If you're a seasoned General Counsel they didn't teach you technology law in law school because it was a legal specialty that did not really exist before the late 1980's at best. Now your problem is that your company lives in a mostly paperless, online world and you are concerned (at least privately) that you are not particularly comfortable with the legal implications of computers, the Internet, e-commerce, privacy, employees rights online, cybercrime, technology use policies, contracted for IT-related goods and services, and a host of other interrelated issues. The purpose of this article is to give you a brief overview of a few of the technology law issues that you must have on your radar. The articles that follow will add some depth on some of these subjects.
Let's start with a fundamental question: "What is "Tech Law" anyway?"
To answer this question let me first give you a little bit of background. I started describing myself as a lawyer with a practice that focused on "computer and tech law" over 20 years ago. When I would tell people this 20 years ago, they look at me somewhat quizzically. You know -- the same look you would expect if you had just told them that E.T. was in your yard.
After that "look" went away, they would typically ask me two questions. What exactly is a "computer lawyer" and can you make money doing it? The answer to the first question is somewhat nebulous, but I'll attempt to answer it in the next section.
As for the second question, nobody ever asks me that anymore. A couple of decades ago, I would say, "Sure you can. Really! Don't look at me that way. You can!" At least I hoped that I could in the world as it existed before the commercial Internet and even before what would be referred to the "Information Superhighway." Remember, that was back in a world before every employee with a phone on their desk also had a computer.
What's in a Name?
A lot has changed in 20-plus years. In that time, I've watched tech law and the issues that should concern in-house lawyers go through many incarnations. Even the name of what you call my specialty has evolved.
The list is long and includes computer law, Internet law, e-commerce law, cyberlaw and tech law. The names reflect the evolution of what was hot in the area. Today, I use tech law because I think my specialty encompasses all kinds of technologies.
Two decades ago, a computer lawyer did things like contracting for custom software development, protecting software's intellectual property (with heavy emphasis on the copyright side and light on the patent side), and technology related litigation. The specialty developed because people were spending big money on technology and the typical lawyer in 1990 viewed the computer as the $3000 typewriter on his or her secretary's desk.
Back in the 1980's and 90's one of the results of most lawyers being technologically challenged was that they were completely unprepared to deal with the contracting and litigation that arose from tech deals. You cannot ask the right questions if you are clueless. While any good litigator can handle the "network is dead" lawsuit, or any good transactional attorney can negotiate a simple computer hardware purchase, it takes a bit more finesse and knowledge to handle issues such as the "network is slow," "the software crashes too often," or "the system is not performing to our expectations." One of the problems with tech law is that you have to work these mushy issues all too often. Tech law and need for expertise in this area has exploded in the last 15 years. It reflects the way technology and particularly the Internet have entered our lives. It's a clichéd joke to ask, "How did we survive before email, iPhones, and Crackberries?" My answer is that I don't remember how we survived. Thinking back that far causes me to reflect on carbon paper and feeling older.
Think about it. It really was not that long ago that TV commercials and billboards were not obliged to send you to www.OurWebsite.com. You don't have to think back too far to remember when the high-profile Super Bowl commercials were the exclusive province of Chevy, Bud, and Pepsi -- not www.I-Never-Heard-of-You-Before-and-Will-Never-Hear-of-You-Again.com.
What Tech Law Has Become
Tech law today is still about the same things tech lawyers did two decades ago, but now it is so much more. New issues seem to arise everyday that need answers, and inevitably, it takes awhile for the law to evolve.
What's scary about this process is that the Internet and technology have wrought many fundamental changes to our society and companies and, in many cases, the people legislating are not particularly sophisticated about our online world. I have a problem with legislation impacting our interconnected world being influenced by a person who thinks that surfing the Web means watching his grandkids playing video games. Still, a fundamental truth about technology and law is that first we develop new technologies and then we have to figure out how to regulate them.
On that level, nothing has changed during my 20 years of practicing tech law and the process will never change. After all, someone had to invent the telephone before we could legislate on the abuses of telephone marketing. Likewise, we needed the ability to enter into agreements electronically before we needed the Federal legislation called "E-Sign" to legitimize electronic signatures. It turns out that even defining tech law is a not straightforward because it is by its nature an eclectic specialty. I do not assume that the term even means the same thing to practitioners who describe themselves as technology lawyers.
For example, the bulk of my practice revolves around business deals. So, when I describe myself as a technology lawyer, what I mean is that I am a deal guy who focuses on sophisticated deals involving anything that touches technology, telecommunications, and outsourcing (whether outsourcing IT or other things like business processing). The deal could be things like a complex managed services, SaaS (software as a service), software development or website hosting and development deal.
I think most other lawyers who describe themselves as tech lawyers are intellectual property (IP) lawyers who focus on the IP rights that flow from and around technology. Certainly, every tech lawyer must have IP law expertise because almost every tech deal has IP that needs to be sorted out clearly and unambiguously by the contract. Still, there's so much more to practicing tech law than just focusing on the IP aspects of the deal.
