It Can Happen to Everyone

It was a dull periodic reminder in the past, but cybersecurity seems to be a daily thing recently. I am not a news junkie, but do have a process for headline scanning. In large part, I am ensconced in the workers' compensation community and somewhat measure the relevance of news based upon whether it impacts me or that community. Perhaps we are all that way to some degree, focused individually on things that interest or impact us? Increasingly, I return to cyber threats and the miscreants that inhabit our world.

About two years ago, I became focused on the threats to our cyber well-being. We are bombarded with news about identity theft, spam, and worse. The import of cybersecurity came home to me at a SAWCA program that was an eye-opener. I documented it in The Future of Workers' Compensation (July 2015). Since then, I have written repeatedly on the subject: See Cybersecurity - 2020's Hot Topic (January 2020), Cybersecurity 2020 Again (April 2020), Cyber Threats 2020 (July 2020), The Physical Premises of Cyber-security (August 2020), Cybersecurity Forum 2020 (August 2020),

Cybersecurity Hits Home (May 2021); Cybersecurity, the Pillory, and More (May 2021), Your Cyber-health is Your Job (June 2021), and Your Light Switch Could Be Spying (June 2021).

As an aside, that January 2020 headline is a Dewey Beats Truman, huh? 2020's Hot Topic indeed. Thanks COVID.

I am not certain whether cyber risk is on the rise, is getting more press, or is simply attracting my attention more readily. However, it seems to be on my mind more, and noticed in the news more in any event. As a member of The Florida Bar, I receive a newspaper periodically. For the unfamiliar, this is similar to a website, but the stories are actually printed on processed wood pulp that is then actually brought to me by a uniformed representative of the federal government, called a "letter carrier," for my reading pleasure. In olden times, there were many such "papers" and some people read them daily. Back in the dark ages, I actually delivered them as a job (though without the letter carrier's fine uniform and imprimatur of authority).

Thus, periodically, I pause for a moment and hold the news in my hand. It is a somewhat comforting throwback to yesteryear. There is something about the texture, the smell, and even the occasional stained fingers that bring back memories of the Dark Ages and the Renaissance some of us have lived through. But, I digress. The most recent Florida Bar News reminded me, oddly enough, of cyber-security, repeatedly.

The first story urged us to Prepare Now to Thwart Ransomware Attacks. Ransomware was recently a national story as we all struggled to purchase gasoline after some bad actors shut down a pipeline for giggles and profit, see Cybersecurity Hits Home (May 2021).

This features a law firm promoting itself on social media, specifically about a party it planned. That led to an email instructing the accountant to wire $150,000 for the party (that was "some party" it seems, most people spend that kind of cash on a house, huh?) The email was a scam and the money is gone. I suspect the accountant may be gone also, but that is conjecture.

The instance leads the Bar News to remind us that “law firms are actually stalked online.” Yes, there are folks cyberstalking people, people like you and me. That is, following them somewhat compulsively, which is perhaps harmless if we are simply curious about what Beyonce had for breakfast or which of the Kardashians we should have in our thoughts (bless their hearts). But, the experts warn that some stalkers are more dangerous and threatening.

Experts at a recent program warned that law firms "have so much protected information," and that it is "worth so much money on the dark web." You have assets that people have entrusted to you, and those assets can be bought and sold in the underworld. If a client came to you with their bearer bonds to hold, you would lock them in a safe or a bank's vault. But, they come to you with their identities and perhaps you are less assiduous with "locking" that away?

Oh, there is good news. The recent program highlighted that the worst of the worst (like Russia or North Korea, yes nations are engaged in miscreant behavior) are not the ones coming after us little folks. That we need not fear the biggest bullies on the playground does not mean we will not be bullied. But the bad news is that us little folks are the "low hanging fruit" of the cyber world. The discussion reminded me of the age-old bear joke. Two hikers find themselves facing a bear. One begins changing from boots to running shoes and the other says "you idiot, you cannot outrun that bear." The shoe-changer says "I don't have to, I just have to outrun you." Too funny. Chilling perhaps, but too funny. I don't have to make my house burglar proof, just more secure than my neighbor's?

Ransomware is the focus, however, and there are instances of it daily. The experts discuss the ones that make the news (see Hits Home, supra), but they think many others are never reported. They conjecture that there is embarrassment and potential reputation damage from having been suckered. Thus, there is a belief that many such events are quietly paid for and perhaps too soon forgotten. As a result, the experts think the price of our complacency is rising, as is the frequency of the attacks. Why do they keep attacking? Because it works, you work, and these miscreants want the fruit of you work (cash).

The sad news is that these people are not that imaginative or enterprising. In the end, we seem to be just that gullible, and we keep falling for the same scams. The miscreants redecorate them, reuse them, and we fall for them yet again. Remember the old saw "fool me once, shame on you, fool me twice . . . " You get the point. It is tragic that people continue to be fooled, but it is also up to each of us to become better at protecting ourselves. Fortunately, we can learn from the mistakes of others.

If you would like to get some free advice on this, there is a free video of a recent presentation at abotaftl.org (“Dealing with Emerging Threats to Clients, Lawyers and Firms,”). Anyone too smart to get better educated? Oh, and it satisfies the technology requirement for CLE purposes.

You may also want to peruse Attorney Emails Used in Phishing Attempts, or Hackers have a Devastating New Target. You don't really have to look for this news, it is daily and scary. Perhaps so persistent that we start to become numb to it, too eager to disregard it? The lyrics from Yes reminded us "It can happen to you, It can happen to me, It can happen to everyone eventually" (2002). This is too true, too real, and too scary.

If nothing else, join me for a day-long foray into cybersecurity at the 2021 Workers' Compensation Institute. I am hosting a day with experts that will illuminate your risk, suggest valid precautions, and prepare you for the future. We have recruited an incredible array of outstanding speakers with expertise, experience, and patience. I will strive to keep us focused on the impact of these threats to normal folks like you and me. And, you will be able to ask questions and interact. The time for your focus on digital safety is well nigh. You need to plan to join us on December 15, 2021, at the WCI (this breakout is included in your registration, critical to your future, and will be engaging).

Cannot get the song out of my head now, "It can happen to you, It can happen to me, It can happen to everyone eventually." Catchy tune, a scary theme.

The Rules, History, and Evolution

Anyone that regularly reads this blog has likely noticed references to the Florida Supreme Court's decision Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 494 (Fla. 2004). A history of practice rules in workers' compensation is detailed in Separation of Powers - An Interesting Analysis (February 2017). Notably, there is an error in that 2017 post; the conclusion that the first procedural rules came in 1973 is untrue, though much digging is necessary to prove it. That is for another day. It is fair to say that the first Supreme Court workers' compensation rules were in 1973.

An intriguing element of the Supreme Court's analysis in 2004 was its recognition that it had no authority to promulgate rules for this executive agency. The conclusion came 30 years after the court began providing those rules. Thirty years of complex history, laid bare by the court. Perhaps intriguing is not sufficient.

This is not the only interesting story of Florida rules, however. The legal practice today accepts without question the necessity and efficacy of the Rules of Civil Procedure. But, there was a time before those rules. In a published opinion Florida State Bar Ass'n for Promulgation of New Florida Rules Of Civil Procedure, 145 Fla. 223 (Fla. 1940) the Court addressed the lawyer's desire for such rules (this predated "The Bar," back when there was "a bar"). The petitioners included the "Florida State Bar Association," a voluntary group, and representatives with names like Dixie Beggs, and J. Turner Butler. A majority of five justices denied the petition.

