Join the Cyberspace Law Committee at the ABA 2004 Annual Meeting

Monday, August 09, 2004

Land is the only thing in the world that amounts to anything.

Thank you Atlanta for wonderful hospitality and a warm welcome to us all. We bid you goodnight. Posted by Hello

Oh The Places We've Been

The free tracking program we're using to track visitors, page loads, repeat visitors, etc. to the Blog has shown a surprising array of activity. We've received visits to the Blog from the following locations:

United States

The power of the Internet to reach new audiences never ceases to amaze us.

We've opened up the tracking site so that everyone can view the stats:

Final Wrap for Committee Leadership

Monday afternoon, Vince and Candace called to order the last official meeting for the Committee at the 2004 Annual Meeting. Vince reminded of us some of the recent changes to the committee leadership structure, including:

  • The Internet Jurisdiction subcommittee and the Subcommittee on Global E-Commerce are merging into a single group, to be named at a later date. Michael Geist and John Gregory will co-lead the group (and will certainly propose that an upcoming Winter Working Meeting be held somewhere in Canada -- will the Minneapolis contingent be able to bear with the competition?).

  • John Lunseth is taking over the Programs chair from Hank Judy, and John has already begun to schedule out the Spring and Summer sessions for next year! Don't hesitate to get your ideas before John if you wish to be on the podium in the coming year.

  • Mike McGuire is passing on some of his current portfolio -- the seat on the ABA Publications Board -- to Eric Goldman. Mike will continue to hold the publications chair for the Committee, and has been tasked to expand the Committee's use of technology to communicate and work with its members (including the continuing expansion of this very blog!).

    We were joined during our meeting by the Chair of the ABA's Diversity Committee, Jackie Parker. Jackie and Vince reminded all of us of the ABA's -- and the Committee's -- standing goals to expand and maintain the diversity of our membership, leadership and those who present and create product for our committee. Jackie reminded us of many of the tools available to our groups. For example, the ABA and the Diversity Committee stand ready to provide references for potential speakers or authors with specific interests and areas of practice to join a panel. The ABA has programs to assist potential new members of our Committee with travel expenses, such as an outstanding program in conjunction with the Young Lawyers Division. If you would like to discuss any of these programs or ideas, be sure to contact Jackie: jacqueline-parker [at] bankone [dot] com.

  • And with that, we had planes to catch, and bills to pay. The sessions were officially closed.

    So long, and thanks for all the fish!

    The ABA Cyberspace committee meetings have come to an end in Atlanta. My personal, heartfelt thanks to those of you who participated in-person, and thru the blog (we THINK we've had on the order of 500 readers over the past week). My special thanks to blog-commanders Michael Fleming and Michael McGuire, and to outgoing program-commander Hank Judy.

    We've made a great deal of progress in Atlanta. Come join us at our winter working meeting at Stanford, January 28-29, 2005 (where we'll no doubt run another blog, and a wiki, too).


    Ephemeral Nature of Blogs

    Don't Forget -- These Blogs are meant for Real Time discourse, but are not well designed as long term archival tools.

    Thus, remember the Law Hub -- the Cyberspace Committee's unofficial official home. Many of the materials you see discussed here are already posted there, and more to follow. If you would like to become a member, contact Vince Polley at vpolley <@>

    New Sci Fi Book Plays out Cyberspace Law Issues (item moved)

    In the interest of space management, we've moved McGuire's fun (but long...) post on the brave new world of fictional electronic contracting (fiction about electronic contracts???) down to here.

    Epstein Demo of New Web Site

    Jason Epstein demonstrates the new Model Corporate Website tool before the CAIT meeting on Monday morning. Posted by Hello


    Vendor Liability for Security Flaws

    Don Cohn started the meeting with a description of a suggestion for a new project to create a standard set of reps and warrants that companies could demand from software vendors relating to the lack of security flaws in the vendor's products [Watch 6mb Quicktime Movie of Don]. If you're interested in this as a potential project, please contact Don.

    Assessing the Security Risks of Third Party Vendors

    Continuing the general subject, Michael Fleming then described an existing project that focused on how to conduct due diligence or assessments of third party vendors. GLBA and other laws now require that some companies only use vendors who have demonstrated they are capable of maintaining appropriate safeguards for data.

