Tag Archives: Informatics

W. Bruce Lunsford contribution to create Academy for Law, Business + Technology

Posted on by

With apologies for posting a press release as a blog post, the news that W. Bruce Lunsford has pledged $1 million to Chase under the direction of the Law + Informatics Institute for the creation of the the W. Bruce Lunsford Academy for Law, Business + Technology is exciting enough for us to share our news.

HIGHLAND HEIGHTS, Ky. (May 15, 2013) — The Northern Kentucky University Chase College of Law has received a $1 million gift from W. Bruce Lunsford to establish and support the W. Bruce Lunsford Academy for Law, Business + Technology.

Lunsford, a 1974 graduate of Chase College of Law, is chairman and CEO of Lunsford Capital, LLC, a private investment company headquartered in Louisville, Ky.

The W. Bruce Lunsford Academy for Law, Business + Technology will be an honors immersion program operated by the NKU Chase Law + Informatics Institute. The focus of the program will be to develop “renaissance lawyers” for the Information Age. The Lunsford Academy will provide students with the technological, financial and professional skill sets essential to the modern practice of law.  Through the program’s technology-driven, skills-based curriculum, students will acquire the fundamental skills that will make them more productive for their clients, more attractive to employers and better prepared to practice law upon graduation.

For those interested in learning more about the details of the program, the most comprehensive vision is provided in my forthcoming article from Connecticut Law Review. An working draft of the paper may be found here: Jon M.Garon, Legal Education in Disruption: The Headwinds and Tailwinds of Technology, (Conn. L. Rev. forthcoming) at SSRN: http://ssrn.com/abstract=2040560.

In addition to taking the program’s required and elective law and informatics courses, Chase students participating in the Lunsford Academy will have the opportunity to participate in technology-focused semester-in-practice placements and study abroad programs; they will also be able to seek joint degrees.

Chase College of Law partners with the NKU College of Informatics to offer a Juris Doctor/Master of Business Informatics and Juris Doctor/Master of Health Informatics and with the NKU Haile/US Bank College of Business to offer a Juris Doctor/Master of Business Administration.

Professor Jon Garon, director of the Law + Informatics Institute, said the development of the Lunsford Academy is the next step in the evolution of legal education. “In addition to a solid foundation in legal doctrine, theory and practice, law students need business education, information technology and intellectual property knowledge, and law practice management experience,” he said. “These skills will enable students to compete in today’s highly networked, efficient and global business community. The generous donation by Bruce Lunsford enables Chase to meet this challenge and redefine the scope of legal education.”

In recognition of Lunsford’s gift, the academy will be named the W. Bruce Lunsford Academy for Law, Business + Technology, upon approval by the NKU Board of Regents.

“We are extremely honored and pleased that Bruce has made this significant investment in our Law + Informatics Institute,” said Dennis R. Honabach, dean of the College of Law. “The Lunsford Academy will provide our law students with invaluable opportunities to become uniquely prepared for the modern practice of law.”

Beyond Google’s Looking Glass – The Internet of Things is Already Here

Posted on by
Seal of the United States Federal Trade Commis...

(photo: Wikipedia)

Perhaps triggered by the New York Times coverage of Google Glass, The FTC announced both a call for submissions and a workshop related to the Internet of Things and its implications on privacy, fair trade practice, and security implications for both data and people. The FTC announcement highlights both the benefits and risks of device connectivity.

Connected devices can communicate with consumers, transmit data back to companies, and compile data for third parties such as researchers, healthcare providers, or even other consumers, who can measure how their product usage compares with that of their neighbors.  The devices can provide important benefits to consumers:  they can handle tasks on a consumer’s behalf, improve efficiency, and enable consumers to control elements of their home or work environment from a distance. At the same time, the data collection and sharing that smart devices and greater connectivity enable, pose privacy and security risks.

