XXX Sunrise Period for Non-Adult Industry Trademark Owners to Begin the 7th of September
The launch of the new top level domain .XXX is drawing near at which time .XXX domain names will be available for registration with the ICM Registry through accredited registrars. The introduction of .XXX is pertinent not only to the individuals, businesses and organizations currently engaged in the adult sponsored community but to all intellectual property holders with trademark rights.
The .XXX Registry is providing an opportunity for trademark owners (not involved in the adult entertainment industry) to apply to opt-out of .XXX and protect their valuable brands from cybersquatting in the .XXX space. This “Sunrise Period B” of fifty-two (52) days scheduled between September 7, 2011 and October 28, 2011, will allow trademark owners to block the registration of their brand in the .XXX domain. In short, trademark owners may opt-out of .XXX by reserving names identical to their existing registered trademarks effectively barring any potential person or entity engaged in the adult entertainment community from registering a .XXX domain name for that particular mark. A registered trademark is required and submitting an application does not guarantee that your trademark will be blocked by the registry.
However, a successful application to block a .XXX domain name registration will eliminate the domain from the .XXX registry for at least ten years (for a one-time fee of $225 per domain name plus attorney time to prepare the application). The blocked domain will then resolve to an informational page stating that the domain has been reserved and further prevent other interested parties in acquiring and/or using it. Once the Sunrise period ends, if a brand owner hasn’t taken advantage of the opportunity to block its trademark from the .XXX registry, all members of the adult sponsored community will have the ability to register .XXX domains, even if those domains include a valuable or well-known brand. Other rights protection mechanisms will be available (such as the Uniform Dispute Resolution Policy (“UDRP”)), but proactively participating in the Sunrise period may be a more cost-effective and pro-active approach.
As an information services professional I’ve spent the past two decades helping law firms with their technology. Over that time I’ve come to identify 6 major mistakes that they tend to make when they install or upgrade new technology.
#1. They Don’t Have A Goal.
It’s important before you even consider upgrading your technology to ask this question: What problem are we solving? Too many firms forget what business they’re in and run around installing fancy new systems that don’t address any specific needs. Sometimes they’re talked into it by vendors or consultants; sometimes it’s the brainchild of a computer-savvy associate or staff member. Far too often the result is a lot of money spent for new systems and no increase in productivity. If you don’t have a goal, you’ll never reach it. Back home in Indiana folks say “If you don’t know where you’re going, pull over and stop ’cause you’re there.” This is rarely truer than in technology where you are constantly bombarded with possible routes – in the form of cool toys – but unless you have a destination it makes no sense to even start the car.
How can I avoid making this mistake?
Start by identifying the problem. Write it down. Write down the proposed answers. Review the problem (and proposed solutions) with the users and with your information services people (or consultants). Once you have a clearly defined (and agreed upon) problem and solution, set a timetable. Make it realistic. This can be one of the hardest parts of this step because you don’t want to rush things and end up with a hastily implemented, and poorly constructed, solution. But at the same time you can’t drag your feet too much or the technology will change right out from under you and you may find that your preferred solution has been discontinued in favor of a new and improved (read that “more sophisticated and expensive”) solution.
#2. They Don’t Talk To Their Users.
Too many firms get a great idea for a new technology, throw the switch and roll it out to their users without even much warning to the users that it’s going to happen. As a result there is confusion, resentment, fear and a LOSS of productivity.
How can I avoid making this mistake?
Don’t just impose change from the top down or you’ll end up with users who resent and are intimidated by the new technology. Ask them what they need. Ask how they will use it. Have them compose a “wish list”. Observe their procedures. You’ll find that the users will accept the new systems much faster and easier if they have some input into its selection/creation. If you’re in a large firm consider putting together a users group of various staff members. Try to include at least two members of each category (partners, associates, paralegals, support staff, accounting, etc.) and don’t just pick the ones who know a lot about technology. Oftentimes the most valuable input will come from that partner or secretary who is awkward with the computers. Have them meet each month and ask them to talk about how the technology is (or isn’t) working for them. Have them suggest improvements. It’s important that you listen to their input and let you know that you value their contributions.
#3. They Don’t Do Their Homework (Or Pay The Smartest Kid In Class To Do It For Them).
I often see firms that buy a solution they don’t understand. What is it? How does it work? Why do we need this again? Many times they see a flashy ad or get a presentation from a salesman and sign the papers in the excitement of the moment. They don’t clearly understand the problem or how this solution solves it.
