MIRLN—- 29 Oct - 18 Nov 2017 (v20.16)

    MIRLN—- 29 Oct - 18 Nov 2017 (v20.16)—- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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  ANNOUNCEMENTS | NEWS | RESOURCES | DIFFERENT | LOOKING BACK NOTES

 

ANNOUNCEMENT

The new Second Edition of the ABA’s best-selling Cybersecurity Handbook is a must-read for anyone working in the field, including private-practice attorneys, in-house counsel, non-profit and government lawyers, and others. For more detail, visit the ABA store at http://bit.ly/2x7HNbJ . (get a 10% discount with code 2ECYBERTF10). Below, an ABA story on the Handbook:

      Updated ABA cybersecurity handbook helps lawyers protect sensitive client information from hackers   (ABA, 1 Nov 2017) - Cybersecurity breaches in law firms have made headlines and clients are asking questions about lawyers’ and firms’ security programs. From the massive Panama Papers breach that led to the dissolution of the Mossack Fonseca Law Firm in April 2016 to the WannaCry and Petya ransomware attacks, which led to a work outage at DLA Piper in June 2017, it is imperative that attorneys understand their obligations and the potential risk of inadequate information security practices to their practices and their clients.      The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms,  and Business, Second Edition”  is an updated edition of the handbook that expands on many of the issues raised in the 2013 first edition, while highlighting the extensive changes in the current cybersecurity environment. It is co-edited by cybersecurity legal experts Jill D. Rhodes, chief information security officer at Option Care and former senior executive with the intelligence community; and Robert S. Litt, counsel, Morrison & Forester and former general counsel of the Office of the Director of National Intelligence, This new edition will enable lawyers and law firms to identify potential cybersecurity risks and prepare a response in the event of an attack. It addresses the current overarching threat as well as ethical issues and special considerations for law firms of all sizes. It also includes the most recent ABA Ethics Opinions and illustrates how to approach the subject of cybersecurity threats and issues with clients, as well as when and how to purchase and use cyber insurance. Rhodes and Litt will deliver a book talk at noon on Dec. 8 at the Army Navy Club - click   here for information on how to register. top

 

NEWS

        How Facebook, Google and Twitter ‘embeds’ helped Trump in 2016   (Politico, 26 Oct 2017) - Facebook, Twitter and Google played a far deeper role in Donald Trump’s presidential campaign than has previously been disclosed, with company employees taking on the kind of political strategizing that campaigns typically entrust to their own staff or paid consultants, according to a new study released Thursday. The   peer-reviewed paper , based on more than a dozen interviews with both tech company staffers who worked inside several 2016 presidential campaigns and campaign officials, sheds new light on Silicon Valley’s assistance to Trump before his surprise win last November. While the companies call it standard practice to work hand-in-hand with high-spending advertisers like political campaigns, the new research details how the staffers assigned to the 2016 candidates frequently acted more like political operatives, doing things like suggesting methods to target difficult-to-reach voters online, helping to tee up responses to likely lines of attack during debates, and scanning candidate calendars to recommend ad pushes around upcoming speeches. Such support was critical for the Trump campaign, which didn’t invest heavily in its own digital operations during the primary season and made extensive use of Facebook, Twitter and Google “embeds” for the general election, says the study, conducted by communications professors from the University of North Carolina at Chapel Hill and the University of Utah. The companies offered such services, without charge, to all the 2016 candidates, according to the study, which details extensive tech company involvement at every stage of the race. But Hillary Clinton’s campaign declined to embed the companies’ employees in her operations, instead opting to develop its own digital apparatus and call in the tech firms to help execute elements of its strategy. “Facebook, Twitter, and Google [went] beyond promoting their services and facilitating digital advertising buys,” the paper concludes, adding that their efforts extended to “actively shaping campaign communications through their close collaboration with political staffers.” top