The petitioners argued that the "court has inherent power to adopt the Florida Rules of Civil Procedure." The Chief Justice said the "inherent power" topic had been often discussed, and that there was general acceptance that courts had such power, as well as authority over admission to practice law and contempt. (The concurring and dissenting opinions delve more deeply into inherent authority). 

The court acknowledged that in Florida the rule responsibility was shared, and the legislature's authority was "supplemental to the power of the courts. It even cited specific statutory authority for the enactment of rules of process, "Section 4682, Compiled General Laws of 1927."

The court noted that it could not create a rule that would repeal a statute, but that the proposal being made for rules would effectively "amend, modify, or repeal more than 350 statutes." It expressed challenges in determining distinctions between substantive and procedural issues, that is what is appropriate for rules and what should be left to the legislature. It recognized that the law evolves, and noted that what was "substantive law today may become procedural law tomorrow, and vice versa."

The Court also focused upon the efficacy of court-made rules, and the trend evolving then, following the enabling and adoption of federal rules in 1938. The Court denied the petition concluding it had "no supervisory jurisdiction" over the courts, that the rules would affect many statutes, that the substantive/procedural conflicts would be "impossible," and that the Florida enabling act was faulty in its delegation of authority. That last one is interesting as the 2004 workers' compensation decision above dealt specifically with inappropriate delegation, separation of powers, and more. 

The 1940 opinion is engaging. Celebrating the modern era in 1940, the Chief justice expresses wonder noting it was "inconceivable" that litigants of that age could "transact business by the press of a button, the aid of a dictaphone, or the switch of a gadget." He celebrated the age of "high-powered cars," the evolution of air travel and other contemporary achievements. Those acquainted with that modern world, he suggested, might not be satisfied "to travel the highway to justice on the back of an ass, and if ultimately secured, record it at the point of a goose quill."

No, the modern age had come. The court "owe(d) it to society to hike the administration of justice off the ass." He lamented the reluctance for change and that "[t]he processes of democracy are often slow and tedious." Despite that admission that reluctance was steeped in fear, he explained that change for the sake of change was not appropriate. The Chief Justice concluded "[u]surpation is the arch foe of the democratic process," and the petition was "therefore denied." Like the outcome or not, the opinion is wonderfully written. (The majority was "Terrell, Whitfield, Brown, and Thomas;" Justices "Buford and Chapman" dissented).

Only 363 days later, Florida, the United States, and the world was arguably a different place. By December 7, 1941, perhaps everyone recognized priorities other than what was substantive or procedural? The debate was thus muted, but not extinguished. The lawyer petitioners returned to the court as the Second World War began to wane, and the Court published another opinion Petition of Fla. State Bar Ass'n for Adoption of Rules for Prac. & Proc., 155 Fla. 710, 21 So. 2d 605 (1945), shortly before V-E day.

The Court acknowledged further recent legislative action specifically 

"authoriz(ing) the Supreme Court of Florida to Prescribe Rules, Forms of Process, Writs, Pleadings, Motions and the Practice and Procedure in Actions Either at Law or in Equity."

Thus, to the extent rule-making was legislative, there was yet again the effort to delegate. The breadth and detail can be clearly seen as focused upon the Court's 1940 reticence. Encouraged by the new law, the bar association (still not "The Bar") petitioned again for the adoption of rules, "patterned after the Federal Rules of Civil Procedure." The Court conceded that the necessity for such rules was patent. It is interesting that none of the demonstrated reticence was ever about lack of need. 

The Court provides a detailed history of laws governing the practice of law in Florida, dating to the 19th century (Florida became a territory in 1822 and a state in 1845). Thus, on the state's centennial, the subject of separation of powers and inherent authority was at the fore as America emerged into the Baby Boom. The Court recounted its previous efforts at rulemaking "approached . . . in a pragmatic way," without troubling with "the niceties of such concepts as inherent power." The Court congratulated itself on its forbearance and "repeated() recogni(tion of) the power of the Legislature."

The Court engaged in a discussion of best practices as regards rules. Rules should establish a process "rigid enough to be workable and flexible enough to adjust itself." And, the "bench and bar" must jointly actuate it. That said, the Court concluded that contemporary procedure had "not kept step with the times." The time had come, it suggested, for sharpening of tools and attempting an alternative approach.

The Court, somewhat eschewing humility, noted its superior "facilities, the technical knowledge, and experience" equipping it "much better" for the challenge of rules "than the Legislature." There is pride, and some embrace of the "mom and apple pie" argument in the Court's conclusion that it could "make the administration of justice everything that the man of the street has been taught to expect of it." Essentially, this opinion concludes that "the responsibility is on someone to do this and the bar is the logical source."

That said, the Court concluded that substituting the Federal rules into Florida practice to be neither "wise (n)or expedient." It noted distinctions, that the federal system was "materially different from our State system." The distinction seems to have focused on the narrow scope of federal practice compared to the "variety of suits and statutory proceedings that arise in state practice." Unlike (purportedly) the United States, "Florida has a practice peculiar to a jurisprudence predicated on the common law and is supported by more than one hundred years of precedents." 

The denial of the 1945 petition was unanimous ("Chapman, C. J., And Terrell, Buford, Thomas, Adams, And Sebring., Concur. Brown, J., concurs in judgment" - those in red were involved in the 1940 decision: The majority was "Terrell, Whitfield, Brown, and Thomas; Justices "Buford and Chapman" dissented).

An intriguing story? Perhaps. It was a history fraught with recognitions. Many saw a flawed system. The Constitution seemed to convey authority. The Court acknowledged a perception of Legislative superiority. The Legislature seems to have been accommodating and deferential, delegating at will. And yet, as a new age dawned there were no adopted civil procedure rules. Every lawyer today knows the Florida Rules of Civil Procedure. Everyone in workers' compensation litigation uses them persistently, though the Court has not foist them here (the DOAH incorporated and adopted them).

And so, as the Grandson says in The Princess Bride: "Who gets Humperdinck?" Or, perhaps instead, "Then where did these rules come from?" Any lawyer could check the subsequent history of either of these Court decisions and find the subsequent published opinion in which the Civil Rules were adopted. Any lawyer could, but that would not yield the answer. No, the Court published two opinions declining to adopt rules. 

The Rules were adopted finally in 1954. However, no published opinion has been located. The state archives include a copy of an order dated March 15, 1954 and titled "1954 FLORIDA RULES OF CIVIL PROCEDURE ORDER," with a stated "effective date June 1, 1954." (unpublished opinion). This was seemingly unanimous, ("Roberts, C. J., Terrell ('40 and '45), Thomas ('45), Sebring ('45), Hobson, Mathews, and Drew"); See also, Winston Arnow & Clarence Brown,“Florida's 1954 Rules of Civil Procedure,” 7 U. Fla.L.Rev. 125, Vol 3., Number 2, (1954). It is intriguing to read the names of some of those involved in these heady debates and decisions. 

The path upon which we pause has thus been long and at times apparently arduous. The instigation of rules is but one waypoint worthy of study. The next was the transition of "a bar association" of legislatively licensed attorneys into The Florida Bar, an integrated bar under the authority of the same Supreme Court. Through the history of perceived needs and expertise, the Court did not leap eagerly into the business of procedural rules. However, the result has been notably positive on the practice of law generally. The way forward looks toward the centennial of those rules. 

As convinced as Chief Justice Terrell was of the modernity of the world in 1940, they had not conceived of the cellular phone, email, text messages, the Internet, and more. Though it is certain he lived in a world of wonder, so do we. And, as we look back at his wonder and aplomb, one wonders what the next 80 years will bring to shatter our perceptions of technological and academic superiority? 

