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Will Data Protection Laws Ever Catch Up To New Technology? : Connecticut Business Litigation Blog

May 4, 2010 By Leave a Comment

That was the question posed in an email newsletter I received today from the International Association of Privacy Professionals.   I am a member of this group out of personal interest and to to stay on top of issues related to privacy laws and technology.   One of the benefits of belonging to this group is that I get email newsletters with summaries of new laws, regulations, and lawsuits dealing with privacy issues from all over the world.

Today’s email posed the question in the title of this post and featured an article from the New York Times by Natasha Singer called ”Shoppers Have No Secrets.”   The article details the technology of “behavioral tracking” by retail and advertising businesses and how the Federal Trade Commission (FTC) is playing catch up when it comes to regulating this technology.

Online behavioral tracking has been a hot button issue for both businesses and privacy rights groups for a few years.  Natasha’s article lists several types of new tracking to include:

Cameras that can follow you from the minute you enter a store to the moment you hit the checkout counter, recording every T-shirt you touch, every mannequin you ogle, every time you blow your nose or stop to tie your shoelaces.

Web coupons embedded with bar codes that can identify, and alert retailers to, the search terms you used to find them.

Mobile marketers that can find you near a store clothing rack, and send ads to your cellphone based on your past preferences and behavior.

The article is a very good summary of the issue and has links to advocacy groups on both sides of the debate.  The article also highlights the differences between European and US based privacy laws. In general, the EU is far more advanced and stringent when it comes to personal data protection.

In the US, the FTC publishes guidelines and takes enforcement action under its authority to regulate unfair trade.  There are also the states’ Attorney Generals and class action and individual lawsuits.  Nevertheless, to answer the question I posed in this post, it is clearly a “NO” in the US.   Data protection laws will not catch up to new technology. At least, not anytime soon.

via Will Data Protection Laws Ever Catch Up To New Technology? : Connecticut Business Litigation Blog.

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Group Works to Reform International Arbitration Process

February 4, 2010 By Leave a Comment

The global recession has led to a spike in cross-border commercial disputes, which in turn has led to a rise in international arbitration.

But even as more companies turn to arbitration, many in-house lawyers complain that the process, at its worst, can be as costly and time-consuming as litigation. Now an advocacy organization called the Corporate Counsel International Arbitration Group is highlighting the problems in order to encourage reform.

Though CCIAG was launched three years ago, it’s just beginning to make its influence felt. The Paris-based group is composed of 50 large multinationals, including General Electric Company, Exxon Mobil Corp. and Siemens AG.

Roland Schroeder, a member of CCIAG’s steering committee, said that no one he knows who uses arbitration regularly is happy with it. A senior counsel in General Electric’s Connecticut headquarters, Schroeder coordinates GE’s international arbitration policy. And the dissatisfaction he hears from other in-house lawyers goes well beyond the common complaint that arbitrators resolve disputes by splitting the baby.

Schroeder said that in his own experience, one of every ten arbitrations may be excellent, and another one or two pretty good, but the rest are generally unsatisfactory. Some disappointing results may technically be “victories,” after which an arbitrator will demand: “How can you be unhappy? You won!” To which Schroeder counters: “Yeah, but it took six years. And it should have been two. Or six months.”

The problem with an interminable arbitration isn’t just that it costs more, Schroeder explained. A dispute may revolve around language also used in other contracts. And until the dispute is resolved, the business doesn’t know whether it needs to change the language.

Nevertheless, most major institutions that administer international arbitrations report that their caseloads in 2008 (the most recent year for which data is available) increased over 2007. The jump at the London Court of International Arbitration was 55 percent; at the China International Economic and Trade Arbitration Commission, 28 percent; and at the American Arbitration Association's International Centre for Dispute Resolution, 13 percent.

via Group Works to Reform International Arbitration Process.

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SEC restructures to catch next Madoff | The Harvard Law Record

January 29, 2010 By Leave a Comment

Reeling from the fallout of the Madoff scandal, the Securities and Exchange Commission has been searching for a new strategy and new leadership in its mission to protect the investing public from fraud.  As part of this effort, the S.E.C. recently unveiled six new organizational departments that will lead units aimed at supervising particular domains of finance: asset management, market abuse, structured and new products, foreign corrupt practices, and municipal securities and public pensions.  These changes come with a public recognition that in the rapidly changing world of modern finance the Commission must be constantly vigilant to keep pace with innovation in the markets, as well as a keen awareness that in the wake of the Madoff fiasco the public and Congress are demanding swift action to improve the quality of financial industry oversight.

