Cyberspace Plenary Session and Hot Topics

The Committee's Meeting in full was held at 8 AM Saturday. Not surprisingly, this committee attended en masse notwithstanding the early hour (and, in some cases, whatever any of us were doing in Chicago on a Friday night...).

Vince Polley [picture] spoke for a few moments, discussing some Section news. He noted that this Annual is very well attended -- approximately 2200 Business Law members are here -- and that the Section is putting on 22 programs, which is far and away the most prolific of the ABA's sections. Of those 22, Cyberspace is putting on (directly or as a co-sponsor) six. On the publishing side, the Committee has produced 3 new book titles over the past year. In other words, we continue to be amongst the most productive committees in the most productive section.

Vince rattled off the upcoming meetings through the section, including Tampa in April 2006, and Honolulu in August 2006. Vince noted that the Hawaii meeting will have a modified format, including early start and stop times during the days and a smaller set of programs.

Vince handed the podium to Candace Jones, [picture] who will chair the committee going forward. Candace spoke briefly about the coming plans for 2005-2006. The Winter Working Meeting for January 2006 will be held in Wilmington, Delaware. Wilmington is a short ride from the Philadelphia airport, and can be reasonably reached from Baltimore as well. Also, Wilmington is on the Amtrak Acela train, so those in Boston, New York and D.C. (and points in between) have easy access.

Candace noted a few leadership and sub-group changes. Michael Fleming [picture] will be Vice Chairing the Committee, Juliet Moringiello will be Chair of the Publications Subcommittee, and Mattias Hallendorf will be the Co-Chair of the Transferability of Electronic Financial Assets Working Group (a joint project with the UCC Committee).

The Working Group on Spam will be re-purposed to a degree and renamed as the Working Group on Malware. Elizabeth Bowles [picture] will continue to chair the WG. It will expand its portfolio beyond spam and into the wider concept of 'malware' -- put in quotes because task one is probably how to define it.

A new Subcommittee on Privacy, Security & Data Management will be co-chaired by Peter McLaughlin and Michael Power.

After the short remarks, Candace handed off the meeting to our five (!!!) hot topics speakers, who each had to compress their remarkably dense topics into about 15-20 minutes each.


Rhea Fredericks gave a short synopsis of the recent decisions in the Zubulake and similar matters concerning electronic discovery, and particularly corporate obligations to retain and preserve evidence.






Michael Geist spoke on his views of the WGIG report on Internet governance, which included a short history of the governance of the Internet that led up to today's concerns.


John Ottaviani reviewed the Grokster decision and had some thoughts on where we go from here in the P2P world.




Elizabeth Bowles presented some early thoughts on the malware concept, including the ideas around how we can start to define the idea.







Steven Middlebrook spoke on his own personal views of the current controversies on patenting within the financial industry.

Committee Face Book

To help new members know who's who, we have created a sister blog that contains good "face shots" of committee members. Please check out the pictures.

If any of you are not pictured, and you'd like your picture added, please track down Fleming or me, and we'll take a photo of you and add it.

If any of you who are pictured don't want to be, let us know, and we'll take down your picture.

And the coffee was excellent

Fleming and I made the pilgramage to Chicago's coffee palace, Intelligentsia. The coffee was so good, we didn't even mind the $20.00 we spent in cab fare to get there and back.

We started with an order that confused the gal behind the counter; we each ordered a single espresso and a single macchiato. We quaffed those very quickly, and immediately followed up with another order. Fleming went for the latte pictured here. I ordered a traditinal cappuccino.

We sat and enjoyed the place for a bit, and then we headed back. I couldn't leave without taking a bit more of the store with me. We'll see how well the pound of whole bean espresso does in my home espresso machine.

Vince Polley's "Retirement/Thank You" Gift

At the Cyberspace Dinner, the Committee presented a retirement/thank you gift to Vince Polley to say thanks for his tremendous service as a member, and then Chair, of the Cyberspace Law Committee. As Hank and Michael Fleming described in lengthy detail (see earlier post), the group finally agreed upon a very low-tech gift--a book!

Food, Friends and Free Flowing Beverages

The Cyberspace Dinner was one of the best ever. The evening started with (SURPRISE!) an open bar, courtesy of the law firm Gordon & Glickson. (Thanks Steve). A big thanks also goes to Jackie Scheib for all the hard work she put into setting up the dinner at Wildfire.

Rotenberg Accepts Cyberspace Excellence Award

Last night, Marc Rotenberg of EPIC, graciously accepted the third annual Cyberspace Law Excellence Award. I had the privilege of sitting with Marc at dinner. We had a very lively conversation about privacy, security, notification of consumers about security breaches, goings-on at the Department of Homeland Security, and my reporter friend Declan McCullagh.

It was a thoroughly enjoyable evening.

Cyberspace Committee Dinner

A great time was had by all, as we awarded the Cyberspace Award for Excellence, honored our departing chief, and welcomed the new boss. Let us remember the night with a few photos.

Marc Rotenberg



Mark, Michael, Candace and Vince



Susan and Jason Epstein brought along their new twins



Jason holds our Committee's newest member



John and Chris



Don, Jackie and Don's spouse Diane


Elizabeth and Rafael



John, Elizabeth Cole (Australian attorney practicing in Shanghai), and Hank



Brad and Jane

[more to come...}

Wi No WiFi in Chi?

