Richmond Journal of Law and Technology

The first exclusively online law review.

Month: April 2014

Blog: Fishy Law

by Walton Milam, Associate Staff


For years, Virginia anglers have lamented the arbitrary three mile line separating the legal area to chase Virginia’s striped bass from the “exclusive economic zone”[1] where commercial boats can legally reek havoc[2] on schools of striper for which the Virginia coast is famous.  The three-mile line is non-sensical for a number of reasons.  The idea that the environment is less affected by a fish caught 2.9 miles offshore than one caught 3.1 miles offshore seems unpersuasive at best.  If population decimation is the federal government’s concern, the two fish per angler rule seems to address these concerns adequately.   If the two fish per angler rule is inadequate, laws ought to further restrict the amount of fish legally caught rather than how far offshore the fish can be caught.  The rule instead seems more likely to be the result of successful lobbying on the part of commercial fisherman who have long foiled the attempts of environmentalists to invoke meaningful improvement, particularly in the Chesapeake Bay.[3]  While I admittedly am skeptical of any attempt by the government to manipulate behavior to affect environmental change, the case of the three-mile line seems particularly heinous.  Commercial fisherman claim that their livelihood depends on their ability to harvest fish outside the three mile zone.  However, many anglers make their living guiding “non-commercial” patrons.  Further, even more anglers work five days a week with the hopes that they can spend money and time and enjoy their free time on the weekend.  In doing so they spend thousands of dollars on licenses, boats, tackle, bait, gas, ice, food, lodging, and beer.  These endeavors seem just as economic as any commercial fisherman catching fish in the “exclusive economic zone.” 

Finally, the technological aspect of enforcement is tricky, given the nature of fishing near the line.  While most GPS and Fishfinder systems include the Three Mile Line in maps, when fishing near the line, it is not always easy to ascertain whether one is in an illicit or legal zone.  This issue is further complicated when fighting a fish that may start in the legal zone but move to the illegal zone.  While most citations of which I am aware occur far outside the line, the difficulty of determining when one is fishing legally adds to the confusion.  One could foreseeably hook up with a striper within the three-mile zone but have the friend run into the exclusive economic zone, making the fish illegal to catch. 




Blog: Heartbleed Security Hack – Need to Change Your Password?

by Danielle Bringard, Associate Survey & Symposium Editor


I don’t know about you, but my heart skipped several beats after reading the first wave of news detailing the Heartbleed Security Hack.  I changed all of my passwords on various sites only to find if I had changed them before that particular web operation had updated its software I would have to change my passwords again.  Now, I find, by checking the security of a website I may be violating the law?

Heartbleed is not a virus, but a software defect.[1]  It affects OpenSSL software which is used for encryption.[2]  OpenSSL is an open source software, meaning anyone can access the code, review it, and make changes to it.[3]  So what happens when Heartbleed is exploited?  Essentially it allows a hacker to retrieve memory which may contain usernames, passwords, keys, credit card numbers, social security numbers or other useful information.[4]  Each time the hacker access the system it he or she can gain access to more information.[5]  This is a serious problem as many people now do much of their banking and shopping on the internet.

 So before you change your passwords it might be a good idea to check to see if the website is still vulnerable.  If the website hasn’t patched its software then changing your password will do you no good.  McAfee released a free tool to help consumers determine if the website they visit is safe or not.[6]  That tool can be accessed at

 STOP!  Before you click that link and test a website you have in mind, you should know that some technology experts are worried that doing so could break the law.[7]  These naysayers cite the United States Computer Fraud and Abuse Act.[8]  Software that checks a website to see if it has patched the Heartbleed actually accesses that sites security certificate, which may or may not fall under the purview of 18 U.S.C. §1030.  Since everyone across the globe is experiencing the effects of Heartbleed, and it may take some time before all websites have patched their software[9], I doubt the U.S. government would prosecute a citizen simply seeking to ensure their person information remained protected or taking any proactive steps to do so.

As always, safety first. 