    Mike demonstrated a sample self-assessment checklist to start the project. It will soon be loaded to the LawHub. Given the draft nature of the document, it will not be publicly available until later.

    The interesting twist on this project is that Fleming plans to use a Wiki for group members to comment on and to develop the text for the security document. He showed a live Wiki he has created for the project. This will be a fun way to try out one of the latest collaborative authoring tools. Group members will be able to edit the document, show their edits to others, and the group can "vote" the changes up and down. This will be a fun experiment. [LINK TO BE POSTED LATER]

    The Wiki is being hosted by editme.

    Demonstration of the Model Web Site

    Jason Epstein then demonstrated the current version of the Model Website. It will eventually be packaged as a book and CD combination for publication and sale by the ABA. The Model Web site is intended for use by lawyers and businesses to help them understand the legal challenges involved in operating a Web site to sell goods or services. It contains sample Web pages with annotations and pop-up text to identify issues and suggest ways of resolving them.

    The group was in general agreement that this was one of the most innovative projects we've had in a long time. It's interactive, it breaks our traditinal publication models, and it presents material in a whole new way.

    ABA Model Trading Partner Protocol

    The group met this morning to enjoy Chocolate (yes, Jamie came through on the advertised promise) and work towards pushing the project across the finish line. The Model Electronic Commerce Trading Partner Covenants (2004) are nearly finished.

    The group today included a few new members, and it also demonstrated a unique phenomenon that many of us enjoy about the Cyberspace Law Committee--the group included private practitioners, law professors, government regulators, representatives of standards-setting bodies, and in house lawyers. Together, they continued to grapple with the challenges of how to create contracts that will actually facilitate commerce and that won't stretch the current legal frameworks too much. Quintessential work of the Cyberspace Law Committee.

    The draft of the 2004 Update is available here.

    And, because we have the capabilities, but we haven't done it yet, we took a short Quicktime movie at the Working Group meeting. For history's sake. It's safe for viewing at work or in public places.

    Sunday, August 08, 2004

    Working Group on Electronic Contracting Practices

    The Lottery Case
    The Working Group opened its meeting with a discussion of unilateral modifications of contract terms. The first item for discussion was a Michigan case involving the interpretation of a contract for a subscription to a lottery. Paulsen v. Bureau of State Lottery, 421 N.W.2d 678 (Mich.App. 1988). The plaintiff purchased the ability to play the same lottery number for 52 drawings. The contract clearly stated it's terms were subject to the rules and directives of the Bureau of State Lottery. After the contract was signed, the Bureau decided to hold drawings twice a week, rather than once per week. Thus, reducing the period of weeks, but not the number of drawings, in which the Plaintiff would participating in the lottery with their pre-chosen lottery number. The plaintiff relocated before the change in terms occurred and did not receive the mailed notice of the change from the Bureau. Later, the Plaintiff's regular lottery number was selected in a $3.6 million lottery. The Plaintiff notified the Bureau her number was selected. The Bureau responded that her pre-purchased 52 drawings had all been used a few short weeks prior. The Plaintiff sued and lost. The court held the change in the lottery schedule was not an impermissible modification of the contract and that making the contract subject to the rules, regulations, and directives of the Bureau was not unconsciounable.

    Effective Email Notices
    The group also discussed a recent case in Massachusetts in which the court held that email was not an effective way to provide a binding notice to company employees. See It's Official--You Don't Have to Read Your Boss's Emails (Steptoe & Johnson’s Ecommerce Law Week, 3 July 2004).

    Elaine's Article
    Elaine Ziff and Hawa Allan of Skadden Arps distributed a recent paper they concluded for the Working Group on Using Opt-In or Opt-Out Mechanisms to Obtain Customer Assent to Modifications of Standard Form Electronic Arguments. The article contains numerous examples of real situations where these principles were at work.

    John's Article
    During the meeting, John Tomaszewski commandeered my computer and dug up an old article he wrote many years ago on a similar topic. John P. Tomaszewski, The Enforceability of Adhesive Arbitration Clauses in International Software Licenses, 3.1 J. Tech. L. & Pol'y 4 (1997).

