Legal Obligations to Protect Sensitive Data

Sensitive Company Information Bleeding Out The Door

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Companies naturally want to protect their internal, sensitive company information. Indeed, intellectual property and trade secrets often constitute the crown jewels of a given operation. Companies also have practical and legal obligations to protect confidential information of their customers. Accordingly, prudent companies develop policies that are designed to ensure the security of such highly valuable, proprietary and sensitive data. But does that mean that company employees necessarily follow those polices?  Au contraire!

Indeed, according to a recent study in Europe by Ipswitch, a file transfer security vendor, 69% of IT managers transmit highly confidential data, such as payroll, financial and customer information, over the Internet using unsecured emails.

And practically half of surveyed employees readily concede that at least once a week they send confidential or regulated content, the type of which could potentially require data breach notifications under governing laws if the content is stolen or lost.

On top of this, 69% of those surveyed said that they send highly confidential information at least once per month simply using regular, unencrypted emails and attachments. Moreover, 34% report that they do so daily!

In addition, 70% of respondents answered that they house company information on their PDAs, USB drives, and elsewhere through remote connections.

While 62% of companies surveyed have security policies in place that detail how sensitive information must be secured for transmission, 72% admit that they do not have enough transparency to ascertain how data is transferred internally and externally.

So, when it comes to protection of sensitive information maintained by companies, perhaps the biggest fear is not external hackers. Instead, companies may need to look in the mirror and follow through on true data security.

Companies technically must be able to track how and under what circumstances their data is transmitted. They also need to motivate their personnel to actually follow their data security policies.

Perhaps in this regard a carrot and stick approach could work; namely, providing positive incentives for compliance and penalties for non-compliance. And companies should consider working actively with skilled data security support vendors and knowledgeable legal counsel in this area.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP ( where he focuses on litigation matters of various types, including information technology and intellectual property disputes.  His Web site is and he can be reached at  To receive a weekly email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice.  The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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Full-Body Scanners Lawsuit

Lawsuit challenges airport full-body scanners

By Katie Johnston Chase, Globe Staff  |  August 4, 2010

A privacy advocacy group is suing the Department of Homeland Security to suspend the use of the controversial full-body scanners employed at airports across the country, including at every major checkpoint at Logan International Airport.

The machines, which use X-rays or radio frequency energy to detect weapons and explosives beneath passengers’ clothing, have been much criticized because of privacy concerns.

In the lawsuit, filed last month, the Electronic Privacy Information Center in Washington, D.C., said the slightly blurred but accurate pictures of passengers’ naked bodies produced by the machines are the equivalent of a “digital strip search.’’

The suit says the program, run by the Transportation Security Administration, which is part of the Department of Homeland Security, violates the Privacy Act and the Administrative Procedure Act.

The program also violates the Religious Freedom Restoration Act, the lawsuit says, referencing religious laws about modesty.

Court documents allege the scanners also violate the Fourth Amendment by having passengers undergo “a uniquely invasive search without any suspicion that particular individuals have engaged in wrongdoing.’’

The TSA declined to comment on the lawsuit, but spokesman Greg Soule said the agency is exploring “additional privacy protections through automated threat detection.’’

Currently, an image is created for every person who goes through the scanner. The agent with the passenger never sees his or her image, and the agent viewing the image never sees the passenger.

Travelers can opt to have a pat-down and a metal detector screening instead.

The TSA is working with technology companies to develop software that would show a generic paper-doll-like figure instead of an actual image of a passenger’s body — and transmit images only when a threat is detected.

The TSA plans to keep the current scanners in place until less invasive software is available.

This will not solve the privacy issues, said Marc Rotenberg, executive director of the Electronic Privacy Information Center, because the images of travelers’ naked bodies are still being captured by the machine.

“We think the privacy safeguards are mostly fiction,’’ said Rotenberg, adding that a congressional investigation is underway to review the scanners.

According to the TSA, the scanners’ ability to store images is used for testing purposes only and is disabled before they are installed in airports.

“There is no way for someone in the airport environment to put the machine into the test mode,’’ Soule said.

Officials at Logan International lobbied for the airport to be the first to have the full-body scanners installed. The TSA aims to deploy as many as 450 machines this year — adding to the 50 that were already in place at airports around the country — following the attempted terrorist attack on a Detroit-bound flight on Christmas Day. And Logan is now pushing to be the first to implement the less invasive scanning software.

