverson, made the announcement that the members of AALL voted down the proposed name change to Association for Legal Information:

The proposal to change the name of American Association of Law Libraries to the Association for Legal Information has failed by a vote of 1998 (80.11 percent) opposed, to 496 (19.89 percent) in favor. A record number of members voted on this proposal, with 59.51 percent casting a ballot.  

The fact that 60% of the members took the time to vote, showed that the issue was important, and the fact that 80% of those votes were a "no" to name change, drove home a point that I've heard from the members over the past few months. It is clear that the ALI name was not the one members wanted. It was also clear that many of the members were open to the idea of change, but that members wanted much more of a voice and the ability to comment and bounce ideas before an up or down vote is made.

While there are a very small number of members that felt that AALL as "American Association of Law Libraries" was just fine, most of the people I talked to made a comment similar to this:

I am fine with rebranding the association and even changing the name... but just not this name.

I am happy that the members made their voices heard. I am happy that the AALL Board took the initiative to put this challenge out to the members and get the conversation started. This is not the end of the conversation, by any means. This is the beginning of a longer conversation, and a chance to look at the good and bad of what's happened over the past couple of months and how to move on in a respectful way to the next step in the process.

This is still fresh in my mind, so there are a few ideas that I'm bouncing around in my head, and would like to discuss as we move forward:

• I think members are still receptive to a name change (AALL (alone), changing Libraries to Librarians, adding "Information Professionals" to AALL, or adding Professionals to ALI. But, I don't think anyone has the stomach to try this right away. Let's put a pin in this one for now, and move on.
• Rebranding goes on. No one is standing still. Members, Board, Stakeholders, etc. We all know that the association needs to adapt to serve its members and to increase awareness of the stakeholders in what we all bring to the table within our organization, and the overall value of our profession. That discussion moves forward.
• I think the Board "heard" the members when it came to involvement and discussion prior to voting. I, for one, as an incoming Vice President/President Elect, heard that message loud and clear.
• I think most of the members understood what the Board was attempting to do, and even when they disagreed with the Board's actions and ideas, did so respectfully. There was no evil intent. If you think there was, I suggest that you re-evaluate the situation and give the board the benefit of the doubt here, and move forward.
• There will be no running to the doors. AALL is the association for those of us that call ourselves law librarians. No other organization focuses more on our profession. We can face the future together, we can argue and debate the path, but at the end of the day, we come together for the greater good of our profession.
• That said, our profession is changing. Librarians, Lawyers, Analysts, Writers, Researchers, and other professionals within the legal field have many things that we can learn from each other. Looking to bring in non-traditional roles into the ranks of the Law Librarian association does not make us weaker, it makes us more diverse, and stronger as a whole. Law Librarianship is still the pivotal function of the association, but narrowly defining who fits that role is a disservice to all who can benefit from the association.

Although this was a record number of people that turned out to vote, there were still over 4 in 10 of us that didn't vote. That, to me, is a red flag. As I move forward over the next couple of years and move from Vice President to President, I would like to find ways to reach out to those other 40% and find ways of motivating them back into the ranks of active and contributing members. I also want to make sure that the other 60% also remain active and seek out ways that we can help ourselves, each other, and the profession.