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Updated: 1 hour 17 min ago

SXSW: Namaste, Your Honor—Ethics and Mindfulness for Lawyers

Wed, 03/27/2019 - 09:34

This SXSW panel began with an exercise. Shutoff your phones, plant your feet flat on the floor, loosen up your shoulders, and keep your hands down at your sides, panelist Emily Doskow, a mediator from the San Francisco Bay Area, told the audience. We were about to meditate. For two minutes, the entire room was silent as people kept their attention on breathing in and out. Only occasional sounds would break through the silence—the air conditioning kicking on, a cart with drinks thumping against a wall in a room next door—but not enough to disrupt the calmness of a deep meditation. And perhaps that’s the point—getting to a place where stress and outside noise have little effect if any.

“As attorneys, we are under a lot of stress,” said panelist Judy Tint, a music attorney and college professor at the New York University Music Business program. “We need to focus; we need discipline.”

The panel cited the Hazelden Betty Ford Foundation and American Bar Association Commission on Lawyer Assistance Programs study on well-being, which found that among attorneys, 28 percent experienced depression, 19 percent experienced anxiety, and 23 percent experienced stress. Common causes of high stress in law practice: work volume, negativity and reactivity as the norm in arguments, and conflict being the nature of the job. The win-lose culture of law, they said, puts people in survival mode.

Lyzzette Bullock, associate general counsel to the law department of Blue Cross Blue Shield of Massachusetts, discussed how her own experiences with stress led her to meditation. Early in her career, she had long hours and high pressure from working multimillion-dollar cases that culminated in a health scare.

“My dental hygienist took my blood pressure and it was so high, she was scared I was going to have a heart attack and told me I needed to go to the doctor… after getting my teeth cleaned,” said Bullock, who was just 30 at the time.

She doubled down on the meditation she used to do in college and was able to get her blood pressure under control. It also helped her in other areas, Bullock said. She’d become more relaxed, more able to control emotional reactions—“which is a crucial tool in litigation when you’re being probed in court”—was nicer to herself and others, and was more present in everything she did, including when spending time with family.

Doskow drew attention to the effects mindfulness meditation can have on the brain over time: the amygdala, which kick-starts the body’s flight or fight response to stress, shrinks while the pre-frontal cortex thickens. This is the region of the brain responsible for bigger functions such as focus, self-awareness, and decision-making.

Meditation, the panelists said, doesn’t have to be done rigidly. Even finding a few moments a day—whether upon waking up, waiting on a train or bus to work, or whenever works—can be beneficial.

And even during meditation, thoughts of the past or future may weave in and out. The idea, the panelists said, is not to resist them but rather to acknowledge and accept them as they come.

“It’s not about clearing your mind,” she said. “That’s not the goal. The goal is to have a different relationship with what’s in your mind. It’s being friendly and accepting toward what is happening there.”





Houston Lawyers Association 2019 Scholarship & Awards Gala announced

Tue, 03/26/2019 - 11:00

The Houston Lawyers Association, or HLA, will host its 2019 Scholarship & Awards Gala on May 4 at the Whitehall Houston Hotel in Houston.

Honorary chairs for the event are State Bar of Texas President-elect Randy Sorrels and his wife, Alexandra Farias-Sorrels.

The mistress of ceremonies is Melanie Lawson, attorney and Houston Channel 13 anchor.

Keynote speaker for the event is Illinois Appellate Court Justice Shelvin Louise Marie Hall, who was the first female president of HLA.

A cocktail hour and silent auction begins at 6 p.m. and the official program begins at 6:50. Formal attire is required for the event. Tickets can be purchased at HLA2019Gala.eventbrite.com.

SXSW: Virtually Legal: Insights on AR, VR, and the Law

Mon, 03/25/2019 - 16:22

As demand for augmented reality and virtual reality continues to rapidly expand, inevitable legal issues abound. For example, are companies in the clear for using in a VR short Ryan Gosling’s voice, taken from content from the movie First Man?

The panelists of “Virtually Legal: Insights on AR, VR, and the Law”—Mary Innis, managing partner in the Innis Law Group in Chicago; Monique Cheng Joe, senior vice president and head of brands and content intellectual property at NBCUniversal; and Sara Perry, director and senior counsel of marketing at Netflix—weighed in on why attorneys need to involve themselves at the inception of these technologies to stay ahead of new legal issues and discussed murky legal issues, where precedents are still being set.

“You’ve got to anticipate potential legal issues not just for you but also for potential users involved,” Perry said.

Among the issues she talked about was the right of publicity,  a person’s right to control the commercial use of his or her identity. Right of publicity is centered on a few elements­—image, name, and likeness—and can include voice, signatures, and performing style, depending on the state (such as in Texas).

Perry described an instance in which the voice of a celebrity in a trailer was given the OK by Universal Pictures in First Man: The Immersive VR Experience. In the VR short, viewers relive the Apollo 11 mission through the scope of Neil Armstrong, portrayed by Ryan Gosling in the movie First Man. There are shots from inside the lunar module, mission control, and the surface of the moon. The short also uses Ryan Gosling’s voice from the movie, uttering Armstrong’s famous “one small step” line.

Voice is one element typically included in states’ views of the right of publicity, and without consent, the use of it is prohibited. However, this instance was fine, Perry said, because of an agreement between Universal, which produced the film and partnered with creative studios CreateVR, and RYOT to produce the VR short. In the agreement, Gosling’s likeness can be used in extended projects as long as it works as a promotional product alongside the movie.

But what if there is no consent at all? Innis looked at two cases in which football players filed suit against Electronic Arts for using their likeness in the Madden NFLand NCAA Football video game series.

In Davis v. Electronic Arts,former NFL players Michael E. Davis, Billy Joe Dupree, Vince Ferragamo, and others alleged that EA used their likenesses without authorization in several of the Madden games. EA does pay annual licensing fees to the NFL to use current players’ likenesses. But in the early 2000s, former players appeared in games without licensing to allow it. In that time period, EA featured historic football teams whose rosters were not identified by name or even photograph—instead they were described by physical characteristics culled from teams’ media guides.

The players asserted claims for right of publicity in California and a district court denied EA’s petition for a summary motion to dismiss. The case then went to the 9th Circuit, which ruled that EA’s use of the former players’ likeness was not incidental. But when Davis v. Electronic Arts reached the U.S. District Court for the Northern District of California, the court would not certify a class action since the inquiry is specific to each former player (the plaintiffs also were acting on behalf of about 6,000 others).