[1] James Lyne, How Heartbleed Happened the NSA and Proof Heartbleed Can Do Real Damage, Forbes (Mar. 14, 2014, 9:27 AM), available at

[2] Id.

[3] Id. 

[4] James Lyne, Heartbeat Heartbleed Bug Breaks Worldwide Internet Security Again (And Yahoo), Forbes (Mar. 8, 2014, 11:39 PM), available at; Craig Timberg, Heartbleed Bug Puts the Chaotic Nature of the Internet Under the Magnifying Glass, Wash. Post (April 9, 2014), available at

[5] Lyne, Heartbeat Heartbleed supra note 4. 

[6] Robert Siciliano, Heartbleed: Free Tool to Check If That Site is Safe, Huffington Post (Mar. 12, 2014, 10:35 AM), available at

[7] Anthony M. Freed, Running Heartbleed Health Checks May Be Illegal, TripWire (April 11, 2014), available at; Michael Santarcangelo, How You Need To Respond To Heartbleed, and How You Can Explain It To Others, CSOnline (April 11, 2014, 12:27 PM), available at

 [8] John Leyden, It May Be Illegal to Run Heartbleed Checks, The Register (April 11, 2014), available at; supra note 7.

[9] Brian Fung, Heartbleed is About to Get Worse, and Will Slow the Internet to a Crawl, Wash. Post (April 14, 2014, 2:54 PM), available at 

Blog: How many Virginians Does it Take to Screw-up a Light Bulb Phase-Out?

by: Kit Mathers,  Associate Copy Editor


In January, Congress, through overwhelming bipartisan cooperation, approved, and President Obama signed into law, a $1.1 trillion omnibus spending bill; a provision of which precludes the U.S. Department of Energy (“DOE”) from spending allocated funds to enforce twilight measures of a “light bulb phase-out” mandated by the 2007 Energy Independence and Security Act (“EISA”).[1]  The phase-out, which effectively began in January 2012, requires that light bulbs produce a certain level of brightness at specified energy levels.[2]  Of particular significance to the average consumer, traditional incandescent light bulbs are incapable of fulfilling the new energy efficiency standards and as of January 1, 2014 60- and 40-watt incandescent light bulbs (which represent half of the consumer light bulb market) are no longer allowed to be manufactured or imported into the U.S.[3]  Overall, the standards set forth by the EISA are predicted to result in annual electric bill savings of nearly $13-billion, power savings equivalent to the output of 30 large power plants,  and will reduce carbon dioxide emissions by about 100 million tons per year.[4]

The spending bill’s ban is not particularly formidable from the perspective of many environmentalists and “pro phase-out” light bulb manufacturers who have characterized it as a nuisance that can’t possibly derail the “market shift” toward more energy-efficient light bulbs.[5]   But should we be more supportive of the spending bill’s ban despite the EISA’s potential environmental benefits?  In support of the ban, House Republicans have stated that EISA phase-out requirements are characteristic of government overreach, and enforcement measures should not be tolerated.[6]   Is there any merit to the House Republicans’ argument?  Is federal product regulation really the proper avenue for catalyzing change in consumer power consumption?  The tension at the heart of the light bulb phase-out is representative of a fundamental issue that must be addressed in any discussion of “where” energy regulations should be focused.  I tend to agree with House Republicans who are wary of the government’s reach into consumer purchasing power, but perhaps end-user regulation (“downstream”) is the most parsimonious way of realizing change in energy use and accompanying (upstream) emissions.  Upstream regulation is inescapably difficult.  State and federal regulation of power plants and their emissions is tedious work, often drawn out interminably by litigation.  But then again, why not increasingly regulate power plants themselves if we are operating under the guise that the end goal is to limit carbon emissions and power plant out-put?  It’s not as though the light bulbs are the source of poor energy management decisions or egregious carbon emissions.   Understanding why the EISA, in large part, came to be makes the decision to regulate downstream consumer choice even less palatable.