How can I avoid making this mistake?
Do your research. Visit the Internet sites for the products you’re interested in. Visit the sites of some of their competitors. Read the trade magazines and try to keep a handle on what’s happening in the industry. Talk to the users (see #2) and vendors. Attend demos and seminars. You’ll probably have to start learning about the technology at least 3-4 months before you plan to upgrade or the hill will be too steep to climb. If you can’t (or don’t want to) do the research yourself, find a consultant that you feel comfortable with. Get recommendations from other firms in your area of people they’ve enjoyed working with. Ideally the consultant should be familiar with the solutions you’re interested in, but shouldn’t sell those solutions themselves (that way he has no financial interest in selling you something you don’t need). Never hire a consultant that you don’t trust completely. Your consultant should be able to explain the basics of the relevant technology to you in language you can understand and, most importantly, should be able to clearly explain the expected benefits to you.
#4. They Don’t Document Everything.
At one firm I worked for, I discovered that they had an entire floor of the building wired for network cabling but didn’t have a map or any other documentation about the cabling. All they had was plugs in the walls and loose wires in the computer closet. As you can imagine troubleshooting cabling problems became quite an adventure. It’s far too common to ask what kind of hardware is in use and have firms not know for sure. Documentation failures go well beyond cabling – system configurations, numbers of licenses, software in use…oftentimes goes unrecorded and when it’s time to troubleshoot or upgrade there is not enough information available to make good decisions or accurately foresee potential problems.
How can I avoid making this mistake?
The solution is easy, but can be tedious. Insist upon complete documentation from your vendors. Maps of cabling. Labels on everything. When you deploy new equipment keep a file that indicates serial numbers and specifications (RAM, hard drive, processor, operating system, etc.). Often you can get that information from the invoice you received for the machine. Keep a list of what software you have in use, how many licenses you own, and what versions you’re running. Document the date that the system or application was deployed and from where it was purchased. This documentation can make troubleshooting MUCH easier down the road.
#5. They Skimp On Training.
This is a VERY common error. It never fails to surprise me when I see a firm that will spend $50,000 on computer equipment but won’t spend $500 to train the users.
How can I avoid making this mistake?
The most important part of your system is the user – upgrade them! Would you fly an airline that advertises that “All of our pilots have driver’s licenses and we have a copy of “Big Planes for Dummies” in every cockpit!” I doubt it…yet many of you are flying your firms with crucial personnel who haven’t had even 20 minutes worth of training in the products that you depend upon to get your work done. Even long after the installation training can be productive. You may think that your assistant knows the ins & outs of your word processor, but what if a 2-hour class could teach him or her new tricks or secrets to get things done faster? If these new tricks saved them just 12 minutes a day that would be an entire HOUR each week that they’d gain. In a month they’d have recouped all of the time invested in the class, twice over. This goes for executives as well, by the way…
Consider bringing in an outside trainer (or even an inside resource) to do a 1-hour lunchtime training in your conference room. Try producing an internal e-newsletter with tips and tricks for the products you use (ProLaw, Word, Excel, WordPerfect or whatever). Encourage your users to have interest and discussions about technology.
Consider creating a “Trick of the Week” award where the person in your firm who submits the best new trick or tip for using your systems wins some prize – maybe a prime parking space in your lot for the week, an extra-long lunch break on Friday or a box of chocolates.
#6. They Don’t Follow-Up.
This comes back to talking to your users. If you don’t look out the window how do you know if you reached your destination? Don’t find out 6 months later that the staff hates the new software or that the new printers don’t work properly.
How can I avoid making this mistake?
After the upgrade is in place you need to contact your users and ask them if they’re happy. Try to be there when they first use it to get their initial reaction. Check in with them again the following day. Check in again the next week…and again weekly or bi-weekly for the next month or two. Look back at your written “goal” from #1 and see if you’ve solved your problem. If you didn’t, figure out why and make adjustments. Users will often forgive you if you find and fix problems quickly they often won’t forgive you if you give them a “solution” that doesn’t work and then leave them to deal with it on their own. Many times you’ll find that the problems are really “pilot error” and can be corrected with more (or better) training. Sometimes the problems will be equipment or software problems and finding them in the first days or weeks can mean the difference between getting your vendor to replace the inadequate product with something more suitable and getting stuck with it for the long term.