Actually, we have plenty of WiFi in our meeting space (thank you Business Section!). What I refer to is the new op-ed (registration required) from the NY Times about the town of Hermiston, Oregon and surrounding environs. The city has contracted with a private provider to set up what appears to be the world's largest WiFi Hotspot -- no cost service over a 600 square mile area.

Driving along the road here, I used my laptop to get e-mail and download video - and you can do that while cruising at 70 miles per hour, mile after mile after mile, at a transmission speed several times as fast as a T-1 line. (Note: it's preferable to do this with someone else driving.)

Author Nicholas Kristof noted the irony of a rural area in Eastern Oregon pulling this off while bigger cities are still stuck in the mud. I suspect we shall see this issue (or similar concerns about next generation wireless broadband such as WiMax) coming up more and more in the next years.

CLE PROGRAM: Sailing in Dangerous Waters

E. Michael Power, Roland Trope, Francoise Gilbert

The panel members used the metaphor of a submarine to describe data management and its risks to members of boards of directors. The panel provided a good overview of the various sources of law that make data security an increasingly important issue for companies. Moreover, the panel argued for increased attention to these issues by Boards of Directors of large and small companies.

This session demonstrated how data, its management, and security, is a common thread that runs through many of the programs at this year's meeting. The lack of attention to data management is a common source of many coroprate challenges:

• data privacy issues
• the difficulty of many companies to cope with the challenges of ediscovery
• data security breaches and the obligation to notify consumers of the breaches

Michael Power made my favorite comment of the session. To paraphrase: "You can batten every hatch on your boat, and it's still going to get in. That's what bilge pumps are for. Data is just like water. You may think you've got a handle on where your data is stored and how it is secured, but, just like water, it goes everywhere."

Seminar Materials are available here. [ABA ID Required]

Ecommerce Subcommittee Meeting

The Ecommerce Subcommittee meeting ran at breakneck pace as we tried to cover the substance-packed agenda in the one-hour time allotment. Luckily, no other group was scheduled for the conference room so we could continue for an extra half-hour.

The meeting opened with the announcement that Juliet Moringiello is stepping down as Co-Chair, having reached the end of her three-year term. In her new role as Co-Chair of the Programs and Publications Subcommittee, the entire Cyberspace Committee will reap the benefits of her leadership talents and enthusiasm. Chris Kunz will be the new Co-Chair of the Ecommerce Subcommittee. Chris has been the driving force behind the impressive body of work on "click wrap" and "browse wrap" agreements produced by the Working Group on Econtracting Practices during her tenure as its Co-Chair. The timing is especially good for Chris to shift into the Ecommerce Subcommittee because of her interest in the Model Trading Partner Agreement and the Subcommittee's newest project, the Model Electronic Transaction Routing Services Agreement.

The meeting proceeded with a round-up of the Subcommittee's on-going projects. We were fortunate that Co-Chairs of all five Working Groups were in attendance to present status reports.

• Linda Rusch summarized the progress that the Working Group on Transferable Records has been making on their attempt to give practical direction on how to establish "control" over electronic chattel paper.

• Kathy Porter explained the Working Group on Electronic Contracting Practices' upcoming article on modification of standard form electronic contracts. Their next project will be a comprehensive review of the recently-published model website in anticipation of version 2.

• Ben Beard reported on the annotations to Model Trading Partner Agreement, proposing that the Agreement be harmonized with the Model Electronic Transactions Routing Services Agreement, and that the two be published together.

• Don Clifford discussed the revisions that the Consumer Protection Working Group is making to the ABA-sponsored website for consumers, www.safeshopping.org, which still contains content from its 1999 launch.

• Jon Rubens brought us up-to-date on www.safe.selling.org, a proposed ABA-sponsored website for new Internet entrepreneurs .

Elaine Ziff made a presentation on two ecommerce decisions which were handed down in the past year. The first was Cairo v. Crossmedia Services, wherein the N.D. California upheld a choice of forum clause contained in terms and conditions posted on a site, despite the fact that the action meant to indicate assent, i.e., using the site, was undertaken by a robot which was not programmed to read the terms and conditions. The second case was Batesville Casket v. Funeral Depot, wherein in the S.D. Indianapolis suggested that the general rule that a website can link to another without liability for copyright infringements on the linked site does not necessarily apply where the linking site controls the content of the linked site.

The remainder of the meeting was dedicated to discussing the Model Electronic Transactions Routing Services Agreement. Phillip Schmandt and Chris Kunz led the group through their list of key conceptual questions, including, what is the difference between data and content, and what intellectual property, if any, will be created in the parties' relationship and who should own it? Between now and the Winter Working Meeting, a series of conference calls will be scheduled to go over the Model Electronic Transaction Routing Services Agreement in greater detail and focus on the actual language of the Agreement. If you would like to participate, please let Phillip or Chris know at pschmandt@mcginnislaw.com and ckunz@wmitchell.com.

Elaine Ziff, Co-Chair, Electronic Commerce Subcommittee