The Best is Still To Come 💋

Hallelujah to all of the moments in this life that express to us that we shall not treat ourselves with contempt. We are beautiful because of our vulnerabilities, and not in spite of them. Let us give thanks for all of the seconds that whisper to us that although we have come a very long way, we have even much further to go. Amen.

With L❤️ve, On Valentine's Day

Happy Valentine’s Day! St. Valentine is known, among other things, as the patron saint of persons with epilepsy. Epilepsy is a neurological disorder. The ketogenic diet has been used with epilepsy patients since the 1920s. 

With St.Valentine in mind, please consider some delicious keto shrimp recipes to enjoy with a loved one: 

https://www.delish.com/cooking/g4841/keto-shrimp-recipes/?slide=10

#Loved #MessageofLove #MadewithLove

Privately Posted Dispositive Social Media Posts

Privately Posted Dispositive Social Media Posts are Discoverable 

pursuant to today’s order issued by 

SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT (a personal injury suit)

Genaro Vasquez-Santos, Plaintiff-Respondent, 

v

Leena Mathew, Defendant-Appellant:

http://nycourts.gov/reporter/3dseries/2019/2019_00541.htm

If it turns out that such dispositive posts exist, should the plaintiff’s attorney be subject to Rule 11 sanctions?

How will this ruling affect how diligence regarding clients is conducted? Or will this be overturned?

#storedcommunications #electroniccommunications #privacy #liberaldiscovery #relevance #ESI 

How is today’s order similar to or distinct from 

“In The Matter of the Search Of A Residence in Oakland, California” 

(Order Denying Application for Search Warrant) issued January 10, 2019 in United States District Court, Northern District of California? 

https://www.documentcloud.org/documents/5684083-Judge-Says-Facial-Recognition-Unlocks-Not.html

h/t NY Law Journal, Naked Security

Is a 51% Attack the New Hostile Takeover?

On August 22, 2018, the Securities and Exchange Commission issued an “Order Disapproving a Proposed Rule Change to List and Trade the Shares of the GraniteShares Bitcoin ETF and the GraniteShares Short Bitcoin ETF.”

The SEC order rejected a request for a proposed rule change, observing that the party making the request "has not met its burden under the Exchange Act and the Commission’s Rules of Practice to demonstrate that its proposal is consistent with the requirements of Exchange Act Section 6(b)(5), in particular the requirement that a national securities exchange’s rules be designed to prevent fraudulent and manipulative acts and practices.13"

The order considered known issues such as price discovery, high frequency trading, and market manipulation generally, and went on to conclude that the party making the request had “not demonstrated that it has entered into a surveillance-sharing agreement with a regulated market of significant size related to bitcoin, or that, given the current absence of such an agreement, the exchange’s own surveillance procedures described above would, by themselves, be sufficient to satisfy the requirement of Exchange Act Section 6(b)(5) that an exchange’s rules be designed to prevent fraudulent and manipulative acts and practices.96”

Would the issuer (or other relevant party making such a request) of shares of an ETP holding cryptocoins as an asset have to demonstrate that it could successfully deter and/or mitigate a 51% attack to be within compliance with Exchange Act Section 6(b)(5)? 

At the time the order was issued, a 51% attack was, as far as is publicly known, still only a theoretical (pls see: https://www.investopedia.com/terms/1/51-attack.asp ) form of cryptocurrency hack. As of this writing however, in the early days of 2019, there have been at least some published reports of a successful 51% attack on a blockchain based platform.

Holiday Playlist

Book Excerpts are Food for Thought on Cyber

In October, former Assistant Attorney General John P. Carlin's Dawn of the Code War: America's Battle Against Russia, China, and the Rising Global Cyber Threat, was released.  It is available via Amazon  (https://www.amazon.com/gp/product/B079L5N2TC?tag=hacboogrosit-20 ).

Recently I was delighted to review some multi-media clips which feature excerpts from the work.  Here are three such excerpts, via one such snippet (https://www.politico.com/magazine/story/2018/11/21/junaid-hussain-most-dangerous-terrorist-cyber-hacking-222643 ), followed by comments that I have added.

