March 02, 2021

Subcommittee News

Cloud & Enterprise Technology Subcommittee

The Cloud & Enterprise Technology Subcommittee used our Winter Working Meeting time for a facilitated discussion about export controls.  We hosted subject matter experts Joanna (“Jo”) Ritcey-Donohue, JRD Law PLLC, and James Kearney, Womble Bond Dickinson (US) LLP, and meeting participants had a dynamic session about managing export controls in practice.

The WWM session kicked off a plan to use the Subcommittee as a forum to raise awareness and share practical observations about cloud computing or enterprise technology topics of common interest.  We will follow the discussion format at Spring Meeting in April.  The tentative topic for that session will be managing review of software licenses/subscriptions for low-cost, limited use applications, i.e., software that can slip into an organization below the radar of rigorous procurement procedures.

Please consider volunteering to support the Subcommittee’s new meeting format.  Each of the roles below can be time-boxed, self-directed, and shared – perfect for busy lawyers!

  • Planners – solicit topics, plan call agenda, identify call leaders
  • Coordinator – maintain calendar, coordinate logistics with call leaders, interface with ABA on communications infrastructure
  • Reporters – capture call content, report/summarize for the Subcommittee, identify follow-up topics for future calls, articles, or programs
  • Authors – build on meeting content with Business Law Today articles, webinars, and programs

If you have topic ideas, questions, suggestions, or would like to participate as a subject matter expert, please call me.

Cross-Border Cyber Regulations Subcommittee

The Cross-Border Cyber Regulations Subcommittee had an excellent meeting at the Cyberspace Law Institute and Committee Winter Working meeting.

There were presentations and discussions in relation to implications of data transfer arising from the departure of the UK from the EU (Brexit) and from recent and impending changes in Canadian and Québécois Privacy law. The subcommittee also anticipated the upcoming privacy legislation in various States and the changes arising from CCPA and CPRA in California.

Finally, it was noted that the EU E-Privacy Regulation appeared finally to be moving to an agreed text.

The Subcommittee is planning a full session of topics for the Spring Meeting in April.

Cybersecurity Subcommittee

During our winter meeting, the subcommittee took the opportunity to review its charter and plan for the next year of programming. The members resolved that the Cybersecurity Subcommittee is committed to serving as the premier professional association for cybersecurity law and dedicated to providing programming, skill development, and analysis indispensable to the cybersecurity practitioner. To that end, the chair set forth the following areas of programing and subcommittee activities for the coming year:

  • Surveys
  • Member Profiles
  • Legislation and Case Tracker
  • Skill Sessions
  • Practice Content

Please join our next spring meeting for the first installment of these important endeavors. The subcommittee also hosted a discussion on the SolarWinds incident. The subcommittee sends a special thank you to Alise Brzezinski of Fortalice Solutions for presenting and engaging in a thoughtful discussion on the role of the legal practitioner in such incidents.

Digital Media, Gaming & Entertainment Subcommittee

The Digital Media, Gaming & Entertainment Subcommittee held its inaugural meeting to identify areas for the committee to explore during the upcoming year. The participants held a lively discussion on the topics of interest to the subcommittee including Section 230 of the Communications Decency Act, transactional and regulatory issues involving video games, business-to-business contracting in areas such as augmented reality, commercialization of individual’s rights and intellectual property in various digital platforms, fair use in the online and social media contexts, APP advertising, the implication of using online discussion forums for securities trading, and much more.

The following week, the subcommittee sponsored its first CLE presentation, New Media and the Lessons of the 2020 Election. The program featured an interactive discussion among Professors Eugene Volokh, UCLA School of Law, Los Angeles, Jennifer Kinsley, Northern Kentucky University, Chase College of Law, and April Falcon Doss, Partner, Saul Ewing Arnstein & Lehr, Baltimore, MD and Senior Fellow, University of Maryland Center for Health and Homeland Security moderated by Professor Jon Garon, Nova Southeastern University Shepard Broad College of Law.

The panel explored the impact of social media on the 2020 election, the ability of the media companies to moderate posted content, and the implications to the debate over the scope of Section 230 of the Communications Decency Act. The speakers explored the role of the ability of regulators to address privacy intrusions and other online harms while adhering to First Amendment principles. Conference attendees who missed the panel can see the recorded discussion and receive CLE credit through the ABA’s on demand CLE website.

The subcommittee will soon be launching a LinkedIn group. Anyone interested should contact Jon Garon on LinkedIn or at Garon@nova.edu to join.

Spring Meeting:

The core purpose of the subcommittee is to address the variety of legal and technological issues in the rapidly changing communications, entertainment, and information fields, including video games, streaming and downloadable media, digital marketing, digitization of analog content (books, arts, films, and music), virtual reality, augmented reality, and all forms of content exploitation.

At the Spring Meeting, the subcommittee will be developing a matrix of topics of interest for the committee and likely projects for those interested in participating in the projects. The possible list of new projects includes the use of a podcast, webinars, in-person programs, articles for Business Law Today, expansion of the LinkedIn presence and other activities.

