Category: Technology

Cyber and Technology Risk Insurance for the Construction Sector

Much Shelist law firm logo

The recent, well-publicized retail store data breach controversies have spawned a number of lawsuits and insurance claims. Not surprisingly, insurers have responded with attempts to fight claims for coverage for such losses. Insurance underwriters are carefully monitoring decisions being handed down by courts in these lawsuits. All of this activity has led to a new emphasis on cyber and technology risk and assessments, as well as on insurance-program strategies.

These developments have ramifications for the construction industry that include, and go well beyond, the data-breach context. Contractors, design professionals and owners may find that in addition to losses caused by data breaches, other types of losses occasioned by technology-related incidents may not be covered by their existing insurance programs.

Specifically, insureds may find themselves with substantial coverage gaps because:

  • data and technology exclusions have been added to general liability policies.

  • such losses typically involve economic losses (as opposed to property damages or personal-injury losses) that insurers argue are not covered by general liability policies.

  • data and technology losses may be the result of manufacturing glitches rather than professional negligence covered by professional liability policies.

Coverage for claims involving glitches, manufacturing errors and data breaches in technology-driven applications — such as Building Information Modeling (BIM), estimating and scheduling programs, and 3D printing — may be uncertain. A number of endorsements are currently available for data breach coverage, but insurers don’t necessarily have the construction industry in mind as they provide these initial products.

In addition, there is no such thing as a “standard” cyber liability policy, endorsement or exclusion. Insurers have their own forms with their own wording, and as seemingly minor differences in language may have a significant impact in coverage, such matters should be run past counsel.

Construction insurance brokers are telling us that insurers are in the process of determining how to respond to cyber and technology risk claims, what products to offer going forward, and how to underwrite and price these products. Keith W. Jurss, a senior vice president in Willis’s National Construction Practice warns:

“As the construction industry continues to identify the unique “cyber” risks that it faces we are identifying gaps in the current suite of “cyber” insurance coverages that are available.  In addition, new exclusionary language related to cyber risk under CGL and other policies adds to the gap.  The insurance industry is slowly beginning to respond with endorsements that give back coverage or new policies designed to address the specific risks of the construction industry.

“As we identify cyber insurance underwriters willing to evaluate the risks specific to the construction industry, we are seeing the development of unique solutions in the market. There is, however, more work required and as construction clients continue to demand solutions the industry will be forced to respond.”

Consequently, this is a time to stay in close touch with qualified construction insurance brokers who understand the sector and have their hands on the pulse of the latest available cyber and technology risk products. As these products become available, clients may also want to consider what cyber and technology risk coverage to require on projects and whether to include these requirements in downstream contracts.

ARTICLE BY

Josh M. Leavitt
OF
Much Shelist, P.C.

Only two more weeks until the Retail Law 2014 Conference – October 15-17, 2014, Charlotte, NC

The National Law Review is pleased to bring you information about the upcoming Retail Law Conference:

Retail Law 2014: At the Intersection of Technology and Retail Law
Retail Law 2014: At the Intersection of Technology and Retail Law

Register Today!

When

October 15-17, 2014

Where

Charlotte, NC

The 2014 Retail Law Conference takes place October 15-17 in Charlotte, NC. This year’s program is stronger than ever with relevant, compelling and interactive sessions focused on the legal issues affecting retailers. In partnership with the Retail Litigation Center (RLC), RILA will host legal counsel from leaders in the retail industry for the fifth annual event.

This year’s Retail Law Conference will feature issues at the intersection of technology and law, how the two spaces interact and the impact that they have on retailers. Topics will likely include:

  • Anatomy of a Data Breach: Prevention & Response
  • Privacy: Understanding New Technologies & Data Collection
  • Advertising Practices: Enforcement & Social Media
  • ADA Implications for New Technologies
  • Legal Implications for Future Payment Technologies
  • Policies & Procedures of The “Omnichannel” Age
  • Patent Litigation “Heat Maps”
  • Union Organizing Campaigns
  • Wage & Hour Litigation
  • EEOC Enforcement
  • Foreign Corrupt Practices Act
  • Corporate Governance & Disclosure
  • Election 2014
  • Dueling Views of The U.S. Supreme Court
  • Legal Ethics

The Retail Law Conference is open to executives from retail and consumer goods product manufacturing companies. All others, such as law firms and service providres, must sponsor in order to attend, and can do so by contacting Tripp Taylor at tripp.taylor@rila.org.

