Jacqueline Klosek

What to expect from the California Privacy Protection Agency meeting today? Some highlights: Objection to preemptive Federal privacy law: The CPPA will discuss its position on this law, which objects to preemption - this is is also in a letter from Executive Director Soltani and a number of State AGs (https://lnkd.in/erQvhJuX) Discuss California Privacy/AI bills including: (https://lnkd.in/eHRpEzHQ) 🔹 Requiring browsers to honor opt out preference signals (OOPS) (AB 3048) 🔹 Removing the M&A carve out and making data sharing during an asset purchase - a potential sale (AB 1824) 🔹 Adding neural data to the definition of sensitive information (similar to Colorado) (SB 1223). 🔹 Prohibiting a developer from using personal information of an under 16 to train AI without authorization (AB 2877) 🔹 Requiring registration of data digesters (aka "providers" under EU AI Act) and giving AI enforcement authority to the CPPA (AB 3204) 🔹 Imposing requirements re: algorithmic discrimination on developers and deployers (AB 2930) 🔹 Requiring consent for selling or sharing of information of under 18s (AB 1949) [Staff recommended that the agency supports this subject to amendment] (https://lnkd.in/ePDm2uma) 🔹 Data Broker registry regulations (https://lnkd.in/eVqenp-J) (recommend to move to formal rulemaking: https://lnkd.in/eR_hzxJS) 🔹 Amendments to existing regs (https://lnkd.in/ejMng6Jn) #dataprivacy #dataprotection #privacyFOMO #AIFOMO

29

What in the world is this American Privacy Rights Act, and what does it mean for advertising?!? Well, it could mean some significant changes. This Digiday article does a quality job of laying out its shifts for the industry.

3

VT comprehensive privacy bill down for the count? Hear more from Kyle G. Kessler (she/her), Christine Xiao and William Carter #privacylaw

8

Join us as we discuss AI Strategies, Data Privacy and emerging trends in AI implementation

22

When AI is trained with unlicensed copyrighted material, the question of infringement versus fair use remains unresolved. Many copyright holders assert that this use violates their rights, and are litigating to address the issue. In light of this, is it premature to require AI companies to disclose which copyrighted works are used to train their generative AI systems? #ai #trainingdata

2

🎤 The USPTO recently published a request for comment on how AI impacts prior art, obviousness, and patentability. Advancements in AI have the potential to transform the landscape for innovation and present novel challenges and opportunities for IP policy. Comments will help the USPTO decide whether these issues require guidance. Director Todd Hopfinger spoke with Managing IP and noted, "A lot of people are raising concerns about the value of patent portfolios because of AI-generated prior art...This has been a huge disruptor, so clients are grappling with some of these issues. Many clients are interested in doing more prior art searches up front." Read more: https://lnkd.in/eYbi2ZPr #USPTO #ArtificialIntelligence #AI #PatentLaw

3

Good article reviewing how the FTC is using its powers via "unfair or deceptive acts or practices" to increase US Federal data privacy enforcement and oversight, as well as a few measures to take in response. Don't forget, "browsing and location data" are sensitive. Full Stop. #data #dataprivacy #dataprotection #ftc #datagrail #privacy #legal #privacylaw #usaprivacy #usprivacy

2

Maryland recently became the fifth state in 2024—and the 17th U.S. state overall—to pass a comprehensive data privacy law. In this alert, Phil Yannella, Sharon Klein, Timothy Dickens, and Jason Hirsch review the law, explaining the unique provisions that increase operational and legal risk for U.S. businesses and institutions. #dataprivacylaw #dataprivacy #Maryland

2

QUESTION: How will AI impact the ABA’s MRPC Rule 1.5 on reasonable fees? The ABA’s Model Rule of Professional Conduct (MRPC) Rule 1.5 states that “Lawyers must ensure AI-related expenses are reasonable and transparent to clients.” But understanding AI is crucial to explain its impact on client representation and fees. This overlaps with: 🔹 MRPC Rule 1: Technology Competence. 🔹 MRPC Rule 1.4(b): Communications. 🔹 Circles us back to MRPC Rule 1.5: Reasonableness of Legal Fees. In the AI era, lawyers must consider ethical aspects like transparency, reasonableness of fees, and technological competence. The use of AI in law isn’t just about efficiency—it’s about ethics too. #ArtificialIntelligence #LegalIssues #Ethics

12

17 Comments

#BusinessLawToday | Month-In-Brief: Business Litigation & Dispute Resolution Business Litigation & Dispute Resolution update, Apr. 2024: Delaware Court of Chancery Departs from Historical Practices and Awards Compounded Prejudgment Interest; The Second Circuit Finds It Has Jurisdiction by Applying State Law over a District Court Decision Declining to Enjoin an Arbitration. Read: https://lnkd.in/gAhgsi8X #BusinessLaw #BusinessLitigation #DisputeResolution

1

When the California legislature returns from its summer recess on August 5, it will have 26 days to pass bills before it recesses for the year on August 31. We are currently tracking 14 privacy and AI-related bills. Here's what you need to know: 1️⃣ One of the bills (dealing with CCPA monetary thresholds) was signed into law on July 15. 2️⃣ The remaining thirteen bills - all of which passed through their chamber of origin - cover a wide range of topics. 3️⃣ The bills include: kid's data (AB 1949), opt-out preference signals (AB 3048), neural data (SB 1223), use of personal information with AI systems (AB 1008 & AB 2877), algorithmic discrimination (AB 2930), and AI transparency (AB 2013 & SB 942). 4️⃣ Six of the bills are currently set for an August 5 hearing in the Senate Appropriations committee. More details - including brief summaries of the bills and their current status - in the below-linked article.

