Saturday, December 13, 2008

Challenge to DOD computer monitoring policy

Here's a link to an interesting motion filed in an Army court-martial last month. The motion challenges the effect of DOD's computer monitoring policy on military defense counsel's ability to send and receive confidential communications electronically. Does anyone know how the motion was resolved? Are there any other updates on the DOD policy and its ramifications?


Cloudesley Shovell said...

That's an interesting motion. The rather snarky but perfectly valid response is: Don't use the government computer system. Use phones, fax, etc. I doubt the MJ would abate the proceedings waiting for DoD to find a way to tag attorney accounts as non-searchable when there are alternate methods available for the defense to communicate without being subject to monitoring. Big picture, however, DoD needs to find a way to avoid searching privileged computer accounts and files.

I know some old-school attorneys who still dictate letters and briefs for others to type up, and even hand-write drafts of briefs, rather than use a computer. I also know many attorneys that refuse to do anything by email, for discovery reasons.

By the way, for those of you who laugh at the idea of dictating--it's a much faster and far more efficient method of dealing with routine correspondence and standardized documents than typing it yourself. For you trial practitioners, if your LNs (or other-service equivalent paralegal/legal support staff) aren't already doing most of your routine paperwork, you're doing it wrong. Those of you in private practice will know what I'm talking about.

Other thought--will e-discovery invade courts-martial? UCMJ Art. 46 and RCM 701 et seq. guarantee equal access to evidence. Sounds to me like DC's could make hay demanding the same access to gov't computer systems that the gov't has. Wouldn't it be nice to get a complete history of every witness's email correspondence? How about copies of every prospective witness's emails to trial counsel? Pretty fertile ground for impeachment and cross-examination, I think. Such electronic documents may even be subject to the disclosure requirements of RCM 701. Every single email, after all, is a writing, and the fact that it comes from a particular email account means it's "signed" by the person holding the account.

Electronic records are a real Pandora's Box. Be careful what you say in all those emails, and who you correspond with.

Anonymous said...

The Motion was argued on 9 DEC 08 - the Government's position was simply that the new "process" is legal and ethical.

The MJ tasked the government into looking into encryption possibilities - one form of alternative relief asked for by the Defense.

NOTE: There are similar motions pending in a number of USMC cases at Camp Pendleton - a request for a legal opinion to the Navy TJAG is working its way up the chain on the ethical problems. Also, DoD General Counsel's office is again reviewing this issue, but since the new policy had been vetted by the OGC, they probably aren't going to reverse themselves.

Anonymous said...


Re your comment "For you trial practitioners, if your LNs (or other-service equivalent paralegal/legal support staff) aren't already doing most of your routine paperwork, you're doing it wrong." Where exactly does one find LNs capable of routine paperwork? In my experience, they're few and far between.

Anonymous said...


In today's era, it is completely unrealistic to not use the gov't computer system. What are we supposed to do when the client is at one location, we at another, and the IMC or other detailed counsel is at the third or if we want to let our superiors within TDS chop/edit a motion? If we want to edit motions and whatnot or share other attorney work product electronically, must we send work product via our gmail accounts? This hit the press in the spring time when the Marines were still doing Haditha cases at the trial level and I believe NACDL or the ABA got involved and issued some sort of "this is stupid" decree. Rumor has is that the Marine defense bar is in uproar over the professional responsibility aspect of this - essentially the monitoring policy requires a DC to agree to violate Rule 1.6 of the Professional Responibility Rules.
Totally agree that e-discovery is the new black!
Anonymous because my bosses say I can't blog

Cloudesley Shovell said...

Anon 753am--The JAGC could do much better in training both JAGs and LNs. A lot of new JAGs just don't know how to actually use a support staff, and end up doing all the work themselves. It's unfortunate that there is a lot of potential in the LN community that goes wasted.

Anon 820am--True, it is unrealistic, but the law is slow to catch up with technology. Cloudesley remembers when the IBM Selectric typewriter was bleeding edge technology, when fax machines were a rare luxury, when long-distance telephone calls were expensive and rare (woe betide the schmuck who made a commercial long distance call when autovon was available), and when mail that reached the ship three weeks after it was sent got there really fast.

The law remembers those days too, which is why these and other motions on e-discovery issues are a great way to keep the law up with technology.

Dew_Process said...

Anon 0820 - That's the issue - there are significant ethical issues here. NACDL looked into this and contacted the DoD GC's office. There are relatively "easy" technological "fixes" but DoD does not want to give up "domestic spying!"

The Marine Defense Community is still "engaged" in this battle out Camp Pendleton way....

Jason Grover said...

Computer monitoring? I have a hard enough time getting my computer to work on a daily basis. And without memory sticks to transfer information, the DOD's computer systems are becoming harder rather than easier to use. To quote Colin Kisor (a line I never thought I would use), isn't information technology supposed to make life easier for us?

Dew_Process said...

JG - what's the Navy's position on Flash Drives, memory sticks etc.? Are they totally verboten or can you get them "scrubbed" by your IT people and then use them?

Just curious as there does not seem to be any "consistency" [surprise....] in how this so-called problem is being addressed.

Jason Grover said...

The rules seem to change weekly. I believe the current rule is no thumb drives and external hard-drives are only approved if they are official, have been checked by the IT folks, and remain at one machine. No transferring data. To transfer data, my last brief said we had to burn a CD and then destroy the CD after a single use. There may be some exceptions for thumb drives for true mission essential things with the IT's help, but not for legal. But I do live on an island and am not sure how many of our rules are local, regional, or DON-wide.

Dew_Process said...

JG - thanks for the reply. I agree, it appears to be an ad hoc type of thing.

But, here's the crux of the problem. Hypothetically, [because emails are not ethically allowed], you are Detailed Defense Counsel [DDC]and I'm Civilain Defense Counsel [CDC]. I send you a CD with a bunch of "crime scene" photo's our investigator just took [work product]; a draft motion to suppress; and preliminary assessments by our blood spatter expert.

Are you saying that you cannot open my CD to you on your government computer?? If true, we have just eliminated the digital age - perhaps the USPS is behind all of this.

I can understand running a virus or other malware check on the CD before downloading anything on your "issue" computer, but a complete ban makes you a virtual prisoner of the ".mil" universe.

Anyone else have any thoughts on the intra-counsel exchange of information and maintaining privileges???

Thanks again.

Jason Grover said...

I think I can open your CD, I just have to never use it again, destroy it, and there may be a ritual chat I have to do with candles as well.

I do think I can open CDs and use them to transport material, they just have to be single use. I also think they have to be a certain type, but I stopped listening by the time we got to that portion of the brief.

Anonymous said...

UPDATE: On 19 DEC 08, the Military Judge "punted" - without ruling on this motion, he sent the case back to the Convening Authority, ruling that they had not properly ordered a Rehearing [and avoiding a ruling on the also pending Double Jeopardy dismissal motion].