Keller v. Electronic Artssimilarly involved football players filing suit against EA for use of their image in its games. Former Arizona State and University of Nebraska quarterback Sam Keller claimed use of his image, stats, and jersey number violated his right of publicity. As in Davis, the 9th Circuit did not buy EA’s incidental likeness argument. Also like in Davis, Keller reached the Northern District of California. But this time it settled, with the NCAA awarding $20 million to certain Division I men’s basketball and Division I Bowl Subdivision football athletes who attended certain institutions during the years the game were sold, according to a press release by the NCAA.

“Courts are looking into this and it’s no longer going to be acceptable to say this use is just incidental—it is an evolving issue in the law,” Ellis said. “Most attorneys now are saying that defense is not going to hold in water.”

With all the questions posed, “Virtually Legal: Insights on AR, VR, and the Law” alerted attorneys into emerging legal concerns in AR and VR.





Come cheer on the Rangers (or the Astros) at Law Night on April 20

Mon, 03/25/2019 - 14:33

Join us for Law Night as the Texas Rangers take on the Houston Astros at 7:05 p.m. on Saturday, April 20 at Globe Life Park in Arlington.

Buy your tickets now. The first 15,000 fans to arrive at the ballpark will receive a Michael Young “Batting Champ” Bobblehead!

A networking happy hour will be held from 5:30 to 7 p.m. in the Rebecca Creek Saloon located in left field. Also, for every advanced ticket purchased through the Law Night promotion, a $5 donation will be made to the Texas Access to Justice Foundation’s Joe Jamail Endowment for Veteran Legal Services.

Law Night at Globe Life Park is brought to you by the State Bar of Texas and Dallas Bar Association, in partnership with the Texas Rangers.

SXSW: The MMA Passed: Now What? Navigating the New Licensing Landscape

Mon, 03/25/2019 - 11:57

The Music Modernization Act, signed into law on October 11, 2018, was designed to update U.S. copyright law to make sure artists and publishers were getting proper credit for their music running on streaming services. Publishing experts during the SXSW panel “The MMA Passed: Now What? Navigating the New Licensing Landscape” said the law comes at a time when databases of songwriters and publishers are not up to date, leaving the creators without credit and without pay owed to them. The law, they said, is the first step in solving that by streamlining licensing for digital music services.

“Notices of intent to license used to be sent to publishers in the thousands but jumped to the millions as steaming grew,” said panelist Danielle Aguirre, executive vice president and general counsel to the National Music Publishers’ Association. “As publishers and writers received more and more NOIs, we realized there was a problem and we needed to find a way to license properly and make sure publishers and songwriters are paid.”

The MMA is designed to streamline how licenses are processed, panelist Charmaine Smith said. By 2021, the U.S. Copyright Office will determine a singular mechanical licensing collective, or MLC, of publishers and songwriters who will come up with an updated database of those to whom royalties are owed. Copyright royalty judges will determine reasonable rates and terms, based on the music marketplace, for licensing music.

The MLC’s database creates a blanket licensing system for digital music providers to refer to. Whereas today an NOI is sent to an artist or publisher on a song-by-song basis, the music landscape as reshaped by the MMA creates this system through which streaming services can send a singular notice for the artist’s music—an NOI to obtain a compulsory license (not requiring permission from a copyright holder) will still be acceptable for non-digital uses. That difference is a welcome change, panelists said.

“If you put music on a service without sending an NOI to the right publisher, you run the risk of copyright infringement,” said Smith, who is a shareholder in Greenberg Traurig’s Atlanta office, where she focuses her practice on licensing for music, videos, and other entertainment related content.

Bob Bruderman, executive vice president of global digital partnerships at Kobalt Music, said part of the issue that made the MMA necessary was a standard practice of record labels pre-streaming services. In those days, he said, it was common to license music frequently after a piece of music was already used—voluntary licenses and other mechanisms gave “speed and arc of capabilities.”

“We were concerned with the speed of being able to license,” Bruderman said. “There was a cloud over the industry over liability. We didn’t want to see a handful of companies running the industry for a few years.”

The Copyright Office currently is seeking public comment on who should make up the MLC. Its requirements for the collective include: collective must be a nonprofit, not be owned by another entity, have substantial support from the music market, and meet tech requirements like administration of licensing under Section 115 (i.e. matching ownership, matching royalties, and figuring how to distribute royalties, including “unmatched” royalties, which involves payment for songs that do not have copyright holder information).

Additionally, the register of copyrights will designate a digital licensee coordinator to represent digital music services in administrating licenses and in determining an administrative assessment fee paid by providers for the reasonable costs of establishing and operating the MLC.



Free veterans legal clinic in Katy

Fri, 03/22/2019 - 17:02

The free clinic, which takes place December 8 at the Katy VA Outpatient Clinic, will offer veterans, or spouses of deceased veterans, one-on-one advice and counsel from volunteer attorneys in areas of law including family law, wills and probate, consumer law, and real estate and tax law, as well as disability and veterans benefits.

Veterans who qualify for legal aid and are in need of legal representation may be assigned a pro bono attorney from the Houston Volunteer Lawyers.

The event will take place from 9 a.m. to noon at the clinic, located  at 750 Westgreen Blvd., 2nd Fl., Katy 77450. No appointment is necessary.
The clinic is a service of the Katy Bar Association, the Austin County Bar Association, and the Houston Bar Foundation’s Veterans Legal Initiative.

For more information on the clinic and other veterans services, call the Veterans Legal Initiative at (713) 759-1133 or go to hba.org.

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans webpage at texasbar.com/veterans.

Stories of Recovery: “The Courage and the Comfort” to keep going and sober

Fri, 03/22/2019 - 08:00

Editor’s note: TLAP offers confidential assistance for lawyers, law students, and judges with substance abuse or mental health issues. Call TLAP at 1-800-343-8527 (TLAP) or find more information at tlaphelps.org.

On the good days, I just felt like I was going to throw up at the courthouse. On the bad days, I would excuse myself from the prosecutor’s room, go to the private bathroom stall next to the jury room and kneel on the cold floor in my skirt suit to vomit the hangover out. I would return with a cup of the bailiff’s coffee in a Styrofoam cup to try to mask the odor and have an excuse for my periodic absence. I white-knuckled it for eight hours until I got in my car and headed home to start drinking all over again. I thought the alcohol was a present that I gave myself, a much-needed vacation, overdue self-care, some quality me-time from the 200-deep trial docket, the tense moments as a single mom to a toddler and the excruciating nights and weekends when said toddler was at my ex-husband’s house. Happy hour me deserved the wine-soaked respite from the stress. Next morning me was in for it though, as was any sad fool who had to face angry, hungover me at court.