But while the Commission seeks new and innovative strategies for fulfilling its policy objectives, its core mission of overseeing financial markets continues to depend on its ability to directly probe into the activities of market players, and starting at the end of January, the front-lines inspectors in America's financial capital will have a new chief, private fund industry expert Norman Champ '89, who will take on the role of Regional Associate Director for the S.E.C.'s New York Regional Office.  Champ brings a wealth of experience as an attorney and industry insider, having worked for eight years at Davis Polk & Wardwell before becoming general counsel at Chilton Investments, a private investment management fund based in Stamford, Connecticut with over $7 billion in assets under management.  Champ served until the end of 2009 as Executive Vice President and General Counsel at Chilton, in addition to representing the interests of the hedge fund industry as a member of the board of directors of the Managed Funds Association.

via The Harvard Law Record – SEC restructures to catch next Madoff.

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Social Networking: A Workplace Policy

January 22, 2010 By Leave a Comment

The first part of this article addressed issues surrounding the effect of the internet on hiring and firing in the 21st Century.This article discusses the laws that impact social networking in the workplace and provides guidance on developing a social networking and blogging policy.

OFF-DUTY CONDUCT STATUTES AND PRIVACY LAWS

Many states have enacted off-duty conduct statutes, which prohibit an employer from disciplining an employee for engaging in lawful conduct while away from the employer's premises. These states include, most notably, California, Colorado and New York. However, these statutes also provide exceptions that allow employers to limit otherwise lawful, off-duty conduct where it creates a material conflict of interest for the employer or is reasonably related to the employee's job. For example, the New York statute allows an employer to discharge an employee for off-duty conduct that creates a material conflict of interest related to trade secrets, proprietary information, or some other business interest.

In addition, courts interpreting these statutes have granted employers broad discretion in disciplining employees where the employer can show that the off-duty conduct has damaged the business, hurt the employer's interests, or is otherwise inconsistent with the employer's business needs. It should also be noted that a handful of jurisdictions, namely, Connecticut, the District of Columbia, Louisiana, New York, South Carolina, and Washington, protect employees from being discharged or otherwise disciplined for engaging in political activity or speech.

An employee who is discharged based on online conduct may also have a colorable invasion of privacy claim. To prevail on such a claim, the employee must prove that the information obtained by his or her employer was, in fact, private. Where information posted on a social networking site or blog can be viewed by the world at large, it will not be considered private. However, many of these sites allow users to grant access to their page by invitation only. Thus, access is restricted to a small group of individuals and may be considered “private” for purposes of a common law privacy claim.

via Law.com – Social Networking: A Workplace Policy.

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In Azerbaijan Bribery Case, Entrepreneur Sentenced to One Year in Prison

November 12, 2009 By 1 Comment

Ralph Cioffi and Matthew Tannin weren’t the only ones grinning when they left court Tuesday. The Litigation Daily noticed that Frederic Bourke Jr. managed to crack a smile, too, after his sentencing in Manhattan federal court. Although federal district court Judge Shira Scheindlin sentenced the Connecticut entrepreneur and co-founder of Dooney & Bourke to a year and a day of prison time for his role in a scheme to bribe government officials in Azerbaijan, she granted his request for bail pending appeal.

The government had asked that Bourke receive the maximum penalty of 10 years, but Scheindlin ruled that she was able to depart from sentencing guidelines. She did, however, levy a fine of $1 million against Bourke, which she said could be paid after he serves his sentence.

Bourke was convicted in July of violating the Foreign Corrupt Practices Act and Travel Act and making false statements to the FBI. The verdict followed a six-week trial in Manhattan where prosecutors tried to prove that Bourke knew about a scheme in the late 1990s to bribe senior officials in Azerbaijan to ensure the country would privatize the State Oil Company of the Azerbaijan Republic. Bourke and a group of investors hoped to buy the oil company and turn a huge profit. Prosecutors tried to show that Bourke was not just a passive investor and that he had an especially close relationship with Viktor Kozeny, the alleged mastermind behind the scheme who is currently in the Bahamas fighting extradition.

via In Azerbaijan Bribery Case, Entrepreneur Sentenced to One Year in Prison .

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U.S. Companies’ Electronic-Discovery Spending Tripled in 2009

October 26, 2009 By Leave a Comment

Budgets for managing electronic data tripled this year at average-sized U.S. companies, according to a study, as businesses braced for an influx of lawsuits stemming from a recession that’s been partly blamed on fraud.

The companies spent about $1.29 million each on management of electronic data this year, compared with $437,000 last year, according to the survey by consulting company Kroll Ontrack Inc. The data, released today, were based on interviews in June, July and August with in-house lawyers and technology specialists at 231 U.S. and 230 U.K. companies.

Forty-nine percent of respondents said they’re paying more attention to the management of electronic data, including voice- mail and e-mail, because of the current economic climate. During the discovery phase of litigation, parties involved in a lawsuit must produce electronic and other data related to the case.

…

Global spending on electronic-discovery software is projected to grow to more than $1 billion in 2009, about 33 percent more than the $758.8 million in 2008, according to Stamford, Connecticut,-based Gartner Inc., which provides research on information technologies.

via U.S. Companies’ Electronic-Discovery Spending Tripled in 2009 – Bloomberg.com.

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