It is intriguing, with the benefit of retrospect, that the Court jumped so willingly into workers' compensation rules in 1973, a mere 20 years after the Civil Rules. In perspective, a great deal has changed in the Florida practice of law in the last century, and perhaps we would all do well to pause periodically to consider that history and evolution. 

Medical Pot Evaluation in Florida

The Florida court rendered a June 30, 2021 Florida first District Court of Appeal rendered Jones v. Grace Healthcare, No. 1D19-1684. This is the first interpretation dealing with the complex topic of marijuana in Florida workers' compensation. With it, Florida is among the states that do not include pot in the universe of “medically necessary” care and treatment following a work injury. The decision is of interest in the general sense, but offers some legal reminders more pertinent to the lawyers. The court reminds of the Tipsy Coachman, the Supremacy Clause, and statutory construction.

This is a panel decision (3 judges), reviewing the judge of compensation claim's denial of a referral for evaluation regarding marijuana. There appears to be a great deal of public confusion regarding pot. The words "legal" and "legalized" have been tossed about in various media reports. More than one employee has found her/his world impacted by a mistaken belief that pot is legal in Florida. Repeatedly, I have striven to remind that pot is not legal in a single one of the United States. Unfortunately, a great many pundits insist on using that "legal" label and the public seems misled by that word.

Most recently, Decriminalizing Marijuana (May 2021) recounts the woes of two disappointed teachers whose pot habits led to employment issues. That post also recounts the Florida Supreme Court's interpretation of a proposed constitutional amendment regarding further decriminalization of pot in Florida, and centers in large part on the seemingly simple foundation of federal law. So Federal Law Matters in Colorado (June 2015) recounts the earliest bellwether on employment actions in Coates v. Dish Network.

In workers' compensation, courts across the country have reached generally consistent results regarding marijuana. See Federal Law Matters in Maine Also (June 2018). However, some states have ordered workers' compensation payers (employers or carriers) to reimburse injured workers for their pot. New Mexico reached that conclusion perhaps first, see What Will the Next 30 Years Teach Us? (January 2016)(of note, even I poorly use the phrase "legalize medical marijuana" in that post). It is a lazy reference and an unfortunate one. New Jersey was in the news very recently with its Supreme Court's order requiring reimbursement for medical pot in a workers' compensation case. Notably, that decision also addresses the Controlled Substances Act (CSA) that is discussed by the court in Jones. 

Interestingly, the Florida court in Jones was not confronted with a claim for marijuana per se, nor even for reimbursement. The injured worker there instead sought a “referral for Medical Marijuana.” Thus, there is a subtle distinction suggested. However, the court was not persuaded by the distinction. The court described the pertinent state and federal law on the subject of pot and concluded that

"a referral to a physician authorized to prescribe medical marijuana, including even just for an evaluation of whether the employee is a good candidate for marijuana treatment, could not—under any circumstances—be “medically necessary,”

This is a critical point. The court reminded that the employer/carrier's responsibility in Florida is to provide an injured worker "'remedial treatment, care, and attendance' that is 'medically necessary.'” The workers' compensation law provides benefits and burdens to both employers and employees. Medical care is a major component of workers' compensation, a benefit to employees, and burden to employers. See, section 440.13(2)(a), Fla. Stat. (2001). Thus, in any claim for medical care, the "medical necessity" may potentially play a prominent role as a factual dispute (experts may have differing opinions), but also as a legal dispute (are the opinions admissible, sufficient, etc.).

Whether care is "medically necessary" is therefore often the topic of medical opinions in worker's compensation. Miller Electric Co. v. Oursler, 113 So. 3d 1004 (Fla. 1st DCA 2013). It is common for trials to include records and testimony that express(es) conclusions regarding "medical necessity." In Jones, two physicians "concluded that the referral for a medical marijuana evaluation was medically necessary." There was no factual dispute, and thus, the factual setting was presented for the court to apply the law.

Critically, our laws are the result of our republican process. Through our elected representatives, the will of the people has seemingly been expressed, two-fold. First, Congress has made it illegal to possess or use marijuana, pursuant to federal law. Second, it has forbidden federal law enforcement from enforcing that law (Rohrabacher-Farr Amendment). Some will perhaps understand why a modicum of confusion persists. See, Decriminalizing Marijuana. Eric Idle once said "a lot has been said about politics; some of it complimentary, but most of it accurate."

The Jones court noted that the trial judge denied the claim for a marijuana evaluation, in part, upon "section 381.986(15)(f), Florida Statutes, which provides '[m]arijuana . . . is not reimbursable under chapter 440.'” The injured worker argued that this statute should not apply because he "was not seeking payment for medical marijuana," but only "an evaluation by a physician who could write a certification" to facilitate access to the illegal drug. The court explained that to be "medically necessary," care must meet criteria. It noted "that the only reason for the referral was to facilitate Jones’s effort to" obtain the illegal drug. The court concluded, "[t]hat fact proves fatal to Jones’s claim." The court held that the distinction between evaluation and payment for pot is "a false distinction," which it rejected. Would the outcome be different if the claim were for an evaluation regarding heroin, LSD, or quaaludes? In a word, no, each is an illegal drug (on Schedule I, with pot). 

The described care, the pot, “is not reimbursable under chapter 440.” § 381.986(15)(f), Fla. Stat. The court explained that 

"[t]his statutory proscription makes the treatment objective of the evaluation— acquisition of marijuana—indisputably not reimbursable." 

This is interesting, as it illustrates both statutory interpretation (plain meaning) and the oft-forgotten premise that not all of Florida workers' compensation is found in Chapter 440, Florida Statutes. In the end, because the ultimate goal of the evaluation is thus not medically necessary, "there can be no medical necessity in an evaluation tied to that treatment."

Beyond the state law prohibition on compensability for pot, the court noted that pot is illegal. It recites the Controlled Substances Act (“CSA”)(distinguished recently by the New Jersey court, see supra), and its classification of pot "a Schedule I substance" since 1970. Many struggle with this, but pot is illegal. It “has no currently accepted medical use in treatment in the United States.” Possession of pot "is a federal crime everywhere in the United States." The court reminded that Florida "permit(s) the purchase, possession, and use of marijuana for medical purposes," but that "federal law must prevail in circumstances such as this." The court returned to its obligation under the Supremacy Clause of the U.S. Constitution (Article VI.), noting "[w]e are bound by the United States Constitution to apply the CSA over a provision in the Florida Constitution to the contrary." One might conclude federal law matters in Florida.

Once again, the "Tipsy Coachman" is discussed by the court. Interestingly, the concept stems from a lengthy eighteenth-century poem Retaliation (As Lewis Grizzard used to say, "That trivia might win you some bets).  See The Role of the Tipsy Coachman (October 2017). In rendering its decision, the Georgia Supreme Court used the poem to explain its analysis in Lee v. Porter, 63 Ga. 345 (Ga. 1879). A century later, The Florida Supreme Court adopted the analysis in Carraway v. Armour & Co. 156 So. 2d 494 (Fla. 1963). This is a now venerated and foundational part of Florida law. 

And, the Court noted that in Jones its analysis was different than the trial judge's, but the paths led to the same conclusion. Stated differently, "[T]he ‘tipsy coachman’ doctrine[ ] allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’” Those who consider seeking appellate review are wise to remember the Coachman. Though a trial judge's conclusions might be deemed unconvincing, an appellate court may affirm the outcome anyway.