Addiction starts slowly and with a smile before it turns on you. In college, I thought I just liked to party as much as the next guy. But considering my friend group during that time, it turns out the “next guy” got kicked out of school for his second controlled substance offense, or was forced to go to rehab by his parents, or dropped out to go sell pot full time. In law school, I somehow managed to handily compare myself to others around me and conclude that my drinking was normal. Then came the world of real world criminal lawyering with its gallows humor and swagger; where victory is wrested from the jaws of defeat in tall trial tales that are told over drinks and laughter.

I never wanted to stop drinking when the happy hour ended, when the party was over, when all of the other wedding guests left. I tried to minimize the impact of my drinking to myself and others and took measures to hide how much I drank from those around me. I was miserable and angry all the time. I didn’t want to stop drinking because it was the only coping mechanism with which I was acquainted. I was in denial about how severely I was affected by depression which had plagued me on and off throughout my adult life, but had become severe and dangerous around the time my daughter was born. I could have tried therapy in earnest instead of just remaining guarded on the rare occasions I saw a counselor. I could have tried talking to people about my pain, but was afraid to show any weakness—and that’s what I believed being honest about emotions was—even to friends. Instead, I doubled-down on my drinking and its accompanying swaggering facade.

By the time I realized I had a problem, I couldn’t find a way out of the hole I’d dug for myself. Drinking had started out as my daily mental vacation, my medicine, and solace. Before I knew it I couldn’t stop. At night, before falling asleep while the room spun around my wine-soaked head, I’d started praying to whatever god was listening to help me stop drinking. I’d wake up in the morning and start fantasizing about getting off work to drink again. This cycle continued for almost a solid year until my prayers were answered.

When the cops pulled up to my totaled car, I knew I’d be arrested, publicly shamed, and lose my career. The only word that can describe how I felt when I realized all of that is “relief.” It was finally over. I’d been praying for help to stop drinking and the answer to that prayer came in the form of a wrecked Hyundai and handcuffs. God is funny like that.

Upon learning of my arrest, an old drinking buddy of mine from law school who had a decade sober contacted me and asked if I wanted some help. I was finally ready to be humble and honest and accept help. He put me in touch with the Texas Lawyers’ Assistance Program, or TLAP, and I learned about the Lawyers Concerned For Lawyers, or LCL, meetings. I was accustomed to being extremely guarded around lawyers and was afraid to show myself, my “weakness” to folks who I could run into at the courthouse. What I found at those meetings was a gift like no other. I found other lawyers who bravely showed me how to be vulnerable by sharing their own experiences and by showing their emotions, even their sadness and fear. I learned from the people in those rooms how to live honestly and freely. I can now wake up in the morning without shame or hangovers. I can be present with my daughter and kind to my coworkers and enjoy living in the moment instead of waiting for a chance to erase the day away with alcohol. The lawyers who are part of TLAP and LCL have given me the courage and the comfort to that have kept me going and kept me sober one day at a time.

State Bar of Texas seeks to educate the public about improper solicitation by an attorney

Fri, 03/22/2019 - 07:36

The State Bar of Texas seeks to remind the public that in many cases it is a crime in Texas for a lawyer or someone representing a lawyer to contact a person for purposes of legal representation if the person has not first requested the call or personal visit.

The contact is not illegal if the attorney is not seeking payment or has a preexisting professional-client or family relationship with the person being contacted.

If you witness something you believe to be improper solicitation, or barratry, please get the name and phone number of the person making contact and report it to your local law enforcement authority or to the State Bar of Texas Chief Disciplinary Counsel’s Office toll-free at 866-224-5999.

Please view and share this video public service announcement about barratry at texasbar.com/barratrypsa.

SXSW: Privacy by Design and by Directive

Thu, 03/21/2019 - 16:13

The SXSW workshop Privacy by Design and by Directive tested audience members’ knowledge of the California Consumer Privacy Act, or CCPA, and the General Data Protection Regulation, or GDPR. Both measures are designed to protect people’s personal data that is collected by businesses.

The panel aimed to show attendees how, as business owners, they can build required safeguards for the personal information they process, including IP addresses and device IDs.   

“You want people to have consent (with how personal data is used) but it shouldn’t be assumed,” panelist Shoshana Rosenberg said. “The user shouldn’t have to do anything extra to ensure they’re protected.”

The panelists included Rosenberg, a privacy officer focused on privacy law and assistant general counsel to WSP Global; Jessica Katz, Whole Foods’ data security and privacy counsel; and Lexi Fearon, a data project manager for mobile ad platform startup Kargo.

Data privacy, the panelists said, must:

  • be user-centric;
  • be proactive, anticipating privacy issues before any code for a website or app is written;
  • be the default setting—a user shouldn’t have to take actions to secure their privacy;
  • be embedded into the design of the website or app as a core function and not as an add-on;
  • offer end-to-end lifecycle protection; and
  • have standards that are visible, transparent, open, documented, and independently verifiable.

The CCPA is intended to give California residents the right to know what personal information is being collected from them and if and how it’s being used. It is also meant to give them the right to opt out of having their information collected or sold. The act has extraterritorial reach, applying to for-profit businesses or organizations that provide goods to or monitor the behavior of people in California.

The GDPR also aims to give individuals control over how their personal data is used. It applies to individuals within the EU and the European Economic Area, which includes the EU plus Iceland, Liechtenstein, and Norway. Under the regulation, data controllers must use collection processes that safeguard personal information by default and make data available publicly only with explicit consent. The GDPR requires businesses to provide individuals the option to opt in (and to opt out), whereas the CCPA doesn’t.

The panelists gave advise on forming consent and opt-in/out policies for businesses: keep language concise and clear; keep the option to exercise user choice down to one click; use common anchoring techniques for including information; and use a visual, clear, and summarized menu of services provided by data collected, as well as opt-out options.

“Transparency,” Rosenberg said. “should be granular so you can understand what (businesses) are doing.”




SXSW: Copyright at the Crossroads: The Present & Prognostications

Wed, 03/20/2019 - 14:00

A recent panel at South by Southwest examined some prominent copyright cases from the last year and delved into the changes in effect and coming into effect from the Music Modernization Act, or MMA.

The panel started with a focus on the 2019 ruling by the U.S. Supreme Court in the 4th Estate Public Benefit Corp. v. Wall-Street.com case.

“The 4th Estate deals with the question of registration versus application and when your copyright is effective,” said Todd Dupler, senior director of advocacy and public policy for Recording Academy.

At dispute in the case were articles that 4th Estate had licensed for use on Wall-Street.com, but the agreement had run out. Wall-Street.com did not remove the articles from the site, and 4th Estate sued for copyright infringement, Dupler said.

