Cheryl Dancey Balough
We are gearing up for a busy Spring Meeting of the Business Law Section in Washington, D.C., April 4-6 - please see the detailed information below.
Meanwhile, committee members will be organizing webinars for later in the spring, we are in the middle of several long term committee writing projects, and
committee members will start to put together our annual survey of the law of cyberspace later this year. If you are looking for a project to jump into,
don't hesitate to reach out directly to me, our Director of Programming Kristine Dorrain or our Director of Publications Sarah Jane Hughes, and we will
gladly help link you to one of our ongoing projects.
I hope to see many of you in Washington. If you haven't yet signed up for our committee dinner on April 4, please
do so today.
Jonathan T. Rubens
Chair, Cyberspace Law Committee, Business Law Section
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ABA Business Law Section Spring Meeting - April 4-6, 2013
ABA Annual Meeting - August 8-10, 2013
The 2013 Business Law Section Spring Meeting will be held in Washington, DC, on April 4-6. If you did not register in advance, you can still register on
site. Here's the schedule for the Cyberspace Law Committee meetings, and CLE programs we are presenting or co-sponsoring.
Thursday, April 4, 2013
8am - 9am: mCommerce Subcommittee
8am - 10am: Program: What Your Payments are Telling People: Privacy and the Mobile Payment Race
This panel will review privacy compliance issues related to mobile payments. The mobile payments space is rapidly growing and payments systems are
no longer limited to traditional financial services companies or providers. While large financial institutions are working to develop mobile payment
products, other industries are also jumping into the mix, including Google, PayPal, etc. The industry is experiencing multiple technologies, business
models and providers overlapping in this arena. Amidst the jumble of technologies, the regulatory system is rising to the challenge of ensuring that
solution based privacy standards are implemented. Companies, some of which are unfamiliar with a regulated environment, will need to understand the privacy
laws that apply to them. From location information to social security number protection to other personal information, this panel will explore the
complexity of privacy compliance developments as applied to mobile payments providers, including FTC, GLBA, FCRA/FACTA, UDAAP, and other legal sources of
privacy regulatory requirements.
9am - 10am: Main Cyberspace Law Committee Meeting
10am - 11am: Cloud Security Checklist Project
11am - 12pm: Cybersecurity Subcommittee
11am - 12pm: Cyberspace Task Force on Internet Governance
1pm - 2pm: Cloud & IT Services Subcommittee
2pm - 3pm: Consumer Protection Subcommittee
3pm - 4pm: International Trade Subcommittee
4pm - 5pm: Cyberspace Task Force on Professional Responsibility & Technology
7:30pm - 10:30pm: Cyberspace Law Committee Dinner - see note below
Friday, April 5, 2013
8am - 10am: You Win! Or Did Your Client Just Lose?: The Law of Contests
With the expansion of social media, clients often are unaware of how the laws that govern advertising and contests affect them. Come hear what the
Federal Trade Commission has to say about false advertising, and listen as the panel of advertising and contest lawyers explores the laws that impact the
holding of contests.
8am - 10am: You Sent Funds Where? How to Help Remittance Transfer and Mobile Payments Clients Fess Up When They Mess Up
High-profile enforcement actions against banks are proliferating. Most involve banks' activities on behalf of companies and governments in violation of
Bank Secrecy Act and Office of Foreign Assets Control regulations or failure to keep records of transactions that might involve such violations. The same
laws also apply to a wide array of providers of financial services and goods, including non-depository remittance transfer and mobile payments providers.
This CLE is particularly timely because it will follow the scheduled effective date of the new CFPB remittance transfer regulations. This CLE program will
review the basic requirements that apply to non-depository providers of remittance transfers and mobile payments. Presenters will discuss how to help
clients identify transactions that may violate BSA and OFAC regulations and what to do once you have identified such transactions, including self-reporting
to the Department of the Treasury or state authorities.
10am - 11am: Financial Services & Payments Subcommittee
10:30am - 12:30pm: Legal Ethics and the Law of Lawyering: Where We Are After Ethics 20/20 and Where We Need To Be
A review of Ethics 20/20 accomplishments and their implications for practitioners, followed by identification of major problem areas in professional
responsibility law, e.g., failure to accommodate emer- gence of law firms/departments or of multijurisdictional practice, lack of uniformity among states,
weak choice of law provisions; concludes with a plan for action.
1pm - 2pm: Marketing and Advertising Subcommittee
2:30pm - 4:30pm: iPads at the Firewall! Should You Permit Employee Devices into Your Network?