Attend the Retail Law 2014 Conference – October 15-17, 2014, Charlotte, North Carolina

The National Law Review is pleased to bring you information about the upcoming Retail Law Conference:

Retail Law 2014: At the Intersection of Technology and Retail Law
Retail Law 2014: At the Intersection of Technology and Retail Law

Register Today!

When

October 15-17, 2014

Where

Charlotte, NC

The 2014 Retail Law Conference takes place October 15-17 in Charlotte, NC. This year’s program is stronger than ever with relevant, compelling and interactive sessions focused on the legal issues affecting retailers. In partnership with the Retail Litigation Center (RLC), RILA will host legal counsel from leaders in the retail industry for the fifth annual event.

This year’s Retail Law Conference will feature issues at the intersection of technology and law, how the two spaces interact and the impact that they have on retailers. Topics will likely include:

  • Anatomy of a Data Breach: Prevention & Response
  • Privacy: Understanding New Technologies & Data Collection
  • Advertising Practices: Enforcement & Social Media
  • ADA Implications for New Technologies
  • Legal Implications for Future Payment Technologies
  • Policies & Procedures of The “Omnichannel” Age
  • Patent Litigation “Heat Maps”
  • Union Organizing Campaigns
  • Wage & Hour Litigation
  • EEOC Enforcement
  • Foreign Corrupt Practices Act
  • Corporate Governance & Disclosure
  • Election 2014
  • Dueling Views of The U.S. Supreme Court
  • Legal Ethics

The Retail Law Conference is open to executives from retail and consumer goods product manufacturing companies. All others, such as law firms and service providres, must sponsor in order to attend, and can do so by contacting Tripp Taylor at tripp.taylor@rila.org.

Microsoft Ordered to Hand Over Data to the U.S. Government

Proskauer Law firm

In April, Microsoft tried to quash a search warrant from law enforcement agents in the United States (U.S.) that asked the technology company to produce the contents of one of its customer’s emails stored on a server located in Dublin, Ireland. The magistrate court denied Microsoft’s challenge, and Microsoft appealed. On July 31st, the software giant presented its case in the Southern District of New York where it was dealt another loss.

U.S. District Judge Loretta Preska, after two hours of oral argument, affirmed the magistrate court’s decision andordered Microsoft to hand over the user data stored in Ireland in accordance with the original warrant. Microsoft argued that the warrant exceeded U.S. jurisdictional reach. However, the court explained that the decision turned on section 442(1)(a) of Restatement (Third) of Foreign Relations. The provision says that a court can permit a U.S. agency “to order a person subject to its jurisdiction to produce documents, objects or other information relevant to an action or investigation, even if the information or the person in possession of the information is outside the United States.” Because Microsoft is located in the U.S. , the information it controlled abroad could be subject to domestic jurisdiction.

Microsoft had the support of large U.S. technology companies, including Apple, AT&T and Verizon. The larger issue for these companies lies in the U.S. government’s power to seize data and content held in the cloud and stored in locations around the world. When a conflict arises between the data sharing laws of the country where the servers are located and U.S. law, it can put these companies in the difficult position to choose to follow one country’s laws over the other.

Microsoft further argued that the ramifications for international policy are substantial. The company argued that compelling production of foreign stored information was an intrusion upon Irish sovereignty. It said that the decision could be interpreted by foreign countries as a green light to make similar invasions into data stored in the U.S. However, Judge Preska dismissed these concerns as diplomatic issues that were incidental and not of the court’s immediate concern.

The order has been stayed pending appeal.

ARTICLE BY

Rohit Dave
 
OF 
Proskauer Rose LLP

Patent Practitioners: Inventions and the Ecosystem of Ideas

Womble Carlyle Law firm

There are some striking parallels between inventions and living organisms, and between technology in a consumer marketplace and an ecosystem.  Insights gained through the comparisons may be beneficial to inventors, companies, consumers and the patent community.  What are the connections?  To review, living organisms exist in an ecosystem, and flourish or perish according to the laws of nature, with survival of the fittest.  Variations among the organisms occur from generation to generation, and are positively or negatively selected over the passage of time and generations, as organisms evolve.  This begets new species, which occupy environmental niches in the ecosystem, and also begets extinction in which species die off.  Ideas, invention and technology exist in a sort of man-made ecosystem, with the consumer marketplace performing a selection process, the whole experiencing a type of guided evolution.

