The Cyberspace Lawyer's Blogger

Winter Working Meeting in Santa Clara, California, January 2009

2009-02-14T09:42:00.024-06:00

I-WIN (ITech Law - Women's International Network) Networking Meeting in NYC

2008-08-06T14:59:00.002-05:00

Committee member Francoise Gilbert passes on a note about an event I thought many of our members would have an interest in:

If you are attending the Annual Meeting of the ABA, or if you will be in New York on August 8, 2008, please read on.

I-WIN ( ITech Law - Women's International Network) is part of the International Technology Law Association (ITech Law) (formerly Computer Law Association). I-WIN was created to help women who are Technology Lawyers network with each other, and share experience, knowledge, and resources. In the past 18 months, I-WIN has held meetings in London (UK), Las Vegas (USA) and Bangalore (India). Since thousands of women lawyers will be in New York for the annual meeting of the American Bar Association, we thought that this would be another great opportunity to meet and network with other women lawyers from the United States and other parts of the world.

There is no registration fee. Just come, and bring business cards
:-)

When: Friday August 8, 2008
Time: 2pm to 3pm
Place: Hilton Hotel - Hudson Room - 4th Floor
Address: 1335 Avenue of the Americas, New York NY.

This meeting is made possible by the Science & Technology Section of the American Bar Association, which is providing us with access to this meeting room.

P.S. Gentlemen are also welcome :-))

Cyberspace Committee Highlights at 2008 ABA Annual Meeting

2008-07-28T12:16:00.003-05:00

We look forward to seeing many of you at the ABA Annual Meeting in New York in a couple of weeks. Cyberspace Committee meetings begin Friday, August 8 in the afternoon and continue through the morning on Monday, August 11.

The Cyberspace meeting and program schedule is posted here in PDF format for your convenience. The summary notes meeting times and locations as well as a few co-sponsored events.

Please make every effort to attend our phenomenal programs.

The Internet- How it is Governed Today and How it may be Governed Tomorrow: A VIP Panel Discusses the Internet Governance Forum of the UN and the Global Debate about Control & the Future

Co-chairs: Henry L. (Hank) Judy & David E. Satola

Co-sponsors: International Business Law and International Coordinating Committees

Saturday, August 9, 10:30 a.m. - 12:30 p.m. - Juilliard & Uris Conference Level

Paul Twomey, President of the Internet Corporation for Assigned Names and Numbers (ICANN), Bill Graham of The Internet Society, Ambassador Richard Beaird, U.S. State Department, and Marcus Kummer, United Nations Internet Governance Forum, will discuss the international process convened under the auspices of the UN to consider the management and governance of critical Internet infrastructure. This is a rare opportunity to have leaders in the debate about the future of the Internet focus on the implications of Internet governance for businesses and their lawyers.

Anonymity on the Internet - Protecting Corporate Reputations & Consumer Privacy Against Cyber-Criminals & Other Bad Guys

Chair: Peter McLaughlin

Sunday, August 10, 2:30-4:30 p.m. - Juilliard & Uris, Conference Level

Recall the New Yorker cartoon "On the Internet, nobody knows you're a dog." When individuals and businesses are defending themselves, anonymity creates significant insurmountable barriers. Our panel of experts will explore both the policy and technology of anonymity on the Internet.

Cyberspace Committee Forum: Corporate Responses to National Security Letters - A Preview of an Upcoming Book to be published by the Cyberspace Committee - Chair: Sarah Jane Hughes

Saturday, August 9, 8:00 - 9:00 a.m. Juilliard & Uris, Conference Level

It's not easy to write a guide about matters cloaked with secrecy. A group of authors stepped up to the challenge and is now wrapping up a deskbook for business lawyers about National Security Letters. The material will be previewed at the Committee Forum.

The Cyberspace Committee is also co-sponsoring Saving Private Data- What You Don't Know About Information Security Could Kill Your Client's Business, a program presented by the Middle Market & Small Business Committee. Monday, August 11, 8:00 - 10:00 a.m., Empire State Ballroom D, Ballroom Level

The Cyberspace Committee will meet Saturday morning at 9:00 in the Juilliard & Uris rooms on the Conference Level. The meeting will feature a round-up of Committee projects and activities as well as formal transition of Committee leadership to Michael Fleming.

All of the Subcommittees will have interesting discussions of on-going projects. Several will also feature presentations by Committee members or outside speakers.

