Issues in Compliance: GDPR & California Consumer Privacy Act
The European Union’s General Data Protection Regulation has been in effect for nearly a year, and California’s expansive Consumer Privacy Act is set to go into effect in 2020. This panel of regulators, in-house and outside counsel will review enforcement trends that have the greatest impact on online platforms, and actions that platforms have taken to comply and to reduce their risk. The panel will also address the new requirements of the California CPA and the potential impact of the law on advertising supported business models. In addition, this session will discuss the policy implications of new legislation being proposed in Congress to federally regulate digital privacy in the U.S. The panel discussion will include:
• A review of the enforcement actions during the first year of GDPR, and what they reveal about the challenges of obtaining consent under GDPR
• Challenges of responding to Data Subject Access Requests, Correction and Deletion requests and how organizations have responded
• The impact of Brexit on GDPR compliance plans
• The differences and similarities of CCPA and GDPR; and
• Handicapping the (many) pending amendments to the CCPA
Panelists:
Tyler Newby, Partner, Fenwick & West LLP (Moderator)
Emily Jones, Partner, Osborne Clarke LLP
Kandi Parsons, Shareholder, ZwillGen PLLC
Nithan Sannappa, Associate Legal Director, Product, Twitter, Inc.
Protecting Anonymous Online Speech
This session will take an in-depth look at legal strategies for protecting anonymous speech online from the perspective of the platforms that provide the channels of communication, as well as from users seeking to maintain their online anonymity. A panel of expert inside and outside counsel will consider:
• What are the legal standards for maintaining user anonymity when a platform is served with a subpoena – how do they vary from jurisdiction to jurisdiction – and differ depending on the nature of the action (e.g., defamation vs. copyright vs. criminal investigation)? Should the standard be codified?
• How do efforts to identify defendants through indirect means (e.g., by IP address) affect courtroom battles over anonymity?
• What is the duty of platforms to their anonymous users? How should platforms address the issue of user notification when responding to subpoenas, and under what circumstances must (or should) a platform withhold such notice?
• For platforms maintaining a forum for anonymous speech, what are the best policies with respect to data collection and retention of user information, balancing the desire to protect user identity with the need to operate and protect the platform and generate advertising revenues?
• What assurances should (or should not) be made in the platform’s terms of service with respect to protecting anonymity? Do those assurances affect whether a user can remain anonymous?
• What are the practical mechanics of going into court – either on behalf of the platform or on behalf of an anonymous user; and what are the challenges to attaining a court’s acceptance of an attorney’s appearing on behalf of the anonymous user? Can anonymity be maintained even if the subpoenaing party meets its burden to overcome a motion to quash? What are the mechanisms at a court’s disposal to do so?
• Are anonymity rights litigated haphazardly, and is this bad for development of the law? What if the platform does not want to devote the resources to moving to quash in a particular case, or the user does not have the resources to do so? How can anonymous users find competent lawyers to help them?
• How can we ensure anonymity rights are adequately protected when foreign litigants seek to unmask users in American courts via federal ex parte applications for discovery?
Panelists:
Ashley I. Kissinger, Of Counsel, Ballard Spahr LLP (Moderator)
Raymond Oliver Aghaian, Partner, Kilpatrick Townsend & Stockton
Joshua Koltun, Esq.
Tom O’Brien, VP, Deputy General Counsel, Glassdoor, Inc.
EU Updates: Cross-Border Takedown Enforcement & EU Copyright Directive
Practioners from Europe will bring us the latest developments on global takedown cases working their way through the European courts (e.g., CNIL v. Google; Glawischnig v. Facebook); and controversial provisions of the EU Copyright Directive that threaten to impose a so-called “link tax” on platforms that aggregate news content and to require platforms to take affirmative measures to prevent unauthorized posting of copyrighted content.
Presenters:
Bryony Hurst, Partner, Litigation, Bird & Bird LLP
Remy Chavannes, Partner, Brinkhof
In Conversation: A Fourth Amendment for the Digital Age
In its landmark decision in Carpenter v. United States, the Supreme Court held that the Fourth Amendment requires that law enforcement obtain a warrant before gathering historic cell site location data about a suspect from cellular service providers, calling into question the validity of the “third-party doctrine” in the online context. The decision has opened the door to a new way of thinking about constitutional privacy in the digital age, where third-party platforms store some of our most personal data. How will (and how should) courts respond to government requests for IP addresses, search history, emails and the like? And what could Congress do to clarify existing law? A former federal magistrate judge, the Hon. Stephen Wm. Smith, will discuss these issues with noted practitioner, Marc Zwillinger, and together they will provide their analysis of where we’ve been and where we’re going.