The issue is not new. The ITU released a 2005 study discussing the implications of the Internet of Things. The ITU described a near, technological future in which “industrial products and everyday objects will take on smart characteristics and capabilities. … Such developments will turn the merely static objects of today into newly dynamic things, embedding intelligence in our environment, and stimulating the creation of innovative products and entirely new services.”

I have previously described some of these concerns in an article, Mortgaging the Meme.[1]

In each of these situations, an automated and consumer-defined relationship will replace the pre-existing activities. In many situations, this will create efficiency and convenience for the consumer, but it will also reduce the opportunities for human interaction and subtly rewrite the engagement between customer and company. Those that understand this change will adjust their technologies to improve the service and increase the customer‘s reliance on its systems. Companies that do not understand how this engagement will occur, risk alienating customers and losing markets quickly.

Beyond consumer interactions, other uses may arise. Ethical and privacy concerns regarding misuse tend to focus on government, business and organized crime. These include unwarranted surveillance, profiling, behavioral advertising and target pricing campaigns. As a result, as companies increasingly rely on these tools, they also bear a responsibility to do so in a socially positive manner that increases the public‘s estimation of the company.

Timing for the FTC submissions and workshop are overdue. Reading the New York Times quote regarding app developers, there is a sense that unlike the technology giants such as Microsoft and Google, the developers are thinking more about the technology’s potential than its potential impact. One such example from the Times: “‘You don’t carry your laptop in the bathroom, but with Glass, you’re wearing it,’ said Chad Sahlhoff, a freelance software developer in San Francisco. ‘That’s a funny issue we haven’t dealt with as software developers.’”

Many fields will benefit from increased device connectivity. Just a few:

  • Public transportation systems designed around real-time usage and traffic patterns.
  • Prescription monitoring to help patients take the right medications at the correct time.
  • Fresher, healthier produce.
  • Protection of pets and children.
  • Social connectivity, with photo-tagging and group-meeting moving into the real world.
  • Interactive games played on a real-world landscape.

There are also law enforcement uses that must be carefully considered. After the Boston Marathon attack, for example, calls for public surveillance will undoubtedly increase, including calls for adding seismic devices and real-time echo-location. Gunshots, explosions, and even loud arguments could become self-reporting.

Common household products sometimes become deadly in large quantities. RFID technology could be used to monitor quantity concentration of potentially lethal materials and provide that data to the authorities.

The consumer use, public use, and law enforcement use must be thoughtfully reviewed to balance the benefits of the technology with the intrusions into privacy and the legacy of retrievable information that such technology creates.

FTC staff will accept submissions through June 1, 2013, electronically through iot@ftc.gov or in written form. The workshop will be held on November 21st. These are the questions posed by the FTC thus far:

  • What are the significant developments in services and products that make use of this connectivity (including prevalence and predictions)?
  • What are the various technologies that enable this connectivity (e.g., RFID, barcodes, wired and wireless connections)?
  • What types of companies make up the smart ecosystem?
  • What are the current and future uses of smart technology?
  • How can consumers benefit from the technology?
  • What are the unique privacy and security concerns associated with smart technology and its data?  For example, how can companies implement security patching for smart devices?  What steps can be taken to prevent smart devices from becoming targets of or vectors for malware or adware?
  • How should privacy risks be weighed against potential societal benefits, such as the ability to generate better data to improve healthcare decision making or to promote energy efficiency?
  • Can and should de-identified data from smart devices be used for these purposes, and if so, under what circumstances?

While the FTC has asked some good questions, they are only the beginning. Please submit your thoughts and join the FTC conversation.

[1] Jon M. Garon, Mortgaging the Meme: Financing and Managing Disruptive Innovation, 10 NW. J. TECH. & INTELL. PROP. 441 (2012).