    The Group also mentioned that we may want to look closely at the applicability of the legal doctrine of novation. In other words, when terms change on a Web site, are you modifying a prior agreement or are you entering into a new agreement?

    Next Steps
    The group will probably begin working on a detailed draft of a PowerPoint presentation for use at the January meeting. We will likely create the presentation draft using the LawHub' collaboration tools. Look for an announcement to the group via the listserve.

    Adware, Spyware Presentation

    When you get two opposing lawyers from real, pending cases, you almost always have an interesting time. The Adware presentation today was no exception. Terrence Ross of Gibson, Dunn, and Crutcher and Celia Goldwag Barenholtz of Kronish Lieb Weiner & Hellman sparred with one another and recapped the debates of many of the cases involved Gator and When U. The audience was treated to a very good debate on the issues.

    The other presenters, Jeffrey K. Rohrs, the President of Optiem, Neil Smith of the Howard Rice firm also provided excellent background. The additional PowerPoint materials from the presentation will soon be avaialble on the LawHub.

    John Ottaviani of Edwards and Angell and Eric Goldman moderated.

    The advance presentation materials are available here. [ABA Web Site ID Required]

    WG on Transferrability of Electronic Financial Assets

    At the Working Group on Electronic Financial Assets' meeting co-chair Linda Rusch gave a presentation on current industry activity with respect to electronic bills of lading and warehouse receipts. Apparently, they are in use in fivc settings, often based on private agreements and special regulatory provisions, rather than relying on the provisions of the UETA and revised Article 7. These settings include the cotton warehousing industry (eCotten), the Bolero system, eCOPS (the New York Board of Trade, for warehousing of coffee and cocoa), transmission of information from shippers to carriers, and an XML program developed for petroleum products. Linda prepared a handout titled Examples of Electronic Document of Title Systems. You can view the document by visiting the LawHub page for the Subcommittee on Electronic Financial Services [Members Only]

    However, the current (and long-standing) problem to be solved is how attorneys can reliably assess whether a computer system meets the "control" test in UCC Article 9, UETA, and E-Sign. Today's discussion focused on how attorneys need to interact with technologists to meet this need, whether to generate a legal opinion, or to perform due diligence, or to examine a witness in a bankruptcy case.

    This question has a real world application to the question of how to rate securities backed by transferable records. Apparently, chattel paper issuers are starting to take advantage of Revised Article 9's rules on electronic chattel paper and securitizing the chattel paper. They need the resulting securities rated and but the question is how to do it. Worse, the law firms for the issuers are not at all sure how to give legal opinions on the systems.

    It was the most entertaining meeting of the working group in years.


    Radio Frequency Identification (RFID)

    Ben Hayes, of Kirkpatrick & Lockhart, gave an excellent, quick presentation on how RFID technologies are developing and some of the privacy challenges that have been raised. His presentation will be available here soon.


    He even brought with him samples of the RFID hardware. [The picture shows about 50 small RFID chips in a vial] We were all amazed at how small and cheap the devices are getting. If you have questions, contact Ben at bhayes <@>


    Elizabeth Bowles began the presentation with a history of the Spam problem. Being with an ISP, she has a great deal of detail about how much Spam is flowing through the networks, the costs, and burdens it imposes.

    Michael Fleming then gave an overview of the Can Spam Act itself to lay the foundation for the ethical discussions by William Denny and Henry Judy. Hank then gave real life examples of how his firm has developed policies and procedures, and new tools, to comply with the Can Spam Act. The PowerPoint slides contain good Web site screen shot examples.

    Elizabeth and Mike



    Program materials are here [ABA ID REQUIRED]. The PowerPoint slides are available on the Law Hub which we invite you to visit, or you can download them directly here.

    A Smattering of Blogs on Law and Technology

    UPDATED If you're following our blog, we thought you might like to explore some of the blogs out there that relate to law and technology and other interesting things.