Speakers:
Jim Dempsey, Executive Director, Berkeley Center for Law & Technology (Moderator)
Hon. Stephen Wm. Smith, U.S.M.J. (retired), Director of Fourth Amendment & Open Courts, Stanford Center for Internet and Society
Marc Zwillinger, Founder & Managing Member, ZwillGen PLLC
Free Speech for Product Counsel
Many decisions that affect public discourse on online platforms are made before the first user logs on. Speech on the internet is shaped by platforms’ structural choices including: the length of permitted submissions; whether posts are permanent or disappear over time; how the content that users see is selected; the control granted to users over who sees their own posts; mechanisms for the reporting and removal of content considered offensive; and more. These choices can result in rigidly controlled discussions or free-for-all melees, in-depth analysis or the exchange of quick thoughts, and private discussions or public debates. How do concepts of freedom of speech play into these decisions, and how does that affect the advice given by counsel with respect to the development of new products? This session will explore these and other questions, including:
• What does it mean to design a product with values such as freedom of speech, privacy, etc., in mind? How do design choices with respect to privacy affect free speech, and vice versa?
• Which kinds of design choices are likely to chill the exchange of ideas? What forces – internal or external – drive a company to make these choices?
• What are best practices for product counsel attempting to balance a commitment to freedom of speech with other commitments and priorities their companies might have?
• Are legal principles such as the First Amendment irrelevant? To what extent have the judgments embodied in First Amendment doctrine been supplanted by other ethical considerations or the desires of a platform’s particular community?
• To what extent is it possible to build the highly subjective and fact-based standards on which free speech decisions often depend into technological tools such as content filters?
• What, if any, obligation does a tech platform have to consider the use/abuse of their products by government officials, either in terms of public access to government activity or the potential use of those products by the government to suppress citizens’ speech?
Panelists:
Jeff Hermes, Deputy Director, Media Law Resource Center (Moderator)
Ambika K. Doran, Partner, Davis Wright Tremaine LLP
Ben Glatstein, Asst. General Counsel, Microsoft
Alexis Hancock, Staff Technologist, Electronic Frontier Foundation
Jacob Rogers, Senior Legal Counsel, Wikimedia Foundation, Inc.
Inline Linking After Goldman v. Breitbart
Does one infringe a copyright by in-line linking? If so, how much will our internet be shrinking? Just how pervasive are in-line linking, embedding and framing in today’s digital media? A content development and distribution pro first explains the present state before envisioning a hypothetical internet without these tools. Then counsel who won the two leading cases dive deep into the controversy: does copyright law hold embedding a link to be an infringing “display” whether or not the work is hosted on the servers of an independent platform (Goldman v. Breitbart)? Or does infringement depend on actually hosting a copy of the work, rather than pointing a browser to another internet location (Perfect 10 v. Amazon.com)? Would other defenses (like DMCA or implied license) bail out current business models? Has the Supreme Court’s indeterminate Aereo decision now come home to roost? And what is the best advice for an anxious client in the current environment?
Panelists:
Erik Stallman, Assistant Clinical Professor of Law, Berkeley Law (Moderator)
Andrew Bridges, Partner, Fenwick & West LLP
Angela Kim, Audience Development Manager, Verizon Media
Ken Norwick, Partner, Norwick & Schad
Face-Swapping Technology: Dignity, Privacy & the First Amendment
New machine-learning technology is allowing even amateur video editors to conjure videos that convincingly replace people’s faces with those of others – frequently unwitting celebrities – to both creative and destructive ends. This digital face-swapping tech has been used for satirical internet videos and perhaps most famously to recreate a younger Princess Leia in the Star Wars film, Rogue One. In their most provocative form, these so-called “deepfakes” digital AI tools have been used to create X-rated content featuring the faces of popular Hollywood actresses grafted on to porn stars’ bodies. The videos have already engendered a firestorm that has led to bans on even freewheeling platforms like Reddit and Pornhub. This short presentation will explore whether the law can keep up with this controversial form of speech, and whether a balance can be struck to protect the reputational and privacy interests of unwitting subjects while upholding First Amendment principles.
• Do existing laws governing defamation, privacy, right of publicity, copyright, or the intentional infliction of emotional distress, or anti-revenge porn laws, protect the unwitting subjects of “deepfakes” videos?
• How does the legal analysis change when fake videos are passed off as real? When celebrities are involved?
• Will this technology make it harder to verify audiovisual content, and easier to generate fake news?
Presenter:
Jim Rosenfeld, Partner, Davis Wright Tremaine LLP
Kara Swisher in Conversation with Sarah Jeong
Kara Swisher, influential technology journalist and co-founder of Recode, speaks with fellow journalist, Sarah Jeong, on the state of the tech world in a climate where Silicon Valley is facing growing scrutiny from public officials and the public at-large.
