Surveillance in a post-Snowden world

It’s been nearly two years since Edward Snowden blew the whistle regarding National Security Agency practices and became a household name. While some think of him as a traitor, others have lauded him as a hero.

Regardless of your feelings about the guy, there’s no question that his revelations changed the way we consider security and surveillance in the 21st century. That’s just what Hanni Fakhoury, a staff attorney with Electronic Frontier Foundation, and Robert Chesney, director of the University of Texas Strauss Center for International Security and Law, discussed during “What’s Next? Surveillance Reform Post-Snowden” at this year’s South by Southwest Interactive.

“This started as a discussion about the NSA and about that kind of surveillance, but it has morphed into something a little bit broader and something different,” Fakhoury said during the panel. “How do we talk about policing? How do we talk about surveillance, at even the local level, in the modern age where technology is eclipsing the ability of the law and the lawmakers to keep up with these changes in technologies?”


The months since Snowden’s leaks have ushered in policy reports, a number of legislative proposals, the Privacy and Civil Liberties Oversight Board, and lawsuits regarding the data collections. But perhaps most prevailing are the conversations that have started since the disclosures.

Emerging questions, the panelists noted, include the effectiveness of NSA tactics, the balance between civil liberties and safety, the definition of search and seizure in the 21st century, the 1979 Supreme Court case of Smith V. Maryland—which remains the precedent for defending data collection without a warrant, and Section 215 of the Patriot Act, which is set to expire in June. Snowden’s leaks have also influenced how we think about other activities, such as license plate readers, as mundane as they may sound.

Fakhoury and Chesney also stressed that while questions linger, the government is offering more transparency than it was before Snowden’s leaks. Citing the Tumblr account IC on the Record, they noted an increased knowledge of national programs and the ability to have informed debates about them.

Michael Morton film, 'a great human story,' now available on DVD

By now, the basic narrative of the Michael Morton story is well known. A Texas man serves nearly 25 years in prison for his wife’s murder, only to be set free after DNA tests exonerate him. 

But to know the facts is different from feeling their emotional weight. In An Unreal Dream: The Michael Morton Story, now available on DVD, director Al Reinert takes viewers on a gut-wrenching journey through the case, from the 1986 crime scene to courtrooms and prison cells and, finally, to the moment in 2011 when Morton exited the Williamson County Courthouse a free man. Along the way, we hear from Morton what it felt like to be labeled a monster, to lose his freedom and his son, and to find no relief in the justice system for years until a team of dedicated attorneys came to his aid.

Although the story ends in punishment for the district attorney who tried Morton’s case, the focus here is not revenge. Morton’s pursuit of justice is tempered with mercy, as shown when he urges a judge to “be gentle” with Ken Anderson, the former prosecutor who served five days in jail and surrendered his law license after pleading guilty in November to criminal contempt for withholding exculpatory evidence during Morton’s 1987 trial. Grace, as the Austin American-Statesman noted in its review, is the film’s guiding energy.


An Unreal Dream premiered at the 2013 South by Southwest Film Festival, winning the Audience Award in the Documentary Spotlight category, and was featured on CNN in December. It is now available to stream or download on iTunes, or on DVD from Amazon and First Run Features.

DVD extras include highlights from Anderson’s court of inquiry and plea deal hearings, footage from the SXSW premiere, and an audience Q&A from the Houston Cinema Arts Festival featuring Morton, Reinert, and Houston attorney John Raley, who worked pro bono with the New York-based Innocence Project to free Morton.

“Stories are what matter in human communication,” Reinert says during the Q&A. “And this was always and continues to be a great human story.”


SXSW 2014 legal film roundup

A man who robbed a Houston bank as a teen seeks redemption for his past. A pair of same-sex couples takes their case for legal recognition to the nation’s highest court with help from two eminent attorneys. An East Texas landowner and a group of activists try to defy the odds and stop the Keystone XL pipeline.

These and other real-life stories found a home on screen as part of the 2014 South by Southwest Film Conference and Festival, which took place March 7-15 in Austin.

Tucked among the festival’s 133 feature films were a number of law-related documentaries, including several with Texas ties.

Below, we highlight six films whose stories touched on legal themes.


Evolution of a Criminal

Click here for the story.


The Case Against 8

Click here for the story.


Above All Else

Driven by concerns about his family’s safety, East Texas landowner David Daniel wages an unlikely fight against TransCanada’s Keystone XL pipeline in director John Fiege’s Above All Else. A former high-wire performer, Daniel builds a network of platforms and shelters in the trees above his property, hoping to block progress on the massive pipeline project by staging a tree-sit with a group of environmental activists. Hazards emerge—legal and physical—and tension builds as the characters are forced to decide how much they’re willing to endure for the cause. Metroplex residents can catch Above All Else on April 4-5 as part of the Dallas International Film Festival.


Other films













Director Margaret Brown’s The Great Invisible explores the toll of the 2010 Deepwater Horizon rig explosion and subsequent oil spill through the stories of survivors, Gulf Coast residents, and industry executives. The film, which won the SXSW Grand Jury Award for documentary features, makes the case that the disaster’s effects still linger for many, even if media attention has waned.