More companies allow or are requiring their employees to use their own laptops or smart phones as part of their employment. This bring-your-own-devices
movement creates numerous legal-as well as technical-issues, which will be discussed by the panel. Chaired by mCommerce Subcommittee chairs Ted Claypoole
and Richard Balough.
4:30pm - 5:30pm: Cyberspace Committee Meeting of Subcommittee and Task Force Chairs
Saturday, April 6, 2013:
10:30am - 12:30pm: Program: Licensed Today, Infringement Tomorrow? The Termination Right Under the Copyright Act and Other Oddities
There are many special considerations when licensing copyrighted works (including software), but did you know that copyright owners have the right
to terminate copyright assignments and licenses? This program will explore the termination right under U.S. copyright law and other issues related to
copyright (and by extension, other IP) licenses.
2:30pm - 4:30pm: Program: The Alphabet Soup of Electronic Transfers of Funds
Experts on each of the large automated payment systems will discuss how they work, the role they play in the payments system and the rules under
which they operate. The panel will then discuss recent developments on how courts interpret the adequacy of security procedures to allocate fraud losses
under evolving technology stan- dards and regulatory guidelines.
Cyberspace Law Committee Dinner
We hope that you will join us at the Cyberspace Law Committee Dinner, which will be held at DC Coast on
Thursday, April 4, 2013, at 7:30 p.m. The event has been generously sponsored by Box. It's the perfect setting to unwind and catch up with friends. You
must be registered for the Spring Meeting to attend this event. The deadline for reservations was March 22, but let us know if you are still looking for a
ticket to the dinner. There might be an opportunity to buy one on site (no promises).
Even though Spring Meeting is still a few days away, it is time to start thinking about possible submissions for Annual Meeting programming. We probably
have only one guaranteed slot, but there is room for a really solid discretionary slot. Also think about leveraging your connections with other
subcommittees, or even committees, to take one of *their* spots, with us as a co-sponsor! In addition, each subcommittee has the opportunity to
provide non-CLE programming at its subcommittee meeting at Annual, so even if a CLE spot isn't available, consider making your subcommittee meeting
substantively meaningful. Please submit proposals, including Program Title, Program Description (including intended audience), Program Chair
[name/phone/email], and possible cosponsoring committees or subcommittees, to Kristine Dorrain. We don't have a
deadline yet, but "early" submissions are encouraged.
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Other Programs of Interest
ABA Intellectual Property Law Conference - April 3-5, 2013
The ACA Roadmap: Shared Responsibility Requirements - April 16, 2013
The ABA's 28th Annual Intellectual Property Law Conference, April 3-5, 2013 in Arlington, Virginia offers a wide variety of intellectual property
programming, including a workshop titled: "Trademark & Copyright: Dear Congress, Do No Harm to the Internet: An Update on Anti-Piracy and
AntiCounterfeiting Legislative Efforts." More details are
Date: April 16, 2013
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Cyberspace Law Survey
The Committee is looking for authors to survey relevant developments for its annual Survey of the Law of Cyberspace in The Business Lawyer, published by
the ABA Business Law Section. The annual survey is a great way to contribute to the work of the Committee as well as to showcase your expertise. The
Business Lawyer is the premier business law journal in the country, circulating to more than 60,000 readers. Even if you do not attend many in-person
meetings, you can still volunteer to write.
The Survey format involves short articles - typically no more than 12 double-spaced pages - covering important case law, legislation, and administrative
rulings. We encourage single-author pieces rather than collective works. Authors must be attorneys. Student authorship is not allowed, though credit may be
given for those who assist you. Law review format is required. (Dust off your Bluebook - footnotes and pinpoint citations are essential!)
We will edit your piece and peer review functions will be performed by experienced members of the Committee to ensure a high-caliber product. Of course,
the usual caveats apply: we can't promise the ABA will accept any submission, but we will work hard to help yours be accepted. We also can't promise you
will be invited to write on your first choice topic.
New and returning authors are welcome. A list of potential topics can be found on the
Feel free to propose other relevant topics that might be promising. However, please note that the Survey focuses on important developments: a topic must
have sufficient case law, legislation, or administrative developments to justify inclusion. If you are interested, please contact
Kristine Dorrain or Ed Morse. We are looking for firm commitments by
April 1 as the deadlines for submission will begin in May.
(Even those who may have indicated interest at the Winter Working Meeting should please email Kristine or Ed so that we can have a complete and
accurate list of volunteers).
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Corporate Directors Tool Kit
Sarah Jane Hughes, University Scholar and Fellow at Maurer School of Law, Indiana University
Updates from the International Trade Subcommittee
The committee is joining the contributors to the Corporate Directors Tool Kit project, which produces a book that is now in its 7th edition. The
general editors have asked us to identify contributors for four key areas, and possibly a fifth. They are (1) data privacy - particularly outside the US;
(2) cybersecurity - particularly after the SEC's Corp. Fin. Division 2011 "guidance" on disclosures; (3) technology licensing; and (4) safe selling online.