Preventing these mistakes takes a little effort but it’s not expensive. What’s expensive is making these mistakes and ending up with a system that you paid considerable money for and that leaves your users frustrated and your productivity down.
Ethics in Blogging was the topic of a presentation I made this morning at the Broward County Bar Association, with co-presenter Alan Anthony Pascal, Esq. of The Florida Bar.
Posts to a lawyer’s social media page by a third party was one of the topics we covered. Below please find some highlights from the Florida Bar Guidelines for Networking Sites, which applies to Florida attorneys as well as lawyers from other states who are soliciting business in Florida.
Third Party Posts
“Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.”
Removal of Non-Compliant Information from a Lawyer’s Page
“If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.”
Request for Removal of Info on a Page Not Controlled by the Attorney
“If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.”
Lawyer Social Media Pages are Exempt from Filing
“Finally, the Standing Committee on Advertising is of the opinion that a page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.”
Page references in these guidelines can include a LinkedIn profile, a blog comment, Twitter profile, Facebook page, etc.
Many thanks to our Business of Law guest blogger Kevin Aschenbrenner of Jaffe PR who provided some truly useful information on how law firms can gauge the effectiveness of their social media programs. Read on….
One of the most frustrating aspects of actively working on law firm social mediaefforts is the feeling that you’re in a vacuum. You often can’t tell if anyone is listening. And, posting, “Do you think I’m awesome?” just won’t cut it.
This is why influence is such a hot topic in social media. Essentially, the more influence you have online the more likely it is that people will not only pay attention to you but also act on what you post. I talk more about influence in this blog post. Go ahead and read it. I’ll wait.
Welcome back. So, influence. It’s a good concept, but it’s a bit of a vicious circle – you need influence to have an impact online but you need to know what your influence is to use it to assess your law firm social media efforts. It makes my head hurt, too.
Or, it used to. Now there’s an online tool that will measure your influence. It’s called Klout (www.klout.com) and it ranks your online influence with a number out of 100. For an example, here’s a link to my Klout Score:http://klout.com/kevinaschenbren. As Klout Scores go, I’m not up there with Brian Solis (85) or Chris Brogan (84), but it’s respectable and, I’m within kissing distance of 50, which is the Klout Score required by a few hotels in Las Vegas in order to qualify for free upgrades (http://adage.com/digitalnext/post?article_id=146189).
But I digress. I’ve found Klout very helpful as a sort of diagnostic tool for my social media efforts. It’s not perfect and I quibble with some of the other information you get in your report, but it’s not a bad guidepost.
To find out your Klout Score:
Go to www.klout.com and type in your Twitter handle.
To see your entire report, I suggest creating an account. It’s free and gives you access to additional data and it will also ensure your score is refreshed regularly.
You can increase the accuracy of your Klout Score by linking your Facebook and LinkedIn accounts.
Check back periodically to see how your Klout Score is doing.
And, if you really want to have fun with your online influence, check out Empire Avenue (www.empireavenue.com). I’ll leave you to explore that one on your own.
One of the most frustrating aspects of actively working onlaw firm social mediaefforts is the feeling that you’re in a vacuum. You often can’t tell if anyone is listening. And, posting, “Do you think I’m awesome?” just won’t cut it.
This is why influence is such a hot topic in social media. Essentially, the more influence you have online the more likely it is that people will not only pay attention to you but also act on what you post. I talk more about influence inthis blog post. Go ahead and read it. I’ll wait.
Welcome back. So, influence. It’s a good concept, but it’s a bit of a vicious circle – you need influence to have an impact online but you need to know what your influence is to use it to assess your law firm social media efforts. It makes my head hurt, too.
Or, it used to. Now there’s an online tool that will measure your influence. It’s called Klout (www.klout.com) and it ranks your online influence with a number out of 100. For an example, here’s a link to my Klout Score:http://klout.com/kevinaschenbren. As Klout Scores go, I’m not up there with Brian Solis (85) or Chris Brogan (84), but it’s respectable and, I’m within kissing distance of 50, which is the Klout Score required by a few hotels in Las Vegas in order to qualify for free upgrades (http://adage.com/digitalnext/post?article_id=146189).
But I digress. I’ve found Klout very helpful as a sort of diagnostic tool for my social media efforts. It’s not perfect and I quibble with some of the other information you get in your report, but it’s not a bad guidepost.