“We were, as a country and a society, providing technology to our adversaries—technology developed with our creativity and through our national investments in education; technology that allowed them to communicate  securely and instantly among themselves and potential recruits; technology that was specially designed to allow them to keep their conversations private and prohibit law enforcement from listening even with a valid court order; technology that allowed them to reach into our schools, our shopping malls and our basements to spread poison to our children, tutor them and provide them operational directions and supervision to kill fellow Americans. And we’d given it all to them for free—available for an easy download in the app store, just a few clicks away.”

My comment: Putting a net around these risks is a global scale issue. Could/should/do licensing paradigms & OFAC/ITAR address this sufficiently? What’s the best path forward that acknowledges the spirit of the creative & free societies that created these technologies? 

“After the retailer reported the email exchange, the FBI was able to trace the internet address of the sent email to Malaysia,” 

My comment: Am curious what the author thinks of new leg that makes collecting IP addresses and related info a regulatory violation (https://eugdprcompliant.com/personal-data/ ). Will it have any chilling effect on law enforcement? 

“Too often, it seemed like luck kept us safe”   

My comment: I second this sentiment; it’s troubling.

Congratulations to the author & please share this post if you think an autographed copy would make a great holiday gift :) 

-MCC,ESQ. 

Daikon Breakfast Treat Recipe: Serves 2

What is the difference between a latke and a hash brown? Will have to leave it to the food scholars to answer that question. This recipe uses shredded daikon, a winter radish, in the place of potatoes to create a dish that is reminiscent of a hash brown or a latke, for a leisurely and tasty fall breakfast. 

You will need: 

Salt to taste

1/3 large peeled grated daikon

1 slice bacon

1/3 white onion sliced

1/4 cup vegetable oil 

1 tablespoon butter 

1 egg

1/4 teaspoon chili powder 

1 tablespoon dried sage 

Cream cheese for garnish

Directions:

Peel and grate 1/3 of a large daikon, add salt, place in a bowl and refrigerate- you will come back to this in about 30 minutes to drain it.

Wait around 20 minutes :-)   (Maybe check your email or tackle a small task on your to-do list) 

Coat a large frying pan with vegetable oil and heat at medium. Once the oil is warm, place a piece of bacon in the pan and fry. Remove the bacon slice from pan and reserve.

Add to the frying pan 1/3 of a sliced white onion. 

Add to the pan a tablespoon of butter. Stir.

Remove the grated daikon from the fridge, drain and season with chili powder. 

Add 1 egg to the grated daikon and mix until egg is somewhat beaten.

Divide grated daikon into four equal portions.

If your frying pan is getting too hot and/or your onion is starting to burn, feel free to add a teaspoon of water to the pan.

Add sage to the frying pan and stir into the onion.

Spoon the apportioned grated daikon into the frying pan, incorporating some of the onion as you form the mixture into a thin cake. 

Keep the flame on medium and flip the cake every few minutes, until crispy on outside and cooked on inside.

Plate, adding a bit of reserved bacon on top and garnish with cream cheese.

Enjoy :) 

“We thought that we had the answers, It was the questions we had wrong” U2. Lyrics to “11 O’Clock Tick Tock” Under A Blood Red Sky, 1983.

My highlighted PDF copy of  Dodd Frank (1) notes that Section
619  (“Volcker Rule”) runs from pages 246-257. Thus, it’s

11 pages long.

It truly captures the imagination and attention then, when:

“On July 17, 2018, the Agencies published in the Federal Register
a notice of proposed rulemaking (proposal) that would amend
the regulations implementing section 13 of the Bank Holding
Company Act. Section 13 contains certain restrictions on the ability
of a banking entity and nonbank financial company supervised by
the Board to engage in proprietary trading and have certain
interests in, or relationships with, a hedge fund or private equity
fund. The proposed amendments are intended to provide banking
entities with clarity about what activities are prohibited and to
improve supervision and implementation of section 13.

