April 14, 2021

Subcommittee News

Cloud & Enterprise Technology Subcommittee

The Cloud & Enterprise Technology Subcommittee meets Wednesday, April 21 from 9:00 – 10:00 Central Time.  Register for the Business Law Section Spring Meeting and watch for announcements with links for virtual meetings and programs.  (No charge for the Spring Meeting this year.  Register here:  Welcome - Business Law Virtual Spring Meeting (cvent.com).)

The Subcommittee's discussion topic will be managing the flow of software licenses into organizations.  Think about all the software (and data) sourced by organizations online for "free" or at low cost.  Add sourcing from marketplaces in the cloud.  How should lawyers think about managing the legal terms in all the EULAs users are inclined to click through?  I, for one, don't have a good answer to that question. 

As foundation for the discussion, Prof. Nancy Kim will join the call to give us a refresher on concepts like battle of the forms and contracts of adhesion.  Prof. Kim is the ProFlowers Distinguished Professor of Internet Studies and Professor of Law at California Western School of Law in San Diego.  She teaches contracts, sales, and licensing, and she is an active Business Law Section member.

After Prof. Kim sets the stage, meeting participants are invited to share their observations, ideas, and questions.  This topic could be one that spawns a project, but project planning is not the primary objective of the meeting.  A robust discussion itself is the goal. 

Please register for the virtual Spring Meeting, mark your calendars, and join us to talk about this important practical issue for organizations.

Consumer Privacy and Data Analytics

The Consumer Privacy and Data Analytics subcommittee will be discussing the status of its latest update to the Global Privacy Checklist. The rest of the time, the Subcommittee will brainstorm on future projects for 2021. Also, the Subcommittee is sponsoring a CLE entitled Where Are We Now: The Evolution of U.S. and International Privacy Laws, featuring legal privacy presenters from domestic and international organizations including USAA and Grant Thornton.

Cross-Border Cyber Regulations Subcommittee

The subcommittee has recently been looking at European developments and whilst these continue to challenge, for the Spring Meeting we hope to look at a number of different topics with an international perspective (although we may not get to all of these): 

  1. An update, if not necessarily a full presentation on, current developments in US state privacy laws.   
  2. Some thoughts on what IT lawyers might expect, if anything, to be materially different from a US federal regulatory perspective under the Biden administration focusing on discrete areas, such as Internet Tax Freedom, FTC, etc.  
  3. The cross-border implications of AODA compliance requirements and how it might have extra-territorial effect.  
  4. Recent EU draft Standard Contractual Clauses under GDPR. 
  5. Draft UK Adequacy Decision following Brexit. 
  6. The finally agreed EU Council text on the e-Privacy Regulation (although a long way from finalization)

Cybersecurity Subcommittee

The Cyber Insurance sub-committee is focused on assisting business attorneys and their clients in understanding cyber insurance and its role in enhancing cybersecurity. Please join us for a general discussion of recent developments in these areas and to become involved in the sub-committee’s current projects, which include:

1.     Developing articles and papers on cyber insurance and security generally and in specific industries, such as the model Insurance Cybersecurity Law. See https://www.naic.org/documents/cmte_legislative_liaison_brief_data_security_model_law.pdf and related publication: https://higherlogicdownload.s3.amazonaws.com/MICHBAR/ebd9d274-5344-4c99-8e26-d13f998c7236/UploadedImages/pdfs/journal/Summer20.pdf#page=11

2.     Developing articles, white papers, or programs in the following areas:

a.     How a cyber breach is investigated and how to promote cyber insurance coverage for it (as well as how to address attorney-client privilege issues);

b.     How to assess business needs in cyber insurance and how to select the right policy and riders; and

c.     Tips on mechanics and/or procedures for how to buy cyber insurance.

3.     A potential joint webinar with Middle Market & Small Business regarding 2. a, b, and/or c. 

4.     Developing the sub-committee’s LinkedIn page as a resource and to build content.

Digital Media, Gaming & Entertainment Subcommittee

Since the Digital Media Committee’s last meeting, the CEOs of the leading social media platforms have been grilled by Congress, and the non-fungible token (NFT) has gone from an obscure concept to the topic of a Saturday Night Live skit. The Committee will discuss these and other hot topics in the fields of Digital Media, Gaming & Entertainment.

We have invited digital asset legal expert Max Dilendorf to lead a discussion NFTs. Mr. Dilendorf’s practice is focused primarily on digital assets, cryptocurrency, and technologies that drive blockchain and related distributive computing networks. An early adopter of virtual currency and its associated legal, financial, and business implications, Max is considered the go-to expert for anything crypto-related. His areas of specialty include tokenization of assets, setting up cryptocurrency and DeFi exchanges, NFT art, and music offerings as well as structuring domestic and international real estate transactions using cryptocurrencies.

We will be exploring the opportunities for additional projects around NFTs, social media, and other changes in the online entertainment and gaming sector.

Electronic Payments & Financial Services

The Electronic Payments & Financial Services Subcommittee is excited to share information on the upcoming subcommittee meeting.

We are pleased to have J. Dax Hansen, Partner and Firmwide Chair of Perkins Coie’s Blockchain Technology & Digital Currency Industry Group, and Youssef Sneifer, Strategist and Advisory Counsel, Perkins Coie, and formerly president of Microsoft Payments, Inc. join us to share their perspectives on e-payments. Here’s a sneak peek of what they plan on talking about:

The pandemic has significantly accelerated the shift to e-commerce and digital payments as cash has been displaced and consumer and business behaviors changed overnight.  Emerging technologies and new consumer/business experiences and expectations are creating new opportunities in payments that will likely shape the future of payments and impact the regulatory regimes.  During the session, we will discuss new and emerging issues and challenges facing the payments industry, including emergence of alternatives to the credit rails, changes in the B2B payment space, and roles of banks vs. PayTech companies, and the rise of crypto/digital currency.

Robotics and Artificial Intelligence Subcommittee

The AI and Robotics Subcommittee is continuing to work 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 called "Governance of Al and Machine Learning: Emerging Developments and Best Practices” to be presented on Wednesday April 21 at 2-3pm Central Time at the Section’s Virtual Spring Meeting. 

We are also planning on a subcommittee meeting as part of the Virtual Spring Meeting - this will be 3-4pm Central Time on Monday, April 19. We’ll discuss the Due Diligence Checklist, other recent developments in the world of AI and Robotics, and options for future subcommittee projects.

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).

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? 

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 join our discussion on how to identify and manage the privacy and security risks of connected products in the age of COVID.

At our subcommittee meeting, we will work on our ongoing projects:  (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 speakers for a program for the Annual Meeting.