The fifth topic under consideration includes compliance with regulations enforced by OFAC, FinCEN, and the IRS on anti-money laundering, anti-terrorism,
and limitations on transactions with designated states or individuals on federal watch lists.
Drafts will be due to the general editors on July 1, 2013, which means slightly earlier to committee leadership. More than one contributor is likely to be
needed for the four primary topics listed above, and we can use reviewers as well. If you are interested and have not already identified your interest,
please alert Sarah Jane Hughes and she will send you an invitation to the Box.com area we are creating for this
Co-Chairs John Gregory and Hal Burman
Update from the Cybersecurity Subcommittee
As a follow-up to the subcommittee's meetings at the Los Angeles WWM, and given the timing of developments on which the subcommittee could have input, four
conference calls were held in February and a fifth was set for the second week in March.
The first calls addressed drafting and substantive issues involving the UNCITRAL Electronic Communications convention and how it should be presented for
ratification. Future calls on that will focus on the draft implementing legislation and the relationship to the Federal E-Sign Act and UETA). The
subcommittee then addressed a draft report on the new project at UNCITRAL to be tabled soon on ETR (electronic transferable records). This has been one of
the grails since early e-commerce days, with only limited progress made on it, especially when dealing with cross-border commerce. Once the report is
finalized and issued in the six UN languages, we will again focus on it to provide more input before the 40-country group meets in NYC in May.
The March call focused on new proposals at the UN Economic Commission for Europe's CEFACT body dealing with recurring issues involving cross-border
"interoperability" of e-signed data or documents, how far technology neutrality can go, etc. That proposal implicates other projects at CEFACT (which
operates as a wide-membership body, not limited to EU zone countries) on which the subcommittee's views will be asked for as well.
All this has put off for hopefully later this spring a return to developments on bilateral or multilateral single window systems for e-commerce and
import-export activity, as well as online dispute resolution for low value cross-border e-transactions. The subcommittee also plans to monitor e-commerce
developments at the ITU (International Telecommunications Union) and a number of other bodies such as ISO and various regional bodies, including ASEAN,
APEC, OAS and SADC.
Interested Cyberspace members can get more info or participate by contacting either co-chair, Hal Burman or John Gregory, whose contact information is
found on the subcommittee webpage.
Co-Chairs Roland Trope and Tom Smedinghoff
Update from the Mobile Commerce Subcommittee
At the Spring Meeting, the Cybersecurity Subcommittee will have a working session on its project to develop a guide for counsel to respond to a client's
receipt of federal cyber intel reports pursuant to the recent Executive Order and PDD 21. If you are interested in working on this project but cannot
attend the Spring Meeting, please send your name and contact information to Roland Trope.
Co-Chairs Richard Balough and Theodore Claypoole
Marketing & Advertising Subcommittee Update
The chief of the Mobile Technology Unit for the Federal Trade Commission's Bureau of Consumer Protection will offer her insights at the Mobile Commerce
Subcommittee meeting during the Spring Meeting in Washington, D.C. Patricia Poss leads the Bureau's law enforcement and policy work related to mobile
technology. She was one of the drafters of the FTC's recent staff report "Mobile Apps for Kids: Current Privacy Disclosures are Disappointing." Ms. Poss
served five years as counsel to the Director of the Bureau and previously spent several years investigating and litigating consumer protection cases that
challenged internet fraud including phishing and spam. The Mobile Commerce subcommittee's meeting is at 8 a.m. on April 4. If you have any questions about
the subcommittee meeting or activities, please contact one of the co-chairs,
Ted Claypoole or Richard Balough.
Co-Chairs Erik Pelton and Peter McLaughlin
At the Marketing & Advertising Subcommittee's will meet during the ABA Business Law Section Spring Meeting on April 5th at 1 pm. We will discuss recent
FTC amendments to COPPA and rules around mobile apps. The discussion will also cover the next steps (Trademark Clearinghouse) in the gTLD process for brand
owners and social media intellectual property developments. Join the discussion and learn about evolving rules applicable to your clients.
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The FTC and Mobile Privacy
Richard Balough and Theodore Claypoole, Co-Chairs of the mCommerce Subcommittee
The Twitter Predictor
In a new report, the Federal Trade Commission (FTC) urged mobile app developers
to disclose in easy-to-understand language what data they collect and how the data is used. In addition, the FTC said mobile app developers should consider
a do-no-track mechanism. The report, "Mobile Privacy Disclosures: Building Trust Through Transparency," noted that more than any other technologies, mobile
devices are typically personal to the use, almost always on, and with the user. As a result, the devices collect unprecedented amounts of data, which can
reveal sensitive information about the individual.