“When this technology is available, we want to be the first airport to put this in so we can take the privacy issues off the table,’’ said Edward Freni, director of aviation at Logan.

Freni said that no privacy concerns from Logan passengers had been brought to his attention. But one of the petitioners in the lawsuit is Bruce Schneier, a Minneapolis security technologist who said that while he was traveling through Logan Airport he was not told the full-body scan was optional. Nor did he see any signs indicating he could have a pat-down.

Ralph Nader’s Center for Study of Responsive Law has also weighed in on the full-body scanners, raising questions about privacy and safety.

And a group of University of California San Francisco scientists wrote to President Obama’s science adviser in April, stating that the dose of radiation from the X-ray scanners may be “dangerously high.’’

The scanner X-ray emits the same amount of radiation that a passenger receives in two minutes of flight, according to the TSA, but the scientists say this is misleading because the scanner X-rays are not distributed throughout the whole body, but are directed at just the skin and the underlying tissue.

There are also questions about the effectiveness of the scanners, which critics say may not be able to detect explosives hidden in body cavities.

Last month, the Department of Homeland Security announced plans to expand the full-body scanner program to more airports.

Currently, 157 full-body scanners are in use at 43 airports; by the end of the year nearly 500 are planned to be in place.

Next year, 500 more machines are scheduled to be installed.

Katie Johnston Chase can be reached at

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Boston Phoenix – Howard Cooper Profile

The media’s worst nightmare?

Howard Cooper is quickly making a name for himself as the city’s go-to guy for libel

By MARK JURKOWITZ |  June 7, 2006

A WIN CAN DO WONDERS: After winning Judge Ernest Murphy’s libel case against the Herald, Cooper was deluged by hundreds of inquiries from potential clients.

On January 20, 2005, in an emotional opening statement to a Suffolk County jury, Howard Cooper declared that a Boston Herald series, which began in February 2002, had been so unfairly damaging to Superior Court Judge Ernest Murphy that the judge “has been seen crying in front of lawyers, in front of court officers.”Twenty-nine days later — after deliberating for 25 hours and confounding the conventional wisdom that Murphy’s high-profile libel suit was a long shot at best — the jury awarded the judge nearly $2.1 million. And Howard Cooper’s life changed.

He found himself deluged by “hundreds” of inquiries from potential clients seeking help in media-related cases — 95 percent of which he quickly discarded. He became a sought-after speaker at panels and seminars. Massachusetts Lawyers Weekly named him one of its 10 “Lawyers of the Year” for 2005. Among the courtroom spectators in the Murphy case was an attorney for the Islamic Society of Boston (ISB), an organization impressed enough with Cooper to hire him for a conspiracy-and-libel lawsuit that could dwarf the Murphy case by the time it’s done generating headlines.

At age 46, and after two decades of practicing law, Cooper is something of a household name in media circles — although exactly what adjectives surround that name might vary. After beating the Herald in court and bringing the ISB suit against the tabloid and Channel 25, as well as their sources, he is an unpopular figure in some local newsrooms. And as a Jewish lawyer representing the ISB, Cooper is perched in the middle of an explosive case that threatens to pit Muslim against Jew, bringing the intractable Middle East conflict into court.

Cooper isn’t comfortable with a reputation as the media’s worst nightmare, asserting that “I’m not interested in being a plaintiff’s libel lawyer. I’m interested, to the extent possible, of [representing people] where a real wrong has been done and the legal system is available to correct it.”

And although there is a school of thought that says good lawyers should be dispassionate advocates for their clients, those who know him say Cooper’s intense faith in his cases is a big part of what motivates him.

“Howard tends to fall in love with the cause he’s pursuing,” says David Yas, publisher of Massachusetts Lawyers Weekly. “He’s a believer . . . in clients he takes on.”

Salma Kazmi is the assistant director of the ISB, which is contending in its sweeping lawsuit that the Herald, Channel 25, and some activists combined to undermine its new mosque, planned for Roxbury, by linking the organization to terrorists.

Kazmi says Cooper “is personally convinced that [the ISB officials are] innocent” and that “his ability to advocate is directly linked to the fact that in his mind, he’s completely convinced.”

Cooper has made some enemies and will make some more given his controversial caseload. But many of those familiar with his work tend to see him as the real deal — a passionate, sincere, and surprisingly idealistic advocate who is no fun to face across the aisle.

Murphy’s law
A Newton native, Cooper had a legal career embedded in his DNA. His father, who spent 42 years in the area as a “general practitioner,” was his role model. When he was about 12, he went to court to watch his father defend a man accused of stealing a ring from a jewelry store and recalled that “it was the most exciting thing I had ever seen.”