It is possible that Jones v. Grace Healthcare may not be the last word on pot in Florida workers' compensation. Appellate decisions are always applications of law to particular facts and circumstances, with the potential that different facts or arguments might yield a different analysis or outcome. And, there remains an outside potential that Congress might one day move beyond its current dichotomous "don't legalize but don't enforce" confusion. However, today, in this small corner of the world, "medical" pot is not compensable in Worker’s Compensation, and neither are evaluations for the purpose of obtaining this illegal drug.

Drones, Surveillance, and Security

The legislative session in 2021 presented a multitude of interesting bills. Many will become law on July 1, 2021. One addresses our privacy and security, our property rights, and perhaps more. CS/CS/SB 44 is interesting. That designation means "committee substitute" for "committee substitute" for Senate Bill 44. There were multiple revisions, and this designation helps remind us that this bill evolved notably along its path from filing (12.28.20) to passage (04.28.21).

The title is "[a]n act relating to the use of drones by government agencies." The tin foil hat crowd might jump to the Skynet I-told-you-sos (The Terminator, 1984). No, at least not yet. The law, section 934.50, Florida Statutes, prohibits the use of drones by law enforcement to gather "evidence or other information." SB 44 amends that with "except as provided in subsection (4)." It will now be legal for law enforcement to use drones to:

provide a law enforcement agency with an aerial perspective of a crowd of 50 people or more (as long as the police agency has guidelines for the use, date retention/release, and for the safety of the crowd).

assist a law enforcement agency with traffic management (but, the police may not issue a ticket based on drone images/data).

facilitate a law enforcement agency’s collection of evidence at a crime scene or traffic crash scene.

assess() damage due to a flood, a wildfire, or any other natural disaster that is the subject of a state of emergency

There are also permissible uses for fire departments.

I long ago published Assume Everyone is Watching (September 2015) regarding cameras. More recently, I returned to conflicting rights and powers in Surveillance, Conflicting Rights, and Balance (May 2021). The common thread of these is that cameras are ubiquitous. As the Boys might put it, "I tell you (surveillance is) mighty wild, It's getting bigger every day," from Alabama to the ocean so blue. Cameras are everywhere, and now on drones. To be fair, these drones/cameras have existed for years, but now the state will be openly using them. This has the potential to make private property less private. Certainly, helicopters did that decades ago, but these drones are far cheaper to acquire and operate; therefore, the implications may be far broader. 

The foregoing statute portions are interesting. But, the new law continues. There is a short window, "by January 1, 2022" for the Department of Management Services (DMS) to "publish . . . a list of approved manufacturers whose drones may be purchased or otherwise acquired and used by a governmental agency." That phrase may surprise some folks. Is it not fair to conclude that a camera, is a camera, is a camera? Once the list is published, "a governmental agency may only purchase or otherwise acquire a drone from an approved manufacturer" on that list. Furthermore, by "July 1, 2022, a governmental agency that uses any drone not produced by an approved manufacturer shall submit to the department a comprehensive plan for discontinuing" its use by January 1, 2023.

Some drones will be deemed acceptable, and others not. This law will rapidly define that and constrain which government operates. This leads back to the question is a camera, is a camera, is a camera? Why would anyone possibly care who manufactures the drone? Why is there government interest in this? The bill also requires, by January 1, 2023, that the DMS will establish a rule that will govern "minimum security requirements for governmental agency drone use to protect the confidentiality, integrity, and availability of data collected, transmitted, or stored by a drone." So, perhaps it is not the camera, but the extent of security that protects it?

In that, there is some recognition that cybersecurity is a persistent and pernicious concern. This blog has repeatedly returned to the topic of cybersecurity, and I am proudly hosting a discussion of it at the WCI in December. See Cybersecurity Hits Home (May 2021) and Cybersecurity, WCI 2021, the Pillory, and More (May 2021). In the simplest terms, a drone is merely a computer with the capability of flight; their size, mobility, and ubiquity may be of concern. The implications of small and light cameras are numerous, see Artificial Intelligence Surveillance (August 2020).

So what? So drones are computers. So computers store data. Old news? This blog previously noted an innovative method of acquiring data. Rather than working hard to infect your computer after you buy it, might someone strive to co-opt a device before you buy it, in the design or manufacture stage? See Hardwired Hacking (November 2018).

The Associated Press recently reported that the federal government has grounded some of its drones. Furthermore, a bill is making its way through Congress regarding drones. It is possible these particular drones will never fly again. The bill would "impose a five-year ban on U.S. government purchases of drones manufactured or assembled in China." AP concludes that the bill "reflects bipartisan concerns that devices made by companies such as DJI, which is based in Shenzhen, China, could facilitate Chinese spying on critical infrastructure."

Stop the presses! (I always wanted to say that).

Could it be that the same inappropriate hardwired hacking reported with other computer equipment could potentially be similarly employed with flying computer cameras? The Pentagon has recently issued a report noting that its investigation on concerns "found 'no malicious code or intent' in drone software made by DJI and used by the Interior Department." A critical word there may be "intent." Even if there is no design for content misappropriation, could it be that even the most innocent hardware could be hacked by the miscreant community that hacks people's data?

The AP article notes previous concerns of untoward harvesting of data from these drones due to "many unfixed software concerns." There is also a reference to a 2017 "document from U.S. customs authorities" that alleged "the drones likely provided China with access to critical infrastructure and law enforcement data." So, there is a suggestion that drones might misappropriate data, or at least be ineffective at protecting data. There is also some suggestion in the AP article that these efforts are just a matter of forestalling purchases while the U.S. drone manufacturers catch up in order to compete with the Chinese manufacturers.

The AP suggests that the federal bill might wreak havoc on state law enforcement. It notes that federal funds are used by those agencies, and their purchase of Chinese drones might be impacted or foreclosed by the new law. Of course, in Florida, that will soon depend in some part on which manufacturers are listed by DMS for approved use. And, there are some allegations of Chinese-made drones being donated to the government, which would obviate the constraint of federal money. Where the federal effort might frustrate purchase, the new Florida law appears to prevent use of even a gift drone.

The point of all of this is that we are all under surveillance. Often perhaps by happenstance (a security camera just happened to catch a building collapse recently). Not out of suspicion that something will happen (a building would collapse), but merely for the mundane of securing a parking area, providing a surf update, or any of a dozen other pedestrian purposes. There are just that many cameras out there pointed in that many directions. How secure their signals are is open for discussion. That they are on drones is already known and accepted. And now, their use by the government in Florida will likely increase. Therefore, it seems an appropriate time to consider the potential security risks that they may pose. 

In a challenging time of evolving technology, distrust, and sometimes abject paranoia, drones are coming soon to a situation near you. Or, perhaps, they have been here already and we are just learning of their challenges? In any event, SB 44 illustrates yet again that our world is changing, technology is advancing, and we may each struggle to keep up.

Near Unanimity, Untethered

Not a great deal occurs in the U.S. Supreme Court that has workers' compensation implications. But occasionally a case is worth noting. No, this is not a post about the potential that someday college athletes could be deemed employees, though there has been significant hyperbole on that recently in light of the unrelated decision in NCAA v. Alston, No. 20-512 (June 21, 2021). That is a case about the Sherman Anti-trust Act, and while it is interesting, it does not say that student athletes are employees.

This blog has often referenced the inherent respect and deference that our common law system is supposed to demonstrate for prior court decisions. We call it stare decisis and it lies at the very core of our common law system. I have been hard on courts that ignore it, some would say too hard. No one, it seems, is very good at taking honest criticism at face value. For examples see Stare Decisis, Death Penalty, and Workers' Comp (January 2020), and the posts linked therein. For those I may have offended with my critique and analysis, I offer sincere apologies. 

