You Want CLE? You Got It!

By my count, your CLE Passport can net you (approximately) 12 hours of CLE without even leaving the Cyberspace sphere of influence. Come out and support your colleagues from the Committee, and surprise yourself at how good we all really are at this stuff.

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Friday 10:00 a.m.- 12:00 p.m.

Program: Outsourcing: Doing it Right the First Time and Every Time
Westin Michigan Avenue: Governor’s Suite, 3rd Floor
Presented by the Technology Committee
Co-Sponsored by the Cyberspace
Program Chair: Steven N. Hollman

Five distinguished leaders in the outsourcing field, including a leading attorney from Bangalore, India, will discuss steps to take when presented with a proposal for outsourcing, constructing service level agreements, special issues in off-shore outsourcing, and disclosure and compliance with U.S. laws. The panel will then engage in mock (unrehearsed) negotiation of a hypothetical outsourcing transaction.

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Saturday 10:30 a.m.- 12:30 p.m.

Program: Information Security and Dealing with Security Breaches
Westin Michigan Avenue: Cotillion Ballroom North & South, 2nd Floor
Presented by the Consumer Financial Services Committee
Co-Sponsored by Cyberspace
Program Chair: Joan P. Warrington

In this program, which was developed in conjunction with the Electronic Financial Services Subcommittee, representatives from Congress, the FTC, a state Attorney General and the private sector will discuss the latest laws, regulatory guidance, enforcement action and pending legislation relating to the protection of information and the obligations of entities that experience an information security breach.

Note: If you are interested in these issues, please plan to attend the meeting of the Electronic Financial Services Subcommittee.

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Saturday 2:30 p.m. – 4:30 p.m.

Program: Data Governance for Company Directors
Westin Michigan Avenue: Wellington Ballroom Two, 2nd Floor
Program Co-Chairs: Roland Trope and Michael Power

This program coincides with the ABA’s release of a book of the same title written by the program co-chairs. The panel will describe the impending “perfect storm” in the information security environment, identify trends contributing to its formation and review emerging legal requirements that create data governance obligations for directors. The panel will suggest questions directors should ask management to fulfill director obligations and provide guidance for assessing management’s response.

Note: If you are interested in these issues, plan to attend the meeting of the Subcommittee on Privacy, Security and Data Management.

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Sunday 8:00 a.m.- 10:00 a.m.

Program: Protecting Organizations’ Intellectual Property and Confidential Data in Outsourcing Transactions
The Drake Hotel: Michigan Room, West Mezzanine
Presented by the Intellectual Property Committee. Co-Sponsored by Cyberspace
Program Chair: Patrick J. Whalen

This program will present the risk to an organization’s IP and other private data when pursuing outsourcing and will outline strategies that companies may adopt to address these risks. Topics include an interdisciplinary strategic framework for structuring outsourcing deals, protocols for privacy protection, dispute resolution procedures and host nations’ treatment of IP.

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Sunday 2:30 p.m. – 4:30 p.m.

Program: RiskEContracts: How On Line Consumer Contracts are Treated in Foreign Jurisdictions
Westin Michigan Avenue: Wellington Ballroom Two, 2nd Floor
Program Co-Chairs: John Gregory and Don Clifford

Do your consumer online contract forms travel well? Terms and conditions normal in U.S. consumer contracts may be doubtful, invalid or even illegal in countries whose legal systems you may think are familiar. Lawyers practicing in France, the UK and Canada show you the risks and how to minimize them.

Note: If you are interested in these issues, plan to attend the meetings of the Internet Jurisdiction and Global eCommerce Policy Subcommittee and the Working Group on Consumer Protection.

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Monday 2:30 p.m. – 4:30 p.m.
Program: The Wonderful – And No Longer Exotic – World of Electronic Payment
The Drake Hotel: Drake Room, Upper Level
Presented by the Developments in Business Financing Committee
Co-Sponsored by Cyberspace
Program Chair: Martin Fingerhut

This program will provide a basic overview of the nature of payment obligations that are created through the Internet and other electronic media. The panel will also discuss a number of current legal and business issues, including enforceability under state and federal law, taking security on and securitizing these obligations and unique opinion issues.

Note: If you are interested in these issues, plan to attend the meeting of the Working Group on transferability of Electronic Financial Assets.

E-Commerce Consumer Protection Working Group

The latest draft of the update of the ABA Website Safeshopping.org is attached here.

All comments and suggestions will be enthusiastically considered. Send them to clif@email.unc.edu or print out a copy, mark it up on the airplane and turn it in at the Westin hotel desk for Don Clifford. The draft will be discussed at the meeting of the E-Commerce Consumer Protection working group on Saturday morning. All are welcome.

Internet Law Subcommittee Meeting

The Internet Law Subcommittee will be meeting on Monday, August 8, from 8am to 9am at the Westin Michigan Avenue, in Consulate Room One, 2nd Floor. Here is our agenda for the meeting. It's a very full plate and lots of interesting opportunities to get involved in cutting edge Projects, Programs and Articles.

