Unprecedented

Hello Unprecedented listeners. We’ve been in the process of transitioning this podcast to a new home and a new format. From here on out, you can find future episodes of Unprecedented over on the Legalspeak podcast, hosted by Law.com’s Vanessa Blum and Leigh Jones. Every three or four weeks, I’ll be dropping in with a dispatch from the intersection of technology and the law. Instead of focusing on individual conversations, going forward I'm hoping to go out and get lots of different voices to talk about how the law and the legal profession are grappling with technological change, and bringing listeners along for the ride. For my first episode, we’re getting a crash course in artificial intelligence and the law, featuring conversations with people in different quarters of the legaltech industry I’ve spoken to over the last several months. That episode is live now. You can subscribe at any of the links below, or wherever you listen to podcasts: Apple Podcasts (iOS devices) Google Play (Android devices) Libsyn Thanks for listening and I’ll hope you’ll be tuning in to Legalspeak soon!  

Alexander Urbelis of New York’s Blackstone Law Group describes his unusual career path from getting involved with 2600: The Hacker Quarterly, to becoming a lawyer for the U.S. Army JAG Corps and the CIA, and later joining Big Law. He also discusses the evolution of the Computer Fraud and Abuse Act, the biggest legal challenges facing the internet, how his background has shaped his information security-focused legal practice.

Microsoft is going head-to-head with the Department of Justice at the U.S. Supreme Court later this month over law enforcement access to data stored overseas. In this episode, David Howard, a former federal prosecutor who's now the head of litigation at Microsoft Corp., explains what's at stake in the case and why this issue has become a rallying point for the wider tech industry.

In this special episode of Law.com's Unprecedented podcast, we talk with Aaron Wright, an associate clinical professor at Cardozo Law School in New York City and director of the school's Blockchain Project. Cardozo has been significantly expanding its initiatives with the technology since 2014, helping major blockchain projects like Ethereum and teaching its students how to code smart contracts. Wright talks about his forthcoming book co-authored with Primavera De Filippi of Harvard's Berkman Klein Center, "Blockchain and the Law: The Rule of Code," and what blockchain will mean for the legal profession—beyond the hype.

At ALM's upcoming Legalweek conference, one of the major overarching themes is how artificial intelligence will change the practice of law. In this episode of Law.com's "Unprecedented" podcast, we talk with one of the speakers at the event—Scott Reents, the lead attorney for data analytics and e‑discovery at Cravath, Swaine & Moore—about the challenges and advantages to integrating AI with the legal profession. For more info, check out the show notes on Law.com.

Recent months have seen important legal developments in the open source software world. Large organizations including Facebook, Google and the Linux kernel community have adopted new enforcement policies around copyright licenses. And Facebook saw major blowback over patent rules in its open source license. In this episode of “Unprecedented,” O’Melveny & Myers partner Heather Meeker explains these trends and what they mean for lawyers and coders. She also talks about open source security, and the challenges open source projects face in dealing with sexual harassment amid the #MeToo movement.   Read the full show notes at www.law.com

In the final episode of Unprecedented for 2017, host Ben Hancock talks with Ross Todd, bureau chief of Law.com’s California news site The Recorder, about the big legal battles in tech for the coming year. There’s the looming trial in Waymo v. Uber, litigation over the Tezos initial coin offering, and of course, the big digital privacy cases pending at the U.S. Supreme Court.    Like the podcast? Leave us a review, and check out more coverage of these stories in the show notes at Law.com.

The chair of the Wall Street Blockchain Alliance Legal Working Group helps interpret the debate over how digital tokens fit into a regulatory framework created in a much different era.

This week on Law.com’s Unprecedented podcast we talk with Nathan Wessler, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. Wessler will be arguing against the Department of Justice on Wednesday at the U.S. Supreme Court in Carpenter v. U.S.

This week on Law.com’s Unprecedented podcast we talk with Riana Pfefferkorn, a fellow at the Center for Internet and Society at Stanford Law School focusing on cryptography.