Scraping By with the Computer Fraud & Abuse Act
The Computer Fraud & Abuse Act was enacted by Congress in 1986, primarily as a tool to criminally prosecute hackers, in an era before the web and online publishing, when the internet was mostly used by a small universe of academics, government and military staff. Although the CFAA has been updated by Congress several times, its meaning in the modern age of universal internet access and porous digital borders has eluded courts as to what it means to access a computer without authorization. This panel will attempt to make sense of the various, often contradictory, judicial rulings in this area, and debate a better way forward which balances platforms’ private property right to its data with the right of public access to online information. The session will consider:
• Can platforms deny other companies the right to access and process otherwise public information on their sites, and what are the rights of aggregators to gather news and process information by scraping other sites?
• What technical measures, such as password protection, is sufficient to enjoy the protections of the CFAA?
• Reconciling CFAA decisions in Power Ventures & Craigslist v. 3Taps with contradictory rulings in Hi-Q and others.
• Is there a kind of “public forum doctrine” emerging on private social media in light of notions of mandatory access and free speech protections arguably extended to privately-owned social media platforms in other cases.
• What should a modern update or replacement of the CFAA look like?
Panelists:
Brian Willen, Partner, Wilson Sonsini (Moderator)
Jonathan Blavin, Partner, Munger Tolles
Stacey Brandenburg, Partner, ZwillGen
Jamie Williams, Staff Attorney, Electronic Frontier Foundation
Women in Tech: Is Climate Change Coming?
It has been approximately a year since the Uber scandal uncovered a culture of sexual harassment and gender bias in the tech community. Silicon Valley still faces a dearth of female founders and women are still underrepresented at executive levels in tech companies and law firms. But is the outlook showing signs of improvement? What steps are tech companies taking to reduce gender bias and discrimination? How can the legal community contribute to increased diversity? This session will examine the current climate and highlight the strides the tech community is making to improve the future of women in tech.
Panelists:
Regina Thomas, Associate General Counsel, Oath Inc. (Moderator)
Lora Blum, General Counsel, SurveyMonkey
Connie Loizos, Silicon Valley Editor, TechCrunch
Nikki Stitt Sokol, Associate General Counsel – Litigation, Facebook
How Algorithms & Machine Learning Work
This session will begin with a tutorial on how algorithms and machine learning work in order to provide lawyers with a better understanding of how these technologies apply to solving real world problems. For example: how does machine learning help a review site spot fake reviews, a social media platform identify misinformation campaigns, or sites identify a banned user trying to rejoin the site under a new identity? Our tutorial will explore the limits of what algorithms and machine learning can and cannot do. The demonstration will be followed by a broader policy discussion, which will explore some of the practical, legal and ethical challenges of using algorithms:
• Since it’s almost impossible to run a large network with millions of users without algorithms, how do you strike the right balance between machine learning and human moderators for legal compliance and/or takedowns to comply with company policies, e.g., copyright, pornography, hate speech.
• Does more reliance on machines to make decisions create new problems like unfair takedowns and lack of transparency?
• Under what circumstances does legal liability for machine-made decisions attach?
• What happens when a government agency (such as under the new GDPR “right to an explanation”) requires platforms to disclose an explanation of algorithmic decision making and – not only is the algorithm proprietary – but the complexity of machine learning may make it impossible for even the platform to know precisely why a particular choice is made, e.g., why certain content was delivered.
Panelists:
Jim Dempsey, Executive Director, Berkeley Center for Law & Technology
Travis Brooks, Group Product Manager – Data Science and Data Product, Yelp (Tutorial)
Glynna Christian, Partner, Orrick
Cass Matthews, Senior Counsel, Jigsaw
Combatting Internet Disinformation Campaigns
Whether by foreign governments like Russia, or by fraudsters and other individuals wishing to influence opinion and actions on the internet for their own ends, disinformation campaigns have become an acute problem that social media sites are facing calls to address. Beginning with a tech tutorial on how fake news and other misinformation is created and distributed in an artificially viral way and how bots and fake users are employed to manipulate people, this session will cover the roles of platforms in identifying and combatting disinformation campaigns. The discussion will include:
• Virality online can be good or bad, but how do we distinguish between the good and content that malevolently manipulates or undermines democracy?
• How should platforms fight back against disinformation campaigns, including future campaigns to influence our elections.
• As a platform, when do you have a legal obligation to act or to report actors manipulating your site?
• What obstacles – legal, practical, and otherwise – do platforms face in addressing these issues?
• A certain segment of users don’t care that they’re receiving fake news, and won’t necessarily rely on verification tools even if they’re made available. What’s the proper response from platforms to this challenge?
• What is the appropriate role of governments in facing these issues and how can platforms better work with governments on this challenge?