To see your entire report, I suggest creating an account. It’s free and gives you access to additional data and it will also ensure your score is refreshed regularly.
You can increase the accuracy of your Klout Score by linking your Facebook and LinkedIn accounts.
Check back periodically to see how your Klout Score is doing.
And, if you really want to have fun with your online influence, check out Empire Avenue (www.empireavenue.com). I’ll leave you to explore that one on your own.
It may surprise you, as it did me, to learn that today is Data Privacy Day, an “international celebration of the dignity of the individual expressed through personal information.” But Data Privacy Day also highlights the need for individuals to protect their data and how they can go about doing so.
There are many organizations out there that aim to help individuals protect their personal information and help businesses comply with data protection laws and regulations. The Online Trust Alliance is one such organization, whose mission is to create an online trust community, promoting business practices and technologies to enhance consumer trust globally. They recently released their “2011 Data Breach Incident Readiness Guide” to help businesses in breach prevention and incident management.
According to their newest guide, the true test for organizations and businesses should be the ability to answer key questions such as:
Do you know what sensitive information is maintained by your company, where it is stored and how it is kept secure?
Do you have an incident response team in place ready to respond 24/7?
Are management teams aware of security, privacy and regulatory requirements related specifically to your business?
Have you completed a privacy and security audit of all data collection activities, including cloud services, mobile devices and outsourced services?
Are you prepared to communicate to customers, partners and stockholders in the event of a breach or data loss incident?
With the White House, members of Congress, Commerce Department and the FTC calling for greater privacy controls and breach notifications, self-regulation by businesses is becoming more and more important.
Google, one of the supporters of Data Privacy Day and the initiatives of The Privacy Projects is hosting a public discussion on privacy later this afternoon with representatives from the Electronic Frontier Foundation, the FTC and the National Institute of Standards and Technology scheduled to attend. If you can’t stop by Google’s DC office for this event, don’t worry — it will be captured on video and posted to YouTube soon after.
Risk Management Magazine and Risk Management Monitor. Copyright 2011 Risk and Insurance Management Society, Inc. All rights reserved.
Every time I hear someone in marketing or advertising talk about “best practices” for website design, I roll my eyes.
Now granted, many of the do’s and don’t’s of web design have merit. They’ve been tried, tested and proven to work. And I believe that certain best practices such as ease of navigation, making good use of white space, ensuring that site text is easy to read and building for fast loading times are sarcosanct. But I also believe that best practices are helping to hold marketers back.
The problem I have with best practices is that while they are there to guide everyone in website design, they also cause everyone to look pretty much the same. Adherence to best practices tends to create a formulaic, templated approach to website design. The logos, colors and images on various sites may differ, but they mirror one another in their composition–i.e. logos in the upper left, navigation at the top, copy centered or aligned to the right, vertical scrolling, etc. They’re design conventions that definitely work, but make for few standout websites.
“Okay,” I can hear you saying, “that’s all well and good. But I’m a law/accounting/financial services firm. My site has to be functional, and it should stand out because of my message, not because it looks cool and creative.” All true. But in order to read your message, your site has to be noticed first. While I’m not advocating that professional services firms push the boundaries of convention just for the sake of being different, there are a few rules you can break (or at least bend) in order to make your site stand out from the competition.
Go Horizontal
While usability studies show that most website users prefer to scroll and read text vertically, most of those studies were conducted years ago prior to the ubiquitousness of touch screens, widescreen monitors and many other developments we now take for granted. For touch screens like those on the iPhone/iPad, horizontal navigation is the preferred form of navigation because it’s more ergonomic to move your hand from side to side than up and down. In the case of monitors, screen resolutions have gotten better. We used to design for 1024 x 768 screen resolutions. Now, many screens have resolutions that are 1440 x 900 and they’re much wider, which means that viewers get more real-estate horizontally than they do vertically.
I also think–and this is strictly my opinion–that our brains are better wired to consume information horizontally. Maybe it’s because we’ve been doing it that way offine for so many years. Books are read with a horizontal flip, galleries place paintings and photographs alongside each other, and most of our world is organized horizontally rather than vertically–i.e. our houses are next to each other and we move through the world in a mostly linear fashion.
