We hear it all the time. Systems or processes are overwhelmed and there are dire predictions regarding potential scenarios in our future. People argue for resource allocation based upon circumstance and their prognostications for the future. It is somewhat reminiscent of the assiduous hurricane preparation we witness the year immediately after each "big one," followed by a steady retreat to complacency as we lose our appreciation for the severity of what we have lived through.
Tuesday, November 30, 2021
Learning from History
Sunday, November 28, 2021
Lloyd and Harry Wreaking Havoc
We are all focusing more on security, and the world wide web has become a staple of our challenges in this world. Within the past couple of years, I have proceeded from blissful unawareness to a critical focus on cybersecurity. I have been fortunate to run into some of the best and brightest engaged in addressing the threats we all face in the Internet domain. And, On December 15, 2021, I will host a morning at the Workers' Compensation Institute, at which a preeminent group of subject-matter experts will provide cybersecurity insight for the workers' compensation world.
As my awareness of the topic has grown, I have addressed various concerns. I am focused upon this because we are all dependent upon the Internet. This community of workers' compensation has evolved, like much of the world, and is now utterly dependent upon digital data, and interdependent upon others in the systems. We see it in medical records, case-management reporting, adjusting, and more. There are vast quantities of data moving through the web to keep the world's workers' compensation benefits processes flowing, and all of that data is of potential interest to the miscreants that troll the web looking for some profit or advantage.
Thus, there have been some posts about security; see Cybersecurity 2020's Hot Topic (January 2020); The Physical Premises of Cyber Security (August 2020); Your Cybersecurity is Your Job (June 2021); Cybersecurity Forum 2020 (August 2020); and, It Can Happen to Everyone (July 2021).
We even dedicated an edition of the Workers' Compensation Hot Seat to the topic in August 2020. That the Workers' Compensation Institute has decided to focus on this topic is telling. Over the years, it has become somewhat of a tradition that one hears of new challenges and solutions at the WCI each August. Sure, we are a little late this year in an accommodation to the SARS-CoV-2 and COVID-19. But, with vaccinations and other persistent precautions, we will gather soon in Orlando to continue that tradition.
We are now all persistently focused upon the ether. There are so many threats to our data, coming from miscreants in the cyber world. We will have lots of discussion of that in December. But, in organizing for the December 15 program, my thoughts have returned to the physical world aspects. It is too easy to lose track of the physical threats of loss or theft that we all face from corruption or loss of flash drives, laptops, and servers. Yes servers.
In July 2019, The Florida Supreme Court permanently disbarred an attorney in one of the most intriguing examples of identity theft I have ever read. The referee's report is interesting and descriptive, a harbinger worthwhile for anyone that is interested in our expanding digital present. There are those in Cybersecurity who repeatedly warn us that our human elements are the greatest threat. They typically refer to someone in your office making an error, clicking on a deceptive link, or similar. But, what if you work with someone that is a simply a bad actor?
In The Florida Bar v. Brady, SC19-39, an amazing recitation of facts illustrates again the physical challenges of cyber security. Following testimony and argument, the referee concluded to recommend that the attorney involved "be found guilty of violating each of the seven rules as alleged in the Bar's Petition." There is interesting discussion of preparation for trial, following instructions from the tribunal, and appellate process as well. Any attorney interested in the Florida disciplinary process would do well to read the report issued in this unpublished Court decision.
The attorney in this matter was an employee of a law firm, but was terminated. Soon thereafter, the attorney established a website with a very similar URL (uniform resource locator, the "www" that you use to find a website). With that close similarity, this lawyer established a web presence that looked a lot like the law firm he had just departed. The owner of the real law firm, the attorney's former employer, eventually managed to get that new website closed through a court proceeding and injunction. But, for a while the law firm owner had to contend with essentially a usurpation of his business' identity.
The former associate that was terminated also filed information with the Florida Secretary of State to incorporate a business under the webs site URL name, the very similar law firm name, but that attempt was rejected as too similar. The lawyer nonetheless made contact with some opposing counsel in existing cases. He communicated that he was now "the lone true owner of" that law firm and directing future communication to himself. Thus, in a few subtle maneuvers, this attorney strove to capitalize on someone else's identity and misdirect communications and data to himself.
But, he was not done. The attorney next resorted to simple burglary. In a scene that one might think could only be conceived by Hollywood, this attorney "and his twin brother," staged a "broad daylight" assault on the law firm (I have not named the attorney or the brother, let's simply refer to them as "Lloyd and Harry," fictitious names for convenience). Unfortunately for them, surveillance video captured the scene. See Assume Everyone is Watching (September 2015), cameras are everywhere.
Lloyd and Harry (not their real names) backed a "truck up to . . . (the law) firm." They tied "a rope from the truck to the front door," and "rip(ped) the front doors open." They then removed "two sizeable items from the law firm," the "firm's safe," and "the firm's computer server." Thus, a physical assault evolved into a cyber attack in a somewhat spectacular manner, on video. In the event the video was not sufficient, the former employee attorney sent the owner of the law firm a text message confirming the liberation of the data storage.