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      How Russian trolls got into your Facebook feed   (WaPo, 1 Nov 2017) - Americans are getting our first glimpse of how we got played. On Wednesday, Congress released some of the 3,000 Facebook ads and Twitter accounts created by Russian operatives to sway American voters. You can explore them in an analysis the Post published here. These disturbing messages, seen by up to 126 million Americans, raise thorny questions about Silicon Valley’s responsibility for vetting the information it publishes. Beyond Washington, it leaves all of us who use social media to keep up with friends, share photos and follow news wondering: How’d the Russians get to me? The short answer is Silicon Valley made it very easy. Facebook’s top lawyer told Congress on Wednesday the Russian effort was “fairly rudimentary.” Here’s what he meant: Ever notice a Facebook ad that’s eerily relevant to something you’ve been talking about? Had an ad for a pair of sneakers follow you around the Internet for a week? Or seen an ad that says your friend “liked” it? * * * You were in Russia’s crosshairs if you liked the Facebook page of Donald Trump or Hillary Clinton. Same goes for people who said they were fans of Martin Luther King, Jr. Russians even targeted people who shared enough stuff about the South that Facebook tagged them being interested in “Dixie.” top

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        Manipulating social media to undermine democracy   (Freedom House, Nov 2017) - Key Findings: (1) Online manipulation and disinformation tactics played an important role in elections in at least 18 countries over the past year, including the   United States;  (2) Disinformation tactics contributed to a seventh consecutive year of overall decline in internet freedom, as did a rise in disruptions to mobile internet service and increases in physical and technical attacks on human rights defenders and independent media; (3) An record number of governments have restricted mobile internet service for political or security reasons, often in areas populated by ethnic or religious minorities. * * * Russia’s online efforts to influence the American election have been well documented, but the United States was hardly alone in this respect. Manipulation and disinformation tactics played an important role in elections in at least 17 other countries over the past year, damaging citizens’ ability to choose their leaders based on factual news and authentic debate. Although some governments sought to support their interests and expand their influence abroad-as with Russia’s disinformation campaigns in the United States and Europe-in most cases they used these methods inside their own borders to maintain their hold on power. top

        Days after activists sued, Georgia’s election server was wiped clean     (ArsTechnica, 26 Oct 2017) - A server and its backups, believed to be key to a pending federal lawsuit filed against Georgia election officials, was thoroughly deleted according to e-mails recently released under a public records request. Georgia previously came under heavy scrutiny after a researcher discovered significant problems with his home state’s voting system.    A lawsuit soon followed in state court , asking the court to annul the results of the June 20 special election for Congress and to prevent Georgia’s existing computer-based voting system from being used again. The case, Curling v. Kemp , was filed in Fulton County Superior Court on July 3. As the Associated Press   reported Thursday, the data was initially destroyed on July 7 by the Center for Elections Systems at Kennesaw State University, the entity tasked with running the Peach State’s elections. The new e-mails, which were sent by the Coalition for Good Governance to Ars, show that Chris Dehner , one of the Information Security staffers, e-mailed his boss, Stephen Gay, to say that the two backup servers had been ”    degaussed three times .” * * * According to the AP, the FBI made a forensic image of the relevant server in March 2017 as part of its investigation. Atlanta FBI spokesman Stephen Emmett “would not say whether that image still exists.” Neither Emmett nor the FBI field office in Atlanta immediately responded to Ars’ request for comment. top

        Law firms fail on cybersecurity, and corporate clients are cracking down     (LegalTechNews, 26 Oct 2017) - Law firm technology services group LogicForce recently released its quarterly report card on law firm cybersecurity, giving the legal industry a score of only 42 percent on its cybersecurity health. The most recent scorecard aggregated data from client surveys at more than 300 law firms of various sizes. Scores were generated based on the number of firms who reported implementing 12 different factors set forth by LogicForce: information security executives, cybersecurity policies, multifactor authentication, cyber training, cyber insurance, penetration, vulnerability testing, third-party risk assessments, records management policies, cyber investment, full disk encryption, data loss prevention services, and third-party penetration testing. Each factor was weighted differently. The scorecard’s most heavily weighted factor was the presence of an information security executive, a position filled at only 38 percent of surveyed law firms. * * * The report also noted that corporate law firm clients are beginning to crack down harder on their outside counsel for their failure to meet cybersecurity standards. The report found that 48 percent of law firms surveyed had their data security practices subjected to an audit by a corporate client in the last year. top

