Cross-Border Cyber Regulations Subcommittee
The Cross-Border Subcommittee met virtually on September 22, 2020, as part of the Section’s virtual annual meeting. They had about twenty members tuning in, including some old and new faces.
Co-Chair David Flint tuned in from Glasgow, Scotland, and he was joined by panelist David Lucas, a partner at the Bradley law firm based in its Huntsville, Alabama office, to discuss the implications of the July 16, 2020 decision of the Court of Justice of the European Union in case C-311/18, known as “Schrems II.” In this case, the Austrian lawyer and activist, Maximillian Schrems, continued his quest to secure protection of his fundamental privacy rights under the EU charter, focusing particularly on the threats coming from U.S. authorities having a right to access data transmitted from the EU. The Court invalidated the EU-US Privacy Shield, which had been negotiated in 2016.
The panel discussed the implications of this decision on U.S. firms doing business with EU firms or those having personal data from EU residents. Standard privacy clauses, while not invalidated per se, fail to address the fundamental concern raised in Schrems II, which involve the matter of legal access by U.S. authorities of data within their jurisdiction. While some data protection authorities have required data flows to the U.S. to stop immediately, other responses are developing. So, what is a U.S. business to do, given potentially significant fines that could be imposed? The panel offered a thorough and informative discussion of the conundrums faced in this context, including a checklist of practical considerations.
Copies of their slide deck can be obtained from the committee meeting website (ABA login required), or you can contact David Flint (df@davidflint.com) or David Lucas (dlucas@bradley.com). This subject matter will likely become the focus of additional projects for the subcommittee.
On a personal note, let me add that it has been a pleasure to work with co-chair David Flint and vice-chair Andrew Alleyne on so many good projects and programs. David and Andrew will continue that tradition.
Ed Morse (morse@creighton.edu)
Outgoing Subcommittee Co-Chair
Electronic Payments and Financial Services Subcommittee
The Electronic Payments and Financial Services Subcommittee hosted three senior career Treasury lawyers who played important roles in making more than 160 million COVID stimulus payments in the period following the passage of the CARES Act on March 27, 2020. These lawyers, all colleagues of Steve's when he was at the Fiscal Service, included Ronda Kent, Assistant Commissioner for Payment Management, Bureau of the Fiscal Service, U.S. Department of the Treasury; Natalie H. Diana, Bureau of the Fiscal Service, U.S. Department of the Treasury; and Ellen Neubauer, U.S. Department of the Treasury. These lawyers have prior experience with stimulus payment authorizations and friction points and were consulted in the period in which the CARES Act was drafted. As co-chairs, we were honored to have Ms. Kent, Ms. Diana, and Ms. Neubauer as our guests. We were thrilled to welcome the new members of the Cyberspace Law Committee join in this conversation. And to have many longer-time subcommittee members attend. If you are interested in following e-payments and financial services developments or in writing about them for ABA's various publications, please email Steve (stm@aol.com) or Sarah Jane (sjhughes@indiana.edu).
Robotics and Artificial Intelligence Subcommittee
The AI and Robotics Subcommittee is diligently (pun intended) working on its Due Diligence Checklist for AI in M&A Transactions project. We would be pleased to welcome volunteers who are interested in participating. We are also intending to host speakers on a bi-monthly basis so if you would like to speak or source speakers, please do not hesitate to contact either Lisa R. Lifshitz (llifshitz@torkinmanes.com) or Dredeir Roberts (dredeirroberts@gmail.com).
Technology Transfer and Product Development Subcommittee
During the Virtual Annual Meeting, the Technology Transfer and Product Development Subcommittee convened and had a lively discussion regarding product development in the field of telehealth and the privacy questions being raised. The popularity of telehealth has exploded since the beginning of the pandemic, and developers are easily getting out ahead of legal compliance. Some regulatory agencies, such as the HHS Office of Civil Rights, have agreed not to impose penalties for noncompliance in connection with the “good faith provision of telehealth” during the national health emergency. It remains an open question when the national health emergency will end and whether providers will receive advance notice of this fact and be given time to get into compliance. The meeting participants gave their own interesting updates on related topics such as the use of biometrics to identify users, contact tracing, use of remote technology by higher education, and IoT devices used in the lawn and garden area. Finally, we discussed the legal challenges of technology transfer between academia and industry. We are hoping to propose a program for the BLS Spring Meeting on privacy issues associated with wearables and other technology devices. Please contact Bill Denny (wdenny@potteranderson.com) if you are interested in participating.