When to shred your Facebook page

Posted on by

Two recent cases (both analyzed quite thoughtfully in Eric Goldman’s blog) highlight the importance of anticipating the unintended audiences. These situations are not unique, but they provide stark reminders of why each person should be diligent about social media and its impact. The first lesson provides a stark reminder that broad complaints lose their context online. As report in the Matter of the Tenure Hearing of Jennifer O’Brien, State Operated School District of the City of Patterson, Passaic County, 2013 WL 132508 (Jan. 11, 2013), a2452-11, Ms. O’Brien was a tenured, certified elementary school teacher in the Patterson, NJ schools. O’Brien had been assigned a technology coordinator at School No. 29. The next year she found herself at School No. 21. assigned to teach the first grade, with 23 students, “[a]lmost all [of whom] were six years old. All were either Latino or African-American.” The court reports the posts:

On March 28, 2011, O’Brien posted two statements on Facebook, an internet social-networking site. The first statement was, “I’m not a teacher — I’m a warden for future criminals!” The second statement was, “They had a scared straight program in school — why couldn’t [I] bring [first] graders?”

Perhaps Ms. O’Brien was frustrated at her reassignment; perhaps this was dark humor. It was insensitive, disparaging of these six year olds, and found to constitute conduct unbecoming a teacher. Her defense that six or seven of the student were disciplinary problems or had stolen from her seems a bit non-responsive. Posting to her friends, which numbered above 300, amounted to a broadcast and resulted in her termination. She never should have made such a post. But how does she rectify it? The answer to that leads to the second incident listed on the Goldman blog. In Allied Concrete v. Lester, 2013 Va. LEXIS 8 (Jan. 10, 2013), Venkat Balasubramani writes of a dispute in which the survivor in a wrongful death action is told by her attorney’s paralegal to “to “clean up” his Facebook page because he didn’t “want any blow-ups of this stuff at trial.” While the Facebook page was subject to discovery, at least in part because the plaintiff sent a Facebook message to an attorney for the defendant. Having failed to exclude the Facebook page, the lawyer was concerned that embarrassing pictures would negatively influence the jury and affect the damage award. He should have been worried that instructing the paralegal to advise the client to destroy documents could lead to sanctions and affect the trial. In this case the sanctions were levied at $542,000 and an additional $180,000 was ordered paid to cover costs of the defendants. (Admittedly, the plaintiff made matters worse by lying about the deletion and evading the discovery requests.) While sanctions of this size should highlight the need to be cautious about what to post and when to remove the posts, matters involving federal investigations are even riskier. The Sarbanes-Oxley anti-shredding laws extend to any destruction of material related to an ongoing federal investigation. The law is extremely broad:

18 USC § 1519 – Destruction, alteration, or falsification of records in Federal investigations and bankruptcy Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Although enacted as part of Sarbanes-Oxley, the law does not have any limitations regarding publicly traded companies, corporate fraud – or seemingly any limitations at all. If the eventual investigation includes a federal agency or inquiry, then the knowing destruction of a record constitutes a violation. And records aren’t pressed in vinyl or lacquer. Tweets, posts, photos, and video will all be covered under the statute. A quick collection of examples serves to illustrate the point:

Individuals prosecuted under Section 1519 include: an employee of a private community corrections center, for providing an inmate with a clean urine sample and falsely completing official paperwork regarding the sample, United States v. Jensen, 248 Fed. Appx. 849 (10th Cir. 2007); a woman who destroyed a CD containing child pornography that belonged to her boyfriend after learning that he was under investigation by the FBI, United States v. Wortman, 488 F.3d 752 (7th Cir. 2007); a Pennsylvania state senator, for destroying e-mails pertaining to matters under federal investigation, United States v. Fumo, 2007 U.S. Dist. LEXIS 79454 (E.D. Pa 2007); and an ophthalmologist, for falsifying and creating false medical records in order to defraud Medicare and Medicaid, United States v. Mermelstein, 487 F.Supp.2d 242 (E.D.N.Y. 2007). — Obstruction of Justice under Sarbanes-Oxley: A Broad Reach by Michael G. Considine and Caroline Bersak Hyde