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        Corporate legal’s new cybersecurity role: First risk responders   (Corporate Counsel, 7 Nov 2017) - As corporations devote more attention to cybersecurity, many are expanding the legal department’s role to cover tasks like third-party risk management. But according to Grant Thornton’s ”    2017 Corporate General Counsel Survey ” of over 190 general counsel, that’s far from where their cybersecurity responsibility ends. Over half (58 percent) of general counsel surveyed said they were highly involved in responding to their organizations’ data security risks and cybersecurity incidents. In addition, 23 percent said that responding to such risks and events were their “primary responsibility,” up from 11 percent in 2015. Of course, it wasn’t always this way. “When we did this survey two years ago, the CFO among other members of the C-suite were driving cybersecurity initiatives,” said Johnny Lee, principal and forensic technology practice leader for Grant Thornton’s Forensic Advisory Services. But as “breaches become more prevalent and as they represent more downstream risk-regulatory and litigation exposure, for example-we’ve seen a shift to legal departments taking the helm on the response,” he said. In light of legal repercussions of cybersecurity incidents, he added, the legal department’s participation in risk response can be an asset given the umbrella of attorney-client privilege. Depending on the nature and extent of a breach, such privilege may need “to be attached early if it’s going to be invoked, and may need to be managed carefully if it’s going to be protected and preserved.” Lee cautioned, however, that the legal department’s cybersecurity role “doesn’t necessarily mean they’re inserting themselves into insurance discussions or being the primary flag holders in front of the board. But it does mean, vis-à-vis the response, that they intend to be the standard bearers there.” top

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        Ok, we get technology competence, but how do we get technologically competent?    (Above The Law, Bob Ambrogi, 6 Nov 2017) - By now, you’ve probably heard of the duty of technology competence. As   more and more states adopt it, more and more articles get written about it, and more and more CLEs get presented about it. But the focus of all this is largely on the nature and scope of the duty. One aspect we hear little about is how lawyers can get and remain technologically competent. There are no easy answers to that question. Florida has taken the most dramatic step, not only mandating tech competence but also   mandating technology training . The first and only state to do this, Florida requires that lawyers complete three hours of CLE every three years in approved technology programs. Another option for law firms and legal departments seeking to promote technology competence is the Legal Technology Assessment developed by Casey Flaherty and his company Procertas . The LTA assesses legal professionals’ proficiency with the basic technology tools they use every day - Word, Excel, and PDF - and provides training on tasks in which they are deficient. Now, there is further progress. The past week brought news of two more initiatives that should further promote technology competence among legal professionals. One is online training for lawyers in legal innovation and technology, the other an index tracking how well law schools are preparing students to deliver legal services in the 21 st Century. * * * top

      Can algorithms send you to prison? Apparently, yes.   (Ride The Lightning, 1 Nov 2017) - The New York Times     reported in an opinion piece last week on a fascinating and disturbing story. In 2013, police officers in Wisconsin arrested Eric Loomis, who was driving a car that had been used in a recent shooting. He pleaded guilty to attempting to flee an officer, and no contest to operating a vehicle without the owner’s consent. Neither of his crimes mandated prison time. But at Mr. Loomis’s sentencing, the judge cited, among other factors, Mr. Loomis’s high risk of recidivism as predicted by a computer program called COMPAS, a risk assessment algorithm used by the state of Wisconsin. The judge denied probation and prescribed an 11-year sentence - six years in prison, plus five years of extended supervision. No one knows exactly how COMPAS works; its manufacturer won’t disclose the proprietary algorithm. We only know the final risk assessment score, which judges may consider at sentencing. Loomis challenged the use of an algorithm as a violation of his due process rights to be sentenced individually, and without consideration of impermissible factors like gender or race. The Wisconsin Supreme Court rejected his challenge. In June, the United States Supreme Court declined to hear his case, meaning a majority of justices effectively condoned the algorithm’s use. This may have far-reaching effects. Why are we allowing a computer program, into which no one in the criminal justice system has any insight, to play a role in sending a man to prison? The author of the op-ed piece asked that question - and so do I. Wisconsin is one of several states using algorithms in the sentencing process. * * * top

