Shipman & Wright, LLP Blog: February 2010

Spying On Students Via Webcam Brings Class Action Against School District

A school district in Philadelphia has found itself in hot water after it was discovered that laptops given to students for learning purposes also provided administrators with remote access to the embedded webcams, enabling teachers to spy on them and their families in their homes. Robbins v. Lower Merion School District asserts that 1,800 students were provided with the laptops to help build "an authentic mobile 21st century learning environment" to give students "24/7 access to school based resources."

The suit alleges claims under the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act and the Stored Communications Act, as well as violations of the Fourth Amendment, federal civil wrights law, and Pennsylvania's wiretap statute. The claim argues that the documentation that came with the laptops failed to warn parents and students that "the school district has the ability to remotely activate the embedded webcam at any time the school district wished to intercept the images from that webcam of anyone or anything appearing in front of the camera."

The matter didn't come to parents attention until a recent incident in which the lead plaintiff and Harriton High School student, Blake Robbins, was confronted by Assistant Principal Lindy Matsko with a photo taken from his webcam which has been said to have possibly contained "improper behavior." The suit claims that Robbins' father was later told that school officials were able to "remotely activate" the webcam at any time to capture any images that appeared without any prior knowledge of the students or parents.

A commenter on Digg, who claims to have recently graduated from the school, says the accusation confirms rumors about school officials monitoring students through remote access to the webcams. "Occasionally we would notice that the green light was on from time to time but we just figured that it was glitching out," he wrote.

The school district has since stated that the feature was intended to help track down stolen or missing laptops. "Laptops are a frequent target for theft in schools and off school property. The security feature installed to help locate a laptop in the event it was reported lost, missing or stolen so that the laptop could be returned to the student," the statement reads. The district claims it will not reactivate the feature "without express written notification to all students and families."

School District Accused of Spying on Students via Home Webcams (Law.com)
Harriton High School Used Laptop Webcams to SPY on Students... (Huffington Post)
Lower Merdion School District's initial response...

Toyota Confirms That Recall May Not Solve Problems

Featured Blog of the Week by Gary Shipman

In emotionally charged testimony before the House Energy and Commerce Committee on Tuesday, Toyota USA President Jim Lentz confirmed that the “runaway car” problems have still not been fixed, despite Toyota spending millions in television and newspaper ads stating that they have. In responding to questions from Rep. Henry Waxman, in which Rep. Waxman asked “Do you believe that the recall on the carpet changes and the recall on the sticky pedal will solve the problem of sudden unintended acceleration?”, to which Lentz (remarkably) responded, “No totally.” Lentz also confirmed that Toyota had replicated a demonstration, shown on ABC News, in which professor David Gilbert demonstrated that a short circuit produced unintended acceleration without triggering an “error code” in the car’s computer.

Tearful Toyota owners testified before the Congressional Committee about their efforts to get Toyota to address problems. Eddie Smith told the Committee that he and his wife were “called liars and actually accused of ruining our own brakes and transmission.” Smith’s wife, Rhonda, told the Committee of the night when her new Lexus, in 2006, ran away and would not slow down, even after she stood on the brakes and threw the car into reverse. “Shame on you, Toyota, for being so greedy”, Mrs. Smith said.

While Toyota offered “excuses” for the problems, namely, a “confusion of priorities” in its quest for growth, that excuse does not provide an explanation for why the company turned a blind eye to complaints about its cars problems, while reaping millions of dollars in profits worldwide.

It has now also been revealed that as early as 2004, NHTSA was aware of the sudden acceleration problems. Instead of conducting a full blow investigation, NHTSA employees that may have been involved in the investigation were later hired by Toyota. Go figure.

All of this amplifies a total breakdown in the rules and regulations that are designed to protect unwary consumers. Ultimately, it may require the Courts to provide justice for consumers.

Shipman & Wright Set to Volunteer in the NC Advocates for Justice High School Mock Trial Competition this Saturday

On February 20th 2010, local North Carolina attorney Gary Shipman, Matthew Buckmiller and James Moore along with paralegal Brandy Lea who is the Site Coordinator for Wilmington are volunteering their time to participate in this years NC Advocates for Justice High School Mock Trial Competition.