Chart a New Course
Navigation buttons and links should always be easy to find, but do they always need to be at the top or along the sides of the page? And do they always have to be “buttons”? Unconventional navigation–as long as its easy to find and figure out–has the ability to engage the audience and keep them on your site. A good example of navigation that breaks with traditional design and works well is from the web design firm Hello Goodlooking in Helsinki, Finland:
Here, the navigation buttons are centered on the page and move to the sides when you click on them and open a window. They’re easy to see, easy to understand and make the site simply downright fun to navigate.
Shift Your Perspective
Right-aligned page content is often not seen in a world of centered or left-aligned web pages. Whenever I come across a page that is aligned uniquely, I have to pause and take a second look. It’s a simple (and safer) way to look unique without having to deviate from other conventions of website design.
Be Bold
Using reversed type, multiple typefaces and unique fonts is generally frowned upon in website design. Yet sites that do all or some of these things tend to grab a lot of attention–and not necessarily for all the wrong reasons. And you don’t have to be a kooky design firm to do it. Morrison Foerster is a law firm whose website is truly unique within the industry. No images, just type–and mostly reversed type, at that. Big, bold headlines. A conversational tone. And don’t even get me started on their careers site, which has to be one of the best in any industry. Most law firms make claims to be different and innovative. MoFo’s website backs it up.
Sometimes breaking with best practices is worthwhile. In fact, I’ll go so far as to say that it’s the only way to truly stand out. Striving for innovative design and a better way of web browsing has brought about some great changes in the last decade. Being different to be better is a perfect example of when the rules of best practices should be broken.
Sometimes, when it comes to opinion research, what you see is not necessarily what you get. For instance, focus group moderators can inadvertently (or purposely) create bias among recipients. Or when questioned about buying habits or intentions, people may tell questioners what they want to hear, rather than what they actually feel.
I can’t count the number of times I’ve cautioned against considering all research valuable or even accurate. But there are ways to ensure that your findings are sound when undertaking research among your clients, your organization members or your markets.
Here are five tips for making sure the research your firm is using is useful:
1. Know your Goals
I know you’re thinking, “Of course, we need goals!” but, alas, research can be initiated for nutty reasons. My personal favorite: “Everyone else is doing it.” That everyone else is doing it may make initiating a new study an excellent recommendation, but you still must match your research goals to your business goals. Do you define success by a measurable return on the research investment, or do you just want to touch your most loyal clients? Are you trying to guide or justify a specific marketing expenditure or, more loosely, gauge awareness in a particular market? Knowing what you want to achieve is crucial to obtaining the data you need. Detailing the specific information you want to know, even using hypothetical statements of finding, can help you to make your objectives clear. In this case, the cart (what you wish to carry away from the research) truly comes before the horse.
2. Fully Define Your Target Audience
Do you put stock in those general market studies that “rank” your business better or worse than others? Syndicated studies are great gossip and provide fodder for your website’s homepage
(“We’re #1 in reputation for excellence for the third straight year!”), but there is limited value in being considered number one for anything if those who provide the ratings do not purchase or even influence the purchase of your services.
When conducting research, or using research conducted by someone else, you need to ensure that respondents include individuals whose opinions you really need to know. Do you want to know what your top 25 clients think, your clients with the highest potential or your clients who seem to be fading away? Are you looking for guidance from prospects for a specific service, in a specific geographic area, or from a certain type of business? If existing research was conducted among exactly the right group of individuals–excellent! If not, you’ll need to conduct your own research to get what matters to you.
3. Select the Best Methodology
As popular as they are, focus groups are one of the most misused research methodologies. They are a qualitative research method, statistically invalid, which necessarily makes them ill-suited for drawing conclusions about habits or actions. Whether you conduct one session with 10 individuals or 10 sessions with a total of 100 individuals, they are never conclusive. Focus groups are, however, an excellent way to come up with ideas about proclivities or intent that can later be tested with quantitative surveys. Focus groups can help you discover undetected problems with an ad campaign, potential challenges of a new service offering, or the usability of a website design. But when you want to understand what is most important among a number of choices, what really drives client loyalty, or how to best position your business in a market—these objectives require a quantitative method that can provide the metrics you need.
4. Ask the Right Questions the Right Way
Another common problem with focus groups and other forms of research is how easily respondents can be led to particular responses, and how hard it is for them to accurately assess and report their own motivations. When you develop your discussion guide, in-depth questionnaire or survey instrument, you need to make sure the questions are not leading, that your respondents are not primed to answer in a particular way. (In fact, when conducting focus groups, I often ask participants to write down their initial impressions before discussion even begins.) For telephone or in-person interviews, make sure your interviewers are skilled in the techniques that will bring even subconscious motivations to the surface.