While the EISA does not outrightly proscribe the manufacture or importation of all incandescent light bulbs, it has the net effect of increasing market  prevalence  and selection of more expensive, compact fluorescent light bulbs  (“CFLs”) and light emitting diodes (“LEDs”) which is extremely beneficial to major light bulb manufacturers.  As Timothy Carey of the Washington Examiner details, the 2007 Energy Independence and Security Act “wasn’t a case of an industry getting on board with an inevitable regulation in order to tweak it.  The lighting industry was the main reason the legislation was moving.”[7]  The light bulb industry is, by its nature, a competitive market with no significant impediments to entry.  Characteristic of such competitive markets, under the neoclassical economic model, is product pricing at marginal cost – the cost of producing one additional unit of output- which results in low profit margins.[8]  GE, Phillips and Sylvania, which dominate the U.S. incandescent light bulb market, want to “convert their dominance into price hikes,” but because market entry is not significantly encumbered by manufacturing or regulatory costs, consumers will gladly purchase new alternative brands that offer bulbs at, or close to, marginal cost.[9]   Market giants, with significant capital available for research and development programs, sought to extinguish the threat of competition (which keeps profit margins low) by expending significant money to improve the incandescent light bulb, primarily through advancing halogen, LED and fluorescent technologies.[10]  These “energy efficient bulbs” sell at a much higher price point compared to incandescent light bulbs, and because of this, consumer choice has remained somewhat stagnant and heavily biased toward incandescents.  Light bulb manufacturers, aware that consumers won’t willingly skirt cost benefit considerations in light bulb selection, have thus collaborated with groups like the NRDC in lobbying for the phase out of incandescents; their agenda being the “push” of profitable products rather than environmental conservancy.[11]  Undoubtedly, there are great advantages to newer bulb technologies, as well as associated costs.[12]  However, it’s extremely hard to justify the handcuffing of consumer freedom of choice when it is being instituted by government elites and unelected bureaucrats.[13]

 All in all, it is extremely important to ask, where (or at what phase) should regulatory efforts be focused (and why)?  The upstream power plants, downstream consumers, or both?  Perhaps the fact that light bulb manufacturers are sustaining windfall profits from federal regulation is an inevitable consequence; in any regulatory effort there will always be a party that benefits, perhaps grossly, from regulation.  It will be interesting to see what happens to the spending bill’s ban in the coming months, and whether or not downstream regulation will accomplish its goals.

[1] Bill Chappell, Obama Signs Trillion-Dollar Spending Bill, NPR, (January 17, 2014),

[2] Jeremy Kaplan, Last light: Final Phaseout of Incandescent Bulbs Coming Jan. 1, FOX NEWS, (December 13, 2013),

[3] Patrick J. Kiger, U.S. Phase-out of Incandescent Light Bulbs Continues in 2014 with 40-, 60-Watt Varieties, NATIONAL GEOGRAPHIC, (December 31, 2013),

[4] NRDC Fact Sheet, Shedding New Light on the U.S. Energy Efficiency Standards for Everyday Light Bulbs, NRDC, (January 2013),

[5] Wendy Koch, Congress to Bar Enforcement of Light-bulb Phaseout, USA TODAY, (January 14, 2014),

[6] Timothy P. Carney, Industry, not Environmentalists, Killed Traditional Light Bulbs, WASHINGTON EXAMI
NER, (January 1, 2014),

[7] Id.

[8] See id.

[9] See id.

[10] See id.

[11] For a comical portrayal of the “story behind the ban” (in both the U.S. and Canada) see this crude cartoon: (a feature from infra note 15).

[12] It’s contended that new light bulb technologies are not all that “efficient” when used by the average consumer. I recommend looking at Paul Wheaton’s website for a critique of the science behind the phase-out:

[13] See id. 