The law firm owner sought and was granted equitable relief from a court. There were injunctive orders entered precluding the former employee lawyer from "interfering with his business," or even making contact with the firm or its clients. But, the harassment did not end. The referee noted that this attorney eventually was "held in contempt on three separate occasions by the Circuit Court for intentionally violating this injunction." There is description in the referee order of ongoing behavior including "false and unauthorized (legal) filings," and even "forg(ing) another attorney's signature."
The referee makes specific reference to one such filing as "patently false" as well as "a flagrant fraud upon that court." In another instance, the attorney sought to solicit the business of a client represented by the law firm that had terminated him. When that business declined to hire the attorney, he proceeded anyway to sign and file documents "in various pending . . . cases handled by" that law on behalf of firm clients and to assert that he was personally "entitled to fees from those cases."
Thus, the operation of a law firm's business was interrupted and inconvenienced. The contrarian individual committed acts that either procured the business' data or deprived the firm of that data, the theft of the server. Not addressed by the referee is whether the data on that server was backed up to allow the firm to continue to function or encrypted to prevent the miscreants of the world from harvesting that data once in possession of that server. As easy as it may be to envision the loss of a laptop or flash drive containing a trove of data, the idea or a physical theft of a server from an office may come as a surprise threat to some readers.
The referee recommended permanent disbarment in this instances, and the Florida Supreme Court agreed. The referee cited to various precedents involving "conduct prejudicial to the administration of justice," "inability to maintain personal integrity," and more. The referee examined potential for mitigation in the facts of the case, and noted that the attorney had never been disciplined for violative behavior previously.
The referee made particular mention of the server theft. This was characterized as "an intentional interference with the administration of justice" because the theft presented "the potential to hobble the firm's practice entirely." This is a recognition of the critical nature of data in our modern world and businesses. The actions "caused significant injury to" the server's owner and the law firm, but also "indirectly, his clients." The owner of the law firm substantiated this harm in his testimony before the referee, and the referee noted that the former associate attorney "clings to his justification for his actions with a ferocity that is quite disturbing." In short, it appears that some people believe strongly in their right to interfere with or take the data that belongs to others, to you perhaps.
No doubt, our inboxes or spam folders are often inundated with phishing emails and worse. The bad actors are striving for us to make mistakes, click links, or otherwise grant them access to our digital data. But, there is a physical security involved with all of this data as well. Are physical premises appropriately secured? Is information encrypted and protected from the loss or theft of some storage media like a flash drive or a laptop? Have you even considered the potential for someone to rip to the office doors away with a truck and drive away with your server, data, and more?
Cybersecurity continues to vex and challenge us. I look forward to speaking with you about the subject as I introduce a stellar succession of speakers on December 15, 2021 at the WCI. See you there.
Tuesday, November 23, 2021
Fentanyl is Killing, Still.
"a 28% jump in the distribution of (Naxalone) medication in Pennsylvania."
"a new first-of-its-kind online portal to provide naloxone via mail order (in Michigan)"
"greater access to medical treatment for opioid use disorder, especially in prisons."
Sunday, November 21, 2021
Don't Text and Depose
"conduct aimed at defeating the opposing party’s lawful attempts to obtain evidence, undermining the adversarial process, and as a result, the trial court’s (JCC) intervention was required."
"If for '90 days or fewer,' the suspension is labelled 'a nonrehabilitative suspension.' following such a suspension, the lawyer 'is automatically eligible to practice law,' so long as 'all other conditions of the suspension order have been satisfied.' There is no process or permissions needed, no 'approvals required.'"
"The suspension for '91 days or more is a rehabilitative suspension.' To return to the practice of law following such a suspension, the 'lawyer (must) . . . be reinstated to the practice of law by the court after showing that they have been rehabilitated.'"
"lawyer must file a petition for reinstatement, undergo an investigation, establish to a referee that the lawyer has been rehabilitated and is not otherwise disqualified, and be reinstated by the court."
Thursday, November 18, 2021
Cyber Hits the News
Tuesday, November 16, 2021
Some perceive that the metaverse is thus an eventuality. One critic recently penned a criticism for Inc. of the Facebook marketing regarding "its vision," and concluded that he's not "pessimistic about the metaverse, . . . just pessimistic about the idea of Facebook building it." The contention is that recent advertising reveals "everything wrong with" Facebook. Despite that, it is not an indictment of what Meta does or fails to do. It is a critique of Facebook/Meta's vision about social interaction.
This describes the Facebook "grand vision" is "that people will spend hours a day wearing headsets, living and working in virtual reality." To illustrate this, the advertisement features two neighbors who don's get on so well in person, but become friends in the ether (even to include complaining online about each other, a stab at irony and humor). The article concludes "the ad is meant to be humorous, of course. It's not, but that's not even the biggest problem."
The criticism is about the draw of spending hours daily wearing a headset immersed in another world. The author blames social media generally, but Facebook specifically, for creating a false impression that loose online exposure to people's images, comments, and otherwise somehow "is a substitute for actually engaging with real people." He contends that such interaction "doesn't mean you have a relationship," and may not mean you even "know the person."