        Oil States amicus briefs seek to stabilize IPR constitutional footing   (Patently-O, 1 Nov 2017) - As per usual, the briefs are largely divisible into two categories: (1) direct merits arguments focusing on congressional power to enact the IPR regime; and (2) policy briefs arguing that IPRs do important work. I’ll note here that the focus of the policy briefs is on efficient and timely adjudication. I have not seen any of the briefs so far that recognize the third reality - that the PTAB is invaliding patents that would have been upheld by a court. For some reason amicus consider it appropriate to identify court failures in efficiency but not to identify failures in the substantive decisionmaking. The closest on-point is likely Apple’s Brief which promotes the “well-informed and correct” outcomes of the PTAB.    16-712bsacAppleInc . Overall, the collection of briefs here is quite strong. The most compelling brief in my view is that filed by the well-known team of Duffy and Dabney on behalf of several groups, including the Internet Association. They write: * * * [ Polley : Fairly arcane, but absolutely fascinating set of historical analyses, getting to the very fundamentals of US IPR jurisprudence.] top

        What does a Director of Knowledge Management for a legal firm do?    (KnoCo, 2 Nov 2017) - This month there were two “Director of KM” jobs advertised on linked-in. Let’s see what this job entails. “Knowledge Management” is a poorly defined term, and Knowledge Management jobs can range from low level data-entry clerks to high level strategic posts, and anything in between. However when you see “Director of Knowledge Management” vacancies, that tells you that this is a high level post. One of these advertised vacancies gives few details of the post, but the second, from CMS (the legal firm) gives a full list of responsibilities and characteristics. These are listed below * * * top

        New federal cybersecurity regulations force colleges to strengthen data management   (EdScoop, 2 Nov 2017) - A new set of federal regulations is forcing colleges and universities to tighten their cybersecurity practices, which will require changes in the way colleges manage their data, according to a   new report . Higher education institutions will have to fulfill new contractual obligations to maintain federal grants, research contracts and other transactions in which the institutions receive data from the federal government, according to the report, issued by Deloitte’s Center for Higher Education Excellence and nonprofit EDUCAUSE. In 2016, the U.S. Department of Education signaled it would make colleges comply with requirements laid out in the National Institute of Standards and Technology (NIST) Special Publication 800-171, which are designed to protect the confidentiality of “controlled unclassified information.” The first compliance deadline schools have to meet is Dec. 31. “Whether a college or university has many large government research contracts or one small contract, each institution will need to comply with these new data protection standards,” said Joanna Lyn Grama, director of cybersecurity and IT GRC programs at EDUCAUSE. “Simply put, the evolving higher education threat landscape and very complex regulatory environment means that ad-hoc approaches to data management and protection are no longer adequate and formalized information security programs, based on recognized frameworks and responsive to specific regulations, are required.” According to the report, while higher education CIOs and CISOs are aware of the new standard, “this awareness hasn’t necessarily translated into progress. “Many institutions are still working out how to get started and get everyone on board,” the report says. “Other institutions, notably those that receive significant defense research funding, are much further down the path.” Colleges will have to overcome many existing challenges in order to fulfill the requirements, according to experts at Deloitte and EDUCAUSE. And those challenges go beyond just technological problems. They also encompass organizational change management, training, end-user adoption and process controls. Specific challenges outlined in the report include a lack of executive and board-level attention on NIST’s regulations. top

        35 states and DC back bid to collect online sales taxes   (USA Today, 3 Nov 2017) - Thirty-five state attorneys general and the District of Columbia this week signed on to support South Dakota’s legal bid to collect sales taxes from out-of-state Internet retailers. South Dakota is asking the U.S. Supreme Court to review whether retailers can be required to collect sales taxes in states where they lack a physical presence. The case could have national implications for e-commerce. South Dakota Attorney General Marty Jackley said in a statement Thursday that Colorado filed a friend-of-the-court brief supporting South Dakota’s petition to the high court. The state is seeking to overturn legal rulings issued mostly before the online shopping boom that hamstring officials who want to collect sales taxes from out-of-state retailers. States have pushed Congress to address the issue without success, and one estimate put the loss to states at roughly $26 billion in 2015. South Dakota estimates it loses about $50 million annually to e-commerce. “The problem with the physical-presence rule is that it was first conceived of in 1967, two years before the moon landing and decades before the first retail transaction occurred over the Internet,” according to the brief. Some companies such as Amazon have decided to collect state sales taxes despite the precedent. South Dakota legislators passed a law last year requiring collection of the tax. The law was struck down in September by the state Supreme Court due to precedent. The state had welcomed the defeat so it could try to get the U.S. Supreme Court to take up the case. top