Blog: Echo Design Group Files Lawsuits Against Major Fashion Designers Alleging Infringement of Glove Touchscreen Technology

by Brittani Lemonds, Associate Manuscripts Editor


Society’s dependency on smartphone technology has undoubtedly benefitted the fashion industry worldwide.  Gone are the days where cell phone users were limited to the cases and tech accessories available at the storefront of their service provider or local office supply store.  The iPhone opened the door for upscale accessories including designer phone cases, handbags created to fashionably (and conveniently) hold the iPhone’s slender structure, and even winter accessories that allow users to engage with touchscreen technology without removing their gloves.

Enter Echo Design Group – a prominent fashion designer and retailer specializing in home décor, stationary, women’s handbags, scarves, and other cold weather accessories including the aforementioned touchscreen compatible gloves.

Since November 2013, Echo Design Group has been aggressively filing lawsuits against major fashion brands, designers and high-end retailers alike for alleged infringement of its U.S. Patent 8528117 titled “Gloves for Touchscreen Use.”[1]  The most recent fashion heavyweight involved in this patent controversy is American fashion designer and former Project Runway judge, Michael Kors.[2]  On February 24, 2014 Echo Design Group filed a complaint against Michael Kors (USA), Inc. and Michael Kors Stores LLC., in the United States District Court, Southern District of New York for patent infringement of Kors’ Touch Screen Zip Glove.[3]

Just weeks earlier, in January 2014 Echo Design Group filed a similar complaint against Henri Bendel in the United States District Court, Southern District of New York for patent infringement of Bendel’s NB Polka Dot Glove.[4] 

But Michael Kors and Henri Bendel are not the only designers facing legal threats for their touchscreen compatible gloves.  Echo has targeted other fashion designers for alleged infringement of the same patent, filing at least four other lawsuits in November 2013 against the likes of Fownes Brothers & Co., Inc. for the Touchscreen Compatible Gloves sold under UGG, G-III Apparel Group, Ltd., for the Calvin Klein Text Enabled Gloves, Kate Spade for the iPhone Gloves sold under the Jack Spade brand, and Marc Jacobs International, LLC. for the various touchscreen gloves retailed under the brand.[5]

All of the filed complaints state that Echo invested significant time and resources into developing the touchscreen glove concept and that Echo secured intellectual property rights to the “Gloves for Touchscreen Use” on September 10, 2013 when USPTO (the Patent 117) issued U.S. Patent No. 8528117 to Echo.[6]

The complaints allege that all of the defendants “without permission or license from Echo, has made, is making, is having made, has sold, is selling, is causing to be sold, has offered for sale, is offering to sell, is causing to be offered for sale, and/or has imported, is importing, and/or is causing to be imported into the United States, within this State and elsewhere, of the products.  The products directly infringe, contributorily infringe, and/or induce others to infringe, at least one claim of the ‘117 Patent, including but not limited to claim 1, in violation of 35 U.S.C. § 271.”[7]  Echo is seeking damages, preliminary and permanent injunction and fees.[8]  It will be interesting to see whether Echo succeeds in its myriad of lawsuits against the fashion industry.

[1] Kimareanna Ross, Daughter Protecting Parents Brand: Michael Kors, Henri Bendel, Calvin Klein, Kate Spade, UGG Sued, Accused Of Infringing Touchscreen Glove Concept, Fashion L. Blog (Feb. 27, 2014),

[2] Id.

[3] Amber Ryland, Project Runway Star & Designer Michael Kors Sued, Accused Of Stealing Touchscreen Glove Concept, Radar Online (Feb. 26, 2014, 4:03 AM),

[4] Ross, supra note 1.

[5] Kimareanna Ross, Echo Design Sues Marc Jacobs For Infringement, Fashion L. Blog (Dec. 18, 2013),

[6] Id.

[7] Ross, supra note 1.

[8] Ross, supra note 5. 

Blog: Facebook Post Results in Loss of $80k Settlement

by Fiona Clancy, Associate Notes and Comments Editor


A Florida dad learned a costly lesson about sharing confidential information with his daughter and the ramifications of a subsequent social media post in a case that has gotten a lot of media attention lately. 