This week on Law.com's Unprecedented podcast we talk to Brynly Llyr, general counsel at Ripple Labs, a blockchain company focused on facilitating cross-border money transfers. Llyr talks about the legal challenges facing cryptocurrencies and the emerging fintech sector, and how the landscape is not as uncharted as it may seem. "Just because you have a new technology doesn't mean that no laws apply to it," she says.

This week on the Law.com Unprecedented podcast, we hear from Gillian Hadfield, a professor at the University of Southern California's Gould School of Law and author of Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy. 

Duration: 00:25:36   This week on Law.com’s Unprecedented podcast, we hear from James Lee, CEO and co-founder of legal AI startup LegalMation. Lee, also a litigator and managing partner at LTL Attorneys in Los Angeles, talks about the potential and limitations of applying artificial intelligence to litigation. And he offers predictions for how being a lawyer will change once tasks like answering a complaint or writing an interrogatory are automated.

Duration: 44:45 For an institution that is supposed to appear at all times above the fray, it can get tricky when members of the judiciary decide to accept a Facebook friend request or even just retweet a news article. A set of federal and state appellate court decisions over the summer offered some guidance on what’s allowable for judges when it comes to social media, but a lot is still murky. This week on Unprecedented, we explore the ethical boundaries for the bench online, as well as what judges are telling lawyers about social media behavior.   “For judges, this area has really just exploded, in part because of the role that politics plays in many states -- 39 states elect their judges in some kind of partisan election,” says guest John Browning, an attorney at Passman Jones in Dallas who has written at length about the issue. Multiple states have dealt with whether judges “liking” a fellow judge’s campaign Facebook site is an impermissible endorsement. Some judges don’t even realize what they’re sharing with the world.  “We have, in some sense, judges with a lack of understanding of how it works.”

Duration: 39:31 When Eric Goldman started practicing law, the Internet was a different place from the one we know today: a world of dial-up bulletin boards and web precursors like “Usenet” and “Gopher.” The legal aspects of cyberspace were murky at best. “I joined the Cooley Godward firm in Palo Alto in 1994 and I told them I wanted to do Internet law,” recalls Goldman, now a professor at the Santa Clara University School of Law and prominent technology law blogger. “And they said, ‘That sounds great. If we have any Internet law stuff, we’ll let you know.” Since then, Goldman has chronicled how the law has coped with the modern Internet, using his academic perch to try and make sense of a chaotic space. In this episode of Unprecedented, Goldman talks about one of the biggest legal flashpoints for Internet companies — Section 230 of the Communications Decency Act — and asks how courts will know when a smiley face emoji really means something more.

Duration: 22:08 The legal profession is hardly immune to the changes being wrought by technology. And Stanford University’s CodeX Center—a partnership between its law school and computer science department—has been a significant contributor to those changes in recent years as an incubator for legal tech startups. Among the companies that have roots at CodeX are Bay Area legal analytics firms Lex Machina and Ravel Law. CodeX also has tried to give lawyers and other industry professionals a glimpse over the horizon with its annual “FutureLaw” conference. If there was an overriding theme at this year’s event on April 6, it was that the current law firm model is unsustainable and isn’t serving the needs of clients or society generally. University of Southern California Law Professor Gillian Hadfield, in a keynote, said that one survey of large company general counsels showed 70 percent would not recommend their primary law firm and that 80 percent are reducing the work they send out.   RELATED ARTICLE: Bigger Data, ‘Tech Terror’ and Diversity Disparities Mark CodeEx’s Fifth FutureLaw   In this podcast, we take you inside the FutureLaw conference to hear from some of the speakers and attendees about how technologies like legal data analytics are evolving, how law firms can make themselves more efficient by embracing them, and what the limitations are. It’s not all doom and gloom. “I don’t think that the law firm or the lawyer will go away, that they will be completely disrupted and there will only be robo-lawyers,” said Roland Vogl, executive director of CodeX. “I think a lot of those technologies that we’re talking about are lawyer-enhancing.”