As a result, removals of Facebook pages, Tumblr photographs or other online content could result in a 20-year federal prison sentence if the content is removed after the owner of the account becomes aware that a federal agency is taking an interest in a matter relating to the post. Since the crime is committed if the removal is done pursuant to an indictment, investigation, or “in relation to or contemplation of” such a matter, once a federal inquiry could be triggered, it is potentially too late to remove the content. The obvious lesson is not to post harmful comments or embarrassing statements. The second best step is to remove harmful content to reduce ongoing embarrassment and damage while preserving the removed content for investigators. After all, nothing in the law requires a person continue an ongoing harm; the duty is to disclose to investigators and that goal can be accomplished without continuing the public disclosure. If the situation in Patterson had created interest in pursuing a federal civil rights claim on behalf of the first grade students, then suddenly the question of social media decorum easily escalates to a federal investigation. In such a case, the comments can only be removed if they are fully archived so that there is no spoliation of the evidence. If a teacher in Ms. O’Brien’s position tried to delete the Facebook account to make the situation go away, that teacher could be facing federal prison rather than merely a tenure hearing. This raises not a lesson but a warning. The overbreadth of these statutes grants far to much prosecutorial discretion and the ability to layer multiple criminal sanctions on, one-atop-another. Trivial acts may suddenly result in prosecutions for decades of potential jail time. Strong laws require predictable outcomes and equal treatment. Selective enforcement of overly broad provisions achieve no social goals. The final lesson is for employers to develop, enforce and train their staff members on the importance of both social media policies and document retention policies. Companies face challenges enforcing either policy, but when they come in conflict, employees and their supervisors can land in jail. Maybe the best time to shred that social media account is right this minute – unless, of course, there is any federal interest in investigating the content.

ITU Treaty rejected by US and Western nations but ratified by majority

Posted on by

Earlier this Month, the U.S. and many Western nations rejected a proposed revision to the World Conference on International Telecommunications (WCIT) organized by the International Telecommunications Union of the United Nations. The White House issued a statement on Dec. 21st in which it explained the rejection of the proposed treaty amendments because the ITU regulation of Internet governance would lead to greater governmental regulation of access to the Internet and the content available online. As the statement explained, “the Internet’s social and economic benefits come from the free flow of information and ideas and that the technical innovation enabling this information flow comes from the full engagement of civil society, industry, and governments in the process.”

At the same time, however, it is important to recognize that the treaty was adopted, 89 states did sign onto the revised treaty, signaling a strong split among nations regarding the nature of Internet governance. Mohamed al-Ghanim, chairman of the WCIT commented “I hope that the 55 states that said do not want to sign the treaty, or need to hold consultations, to think again.” Ghanim is the chief of the UAE’s Telecommunications Regulatory Authority. The treaty is not binding on the non-signatory countries.

The tension over the ITU treaty amendments which had been focused on expanding broadband to greater parts of the globe highlight the growing tension over the role of Internet access as part of human rights protections. Countries such as Russia and China see control over Internet content within their borders as a fundamental issue of sovereignty while U.S., E.U. and other government coalitions view Internet content as a fundamental human right. In July of this year, for example, the U.N. Human Rights Council passed a resolution that “affirms that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.”

The ITU vote suggests a growing of the Cyber Cold War in which historical East/West divisions are reemerging behind firewalls rather than the physical walls of the twentieth century. As in the past, the various U.N. bodies and commissions are split as to their allegiance and ineffectual in their pronouncements.

While the constant threat of cyber-attacks against governmental computers has become a constant occurrence in almost every country, the ITU vote signals a more explicit acknowledgement of the regulatory rift among nations. For governments seeking to manage the information available to their citizens or control the publications by their citizens, the open nature and growing penetration of the Internet represents a fundamental challenge to governmental control. The ITU vote reflects this tension and provides a roll call for the nations seeking greater transparency and those seeking greater control. Transparency is behind in the vote – 55 to 89.