Electronic Financial Services Subcommittee, Friday, August 8, 1:00 p.m. - Park Avenue Room Mezzanine Level

Developments in managing credit card fraud

Privacy, Security & Data Management Subcommittee, Saturday, August 9, 12:30 - Regency Room, Mezzanine Level

Featuring Valerie Colagero, Privacy & Civil Liberties Officer of the FBI's Terrorist Screening Center will be discussing how The List is managed, how the Privacy office balances priorities, and other good stuff and the Hon. Mozelle Thompson, former Federal Trade Commissioner, speaking about the FTC's Online Behavioral Advertising rules and the implications for any company that markets on the web.

Consumer Financial Services, Internet Delivery & Electronic Banking, Sunday, August 10, 9:15 a.m. Empire State Ballroom B, Ballroom Level

Christina Kunz, co-chair of the Cyberspace Electronic Commerce Subcommittee, will participate in a discussion about electronic contracting.

Internet Governance Task Force, Sunday, August 10, 10:00 a.m. Royale Room, Conference Level

Speakers will discuss planning for the December 2008 meeting of the UN's Internet Governance Forum in Hyderabad, India.

Corporate Aspects of Information Technology Subcommittee, Monday, August 11, 10:00 a.m., Executive Boardroom 19, 14th Floor

Alan Wernick will discuss negotiating strategies for arbitration clauses in information technology and intellectual property agreements.

New Opportunity to Develop Model Contract

2008-07-28T12:13:00.002-05:00

Attendees at the Annual Meeting will have an opportunity to hear about an exciting new opportunity for our Committee that is just getting underway -- A model contract drafting project with potential to be as important to eCommerce as was our seminal work on EDI back in the early 1990's, as well as an opportunity to work with technology specialists from outside of the law to co-develop a new body of work much as we have already done with the Open Group. Professor Jane Winn and member Tom Smedinghoff have introduced us to some new friends, and we are actively recruiting Cyberspace members to take on this new project.

The Liberty Alliance Project is, in its own words, working to

enable a networked world based on open standards where consumers, citizens, businesses and governments can more easily conduct online transactions while protecting the privacy and security of identity information. This world, where devices and identities of all kinds are linked by federation and protected by universal strong authentication, is being built today with Liberty's open identity standards, business and deployment guidelines and best practices for managing privacy.

We will be looking for members to be involved in a project to develop model contracts that members of Liberty-based networks (known as 'federations') could use, as well as to jointly develop a white paper that could be used to explain the legal underpinnings to others. These sorts of projects are the bedrock of what our committee has done in the past to help in the development of eCommerce, and we're excited to be invited to participate in a new project.

Brett McDowell, Liberty's executive director, will be speaking for a few minutes during our main Committee meeting on Saturday morning during the Annual (from 9 until 10 in the Hyatt's Juilliard and Uris Conference room), and we will also have a short technical presentation in the same room immediately after the main meeting is over for those who want to learn a bit more. Since all of you are certainly planning to hold over until our Program on Internet Governance starts at 10:30 in the same room (RIGHT?), it should be easy for any of you who are interested to stick around!

US Dept of State will meet to discuss UNCITRAL IP Guide

2008-05-05T10:07:00.009-05:00

UNCITRAL (the United Nations Commission on International Trade Law) is doing some work on intellectual property issues as they relate to secured transactions -- the current work product is its Draft Legislative Guide on Secured Transactions and its treatment of security rights in intellectual property (IP). IP issues are difficult enough to work through in a purely USA-USA secured transaction, and the transformation to a global context makes it even more difficult. UNCITRAL is considering whether and how these systems may be harmonized to assist in cross-border IP transactions. The draft UNCITRAL Legislative Guide on Secured Transactions and relevant information can be obtained at http://www.uncitral.org/english/commission/sessions.

The Cyberspace Committee's Working Group on International Policy, headed by Hal Burman, has been monitoring developments in this area and is currently soliciting members to add to the committee's perspective and possible commentary.

In the meantime, the U.S. Department of State Advisory Committee on Private International Law Study Group will be holding a public meeting on the United Nations Commission on International Trade Law (UNCITRAL) Draft Legislative Guide on Secured Transactions and its treatment of security rights in intellectual property (IP).

Time: The public meeting will take place at the Department of State, Office of Private International Law, 2430 E Street, NW., Washington, DC on Wednesday May 7, 2008 from 10 a.m. EST to 2 p.m. EST.

Public Participation: Advisory Committee Study Group meetings are open to the public, subject to the capacity of the meeting room. Access to the meeting building is controlled; persons wishing to attend should contact Tricia Smeltzer or Niesha Toms of the Department of State’s Legal Adviser’s Office at SmeltzerTK@State.gov or TomsNN@State.gov and provide your name, e-mail address and mailing address to get admission into the meeting or to get directions to the office.