After getting his law degree from BU in 1984, Cooper went to work at Hale and Dorr before founding the Boston firm Todd & Weld with a small group of attorneys in 1991. (The downtown firm now has 35 lawyers.)

He estimates that about a quarter of his practice has been devoted to criminal-defense work, although he also spent time as the Boston Police Department’s legal representative prosecuting internal-affairs cases, and has represented students brought before college disciplinary boards for everything from plagiarism to sexual assault.

While Cooper had a brief stint as a journalist — he interned in the Albany UPI office while an undergrad at Union College — he does not have extensive media-related experience in the courtroom. He defended the Valley Advocate, in Springfield, in a libel case in the late 1980s. And in the wake of the Murphy case, he is now representing the plaintiffs in a defamation lawsuit against Northampton author Augusten Burroughs, whose 2002 bestseller Running With Scissors has been turned into movie slated to hit theaters this year.

Cooper and Judge Murphy knew each other; in fact, as lawyers, they once worked on a the same side of a case. But the two men hadn’t spoken for a few years when Cooper saw the Herald’s 2002 series criticizing Murphy for lenient sentencing practices. The Herald also reported that he once said of a young rape victim: “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.”

Cooper wrote a letter to Murphy expressing his support, which triggered a chain of events that led to his representing the judge. From the outset, most observers felt that Murphy had little chance of winning, particularly since, as a public figure, he would have to surmount the daunting obstacle of proving that the Herald had acted with actual malice.

For his part, Cooper says “I’ve defended people caught on video cameras robbing banks. Those are long odds. . . . My view was that if a jury heard this case, then the Herald would be held accountable.” In a dissenting opinion, Murphy himself characterizes Cooper as “a worrywart” who was far from confident about the outcome of his case. “He can’t see the glass as half full,” the judge adds. “He just can’t believe he can win.”

Whatever his real expectation, after hammering away at lead Herald reporter David Wedge, portraying Murphy as a man whose reputation, health, and career had been destroyed by reckless reporting, and attacking the paper for tabloid sensationalism, Cooper got his client a $2.09 million verdict, not counting the accruing interest.

The case is now on appeal and being handled by another lawyer. (Cooper says “appellate advocacy [is] not my strong suit.”) And there’s still plenty of legitimate debate about whether the jury verdict was justified. But nearly everyone agrees that Cooper, who was extremely well prepared and passionate in his advocacy for Murphy, gave a first-class performance in that courtroom. In interviews with a few jurors after the verdict, it became apparent that Cooper had convinced them that the “tell her to get over it” quote was inaccurate and that the paper’s repeated use of the quote essentially represented malice — no mean feat for any attorney.

Even Bruce Sanford, the attorney representing the Herald on appeal, acknowledges that Cooper “did a clever job of confusing the issues in a libel case. . . . The challenge there for a plaintiff’s lawyer is to cleverly confuse some of the issues and facts so that the jury thinks there’s some falsity.”

“He won a case that was thought to be unwinnable,” says Massachusetts Lawyers Weekly’s Yas, “and potentially changed the way people look at libel and slander cases.”

The mosque pit
Cooper says that when he was initially queried by an ISB attorney about taking the mosque case, “my first reaction was to say ‘you know I’m Jewish.’ And his reaction was, ‘is that a problem for you?’ ”

The newest incarnation of the ISB litigation, which was filed last October, is a greatly expanded version of two separate libel suits filed by officials of the society. In a breathtakingly ambitious legal strategy, they contend that the Herald, Channel 25, terrorism analyst Steven Emerson, and officials of the David Project and Citizens for Peace and Tolerance conspired to stop the Roxbury mosque project by falsely connecting the ISB to terrorism. The defendants have responded by arguing that the plaintiffs are trying to destroy free speech by intimidating people from raising the issue of whether the operation has dangerous ties to Islamic terrorism.

One observer calls the complex suit — still in its early phases with pending motions to dismiss — “this incredible colossus.”

“Is it unusual to allege a conspiracy between a media outlet and its sources?”, asks Cooper. “The court will decide whether it’s an appropriate legal theory.”

To say that the suit and surrounding issues are potentially divisive is a major understatement. The Boston Globe has reported that the battle “has deeply chilled Muslim-Jewish relations in Boston.” And the plaintiffs’ offer to take the case to private mediation received a chilly reception from the defendants and other interested parties.