Duration: 28:36 Attorneys trying to keep up with the legal landscape surrounding transfers of data between the United States and the European Union have had their work cut out for them the last few years. First, the U.S.-EU “Safe Harbor” framework was scrapped by the EU high court. Just as that was being patched up with the “Privacy Shield,” another court action in Ireland has threatened an alternative legal tool permitting transatlantic data flows. Plus, let’s not forget the gorilla in the room — the General Data Protection Regulation (GDPR) — which will overhaul the entire legal framework for data privacy in Europe when it comes into force next year.   Françoise Gilbert. In this episode of Unprecedented, veteran cybersecurity and data privacy attorney Françoise Gilbert of Greenberg Traurig’s Palo Alto office gives us a look ahead at the challenges facing companies and lawyers in this space. She explains why she’s not so worried about the Irish High Court case, predicts that the Privacy Shield will probably hold, while warning that the GDPR could lead to increased enforcement and litigation risk for companies. “I would predict that every country, especially the larger ones that have a larger staff, will have more enforcement actions and be more stringent than they were in the past,” she says. Listen to the full podcast below.

Duration: 22:50 The Internet of Things has a certain allure. You can set your home at just the right temperature, or ask Alexa about the First Amendment. But if there was one takeaway from the Mirai botnet debacle that weaponized over a million internet cameras, it was this: a lot of these devices have serious security flaws. And those flaws, naturally, have opened the door to lawsuits. In this episode of Unprecedented, we talk with two people about where this issue is headed: Wiley Rein partner Megan Brown, who advises companies on cybersecurity litigation and regulatory issues in Washington, and Stanford University assistant computer science professor Keith Winstein, who is participating in the Secure Internet of Things Project. Brown contends that litigation will only hamper efforts to make devices more secure. “You may create a perverse incentive that tells companies don’t talk about their vulnerabilities and don’t share information about this because you’re just going to get sued down the road,” she says. Meanwhile, Winstein explains that the reason so many of these devices are weak in the first place boils down to both how their software is developed and raw dollars-and-cents. “Some of these internet of things devices, they don’t cost $500, they cost more like $5. And so the economic model might not be there for someone to keep preparing fixes for any length of time.”

Duration: 20:01 How far should the arm of the law reach when it comes to data stored overseas? That’s a question that courts continue to struggle with, even after U.S. tech companies scored a landmark win last year in favor of limiting what authorities can obtain when it comes to foreign-stored data. Prosecutors investigating crimes in their jurisdiction demand access to suspects’ emails and other communications no matter where the data is stored. But companies say complying could put them in conflict with the legal privacy frameworks of other countries. Lately, companies like Google Inc. and Yahoo Inc. have been on the losing side of the battle. More Law.com podcasts In this podcast, we talk to Morgan, Lewis & Bockius partner and former Department of Justice criminal attorney Mark Krotoski to understand the controversy around the scope of the 1986 Stored Communications Act. What he sees is a novel, technical issue colliding with an ill-fitting legal framework. “Because of that—and because there’s no established precedent—you’re getting different decisions from different judges,” Krotoski says. Ahead of a U.S. Senate Judiciary Committee hearing on the scope of the law this week, Krotoski says courts are looking to the legislature to help settle the fight—something Google has also called for. “I think most would agree that if Congress weighed in we’d have more clarity as to the limits and guidelines for the collection of data. But until then, we’ve got this old statute that has to be applied in this new, evolving area.”

Duration: 32:18 In this episode of Unprecedented, we talk with Cogan Schneier, a reporter for The National Law Journal who wrote about the groundbreaking privacy and civil rights lawsuit when it was filed last week. “While the lawsuit doesn’t have any smoking gun … if it were to make it past the initial stages and say go into discovery, there would be a lot of interesting information that would likely come out of that,” Schneier says.  We also hear from Andrew Wright, an attorney in the Obama White House who’s now a law professor at Savannah Law School and a contributor to the legal news blog Just Security. Wright puts the case in its historical context — stretching back to the Watergate break-in — and talks about some of the hurdles it will likely face in court. 