        US Court sides with Google against Canadian de-indexing order   (ZDnet, 3 Nov 2017) - A US federal court on Friday issued a preliminary injunction against a   Canadian Supreme Court ruling,  which asked Google to de-index certain search results not just in Canada but on a global basis. The Canadian ruling “undermines the policy goals of Section 230 [of the US Communications Decency Act] and threatens free speech on the global internet,” wrote Judge Edward Davila of the US District Court for Northern California. The ruling pertains to the case Google v. Equustek , which started with a 2011 complaint from the company Equustek Solutions. The British Columbia firm charged that a group of Equustek distributors (known as the Datalink defendants) were selling counterfeit Equustek products online. Datalink continued to sell these goods globally, even after the court ordered it to stop, prompting Equustek to ask Google to intervene. Google initially de-indexed 345 specific webpages associated with Datalink on google.ca. Equustek then sought an injunction to stop Google from displaying any part of the Datalink websites on any of its search results worldwide. A lower court granted the injunction, and the Canadian Supreme Court upheld it. The ruling’s global implications   elicited concern from freedom of speech advocates. Google   asked the US District Court for Northern California to intervene, arguing that Canada’s ruling was “repugnant” to the rights established by the First Amendment and the Communications Decency Act. Furthermore, the company said it “violates principles of international comity, particularly since the Canadian plaintiffs never established any violation of their rights under U.S. law.” Now that the US District Court has intervened, Google can seek a permanent injunction and ask the Canadian court to modify its original order,    according to the Electronic Frontier Foundation. top

        TSA plans to use face recognition to track Americans through airports   (EFF, 9 Nov 2017) - The “PreCheck” program is billed as a convenient service to allow U.S. travelers to ” speed through security ” at airports. However, the   latest proposal released by the Transportation Security Administration (TSA) reveals the Department of Homeland Security’s greater underlying plan to collect face images and iris scans on a nationwide scale. DHS’s programs will become a massive violation of privacy that could serve as a gateway to the collection of biometric data to identify and track every traveler at every airport and border crossing in the country. Currently TSA collects fingerprints as part of its application process for people who want to apply for PreCheck. So far, TSA hasn’t used those prints for anything besides the mandatory background check that’s part of the process. But this summer, TSA ran a   pilot program at Atlanta’s Hartsfield-Jackson Airport and at Denver International Airport that used those prints and a contactless fingerprint reader to verify the identity of PreCheck-approved travelers at security checkpoints at both airports. Now TSA wants to roll out this program to airports across the country and expand it to encompass face recognition, iris scans, and other biometrics as well. [ Polley : “contactless fingerprint reader?!?] While this latest plan is limited to the more than 5-million Americans who have chosen to apply for PreCheck, it appears to be part of a broader push within the Department of Homeland Security (DHS) to expand its collection and use of biometrics throughout its sub-agencies. For example, in pilot programs in Georgia and Arizona last year, Customs and Border Protection (CBP) used face recognition to capture pictures of travelers boarding a   flight out of the country and border and compared those pictures to previous recorded photos from passports, visas, and “other DHS encounters.” In the Privacy Impact Assessments (PIAs) for those pilot programs, CBP said that, although it would collect face recognition images of all travelers, it would delete any data associated with U.S. citizens. But what began as DHS’s biometric travel screening of foreign citizens   morphed, without congressional authorization , into screening of U.S. citizens, too. Now the agency plans to roll out the program to other border crossings, and it says it will retain photos of U.S. citizens and lawful permanent residents for two weeks and information about their travel for 15 years. It retains data on “non-immigrant aliens” for 75 years. top