The connections established through social media exhibit that virtue and vice are sometimes inextricably intertwined. Our greatest strength can be our greatest weakness. It is exceedingly simple to become connected to people through social media, to perceive what they publish, their presence, and to not go through all that there is to building a relationship, or get to really know them. The very strength many find in the Internet is the ease of connecting, and that ease of "connecting" (and later dumping or ghosting) perhaps leads us into superficial and largely illusory "relationships" that pale in comparison to the real world. That they distract us from the more present and real relationships is more lamentable.
We need human interaction. We need community. And, for decades the busy and engaged have lamented that is is hard to meet people, to make friends, to maintain relationships. That challenge is met by social media, but with a superficial solution that builds superficial relationships. They are easy and frictionless, without consequence, disposable. But, they are likewise apt to each be worth exactly the what was invested in them - little or nothing. And, they may distract from the real and ethereal, the here and now.
The Inc. article suggests disappointment that the metaverse vision addresses none of the criticisms that have been levelled at social media. One commentator says these include privacy, loneliness, ownership, and distraction. Those are likely worth consideration. Others contend that criticism of social media is merely the concern du jour, and like heavy metal and hip hop, concerns will fade. That may also be worthy. Is social media dangerous per se, or merely detrimental as a distraction, or just good fun?
Is there merit in asking questions about how we are "connecting" without really connecting? Is the superficial nature of social media and online relationship likely to become more meaningful in the metaverse, or as Inc. questions will it merely "be an amplified version of the kind of relationships people have been building online for years?" Is our community benefited, are we benefited by online interactions in which we might be unaware that our "friend" lives right next door?
Instead, some believe that there are challenges presented by the present situation. There are criticisms of social media. The experience is said to be manipulative, driven by artificial intelligence and algorithms. Some claim that it is designed to appeal to our brain's chemical response system (dopamine and more), and is particularly dangerous to people predisposed (such as the young). There have been discussions of protecting children from it, but little in the way of regulation or even public health recommendations.
The Inc. author concludes that the Meta ad likely portrays exactly what Facebook sees, "an accurate picture of what Facebook is building." But, he questions whether it is the message Facebook should want to send. It leaves the author "pessimistic about the idea of Facebook building" the metaverse.
But, it ignores that perhaps what is being built, the superficial and the shallow, is exactly what people want. I know a great many who complain about social media, but very few who have walked away. Some remind me of friends who lamented cigarettes so bitterly, but always had a pack to share. People find themselves believers in what it delivers even as they criticize its weaknesses or failures. If they will not walk away from what is, why would anyone doubt the strength of an enhanced and goggle-cized expansion of the present?
What does it have to do with workers' compensation? A great deal actually.
The vision for the metaverse is for it to consume your time, fulfill your needs. This is intended to include leisure, entertainment, gaming. But, it is also envisioned to include interaction, meeting, and collaborating. Those designing this "space" envision work being regularly conducted in the metaverse. The challenges of the environment may thus readily evolve into challenges of business, employment, and yes workers' compensation. It bears monitoring and ongoing evaluation.
How work occurs is evolving. That will mean more remote meetings. Will hours a day in a headset lead to chronic injury (think of the ergonomic revolution in the 1990s), eye strain issues, accidental engagement (forgot to take of headset, neck jerked; did not see table, tripped and fell)? There may be future challenges in the area of work injury. Will the interweaving of virtuality and business affect work hours, fatigue, and injury? Will the mixture of work and more lead to issues regarding "course and scope" or "arising out of" and compensability?
Will business leap into this new paradigm? Will if bring strength, performance, savings, and profit? Will it bring complications, challenges, and injury? The future is coming, and it is potentially intriguing.
Sunday, November 14, 2021
Perseverance and Poise
Thursday, November 11, 2021
The Apex Doctrine
"(2) Depositions. (a) Depositions of witnesses or parties may be taken and used in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure."
"[A]n agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources."
“Virtually every court that has addressed deposition notices directed at an official at the highest level or ‘apex’ of corporate management has observed that such discovery creates a tremendous potential for abuse or harassment.”
Tuesday, November 9, 2021
Lesson in Res Judicata
"(a) Fraud; (b) Newly-discovered evidence which could not have been discovered with the exercise of due diligence; (c) Mistake; and (d) Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order."
"the principles of error preservation, res judicata, and the law of the case apply to workers’ compensation proceedings, they apply differently than in the context of a judicial action."
Sunday, November 7, 2021
"This section requires employers to establish a program and utilize procedures for affixing appropriate lockout devices or tagout devices to energy isolating devices, and to otherwise disable machines or equipment to prevent unexpected energization, start up or release of stored energy in order to prevent injury to employees." 1910.147(A)(3)(i)
"If you don’t have the mindset that they are all loaded, and ready to fire, you are a prime candidate for a firearm accident, you assume too much, take to much for granted."
"Rule #1: Treat every gun as if it is loaded. Even if you know the gun is unloaded, treat it with the same level of respect as you would a loaded gun."