“The best thing [Cooper] could do right now is to withdraw the lawsuits so real dialogue could resume on the issues,” says Andrew Tarsy, the New England regional director of the Anti-Defamation League.

However intense the controversy, Cooper typically views himself on the side of the angels.

“I believe that what I am doing is in keeping with the highest tradition of what I understand the Jewish culture to be about,” he says. “That is standing up and combating intolerance wherever you see it.”

A very different interpretation comes from an observer who says of the ISB: “If I’m them, a Jewish lawyer is a capture.”

It’s difficult to get those who might have an unfavorable view of Cooper to speak on the record. Officials at the Herald, at Channel 25, and at some organizations that have voiced concerns about the mosque declined to comment for this story. Their lawyers have also been understandably circumspect.

Even so, a picture emerges, from admirers and adversaries alike, of a talented and tireless advocate who leaves little to chance.

“There’s not a lawyer in Boston that works harder than Howard Cooper,” says Murphy. “Very adaptable in the courtroom, very good on his feet.”

Robert Dushman, the Herald’s lead attorney during the Murphy trial, says “his style is more theatrical than mine . . . and I think jurors who grew up watching cases on TV come to expect that. [But] I’d give him very high marks for preparation, for knowledge of the case . . . Obviously, he’s very comfortable in a courtroom.” Attorney Joseph Steinfield, who is representing Channel 25 in the ISB case, also says “I have great respect for his skills as an advocate.”

Ted Merritt, an assistant US attorney who’s known Cooper since he was his camp counselor nearly four decades ago, gets back to the true-believer idea that some say is the core of Cooper’s career.

“What comes through from him a lot is his passion,” says Merritt. “He’s able to sincerely believe his client or his case is the right thing. Howard’s the kind of lawyer I would turn to if I wanted my case prosecuted and advanced.”

On the Web
Mark Jurkowitz’s Media Log:
The Islamic Society of Boston:
Citizens for Peace and Tolerance:

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Boston Herald Tom Scholz Lawsuit

Herald nemesis Howard Cooper rides again

posted by Dan Kennedy on March 17, 2010 |  Courtesy of:  Beat the Press

It’s Howard Cooper versus the Boston Herald, round two.

Cooper, you may recall, is the Boston lawyer who represented then-judge Ernest Murphy in his libel suit against the Herald, which had portrayed him as someone who had “heartlessly” demeaned a teenage rape victim. Murphy won a $2 million-plus verdict against the Herald in 2005. I don’t think Murphy was libeled, but Cooper was able to convince a jury otherwise. Here is more than you’ll ever want to know about that case.

Now Cooper is suing the Herald on behalf of Tom Scholz of the band Boston, claiming that Inside Track reporters Gayle Fee and Laura Raposa fabricated quotes attributed to Micki Delp, ex-wife of Boston lead singer Brad Delp, as well as from unnamed “insiders,” to make it appear that Delp had blamed Scholz for her ex-husband’s suicide.

Courthouse News Service has a detailed account of the suit, though there’s a mistake in the lede — Delp committed suicide in 2007, not 1997. The story is accompanied by a copy of the complaint (pdf). I have not had a chance to do more than skim it, so I’m staying away from any detailed analysis. I do see that Cooper cites Boston magazine’s 2006 story “Gals Gone Wild,” by John Gonzalez, as example of what Cooper calls Fee and Raposa’s “unprofessional, irresponsible and reckless tactics and methods.” For good measure, Cooper calls them “so-called ‘reporters.’”

The Herald has not yet filed a response. Herald spokeswoman Gwen Gage tells the Boston Globe, “We’re aware of the complaint and we will review it. Beyond that, we have no further comment.”

In 2006 “Beat the Press” alumnus Mark Jurkowitz wrote an in-depth profile of Cooper for the Boston Phoenix (via Romenesko). The headline: “The media’s worst nightmare?” At One Herald Square, the answer to that question would be a decided “yes.”

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Brad Delp Suing Boston Herald for Libel

Three years after Brad Delp, the lead singer of the band Boston, committed suicide, his former bandmate is suing the Boston Herald for libel.

In a lawsuit filed March 10 in Suffolk County Superior Court, guitarist Tom Scholz claims Herald reporters Gayle Fee and Laura Raposa defamed him by writing that Delp’s ex-wife, Micki, blamed Scholz for the singer’s death.