Additional meeting information can also be obtained from Rachel Wallace at WallaceRA@state.gov or telephone (202)647–2324.

Persons who cannot attend but who wish to comment on any of the proposals are welcome to do so by email to Michael Dennis at DennisMJ@state.gov.

If you are unable to attend the public meeting and you would like to participate by teleconferencing, please contact Tricia Smeltzer or Maya Garrett at 202–776–8420 to receive the conference call-in number and the relevant information.

Ticket Snatchers -- Beware of Minnesota!

2008-04-30T14:09:00.003-05:00

So, I'm fully aware of the political appeal of this new statute my home state has passed (after all, it was being sold to the public as the Hannah Montana bill after the spectacle of parents having to drop four-figure prices in order to get their little cherubs in to see their favorite TV star on stage). That's fine.

But, I'm really struggling to figure out what this bill means, and more to the point whether it could ever be enforced as written. What do you think? (Note that it's a criminal statute!)

(I think this is the version of the bill that was actually signed by our governor, but it's hard to figure that out for sure without paying somebody money to go figure it out. Call me cheap.)

S.F. No. 3139, 1st Engrossment - 85th Legislative Session (2007-2008)

A bill for an act relating to crime; establishing offense related to interfering with Internet ticket sales;proposing coding for new law in Minnesota Statutes, chapter 609.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1. [609.806] INTERFERING WITH INTERNET TICKET SALES.

(a) A person who intentionally uses software to circumvent on a ticket seller's Web site a security measure, an access control system, or a control or measure that is used to ensure an equitable ticket buying process, is guilty of a misdemeanor.

(b) For the purposes of this section, "software" means computer programs that are primarily designed or produced for the purpose of interfering with the operation of any person or entity that sells, over the Internet, tickets of admission to a sporting event, theater, musical performance, or place of public entertainment or amusement of any kind.

EFFECTIVE DATE.This section is effective August 1, 2008, and applies to offenses committed on or after that date.

Breath Machine Source Code Lawsuit in Minnesota

2008-03-11T10:24:00.004-05:00

I blogged a few months back about the running controversy about breath testing machines used by police in drinking/driving cases.

The state of Minnesota has recently filed suit against the manufacturer of its breath testing machines.

Apart from the obvious issues over whether a criminal defendant should have a right to see the source code in the machine used to convict him/her, the suit brings out a point I hadn't thought of yet. Apparently, the state is claiming that the source code is owned by the state of Minnesota based on a contract it wrote with this manufacturer some years ago -- And therefore the manufacturer's acts are alleged to be infringement of the state's copyrights! It certainly would not surprise me to find out the contract says exactly what is alleged in the complaint, given the way the typical government contract is drafted (and the typical process whereby the company, desperate to make the sale, goes along with what the state demands). (Editor's note: I have no personal knowledge or stake in this matter!) Thus, we may not only use this new case to develop a policy on disclosure of source code in crime-testing equipment, but also to show us what really happens when those onerous work-for-hire contract terms actually come out of the drawer and get reviewed a few years later!

And, I bet this won't be limited to breath testing machines. For example, most new cars have computers on board that are connected to GPS systems and other position-spotting equipment which can be used to prove where we were (or weren't) or how fast we might have been going, etc. The manufacturers of those computers may be facing this same issue in the near future. I'm sure anybody taking five minutes could come up with a list of many other future battles over the machines that are used to convict us of crimes. (If you're willing, take a shot in the comments below on what you think the next battlegrounds might be! This is not limited to cars and how we drive them by the way. How about the cell phone hanging off of your belt right now?)

Fasten your seat belts.

The Computer Made Me Do It

2008-02-17T17:14:00.003-06:00

Not entirely on point to the committee, but I couldn't help but share the story from our local paper about the guy who got ticketed for making a left turn notwithstanding an extremely well-marked 'No Left Turn' sign (and barriers, etc.). (Scroll down a bit for the story.) His excuse? Mapquest said it was OK. My favorite line in the story? "So while digital technologies are making it easier to find your way around, there's something less newfangled that you should always bring along: Your brain."

Actually -- Not bad advice for much of what we do with our toys here in Cyberspace.

Domaining Featured in the Gray Lady

2008-02-01T17:17:00.000-06:00

From the NYT...

Mr. Buck and other domainers profit when inexperienced Internet users type those names into their Web browsers, and once on the site click on related advertisements. In the longer term, they hope to resell their domain names for large profits to companies that want to build real businesses with those Web addresses.