Every year, students from all over North Carolina come together at local courthouses to compete for the state title and a spot in the national level competition. With weeks of preparation for their day in court, students are able to show their critical thinking, public speaking, courtroom demeanor and teamwork skills to a panel of legal professionals in the community by presenting their case. The purpose of this competition is to turn the courtrooms into classrooms and create an effective and fun way for students to learn about the judicial process and the fundamental importance of our jury system.

As part of the panel of legal experts, the Shipman and Wright team are excited to be a part of this national competition that helps prepare these students to become responsible citizens and future jurors as well as educate them on the constitutional right for a trial by jury that we are entitled to as American citizens.

The competition is set to take place at New Hanover County Courthouse on Saturday, February 20, 2010 at 9am. For more information please visit http://www.ncaj.com/

Cellular Phones as Evidence, Wiping the Memory Won't Help

As the digital world turns it has become difficult to ignore how useful smartphones (such as the iPhone or BlackBerry) have become for creating efficiencies in the workplace. Busy businessmen and women are spending less time tied to the computer by leveraging this technology to handle their essential e-mail and web browsing needs. Smartphones have become so widespread in popularity that it's often a tool of choice for many employers, giving their employees a technological edge to better facilitate transactions and communication on the go.

As a result, these products are making appearances in court as evidence more often than ever. In past cases, evidence left on a smartphone (whether it be e-mails, text messages, photos, schedules, GPS data, the list is near endless) has helped resolve cases ranging from drunk driving to trade secret theft. If you thought wiping the phone's memory would be enough to create barriers, you would only be creating more trouble for yourself.

Southeastern Mechanical Services, Inc. ("SMS"), in the course of prosecuting employees of a construction services company for theft of trade secrets in Florida, obtained a court order which required the defendants to preserve all electronic data and computer files until further notice. The order also barred them from "destroying any and all information and documents potentially relevant to" the claim. Counsel for the defendants had requested their BlackBerry smartphones while possibly failing to warn them of the repercussions of wiping the device's memory.

Computer forensics experts would later discover that phone memories were intentionally wiped. The defendants responded by saying any e-mail communication would be available on the server it was sent to. The court noted, however, that employees used the phones both for work and personal e-mail accounts. Communication to private e-mail accounts were not mirrored on the employer's server. Based on the facts, the court granted SMS an adverse inference jury instruction due to the defendants' failure to keep the digital data on their BlackBerrys.

To read more, see the original post at The Legal Beat.

Honda Recalls Expanding for Airbag Concerns

Last week, Honda announced that the auto manufacturer will be expanding its recall to include over 430,000 vehicles worldwide. The expansion is a result of concern for airbag inflators in the vehicles, with the company's website stating that they may use too much air pressure during expansion, resulting in possible injury or death to the driver. The recall also mentions a possibility of metal fragments passing through the cushion material. Included in the expansion are the 2001 and 2002 Accord, Civic, Odyssey, and CR-V models as well as selected 2002 Acura TL vehicles.

The original recall began in November 2008 for the 2001-2002 models of Accords and Civics and a few 2002 Acura TL models. It originally affected over 4,000 vehicles in North America. Since adding half a million to that figure in summer of 2009, the recalled total now amounts to over 950,000 vehicles, with more than 825,000 of those being in the United States. This figure does not include an separate recall involving hazardous power window switches which has affected over 640,000 Fit, City, and Jazz models worldwide.

Honda plans to notify its customers by mail and phone with details on where to seek inspection and replacement by an authorized dealer.

Related Links

Honda recalls Several Models for Airbag Problems (Recall specifics)
Honda recalls 438,000 cars for airbag hazard

North Carolina Law Requires Recycling of Plastic Bottles

As of October 1, 2009, NC placed a ban on all rigid plastics entering landfills. Rigid plastics consist of bottles with necks smaller than the body, including PET plastic bottles (polyethylene terephthalate, code 1). Motor oil containers are the only exception to this ban. Preliminary reports show that drops-offs at the New Hanover county recycling center have increased 9% over October 2008 levels, indicating the public's positive response to the bill.