“[4th Estate] had filed applications to register these articles as copyrighted works,” Dupler said. “The registration had not been granted yet.”

The Supreme Court ruled unanimously in favor of Wall-Street.com with Justice Ruth Bader Ginsburg writing the opinion.

The Supreme Court “held that on this question of registration versus application, that it’s only effective when the registration is granted,” Dupler said. “You cannot file a claim based on your application.”

The court decision presented a real problem for the U.S. Copyright Office because the office was not processing registrations in a timely manner, Dupler said.

“Decades ago, you needed a few days or weeks to get your registration,” Dupler said. “Now, that backlog is typically six months. If you have an application that requires back and forth with the Copyright Office … that can stretch up to nine months.”

Waiting for nine months can essentially cause the applicant to lose their rights, Tom Matson, counsel to Fox Rothschild said, especially in the digital era when infringement can happen instantly.

“The problem for litigation of copyrights is that you need a registration as a pre-requisite for filing in court and getting injunctive relief,” Matson said. “If you have to wait nine months to bring injunction, which is happening right now, you are losing those rights.”

Dupler said the ruling in 4th Estate quickly drew attention from Congress and the Senate Judiciary Committee. Sens. Thom Tillis, of North Carolina, and Chris Coons, of Delaware, composed a letter to the Copyright Office on March 14, 2019, asking the office about the handling of the registration backlog and to find out what resources the office needed to solve the problem.

The MMA brought many needed changes to update music licensing for the digital era, Dupler said.

“Basically, we had a music licensing system that was built for the eight-track era,” Dupler said. “The last major copyright legislation, the DMCA [Digital Millennium Copyright Act] was passed in 1998, and the Copyright Act of 1996 all passed before we were listening to music on our phones.”

The MMA passed 415 to 0 in the House of Representatives and was co-sponsored by 81 senators. Dupler said the ease in passing the act through Congress was the result of collaboration between record labels, music publishers, songwriter groups, artist groups, performing rights organizations, streaming services, and broadcasters.

A significant change to the MMA deals with the licensing of music for streaming services and the filing of notices of intent, or NOIs, Dupler said.

“If you were streaming and you needed a license to clear millions of tracks, you were bulk noticing the Copyright Office with millions of NOIs for songs that you wanted to use,” Dupler said.

The MMA changed that and streamlined the process for acquiring song licenses while also creating an agency to manage those licenses, collect the royalties from the licenses, and distribute royalties—the Mechanical Licensing Collective, or MLC.

“If you are a streaming service, you can have a blanket license to get all the music that you want to play, all the mechanical licenses for songs,” Dupler said.

In December 2018, the Copyright Office noticed the creation of the MLC and laid out the statutory requirements for the agency, Dupler said. In July 2019, the Copyright Office will decide on who comprises the MLC, and in January 2021, the MLC will start as the new licensing system, Dupler said.

Another component of the law was changes to how rates are set for performance rights through the American Society of Composes, Authors, and Publishers, or ASCAP, and Broadcast Music, Inc., or BMI. The rates are currently regulated by the Department of Justice under anti-trust consent decrees, Dupler said.

The two changes allowed judges to admit more evidence when setting rates under consent decrees and established a “wheel of judges” to set the rates for ASCAP and BMI, so that one judge does not have all the power, Dupler said.

Another aspect of the MMA was closing the “pre-1972 loophole,” Dupler said.

“Sound recordings were not added to federal copyright until 1971, effective in February 1972,” Dupler said. “That means if you recorded something after February ’72 you’re covered by the copyright law. If you recorded it before February ’72 you were covered by state law.”

Dupler said an attorney for an internet-based radio station looked at this loophole and decided the streaming service didn’t have to pay for any songs pre-1972 and it became the business model for companies like SiriusXM, iHeart Radio, and Pandora.

With the closing of the loophole, “federal law says that all of these pre-’72 recordings fall under the public domain in 2067,” Dupler said. “But as a compromise, as part of the MMA, some of these older songs, typically from the ’20s and ’30s will fall into the public domain section faster.”

The panel also addressed music created by artificial intelligence, or AI, and to whom the copyright of such works belonged, or if those works infringed on another’s copyright.

“When you’re putting copyright works into a machine to help it learn and that machine generates output, is that an infringement?” said Katie Baron, of Alter, Kendrick & Baron.

Matson said there is no copyright for machine-created works and that songs created by computers could pose legal problems.

“Obviously the computer is learning and actually using the pre-existing works to create a new work,” Matson said. “That creates a clear issue of whether that’s infringement.”

However, the creators of the AI may argue that the music is not being used as a work but rather as data for the computer, Baron said.

SXSW: The hidden hurdles and legal loopholes of making a music documentary

Wed, 03/20/2019 - 09:00

Attorney Michelle Skinner and producer Chris Lopez speak at SXSW.

For filmmakers and creatives living in the Live Music Capital of the World, it may seem attractive to make a documentary about a band or a singer amid the music struggle. But experts on a recent South by Southwest panel warned that while music documentaries are surging in popularity and profitability, they are laden with complex legal issues.

One of the first hurdles to address is whether the artist or subject of the film will be involved with it. Chris Lopez, a TV and film producer who recently completed a four-part docu-series about the Wu-Tang Clan set to air later this year on Showtime, told the audience that involving the subject may help you attain music licensing rights, but then you likely won’t be able to tell the story you want to tell.

Lopez added that the legal team, director, and executive producer all need to be working in tandem to make sure the film stays on track or filmmakers will suffer costly delays.

Michelle Skinner, vice president and counsel to Endeavor Content, said one significant hurdle to music documentary filmmaking is a push in the last several years for artists to own and control much more of the licensing rights to their work. That push to empower artists has led to some difficult situations, Skinner said, recalling a deal that fell through after an artist insisted that he or she should own all of the intellectual property rights to the film being made about the artist. After trying to explain that the film is a separate creative art from the artist’s music, Skinner’s team had to walk away from the project, she said.

Faced with audience questions about the extent of fair use or analyzing when you need to seek out music licensing rights, Skinner responded, “I hate to say you need a good lawyer, but you kind of do.”

SXSW: Reaching the Final Frontier: An Exploration of Space Law

Tue, 03/19/2019 - 10:00

A panel of attorneys discussed the ever-evolving galaxy of space law, including disabusing the notion that space law is “unregulated,” during a panel session at South By Southwest.

Franceska Schroeder, a principal in Fish Richardson, provided an overview of the laws governing space and space exploration including the Commercial Space Launch Act, or CSLA; the National and Commercial Space Programs Act, also known as the Land Remote Sensing Policy Act; the Communications Act; and the U.S. Export Control Laws, including International Traffic in Arms Regulations, and Export Administration Regulations.