Panelists:
Samir Jain, Partner, Jones Day (Moderator)
Dipayan Ghosh, Fellow, Public Interest Technology, New America
Nicole Wong, Principal, Nwong Strategies
Samuel Woolley, Director of the Digital Intelligence Lab, Institute for the Future
Under Pressure: Hosting and Unhosting Objectionable Content
Increasingly, platforms have been under pressure on a number of fronts to take down, moderate and/or stop hosting objectionable groups and content, such as content originating from white supremacists, alleged sex traffickers, terrorist groups and the like. The pressure is coming from political forces seeking legal reforms, such as the recently passed Section 230 exception for sex trafficking (FOSTA) and EU regulations demanding accelerated removals; as well social and public-relations pressures, e.g., public outrage over Neo-Nazi groups online after the violence in Charlottesville. As a result, platforms are shifting to a more hands-on approach to editorial control, attempting to refine their own values and community standards.
• What role do hosting services like CloudFlare and social media sites and other platforms have in excluding hate groups, and is there a danger in private companies becoming upstream speech intermediaries?
• What are the consequences for platforms of FOSTA’s enactment, and is the rest of Section 230 under increasing threat?
• What are the jurisdictional boundaries of removal orders from foreign countries, and what standards should platforms follow in deciding whether to obey orders from foreign removal orders from foreign countries?
• What pressures are coming from Europe to accelerate the removal of content, and what effect does that have in U.S.?
Panelists:
Ari Holtzblatt, Counsel, WilmerHale (Moderator)
Michael Bloom, Director of Federal Government Affairs, Internet Association
Evan Engstrom, Executive Director, Engine
Jeff Hermes, Deputy Director, Media Law Resource Center
Corynne McSherry, Legal Director, Electronic Frontier Foundation
Cracks in the Safe Harbor: Digital Copyright at Home and Abroad
Copyrights are granted globally and digital content on platforms is distributed globally. Therefore, publishers and digital platforms must consider a global approach to content management and copyright. In the U.S., the notice and takedown provisions of the Digital Millennium Copyright Act give platforms breathing room to avoid liability for the distribution of user generated content – though an array of new case law adds complexity to DMCA safe harbor compliance. See, e.g., BMG v. Cox, Mavrix Photographs, Vimeo, Lenz, & Grooveshark. European copyright law, on the other hand, increasingly appears to protect publishers and other rightsholders from digital platforms, which may be viewed as a threat. Recent CJEU decisions, GS Media v. Sanoma Media and Filmspeler, create uncertainty at the least, and could create, in certain circumstances, copyright liability for mere linking to infringing materials. Similarly, at both the national and EU level, copyright reforms are being
proposed and adopted that create new rights for publishers and burdens for digital platforms.
Panelists:
Benjamin Glatstein, Assistant General Counsel, Microsoft (Moderator)
Caleb Donaldson, Copyright Counsel, Google Inc.
Joseph C. Gratz, Partner, Durie Tangri LLP
Lisa Peets, Partner, Covington & Burling LLP
Europe’s War on U.S. Platforms
Europe’s War on U.S. Platforms
Many government entities in the EU appear to be gunning for U.S.-based digital companies. This is reflected in the new copyright law discussed in the earlier panel, but is also seen in a variety of data protection & privacy regulations: GDPR, Privacy Shield, right to be forgotten (including possibility of requiring global search removals under Google Spain, and expansion of RTBF beyond search engines), and increasing discomfort among U.S. platforms that the EU is seeking to project its law and values on the rest of the world. This panel will attempt to better understand Europe’s way of thinking about these issues and offer strategies for digital companies – not just the big players – but smaller startups that will have to grapple with the unintended consequences of the long arm of European regulations. This session will open with a 20-minute keynote speech from Yale Law School Dean, Robert Post, based on his paper, “The News about Google Spain: Management, Civility,
and The Right to Be Forgotten.”
Panelists:
Jacob P. Goldstein, Associate General Counsel, Dow Jones & Company Inc. (Moderator)
Robert Post, Dean and Sol & Lillian Goldberg Professor of Law, Yale Law School (Keynote)
Jens van den Brink, Attorney at Law/ Partner, Kennedy Van der Laan
Jonathan Kanter, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Daphne Keller, Director of Intermediary Liability, Stanford Center for Internet & Society
Transfer of Title: The Future of Net Neutrality in the Wake of Internet Deregulation
The new FCC Chairman, Ajit Pai, has announced his intention to repeal the FCC’s 2015 Open Internet Order that had brought the internet under Title II common carrier regulation and to reclassify ISPs as Title I information services. There is sure to be a contentious battle over these new rules and a fierce debate about the prospects for net neutrality if broadband is reclassified. Our discussion will try to rise above the rhetoric and provide tech lawyers with practical information on how publishers, platforms and content providers can position themselves and prepare in the wake of this major policy shift.
