Join the Cyberspace Law Committee at the ABA 2004 Annual Meeting

Saturday, August 07, 2004

Getting Paid in the 21st Century

As a lawyer who doesn't understand the laws of gift cards, gift certificates, money transmitter laws, and other seemingly arcane and esoteric areas of the law, this program was great. I came away with the following general conclusions:

  1. I'm never going to operate anything that might walk, talk, or quack like a money transmitter operation.
  2. If a client ever does anything like that, I'm not going to be their lawyer; I'd screw it up.
  3. Gift cards may be riskier than I thought.
  4. States don't seem to understand these issues very well, but they sure seem to be passing a lot of laws on the topics.
  5. More laws are coming. They will probably be worse, and cause even more confusion.
  6. If you're in the business of moving a lot of cash (like the US Govt), you can save a lot of money by switching to stored value cards.

Here are the program materials. [ABA ID REQUIRED]

Consumer Protection working group projects

After several years co-chairing the working group, Jean Braucher and Mark Budnitz have handed over the reins to Don Clifford from the Univ. of North Carolina. When you see Jean and Mark, be sure to thanks them for their pioneering work. Come meet and welcome Don at the January 2005 winter working meeting in Palo Alto.

The extant consumer online shopping educational resource, SafeShopping, was developed by the working group in 1999/2000, and is widely used by consumers (especially around holiday shopping periods). It's time to take another look at the site to make sure that it remains a relevant, accurate resource. If you're interested in participating (or if you spot errors there or have ideas for additions), please contact Don or Mark. Also, we're considering asking other organizations (like Consumers Reports, the consumer-protection divisions in State Attorneys Generals offices, etc.) to link to (as has been done by BBBonline).

Adware/spyware, SPAM, computer viruses and firewalls -- consumers are afflicted by these, but without in-house support from sophisticated corporate/lawfirm IT organizations. Much like, the working group is assessing a new project to develop consumer education tools, information, and other resources that will demystify these areas and help consumers protect themselves. Mark and Don are beginning to outline the scope of this project -- please email them with suggestions (e.g., should the project also deal with identity-theft?).

Join the Law Hub

The Cyberspace Law Committee has an informal pilot Web space that it uses to exchange information, host discussions, etc. If you aren't already a member, check it out. . If you would like to become a member, contact Vince Polley at vpolley <@>

Vince's New Gig

After his pending retirement from Schlumberger, Vince will get fully behind his new business venture. He'll be heading up a new Knowledge Management company called KnowConnect.

Cybersecurity and Privacy Subcommittee

Information Security Guidebook for Directors

Marc discussed one possible project that was discussed at the Winter Working Meeting to create a guidebook of sorts for corporate directors that identifies information security risks and gives them tools to help manage those risks.

If you're interested, contact Marc (see contact information below). You can also track developments on the Law Hub page dedicated to this Subcommittee.

Cybersecurity Summitt

Before the meeting, Marc Pearl, Co-Chair of the Subcommittee distributed a a working draft template proposal for the Cyber Security and Privacy Summit that our Cyberspace Committee Task Force has been discussing. Hank Judy, our co-chair, Ray Gustini, and Marc have been working on developing this proposal that would bring together some of the critical sector entities for a one-day invitation-only program to discuss in small facilitated groups new conceptual approaches to the business and policy issues surrounding information-sharing, data collection/distribution, the balancing of security and privacy rights, etc.

They hope to hold the event in early 2005 and therefore need to begin to put the pieces together as soon as possible. A sub-group of the Task Force will meet during the ABA Meeting in Atlanta on Saturday, August 7th in the Atlanta Hilton's Grand Ballroom A - 2nd Floor - immediately following the "Getting Paid in the 21st Century" program - at approximately 4:30pm to begin planning for the Summit.

Please let Marc know if you have comments on the "template-in-progress." In particular, think about procedural issues (such as possible co-hosts, location, timing, etc), as well as the possible sector experts to invite to participate in the Summit.