In response to requests from commenters regarding issues addressed
in the proposal, the public comment period has been extended for
30 days until October 17, 2018.”  (2)

To summarize, by extending the time to comment on the proposed
amendments, interested parties would have more time to review and
analyze the somewhat lengthy proposal on proposed changes to the
“Volcker Rule”.

However, rather than analyzing the proposal, I found myself
considering whether an argument can be made to strike section 13
of the Bank Holding Company Act (entirely or otherwise) on the
basis of the constitutional doctrine of “Unconstitutional
Vagueness” (3).

To construct a framework for such an inquiry, one must parse the
task into two sequential legal analyses; let’s call them 1.) a
threshold question and 2.) a substantive question.

The Threshold question is:

Is section 13 of the Bank Holding Company Act (ie Section
619 Dodd Frank, ie “The Volcker Rule”) subject to constitutional
review (4)?

The Substantive question is:

Is section 13 of the Bank Holding Company Act (ie Section 619
Dodd Frank, ie “The Volcker Rule”) vague and if so,

Does it rise to the level of  “Unconstitutional Vagueness”?

The 1st question is important because if the answer to it is not
“yes” there is no point in going to the 2nd question. (IE, “even
if it is unconstitutionally vague, the doctrine is not applicable
bc…” is a contingency we have considered from the outset.)

In order to reflect on the threshold question, we should consider
relevant Supreme Court caselaw that addresses when and
whether legislation is subject to constitutional review.

The seminal caselaw on judicial review is Marbury v. Madison, 5
U.S. 137, (1803) which established judicial review. Incidentally, it’s around five pages long.

The readers of this blog post are encouraged to more profoundly consider what arguments
may exist for and against our threshold question of whether Dodd Frank generally or the
Volcker Rule specifically is subject to judicial review.

Okay, 2nd question :)

Is Volcker vague?

If it is vague, does such vagueness rise to the level of
unconstitutional vagueness, such that it should be struck down, ala
Marbury v Madison?

With regard to our 2nd question, it’s important to understand why
the doctrine of unconstitutional vagueness exists in the 1st place.
It’s about due process, which is super important in our judicial system.

Here is an excerpt from an early 20th century tobacco case:

Collins V Kentucky 234 U.S. 634, 637 (1914):

“no standard of conduct that it was possible to know; that it
violated the fundamental principles of justice embraced in the
conception of due process of law in compelling men on peril
of indictment to guess”

In other words, when a law (which when broken leads to enforcement)
has a standard that is unknowable, it is a violation of due process.
Another way to say this is: if it’s impossible to tell whether or not
one has broken the law, that’s just not fair, and thus repugnant to our
system of law.

After running some searches, around twenty SCOTUS cases
emerged(5)  as those that are oft cited when the courts seek insight
on what the SCOTUS thinks about “unconstitutional
vagueness”. One thing that this short list tells us is that
“unconstitutional vagueness” is a doctrine that the court has not
considered with frequency.  

Some things to consider when perusing the cases is whether or not
the parties in those cases are anything like the potential parties in
our scenario and also, how analogous (or not) our theoretical
argument is to the facts and circumstances in the various cases.

Another thing to generally consider is whether, in the absence of
controlling law, a successful case can be brought at all.

Again, will leave it to the reader of this blog post to consider
whether a legal challenge of the type above described would be met
with success and what costs and risks(6) would otherwise
attend such an endeavor.

Happy autumn all! 🌇

1. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203 et seq, (2010) link to act: https://www.law.cornell.edu/topn/dodd-frank_wall_street_reform_and_consumer_protection_act

2.https://www.federalregister.gov/documents/2018/09/11/2018-19649/extension-of-comment-period-for-proposed-revisions-to-prohibitions-and-restrictions-on-proprietary

3. https://en.wikipedia.org/wiki/Vagueness_doctrine

4. https://en.wikipedia.org/wiki/Judicial_review

5.Please see link to case table: https://docs.google.com/spreadsheets/d/1ir9IQ52pchZqGe7RrGUq4pquvRkQYsmloNYw0Huh16Q/edit?usp=sharing

6.  Please enjoy: https://www.pokernews.com/strategy/understanding-what-it-means-to-be-pot-committed-20050.htm

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