Orphan Works Notice of Inquiry ends Jan. 4th, setting the stage for a new era of publishing industry debate on fair use

Posted on by

As 2012 begins to wind down, it is time to turn to the transformation taking place in the publishing sector. 2012 may be marked as the end of the printed book – not because physical publishing has ended but because the ingredients for its demise are now all at hand. Of course, it will continue indefinitely just as vinyl records continue to have a place in the music economy, just not a significant place.

I have previously discussed the broad sweep of changes affecting publishing. See “Foretelling the Future of the Book Business.” Among the issues affecting the future of publishing are the legacy impacts on previously published works. These issues include a range of topics:

  • The meaning of contractual terms for “in print” publications, when a book can be made available digitally or on demand;
  • Derivative rights clauses and media clauses when the parties contemplated only categories such as hard cover, paperback, and trade paperback without regard to digital, audiobook or other repurposing;
  • Non-publishing uses by publishers or other rights holders to scan books in cases where the publisher does not have digital reproduction rights; and
  • The ability of libraries or other owners of particular copies to authorize the digitization of copies when the rights holder cannot be identified – the “orphan works” problem.

The Copyright Office is beginning to grapple with some of these issues, and the concern that is focused most squarely on legal rather than contractual concerns is that of orphan works.

In October 2011, the Copyright Office published “Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document.” The report is framed by the question raised in the Google Books class action litigation which is now in its seventh year:

The question of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” [And the Supreme Court has] noted that it was Congress’s responsibility to adapt the copyright laws in response to changes in technology.[1]

While the report does not focus exclusively on orphan works, it has led the Copyright Office to begin an “initial notice of inquiry.” The request for comments seeks comments on “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the [orphan works] problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.”

Comments are due by January 4, 2013 and may be submitted online.

In the notice of inquiry, the Copyright Office framed the discussion with this comment:

The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, in recent months, the European Commission has adopted measures that would begin to resolve the issue in certain contexts and a number of foreign governments are reviewing or proposing solutions. The Copyright Office seeks comments regarding the current state of play for orphan works.

As litigation continues in the publishing industry, consolidation of the major publishing houses and retailers transform the business landscape, and digital access reshapes consumer behavior, the orphan works issue will increasingly take a back seat to the economic restructuring of the industry. Nonetheless, the manner in which the Copyright Office, and ultimately Congress, deals with the issue will serve as a harbinger for legislative tolerance of the transforming publishing industry. As such, it is a bell-weather for things to come and an important platform to participate in the policies of publishing fair use.

I expect that on the heels of this debate will come the debate about fair use in the academic publishing environment. The scope of fair use for orphan works may also influence this developing public policy debate on the breadth of access to free or low cost teaching materials and the industry’s need to maintain revenue to develop new works.

The best way to shape both these discussions is to participate. The deadline is January 4th.

[1] Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 677 (S.D.N.Y. 2011) (the “Google Books” case) (quoting Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) and Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (citations omitted)); see also Am. Soc’y of Media Photographers, Inc. v. Google Inc., Civil No. 10-2977 (S.D.N.Y.) (companion suit filed by a consortium of visual artists for infringement of visual works in books).

IP for Creative Upstarts papers available for conference on Nov. 9-10, 2012

Posted on by

Presented by Michigan State University College of Law

Intellectual Property, Information & Communications Law Program

Co-sponsored by

       NKU Chase College of Law, Law + Informatics Institute

Copyright Alliance

This conference considers how law and policy can nurture diverse creative industries—”Creative Upstarts”—in the U.S. and abroad. “Creative Upstarts” encompass a range of commercial enterprises from independent artists and producers in developed countries to emerging content industries such as Nigeria’s “Nollywood,” Jamaican dancehall, Brazilian tecnobrega music, and Chinese digital publishing. Their interests have been overlooked in recent debates on intellectual property and information policy. This conference seeks to remedy that gap. Read More …

Papers

More Information:

                   

Sponsors

Contact Information

Professor Sean Pager

spager@law.msu.edu

New CRS Reports Highlight Legislation for Cybersecurity

Posted on by

As noted in Eric Ficher, Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions, (June 29, 2012) (CRS Report R42114) (full-text), cybersecurity is a “somewhat fuzzy subject.” Yet it has become the focus of considerable regulatory and legislative attention.