Panelists:
Tyler G. Newby, Co-Chair, Privacy & Cybersecurity, Partner, Litigation, Fenwick & West, LLP (Moderator)
Evan Engstrom, Executive Director, Engine
Marc Lawrence-Apfelbaum, Former EVP, General Counsel & Secretary, Time Warner Cable
Corynne McSherry, Legal Director, Electronic Frontier Foundation
Tejas N. Narechania, Assistant Professor of Law, University of California, Berkeley, School of Law
Under Fire: The Front Lines of Recent Section 230 Battles
During the past year or so, a number of court decisions have chipped away at the protection of Section 230. Recently, courts have appeared receptive to claims that fall outside the usual ambit of publishing torts, where, e.g., a duty to warn was alleged (Doe v. Internet Brands), or where an online marketplace site takes a share of an unlawful transaction (Airbnb v. San Francisco). California’s Supreme Court will soon consider whether platforms can be forced to remove content based on a third-party default judgment (Hassell v. Bird); in the lower courts, California’s prosecution of Backpage.com executives continues (State v. Ferrer); and another recent trend: social media sites are increasingly seeing suits brought under anti-terrorism statutes by terror victims who claim tech companies are responsible for extremists’ use of platforms. Our expert panel will review the current landscape of Section 230 litigation, and highlight areas of concern for the coming years.
Panelists:
Makesha Patterson, Senior Litigation Counsel, Google Inc. (Moderator)
Patrick J. Carome, Partner, Wilmer Cutler Pickering Hale and Dorr LLP
Ambika Doran, Partner, Davis Wright Tremaine LLP
Aaron Schur, Senior Director of Litigation, Yelp, Inc.
Brian M. Willen, Partner, Wilson Sonsini Goodrich & Rosati, PC
Bridging Divides: Interfacing with Law Enforcement and Intelligence Agencies
This session will bring together government agents and in-house counsel, who often must call upon one another to investigate and stop cyber threats from hackers, terrorist organizations and violent extremist groups. What issues arise when digital companies seek the aid of government in response to hacking and other online threats, including those from state actors like Russia and North Korea? How should platforms respond to government requests for cooperation in stopping terrorists from recruiting and spreading propaganda, while maintaining principles of free speech, transparency, and privacy? Where should digital companies draw the line on permitting intrusive surveillance and data requests? Our panel will explore the state of the relationship between tech and government and attempt to find common ground.
Panelists:
Samir Jain, Former Senior Director for Cybersecurity Policy, National Security Council (Moderator)
Shawn M. Bradstreet, Resident Agent in Charge, U.S. Secret Service
Catherine Crump, Acting Director, Samuelson Law, Technology & Public Policy Clinic, UC Berkeley School of Law
Nicole Jones, Associate General Counsel – Global Law Enforcement and Safety, Google Inc.
M.K. Palmore, Assistant Special Agent-In-Charge, FBI San Francisco – Cyber Branch
Online Community Values: Free Speech and Social Responsibility in Privately Owned Forums
This panel will explore increasingly common (and sometimes controversial) situations where digital companies must balance free speech, liberty, security and other interests of their users (along with the platform’s own right to speak and create an atmosphere that is representative of its corporate values) where the law doesn’t demand a particular action. This session will consider:
• How do we address the issue of filter bubbles and fake news?
• What policies might be adopted by platforms to assure that social media are open to diverse voices, even if they’re not necessarily popular voices or politically correct?
• What is the right way to balance free speech and protections against harassment, cyberbullying and hate speech? What tools have been successful in striking a balance?
Panelists:
Nabiha Syed, Assistant General Counsel, Buzzfeed (Moderator)
Elizabeth Banker, Associate General Counsel – Global Law Enforcement and Safety, Twitter
Monika Bickert, Head of Product Policy and Counter-terrorism, Facebook
Brittan Heller, Director of Technology and Society, Anti-Defamation League, Center for Technology and Society
Live and Everywhere: Digital Video in the Age of Vine, Snapchat & Periscope
Remarkable advances in technology now allow every person with a smartphone, tablet or GoPro the ability to produce and distribute their own video content, immediately and globally. The recording of events from all angles presents challenges to content developers, who struggle to balance perspectives both literally and figuratively. What opportunities does this create for new types of content and distribution? What are the privacy, copyright and other content liability issues surrounding cheap easy access to live video production and distribution? How are entertainment companies and sports leagues dealing with the livecasting of paid events?
Panelists:
Jim Rosenfeld, Partner, Davis Wright Tremaine LLP (Moderator)
Dylan Budd, VP & Associate General Counsel, Ultimate Fighting Championship
Lauren Fisher, Chief Legal Officer, Vox Media, Inc.
Matthew Moore, Assistant General Counsel, BuzzFeed, Inc.
