Profiles in IP Law: An Interview with Elizabeth Day Hochberg Assistant General Counsel, General Services Administration

Vol. 6 No. 4

By

Matthew P. Hintz is an associate at Servilla Whitney, LLC, in Iselin, New Jersey. His practice focuses on trademark prosecution and enforcement.

Beth Hochberg is a member of the U.S. General Services Administration’s (GSA’s) Office of General Counsel (OGC). She advises the agency in all areas of intellectual property law and strategy. Ms. Hochberg is acknowledged as a leading legal expert and practitioner in the fields of open government and federal agency use of social media.

Prior to earning her JD and LLM degrees from the University of New Hampshire School of Law’s Franklin Pierce Center for Intellectual Property, Ms. Hochberg received a bachelor’s degree in chemistry and a master’s degree in piano performance from Kansas State University. She clerked at both the United States Patent and Trademark Office and the International Trade Commission’s Office of Unfair Import Investigations and was editor-in-chief of the University of New Hampshire Law Review. She is the author of two books on intellectual property law and has released two CDs of classical piano music.

Thank you for taking the time to speak with Landslide® magazine. If I were running an agency for the federal government and wanted the agency to use social media, what special issues would I need to consider? The website HowTo.gov lists over 60 negotiated federal-compatible terms of service.

Social media is revolutionizing how federal agencies communicate with their customers. But like any business or individual, an agency should look first at how social media will help it meet its mission, then recognize that in the federal government space, there are some unique mechanisms we feds need to deal with.

Using social media sites with approved terms of service (ToS) is at the top of that list. Whenever an individual user (or a user representing a company) signs up for a new social media platform, he or she has no choice but to click “I Accept” when presented with the platform’s ToS. Most people don’t even click the hyperlink and read them! On the other hand, a federal agency, or a federal employee signing up for the platform for official agency use, cannot merely click “I Accept.” This is because there are about two dozen laws that apply to a federal agency’s use of social media, and many of them are violated in boilerplate ToS agreements. For example, indemnification, attorneys’ fees, state law, binding arbitration—all of these are standard in boilerplate ToS. But the federal government cannot agree to them.

When it comes to social media, GSA is often out of the gate first, which means that the many legal questions presented by our clients are areas of first impression within the government. As a result, GSA’s OGC usually takes the governmentwide lead in finding answers to those legal questions, negotiating the new ToS, getting them federally compliant, then posting them for all agencies to use on HowTo.gov.

How do you keep up with all the different social media outlets? Some have a very short window of popularity.

The best way to keep up with the latest trends and technology releases is to have brilliant clients. I’m really proud of the work GSA’s Office of Citizen Services and Innovative Technologies (OCSIT) does on behalf of the entire federal government and citizens in the areas of social media and digital government. It knows immediately when a new social media tool becomes available that might help an agency meet its mission, and it will immediately build a business justification for the tool. In an era of reduced budgets and manpower, free social media tools have enabled agencies to maintain their missions and even expand their engagement. In addition, when a ToS change with existing providers is announced, they let us know so that if the ToS needs to be revisited, we can contact the provider in a timely fashion, reducing any service hiccup to our sister agencies. I believe wholeheartedly that OCSIT has helped revolutionize citizen engagement.

Trust is important in the social media experience. As a social media user, how can I be sure that a federal government account is the real thing? Following a fake Kim Kardashian is very different than following a fake FEMA.

Brand owners have a duty to protect their customer experience. Federal agencies have a duty to protect the citizen experience. If we are going to relay information via apps, Twitter, or Facebook posts, and urge citizens to trust that information, we must take every step to ensure that information is accurate.

In the early days of social media and mobile apps, I started thinking to myself that social media would allow the federal government to push out information to the citizens like never before, which has proven to be correct. But the trademark attorney in me started thinking, “What if fake profiles, or fake mobile apps, pretend to be the government and give out faulty information?” I knew it was inevitable and sure enough, shortly after the federal government entered the social media and digital space, nefarious apps and fake profiles started showing up on every major social media platform. The federal government is not merely trying to protect a customer brand—it is in many cases trying to protect citizens themselves.