The Earth Policy Institute estimates the amount of oil required to sustain American demand for bottled water is equivalent to the amount of oil needed to fuel 100,000 cars for a year. Unfortunately, the majority of water bottles end up in landfills rather than recycling centers. With high landfill construction costs, increased recycling efforts play a crucial role in saving valuable landfill space. Aside from environmental conservation efforts, the resulting economic stimulation adds major appeal to the bill. The success of this ban brings the potential for job creation, an added benefit in the present economic downturn.

A few examples of what belongs in the recycling bin: Soda and water bottles, milk jugs, laundry detergent bottles, etc.

Written by: Brittney Edwards ( Shipman & Wright, LLP Intern)

New Hanover ABC Board Draws Criticism Over Salaries

North Carolina regulators are seeking to evaluate whether the state's current system for the distribution and sale of alcohol is in need of serious reform. Governor Beverly Perdue's Budget Reform and Accountability Commission will begin exploring issues which played a role in creating a salary scandal in New Hanover's ABC board among others. Questions and concerns began to surround the board and its use of tax revenue after investigative reports from Wilmington's Star News came to reveal some unusual salaries amongst the county board's administrators.

New Hanover county's Alcoholic Beverage Control commission began to catch criticism this past December when a report revealed 50% salary increases the board's administrators occuring over the course of four years. Board administrator Billy Williams was clearing over $250,000 in salary, bonuses, and "longevity pay" while assistant administrator Bradley Williams, also saw hefty pay increases to $115,000 in 2009 from a $75,000 salary just four years earlier. Further concerns were addressed to the fact that Bradley is the son of Billy Williams.

Stephen Culbreth, Richard Hanson and Charles Wells were asked to explain the salaries by the county commissioners. Culbreth explained that the salaries were fair due to high profitability. However, surveys later concluded that the Williams duo held among the highest salaries compared to administrators in areas with leading sales, including Charlotte. Culbreth, Hanson, and Wells later resigned from the board in January, overwhelmed by the controversy. Billy Williams will be retiring from his position on February 26th and is said to expect close to $100,000 a year in retirement pay.

New Hanover county expects to fill the seat left vacant by Williams sometime in April. Currently they are busy at work narrowing down over a hundred applications for the position which had been newly titled, "CEO."

Toyota Attempts To Save Face After Worldwide Break Recall

As was predicted in my blog yesterday, recall number three is officially underway for Toyota. This time the recall was for the brakes not properly working on the Toyota’s Hybrid, Prius and Lexus, resulting in an additional 437,000 vehicles that are affected. Now that all of Toyota’s recently surfaced issues have been recognized and are currently being handled to the best of Toyota’s ability, it is time for a little damage control.

Toyota has launched a new “Commitment Commercial” that publicly addresses the mistakes they have made and the steps they will take to rebuild the consumer’s trust and belief in the Toyota brand. Although the commercial was a smart business move, Toyota will be digging out of this very deep hole for a long time. Click here to view the commercial http://www.toyota.com/recall/videos/commitment-commercial.html

Break Problems for 2010 Toyota Prius Sedan- Possible Recall

When it rains it pours and Toyota seems to be drowning because of it.

It is reported that sometime this week Toyota will likely announce plans to recall more than 300,000 third-generation Prius hybrids to fix a break problem.

The Toyota Prius is tagged as the “most efficient hybrid” and has been since it was first introduced three years ago. However, it is now surfacing that the brakes on the Prius momentarily stop working after the car hits a bump and several accidents have occurred because of this. Reports of the break issue started to surface last December, but Toyota did not seem to take the complaints seriously, placing the blame on inexperienced drivers who didn’t know how to use anti-lock breaks. Suddenly, last week in the midst of the already Toyota frenzy because of two back to back recalls, Toyota announced that there was indeed a defect and they are ready to make the fix. Toyota should be making the recall on the Prius, as early as today.

Toyota of Wilmington Repairs Local Recalled Cars

Toyota has recently been one of the top stories on news stations all over the country, keeping consumers up to date on the recall and how to handle it. Repairs on the sticking accelerator pedal are in progress today, but Toyota has a long road ahead of them.