Dennis Wilson, Partner, Kilpatrick Townsend & Stockton LLP
Lightning Round: Roundup of Key Legal Developments
Our lightning round panel will discuss the key takeaways from new developments in topics critical to clients publishing, monetizing, and utilizing digital content, including: (1) the Lanham Act (including commercialization of online content), (2) the Computer Fraud and Abuse Act (including delegation and authorization to access on behalf others), (3) copyrightability (including APIs, and also Batmobiles), and (4) intermediary liability (including Section 230 and related protections).
Panelists:
Timothy Alger, Shareholder, Greenberg Traurig LLP (Moderator)
Jonathan H. Blavin, Partner, Munger Tolles & Olson LLP
Simon Frankel, Partner, Covington & Burling
Roger Myers, Partner, Bryan Cave LLP
Makesha Patterson, Litigation Counsel, Google Inc.
Digital Media Meets Data Nationalism: Global Strategies to Cope
By role-playing a series of take-down and user data request scenarios involving the EU, South America and elsewhere–even the US–a panel of experienced digital media counsel/insiders will provide both legal and practical guidance on facing the crazy quilt of challenges posed by national and cross-national demands and conceptions of privacy, security and free speech. The panel will also consider the pros and cons of a proposed global strategy for improvement.
Panelists:
Jeff Rabkin, Partner, Jones Day (Moderator)
Aaron Altschuler, Counsel, ZwillGen PLLC
Ed Britan, Regulatory Affairs Attorney, Microsoft Corp.
Bertrand De La Chapelle, Co-Founder & Director, Internet & Jurisdiction Project
Shantal Rands Poovala, Sr. Manager Online Legal Operations, Google Inc.
Crypto-Controversy: Beyond the San Bernardino iPhone Dispute
While the legal battle between Apple and the FBI created a firestorm of controversy, this session will aim to take our audience beyond the sensational headlines and political rhetoric, and delve into the technology, legal issues and public policy concerns at stake. The discussion among these distinguished panelists will be geared to educate conference attendees, and the public, on the tension between privacy and law enforcement that has resulted from the advancement of encryption and security technology.
Panelists:
Sarah Jeong, Contributing Editor, Motherboard (Moderator)
Theodore J. Boutrous, Jr., Partner, Gibson Dunn & Crutcher LLP
Hon. Eileen M. Decker, U.S. Attorney for the Central Dist. of California
Jim Dempsey, Executive Director, Berkeley Center for Law & Technology
Daniel Kahn Gillmor, Senior Staff Technologist, ACLU
Hon. Stephen G. Larson, Partner, Larson O’Brien LLP
Copyrights and Wrongs: Reforming Copyright Overreach
Copyright law is increasingly being used – contrary to its intended purpose of incentivizing works of creation by authors and artists — by aggrieved persons wishing to remove negative or embarrassing content about them from the internet. While Section 230 and strong First Amendment protections obviate many avenues available to plaintiffs, copyright law – be it threatened or actual litigation, and/or DMCA takedown notices — is often the strongest weapon in the toolbox for those seeking to block or remove unflattering criticism, political speech, photos, and reviews. This panel will examine the problem of copyright overreach, the limitations of the current laws’ ability to deter inappropriate enforcement of copyright claims, and explore the pros and cons of various proposals to reform the law, such as a federal anti-SLAPP statute applying to copyright cases, s. 512(f) reform and restrictions on the assignment of copyrights.
Panelists:
Joe Petersen, Partner, Kilpatrick Townsend & Stockton LLP (Moderator)
Kelly M. Klaus, Partner, Munger Tolles & Olson LLP
Laura Prather, Partner, Haynes & Boone LLP
John Tehranian, Professor of Law, Southwestern Law School
Brad Young, Asst. General Counsel, TripAdvisor
Preparing for the Next Round in Net Neutrality
This session will begin with a technical tutorial on the architecture of the Internet to provide a solid basis for a discussion about net neutrality — how edge providers send traffic to ISPs, how “peering,” “throttling,” and “fast lanes” work in the real world, and how the Internet can support services such as high-definition video streaming at scale. Our panel will then discuss the FCC’s controversial decision applying common-carrier regulation to the Internet, discuss how digital stakeholders from start-ups to massive infrastructure players will be impacted by the new FCC regulations, analyze the appeals and potential for Congressional action, and explore what’s at stake for all members of the Internet community.
Panelists: Kurt Wimmer, Partner, Covington & Burling (Moderator); Jonathan Mayer, Cybersecurity Fellow, Center for International Security and Cooperation, Stanford University (Tutorial); Evan Engstrom, Policy Director, Engine; Dave Kumar, Partner, Goldberg, Godles, Wiener & Wright LLP; Berin Szoka, President, TechFreedom.