The various social media providers usually work swiftly to have infringing or fraudulent apps removed. Typically, we claim a trademark violation and submit it through the platform’s normal complaint and notification system, but further legal education in this area is needed. Misuse of federal law enforcement seals can be a criminal violation, and many social media providers do not have a system in place for this kind of notification. We have worked with providers to ensure federal users now have proper mechanisms for enforcement.

Some platforms display specific verification symbols. For the rest, OCSIT runs a social media registry for federal social media accounts.1 Anyone wanting to know if an account is a legitimate federal one need only visit that site and input the name of the account and the type of platform. In addition, OCSIT has multiple technology-related blogs, in particular the Mobile Gov Blog,2 and a registry of federal mobile applications.3 Many people outside of government don’t realize that there are hundreds of useful, interesting, and free mobile applications for anyone to download.

Is this emphasis on social media, apps, and technology part of the Digital Government Strategy?

Yes. The modern era of digital government really started in 2010 with then-Federal Chief Information Officer (CIO) Vivek Kundra’s 25-point plan. Even though the plan focused more on IT reform, it included references to digital government, and GSA had many governmentwide deliverables under it.4

Again, OCSIT has a central role in achieving the milestones of the Digital Government Strategy, which was released in May 2012 by the federal CIO and chief technology officer.5 The Digital Government Strategy clearly states that the government should enable citizens access to high-quality digital government information and services anywhere, anytime, and on any device.

To help agencies manage this fundamental shift in providing government services, GSA established a Digital Services Innovation Center to help share tools and best practices. We also worked closely with agencies in helping them get their data out in application programming interfaces to make it easier for developers to create user-friendly apps to help citizens using government data.6 GSA has a similar role in helping agencies implement the new federal government Open Data Policy, released in May 2013, which makes open and machine readable the new default for government data.7

A large function of your role at GSA seems focused on educating colleagues.

Social media law is such a fast-moving area of the law, with a myriad of moving pieces contained within it, that it is a full-time job keeping up with everything. Federal lawyers who receive social media questions from agency clients do not really have many places to go for answers, and so I am routinely invited to educate colleagues in this ever-changing area of the law.

As I mentioned above, GSA has a very large role in implementing governmentwide digital strategy. I learn new things from our clients every day, then try to apply existing laws and regulations to these innovations to ensure they can be conducted within existing legal frameworks. The good news is that for the most part they can—it just takes a bit of finesse. Educating colleagues on how to work through these frameworks as they apply to social media and innovative technologies, and then come to an acceptable and legal outcome, has become a way for me to help the federal legal community.

I am a trained patent attorney. But I find myself caught between the world of “hoard and protect”—which is basically what we’re taught to do as patent practitioners—and the new world of open source, where people want to share everything freely. When I first got pulled into open government four years ago, my instinct was to say, “What? You want us to give away intellectual property rights?” I thought this was preposterous. Now I’ve come to realize that there’s a time and place to hoard and protect, and there’s a time and place to share freely. There are responsible ways to marry these two seemingly disparate areas.

How did your legal career lead you to GSA?

I came to GSA in 2008, when social media exploded. Prior to that, aside from my clerkships, I’d spent time at the National Institutes of Health negotiating technology licenses and then at the Smithsonian in federal procurement. Put those two areas together, along with my training in intellectual property, and I simply happened to be at the right agency at the right time with the right skill set. At the start of my career, I really thought I was going to be a patent litigator. If you would have told me that in 10 years I would be an attorney who spends her days negotiating technology and social media licenses, I would have laughed. Yet here I am—and I absolutely love what I do.

A common complaint about social media is that interactions become less personal. For the government, this seems to be the reverse.

One of the best uses of social media by federal agencies is in response to emergencies, where timeliness and personalization can save lives and prevent injury. Citizens communicated swiftly with first responders from FEMA and other agencies in the aftermath of the Missouri and Oklahoma tornadoes, and along the East Coast after Hurricane Sandy. Social media allows agencies such as the FDA and the State Department to amplify messaging on recalled products and travel advisories, respectively. These are just a few examples—there are dozens more.