Domainers have generally had a negative reputation. Domain-name trading takes little of the actual effort needed to build a business on the Web, instead relying on clicks from people who simply guess at a site’s name or are too lazy to use a search engine. In its early years, the field was dominated by offshore players and secretive, if not illegal, tactics.

Props to Trademark Blog for flagging this.

Bill, Don, and Alan Hard at Work

2008-01-26T11:46:00.000-06:00

Chris and Hassan

2008-01-26T10:44:00.000-06:00

Chris's husband joined us all for Dinner.

Winter Working Dinner

2008-01-26T10:41:00.000-06:00

We continued our exploration of the Twin Cities and visited Il Vesco Vino, a new restaurant in Saint Paul in a historic mansion.

William Mitchell Reception

2008-01-26T10:38:00.000-06:00

Chris Kunz, a professor at William Mitchell College of Law in Saint Paul, organized a reception with the Committee and students from William Mitchell. We all had a great time and convinced the students that Cyberlaw is still cool.

Kunz Avatar

2008-01-26T10:32:00.000-06:00

William Mitchell magazine recently wrote an article about Chris Kunz's work on the legal issues surrounding Second Life. They even created an Avatar for her.

Don Cohn at Work

2008-01-26T10:01:00.001-06:00

Long-time member Don Cohn develops ideas for the update of the book on Employee Use of the Internet

One Laptop Per Child

2008-01-25T11:32:00.000-06:00

John Gregory brought his new laptop from the One Laptop Per Child program.

I think we're all going to try to get our hands on it to experiment while he's here.

Updating "Employee Use of the Internet"

2008-01-25T11:10:00.000-06:00

Vince Polley and William Denny lead a discussion about updating Vince and David Doubillet's book from 2002 on Employee Use of the Internet. The book is still available for purchase here.

The group also discussed the planning for an upcoming seminar discussing the impact of newer Internet technologies on companies, including:

-Employee blogs in which employees divulge information about their employer
-Customer blogs that rant about or expose poor service or product defects
-Generation Y's use of MySpace and other social networking tools

Welcome to the WWM

2008-01-25T09:58:00.000-06:00

Candace kicks off the meeting.

Cyberspace Merchandise

2008-01-25T09:16:00.000-06:00

Chris Kunz's husband has designed some Cyberspace clothing for us to purchase. Contact Chris to place an order.

Dinner Saturday Night -- 3 Spots Left

2008-01-25T08:57:00.001-06:00

If you're interested in dinner on Saturday night, find Chris Kunz. She's made reservations for a small group of those staying over until Sunday for the warmer weather.

Thanks to the Sponsors

2008-01-25T08:51:00.001-06:00

Several local law firms and businesses stepped up to help sponsor the WWM and provide food, drinks, and other amenities. A special thanks to all of them:

Larkin Hoffman Daly & Lindgren, Michael Fleming
Gray Plant Mooty, Jennifer Debrow
William Mitchell College of Law, Chris Kunz
National Arbitration Forum, Kristine Dorrain
Oppenheimer, Wolff & Donnelly Law Firm, Bob Beattie

Putting "Winter" Back into the Winter Working Meeting

2008-01-25T08:47:00.001-06:00

As I always predicted, we'd have a good turnout if we hosted the Winter Working Meeting in a place that actually has winter weather. We've got a large group of new members who are attending. We're 35 strong for the kick off this morning.

Some of the new members include:

Alan Wernick
Chicago, IL

Karen King
Wilmington, DE

Jeff Aresty
Boston, MA

[I'll keep adding as I meet new folks]

Impromptu Thursday Night DInner at Fogo de Chao

2008-01-24T21:00:00.000-06:00

Several of us rode the train from the Mall of America to Downtown Minneapolis to enjoy a Meat Feast at Fogo de Chao.

Winter Working Meeting Overview

2008-01-24T08:47:00.000-06:00

Hello Cyberspacers!

I am really looking forward to welcoming all of you to Minnesota in just a very few days now -- Per the request of a number of you who decided that if you're going to Minnesota it might as well be REALLY cold, I've tried my best to get the big thermostat turned down. No guaranty, but it might actually be a cold-spell next Thursday, so bring a good coat. (And, remember that you'll have cars and busses for most everything you need to do, so don't be overly worried, OK?)

Here is our current draft of the meeting detail for the upcoming Winter Working Meeting here in Minneapolis. You'll note it's set up in the new format Lisa and I discussed with you a few weeks back -- Friday is "Project Day" and Saturday morning is reserved for more traditional subcommittees.