Tom Laudise (tlaudise@tpwlaw.com) and Hank Judy (hjudy@klng.com) are the Co-Chairs of the Subcommittee and they very much welcome your participation.

Working Group on Electronic Contracting Practices

If you are coming to the Chicago ABA Annual Meeting, please join us at the Cyberspace Committee's Working Group on Electronic Contracting Practices, which is part of the Electronic Commerce Subcommittee.

The Working Group will meet in our Sunday, August 7th, from 3:30 to 4:30 a.m. in the Windsor Room (Westin Michigan Avenue, 2nd Floor).

Our successful Spring meeting program on modifications of electronic form agreements will become an article for the Business Lawyer. Join us to discuss our progress on the article. We will also have a number of new projects under consideration, including analyzing the types of provisions needed for nonpublic or private suite websites, offering some e-contract assistance to the model website committee, looking at the enforceability and operability of email disclaimers, and discussing whether and how bots might be bound by website terms of use. Finally, we will discuss a recent Massachusetts appellate case involving the refusal to enforce a forum selection clause in a cruise ticket. Please join us.

If you cannot join us in person, we have set up a dial in number for our meeting - contact Chris or Kathy below or post a comment to the blog to get the details.

We look forward to seeing you in Chicago! Please let us know if you have any questions or suggestions!

Co-chairs: Kathy Porter (kporter@rc.com) and Chris Kunz (CKunz@WMitchell.edu)

Cyberspace Committee dinner (Saturday, August 6, 2005)

It's six days before our annual Committee dinner in Chicago, and I'm excited about seeing all of you again, as my term as Chair of the Cyberspace Law Committee concludes.

Some tickets for the dinner will still be available at the Westin hotel on Thursday and Friday (this year's event is supported by generous support from Chicago’s own Gordon & Glickson, a premier law firm celebrating 25 years of specialized IT law).

If you're free Saturday night, please come to welcome Candace Jones as the incoming Committee chair, and to meet Marc Rotenberg, the executive director of the Electronic Privacy Information Center (www.epic.org), who is this year's recipient of the ABA's Cyberspace Law Excellence Award, recognizing substantial contributions to the development of the law of cyberspace through scholarship, participation in the legislative process or litigation.

Dinner will be at the Wildfire Restaurant, 159 W. Erie Street, 312-787-9000 (http://www.wildfirerestaurant.com/), starting at 7:30 pm (the Business Law Section reception precedes the dinner at 6:00 pm, at the Drake Hotel).

Vince Polley

Internet Jurisdiction and Global E‑Commerce Subcommittee

For anybody who may have received information to the contrary, please note the following:

• The meeting of the Internet Jurisdiction and Global E‑Commerce Subcommittee will be held on SATURDAY from 10 AM until 11 AM, at the Westin Michigan Avenue, Huron Room, 3rd Floor.

This is a room change from what was in Candace's earlier e-mail to the membership. There have also been some materials from ABA that stated the meeting is on Sunday, and these should be disregarded.

John Gregory reminds us of the following as well:

There will be a recap of recent international developments, enthusiasm about the two CLE programs that were developed by the subcommittee (Data Governance on Saturday afternoon and RiskECOntracts on Sunday afternoon) and brainstorming about how we can have as good a year next year. What should a Subcommittee of our title and scope be thinking about/working on? The leadership (Michael Geist and I) may have some ideas, but we'd like yours too (since we'll ask you to lead or join the work...)

Intellectual Property Subcommittee

For those of you attending the ABA Annual Meeting in Chicago, please join us at the Cyberspace Committee's Intellectual Property Subcommittee meeting. The Subcommittee will meet in our traditional time slot, Sunday, August 7th, from 8:00 to 9:00 a.m. in the Huron Room (Westin Michigan Avenue, 3rd Floor).

At the meeting, we will discuss our current projects, including an update of the status of our Open Source project, and discuss current topics and issues (Grokster, 1-800-Contacts, Perfect 10, and anything else for which we have time). We will also discuss taking on several new projects on a variety of emerging cyberspace/intellectual property issues, including "blog law," use of the DMCA as a competitive weapon, and legislation tracking, as well as potential projects on practice related issues such as "cool toys" and "how to develop an Internet law practice". Do you have other ideas? Bring them along! As usual, there is plenty of opportunity for anyone who is interested!

We look forward to seeing you in Chicago! Please let us know if you have any questions or suggestions!

• John E. Ottaviani (jottaviani@edwardsangell.com
• Eric Goldman (eric.goldman@marquette.edu)

Co-Chairs, Intellectual Property Subcommittee

Participate in the ABA's Toy and Book Drive

The Business Law Section's Committee on Pro Bono, Committee on Business and Corporate Litigation Subcommittee on Pro Bono and Public Service, the Young Lawyer Forum and the ABA Young Lawyers Division have joined forces to collect books and toys at the Annual Meeting for donation to a local shelter. You may drop off items at the Section's Satellite Registration Desk at the Westin Michigan Avenue hotel. Don't forget to include a toy and/or book when packing for Chicago. Or if you do forget, pick up a doll at the American Girl Store and hop across the street to Borders and buy a couple of books. Please help support this important endeavor as we give back to the City hosting our wonderful Annual Meeting.