That said, the U.S. Supreme Court rendered another opinion recently, in near unanimity. Mahanoy Area School District v. B. L., a Minor, by and through her father, Lawrence Levy, and her mother, Betty Lou Levy. As a side note, the courts use initials for minors. This protects the individual's anonymity. However, with some careful sleuthing, there is some potential that "B.L." may actually be named "Levy," and may in fact reside with Lawrence and Betty Lou Levy. It may seem a bit ironic to "protect" the minor with initials and then publicly identify the parents by full name. 

That near unanimity is noteworthy in a "weary world." While it is encouraging to see the near unanimity, it is the dissenting voice, the lone voice, that resonates in this instance. It is a critical voice, borne of logic and principle. The message is both clarion and informative, while also critical. The situation in this litigation starts with a teenager, disappointed with a decision denying membership on the varsity team. Disappointed and troubled, the teen voiced emotion on social media in 2017, as teens sometimes do. The majority notes that the teen "did not accept the coach’s decision with good grace."

In the student's haste and emotion, perhaps a few too many "f-bombs" were used, as well as a photo of a (likely) familiar hand gesture, to the consternation of some and the condemnation of others. One observer took a "screenshot" of the media post and brought it to the attention of the team coach. The student was "suspended for a year," not from school but from the team. This, according to the dissent "may strike some as disproportionate." Imagine you had been afforded a one-year sentence for each time you dropped such a bomb in high school; how long might your sentence have been? I fear I would still be serving my sentence. Of course, we had the benefit of not carrying computers in our pockets and of lacking 24/7 access to transmitting our every inane thought. 

The real issue in the case is not about f-bombs, good grace, consternation, or proportion. It is not about teenage angst and disappointment (I knew a kid in high school who was never disappointed, but only once; "and his hair was perfect," Warren Zevon, 1988). The critical analysis, according to the dissent, is whether this decision is in keeping with our common law system.

Justice Thomas explained perceptions of flaws in the majority conclusions regarding Brandi Levy (as identified in the press, but not the decision, i.e. "B.L.," see supra). The justice identifies three of four critical points worthy of discussion.

First is the concept of "in loco parentis." When students are at school, its authorities are standing in place of parents. Therefore, a variety of precedent has held schools have been able to "discipline disrespectful speech," and otherwise regulate behavior. The dissent cites decisions dating to the adoption of the Fourteenth Amendment (Civil War). It is noteworthy to remember that it is the Fourteenth through which the protections of the Bill of Rights (thus the First Amendment, free speech, etc.) have been held to constrain the states and not merely the federal government. Thus, the law in the time of its adoption is suggested to be of interest.

The dissent notes that precedent has cited the “good order and discipline of the school,” and "the best interest of the pupils." The law has supported discipline of students for both on and off-campus behavior. The off-campus justification has been based upon the conclusion that it "reach(es) within the schoolroom during school hours and are detrimental." Thus, though the school is not "in loco parentis" when the students are away, it nonetheless has been allowed to regulate some student behavior. Thus, schools have been affirmed in regulating off-campus speech that "has a proximate tendency to harm the school, its faculty or students, or its programs."

The dissent closes this discussion with "if there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it." Thus, not a condemnation of the decision, but a suggestion that when a court departs from precedent it (1) acknowledges that precedent, and (2) explains the reason for reaching a different decision in the present instance. That suggestion has merit in every legal process, including workers' compensation. The dissent even suggests some sound reasons for departing from precedent in this instance, but laments the majority does not identify such reason or provide its explanation.

Second, the new test for such speech. Rather than a test per se, the dissent characterizes the decision as "a few pragmatic guideposts." In the absence of concrete parameters, without explanation of the departure from prior decisions, the dissent concludes that the adjudication of "student-speech cases" is now "untethered from any textual or historical foundation." In other words, what standards should a trial court employ in deciding future cases of this nature? The challenge of the law is persistently that the "next" case will include some factual distinction from the present case. It is helpful to therefore have standards and tests discerned by the appellate court for the guidance of both litigants and trial courts.

From a background of nearly unlimited authority of "schools to set rules and control their classrooms," to the present decision, the dissent laments its foreseen challenges for future decisions. The majority is said to provide no test or parameters for future decisions. This is reminiscent of the oft-cited platitude provided by Justice Potter Stewart in Jacobellis v. Ohio, 378 U.S. 184 (1964) regarding pornography: "I know it when I see it." The flaw with such a conclusion is that every allegation of pornography must be then screened by Justice Stewart; the standard afforded to trial courts is essentially "what would Justice Stewart think?" Such a standard does not empower trial courts to make informed legal holdings. Thus, the "untethered" criticism is of broad import.

The dissent says that the majority decision "states just one rule: Schools can regulate speech less often when that speech occurs off campus." the remainder of potentials and distinctions, it notes, are left "for future cases.” In effect, it argues, a "new common-law doctrine" is established, subject to the best efforts of other courts to interpret and refine in years to come. The dissent warns that both "courts (and schools)" will struggle, "almost certainly . . . at a loss as to what exactly the Court’s opinion today means." Is it the content of speech that matters, the location, the impact, the potential?

As a side noted, other cases have set parameters or "tests. As regards the efficacy of this opinion, and its usefulness to guide future decisions, some may see a parallel in Lemon v. Kurtzman, 403 U.S. 602 (1971) and the so-called "lemon test." This is not cited by the dissent but may be relevant for consideration. Many critics assert this test is aptly named in that its attempt to bring order to the issues of separation of religion and government did little to forestall litigation or challenge. The decades following its rendition are littered with good faith, yet failed, attempts to implement and apply that test. That attempt at purportedly more of a test, though perhaps well-intentioned, was roundly ineffective.

In the third element of criticism, the dissent is more blunt as regards the majority's reasoning. It notes the majority conclusion "that it 'ha[d] been the unmistakable holding of this Court for almost 50 years' that students have free-speech rights inside schools." However, the dissent notes that the authorities cited in support of this conclusion in fact "do not support it.” There is fault found with prior decisions and criticism of the extent to which the Court previously "explain(ed) itself" in reaching decisions. In criticizing that precedent, there may be a hint of suggestion that Levy may one day be subjected to such criticism. It is also critical that courts are straightforward in both citation of and reliance upon authority. The dissent's suggestion of inaccuracy would be troubling in any discussion of stare decisis, even in workers' compensation. 

Finally, arguably a fourth point, the dissent also suggests that the world is evolving and different. It notes that the communication in this instance was "through social media." Technology facilitates such off-campus speech reaching easily and rapidly into the school environment. This, the dissent urges, may present a greater propensity for potential disruption and harm. The dissent warns that "speech travels" and there will be instances in which "speech is generated off campus but received on campus." There is criticism of the majority for not addressing that potential. Justice Thomas seems convinced that other teenagers might similarly engage in the use of social media and laments that the decision does not provide context for those future potential (probable?) instances.

There is the suggestion that the considerations of regulation and discipline might be different "where it is foreseeable and likely that speech will travel onto campus." Though the dissent cites analog examples, such as a student bringing to school a sketch created elsewhere, the digital implications of speed, ease, and pervading potentials are perhaps seen as worthy of consideration and discussion. The dissent laments the majority not providing guidance in this regard. 

In the end, a teen and a coach perhaps overreacted ("let's not make a federal case out of it," too late). Speech was stifled by a school (what if the social media platform had stifled it?). The law provides various prior decisions, precedents, to steer the current dispute, but the Court reaches the outcome without significant discussion of that precedent; in doing so, the law is purportedly changed, but without the analysis depth to facilitate understanding of those who are governed. 