Managing the International Legal Needs of Digital Media
Counsel will discuss their experiences coping with the demands of a cross-border legal environment as a practical matter: evaluating international needs, finding and working with counsel, dealing with foreign governments and crisis management. When do you worry that your company’s activities will trigger international scrutiny or liability? Do you have counsel on call in every country where there might be jurisdiction, or just in some? Which substantive legal issues should concern you the most on an international basis? These are just some of the questions our seasoned panel of attorneys will tackle.
Panelists: Matt Sucherman, VP & Deputy General Counsel, Google, Inc. (Moderator); Ben Allgrove, Partner, Baker & McKenzie LLP (UK); Ben Lee, Legal Counsel, Twitter; Michelle Paulson, Senior Legal Counsel, Wikimedia Foundation; Hilary Ware, VP & Associate General Counsel, Netflix.
The New Networks: Tech Journalists on Content Management in an Over-the-Top World
Content bundles are fraying as one content producer after another announces that it is going “over the top” – streaming content that is accessible online without the need for a traditional cable television subscription. Format distinctions driven by traditional commercial models are breaking down as network shows rub shoulders with feature films, original programming from the likes of Netflix and Amazon, and YouTube videos. Smart TVs offer menus of on-demand services reminiscent of channel listings, while mobile remains an entirely different game.
How will audiences manage this new world of content? Will “new networks” emerge to draw these strands back together, or will viewers need to adapt to an open environment with diverse sources? A panel of tech journalists with an eye on the future will discuss what’s coming next.
Panelists: Ned Desmond, Chief Operating Officer, TechCrunch (Moderator); Michael Gorman, Editor in Chief, Engadget; Bob O’Donnell, Founder and Chief Analyst, TECHnalysis Research; Martin Peers, Senior Editor, the Information
Probing the Outer Limits of Section 230
Some companies are hoping the CDA will protect them even as they engage in activities in the physical world, while at the same time, courts are pushing back in certain areas, even where the claim involves publisher activities. Our expert panel will discuss:
• The real-world impact of Roomates.com‘s “material contribution” standard for participating in the development of the actionable content.
• What makes Doe v. Internet Brands different from prior cases against MySpace and Match.com?
• Can legal duties be distinguished from publication liability?
• Where are the Section 230 boundaries now, and where should they be?
Panelists: Timothy Alger, Partner, Perkins Coie (Moderator); Patrick Carome, Partner, Wilmer Cutler Pickering Hale & Dorr LLP; Kai Falkenberg, Visiting Professor, Benjamin N. Cardozo School of Law; David Gingras, Attorney, Gingras Law Office, PLLC; Eric Goldman, Professor, Santa Clara University School of Law; Liz McDougall, General Counsel, Backpage.com.
What’s Fair is Foul: Has The Transformative Use Doctrine Transformed Copyright Law For Better or Worse?
Fair use and the bounds of the transformational use have been front and center in a range of copyright cases this past year. A panel of experts from all sides of the fair use landscape will discuss fair use as it applies to search, digitization and accessibility. Are mass digitization projects simply mass infringement? Is fair use leaving room for legitimate business models? How much transformation is enough? We’ll address all these questions and more.
Panelists: Dave Green, Assistant General Counsel, Microsoft (Moderator); Dale Cendali, Partner, Kirkland & Ellis; Joseph Gratz, Partner, Durie Tangri; Peter Menell, Professor, UC Berkeley School of Law; Joseph Petersen, Partner, Kilpatrick Townsend
Recent Developments in Digital Privacy & Data Security
As information increasingly moves to the cloud, as systems become ever more interconnected, and as remote access to data becomes the norm, issues concerning digital privacy and data security have come to the fore. The aggregation and sharing of information in digital environments have led to significant innovations and improvements in commerce, services, and other aspects of our lives. Yet reports of cyberattacks, snooping, and misuse of information can seem almost commonplace, and consumers, citizens, and businesses alike have become more concerned and engaged. Our top-flight panel of practitioners will explore an array of timely topics, such as new government regulation in the area of privacy and security; the role of government investigations and enforcement actions and private class action litigation in remedying unlawful conduct; and shaping future behavior, and steps that companies should be taking now to reduce and address potential cybersecurity and liability risks.
Panelists: Matthew D. Brown, Partner, Cooley (Moderator); Blake Lawit, Vice President, Legal, LinkedIn; Nicole Ozer, Tech Policy Director, ACLU of Northern California; Ben Richman, Partner, Edelson P.C.; Rosemarie Ring, Partner, Munger Tolles & Olson
Digital Media Venture Capital 2014
Digital Media Venture Capital 2014
This session will continue our tradition of closing the conference with a discussion among venture capital professionals, who will offer their views and forecasts on what to expect in the digital media landscape in the near term.