      Equifax profit falls as hacking costs take toll   (Reuters, 9 Nov 2017) - Equifax Inc ( EFX.N ) on Thursday reported lower quarterly profit, and quarterly revenue missed estimates, as the credit bureau warned that its massive data breach had prompted some customers to hold back business. The breach, which compromised sensitive data of 145.5 million people, has harmed the company’s reputation and prompted investigations in every U.S. state, a federal criminal probe and hundreds of lawsuits. Equifax said it was not possible to estimate how much it would cost the company to respond to the probes and litigation. The Atlanta-based company said it recorded $87.5 million in expenses related to the hack during the quarter, including legal fees, investigation of the breach, and free credit monitoring for U.S. consumers whose data was exposed in the breach. Equifax estimated a range of additional costs between $56 million and $110 million to continue providing the free services. The company warned there could be further attacks. “We cannot assure that all potential causes of the incident have been identified and remediated and will not occur again,” it said in a quarterly filing with the Securities and Exchange Commission. top

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        Equifax looks to in-house lawyer to ‘build a new future’ after massive breach   (Law.com, 14 Nov 2017) - As Equifax Inc. continues to face fallout from the massive data breach announced earlier this year, the consumer credit reporting company has selected one of its in-house attorneys to oversee its response to the disaster. Taking on this role is Julia Houston, whose official title is chief transformation officer. Along with leading the company through the aftermath of the breach, Houston will coordinate Equifax’s efforts to “build a new future,” according to the company’s   corporate leadership page . In response to request for comment on Houston’s role and on the timing of her appointment, an Equifax spokesperson said: “Equifax’s top priorities are to improve service for consumers and to continue to strengthen our company’s security capabilities. We have revised our corporate structure to address both of these areas and have created a Chief Transformation Officer who reports directly to the CEO.” The spokesperson added that Houston was appointed to this role in October. Houston joined Equifax in October 2013 and was most recently senior vice president of U.S. legal, where she led Equifax’s legal team supporting three businesses in the United States. She previously held the general counsel title at customer management company Convergys Corp. and energy company Mirant Corp. Prior to that, Houston was an in-house attorney at Delta Air Lines Inc. top

        Alphabet’s Project Loon delivers internet service to 100,000 people in Puerto Rico   (The Verge, 9 Nov 2017) - Alphabet’s Project Loon, which last month partnered with AT&T and T-Mobile to   bring LTE connectivity to disaster-stricken Puerto Rico , says its helium air balloons have delivered internet to 100,000 residents on the island. A significant portion of Puerto Rico, still struggling to recover from the effects of Hurricane Maria, is still without cell tower reception, with the Federal Communications Commission   reporting earlier today that nearly 44 percent of Puerto Rico cell sites are still out of service. Loon deployed balloons in late October in what was its fastest-ever deployment in an effort to help residents get back online as soon as possible. While 100,000 is an impressive metric on its own, Puerto Rico is an island of nearly 3.5 million people. A map released today by the FCC shows that a vast majority of the island’s counties still have between 20 and 60 percent of cell towers out of service. Only four counties are reporting only 1 to 20 percent of cell sites out of service, while another four counties have more than 80 percent of their cell sites down. So while Loon is certainly helping Puerto Rico’s government get more residents online, there’s a lot of infrastructure work to be done to get the entire island back online and in contact with the rest of the world. top