5. Interpret with Caution
How do you know if your findings are truly reliable? Even if you’ve clearly laid out your goals, comprehensively defined your target, picked the best methodology, designed an effective research instrument, and used excellent interviewers, the results can still be misleading if your interpretation of the findings is flawed. Reliable interpretation begins with proper analysis of the data, which requires understanding how the target population was selected and ensuring that your resultant data includes the information needed to feed your conclusions. Perhaps the most common problems are conducting quantitative analyses with too few responses, or having a response rate that is too low–both of which beg the question: How do the non-respondents differ from those who are included in the research?
So, is research misleading? It certainly can be, but by using these guidelines, you can take the necessary steps to ensure that your research will more accurately provide the information you need.
Is cloud computing a shift or is it the next natural step in strategic business development? Is the cloud the right answer for your law firm or company? Is the cloud the right answer for all applications and infrastructure or is it just a piece of the puzzle? These are a just few of the many questions law firms and companies are asking themselves as they consider a move to the cloud. There are many reasons why cloud computing is a very seductive solution to the cost cutting environment we find ourselves dealing with today. However, there are many issues, legal and organizational, that must be considered to determine the validity of the cloud for each environment.
The “cloud” means different things to different people. For most of us, we have been using cloud computing technology for years without defining the term. Example cloud environments are extranets, legal research websites, online file storage and much more. By definition, the cloud is a metaphor referring to internet based computing in which applications, data, software or network functions are stored on remote servers. There are presently three types of cloud environments:
Infrastructure as a service or hardware cloud which serves as a data center,
Software as a service or the software cloud, and
Desktop applications operated within a hardware cloud.
Although we have been using the cloud in the past, the difference at this time is the potential of using the cloud for core business applications.
Why the Cloud?
For strategic business leaders, the cloud offers a way to minimize cost, increase mobility, prepare for disaster recovery, offer device flexibility, collaborate on demand and reduce downtime. Let us take a look at the different sections of a law firm and see how the cloud can affect the overall business functions.
In the information management world collaboration is key. The more a firm can offer needed collaboration tools with a client, the more the client becomes entrenched in that firm culture. The cloud provides law firms with a unique opportunity to offer clients a collaborative environment in an on-demand system. The client can truly be connected with the law firm from anywhere with any device in the world.
Fewer applications or errors and easier upgrades are phrases application and support specialists love to hear. The cloud environment can make them a reality. The cloud offers software functionality to users regardless of locality or device. Therefore, fewer setups, downloads and support hours are spent dealing with application changes and upgrades. This new environment aids a law firm in flexibility allowing the firm to change applications as rapidly as the needs of the users change.
The main concern of most in the applications world is support. How do current structured IT staffs support an environment when the applications are not local? What will be the skill set of an applications and desktop support staff individual with applications in the cloud? These are areas IT departments must address before making the move to the cloud.
The cloud offers business and cost savings in a very unique way. The upfront costs of moving to the cloud are large. However, over time the cost savings from increased efficiency and reduced hardware, software, support and downtime help to offset the upfront costs. The biggest hurdle for cloud computing may not be cost but instead data security. It is easy to argue that a law firm or company can protect its data when it lives in a server room on site with a locked door but how do IT departments protect their data when it sits thousands of miles away on servers not owned by the company? Law firms will need to determine if this is a deal breaker or is this an area of contract negotiation with the cloud provider.
What are the contractual issues?
Now that we see the potential of cost savings, flexibility, mobility and more, we will address the contractual issues and concerns each law firm will need to consider. The first step in any contractual negotiation is due diligence of both parties. Law firms must evaluate news, law suits, current events, financial stability, customer references, provider longevity and any other possible information that could affect the contractual obligation fulfillment. Only then can the contract negations begin.
The largest areas of concern in the cloud are data security and privacy. A demonstration of these concerns is seen in the 2009 complaint filed with the Federal Trade Commission (FTC) by the Electronic Privacy Information Center (EPIC) regarding cloud services of Google. In the complaint, EPIC alleges Google did not adequately safeguard the confidential information obtained from clients. This complaint raises serious questions for the vendor to address and draft into the contract. Questions to ask include where the data is stored, what are the physical security measures to protect the data, is a shared resource used in storage, what is the security during transmission, what are the disaster recovery measures and what are security incident response times. In addition, questions around data migration and transition should be addressed.