Duration: 19:38 Autonomous vehicles have been in the news a lot lately. Tesla Motors was just hit with a class action lawsuit alleging that its autopilot technology puts drivers in danger when engaged. And in March, the California Department of Motor Vehicles released proposed regulations for fully autonomous vehicles—the kind that wouldn’t have a driver at all. It was a move that left a lot of people thinking that the future of transportation is getting here a lot faster than we thought. But with all this advanced technology, is the law ready to deal with who should be held liable when there’s a crash? In this podcast, we hear from insurance litigator Dennis Cusack of Farella Braun + Martel, Ford Motor Co. in-house counsel Emily Frascaroli, and Baker McKenzie’s Lothar Determann, who has written about the “open” driverless car. If there’s one takeaway, it’s that things are about to get complicated for automakers.   “I think the presumption we’re going to have out the outset is that, if there is an accident with a fully autonomous car, the car and the manufacturer, are going to be at fault,” Cusack said.

Duration: 21:16 The lawsuit by Waymo, Google’s autonomous car division, against Silicon Valley rival Uber is not your normal trade secrets case. The litigation has moved at a breakneck clip since being launched at the end of February. Waymo has alleged an elaborate plot by Uber to steal highly valuable technology and cover its tracks. A top engineer at Uber has invoked the Fifth Amendment. And the judge has flagged the case to federal prosecutors for a possible criminal investigation. In this episode of Unprecedented, we talk with veteran federal prosecutor-turned-white collar defense lawyer Jeffrey Bornstein of Rosen Bien Galvan & Grunfeld. Speaking at his San Francisco office, Bornstein gives us a look at how the criminal aspects of this case could play out, and also argues that the judge in the case may be setting a “dangerous precedent” by pressuring the Uber engineer, Anthony Levandowski, to yield his Fifth Amendment rights. We also hear from James Pooley, a lawyer for Orrick, Herrington & Sutcliffe in Palo Alto who has been on the front lines of efforts to strengthen legal protections for trade secrets. He tells us that while Waymo’s lawyers have enjoyed some limited success, they’ll have to jettison at least some of their 121 claimed trade secrets moving forward. “I don’t think there’s any doubt that they’re going to winnow down that list,” he said. “The first rule of something like this is, ‘Listen to the judge,’ and the judge has told them he thinks this is way too broad.”

Duration: 34:11   When Rajesh De was first approached about joining the National Security Agency as its general counsel, advisers warned him he might be the last person standing between a free democracy and an Orwellian surveillance program. The reality wasn't quite so dramatic, says De, who also served in the Obama White House and is now a partner at Mayer Brown. But during his tenure, what was long known as "No Such Agency" was forced to confront just how secret it really needed to be after the leaks by Edward Snowden.   In this episode of Unprecedented, De talks about surveillance reforms post-Snowden, the role of cybersecurity attorneys in an era of state-sponsored hacking, and draws a line between leaks of White House gossip and spilling classified information. "I do think the government has a solemn responsibility not to be overly secretive," he says. 

Duration: 28:49   The litigation finance industry is heating up in the U.S. as new funders enter the market and hire away Big Law attorneys to fill their ranks. Another sign of this trend: Burford Capital, one of the largest litigation funders, recently announced it had poured almost half a billion dollars into litigation finance in just the first half of this year after its game-changing acquisition of Gerchen Keller.   In this episode of Unprecedented, Burford managing director and Gerchen Keller alum Travis Lenkner talks about the effect of all that money pouring into the legal system. "The changes that might be brought on by litigation finance are no different from the changes that clients in complex commercial litigation matters have been pushing now for many years,” he says. Lenkner also talks about why the industry is growing, and what happens when funding becomes commonplace.