As a General Counsel, the hot button tech law areas for you will be an ever-evolving eclectic bundle of legal concerns.
Let's start by looking at some of the tech law issues relating to your company's website. After all, it is the world's portal into your company.
Does your company own the copyright to its own website? If it was developed by an employee, the answer is probably "yes" because the law concerning ownership of copyrights created by employees is basically intuitive. If an employee created it as a part of their duties as an employee, the company probably owns the website.
Still, an agreement with an employee on IP is still a best practice because that agreement helps you avoid hearing things like: "I did it on my own time," "in my garage" (why this stuff happens in garages still baffles me), "outside of the scope of my duties," and while "using my own computer."
The law concerning independent contractors is counterintuitive in that the independent contractor will own the copyright for your company's website unless you have a proper written agreement to the contrary. This is one big trap for the unwary and the generalist General Counsel who is not familiar with IP law.
The website also raises privacy issues and concerns that come at your company from all directions these days. For example, Massachusetts has been the center of attention recently because of a comprehensive privacy law designed to protect the personally identifiable information of its residents.
Moreover, if you think that this new law does not impact you because your company is not located in Massachusetts, think again. We live in an interconnected world where state jurisdiction due to online contacts is a fact of life. Can you really be sure that you don't have a customer or employee (current or former) who is a Massachusetts resident?
One of the problems with the legislative and regulatory framework that governs our online world is that law comes from the Federal government and each of the 50 states. Oh, and let's not forget about every other country in the world. This patchwork of often conflicting laws and standards makes it quite difficult for the generalist lawyer to stay afloat.
Next, let's look at tech law issues relating to electronic discovery. Litigation and electronic discovery are a huge nightmare for many in-house lawyers. That's not surprising since electronic discovery was barely a blip on anyone's radar not too long ago and now it is often the core of discovery in commercial litigation. The days of delivering boxes of paper are over. Now, you routinely see million-plus document cases where the parties are using sophisticated computer searches to find relevant material.
There is a steep slippery slope here when dealing with electronic discovery, where the line between routine business practices and spoliation of evidence is a narrow one. Here is yet another area where a lawyer who is comfortable with technology and can go toe-to-toe with IT professionals in discussions about database queries, backups, data formats, and other related issues is essential. It is not too hard to find your company being sanctioned by a court due to electronic discovery missteps. By the way, if you wait for litigation to think about your IT procedures designed to preserve evidence in case of litigation, you are probably too late. You will be playing catch-up in a game with hefty sanctions staring at you.
Educating Your Employees
Finally, let's look inward to your employees. Every - and I mean EVERY - employee with Internet access needs training about the fundamentals of the law concerning the Internet. The ways your employees can cause legal issues for your company online are endless. To some extent, the problem is that the Internet is still relatively new in the workplace and with that newness comes many misconceptions that could become your nightmare. I cannot even begin to count the number of sophisticated business folks who are just wrong about some of the fundamentals concerning the law online. It is simply naïve to think that your lower level employees understand this stuff when the sophisticated often do not get it.
I find that I am often introducing new concepts to people when I say things like "copyright law applies online" or "what you say online can constitute libel as if you said it in a magazine." This segues nicely into one of the newer hot button things for General Counsels to lose sleep over - social networks. While it is true that the simple answer is to prohibit employees from using social networks at work, this is probably self-defeating. Most companies want an online presence in places like Twitter, Facebook, and LinkedIn. While you can wistfully remember the days when controlling your companies message was easy because of the small number of folks authorized to speak on behalf of the company, the world has moved on you again.
Now, you probably want your employees online tweeting and interacting with the world online through social networking (and if you do not think you want this I think that I could make a good case that you are missing the boat). This type of messaging about your company is really not done well by just your PR folks. You probably need to let your employees loose in places like LinkedIn and Twitter. My take is that the legal tail should not wag the dog. If social networking is good for the business, then the task for legal is to make the legal risks manageable - and you can do it. The path to this Promised Land is education and training, and clear company guidelines explaining the company's social networking policies. You cannot really expect your employees to understand the law online if you do not teach it to them and then give them clear guidance.
If there is any good news for the General Counsel who has to help his company comply with the law in an increasingly digital world, it is that you do not have to have a deep understanding of the technology to lawyer it. We are lawyers not techies. With a little knowledge of the tech stuff as background, you can then focus on the law and not the tech.
I would just encourage you to not offer conservative advice that hinders your business just because you do not feel comfortable in a digital world. I suggest that you and your company embrace all that technology brings to your bottom line. As lawyers, we must protect our clients from the new downside risks that technology offer, but do not be a naysayer. Find a way to make technology work for your company. Develop policies. Train employees. Provide legal guidance. And, most importantly, find ways to say "yes" when asked about introducing some new technology to your company.