The Internet’s Own Boy documents the case of Internet pioneer and activist Aaron Swartz, who committed suicide in 2013 at age 26 while facing computer fraud charges for downloading millions of copyrighted academic journal articles. The film, from director Brian Knappenberger, raises questions about the fairness of the federal prosecution and asks viewers to ponder whether society suffers lost knowledge when publicly funded research and documents are kept from the public domain.

Vessel, from director Diana Whitten, follows Dutch doctor Rebecca Gomperts in her quest to challenge some countries’ strict anti-abortion laws by offering abortion-inducing drugs to women aboard a ship offshore, in international waters. The film won both the SXSW Audience Award for documentary features and the Special Jury Recognition for Political Courage Award.

Images courtesy of, from top, John Fiege, The Great Invisible, and Vessel

SXSW legal film spotlight: The Case Against 8

Telling the story of landmark U.S. Supreme Court cases often means poring through personal diaries and legal filings and—if you’re not too late—jogging the memories of those who lived it.

For Ben Cotner and Ryan White, directors of the new documentary The Case Against 8, it meant turning on a camera and watching events unfold.

“I felt like a fly on the wall of history,” White said after a recent screening at South by Southwest in Austin, where the film played after premiering at the 2014 Sundance Film Festival.

Filmed over five years, The Case Against 8 offers an inside look at the legal and personal stories behind the effort to overturn California’s same-sex marriage ban, known as Proposition 8.

Most viewers will probably know how the case ends, but the filmmakers still manage to build tension as the story moves through the courts toward its resolution, the June 2013 Supreme Court decision in Hollingsworth v. Perry, which had the effect of allowing same-sex unions to resume in California.


The movie follows two interweaving storylines—the maneuverings of legal odd couple Theodore Olson and David Boies, who represented the plaintiffs challenging Proposition 8, and the lives of the plaintiffs themselves. Viewers, regardless of their politics, can enjoy watching two skilled attorneys practicing at the highest levels, even as they marvel at the behind-the-scenes access these attorneys granted the filmmakers.

Olson and Boies, who worked as opposing counsel in Bush v. Gore, are entertaining enough to carry the film. But if viewers connect with the story emotionally, it will be because of plaintiffs Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, who convey a mix of vulnerability and resolve in their fight to have their relationships legally recognized.

Stier, after watching the film at SXSW, told an audience she was struck by the gravity of the plaintiffs’ journey.

The film, which won the SXSW Audience Award in the Festival Favorites category, arrives as other same-sex marriage cases make their way through appeals courts across the country. That includes Texas, where U.S. District Judge Orlando Garcia voided the state’s same-sex marriage ban in February “in compliance with the U.S. Constitution and Supreme Court precedent.”

Garcia, of San Antonio, stayed enforcement of the decision pending the state’s appeal.

HBO Documentary Films will release The Case Against 8 in theaters June 6 in Los Angeles and New York before expanding to more cities June 13. Its debut on HBO is scheduled for June 23. 

Photo courtesy of SXSW 

SXSW legal film spotlight: Evolution of a Criminal


Darius Clark Monroe stood inside a New York bank feeling panicked, overcome with an irrational fear he would be robbed. The NYU film student was in no physical danger, but inside he felt crushed by the weight of his past.

Years earlier, a 16-year-old Monroe and two friends—one of them armed with a shotgun—had burst into a Houston-area bank and demanded money from terrified clerks and patrons. Monroe was certified as an adult, pleaded guilty, and served several years in prison before being released and entering film school. Now years later, in a bank more than a thousand miles from Texas, Monroe was thinking about karma.

“I realized I had never made amends,” Monroe, 33, said at South by Southwest after the world premiere of his documentary Evolution of a Criminal, explaining the impetus for the film. He knew if he was ever going to heal, he had to find the people inside the bank that day and apologize, no matter how painful it might be and regardless of whether they would accept it.

The film, directed by Monroe and executive produced by Spike Lee, follows Monroe through each step of that journey. It also explores the repercussions of the robbery through the stories of Monroe, his accomplices, and their victims, including some who remained wary of the filmmaker’s motives. (Former Fort Bend County prosecutor Stacey Brownlee, who handled Monroe’s case, comes across in the film as cautiously optimistic that he’s turned his life around.)

To varying degrees, everyone in the bank that day bears scars from the crime, even though no one was injured.

“No one has to be harmed physically to have a traumatic experience,” Monroe said.

The film goes out of its way to show Monroe was not a bad kid. Bright and well liked at school, he turned to crime out of desperation, the film explains, overwhelmed by his family’s financial troubles.

Monroe presents these factors as explanation, not excuse. His goal is to make things right, he says, and to show people in similar predicaments that redemption is possible.

“We’re losing our young men,” Lee said after the Austin premiere, explaining why he got involved with the project. “Young brothers out there are lost, and they needed to see it.”

You can follow Evolution of a Criminal on Facebook and Twitter.

Image courtesy of SXSW 

SXSW CLE Wrap-up Part 3: Ethical pitfalls in entertainment law

Ethical dilemmas can arise in all areas of law, but the entertainment field can be fraught with them.