Another issue to consider is legal compliance. Highly regulated industries such as health care facilities falling under HIPAA must think twice about moving information to the cloud. Vendors are expected to maintain the data at the same standard required of the company. This can become a contractual deal breaker if the vendor will not agree to the higher standards. The regulated industries affect law firms that maintain work product and client information for clients working in these regulated industries. Law firms must now consider the standards guaranteed to their clients when moving to the cloud and verify the vendor will agree to that level of maintenance.
A point that is only just beginning to emerge in the cloud discussion is the level of control and ownership of the servers and data existing on the servers. Questions to consider are data termination and vendor claims and rights to the data. The control influences discovery, liability and litigation hold processes. Negotiation can help prevent future claims of spoliation.
Performance, reliability and service features shape the day to day experience of users in the cloud. Therefore, inquiring about disaster recovery set up, scalability of applications, process for upgrades and feature releases, suspension of services, offline capabilities, base subscription services and add-on services of applications can affect the contract obligations of the vendor, expectations of the client and most importantly cost of the contract.
Global performance and legal compliance of data across international borders are concerns for many large law firms. Is the vendor only offering a cloud solution that is U.S. based? This is a discussion point for the contract and can possibly be a deal breaker when adhering to EU standards of compliance.
All of the above contract negotiation points lead to the largest decision, cost. What is included in the cost of the cloud services? What is not included? And the final and most important question to ask, whether the move to the cloud is a benefit if the law firm already owns the software licenses and hardware to maintain the status quo.
What will the courts be deciding?
The courts are well aware of the cloud computing movement. In Oregon v. Bellar, 217 P. 3d 1094 (Or. App. 2009), the court took note that 69% of U.S. residents that are online utilize at least one cloud site. Due to the unique custodial issues involved with cloud computing, the cloud can present challenges to e-discovery and jurisdictional questions. Decisions concerning these issues are just starting to appear but with conflicting rulings. The question of what the courts will decided has yet to be seen.
What will the future bring?
As we stated earlier, many of us have been using the cloud for years without calling it the cloud. The difference surrounds the movement of core business functions such as email and document management to the cloud. In the past, these features have been kept at a local level. But as you see above, this is changing. As more and more cloud providers make their way to the forefront, this movement will only increase. The question is whether the cloud is the right solution for your law firm?
Meredith L. Williams is Baker Donelson’s Director of Knowledge Management. Although trained as a lawyer, she is not actively engaged in the practice of law. Instead, she oversees BakerNet, the Firm’s industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology. Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence. 901-577-2353 / www.BakerDonelson.com
Two recent lawsuits allege that internet service providers violated users’ privacy by sharing “referrer data” containing potentially identifying information.
A former technologist with the Federal Trade Commission filed a privacy complaint(link via WSJ) against Google with his ex-employer. The complaint alleges that Google does not allow users to easily prevent transmission of information that allows website operators to determine the search terms used to access their sites. It claims that this constitutes a deceptive business practice by Google because “if consumers knew that their search queries are being widely shared with third parties, they would be less likely to use Google.”
According to the complaint, Google search URLs contain the user’s search terms, and when users click on a search result the webmaster of that site can see the terms used to access it. The complaint alleges that this conflicts with Google’sPrivacy Policy and cites to Google’s court admissions that search queries may reveal “personally identifying information” and that consumers trust Google to keep their information private.
Google has allegedly tested products that deleted search terms from the referrer data visible to webmasters but discontinued them after receiving complaints and posted reassurances that search terms would remain visible. Apparently Google now offers an SSL encrypted search engine at https://www.google.com which protects search terms from being intercepted, but the complaint notes that this is not the default setting and it is not linked from the regular Google site. It also notes that Google provides search term protection to Gmail users searching their inboxes.
The merits of the complaint may hinge on whether search terms should be considered “personal information.” The complaint notes that the New York Times was able to indentify supposedly anonymous AOL searchers in 2006 when AOL leaked a dataset of search queries.
The second suit alleges that, from February through May, Facebook transmitted referrer information to advertisers about users who clicked on their ads. It alleges violations of the federal Electronic Communications Privacy Act and Stored Communications Act as well as California computer privacy and unfair competition laws and common law claims of breach of contract and unjust enrichment.