Patrick Snay sued his employer, Gulliver Prep School, when his 2010-2011 contract as the school’s headmaster was not renewed.[1]  Mr. Snay filed a two count complaint under the Florida Civil Rights Act alleging age discrimination and retaliation.[2]  On November 3, 2011, the parties executed a settlement agreement with various payments to be made by Gulliver Prep including $10,000 in back pay to Mr. Snay, (known as “Check #1), $80,000 to Mr. Snay as a “1099” (known as “Check #2), and $60,000 to Mr. Snay’s attorneys (known as “Check #3).[3]  Central to the agreement was a confidentiality clause that read in part:

 “13. Confidentiality…The plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…A breach…will result in disgorgement of the Plaintiffs portion of the settlement payments.”[4] 

On November 7, 2011, only four days after the agreement was signed, Gulliver Prep notified Mr. Snay that he had breached the Agreement based on his daughter Dana Snay’s Facebook post which stated[5]:

 “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”[6]

The Facebook post went out to approximately 1,200 of Dana Snay’s Facebook friends, which included many current or past Gulliver Prep students.[7]

Gulliver Prep also informed Mr. Snay that it would not be tendering Check #2, the $80,000 payment.[8]  Mr. Snay moved to enforce the settlement agreement and receive payment, and the trial court held that the Facebook posting did not constitute a breach of the agreement.[9]  However, Florida’s Third District Court of Appeals reversed the trial court’s ruling on February 26, 2014, stating that Mr. Snay’s $80,000 settlement with Gulliver Prep was null and void because his daughter breached the terms of the non-disclosure clause when she posted about it on Facebook.[10]  The Court of Appeals ruled in favor of Gulliver Prep in finding that Snay violated the agreement when he told his daughter about the settlement and acknowledged that Dana Snay did precisely what the confidentiality agreement was designed to prevent– advertising to the Gulliver Prep community that Snay had been successful in his age discrimination and retaliation case against the school.[11] 

The internet has been buzzing with legal commentary regarding this case with many lawyers weighing in and discussing the lessons learned.

A Chicago based, self-described “social media” attorney feels “this case illustrates why (1) it is important for parties to abide by the confidentiality provisions of settlement agreements and (2) people who learn confidential information should keep their social media mouths shut.”[12] 

One employment attorney commented that in most cases, the discussion revolves around the liability that social media can cause employers, while this case represents a turn of events with Facebook working in the employer’s favor.[13]  That attorney believes this case serves as a reminder that social media can open “Pandora’s box” with respect to liability for employers, but it can also provide a wealth of information during litigation for both sides.[14] 

Another employment attorney believes this case illustrates the need for well drafted confidentiality clauses.[15]  After all, employers include confidentiality clauses in their agreements precisely because they do not want a former employee openly disclosing the amount or existence of a settlement payment as that can encourage additional legal challenges and/or cause discord among current employees.[16]  While Gulliver did not end up paying Mr. Snay the $80,000, the information it wanted to protect is nevertheless now public.  The valuable lesson for employers, the attorney opines, is that a well written confidentiality clause is essential if an employer wants to prevent disclosure of the existence or amount of a settlement payment.[17]  The attorney suggests drafting the clauses to permit disclosure to immediate family members (which the agreement in the Snay case did not) because it is unlikely that families will not share the information with people who have been aware of and involved in the litigation process.  The key is to permit disclosure to those immediate family members but subject those family members to the same confidentiality requirements as the employee, preventing disclosure outside the immediate family.[18]  During the appeals process, Mr. Snay testified that he “knew the litigation was important to his daughter and that he and his wife would have to tell her something.”[19]  The appellate judge stated in her opinion that “[t]he fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach” and that there was “no evidence that [Snay] made this need known to the school or to his or its attorneys so that the parties might hammer out a mutually acceptable course of action in the agreement.”[20]  The court was not swayed by Mr. Snay’s testimony that he had not told his daughter he had “won” the case, and that she did not go to Europe, nor had she planned such a trip.[21]