Social media has also revolutionized citizen engagement. TSA’s Blogger Bob answers complaints from fliers directly and provides information on the latest security requirements, among many other areas.8 Here at GSA, we use our social media accounts to reach entirely new groups of potential federal contractors. Not everyone knows to visit FedBizOpps to see what business opportunities exist in the federal government.9 With social media, GSA doesn’t have to wait for vendors to come to us—we can take our message to where the conversation is happening, and find a new audience. A new generation of companies is starting to find federal contracting opportunities as a result.

What challenges do you foresee for digital governments? One criticism is that future historians may have less material accessible to write the history books. It is unlikely that one will discover a packet of your grandmother’s tweets in an old dresser.

The federal government has legal obligations to retain certain records, and social media makes that more challenging. The National Archives and Records Administration continues to update guidance on how agencies can and should retain agency records, and has recently published new guidance on how agencies should retain social media records.10 When we negotiate ToS, we include a provision that enables an agency to retrieve its records in the event a social media provider ceases operations.

The Library of Congress archives every tweet—and I do mean every tweet—even the deleted ones. This is because Twitter signed a donation agreement with the Library of Congress in April 2010. The agreement presented a win-win for both sides: the win for Twitter was that its work product would be preserved, and its cultural importance validated. It was a win for the Library because archiving all tweets preserved a digital snapshot of our era. Reaction to this announcement was swift. Historians and academics were extremely supportive. But the agreement magnified the public’s concerns regarding privacy. These concerns and the resultant surge of web traffic caused the Library’s website to crash for the first time since issuance of the Starr Report.

What are you the most proud of?

I’ll never forget one day a few years back when I’d just finished authoring a page for USA.gov on understanding the legal copyright definition of U.S. government works.11 I thought it was a beautifully written, concise document that would explain the murky area of copyright law with great clarity. My clients looked at it, then silently and politely proceeded to rip it to shreds. I thought to myself, “But I was editor-in-chief of law review! I know how to write!” Then I saw how they had used plain language principles to make the document even clearer, even more precise. They then ever-so-subtly suggested I take a course entitled, “Plain Language for Lawyers.” That course had a profound impact on me. I don’t claim to be a plain language expert by any means, but what I learned in that course positively impacts communications and interactions with my clients every day. I am routinely thanked by clients at GSA, and those around government, for being able to break down difficult subject matter areas in ways that are easy to understand. That is definitely something I’m proud of, and something in which I take great pride.

Endnotes

1. Verify U.S. Federal Government Social Media Accounts, USA.gov, www.usa.gov/Contact/verify-social-media.shtml (last updated Dec. 16, 2013).

2. Mobile Gov Blog, http://howtomobile.apps.gov (last visited Jan. 7, 2014).

3. Mobile Apps Gallery, USA.gov, http://apps.usa.gov (last visited Jan. 7, 2014).

4. Vivek Kundra, U.S. Chief Info. Officer, 25 Point Implementation Plan to Reform Federal Information Technology Management (2010), available at www.dhs.gov/sites/default/files/publications/digital-strategy/25-point-implementation-plan-to-reform-federal-it.pdf.

5. Digital Government: Building a 21st Century Platform to Better Serve the American People (2012), available at www.whitehouse.gov/sites/default/files/omb/egov/digital-government/digital-government.html.

6. Data.gov, www.data.gov (last visited Jan. 7, 2014).

7. Office of Mgmt. & Budget, Open Data Policy—Managing Information as an Asset (M-13-13) (2013), available at www.whitehouse.gov/sites/default/files/omb/memoranda/2013/m-13-13.pdf.

8. TSA Blog, http://blog.tsa.gov (last visited Jan. 7, 2014).

9. FedBizOpps.gov, www.fbo.gov (last visited Jan. 7, 2014).

10. NARA Bulletin 2014-02: Guidance on Managing Social Media, Nat’l Archives (Oct. 25, 2013), www.archives.gov/records-mgmt/bulletins/2014/2014-02.html.

11. Copyright and Other Rights Pertaining to U.S. Government Works, USA.gov, www.usa.gov/copyright.shtml (last updated Dec. 16, 2013).

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