Dr. Fischer, Senior Specialist in Science and Technology, has provided a comprehensive roadmap for CRS which provides some context for the competing legislative approaches to this important but under-reported topic.

As the report notes, “There is as yet no overarching framework legislation in place, but many enacted statutes address various aspects of cybersecurity.” The report reviews proposed changes to 28 separate laws from the Posse Comitatus Act of 1879 to the Intelligence Reform and Terrorism Prevention Act of 2004. He reports that “more than 50 statutes address various aspects of cybersecurity either directly or indirectly, but there is no overarching framework legislation in place.” So the report provides an important outline of the disparate efforts to address cybersecurity in congress.

The report identifies ten broad areas for the legislative proposals:

  • national strategy and the role of government,
  • reform of the Federal Information Security Management Act (FISMA),
  • protection of critical infrastructure (including the electricity grid and the
  • chemical industry),
  • information sharing and cross-sector coordination,
  • breaches resulting in theft or exposure of personal data such as financial
  • information,
  • cybercrime,
  • privacy in the context of electronic commerce,
  • international efforts,
  • research and development, and
  • the cybersecurity workforce.

Not to be outdone, the companion report provides even more specific information regarding recent legislative efforts. Rita Tehan, Cybersecurity: Authoritative Reports and Resources (July 3, 2012) (CRS Report R42507) (full-text) provides a comprehensive overview. Together, the two reports provide a critical roadmap to the present legislative efforts. Tehan’s introduction provides a glimpse at the scale of the activity:

“Cybersecurity is a sprawling topic that includes national, international, government, and private industry dimensions. More than 40 bills and resolutions with provisions related to cybersecurity have been introduced in the first session of the 112th Congress, including several proposing revisions to current laws. In the 111th Congress, the total was more than 60. Several of those bills received committee or floor action, but none have become law. In fact, no comprehensive cybersecurity legislation has been enacted since 2002.”

Fischer notes the importance of these changes. As he notes, “for more than a decade, various experts have expressed increasing concerns about cybersecurity, in light of the growing frequency, impact, and sophistication of attacks on information systems in the United States and abroad. Consensus has also been building that the current legislative framework for cybersecurity might need to be revised.”

Additional coverage can be found by ITWiki, PrivacyLives, and Justice Information Sharing.

Ethics in Informatics – Assessing ABA’s Ethics 20/20 Commission

Posted on by

May 4, 2012 the NKU Chase Law & Informatics Institute presents an ethics program focusing on the proposed changes to the ABA Model Rules of Professional Responsibility and similar changes to SEC Guidance for disclosure of cybersecurity risk. Dean Dennis Honabach and Professor Jon Garon will lead the conversation.

In 2009, The American Bar Association created the Ethics 20/20 Commission (“Commission”) to “perform a thorough review of the ABA Model Rules of Professional Conduct [(“MRPC”)] and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”[1] The Commission held hearings and developed draft statements regarding a number of topics, including the effect of technology on a lawyer’s duty of confidentiality and client development.[2]  Having completed its review on several key proposals, they will be brought to the ABA for approval in August 2012:

The ABA Commission on Ethics 20/20 is pleased to release for comment by April 2, 2012, along with a Cover Memo from Co-Chairs Jamie S. Gorelick and Michael Traynor, final revised drafts of Commission Proposals scheduled to go to the ABA House of Delegates in August 2012.  These six revised draft proposals cover the subjects of Technology (Confidentiality), Technology (Client Development), Outsourcing, and Uniformity/Mobility (including Model Rule 5.5 and Practice Pending Admission), Admission by Motion, and Model Rule 1.6 (Duty of Confidentiality).