These laws apply to all space activities in the territory of the U.S., activities of U.S. national outside of the country if the statute explicitly applies outside of the U.S., and activities outside of the country if there are effects in the U.S. and the statute explicitly applies outside the U.S., Schroeder said.

The CSLA requires companies, such as SpaceX and Blue Origin, to acquire a license from the Federal Aviation Administration, or FAA, Office of Commercial Space Transportation in order to perform launch, reentry, and launch site operations inside or outside of the U.S., Schroeder said.

Applications to the FAA are subject to policy, safety, and environmental impact reviews.

“Because of the safety and environmental risks that are associated with launching rockets, the FAA wants to make sure, as they are required by the CSLA, that if something goes wrong, then innocent third parties who are harmed or injured are made whole,” Schroeder said. “And that innocent third party includes the environment.”

The CSLA also requires companies to have an orbital debris mitigation strategy, which is to prevent any damages that may occur from the reentry of objects placed into orbit, as well as minimalizing the amount of debris left in the Earth’s orbit, Schroeder said.

The U.S. government has laid out clear objectives for space law and policy, including: encouraging exploration and use of outer space; promoting safety; protecting U.S. national security; advancing U.S. foreign policy; and addressing obligations of the U.S. under international law.

“U.S. space law is designed to make sure that the international treaty obligations to which the U.S. government has agreed to abide by flows down to the private actors who are U.S. citizens,” Schroeder said. “The requirements to do that occur primarily in three principle treaties: the Outer Space Treaty, the Liability Convention, and the Registration Convention.”

Additionally, licensees must obtain liability insurance or demonstrate financial responsibility to pay the maximum probable loss, or MPL, amount arising from third-party claims, Schroeder said.

“The FAA recognizes there might not be enough insurance capacity in the worldwide marketplace to cover risks of launch operators at any given time,” Schroeder said. “There’s an acknowledgment that there’s a cap on how much the MPL can be.”

The current level of MPL cannot exceed $500 million, plus an additional $100 million for loss or damage of U.S. government property, or the maximum amount of liability insurance available on the world market at a reasonable cost. The U.S. government is responsible for claims in excess of the insurance, subject to congressional appropriations up to approximately $3 billion.

“There has never ever, ever been a claim in excess of insurance,” Schroeder said.

Land Remote Sensing Policy Act
The National Oceanic and Atmospheric Administration, or NOAA, requires licensees to explain what data is being collected from sensors on anything launched into orbit, Schroeder said.

NOAA also wants information about any agreements the licensee might have with a foreign government as far as the information being “sensed” from orbit.

“If the operator of this remote sensing system wants to enter into an agreement with a foreign government or a foreign entity for that sharing of data, the U.S. government wants to approve that,” Schroeder said.

The Communications Act
The Federal Communications Commission, or FCC, licenses the operation of all radio stations.

“A satellite that communicates is considered a radio station in space,” Schroeder said. “In order for satellites to perform the communications functions that they are designed to perform, a license from the Federal Communications Commission is required and that’s because those activities require the use of a very precious commodity known as the radio frequency spectrum and the radio frequency spectrum needs to be monitored in a way that is efficient and doesn’t allow for interference between operators.”

The FCC is not only responsible for coordinating frequency spectrum in the U.S., but is also responsible for providing that data to the International Telecommunication Union.

“The ITU is a specialized organization of the United Nations, but it is not a governing body,” Schroeder said. “It does not decide whether or not to grant licenses. It functions as a focal point for coordination of all telecommunications authorities from around the world.”

U.S. Export Controls
Export controls, regulating the use of U.S. technology and munitions, are governed by International Traffic in Arms Regulations, or ITAR, under the administration of the State Department’s Directorate of Defense Trade Controls, or DDTC, Schroeder said.

“[DDTC’s] job is control items on the United States Munitions List,” Schroeder said. “It’s more than just things we’d think of as munitions … it’s certain satellites, it’s missile technology, it’s nuclear technology.”

The Export Administration Regulations, or EAR, are administered by the Commerce Department’s Bureau of Industry and Security, or BIS, and applies to items on the Commerce Control List, or CCL, Schroeder said.

However, the administration of export controls is evolving. About three or four years ago, the Obama administration, under Defense Secretary Robert Gates, launched a robust export reform initiative that resulted in significant changes to the space industry, Schroeder said.

The ever-changing state of space law
Caryn Schenewerk, of senior director and senior counsel to space flight policy at SpaceX, and Audrey Powers, deputy general counsel to Blue Origin, discussed changes launch companies are working to get enacted through legislative changes and with the agencies regulating space activity.

“[Space law] is not dumb,” Schenewerk said. “It wasn’t dumb when it was written, but it has become overtaken by the technology.”

Powers and Schenewerk described having to go to the FAA with proposals for autonomous naval vessels that would serve as landing platforms for reusable rockets. This was not something the FAA was entirely familiar with before the meeting, Powers said.

Blue Origin operates a private engine-testing site in western Texas, but it is still subject to government oversight and regulations, Powers said.

“[It’s the] FAA’s responsibility to govern the safety of people on the ground who are not involved in the launch activities,” Powers said. “We have contractors. We have customers who are engaged in our engine testing activities.”

Schenewerk said laws regarding space launches have always been developed with the key principle of public safety. The laws that were in place created the framework for a safe space industry, Powers said.

“We need to reform the laws that have been in place for decades in this industry,” Powers said. “We need overhaul them. The FAA is in an exercise right now of rewriting all of their launch engagement licensing regulations.”

How do I get into space law?
Powers and Schenewerk provided some background on how to get into space law and what areas to focus on.

Schenewerk said an attorney wishing to get into space law should immediately focus on export control and government contracts.

“In addition to export control and government contracts that dominate our lives, you really need to just be a good, generalist lawyer,” Powers said. “You need to understand contracts and property. You need to know how to negotiate. You need to know how to be a business partner to your client.”

New from the ABA TechShow Start-Up Alley  

Mon, 03/18/2019 - 16:32

On the flight from Austin, I’m already running into techie-peeps all around. LawPay is a major sponsor this year and two out of the ten are on the flight. Happened to look across the shuttle aisle from airport parking lot to catch one of these folks sporting his very cool LawPay vest. And it’s game on. I’m sitting with another vendor to my left and across the aisle a solo who escaped from big law and legal tech wonk, both going to their first American Bar Association TechShow. Oh, how their world is about to change.