I need any of you who are shown here as being responsible for any of these meetings to get back to Lisa and I with any changes you want made to your project names or descriptions. (In a few cases there are no descriptions, so please help us to fill them in if you are in charge of such a project.)

For those of you who were looking to schedule a traditional subcommittee meeting on Saturday AM, look to see if we've accommodated you. If you did need to meet as a subcommittee (and we have not scheduled you), please let us know quickly. If we have set you up for a slot for your Saturday subcommittee meeting, look at whatever description we've provided and comment accordingly if changes are desired.

Finally -- Look at all of the things that are happening at the same time. We tried to guess how to avoid significant conflicts of projects happening at the same time which should be at two different times, but no doubt there are going to be concerns you can raise on that point. Let us know, and we'll see if we can figure out a fix.

There are still some open slots -- In particular, we have not scheduled the 'big' room at all for breakouts, so we've got more room here (i.e., 2 more project slots and one more subcommittee slot). Given the projected number of attendees (and our recollections of how the last few WWMs went), we're actually thinking that maxing out at about 4-5 slots at a concurrent time is the right number. Still, if a case can be made for expanding that we're all ears.

Finally, please understand as always that Lisa and I will be working our darndest to accommodate what we can, but there are still laws of physics and the like that must be obeyed. In other words, if we come to a conclusion that we're going to have to do something in some particular way, I'm hoping that we'll all live with it, learn how to do this better next time, and move on.

PLEASE PLEASE PLEASE -- Let us know of your requests for changes by end-of-business on Friday (a/k/a tomorrow!).

Cheers,

Michael

CAIT Agenda for Winter Working Meeting

2008-01-18T08:49:00.000-06:00

I look forward to seeing many of you at the Winter Working Meeting next week in Minneapolis. To whet your appetites, I would like to let you know some of the projects and ideas we are working on, and to invite you to submit additional ideas for topics.

We will be meeting on Friday (January 25), jointly with the Internet Law Subcommittee, to plan a program for the ABA Business Section Spring Meeting, currently entitled "Blurring the Line Between Work and Play: Updating the Rules for Employee Use of Internet and Web 2.0 Technologies". This program is our stepping stone to preparing a revised version of Vince Polley's book published by the ABA in 2002, entitled "Employee Use of the Internet and E-Mail, a Model Corporate Policy." We will be looking for volunteers to help develop a new model corporate policy and to draft commentary for the publication. That new policy will take into account issues that were barely visible in 2002, such as the rampant use by employees of blogs, instant messaging, social networking and free web applications both inside and outside of corporate firewalls. We are interested in collecting as many sample corporate policies as we can find, so if you have one or can get one that you can share, please send it to me or bring it along to the meeting.

Another ongoing CAIT project is the development of a comprehensive checklist, with commentary, of IT issues in mergers and acquisitions. Given the pivotal role that IT plays in the operation of any sizeable company, parties negotiating and structuring a corporate divestiture must consider the treatment to be given to its IT needs. We have an excellent early draft, focusing on categories such as negotiation of the purchase and sale agreement, transitioning from a highly leveraged IT infrastructure, assignment or allocation of third party IT rights, setting up a due diligence review of IT contract rights, and the post-closing relationship between the parties. We will welcome your input and assistance in moving this project to completion, and possibly designing a program to be presented at a future Business Section meeting. We will discuss this at our regular CAIT meeting on Saturday morning.

Other current or potential new projects that we will discuss on Saturday may include:

(1) development of form data transfer agreements for cross-border transactions;

(2) review of IT security issues arising out of the use by corporations of software under mass market licenses and consideration of whether questionable onerous clauses should be enforceable;

(3) preparation of articles or podcasts on discrete but related issues such as blogging guidelines for businesses, the corporate "cybersmear" and online reputation monitoring in the face of the rise of a new breed of search engines such as ZoomInfo, challenges to corporate record management policies in the face of new electronic communication practices, and safe harbors afforded by the Communications Decency Act; and

(4) issues relating to the outsourcing/offshoring of first level document review in an era of eDiscovery.

Looking beyond the Winter Working Meeting, if you have an idea for 15 minute presentation for the CAIT subcommittee meeting at the ABA Business Section Spring Meeting on April 10 in Dallas, please let me know as soon as possible. We have an opportunity to get information into the Spring Meeting program guide if we have the information by this Friday, January 18. Please also put on your thinking caps and send me other ideas for projects that would fit within CAIT's scope.

Best regards, and bundle up for Minneapolis.

Bill