If you would like a copy of the proposal, contact Marc at mpearl <@> . You can also view information about the Summitt on the Law Hub. Or, you can track him down at the meeting and talk to him here. He looks like this:

Marc Pearl

Open Source Meeting at 4:30

The IP Subcommittee will have a short informal meeting on its Open Source project at 4:30 on Saturday. Meet at the concierge desk in the lobby of the Hilton.

Last month, about 8 volunteers reviewed more than 50 different open source licenses, analyzing their terms. The purpose of today's meeting will be to discuss the different things the subcommittee can do with the work product to date.

Programs and Publications

The Programs and Publications Subcommittee didn't actually meet. However, there are a few substantive things that I wanted to share/ask of the members of the Committee. Please let me know if you have an interest in any of the topics below.

  1. eNewsletter
    The Business Law Section has created a template for the publication of electronic newsletters by the Committees. We are looking for someone who is interested in using the template to create an electronic newsletter for the Cyberspace Law Committee. Because we have so many existing publication venues (the Blogs, the Law Hub), we should be able to easily find content that we can re-purpose. If you're interested, contact McGuire. Here is a sample of the new template formats showing The eNewsletter published by the Consumer Financial Services Committee is a good example of the new format.
  2. Survey of the Law of Cyberspace
    For next year's Survey in The Business Lawyer, we're going to try something a bit different. We're going to identify 4 or 5 subcommittees who will prepare short summaries ("surveys") of the developments in their particular areas. We need one or two authors for each Subcommittee who will take responsibility for preparing the survey pieces.
  3. Publications Board
    Eric Goldman will be replacing me on the Publications Board for the Business Law Section starting Sunday. If you have questions about the process of publishing books by the Section, please see Eric. He doesn't know much yet, but he'll learn quickly.

Winter Working Meeting Set

The time and place for the Winter Working Meeting have been set. We'll all meet in Palo Alto on January 28 and 29. Current plans are for us to hold the meetings on the Stanford Campus. More details will follow.

Is Blogger "Snooping" on our Posts?

Blogger provides this web service to host and run our Blog for free. The trade off is that Blogger serves up two small ads at the top of every page view. If you have been logging into the Blog regularly, you'll notice the ads seem to be based on the content of the posts to the Blog. The two most common ads are for hotels in Atlanta and for wireless lan security products.

I'm sure I agreed to this when I didn't read the user terms and accepted them. But, it's interesting. No?

It's also very similar to what Google (the owner of Blogger) is doing with its by-invitation-only GMAIL service. I have an account, and the ads are targeted to the words in my email messages.

So, let's all be careful about what we talk about in our posts.

Committee Forums for 2004 Annual

Eric Goldman gives a fair and balanced presentation on Spyware and Adware -- one of the Mini Programmes from this year's main Committee meeting. Program materials are here on the LawHub [Members Only Area] Posted by Hello

Monday morning, TPAs and the legal effect of cursory mentions of chocolate

Monday, August 9 Update

Jamie came through on his promise, and chocolate was indeed a part of the meeting on Monday morning in the form of various elegantly wrapped chocolate covered things.

The Joint Task Force on Model Trading Partner Protocols is finishing up its 2004 revision of the 1990 Model Trading Partner Agreement this Monday, August 9th, at the ABA Annual Meeting, in the Gwinnett Room on the second floor of the Atlanta Hilton at the precarious hour of 8 AM.
This accounts for the appearance at this morning's Cyberspace Committee meeting of fluorescent pink bulletins reading as follows:


Gwinnett Room, 2nd Floor

The original 1990 work was a seminal model agreement, accompanied by a study of then-emerging electronic contracting methods, that have formed the foundation for many later statues, rules and commercial practices including UETA and the e-Sign Act. We are finishing up the 2004 update just in time to commemorate the honoring of the original MTPA authors as this year's recipients of the Cyberspace Excellence Award.