        Copyright exceptions for libraries widespread, study at WIPO shows,  but disharmony persists   (IP Watch, 15 Nov 2017) - Nobody among members of the World Intellectual Property Organization disputes the importance of the public services provided by libraries and archives. However, positions are different when it comes to providing exceptions to copyright to those entities so they can continue to dispense their services, in particular in the digital age. An updated study presented today in a WIPO committee shows that most countries have exceptions relating to libraries, but termed in very different ways, and are hesitant on how to deal with digital technologies. Prof. Kenneth Crews, former director of the copyright advisory office at Columbia University (US) and now an attorney at Gipson, Hoffman & Pancione in Los Angeles, today presented   the latest version [pdf] of his original 2008 study, already updated in 2014 and in 2015, during the   35th session of the WIPO Standing Committee on Copyright and Related Rights, taking place from 13-17 November. According to Crews, since 2015, a number of countries have revised their copyright laws and the exceptions they provide to libraries and archives, which, he said, serves as a reminder that this is a dynamic issue. The study covers all 191 WIPO member states and found that 161 of those have at least one provision in their copyright statutes that explicitly applies to libraries or archives. Crews describes four types of exception: type 1 with no library exception (28); type 2 with a general library exception (21); type 3 with specific library exceptions; and type 4 providing for anti-circumvention exemptions. Compared to the last version of the study, fewer countries have no exception, and fewer countries are relying on general exception, Crews said. Specialised exceptions, which constitute the largest share of countries, include preservation and replacement, private study and research, making available on the premises, document delivery, and copy machines in the library. As example, Crews said 102 member states have an exception for preservation, 98 for replacement, and 105 for private study and research. Crews described the influence of several models in current copyright laws, such as the British Copyright Act, which provides multiple provisions such as for preservation and research. He also cited the Bangui Agreement, which also provides clear rules for preservation and research, and the 2001 Information Society Directive and the 2012 Orphan Works Directive of the European Union, which he said have influenced some 14 countries outside of the EU. top

        Guide to cybersecurity due diligence worth reading   (NY Law Journal, 15 Nov 2017) - On the subject of business risk, Warren Buffett observed that the rearview mirror is always clearer than the windshield. For an M&A acquirer, one prime risk is assessing the effectiveness of a target’s cybersecurity program. As data breach incidents involving Yahoo and Neiman Marcus have shown, such incidents can profoundly impact even the largest deals. With billions of M&A dollars at stake, there is a need to clear the windshield. Ronald [sic] Smedinghoff and Roland Trope prove up to the task in this new book, which compiles topical papers written by M&A lawyers whose practices focus on protecting their clients’ high-value digital assets. Although the book is primarily written for M&A lawyers, it can also be useful to a wider audience that includes directors, officers, in-house counsel and data security professionals whose duties include the designing, implementing, updating, testing and monitoring of cybersecurity programs. Throughout the book’s thirteen chapters, it explains how an acquirer can properly assess a target’s cybersecurity posture. As such, the book is intended as an issue-spotting resource. It is not intended to prepare an M&A lawyer to be an expert in cyber crime, or to serve as a manual of M&A provisions that specifically address cybersecurity risks. Although some of the material is repetitive, the editors have done an admirable job in organizing the topics, eliminating jargon, minimizing the use of acronyms, bullet-pointing key checklists, discouraging run-on sentences, reducing paragraph length and ensuring that the entire text appears as though it was written in plain English by a single author. * * * More than a hundred years ago, Theodore Roosevelt observed that risk is like fire: If controlled it can help you; uncontrolled it will rise up and destroy you. For M&A lawyers assessing a target’s cybersecurity risk, this book helps control the fire. [ Polley : It’s Tom Smedinghoff, not Ronald. Excellent resource, and quite positive review.] top

 

RESOURCES

      Liability for Providing Hyperlinks to Copyright-Infringing Content:  International and Comparative Law Perspectives   (Columbia, 12 Nov 2017) - Abstract: ” Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This article will first address the international norms that domestic laws of states member to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the EU and the US, have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under US and EU regimes, despite their apparently different approaches, in fact diverge.” top

      Preventing Data Breaches at Law Firms: Adapting Proactive,  Management-Based Regulation to Law-Firm Technology   (Arizona Law Review, Nov 2017) - Today, law firms of every size are relying on technology more than ever before. However, a firm’s investment in securing its information systems pales in comparison to that of its corporate counterparts, leaving law-firm clients’ data unnecessarily at risk. Although there has been a modest increase in regulation for firm management overall, law firms have largely ignored the threat of data breaches, failing to adhere to widely accepted information security standards. This lack of compliance has caused cyber criminals to shift their sights from the client to the vulnerable information security systems of law firms. This Note proposes a proactive, regulatory approach to establish a technology infrastructure in law firms, thus ensuring the protection of client information. [ Polley : Others also have proposed a prescriptive, regulatory approach; I’m unconvinced.] top

 