    Boing Boing
    A Directory of Wonderful Things

    Site for searching, subscribing and sharing news feeds

    Great way to find legal blogs (blawgs)

    LessigBlog [currently being guest hosted by Tim Wu]

    PDF for Lawyers
    How to use PDFs in the practice of law

    Legal Blogs with XML Feeds

    A rather complete list of law-related blogs that provide XML feeds for syndication

    Portals and KM

    The Importance Of
    Innovation, Creativity, Law

    Tech Law Advisor

    Payments News
    Weblog of the Global Internet Policy Initiative (GIPI)

    Technology Review

    IP and Internet issues

    Excited Utterances
    Law firm knowledge management

    Internet law developments

    Technology issues

    TechLaw Advisor

    Ernie the Attorney

    Bag and Baggage

    Cyberspaces: Words-Not-Deeds

    Use the comment feature below to suggest additional blogs to add to the list.

    There's Always Coffee

    Continuing a new Cyberspace Law Committee tradition, I locate the best coffee shops in the towns where we have meetings, and I force a few people to come with me. Last nigth after Pura Vida, I forced Jackie Scheib, Mike Gordon, and Ben Beard to join me in a late night cup of excellent java at San Francisco Coffee Roasters. True artisanal coffee roasters with a barista capable of creating art with the pour.

    A Great Pour

    CLC Forum -- The VoIP Revolution and Key Effects on Legal Practice

    Have you ever used your computer to make a phone call? No? Have you ever used it to send instant-messages? Well, IM technologies (which typically also include a voice option) are exactly those used in providing Voice-over-Internet-Protocol (VoIP) service. This morning's panel of Federal and State regulators, ISPs and telcos, generally seems in agreement that low barriers to entry, an intense competitive environment, and the certainty of rapid technological change all should support a hands-off stance for the regulators. Still, some State PSCs have begun general regulatory efforts, and there is nearly universal agreement that VoIP services should help fund "universal service" policies.

    Even in a hands-off context (for as long as that lasts), here are some of the issues: conflicts among/between various PSC who DO begin to regulate; how to provide 911 or other emergency services?; should law enforcement interception of VoIP voice-traffic be facilitated by ISPs and other VoIP providers, and how can smaller providers bear the associated costs?

    The Cyberspace committee's VoIP initiatives (currently jointly housed under the subcommittees on Connectivity and Internet Law) certainly will continue and evolve. If you'd like to learn more, first login to the Committee's LawHub (free registration required, but available only to Committee members) and then click here. Or, contact any of the following (the co-chairs of the two cyberspace parent committees): Richard Keck, David Satola, Hank Judy, or Tom Laudise.

    IP Subcommittee Meeting

    The IP Subcommittee, chaired by Eric Goldman and John Ottaviani had an early morning meeting. Quite lively despite the hour. Turning first to the subcommittee's open source project, Ottaviani announced the subcommittee has completed a review of over 50 open source licenses. Discussions on what to do with this vast body of knowledge focused on organizing the data for use in other projects, providing a resource for lawyers doing M&A due diligence; and providing a survey of open source license types for companies thinking of using an open source licensing structure.

    The subcommittee's e-mail newletter, CIPerati, is now on its fourth issue. Edited by Jonathan M. Eisenberg and Craig S. Rutenberg of Manatt, Phelps & Phillips
    each newsletter has featured 3-4 really great practical articles. The link above can be used to view the back issues or subscribe if you are not currently getting the newsletter.

    New articles are always needed for CIPerati and anyone interested in submitting should contact Eric, John, Jonathan or Craig. CIPerati is a great way to republish one of those articles written for a firm website or newsletter.

    The meeting also included a great discussion on the subject of clients' problems with search engines (read Google) and the funny games they play. Words like "Google bombing" and "bridge pages" were tossed around with utter abandon. Apparently, a number of the participants have had a lot of client activity in this area and the subcommittee will be looking at potential projects. Volunteers are always welcome.

    Long Live Pura Vida

    The group had a very fun evening last night at Pura Vida for the Annual Cyberspace Law Committee Dinner. Congratulations to Ms. Scheib (we're in Georgia afterall) on her efforts to set up the dinner.

    The food was great. My only criticism was that the wine, beer, and sangria was flowing a bit too freely.

    Thanks as well to Hank Judy, a partner at the law firm of Kirkpatrick and Lockhart that graciously donated funds to help keep the costs of the dinner as low as possible for the Committee. Thanks Hank, and thanks K&L.

    We'll have pictures later, as soon as we find a one hour photo developing place that's open on Sundays in downtown Atlanta.