In addition to the materials provided by the ABA, we have created a Summary Analysis as well as a CLE Powerpoint presentation.

To summarize the program:

The practice of law has largely gone digital in the past decade. Remote access to one’s office, reliance on smart phones to share data, email and social media to communicate with clients, and other emerging technologies to conduct overseas cloud-based outsourcing or operate virtual law offices have transformed the mechanics of practicing law.

The American Bar Association’s Commission on Ethics 20/20 is examining technology’s impact on the legal profession. In proposals recommended for adoption this year, the Commission proposes adoption of a new Rule 1.6(c) which would require that a “lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.” While this duty has existed under the prior rules, the modifications make clear that this affirmative duty extends to data privacy, security and reliability.

These proposals also address issues of screening electronic information accessible to a law firm assure that confidential information known by a personally disqualified lawyer remains protected from inappropriate access by other attorneys; an affirmative duty to “keep abreast of changes in the law and its practice, including the benefits and risks associated with technology;” and many others.

Not to be outdone, the Corporate Finance Division of the Securities and Exchange Commission has taken steps of its own to require greater awareness, disclosure and reporting of issues relating to technological knowledge held by a company – including its lawyers. The guidance identifies that “a number of disclosure requirements may impose an obligation on registrants to disclose such risks and incidents. In addition, material information regarding cybersecurity risks and cyber incidents is required to be disclosed when necessary in order to make other required disclosures, in light of the circumstances under which they are made, not misleading.” Lawyers drafting these disclosures – and lawyers dealing with the risk assessment for their clients – as well as regarding their own practices – have an increasingly external standard of care and responsibility to meet the cyber-risks inherent in the modern digital practice of law.

While it is likely that many of the revised Rules of Professional will be adopted, the changes primarily codify the existing duty to maintain a lawyer’s ongoing duty to remain competent. These materials are intended to assist with that effort by providing an update to the ethical rules and the technologies at the heart of these changes.

The Commission has distributed its recommendations and solicited final comments through April 2, 2012. Final hearings were held April 13-14, 2012 and the Commission will be releasing the final versions of these proposals for approval at the August 2012 ABA Annual Meeting.

LII Presents Ethics in Informatics Program on proposed changes to ABA guidelines and SEC Technology Guidance

Posted on by

Information and registration for our next even is now available.

Ethics in Informatics:

Changing Ethics Rules and New SEC Guidance Redefine the Competency of the Lawyer

featuring

Dean Dennis R. Honabach, Chair of the ABA’s Standing Committee on Professionalism

Professor Jon M. Garon, Director of the NKU Chase Law & Informatics Institute

Friday, May 4, 2012

Cincinnati, Ohio

The practice of law has largely gone digital in the past decade.  In response, the American Bar Association’s Commission on Ethics 20/20 is examining technology’s impact on the legal profession.  It has proposed a revision to the Model Rules of Professional Responsibility to make explicit the affirmative duty to prevent “the unintended disclosure of, or unauthorized access to, information relating to the representation of a client” to data privacy, security and reliability.  Not to be outdone, the Corporate Finance Division of the Securities and Exchange Commission has taken steps of its own to require greater awareness, disclosure and reporting of issues relating to technological knowledge held by a company – including its lawyers.

This program provides attendees guidance on three key areas:

  • The existing and proposed ethical rules regarding technologically mediated client confidentiality;
  • The lawyer’s role in assisting clients meet their affirmative duties of disclosure; and
  • The lawyer’s duties regarding social media and cloud computing in the context of client communications, ex parte communications, and interactions with the judiciary in social media and cyberspace.
Date: Friday, May 4, 2012
Time: 7:30 a.m. to 9:35 a.m.
Continental Breakfast will be served from 7:30 a.m. to 8:00 a.m.
Location: Wood, Herron & Evans, Floor 36, 441 Vine Street, Cincinnati, OH 45202
Registration fee: $99.00 for general public and $89.00 for alumni
CLE credits: 1.5 Ethics CLE in Ohio & KY
For more information: www.lawandinformatics.org/breakfastseries
Online registration: Register online
Fax Registration: Download a fax registration form
Call in registration: (859) 572-7853 to reach Admin. Dir. Lindsey Jaeger