Locally, there is an estimated 3,000 Toyota models in the area. It is suggested by local dealers that if you are one of the 3,000 than you should call and make an appointment instead of just dropping by. Toyota of Wilmington has a trained team of technicians and they have already scheduled more than 300 appointments to make the adjustments. They are hoping to have each car in and out within an hour’s time.

To schedule an appointment call (910) 798-1199

New Hanover County Residents Say NO To Titan Cement Plant

Community crowds continue to fight hard against the Titan Cement project; but The Carolina Cement Company has every intention of making New Hanover County the home of Titan Cement Plant. The masses seem to be strongly opposed to the Titan Plant being built here, in New Hanover County and they want to be taken serious by lawmakers.

On February 1^st thousands of anti Titan people rallied on the steps of the New Hanover County Court House and a petition of 5,000 signatures was given to the commissioners in hopes that their voices would be heard and something would be done to stop Titan. Citizens are concerned that if one of the highest polluting industries in the nation settles in this community, the environment, and the people of this town will suffer greatly from the effects.

Titan is working on getting all of the permits they need. There are concerns for how they will dispose of the mercury and a memo from water quality experts says that the river is on a list of impaired waters because it is already polluted. Carolina Cement General Manager Bob Odem says, “ we will not put mercury in the Cape Fear River and the plant will do what’s best for the environment.” People in the community know that no matter how they dispose of the mercury, it will be released into the environment and negatively impacting, plants, animals, farms and the people.

The residents are encouraged by the commissioners to continue practicing the Right of Free Speech and to fight for what they believe in. And that is what they intend to do.

Are You Seeking FREE Legal Advice? “Ask a Lawyer Day” at Independence Mall This Saturday!

Shipman & Wright attorneys James Moore and Matt Buckmiller will be participating in the annual “Ask a Lawyer Day” event from 2pm-4pm at Wilmington’s Independence Mall this Saturday February 6^th, 2010.

This is the first year “Ask a Lawyer Day” will be held in our area and many attorneys will be volunteering their time from 10am -6pm on Saturday to participate. This event will allow lawyers to consult with the public and any general legal questions they may be dealing with. The lawyers will not be giving specific legal advice or providing representation but they will be able to give suggestions as to how problems might be solved.

If you or someone you know has a lingering legal issue that you have yet to be resolved or you don’t even know how to go about resolving it, come out this Saturday and “ask a lawyer.” James and Matt, along with all of the other attorneys that will be volunteering their time throughout the day, will be able to help.

Toyota Recall- What Goes Up Must Come Down Just as Fast

The Toyota Acceleration Recall is costing Toyota a lot more than half a billion dollars a month. Toyota’s quick success is now falling apart and their once reliable brand reputation is at risk and the recovery looks grim.

With over 2 million Toyota made vehicles involved in the latest recall, consumers all over the country are questioning their safety. Over the last decade there has been 2,000 reports of unwanted acceleration, resulting in 800 accidents and 19 fatalities. This recall follows almost too closely behind the recent recall Toyota made late last year of 4.2 million Toyota and Lexus floor mats that could also get stuck and jam the gas pedal down, causing acceleration and loss of control. All facts that are currently surrounding the Toyota crisis coupled with the timeline of complaints and recalls leading up to this point, have people questioning how long Toyota has been aware of this problem and if the have purposely been slow to react to it. Did Toyota get caught up in their quick success leaving room for error?

Tanya Nichols, a Toyota owner who experienced the unwanted acceleration resulting in an accident is quoted as saying “I am afraid that my car is going to be fixed, and I don’t want it back unless I can be guaranteed it is safe.” When Toyota President and Chief Operating Officer Jim Lentz was told about Tanya’s statement he was then asked if he could in fact guarantee her safety, he said, “ We are confident that we have a fix for both recalls and that this will be under control.” Lentz continued his interview with Matt Lauer of the The Today Show and handled him self and the intense questioning very well. However, it is my opinion that confidence does not guarantee anyone’s safety.

Toyota claims to have pinpointed the issue and dealers around the country are now receiving packets and instructions on how to “fix” the sticking pedal. The process of repair is said to start by the end of this week. Meanwhile, Toyota competitors Ford and GM are taking full advantage of Toyota’s crisis and offering incentives for Toyota owners to trade in their cars for new Ford and GM vehicles.