Change is the one thing that comes at these events. We’re currently experiencing (or being bombarded with) more options for law practice management, e-discovery, client communication, document management, automation, artificial intelligence, and general legal tech that is morphing these categories in new and different ways, adding not just layers of tech on top of each other, but crossing into the functionality of other systems, in an effort to gain market share.

In the case of the ABA TechShow, change comes in the form of tracks and topics. Many of the traditional speaker-guard is back, as well as many new lawyer presenters, including as many vendor presenters that can get in and an infusion of law school types as TechShow goes younger and law schools increasingly add practice management technology to their curriculums in some way. This is highlighted by the addition of a technology component to the definition of competence in certain states’ rules, following the ABA’s telegraph back in 2012. See ABA Model Rules of Professional Conduct, Comment 8 to Model Rule 1.1. There are now 36 states that have added some form of this technology language to their definition of competence, including Texas as of February 26, 2019. For a full list of the states having implemented this, see Robert Ambrogi’s ongoing tally found at https://www.lawsitesblog.com/tech-competence.

This sea of change has also taken the form of many new startups, a number of which pitched in the Start-Up Alley competition leading off the TechShow on Wednesday, February 27, which was hosted by Ambrogi and sponsored by Clio. Among these are several that have looked to integrate with practice management systems, further adding to the change and morphing of system on system to make law practice more automated, seamless, and hopefully more efficient. This is an example of how convergence and integration have continued to ramp up efforts to make legal practice more profitable at a time when there is even further disruption in the legal space.

Among the companies pitching are Your Firm App, a company started by small-firm family law attorney Chris Smith in Oklahoma, that offers personalized apps for law firms and app-based portals for client communication and other functionality. While this app didn’t win the Start-Up Alley competition (as winner was chosen by voting of the audience in attendance), it is now offering a ton of functionality including its client facing solution. These include features such as mobile messaging, mobile bill pay (with integration with LawPay, Clio, and PracticePanther), calendaring, document sharing, and also document signing.

While many of the practice management systems have apps, this system appears to have a deeper functionality and promise for the attorney-client experience.

In addition, automation (perhaps more aptly more automatic document assembly) seems to be one of the hot topics (following AI, much of which is building on the automation trend that has been coming for several years now; See If This Then That, Zapier, and others).

HelpSelf Legal (now called Documate) claims to automate document production, turning forms into ready-fileable documents, in the areas of family violence, debt collection, clear marijuana convictions (it’s listed), guardianship, and child support, with the addition of the ability to have “Instant Client-Facing Apps, and publish intake interviews that populate necessary documents. It also touts the ability to provide flat fee document services on your site,” and thus further promotes both this automation trend along with increased secure client communication. During the Startup-Alley pitch, the emphasis was on the ability to help attorneys service those who may be the victims of family violence and are not only the least able to defend themselves but also the least able to afford legal representation. According to the founder, their product was able to help attorneys file over 2,000 more applications in California legal aid environment than prior year.

OurChildInfo.com, originally created by another family law attorney, is a startup that claims to be unique (non-deletable messaging and tracking system for parents of children). The big current players in this market are OurFamilyWizard.com, which provides an app for both parents and functionality for attorneys to view/download records, etc., and AppClose. OurChildInfo claims uniqueness as they only charge one parent ($7.50/mo.) and the other parent is free, though AppClose offers a “freemium” model and makes money via portion of payments received from one payer to another along the lines of “fintech”-type startups PayPal, Venmo, and others. They claim further uniqueness in that a parent can’t delete, back date or alter data and can print out a log file with date and time stamped log file.

Chicago-based War Room, another interestingly named startup, has been around since 2012 and claims to be unique in that it is the first web-based deposition review software. While many have used the tested apps for iPad—TrialPad, TranscriptPad and DocReviewPad (*iPad users only), this web-based depo review may appeal to some and I’d be interested to see if people, especially those collaborating on depo review will latch onto this technology. It does boast similar technology to add tags (i.e. issue codes) to depositions then produce reports that would show where in multiple depositions a particular fact was shown to be true.


Start-Up Alley Pitch Results:

The Biggest vote getters—

DocStyle was an excellent surprise, boasting the ability to take a PDF and convert to Word using an algorithm 6 years in development to maintain (recreate) the formatting of the original document and make it editable. This product was launched February 27 here at this pitch contest and follows another offering of a metadata removal product that competes with others but seems very user friendly. It allows for single or batch metadata removal and also has an Outlook plugin that will automatically strip the metadata and convert it to PDF for sending. It is somewhat customizable in that it has an ignore button but that button can also be turned off by administrators to prevent the human factor from creeping in.

The Winner:

The pitch garnering the most number of votes was JurisByte, another attorney startup, based on the premise of clients-demanding-text communication with attorneys. This product, definitely in its infancy, boasts the ability to create secure text messages using existing mobile devices, and protecting the telephone numbers of attorneys (and ostensibly clients). It will also create a daily mail report showing all texts so that these communications can be stored in client file/folder for documentation purposes. They have no integrations but claim to have these coming. I know of one other product (zipwhip) that is sold as business text messaging for clients and has the ability to use landlines and also has many and multiple integrations such as Clio, Salesforce, Zoho, and others via Zapier. When asked about comparison and other functionality as compared to some of the practice management apps integrating with app solutions, they were definitely thinking of those integrations. The unique feature here seems to be the ability for an attorney to use existing cell phones to text messages with clients, then get a report to then be able to bill for those communications. As always, look for many changes and additions with this and all other solutions every six months. The more things change, the more they…well change. It’s a brave new world out here.


Mark I. Ungeris a family lawyer, mediator, and consultant in San Antonio, primarily focused on family law. He is the founding member of the Unger Law Firm and is highly involved in the integration of technology and the law. Find him on Twitter @miunger or online at www.unger-law.com.



Early registration for the Texas Minority Attorney Program ends soon

Mon, 03/18/2019 - 11:10

Early registration ends March 22 for the 17th Annual Texas Minority Attorney Program.

TMAP 2019 will be held April 5 at South Texas College of Law Houston, 1303 San Jacinto St. Attendees will earn six hours of CLE credit. Topics include technology trends, business development for solos and small firms, immigration law, family law, and more.

Learn more about the program here and register here.

SXSW: Uncovering music licensing tips and tricks

Mon, 03/18/2019 - 11:00

Myth No. 1 of music licensing: Just because you are not making money on a project, does not mean you can use music for free.

Austin lawyer Amy E. Mitchell, of Amy E. Mitchell PLLC, and Roanna Gillespie, a music supervisor at WOW Sounds, educated the South By Southwest audience during a panel titled “Music Licensing Tips and Tricks for Film/TV.”