DIFFERENT

    The digital ruins of a forgotten future   (The Atlantic, Dec 2017) - Gidge Uriza lives in an elegant wooden house with large glass windows overlooking a glittering creek, fringed by weeping willows and meadows twinkling with fireflies. She keeps buying new swimming pools because she keeps falling in love with different ones. The current specimen is a teal lozenge with a waterfall cascading from its archway of stones. Gidge spends her days lounging in a swimsuit on her poolside patio, or else tucked under a lacy comforter, wearing nothing but a bra and bathrobe, with a chocolate-glazed donut perched on the pile of books beside her. “Good morning girls,” she writes on her blog one day. “I’m slow moving, trying to get out of bed this morning, but when I’m surrounded by my pretty pink bed it’s difficult to get out and away like I should.” In another life, the one most people would call “real,” Gidge Uriza is Bridgette McNeal, an Atlanta mother who works eight-hour days at a call center and is raising a 14-year-old son, a 7-year-old daughter, and severely autistic twins, now 13. Her days are full of the selflessness and endless mundanity of raising children with special needs: giving her twins baths after they have soiled themselves (they still wear diapers, and most likely always will), baking applesauce bread with one to calm him down after a tantrum, asking the other to stop playing “the Barney theme song slowed down to sound like some demonic dirge.” One day, she takes all four kids to a nature center for an idyllic afternoon that gets interrupted by the reality of changing an adolescent’s diaper in a musty bathroom. But each morning, before all that-before getting the kids ready for school and putting in eight hours at the call center, before getting dinner on the table or keeping peace during the meal, before giving baths and collapsing into bed-Bridgette spends an hour and a half on the online platform Second Life , where she lives in a sleek paradise of her own devising.    Good morning girls. I’m slow moving, trying to get out of bed this morning.  She wakes up at 5:30 to inhabit a life in which she has the luxury of never getting out of bed at all. What is second life? The short answer is that it’s a virtual world that launched in 2003 and was hailed by some as the future of the internet. The longer answer is that it’s a landscape full of goth cities and preciously tattered beach shanties, vampire castles and tropical islands and rainforest temples and dinosaur stomping grounds, disco-ball-glittering nightclubs and trippy giant chess games. In 2013, in honor of Second Life’s tenth birthday, Linden Lab-the company that created it-released   an infographic charting its progress : 36 million accounts had been created, and their users had spent 217,266 cumulative years online, inhabiting an ever-expanding territory that comprised almost 700 square miles. Many are tempted to call Second Life a game, but two years after its launch, Linden Lab circulated a memo to employees insisting that no one refer to it as that. It was a platform . This was meant to suggest something more holistic, more immersive, and more encompassing. * * * [ Polley : detailed story, worth reading. I haven’t logged into SL for years; I may need to go back for another look.] top

    Math student wins “Dance Your Ph.D.” contest   (InsideHigherEd, 6 Nov 2017) - Science sponsors an annual   “Dance Your Ph.D.” contest to highlight research and the importance of communicating findings in ways that help nonspecialists understand them. Below is the video of this year’s winner, Nancy Scherich of the University of California, Santa Barbara. She studies topology, the study of geometry in which shape and size don’t matter. Her focus is on braid theory, or “the rules that determine the unique representations of twists and knots in high-dimensional spaces.” [ Polley : I’m guessing the math is real; the 9m dance   video (with some subtitles) certainly is intriguing. Remember the string game “Cat’s Cradle”?] top

 

LOOKING BACK

    FTC issues online ad privacy guidelines   (NBC News, 20 Dec 2007) - On the same day they cleared Google Inc.‘s purchase of online advertiser DoubleClick, federal regulators said industry needs to be more transparent about how consumers’ Web-surfing habits are tracked. The Federal Trade Commission on Thursday proposed guidelines by which advertisers would voluntarily fess up to Web surfers about whether their online behaviors are monitored and used to personalize ads. Privacy experts said the guidelines could be helpful, but only if industry enforces them. Consumers are largely in the dark about companies tracking them through these ads, the agency said, adding that companies should give people a realistic choice in whether they want to be tracked or not. “You shouldn’t have to be a computer geek to protect your privacy,” said Peter Swire, an Ohio State University law professor and senior fellow at the Center for American Progress, a liberal think tank. top