A Michigan based employment attorney summed it up by stating “Facebook and confidentiality agreements do not mix.”[22]  The attorney also posits that it is “unrealistic to think that a family cannot be told since the fact of litigation is undoubtedly known” and suggests language in the agreement that allows for the disclosure of the settlement to immediate family members which specifically defines what family members may be told, while also specifically prohibiting any disclosures.[23]  Such a provision would not have authorized Dana Snay’s Facebook post, and would have better protected Gulliver Prep’s interests.[24]

While acknowledging that people may feel sympathy for the Snay family, the Michigan employment attorney feels this case provides important comfort to employers who settle cases with the express intention that the settlement remains confidential, and properly emphasizes to plaintiffs that nondisclosure means nondisclosure—even when third parties or family members are involved.[25]  Furthermore, this case serves as an important reminder that social media is now an established part of everyday life, that prohibitions against disclosure should specifically mention social media, and that our lawyering and agreements should adapt to the ever present technologies and platforms that permeate our lives.[26]  Appropriately planning for these situations is something both clients and attorneys can “Like.”

[1] Gulliver S
ch., Inc. v. Snay
, 3D13-1952, 2014 WL 769030 (Fla. Dist. Ct. App. Feb. 26, 2014).

[2] Id.

[3] Id.

[4] Id.

[5] Dana Snay was a recent Gulliver Prep graduate at the time of her Facebook post regarding her father’s settlement.

[6] Id.

[7] Id.

[8] Matthew Stucker, Girl Costs Father $80,000 with “SUCK IT” Facebook Post, CNN (March 4, 2014, 9:58 AM),

[9] Id.

[10] Jennifer Reass, Did You Know…An $80,000 Facebook Post Costs $80,000, Employment Law E-Buzz (March 7, 2014),

[11] Gulliver Sch., Inc. v. Snay, 3D13-1952, 2014 WL 769030 (Fla. Dist. Ct. App. Feb. 26, 2014).

[12] Evan Brown, Daughter’s Facebook Post Costs Dad $80,000, internetcases (March 1, 2014),

[13] Tawny Alvarez, Daughter’s Facebook Post Sink’s Father’s Settlement, Taking Care of HR Business (March 5, 2014, 3:08 PM),

[14] Id.

[15] Jamie LaPlante, Daughter’s Facebook Brag Underscores the Enforceability of Confidentiality Clauses in Settlement and Severance Agreements, Employer Law Report (March 6, 2014),

[16] Id.

[17] Id.

[18] Id.

[19] Facebook “SUCK IT” Costs Dad $80,000, Lowering the Bar (March 4, 2014),

[20] Gulliver Sch., Inc. v. Snay, 3D13-1952, 2014 WL 769030 (Fla. Dist. Ct. App. Feb. 26, 2014).

[21] Id.

[22] John Holmquist, Facebook and Confidentiality Agreements Do Not Mix, Michigan Employment Law Connection (March 5, 2014, 2:11 PM),

[23] Id.

[24] Id.

[25] Id.

[26] Id. 


JOLT Articles Set For Use In Sedona Conference/ARMA International Conference

On April 14-15, 2014 The Sedona Conference and the Association of Records Managers and Administrators (ARMA) International will be co-hosting an Executive Conference on Information Governance at Amelia Island, Florida for approximately 100 information governance, records management, compliance, legal, privacy, and security professionals. More information about this event can be found at

Four JOLT articles will be included in the materials for the conference including:

Peter Sloan, What Is Information Governance?

Peter Sloan, The Compliance Case for Information Governance, 20 Rich. J.L. & Tech. 4 (2014),

Charles R. Ragan, Information Governance: It’s a Duty and It’s Smart Business, 19 Rich. J.L. & Tech. 12 (2013), available at

Bennett B. Borden & Jason R. Baron, Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice, 20 Rich. J.L. & Tech. 7 (2014),


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