Join us on Monday and find out whether an unamplified reference to "chocolate" in a unilateral instrument is (a) an offer susceptible of enforceable acceptance; (b) merely a moral commitment; or (c) just a reprehensible ploy to get you into the meeting room.

Friday, August 06, 2004

Blogging the Midnight Oil


Was that a trattoria or a night club?

On Friday evening Richard Keck and his firm, Troutman Sanders, hosted a cocktail party for members of the Cyberspace Committee. People had such a terrific time mingling that the firm eventually suggested we move on to our next destination. So Richard led a party of 14 cyberspacers to Il Localino, an Italian restaurant on North Highland Ave. Or was it a disco on North Highland Ave? All I know is that the meal was served "family style" with copious food and drink. Sometime during the appetizers the Bee Gees came on with
Staying Alive! It was largely a group activity after that - with the music ranging from Barry Manilow's Copa Cabana to Frank Sinatra - the group and other guests at the restaurant (including the head coaches of BOTH the Atlanta Falcons and the Atlanta Hawks) were grooving - on their feet and on the chairs. After that the Frank Sinatra "rat pack" party hats came out, and it was all we could do to keep Candace Jones and Scot Graydon from dancing on the table. Richard Keck and Jackie Scheib were dancing with the wait staff and the performance MUST have been good because they were each presented with red roses by the staff at the end of the night! Elizabeth Bowles treated the group to some salsa dancing. Mike Gordon kept asking for a "Freddie Mac" tune - but had to settle for shimming to Dancing Queen by ABBA. Kathy Porter, Mike Powers and John Ottaviani kept ordering more wine bottles. Tom Laudise offered to pay for the entire evening on Lenny Nuara's credit card - after we convinced him not to do that, he decided to make it up to us with a stirring lipsynch rendition of I WILL SURVIVE.

CORRECTION: As of this morning John Ottaviani claims it was Barry White, not him, that kept ordering more bottles of wine. Or something like that. I will need more coffee before true coherence sets in.

FURTHER CORRECTION: I am informed that the Atlanta Falcon's coach was not, in fact, in the restaurant. Simply the imagination of a confused fan fueled by too many glasses of Chianti.

Thank you Troutman Sanders

Thanks to Richard Keck and Troutman Sanders, LLC for hosting a great little reception with Sam Adams beer from my hometown of Boston. In attendance were e-commerce luminaries Tom Smedinghoff and Sci-Tech chair elect Richard Field. I tried to crash the other reception on the floor below, but they wouldn't let me in. Guess I wasn't wearing a tie.

Global E-Commerce Policy Subcommittee Meeting

Among other things, the subcommittee discussed a project to identify existing treaties that would constrain (or be constrained by) the emerging UN treaty project (by UNCITRAL, Working Group IV) on "Legal Aspects of electronic commerce".

Hal et al

Here are subcommittee members Hal Burman (co-chair), Bill Luddy and Jamie Clark.

Cyberspace Committee cocktail party -- Friday, 8/6 at 5:30 pm

Thanks to the generosity of Richard Keck and his firm, Troutman Sanders LLP, there will be a cocktail party Friday evening at 5:30 pm at the offices of his firm for members of the Cyberspace Law Committee to meet members of the Georgia State and local Bars who are involved with committees on Technology, E-Commerce and Intellectual Property.

Troutman Sanders’ offices are at 5200 Nations Bank Plaza, 600 Peachtree, NE, only about a quarter mile from the Atlanta Hilton (map). There will be signs at the entrances to the building directing you to the appropriate floor. A Big Thanks to Richard and his firm for this generous contribution to the Committee’s activities during the meeting!


Track the Stats for the Blog

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50 Unique Visitors today:

8-6 Stats

2004 Meeting of Officers, Council and Committee Chairs

On the LawHub ( I've just uploaded the PowerPoint presentation from this afternoon's meeting of the Council--which is the governing body of the Business Law Section--together with a description of interesting slides (congratulations to Tom Vartanian!). If you look at this now, you may see parts of it BEFORE the Council (the presentation is happening as I post this, and we're a little less than half-way through).