65

2 Comments

The United States Court of Appeals 5th Circuit just announced it will not adopt a proposed rule specifically requiring disclosure and other requirements for attorneys who use AI as part of their practice. Upon reflection, and based upon a lot of negative feedback on the proposed rule, they recognized that existing rules already cover the same situations. Specifically, attorneys are enforceably required to stand behind the truthfulness and accuracy of court filings. However, the court admonished litigants and lawyers alike that “I used AI” will not be an acceptable excuse for violating existing rules! Here is the formal notice from the court: https://lnkd.in/gJWyEyxg For color, here also are some recent news articles on this announcement: * Reuters: https://lnkd.in/gJmjWSqv * Bloomberg Law: https://lnkd.in/gaVqCkHi And, since I have it at hand, for your convenience, here is the full statement by the court: “The court, having considered the proposed rule, the accompanying comments, and the use of artificial intelligence in the legal practice, has decided not to adopt a special rule regarding the use of artificial intelligence in drafting briefs at this time. Parties and counsel are reminded of their duties regarding their filings before the court under Federal Rule of Appellate Procedure 6(b)(1)(B). Parties and counsel are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require. “I used AI” will not be an excuse for an otherwise sanctionable offense.” Personally, I think this court got it right. To the extent existing rules cover situations arising from use (or misuse) or AI, it is a good idea to apply those rules first before seeking to make more rules. In the event of demonstrable failures of existing rules, then perhaps it will be more practical to craft new rules to address the gaps that have been revealed. But it is, apparently, a very good idea to sound the alarm far and wide, loud and clear: sometimes generative AI provides incorrect or otherwise unsuitable information and it remains the duty of the attorney (among others) to carefully review and stand behind any work they pass forward. That concludes my public service announcement for today :-)

121

20 Comments

Last week I had an opportunity to discuss the latest developments in the markup of the American Privacy Rights Act on Joe Dehner's podcast the Data Privacy Detective. For those interested in finding out the latest developments and issues in privacy, please check out the Data Privacy Detective Podcast. Apple: https://bit.ly/4eSOTUq  Spotify: https://bit.ly/4d6iQ1B YouTube: https://lnkd.in/e2jidD9m  Download: https://bit.ly/4bxIET5 #dataprotection, #ccpa, #privacy, #americanprivacyrightsact, #APRA, #dataprivacy

37

So glad that Marc is bringing attention to early U.S. leadership on privacy and data protection. This is the 50th anniversary year of Congress declaring that “the right to privacy is a personal and fundamental right,” and then proceeding to embody fair information practice principles (FIPPs) into federal law (well before other countries and the OECD followed suit). The Federal Privacy Act of 1974 stacks up well to this day against its descendants. If one wishes to confirm this observation, peruse 5 USC 552a. Note that the congressional declaration of privacy as a “fundamental right” was duly enacted into law, but was not codified in the operational provisions of 5 USC 552a. The full text of the Privacy Act, enacted as Public Law 93-579, is available here: https://lnkd.in/evjfHAZV. See section 2(a)(4) for Congress’ declaration of the fundamental right.

17

3 Comments

Alternative licensing is a logical step. Coupled with powerful AI systems, it will radically alter the playing field for many practices. https://lnkd.in/eG7bn-vc

2

1 Comment

Earlier today, Bloomberg Law published an insightful article, "Law Clerk vs. AI? Courthouse Test Highlights Judicial Curiosity," which delves into the growing interest in utilizing artificial intelligence within the judicial system. The article spotlights of Eleventh Circuit Judge Kevin Newsom's thought-provoking concurring opinion, where he proposes that large language models could potentially assist in determining the "ordinary meaning" of legal text. I had the opportunity to share my perspective on this topic with reporter Olivia Alafriz during her research for the article. As I conveyed, this technology can be particularly valuable as a tool for examining the common usage and understanding of words and phrases – arguably, a core function of these models. What I meant by my quote in the article is now that this technology is readily accessible, it's crucial to test both its potential benefits and limitations within the legal field, and to use it. While responsible implementation is paramount, I firmly believe that AI holds significant promise for legal professionals. Let's continue to explore how these tools can be leveraged effectively and ethically to support the legal process. You can read the full Bloomberg Law article here: https://lnkd.in/gRA7zBfR And this earlier blog post I wrote on Newsom's concurring opinion provides a bit more context: https://lnkd.in/giUeQrwX

54

6 Comments

Delighted to see the New York City Bar Association hosting this webinar on recruiting and retaining neurodiverse attorneys on June 4th at 12:30 ET — Free for members, $15 for non-members, and necessary for all (particularly those in management & leadership roles!) in the legal profession — #Neuroinclusion doesn’t just happen — like allyship, it’s an active practice, and the bottom line is you stand to lose a *lot* of really good legal talent if your working practices are tethered to a neurotypical standard. My brain isn’t the same as that of a neurotypical attorney. And when it comes to practicing law, I’ve found that’s generally a good thing — I see things differently, I come up with creative solutions, and when I’m on a tight deadline, boy do I deliver :-) But at times, practicing law can be a heck of a lot harder than it should be, because trying to put me into a neurotypical box is the definition of trying to shove a square peg into a round hole. I hope you’ll join me on the 4th and take a step towards creating a working environment in which *everyone* can thrive! #neurodivergent #neurodiversity #disability #diversity #inclusion #disabledattorneys #stopthestigma

23

I have reviewed hundreds if not thousands of job postings for legal counsel in my almost 25 years of practice, and so many of those postings continue to expect the applicant to be both extremely detail oriented, and to manage a large volume of agreements within very short deadlines. There simply is no such beast - at least I have never met one. I highly recommend the job posters use "Smart enough to identify the risks involved, and experienced enough to know whether those risks are real." That nets realistic candidates with the right skills, in my opinion.

9