While Mitchell laid out the basic legal framework for music licensing, much of the discussion was a cautionary tale as they debunked several licensing myths and outlined hurdles to using music in TV or film projects.

Mitchell and Gillespie described a tedious process that combines hard-nosed music research and lawyering. For example, songwriters and producers hold rights to lyrics and song composition that are separate from the rights held by an artist who recorded or performed a song. As a result, licensing rights may be shared by several people and they may be sold or change hands many times.

Once you know for certain all the people who need to grant you licensing approval to use a song in a project, it’s then when you can send quote letters requesting how much they may demand in exchange for using the piece, Mitchell told attendees.

Mitchell reminded the audience that you can’t force someone to grant you license to use certain music. Rights holders do not have to respond to your quote request or give a reason for denial. As a result, projects on a budget may want to consider hiring a band to create and/or perform songs, but it’s always best to have a lawyer involved to shepherd those contracts and the licensing of any cover songs.

Takeaways: Do your research, know your budget, and hire a lawyer.

Volunteers needed to judge preliminary rounds of National Trial Competition

Mon, 03/18/2019 - 10:42

The Texas Young Lawyers Association and the American College of Trial Lawyers are seeking volunteers to judge the preliminary rounds of the National Trial Competition.

The top 30 law school teams from across the country will compete in the mock trial competition in San Antonio on March 28 and 29. Judges are needed for the preliminary rounds of the competition at the Bexar County Courthouse, 100 Dolorosa, San Antonio, TX 78205.

The schedule is as follows:

  • Round 1:  8:15 a.m. to noon on March 28
  • Round 2:  1:15 p.m. to 5 p.m. on March 28
  • Round 3:  8:15 a.m. to noon on March 29

All necessary materials will be provided to the volunteer judges. Additionally, each attorney can receive up to 4 hours of CLE self-study credit for participating.

If you are interested in judging, please signup online here or send an email to tylantcjudge@gmail.com.

SXSW: AI-powered media manipulation and its consequences

Fri, 03/15/2019 - 15:05

Researchers and legal scholars at a SXSW panel warned that machine-learning technologies are exploding the scope of media manipulation, prompting society wide concerns.

Experts on a panel titled “AI-Powered Media Manipulation and its Consequences” highlighted various manipulation techniques powered by artificial intelligence, such as “Deepfake,” a term used for a technique that synthesizes images of humans. The technique can be used to create images of someone doing something they didn’t actually do or to generate photo representations of people who don’t exist. The implication of such manipulation depends on how it is used.

Deepfake technology has been used to deceive audiences and alter perceptions. It has been used in politics to mimic and mock world leaders and to create pornography, for example showing a particular actor or actress engaged in a sex act that didn’t happen.

Jessica Fjeld, an instructor at Harvard Law School’s Cyberlaw Clinic, warned that today it’s pretty easy to tell when a social media account is not a real person by their likes, friends, relationships, and posts. But the way the technology is advancing, telling the difference between a real person and a fake will quickly become much more difficult, she said. Fjeld explained how users could be tricked into friending a profile that appears to be a past acquaintance only to have that account begin collecting reams of data about you and eventually impersonate.

But the future of AI-powered media manipulation isn’t just mimickry said, Joan Donovan, director of the Technology and Social Change Research Project at Harvard Kennedy’s Shorenstein Center. New technologies are currently working on the notion of a “data void”—examining human behavioral cues to determine when and how best to influence people. She described it similar to the autofill function on most search engines, guessing what you may be looking for, need, or could be convinced that you need.

There are several barriers to stop AI that generates fraudulent or otherwise malicious or unlawful content, the experts explained. Barriers include:

  • anonymity of the creator(s);
  • the sheer volume of content that can be created, posted, reposted, and shared;
  • jurisdiction of the crime should you want to file suit or press charges once you locate the creator;
  • the consequence that filing a lawsuit may call even more attention to the thing you wish to stop; and
  • the First Amendment.

SXSW: Chatbots & AI—business, legal, and ethical concerns

Fri, 03/15/2019 - 14:00

What are the general policies businesses should follow when interacting through virtual assistants and chatbots? A recent panel at South by Southwest in Austin discussed best practices, current laws, and upcoming legislation that will affect how companies do business.

“The law is the tortoise and technology is the hare,” said Hannah Taylor, counsel to Frankfurt Kurnit Klein & Selz.

Proof of that statement can be found in the lack of a federal privacy law in the U.S., and older guidelines from the Federal Trade Commission on what is needed in order for disclosure to be lawful, Said Taylor.

The FTC has stated its position on privacy disclosures online as being “if a platform does not provide an opportunity to make proper disclosures, then it should not be used to disseminate advertisements that require such disclosures.”

Under this policy, the FTC effectively argued in its statement that Twitter should not be used as a platform for advertising due to its character limit, said Taylor.

Platforms have developed their own privacy policies that they expect developers to adhere to, including Facebook, which is under the spotlight in the wake of the Cambridge Analytica controversy.

“You have to align your privacy policy to [Facebook’s] practices,” said Daniel Goldberg, counsel to Frankfurt Kurnit Klein & Selz. “There are prohibitions within their terms and policies, so you can’t go out and use that data if it says otherwise.”

However, Audrey Wu, CEO and co-founder of Convrg, noted that many of these policies are hardly, if ever, enforced by the platforms, and app developers often find ways to circumvent such policies.

Cambridge Analytica provides a textbook example of a developer that did not adhere to Facebook’s policy, which states: “If you’re going to use [Facebook’s] data for purposes, it has to be for very specific scientific research; and it can’t be used for political and other purposes.” Cambridge Anayltica acquired the personal data of 87 million Facebook users through an app called “thisisyourdigitallife.

The Cambridge Analytica/Facebook debacle resulted in greater attention from the Federal Communications Commission and other entities about industry practices, including state legislatures.

California was the first to respond and created new laws to address personal data on the internet, including the Internet of Things Bill (employing reasonable security when customers are using a connected device, such as Alexa or Echo) and the California Consumer Privacy Act.

The California Attorney General’s Office identified six items as privacy principles, and these have been largely adapted in some shape or form by attorneys general in other states, said Goldberg. Those principles are: transparency, choice, reasonable security, limit collection and retention, sensitive data, and reasonable expectations.