The suit claims that “Facebook has caused users’ browsers to send Referrer Header transmissions that report the user ID or username of the user who clicked an ad, as well as the page the user was viewing just prior to clicking the ad . . . For example, if one Facebook user viewed another user’s profile, the resulting Referrer Headers would report both the username or user ID of the person whose profile was viewed, and the username or user ID of the person viewing that profile.”
As in the Google complaint discussed above, the plaintiffs allege that Facebooks actions violate its privacy policy (which allegedly states “we never share your personal information with our advertisers”) and other representations to users as well as state and federal privacy laws. The amended complaint may be stronger than the suit against Google because referring Facebook pages, unlike Google searches, are often highly personalized and contain the Facebook user’s name. Facebook allegedly stopped embedding referrer data in May after media accounts exposed the practice.
Although some tech executives have been quick to sound the death knell for online privacy, consumers – even those who are products of the Internet generation – continue to disagree. A recent poll shows that 85 percent of teens believe social media sites should obtain their permission before using their information for marketing purposes.
Excerpted from FVLD’s blog, http://www.postorperish.com, which regularly discusses these and other issues facing online publishers.
The rise of online media means that many businesses are doubling as publishers, with all the attendant benefits and risks. Every day, courts and lawmakers face the challenge of applying legal principles conceived in the era of periodic publications featuring bylines and mastheads to the unlimited, instantaneous, and often anonymous content communicated via the Internet.
Below are brief synopses of some of the issues facing online publishers that courts have discussed in recent months.
Anonymous Defamation
Federal law generally precludes defamation liability for websites based on third-party content. This, however, does not mean that third-party content cannot land a webmaster in court. Plaintiffs often issue subpoenas to websites for identifying information regarding anonymous commenters. While companies may be reluctant to spend their money protecting someone else’s First Amendment right to speak anonymously, website operators — particularly those that have promised to protect users’ privacy — may face liability for turning over identifying information.
Businesses that have themselves been anonymously defamed and seek to identify the defamer must jump through a number of procedural hurdles designed to protect the commenter’s constitutional right to speak anonymously. Some courts have suggested that these hurdles may be easier to clear when the anonymous defamer acted for commercial purposes.
Jurisdiction
Internet postings can be accessed anywhere and courts have suggested that Internet posters can therefore be sued anywhere. A federal appellate court sitting in Chicago recently rejected the Arizona domain registrar GoDaddy’s argument that, absent specific intent to direct its Internet activities toward Illinois, Illinois courts should not hear a cybersquatting suit against it.
Additionally, at least three recent appellate courts have held that online defamers can be sued in states other than the one from which the content was published. This means that companies with online presences must be prepared to defend themselves in jurisdictions that may apply varying legal standards. Savvy plaintiffs are sure to choose the jurisdiction most favorable to them.
Privacy and Confidentiality
Many social media users assume that by setting posts to “private” they control their audience. This is not always the case. A New York court recently held that “private” Facebook and MySpace posts are discoverable during litigation and that there is “no legitimate reasonable expectation of privacy” in such posts. Additionally, the United States Supreme Court decided this year that an officer’s privacy rights were not violated when the police department searched his text messages while auditing the department’s texting plan. But some courts have found privacy violations where employers used false pretenses to access employees’ “private” content.
In another recent case a federal court decided that a company’s client list could not be protected as a trade secret because the same information could easily be found on sites such as LinkedIn.
Intellectual Property
While website operators can limit their copyright liability for third-party content by following statutory procedures, websites’ own content is fair game. Online publishers, particularly bloggers, often quote and expand on content created by others. While some perceive this as an opportunity to reach new audiences, others denounce the practice as free-riding. Some media outlets have sold their copyrights to companies that have filed hundreds of suits against alleged online infringers. Others have threatened to sue bloggers formisappropriation of “hot news.”
Courts have suggested that those who misuse an entity or individual’s name to bring attention to online gripes, for instance by impersonating their target, may be liable under trademark statutes, particularly when acting with a profit motive. California has banned “e-personation” outright.
Harassment
A federal court dismissed an employee’s suit alleging that her employer subjected her to a “hostile work environment” by failing to act after coworkers posted inappropriate comments regarding her race on a personal Facebook page. The court left open the question of whether a company can be liable for improper comments on a company-monitored social media site.
Excerpted from FVLD’s blog, http://www.postorperish.com, which regularly discusses these and other issues facing online publishers.
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