Subcommittee Description:

This Cyberspace law subcommittee looks at the variety of legal and technological issues in the rapidly changing communications, entertainment and information fields, including videogames, streaming and downloadable media, digital marketing, digitization of analog content (books, arts, films, and music), virtual reality, augmented reality, and all forms of content exploitation. Using the framework of Contract, Copyright, Trademark, Trade Secret, Patent, Privacy, Cybersecurity, and other legal fields, the subcommittee will develop projects including brown-bag discussions, checklists, publications, webinars, podcasts, and programs to explore the continuously evolving fields of digitized content.

Information Governance by Design Workgroup

Following the 2020 Cyberspace Committee Winter Working Meeting, the Information Governance by Design (IGbD) Workgroup was launched and began meeting regularly.  Over the last year, it articulated and refined its mission of explaining what “Information Governance by Design” is and what role it might play in the law practice of Cyberspace Committee members.

We are identifying critical success factors that contribute to the development of sustainable, continuously improving governance systems.  Lawyers can help build trust among all stakeholders in a business activity—customers, suppliers, employees, regulators, community members, etc.—by knowing when and how to leverage these factors.

The success of IGbD systems is not just “observable” to participants but is also independently “verifiable” by third parties.  Information technology can help amplify their effectiveness, transparency and accountability.

We believe IGbD should become a standard element of every American business lawyer’s “entity choice” toolkit together with

Business lawyers should be able to integrate IGbD frameworks into their current entity choice toolkit.  We are developing deliverables to make that possible.  These may include:

  • Templates and guides for information governance system assessment
  • Tools for developing key performance indicators to measure the success of information governance systems
  • Collaborate with the Open Group to develop an IT security and risk reference architecture that by design produces the information artifacts lawyers need to assure governance policy objectives are being met.  Workgroup members are invited to work on this joint ABA-Open Group project to demonstrate the vision of information governance by design

Robotics and Artificial Intelligence Subcommittee

The Robotics and AI Subcommittee is pleased to advise that it is working on several exciting projects:

The Subcommittee is working to complete its Due Diligence Checklist for AI in M&A Transactions, which is intended to be a practical tool to help lawyers navigate key issues in deals involving artificial intelligence technology, including intellectual property, sources of liability, insurance, AI product development risks, ethical considerations, security and cybersecurity considerations, regulatory compliance re privacy, AI employment issues, “know your target” considerations, customer specific issues and specific channel considerations.  Contributors are welcome to help build out the above topics.  We are targeting completion of a first draft of the Checklist by end of May and a final product by the BLS Annual Meeting.  We are also planning a companion article for publication in Business Law Today.  If you are interested in helping out, please contact Lisa R. Lifshitz at llifshitz@torkinmanes.com.

The Subcommittee is also planning a CLE involving AI in financial technology (exact title TBD), to be presented at the Section’s Virtual Spring Meeting in April. We are also planning on a subcommittee meeting as part of the Virtual Spring Meeting, so if you’re interested in learning more about AI and Robotics and getting involved with the Subcommittee, please contact the Subcommittee Co-Chairs Lisa R. Lifshitz (llifshitz@torkinmanes.com) and Lois Mermelstein (lois@loismermelstein.com), and keep an eye out for additional details coming soon.

Technology Transfer and Product Development Subcommittee

In this time of COVID, what power have consumers and businesses given to connected devices?  Did you consent to let your watch or other wearable blab about you?  If you can't trust Zoom, who can you trust?  Is the use of that platform even ethical?  What unconscionable terms might be hidden in the many contracts of adhesion that are a necessary part of remote communication?  Isn't there a regulation covering that already?  Can my employer do that / make me do that?  Can (or should) publicly available data from providers help identify and track the people .... including people involved in the riot at the Capitol on January 6?  These are some of the questions and issues that we discussed at the Technology Transfer and Product Development Subcommittee meeting on February 12.

How are these products that play such oversized roles in our lives, from video conferencing platforms to fitness trackers, collecting information about us, and then storing and possibly sharing it?  If you have a wearable or have done a video call recently, if you represent providers or users, or if you work with employers that ask their employees to use connected devices (on or off premises) or if you are simply interested in how this evolving landscape touches on privacy and security issues, then please come join our discussion on how to identify and manage the privacy and security risks of connected products in the age of COVID.

 The subcommittee will be  (1) developing a checklist of issues identifying the pitfalls (including the ethical and legal obligations to identify which laws and regulations apply to the privacy issues and to notify clients of their privacy obligations), tips for mitigating risk and the regulatory framework, with brief commentary to help a business lawyer to understand the context of each issue; (2) recruiting a speaker for our subcommittee meeting to be held as part of the Business Law Section Spring Meeting in April; and (3) proposing a program for the Annual Meeting.  Rather than focus on one particular product, we intend to address issues that cut across multiple products and industries.  We are looking for speakers!  If these topics issues interest you and you would like to get more involved, or if you can recommend a good speaker, please contact Bill Denny at wdenny@potteranderson.com or Carolyne Dilgard-Clark at dilgardclarklaw@gmail.com