According to the suit, Fee and Raposa, who write the tabloid’s Inside Track column, attributed statements to Micki Delp that were ‘‘false and fabricated.’’ Scholz is being represented by attorney Howard Cooper, who successfully sued the Herald for libel in 2005.

‘‘We have filed this complaint in an effort to correct the very substantial defamation by the Boston Herald and its reporters of Tom Scholz at the time when his former Boston bandmate took his own life,’’ Cooper told the Globe today. ‘‘It is unfortunate that some chose that tragic occasion to sensationalize a false story about Mr. Scholz.’’

Herald publisher Patrick Purcell did not return a phone call today, but Gwen Gage, the paper’s spokeswoman, did.

‘‘We’re aware of the complaint and we will review it,’’ she said. ‘‘Beyond that, we have no further comment.’’ (Neither Fee nor Raposa responded to messages today, and Herald lawyer Elizabeth Ritvo did not return a phone call or e-mail.)

At issue are stories that appeared in the Herald in the days after Delp’s body was discovered in the bathroom of his home in Atkinson, N.H. On March 16, 2007, under the headline ‘‘Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks,’’ the Herald reported that Delp was ‘‘driven to despair’’ by Scholz and the band’s ‘‘ugly breakup,’’ and attributed the comments to Micki Delp.

Scholz subsequently sued Micki Delp, and, under oath, she denied ever making the statements. (That case is still pending.)

The lawsuit against the Herald claims Fee and Raposa knew the statements were false, ‘‘but they nevertheless fit the defendants’ predetermined agenda to sensationalize a story about Mr. Delp’s suicide in an effort to sell newspapers and to portray Mr. Scholz as an insensitive, heartless, and oppressive person.’’

Scholz’s attorney is well-known to the Herald. Five years ago, Cooper won a $2 million judgment (which, plus interest, amounted to $3.4 million) against the tabloid after a jury determined the Herald libeled Superior Court Judge Ernest Murphy by portraying the jurist as lenient on crime and writing that unnamed sources overheard the judge saying of a 14-year-old rape victim, ‘‘Tell her to get over it.’’

You can read the lawsuit, which goes on at great length about the Herald’s motivation for writing the Scholz story, by clicking here.

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Suit against Boston Herald

Boston.comThe Boston Globe

Scholz’s suit against Herald will go forward

Download Libel Suit PDF:  CLICK HERE

By Mark Shanahan & Meredith Goldstein, Globe Staff  |  September 11, 2010

A judge yesterday rejected the newspaper’s motion to dismiss a lawsuit filed against it by rocker Tom Scholz of the band Boston. Last March, three years after Boston singer Brad Delp committed suicide, Scholz sued the Herald for libel, claiming reporters Gayle Fee and Laura Raposa defamed him by writing that Delp’s ex-wife, Micki, blamed Scholz for the singer’s death. “This court finds that Scholz’s complaint and the inferences . . . support his claim that the defendants’ alleged conduct is ‘extreme and outrageous,’ ’’ Judge John Cratsley wrote in his decision.

Scholz, who is represented by attorney Howard Cooper, contends Fee and Raposa, authors of the tabloid’s Inside Track column, attributed statements to Micki Delp that were “false and fabricated.’’ Reached yesterday, Cooper said he is gratified by the judge’s decision. “It’s a very thoughtful and well-reasoned decision, and it makes clear that Tom Scholz’s case is well-grounded in fact and in law and will proceed.’’ (Five years ago, Cooper won a $2 million judgment against the Herald after a jury determined the paper libeled Superior Court Judge Ernest Murphy.) Jeff Robbins, one of several attorneys working on the case for the Herald, did not return a call yesterday.

At issue are stories that appeared in the Herald after Delp’s body was discovered in the bathroom of his home in Atkinson, N.H. On March 16, 2007, under the headline “Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks,’’ the Herald reported that Delp was “driven to despair’’ by Scholz and the band’s “ugly breakup,’’ and attributed the comments to Micki Delp. Fee took notes during her March 15, 2007, interview with Micki Delp, but Cratsley notes “she discarded her notes after Micki contacted her on March 16, 2007 regarding what Micki perceived as distortions/fabrications in that morning’s Inside Track column.’’

Explaining his decision to allow the suit to go forward, Cratsley writes: “While the Inside Track articles do not explicitly state Delp committed suicide because of Scholz’s behavior, I find they are reasonably susceptible of a defamatory connotation because the articles insinuate, if not suggest, that Delp’s stressful career, caused in part or in whole by Scholz, played a role in Delp’s suicide.’’

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