Goldberg defined the six terms as:

• Transparency—“Are you transparent about how you’re collecting information, how you’re using information, what the purpose is, and how you’re sharing it?”
• Choice—“Does the user actually have a choice on the type of data you’re collecting from them?”
• Reasonable security—“Are you taking reasonable security measures?”
• Limit collection and retention—You’re “not just collecting data for the purposes of collecting it.”
• Sensitive data—“Limit the amount you collect.”
• Reasonable expectations—“Don’t be creepy. If you’re using the data and people would really not expect you’re using the data on the platform for that reason, and you’re being creepy, you should reevaluate how you’re using that data.”

Every state in the U.S. has laws addressing reasonable security through data breach laws, but these laws don’t necessarily cover the type of data collection being done by companies online, said Goldberg.

“What’s really interesting about Facebook/Cambridge Analytica is that it was not considered an actual data breach under the law … The type of data that was leaked through that, or was used improperly, was not the type of personal data as defined under those applicable statues. That’s changing,” said Goldberg.

Taylor said this was an occasion where “the law is moving quickly enough to address things in real life,” however, the panel agreed the law was possibly moving “too quickly.”

Goldberg pinpointed the California Consumer Privacy Act, which goes into effect in January 2020, as a law that moved too quickly and without proper research.

“There are a lot of issues with that bill,” said Goldberg. “Everyone in the tech industry is trying to scramble to find out how to deal with it.”

The act provides the ability for users to opt-out of collection of their personal data from apps and web sites.

SXSW: When the internet turns violent and abusive

Fri, 03/15/2019 - 10:00

Carrie Goldberg, left, and Mona Sedky discuss combatting internet abuses such as sextortion.

A private attorney, a federal prosecutor, and a legal scholar tackled the challenges of combatting invasive online crimes such as sextortion, doxxing, and cyberstalking during a South by Southwest panel titled “When the Internet Turns Violent and Abusive.”

Mona Sedky, a federal prosecutor with the U.S. Department of Justice’s Computer Crime & Intellectual Property Section, explained that online harassment goes much further than name-calling. She tracks and prosecutes criminals who hack into computers looking for photos or compromising information that they can use to threaten, extort, and otherwise terrorize victims, who are often women. The hackers use that information to coerce other images and even pornography from their victims.

Victims Rights Attorney Carrie Goldberg said clients at her New York-based law firm report extremely invasive attacks that cross every facet of a victim’s life. For example, a harasser in possession of a compromising photo of a victim may repeatedly post it online; email it to the victim’s parents, friends, pastor, school, or employer; and even impersonate the victim posting personal information on rape fantasy websites asking men to appear at the victim’s home to carry out the rape.

Being a victim of this type of abuse changes how everyone around the victim sees him or her and not a single aspect of the victim’s life goes untouched, Goldberg said. These victims often “erase themselves,” she said. They disappear from social media, distance themselves from friends, sometimes drop out of school, and even stop going to family functions.

Mary Anne Franks, professor of law at the University of Miami School of Law, said attempts to stop abusive online speech quickly run into First Amendment concerns, but she notes the inability to stop online harassment actually chills the speech of women and minority groups, who are almost exclusively the victims of this type of harassment. If people can’t be safe from extreme and invasive harassment while using social media, they can’t speak, Franks said.

Goldberg expressed frustration that lawyers so far have been unable to hold big tech companies liable for their inability or unwillingness to halt abuse on their platforms. Goldberg said the companies hide behind overly broad court interpretations of the Communications Decency Act of 1996.

Goldberg relayed a story about a client who complained 50 times to a tech company that runs a dating application about harassment from one of its users. He complained 10 times to local police and even got an order of protection against the individual. The tech company responded by saying they did not have the technology to stop someone from using their platform, Goldberg said, adding, “Then they have a dangerous product.”

“No other industry gets a pass like this,” she added.

SXSW: Taming the Orwellian surveillance state

Wed, 03/13/2019 - 15:00

The harvesting of data via artificial intelligence, biometrics technology, and digital data collection is currently outpacing laws regulating its use according to a recent panel at the South by Southwest Conference & Festivals taking place in Austin this week.

Myriad information is created through many means, such as posting to or having profiles on social media platforms, or just by simply using a cellphone. This “digital dandruff” is collected by three main entities: law enforcement, private companies working for law enforcement agencies, and private companies hoping to sell user data, said Barry Friedman, a professor and director of the New York University School of Law Policing Project.

Friedman said the government’s collection of data needs to be kept in control through regulations. However, “we have failed to regulate surveillance in any meaningful way whatsoever and time is running out,” Friedman said.

Tracy Ann Kosa, a privacy researcher at Stanford University and adjunct faculty member at Seattle University, said current regulations on digital data gathering have all been reactive rather than proactive. Kosa said regulations should come from engineers and those who work in the field, rather than from the government, which has less understanding of the technology.

Regulations from the government can be overreaching and stifle development of new technology, said Rick Smith, CEO and founder of Axon Enterprise. Smith cited the General Data Protection Regulation, or GDPR, put into effect by the European Union. GDPR has prevented tech companies from gathering useful data to assist in the development and improvement of new technology, said Smith. Regulations have been added, such as each site warning about the collection of cookies when options on most browsers to deny access to cookies already exists.

Smith said law enforcement and others must be active in cyberspace to battle against hacking and the theft of personal information. Public safety should be the primary concern, with attention paid to how private companies are using citizens’ data, and greater concern being placed on what the government is doing with digital data, Friedman said. “Facial recognition technology is the biggest threat to our civil liberties that we’ve seen in a long time,” said Friedman.

AI-generated algorithms are already in use, and some, such as a New York Police Department algorithm designed to track and tag people as possible gang members may suffer from a racial bias, according to Kosa, who noted that 99 percent of the people logged into the database were people of color. Even more concerning, said Kosa, is the fact that the public doesn’t know who is listed in the database and apparently there is no way to remove oneself from it.

Congress has done little to nothing to address these problems,

and the lack of laws and regulations from Congress has put courts in a precarious position of having to possibly define the law, said Friedman. He believes safeguards should be in place before matters go to trial.

To remedy these problems, panelists suggested having greater transparency in how and what data is being gathered, and for what purpose; as well as holding governments and companies accountable for the safety and reason for collection of data.

“Ownership of your digital data needs to be yours,” Kosa said, noting many companies and law enforcement agencies have information on file about a person and that person likely has no idea what that information is.

Smith said he’s more concerned with government collection of data rather than private sector collection. “I probably don’t want police to have my personal information and trust them not to use it until they find it necessary. I feel more comfortable with Google than the IRS having my personal information.”

The backlash against Facebook for its harvest and sale of customer data has hurt the tech giant, Smith said. The media’s coverage and unearthing of Facebook’s methods have been what has led to changes in the company’s handling of data. There must be continued work by the media to hold tech companies accountable for the handling of people’s data, Smith said.