Karen Hagewood
Cyberspace committee liaison to the Pro Bono Committee

Meeting Planner for Cyberspace Events at the Annual Meeting

Dear Committee Member,

To help you plan your schedule for Chicago, I am attaching a chronological list of Cyberspace Committee meetings and programs. We are presenting or co-sponsoring 7 programs in Chicago, including an outsourcing panel that will feature a leading legal expert from Bangalore, India, and an international panel to discuss the enforceability of online consumer contracts outside the U.S. The ABA will also be releasing a new book, Data Governance for Company Directors by Committee members Michael Power and Roland Trope. Michael and Roland will present a companion program on Saturday afternoon.

If you have not yet gotten tickets for the Committee dinner, please check at the Satellite Registration desk at the Westin Michigan Avenue. Thanks to the generous support of the Chicago IT law firm, Gordon & Glickson, sponsor of the Committee Dinner, tickets are only $50 per person. The Committee Dinner will feature the presentation of the third Cyberspace Law Excellence Award to Marc Rotenberg, Executive Director of EPIC (the Electronic Privacy Information Center).

We look forward to seeing you in Chicago.

Candace M. Jones, Esq.
Hahn Loeser & Parks LLP
3300 BP Tower
200 Public Square
Cleveland, OH 44114
Ph: 216.274.2433
Fax: 216.241.2824
cmjones hahnlaw.com

New ABA Project: Model Electronic Data Agreement for Third-Party

The Electronic Commerce Subcommittee of the ABA's Committee of Cyberspace Law is sponsoring a new project: The drafting of a Model Electronic Data Agreement for Third-Party Service Providers. Introduced at the Spring Meeting in Nashville, this project is now ready to be taken to the next level at the Ecommerce Subcommittee Meeting in Chicago on Saturday August 6th. You are invited to participate.

This Model Agreement will cover third-party providers that transmit, store, or transform unencrypted electronic data for one or more trading partners. The Model Agreement is intended to be industry- and technology-neutral, but structured to easily incorporate requirements unique to any industry or technology.

Synopsis
The Model Electronic Data Agreement for Third Party Service Providers will complement the 1990 "Model Trading Partner Agreement," which is used in relationships between trading partners using electronic data interchange (EDI). The new Model Electronic Data Agreement will govern third parties hired by one or both of those trading partners and would address the emerging use of XML electronic transactions.

Issues To Be Addressed
The scope of the model agreement will be determined by the Electronic Commerce Subcommittee. However, it is expected that the drafters will consider issues such as:
(1) standards or warranties applicable to services;
(2) permitted and prohibited use of electronic data;
(3) ownership of data;
(4) differentiating a third-party provider's duties to its customers from its duties to other
trading partners who may have no privity of contract with the third-party provider but whose data is held by the third-party provider;
(5) security standards;
(6) implications of Sarbanes-Oxley; and
(7) liability issues.

A Balanced Perspective Needed
This project will succeed if it attracts project members who have experience representing third-party service providers, trading partners who hire third-party service providers, and trading partners whose data is held by third-party providers not hired by that trading partner. All three perspectives are needed in order to produce a balanced Model Agreement that will gain acceptance in commercial use.

Work Plan
The Subcommittee plans to distribute a "talking paper" in advance of the annual meeting of the ABA in Chicago (August 5-9) and to discuss the draft at a Subcommittee meeting at the annual meeting. Although your attendance is by no means required in order to participate in this project, if you are able to make arrangements to attend, it would be constructive to have as any participants as possible at the August meeting.

How to Sign Up
We welcome your participation in this project. If you would like to participate, contact either of the persons listed below. Also seriously consider attending the August meeting in Chicago
(register at http://www.abanet.org/annual/2005 ).

Phillip Schmandt
McGinnis, Lochridge & Kilgore, LLP
1300 Capital Center
919 Congress Avenue
Austin, Texas 78701
Phone: (512) 495 - 6087
email: pschmandt@mcginnislaw.com

Christina Kunz
William Mitchell College of Law
875 Summit Ave.
Saint Paul, MN 55105-3076
Phone: (651) 290 - 6340
email: ckunz@wmitchell.edu

More Detailed Descriptions
Copies of the original project proposal and a preliminary outline of possible issues will be available by link soon. We distributed both documents at the ABA Section of Business Law Committee meeting in Nashville in April 2005. Both remain subject to change based on the direction of the Electronic Commerce Subcommittee.


Elaine D. Ziff
Intellectual Property & Technology Group
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212) 735-2656 (Telephone)
(212) 735-2000 (Facsimile)
EZIFF Skadden.com (Email)