The challenges of the trial judge and the governed are highlighted. When the appellate court brings the conclusion without explaining the logic, it leaves us to the "next case." Schools, students, parents, lawyers, and more will struggle with what is appropriate, in both action and extent. They will struggle with the on and off-campus characterization and its social media borders. Litigation will ensue, and judges will struggle. There is no "Stewart" app to check whether the speech is or is not offensive, inciting, or worse. The dissent is intriguing and worthy of a read. Justice Thomas is hard on the Court's decision. 

Whether one is inclined to agree or not with his criticisms, one phrase is hard to criticize. He notes that "if there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it." When courts change our course, when precedent is not followed, it is incumbent to acknowledge that and to explain why. It is also difficult to disregard his "untethered" conclusion. We learn, usually, from our past. We may also learn from the mistakes of others. By studying history, we are better prepared for the present. That is, essentially, the value of precedent - the study of the past. 

Agree or disagree substantively with the dissent, or the near unanimity for that matter. But how the decisions of courts are structured, their discussion of the past, their map and guidance for the future, and their value are always worthy of discussion. That may upset some. But, the real value in the First Amendment is that the minority voices, the dissents, are still voiced. There is "equal time," unless it is stifled by the platform selected, which censorship is a topic for another day. 

Work Hours are Deadly?

Bad news for those of us putting in those long hours? The British Broadcasting Corporation (BBC) recently reported that "Long working hours (are) killing 745,000 people a year, study finds." That is a fair number, but that conclusion must be tempered with the caveat that it is a worldwide figure. There are 7.8 billion people on this planet, so that is not even close to one percent of the population; in fact, it is about one one-hundredth of one percent. There are those who see population growth alone as a threat to health and welfare, but that is for another day. 

The BBC article cites a World Health Organization report, which may cause some to pause. The WHO response to the pandemic has not been overwhelmingly positive. Some have been critical of the varying mask advice, others of the bureaucracy. The organization is said to be currently considering a color-coded pandemic threat scale, which may be as useful as the National Terrorism Advisory System. Ask yourself if you know how your behavior is supposed to change when the terrorist advisory color changes. What would a color-coded pandemic scale add to our knowledge? Would its implementation or deployment be more seamless than other WHO performances the last 18 months?

This WHO global study is focused on 2016 and the headline is somewhat misleading. Those 745,000 people actually died "from stroke and heart disease" which is being attributed to "long hours" at work. That can be a problem with academic research, and with news headlines that oversimplify conclusions (purposefully or as a result of brevity). There is no cause and effect per se here, but an association of work hours and the frequency of stroke and heart disease. Essentially, they gathered self-reported work-hour information from patients who suffered those events and drew correlative conclusions. 

Essentially, stroke and heart attack victims tend to work longer hours. That could be a cause and effect or could be an interesting correlation instead. This may be a faulty cause and effect fallacy, post hoc, ergo propter hoc. If it is not, one might expect that the article would provide greater insight as to the actual causation. Stated otherwise, were similar people (age, gender, socio-economics) who did not suffer stroke and heart attack surveyed regarding work hours? 

If it turned out that a similar percentage of that whole population segment (age, gender, socio-economics) worked long hours without the particular medical complaint, you might doubt the cause and effect, or perhaps at least question what else might contribute to the heart attack and stroke risk. Is it possible that people who work long hours are less likely to have time for exercise? Do people working long hours tend to eat less healthy (fast) food? Is it likely that people working long hours may have other socio-economic similarities worthy of study and consideration?

The BBC reports those who worked "55 hours or more a week" presented a "35% higher risk of stroke and a 17% higher risk of dying from heart disease" than those who worked "5 to 40 hours." But, that work hour distinction was the solitary study focus. Most of those who passed away were men, and there was predominance in the geography of Asia and the Pacific Rim. Thus, the headline might read "Long work hours fatal for men" or some other similar oversimplification. 

Fortunately, the report concludes, only about 9% of the population works these "long hours." There was concern because of perceptions that the pandemic resulted in many working more hours rather than less. The advent of telecommuting alone is said to have resulted in an increase as people took that two hours per day of commuting time and devoted it to productive work. Some believe the eight-hour workday evolved to ten as a natural consequence for some workers. Others note that some employment became sporadic in the pandemic, leading some to undertake second jobs. 

Notably, there are also those who appear disinclined to return to work. Small businesses report struggles in finding employees. I recently called to order a pizza at a small-town, local favorite while traveling. The phone went unanswered and I presumed it had closed. The next night, I found it open. When I inquired, the manager described closing on Mondays as a consequence of the inability to hire workers. This is certainly anecdotal. But, as I meander through life here in paradise, it seems every business has a "help wanted" sign out. So, whether the increased work hours are or are not a defacto result of the pandemic may be worthy of discussion and debate. 

The BBC continues, characterizing the report as concluding that working long hours are "estimated to be responsible for about a third of all work-related disease." It claims the impacts of work are twofold. First, longer hours create physiological stress on the body. However, more intriguing, the authors conclude that longer work hours contribute to "health-harming behaviors such as tobacco and alcohol use, less sleep and exercise, and an unhealthy diet." Why not ask those surveyed "Do you smoke," or "Do you exercise?"

Thus, in the end, the conclusions of work hours being unhealthy are actually conclusions about personal choices. The physiological stress on the body is one thing. That is worthy of consideration and study. Is work causing that stress? And, taking a page from our workers' compensation constructs, is that work stress any greater than those people experience in their non-occupational environment? This is a tighter examination of causation than this particular study finds worthy. 

But more importantly, this final conclusion leads us back to the probability that its conclusions are fallacy. Longer work hours somehow contribute to tobacco and alcohol use? The more one works, the more likely one is to smoke? There is no scientific support cited for any cause and effect there. These are, at least until proven otherwise, not cause and effect. They are concurrent findings. It may be that smoking and alcohol use are more prevalent in the socioeconomic groups that work long hours. Coincidence is not causation. That long hours are similarly associated with poor diet, without more, may also be a coincidence without correlation. It is unfortunate that the news would conclude causation without more.

Certainly, there is easier acceptance of the "less sleep and exercise." These are two things that require time. If one is engaged in long hours of work, in a world of finite minutes, there are fewer minutes each day for sleep and exercise. That is a logical conclusion. However, I know many people who work very long hours and yet still find ample time to both sleep and exercise. Therefore, we return to the assumption that coincidental findings equal causation. 

In the end, the article and study may cause us to ask questions. In a very superficial sense, perhaps it reminds us of what is important. Eating right, avoiding alcohol and tobacco, and getting rest are important to health. Finding time in the daily routine for each is critical to avoiding health concerns. Beyond this, whether longer work hours cause our less healthy decisions in those regards remains questionable. And, in the end, the reporting on this WHO study leaves me with more questions about their science than answers. 

Coincidence does not equal causation. Inferences are not necessarily proof, and when we stack inferences upon inferences the strength of our conclusions may be questioned, as the court explained in Inmon v. Convergence Employee Leasing in 2018. We have to watch those headlines, ask some questions, and keep asking those who preach consensus to instead show us the science. That is, simply, what science demonstrates that work is killing almost a million people each year? Not what science demonstrates that work hours cause smoking. Our skepticism should be piqued. Show me the science! Can we rationally expect better of science or journalism?

Felony Embezzlement?

"These kids today" will not comprehend the business model. I have gotten old enough to use phrases like "these kids today," and "I remember when." Anyway, the subject of this post is called a "VHS Tape" (1977). See, "back in the day," when you wanted to watch a movie, it was as simple as driving to the "video store," there was no such thing as "streaming" unless you considered watching one of the few (in most towns less than 5) "broadcast" stations that your television set could pick up (you streamed what they chose). At your alternative, you would join these stores, and carry a membership card. The rentals were for a fixed number of days (someone else could not watch the movie until you brought it back).