The FTC found that mobile devices made by HTC America, Inc., contain serious security flaws, which allow the phones to send their own text messages, send
personally identifiable information to third parties, and even activate the microphone to listen to conversations. As part of a consent decree, HTC agreed
to issue patches for the security lapses, to establish a comprehensive program to address security risks, and to notify customers about the security
vulnerabilities. In the Matter of HTC America, Inc., FTC File No. 122 3049.
Sarah Jane Hughes, Cyberspace Law Committee Director of Publications
Business Lawyers on Facebook
Need Ethics CLE Credits?
Indiana University (IU) associate professor Johan Bollen has received a patent for an invention that the media have dubbed "The Twitter Predictor."
Formally titled "Predicting Economic Trends via Network Communication Mood Tracking," the system analyzes hundreds of millions of tweets each day and "can
detect subtle changes in public conditions that are correlated to specific entities like the Dow Jones and various other financial and economic
indicators," according to the university. For more information on this unique system, see the IU
See MIRLN for Cyberspace Updates
The Professional Responsibility Committee is sponsoring a program at the Spring Meeting entitled "Legal Ethics and the Law of Lawyering: Where We Are After
Ethics 20/20 and Where We Need To Be." The Cyberspace Law Committee is co-sponsoring this two-hour program. See Spring Meeting schedule above.
For up-to-date news on cyberspace law happenings, you should also visit MIRLN, a monthly newsletter
edited by Cyberspace Law Committee member Vince Polley. It's free.
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Presentations and Publications of Interest
Regulation of Online Freedom
On February 28, David Satola, Lead Counsel for Finance, Private Sector Development & Infrastructure at the World Bank and Chair of our Internet
Governance Task Force, gave a lecture at Creighton University School of Law in Omaha, Nebraska. The lecture, entitled "Regulation of Online Freedom:
International Internet Governance and Human Rights" addressed the potential threats to human rights from an increased state-centric approach to internet
regulation. A video link to the lecture is accessible here. Ed Morse, Co-Chair of our Electronic Financial
Services Subcommittee, was pleased to host David.
Cybersecurity at RSA
On February 21, Lisa R. Lifshitz spoke on "How to Avoid Losing Control of the 'Message': Managing User-Generated Content Risks" at the Federated Press'
4th Social Media Risks Course in Toronto. Lisa's article on recent Canadian
"Privacy Requirements in the Era of Cloud Computing" was recently published by the
Ontario Bar Association's Business Law Section's "Business Beat" Newsletter.
At the recent RSA Conference in San Francisco, three of our active committee members gave presentations. Tom Smedinghoff, of Edwards Wildman and Co-Chair
of our Cybersecurity Subcommittee, was a featured speaker on two panels. His panels' topics were "Data Breach Law Update - Global Trends, Legal
Complexities" and "Trust Frameworks: Alternative Approaches to Achieve the Panacea."
John Gregory, General Counsel at the Ministry of the Attorney General (Ontario, CA) and Co-Chair of our International Trade Subcommittee, and Roland Trope,
of Trope and Schramm and Co-Chair of our Cybersecurity Subcommittee, also appeared together on a panel. They discussed "Do We Have the Authority? Legal
Issues in Protecting Government Networks."
At the Sci-Tech's ISC Meeting the preceding weekend, Roland Trope gave a presentation on the Executive Order on Cybersecurity and the case law and
regulatory developments that preceded it and that may influence its implementation.
Executive Order on Cybersecurity Threats
IEEE Security & Privacy
will publish in its March/April issue an article by Roland Trope and Stephen Humes, of Holland & Knight, entitled "By Executive Order: Cyber
Intelligence Imparts Cyber Responsibilities."
Kristine Dorrain, of the National Arbitration Forum and our Director of Programming, recently gave birth to Layla Ann. Mom, baby, and the rest of the
family are doing well.
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This new section of the Cyberspace Law Committee Newsletter will include job postings for or by committee members. Please send all postings to
Communications Co-Directors Cheryl Balough and Lois Mermelstein by
the 20th of one month for posting in the following month's newsletter.
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Your Articles Are Welcome
We are always looking for fresh and relevant content for the CLCC newsletter. Have you written or presented on something your fellow committee members
would be interested in? Let them know! Email your contribution to committee Communications Co-Directors
Cheryl Balough and Lois Mermelstein.
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