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August 10, 2019

Innovation raises novel legal issues for tech general counsels

A general counsel’s job is difficult at best – being a jack of all trades for every legal issue under the sun. But for GCs at cutting-edge technology companies, where innovation is years ahead of the law, it is a minefield of novel issues.

That was the consensus of four general counsels to four prominent American tech companies: Microsoft, Oracle, Lyft and 23andme. They traded stories and perspectives at a panel discussion Aug. 9 at the American Bar Association Annual Meeting in San Francisco.

The program, titled “Shaping our Future: Top Tech Company Lawyers on Innovation and Social Responsibility,” was sponsored by the ABA Section of Science & Technology Law.

“We work for companies that have their hands in lots of really diverse and interesting things – hard subjects, sensitive subjects,” said Dorian Daley, Oracle’s general counsel. “And so, by its nature, our job is going to be very, very challenging, but really interesting.”

Dev Stahlkopf, general counsel at Microsoft, agreed: “It’s an interesting time to be a general counsel in tech, for sure. Technology is moving so quickly that it’s outpacing social dialogue and outpacing regulation.”

Take, for example, the dilemma of computer facial recognition – a field with “a ton of promise,” Stahlkopf said, but also a ton of unresolved questions. Facial recognition is an emerging technology “that doesn’t always get things right,” she said.

One problem is the potential of bias. Facial recognition learns by studying data sets, but a lot of the photos in early data sets were of white males, “so facial recognition didn’t work as well identifying minorities and identifying women.” That can create biases that are very harmful, she said.

“I don’t think the social dialogue has caught up with the issues, and certainly regulation hasn’t,” Stahlkopf said.

23andMe, the genetic-testing company, has confronted a different set of moral and legal issues. In 2013, the company received a warning letter from the U.S. Food and Drug Administration to stop marketing its tests in the United States until it completed the regulatory review process. Since then, the company has obtained five FDA clearances.

Navigating these kinds of challenges was initially daunting for Kathy Hibbs, the company’s chief legal and regulatory officer. In the mid-1990s, she joined a Silicon Valley company whose work was based in physics, but she knew nothing about physics. She taught herself by reading books from the library.

Now, Hibbs helps 23andMe work on such complex issues as how to protect customers’ privacy – for example, ensuring that a test result showing a genetic predisposition for certain diseases doesn’t wind up in the hands of the customer’s employer or insurance company. Privacy is “a huge issue” – probably the most important issue to customers, Hibbs said.

The panelists agreed on one key point: It is crucial that the federal government develop unified national laws to address novel technology issues. “It’s scary to imagine that we could be in a position in a few years where we have 50 states pass regulations and laws,” said Lyft general counsel Kristin Sverchek.

Hibbs agreed, particularly on the need for national privacy rules. “Hopefully we can get to a federal standard,” she said. “At the moment, with 35 or so states looking at individual legislation, and each one having a slightly different flavor to it, that will be really confusing for consumers.”

Coincidentally, all four panelists were women, as was the moderator, Heather Rafter of RafterMarsh, a Silicon Valley firm specializing in technology law. That was not planned, Rafter said.

“These women are role models,” Rafter said. “I want to acknowledge that each of you really had to think hard and decide to take on a very big job, leading to unknown pathways of the law. I want to applaud you for doing that because I don’t know if I would have had that courage.”