Here is a direct link to the LawHub, where you can download this presentation. :: A Separate Blog for Personal Opinions

After reading through the user terms for the Hilton's WiFi network, I just couldn't help myself. I had to rant. It's got lots of rather odd (okay, I'll say it, stupid) terms. I didn't want to clutter the unofficial blog with a lot of personal chatter. So, I created a second blog. The posts are here:

For What It's Worth -- the Good, the Bad, and the Ugly

Throughout the meeting, Mike and I and others will collect a probably useless list of tidbits about the meeting. Here goes:

  • The Portabello Mushroom Sandwich at the Hilton Cafe
  • A restaurant called Dailey's just a short walk from the hotel. Ask the Concierge


  • Nothing yet


  • Nothing yet

Thursday, August 05, 2004

Electronic Contracting Practices Group Meeting

In preparation for our meeting on our Modification Project, Elaine Ziff and summer associate Hawa Allan have submitted a Memorandum of Law on "opt-out" vs. "opt-in" as a method of assent to changes in an electronic standard form contracts -- download a copy here. This outstanding Memorandum digests the Toysmart line of cases and settlements, legislation (such as the EU privacy directive, COPPA, Gramm-Leach, and CAN SPAM Act), and industry guidelines (such as TRUSTe and BBB On-Line). It also includes summaries of certain recent cases from the "paper world", where standard form contracts were amended by letter or email.

We will also discuss cases examining whether a particular contract provision included in a modification was unconscionable. Please join us for the Joint Working Group on Electronic Contracting Practices in the Walton Room, Second Floor at 4:30 pm on Sunday.

This posting entered on behalf of Co-Chair: Kathleen M. Porter (kporter AT rc DOT com)

IP Subcommittee Meeting Plans

For those of you attending the ABA Annual Meeting in Atlanta, please join us at the Cyberspace Committee's IP Subcommittee Meeting. The subcommittee will meet Sunday, August 8th from 8:00 to 9:00 a.m. in the Forsythe Room (Atlanta Hilton, 2nd Floor).

At the meeting, we will discuss our current and proposed projects. The Agenda will include an update of the status of our Open Source Project (Yes, we have actually reviewed over fifty variations of open source licenses), as well as a discussion of current topics and issues. We are also soliciting ideas for new projects for the Subcommittee. As usual, there is plenty of opportunity for everyone to get involved!

Also, at the Annual Meeting, on Sunday afternoon from 2:30 to 4:30 p.m., the Subcommittee is sponsoring a program entitled "Search Engines, Adware and Trademark Law: What your Clients Can Do and Can't Do in Online Advertising." The Program will be held in Grand Ballroom D on the 2nd Floor of the Atlanta Hilton. We have brought in some outstanding speakers, so this should be a wonderful opportunity to get up to speed on the issues, as well as the positions of various industry camps. And, of course, more CLE credits!

You can read the flyer of events here. We look forward to seeing you in Atlanta!
John Ottaviani (jottaviani <@> Eric Goldman (eric.goldman <@> Co-Chairs, Intellectual Property Subcommittee

Wednesday, August 04, 2004

Shidler Journal Features CAN-SPAM and Law Practice

The new Shidler Journal for Law, Commerce & Technology has recently published an excellent article analyzing a law firm's obligations under the CAN-SPAM Act. It would make good pre-study for those of you who plan to attend the program on Sunday morning: The New CAN-SPAM Act and Attorney Communications -- Avoid the Ethical Traps. Cyberspace is jointly sponsoring this program with the Committees on Professional Conduct and Law Firms, and the Administrative Committee on Technology. Ethics credits are tentatively approved! Please join your fellow cybernauts at 10:30 Sunday at the Hilton Grand Ballroom D.