Dean Dennis R. Honabach is the co-author of D&O Liability Handbook and the Proxy Rules Handbook. He has published law review articles on topics ranging from managerial liability and Enron to toxic torts and legal education. Dean Honabach is the chair of the ABA’s Standing Committee on Professionalism, the co-chair of the Business Law Education Committee of the ABA’s Business Law Section and a member of the Misconduct and Irregularities Subcommittee of the LSAC.

Jon M. Garon is an attorney and professor of informatics, entertainment, intellectual property and business law. He has extensive practice experience in the areas of entertainment law (including film, music, theatre and publishing), data privacy and security, business planning, copyright, trademark, and software licensing.

“Ethics in Informatics” is the first presentation in the Law & Informatics Breakfast Series, which will address various topics on privacy, data security, social media and ethics. These programs will be hosted in downtown Cincinnati. We are very grateful to the law firms of Wood Herron & Evans LLP, Frost Brown Todd LLC, Baker & Hostetler LLP and Dinsmore & Shohl LLP for their support as hosts for this coming year’s program.

                         

Blown to Bits – Britannica no longer in Print

Posted on by

Encyclopaedia Britannica, which was first published in Scotland in 1768 will no longer be in print. The paid, online version will continue, as will the iPad and iPhone apps. The encyclopedia became a Chicago-based U.S. company in 1902 and is presently owned by Swiss financier Jacob Safra. For generations of adults, the Encyclopaedia Britannica part of growing up. It was sold door-to-door for most of the twentieth century to families on the promise of a brighter future, lit by the compendium of knowledge necessary for the modern age.

In their pioneering work on disintermediation, Boston Consulting Group members Philip Evans and Thomas S. Wurster highlighted the “near-demise” of Encyclopaedia Britannica as an example of “the new economics of information will precipitate changes in the structure of entire industries and in the way companies compete.” The Harvard Business Review article in 1997 received a 1997 McKinsey Award and their 1999 book, Blown to Bits, captured the transformation of media at its economic core, anticipating the new business models that supported Amazon.com, Apple and Google.

Britannica was not caught entire flat-footed by the information age, but as noted in works on disruptive innovation, being a market leader sometimes makes it difficult to respond. Britannica created its first digital collection in 1981. Although it had its own multimedia CD by 1989, its sales were eclipsed by Microsoft Encarta when it launch in 1993. (Ironically, Microsoft had initial sought to work with Britannica but was rebuffed.) Microsoft essentially gave Encarta away for free to help justify the price of the personal computer, making the PC and disk close in price to the cost of just the home set of Britannica. The strategy work, helping to fuel the growth of the PC industry.

In 2001, along came Wikipedia, a crowd-sourced free collaborative encyclopedia which has come to exemplify the collaborative movement for an always-networked age. Britannica decided that it could not compete with the free business model. Microsoft ended the CD run of Encarta in 2009.

The Britannica sales strategy could never justify pricing and marketing the CD properly because it created too much damage to the print product. Although the accuracy comparisons continue between Wikipedia and Encyclopaedia Britannica, studies tend to find them comparable or Britannica to have only slightly fewer errors.

“At Encyclopaedia Britannica we believe that the announcement that we will no longer print the 32-volume encyclopedia is of great significance, not for what it says about our past, but for what it projects about our vibrant present and future as a digital provider of general knowledge and instructional services,” posted Jorge Cauz, president of Encyclopaedia Britannica.

By the end, the print edition accounted for less than one percent of revenue. Subscriptions represent 15 percent, which academic sales represent the rest. The books available were actually printed in 2010. 4,000 copies of the 32-volume set remain available.

The end to this chapter of Britannica serves as an important marker to this chapter in the history of the Information Age.