Panelists: Stephanie Zeppa, Partner, Sheppard Mullin (Moderator); Stephen Bernardez, Principal, ONSET Ventures; Saad Khan, Partner, CMEA Capital; Ray A. Rothrock, Partner Emeritus, Venrock; Robert Siegel, General Partner, XSeed Capital
Online Advertising Mashup
This session will explore the biggest issues in online advertising today, including:
- Interest-Based Advertising: the latest on Do Not Track, the implications of platform-based opt outs such as Apple’s IDFA and Android’s Advertising ID, and how recent technological changes affect how companies engage users and how publishers monetize advertising inventory.
- Recent changes to the legislative landscape affecting online advertising, including CalOPPA’s Do Not Track Transparency amendment.
- The new COPPA Rule’s impact on online advertising, including interest-based advertising and handling known child users.
- How the EU’s cookie directive and changes to the EU Data Protection Regulation are changing advertising practices domestically and abroad.
- How advancements in technology permit advertisers to reach consumers across devices and to offer meaningful notice and choice in a changing technological landscape.
Panelists:
Meredith Halama, Senior Counsel, Perkins Coie LLP (Moderator); Ken Dreifach, Counsel, ZwillGen, PLLC; Joanne McNabb, Director of Privacy Education and Policy, Office of the California Attorney General; Laura Pirri, Legal Director, Products, Twitter; David Wainberg, Privacy and Policy Counsel, AppNexus
Is Mobile Different?
The evolution of mobile platforms and content: As mobile usage and content explodes, and wireless devices proliferate into every aspect of our lives, how is mobile different from the wired internet? This panel will explore the differing business models and legal issues, including FCC and regulatory, privacy and consumer protection and contracting issues.
Panelists: Daniel Waggoner, Partner, Davis Wright Tremaine LLP (Moderator); Sue Glueck, Academic Relations Director, Microsoft Corp.; Mark Kahn, Associate General Counsel, Evernote; Gerard Waldron, Partner, Covington & Burling LLP
Digital Media in the Age of NSA Surveillance
Digital Media in the Age of NSA Surveillance
This panel will cover the implications of US spying and data-collection on American digital media domestically and around the world, and explore how digital companies should respond in the wake of government demands for user information. Should digital companies be standing up for their users’ privacy and be more transparent about government intrusions – and practically speaking – can they in the current legal environment? Among other things, the panel will be walked through a hypothetical government investigation to underscore the limited options in-house counsel may face in the wake of a national security-based inquiry.
Panelists: Peter Canfield, Partner, Jones Day (Moderator); Stewart A. Baker, Partner, Steptoe & Johnson LLP; Susan Freiwald, Professor of Law, University of San Francisco School of Law; Nate Jones, Attorney, Microsoft Corp.; Marc J. Zwillinger, Foundier, Zwillgen PLLC
Scraping Content: the CFAA, DMCA, and Terms of Use
Scraping Content: the CFAA, DMCA, and Terms of Use
The Computer Fraud and Abuse Act—created in response to fears of cybercriminal attacks—has morphed into a potential tool for policing third-party scraping and access to websites. How and why are content hosting websites, such as LinkedIn, craigslist, and Facebook using the CFAA to police third-party uses of their and their users’ content? What are the risks for entities using third-party sites, such as data scrapers? What are the key issues, limits, and unresolved questions for CFAA enforcement, and how does the CFAA interact with other “access”-based statutes?
Panelists: Benjamin Glatstein, Senior Attorney, Microsoft Corp. (Moderator); Jonathan Blavin, Partner, Munger, Tolles & Olson LLP; Neel Chatterjee, Partner, Orrick, Herrington & Sutcliffe LLP; Hanni Fakhoury, Staff Attorney, Electronic Frontier Foundation; Aaron Schur, Senior Director of Litigation, Yelp Inc.
Digital Video Convergence
With all of the various video distribution platforms now in wide use: Web, iTunes, TiVo, Consoles, Slingbox-type forwarding, over-the-top (Netflix, Amazon, Hulu), Cable, and Broadcast, this panel will address the business environment, business models and legal challenges of putting together video content deals in the digital age. We will invite business development people and/or lawyers from a device maker, an online portal, a subscription service and a traditional media company to discuss the various business models that compete for eyeballs on digital video platforms.
Panelists: Jordan Gimbel, Senior Director, Legal, Yahoo Inc. (Moderator); Brian Andersen, Partner, LUMA Partners (Presentation); Bob Heldt, Director of Engineering, Netflix; Karen M. Kramer, Founder & Managing Attorney, Zing Legal; Tara Maitra, SVP, General Manager, Content & Media Sales, TiVo, Inc.; Shashi Seth, President, Tribune Digital Ventures.
Legal Frontiers in Digital Media Podcast 