If they’re not careful, attorneys can run afoul of rules governing the attorney-client relationship, conflicts of interest, attorney compensation, and simultaneous representation, among others, speakers said Friday during a South by Southwest continuing legal education session.

That’s especially true if an attorney is wearing a second hat—agent, manager, even band member, said Austin entertainment and media lawyer Lawrence Waks, a partner with Jackson Walker LLP.

“I know a lot of folks in Austin, generally solos, that are both lawyers and agents, or lawyers and managers, or lawyers and musicians,” Waks said. “What hat are they wearing at any particular time? … It’s very difficult to discern that kind of thing.”

Speakers sounded notes of caution throughout the hourlong session, which focused on ethical issues in entertainment law. Along with Waks, the panel featured former Texas Supreme Court Chief Justice Wallace Jefferson and Austin trial lawyer Steve McConnico.


Conflicts of interest often happen when an attorney is asked to represent multiple parties associated with a single band or artist. In those cases, the attorney should warn the parties of the potential conflicts, encourage them to hire their own attorneys, and have them sign a conflict waiver, McConnico said.

However, certain conflicts can’t be waived under the rules of professional conduct, like if a manager is already in a dispute with band members, he said.

“That’s just something to be aware of,” McConnico said. “If you’re in a conflict situation, you’re not going to get a motion for summary judgment against you probably, but you’re going to get a verdict at the end of the day against you if it’s an obvious conflict.”

In Texas, like most states, a lawyer is prohibited from jointly representing clients when their interests are or may become adverse, said Jefferson, a partner in Alexander Dubose Jefferson Townsend. Disciplinary codes may differ from state to state, which can make joint representation a tricky area to navigate, he said.

“It’s sort of perilous when you enter into one of these agreements and you’re not sure exactly what law is going to apply, and you’re in a state that doesn’t have a very developed system of precedent in that area,” Jefferson said.

Attorneys in that predicament should consult the American Bar Association’s Model Rules of Professional Conduct, which form the basis of most state rules, along with state supreme court decisions and ethics opinions from bar associations in New York and California, the hotbeds of entertainment law, panelists said.

“You’ll be in a lot better shape before a judge or jury if you say, ‘I followed the ethics opinion,’” said McConnico, a partner in Scott, Douglass & McConnico LLP. “If you give me a case where somebody’s done that, I can defend them till the earth is flat and I’ll get that ethics opinion into evidence. But if they didn’t do anything to try to determine what the ethics opinions of the jurisdiction say about conflict, your defense attorneys will have a real disadvantage.”

To read materials related to this session and other South by Southwest CLE panels, visit the Lommen Abdo website.

Pictured, from left, are McConnico, Waks, and Jefferson. 


SXSW CLE Wrap-up: Panelists say it's time to revise Copyright Act

The major law governing copyright in the U.S. will turn 38 this year. An update meant to modernize the law for the digital age took effect during the Clinton administration.

Technology hasn’t stopped evolving since then, of course, and many—including officials at the U.S. Copyright Office—say a comprehensive revision is due.

“The Copyright Office thinks it’s time to engage in a broader review of the copyright laws as opposed to little piecemeal changes,” said Jacqueline Charlesworth, general counsel and associate register of copyrights, during a South by Southwest panel discussion Friday at the Austin Convention Center.

The panel, which also featured entertainment attorneys Rachel Stilwell and Peter Strand, was part of this year’s continuing legal education sessions.


The U.S. House Judiciary Committee is reviewing the Copyright Act of 1976 in its entirety for potential updates, which, according to Charlesworth, has made for an “unusually busy” time at the Copyright Office. Separately, the U.S. Patent and Trademark Office is conducting its own review of the law for potential changes related to the Internet, Charlesworth said.

She expected Congress to begin considering draft legislation within the next year, following a series of public hearings.

The reviews are considering a variety of issues, including music licensing, the legal framework for remixes, and royalties for music played on AM/FM radio. Unlike digital radio or music streaming services, terrestrial AM/FM radio stations are not required to pay royalties to performers when they play their recordings, said Stilwell, an associate with Gladstone Michel Weisberg Willner & Sloane of Marina del Rey, Calif.

The Free Market Royalty Act, introduced in the U.S. House last year, would amend the copyright law to provide a public performance right for all audio transmissions of sound recordings. As an artists’ attorney, Stilwell said she supports the effort but doubted the bill would pass. The bill’s author, former Rep. Mel Watt, recently left Congress to lead the Federal Housing Finance Agency.

Even if it fails, the bill could help advance the conversation as music labels and radio entities negotiate the matter, Stilwell said.

The threat of legislation has helped motivate all parties to come together in search of solutions, Charlesworth said.

“The fact that [the Copyright Act] has fallen behind the technology is a risk for copyright owners and others who depend on the Copyright Act, because you’re leaving it up to chance for the courts and what they are going to say in a particular case,” she said. “That’s not a great way to make law or policy.”

To read materials related to this panel, visit the Lommen Abdo website.

Pictured, from left, are Stilwell, Charlesworth, and Strand.