It was a great paradigm, of which we were very proud. We frankly could not believe the convenience. And, there were video stores everywhere. The biggest chain was called Blockbuster (started in 1985), and at one time it had 9,000 store locations, "employed 84,000 people," had "65 million registered customers," and was valued at over $3 billion.

We watched as these stores evolved from VHS tapes to DVDs (Digital Video Discs). They were smaller and you did not have to "rewind" the movie (with VHS, the tape physically moved from one reel to another as you watched; to watch it again you had to "rewind" it). Blockbuster and other stores also charged you a dollar if you did not rewind the tape. Sometimes they would then rewind it themselves, but other times they just took the dollar (profit) and left that rewinding for the next customer. Despite evolving into those DVDs, Business Insider notes that Blockbuster then went bankrupt due to competition from others such as Netflix (which used to use something called the U.S. Mail to deliver and pick up those DVDs).

The big difference between Netflix and Blockbuster was therefore convenience. But, as I recall, another big difference was the dreaded "late fee." Netflix did not mail the old VHS tapes, so no rewind fees. But if you rented a movie from Blockbuster, it had a return time. If you missed it even by minutes, they put another few bucks for a late fee on the credit card you had given to them when you signed up. Business Insider says that in the late 1990s "Blockbuster earned $800 million in late fees alone." Some of us codgers might even admit that we switched to Netflix primarily to avoid those late fees. It was harder than you think to remember to return those movies.

The news in 2021 reported an Oklahoma Woman Charged with Felony. She had reportedly lived with a man 20 years ago (2001), and the man had daughters. It appears that she, the man, or the daughters rented Sabrina the Teenage Witch from a video store and it was never returned (or at least checked in as returned, anyone might make a mistake). The store filed charges with the local officials and then proceeded to go out of business like all the other video stores. Well, most; you can still visit the last Blockbuster in Bend, Oregon (and even purchase a "Be Kind, Rewind" t-shirt, yes that is a real thing).

Fast forward to 2021 and she was trying to renew her driver's license when she found there is a problem. The old criminal charge remained pending. She says that "over the last 20 years, she's been let go from several jobs without being given a reason why." She now believes it stems from the fact that a criminal background check would alert any employer to the pending "felony embezzlement" charges. She finds herself trying to correct charges filed by a now out-of-business store. Fortunately for her, the prosecutor's office agreed to drop the charges.

There are multiple lessons here. First, you have to be careful about letting anyone use your accounts. That may seem easy to remember with your credit card, but perhaps you would tend toward leniency if someone wanted to use your membership to rent a $3-$4.00 movie? The lesson for the business might be to get that credit card number in advance? My late fees at Blockbuster were always just charged to my card. If I had simply not returned a tape, I suspect they would have charged me for that also (you broke/lost it, you bought it?).

One's first reaction might be "Felony?" Over a video not returned? According to 21 OK Stat § 21-1451 (2014), a felony would require the value of what was taken to be over $500.00. It may be difficult to comprehend that value. In fact, movies in that era may have cost up to or more than $100.00. This is supported by the recollections of others. But how does that $100 make for a felony? One path may be that the store did not report the loss to the police until those "late fees" accrued for some time. A $1.00 per day late fee could accumulate quite an aggregate over a year or two. The second point is that responsibilities can create problems; if they are ignored it may become worse.

Third, the victim (video store) does not have to persist in order for a prosecution to occur. Criminal charges can linger for a very long time. Years ago a student approached me regarding threats from a retailer to whom the student had written a bad check. I struggled to convince the student to take cash to that store and buy that check back. The student was convinced that one bad check would not impact or harm her/his future. I explained that such "truth crimes" are a question on virtually every job application you will ever complete. Eventually, the student relented, but I will never know for sure if s/he bought that check back.

Fourth, you don't know when something like this will crop up. I similarly knew someone who was engaging in a transaction and ran a simple computer background. S/he was surprised to find a delinquent tax bill that was from more than 20 years earlier and which had never appeared on any report over that time. S/he was able to prove it had been satisfied (do you have your paper records from 20 years ago?). But, in doing so, s/he learned that the county's records had long misidentified that account as delinquent. What had at that point only very recently changed was the county had accomplished transferring such information to the Internet. Thus, the digital delay had resurfaced long-forgotten and untrue information to her/his chagrin.

Fifth, people are keeping information about you. That does not mean they are necessarily telling you. Do you know what your credit score is? Better, do you know why your credit score is what it is? Who has reported what and when? Has it been reported accurately or not? There are free methods for checking your credit report.

Additionally, for $24, you can check your own criminal history (Florida only) on the Florida Department of Law Enforcement website. Should everyone do this periodically? Likely not. But, if you are being mysteriously let go from jobs, finding you cannot qualify for credit to make some purchase, etc., perhaps it would be good to do some research? Sure, you never did anything (this lady says she did not even rent this movie), but some clerical mistake may be mysteriously haunting you. It is always possible that details will not appear on such a check, as illustrated by the tax anecdote above, but these are a good place to start.

Finally, records can be wrong. This can occur through human error in creating them, or in digitizing them. Mistakes, yours or those of others, can follow you for years. Thus, the workers' compensation community might be careful in reliance upon digital records and perhaps more careful of old information. There are anecdotal examples of misidentified "prior injuries" and similar records being attributed to the wrong person.

In the end, paradigms will change, and information management will evolve. Those who create it or maintain it may go out of business and thus perhaps increase our challenges with correcting the data. With no store to explain, we are left with conjecture as to the felony perspective. Others will rely on this data. These issues might challenge any of us, and deserve some attention. And, "buckle up," you may too soon find yourself uttering phrases like "these kids today" or even "get off my lawn." This getting old is, well, getting old.

                    

Presenteeism and the Coming Divide

I have been hearing a lot lately about "return to work." It was confusing at first to hear various workers' compensation community members discussing this. My first reaction, long ingrained by this workers' compensation world in which we live, was it must be a reference to the end of work restrictions following an injury. I was way off. These folks have been away from their offices, telecommuting, and are now returning to the office. 

Over the course of the last 15 months or so, I have heard anecdotal stories of offices closing due to SARS-CoV-2 fears (You cannot be infected with COVID, it is a result not a cause). Admittedly, the Florida OJCC has had to shutter an office here or there for deep cleaning a few (less than 5) times; those have been for a day or perhaps 2. We have had some employees who needed to telecommute temporarily, but that population was never anywhere close to a majority of our team. In short, the Florida team weathered the pandemic fabulously; mediations proceeded, trials were held, and orders were issued. I cannot express how proud I am of these outstanding professionals.

But now, the news is littered with advice for the workplace "reopening." Organizations are touting plans. Lawyers are posting advice. The Centers for Disease Control is providing guidance about environments and advice for the unvaccinated.

But some will not return. CNBC reports that "working from home is here to stay." There is news of companies "Switching to Long-Term Remote Work." and predictions of "accelerating the trend toward telecommuting."

A recent WorkersCompensation.com story highlighted the prevalence and challenges of telecommuting. It notes at the outset that many leaped to telecommuting with little or no warning. Thus, some concerns might be addressed with preparation. However, it noted that a small sample (194) study found that telecommuters were complaining of pain, perhaps largely "due to ergonomic deficiencies" and weight gain. 

The ergonomics are somewhat predictable. It is rare for us to have professional-grade desk, chair, monitor arrangements in our homes. Despite that, the study concluded that those who telecommuted "reported a significant increase" in their work hours and "outputted better quality of work." The authors suggest that employers planning to use this paradigm in the future either invest in, "or contribute to" the kind of ergonomic arrangements that would be common in an office environment. 

The weight gain is troubling, but the causes are perhaps not hard to define. The survey respondents largely reported that they ate better (homemade not carry-out), but also admitted consuming "more junk food." The study isolated inactivity and other factors including a reference to technology reliance and sedentary work.

And, there are other detriments to telecommuting interwoven with some troublesome aspects of office presence. The British Broadcasting Corporation (BBC) recently featured "Why presenteeism wins out over productivity." That word means "being physically in your seat at work just to look dedicated, no matter how unproductive." Businesses thrived on it before the pandemic, and despite the shift of many to telecommuting, the issue persisted. The BBC notes that "presenteeism has simply gone digital."

See, in presenteeism, we are striving to look dedicated. That means first to the office and last out; being at our desk even if the work is done. Our presence virtue-signaling our dedication and necessity. I had a judge tell me years ago, upon my initial appointment, that I needed to be in the office; "being there is that important." So, a great many people were displaying their dedication that way before the pandemic. In the midst of it, reportedly, many worked harder at home (more productive) than they had in the office. And, they worked longer hours than ever. The BBC acknowledges that we may in fact be "be slaves to presenteeism forever," whether in the office or beyond.

They note that the pandemic did not legitimize telecommuting in the eyes of some. They noted that a 2019 study concluded that "telecommuting has generally been stigmatized as irresponsible, and those engaged in it suffered detriment in salary growth." Those who come to the office are seen, are able to "ingratiate themselves," and may enjoy advantage(s) as a result. The authors mention psychological concepts relative to how we perceive each other, and presence may influence that. It warns that "Many bosses only see the most visible people."

The article acknowledges that we may be no more productive in the office than at home. It notes workers recognize the presenteeism trap, however, and even telecommuters will come to the office. In some part, this will be due to our coworkers making that trip, and our desire to fit in with coworkers and enjoy benefits when possible. The authors quote one academic suggesting that managers must get over this "presence equals performance" bias. To do so, they must personally "model healthier behavior." Thus, when the work is done, the manager should leave the office. This signals to others that such a practice is accepted. Those managers should look to measures of "raw performance," and whether deadlines, commitments, and goals are being met. In short, the output and accomplishment must come to outweigh the simple presence. 

So, as you "return to work," and join those of us that never left, perhaps you will want to find ways to stress your effectiveness. Perhaps there is value in being in the office, but maybe we all need to find value beyond presenteeism and this apparent conclusion that being physically there is half the battle?

Your Light Switch Could be Spying

This week Jon Gelman published "Cybersecurity Must be a Shared Responsibility." We live with the daily threat of phishing, worms, Trojans and worse. We are a threatened society, struggling to accept and appreciate the extent to which miscreants and malcontents will go to trouble us. The recent pipeline hacking was discussed in "Cybersecurity Hits Home" (May 2021) and "Your Cyber-Health is Your Job" (June 2021). That is a recognition that you play a role in your defense, which sentiment is echoed in Mr. Gelman's piece.

We have heard for years that criminals will go to great lengths to steal. In 2018, I noted in "Hardwired Hacking" the imagination that can go into misdirecting information or outright theft. Mr. Gelman describes how the federal government faces moral dilemmas regarding hacking and network security. He describes "zero-day" software and its role in anti-hacking strategies. The term refers to the fallibility of technology. According to TrendMicro, all software is flawed. There are weaknesses and vulnerabilities periodically discovered.

When a problem is discovered, the software producers begin programming to "patch" the software and either eliminate or ameliorate the risk of that flaw. Unfortunately, communication is extremely rapid in our world. Imagine that you discovered a window lock in your home that will not function. You know you need to have it replaced, and until that "patch" is applied your premises are vulnerable. But then imagine that it is possible for every malefactor, villain, and evil-doer to rapidly be informed that your window does not lock. You have a problem, and they are coming to exploit it.

This is an oversimplification of course. However, the challenge with software is that while you are fixing that window lock, the villains are busy striving to find some other weakness in your structure. They may even depend upon your good nature and see if they can trick you into inviting them in. Picture some kind person ringing your doorbell and offering any number of sympathetic pleas or helpful assistance with your problem(s). You might just invite them into your house, the same way you could be tricked into clicking some link in an email, inserting a "found" flash drive into your computer, or allowing someone to wander back into the office with your group following a break.

They call these "zero-day" threats because once the miscreants know that your window lock is not functional you literally have zero days to get that fixed. As long as no one knows of such a problem, you might play the odds. Seriously, of all the houses in your neighborhood, and all the windows, what are the odds that some miscreant will manage to happen upon yours? But once the word is on the street of that particular window being vulnerable, in the words of "Field of Dreams" (1989), "they will come." Oh, "people will come Ray. They'll come to Iowa for reasons they can't even fathom."

Mr. Gelman brings this home. He notes that we are obsessed with technology. And the very hardware that we are bringing into our homes (remember the old Trojan horse?) What if the miscreants and malcontents could avoid having to break into your home by convincing you to bring the Trojan horse in yourself? This is apparently now being recognized as a real threat. Similar to the "Hardwire Hacking" threat with commercial servers, Mr. Gelman cites "the $5 automated lamp switch that may have software embedded in its chip that routes personal and confidential to ill-doers."

You brought that lamp switch into your home. You brought that "smart" device: digital thermostat, front door camera, digital eavesdropper (anything that can listen to your commands can listen to anything), and more into your home. You brought in that Trojan horse for what you perceived as value and in the process you simultaneously admitted whatever else it contains. And, long after you have forgotten your refrigerator is "smart," it will still be gathering data. With whom might it share?

Mr. Gelman points out that these technologies place a burden on law firms. That is not news. The Florida Bar Journal warned in 2016 "Attorneys Must Protect Clients's Sensitive Data." That article pointed out "Attorneys cannot afford to sit idle and assume that their information is secure." The legal firm is often targeted because "Law firms are high-value targets for hackers because they hold highly confidential and sensitive data." And, what leads anyone to believe that doctor's offices, claims centers, and others in the workers' compensation world hold less of that sensitive data? The Bar urged lawyers to "develop() and implement() strong and comprehensive cyber security programs." Isn't that good advice for us all?

That is perhaps the equivalent of the police advising you to lock your doors and windows. Have you paid attention? Are there broken locks or other risks that should be treated as "zero day?" This may be in your physical premises (yes, they can just steal your server), your software, or apparently your light switch or refrigerator. What are you doing to better understand those risks and live up to your professional responsibility? In the age of information, are you tempted to just disconnect from the Internet?

In December, I will host a portion of the WCI cybersecurity program. No, this is not a class just for IT experts and aficionados. This is a program for the rest of us. As we live out our pedestrian lives in the world of information, what are the realistic concerns that workers' compensation professionals face? What role can we play in keeping the villains out our our premises, out of our networks, and out of our data. 

The liabilities are extensive. While lawyers tend to engage the "parade of horribles" ("A rhetorical device employing series of progressively more terrible results following from an act."), the fact is that a data breach can mean lost work time and revenue. It can mean loss of client data, lawsuits, and financial loss. It can destroy reputations and close businesses. If you are not keeping up on these imaginative and relentless evil-doers, the time has come. These threats are real and they are perilous. I hope to see you in December to have a broad discussion of your personal "zero day" threats (what you should be working on right now).