Human beings have ideas.  We brainstorm them, communicate them to each other, and come up with more ideas.  Humans invent, bringing some of these ideas to fruition.  In turn, humans bring some of these ideas to actual products, which are then put up for sale and use in the consumer marketplace.  This is a sort of test in the ecosystem, as to which products will survive.  Consumers then make choices, purchasing the products they like, for various reasons.  Products that are not purchased and used influence manufacturers to stop making those products.  Products that are purchased and used influence manufacturers to continue making those products, and to develop next-generation variations of those products.  New features are added to next-generation products, and some of these new features are popular, and some are not.  The process of selection as to popularity, and sales volume, of products, is made by the consumers.

Next-generation variations of products are rather like offspring with mutations, in the comparison to living organisms in an ecosystem.  A brand-new, never before seen product is rather like a new species that has suddenly emerged.  Entire product types that become obsolete are rather like the dinosaurs that went extinct long ago.  Even the term “dinosaur”, in colloquial usage, is synonymous with outdated technology (and is also sometimes applied to people who still prefer to use such outdated technology).

Ideas, invention, products and technology thus emerge, develop, thrive or perish, beget variations, and evolve over time in the consumer marketplace.  The ever-present interest by, and purchasing power of, consumers drives the selection process that guides the evolution of products and technology.  The ever-present ingenuity of inventors, and desire for companies to succeed in the marketplace, drives the production and mutation (variation) processes that guide the evolution of products and technology.  The history of technology thus parallels the history of living organisms. 

We patent practitioners are privileged to be chroniclers of inventions.  A study through the body of published patent applications and issued patents illuminates the more recent history of invention and key aspects of technology.  A study of the United States Patent Classification System, as developed and used by the United States Patent and Trademark Office, is rather like studying the taxonomy of living organisms.

How might we apply these insights?  Consider a new product without a marketplace.  Is such a product likely to survive?  Perhaps a new marketplace will emerge for the new product, which could then dominate.  How will other products compete with this new product?  How will consumers decide whether to select and use, or deselect the new product?  Consider competition against a product that is well-established in a marketplace.  What new feature or new product could compel consumers to favor it?  If some branch of technology is headed for obsolescence, why is this?  If some new branch of technology is emerging, how might it fare, and why?  And, for the patent practitioners in the audience, how might we best capture the innovative aspects and the inventions in our drawings, descriptions and claims on behalf of the inventors?  This is all part of the art of patenting.

ARTICLE BY

Christopher M. Hall
 
OF 
Womble Carlyle Sandridge & Rice, PLLC

Attend the Retail Law 2014 Conference – October 15-17, 2014, Charlotte, North Carolina

The National Law Review is pleased to bring you information about the upcoming Retail Law Conference:

Retail Law 2014: At the Intersection of Technology and Retail Law
Retail Law 2014: At the Intersection of Technology and Retail Law

Register Today!

When

October 15-17, 2014

Where

Charlotte, NC

The 2014 Retail Law Conference takes place October 15-17 in Charlotte, NC. This year’s program is stronger than ever with relevant, compelling and interactive sessions focused on the legal issues affecting retailers. In partnership with the Retail Litigation Center (RLC), RILA will host legal counsel from leaders in the retail industry for the fifth annual event.

This year’s Retail Law Conference will feature issues at the intersection of technology and law, how the two spaces interact and the impact that they have on retailers. Topics will likely include:

  • Anatomy of a Data Breach: Prevention & Response
  • Privacy: Understanding New Technologies & Data Collection
  • Advertising Practices: Enforcement & Social Media
  • ADA Implications for New Technologies
  • Legal Implications for Future Payment Technologies
  • Policies & Procedures of The “Omnichannel” Age
  • Patent Litigation “Heat Maps”
  • Union Organizing Campaigns
  • Wage & Hour Litigation
  • EEOC Enforcement
  • Foreign Corrupt Practices Act
  • Corporate Governance & Disclosure
  • Election 2014
  • Dueling Views of The U.S. Supreme Court
  • Legal Ethics

The Retail Law Conference is open to executives from retail and consumer goods product manufacturing companies. All others, such as law firms and service providres, must sponsor in order to attend, and can do so by contacting Tripp Taylor at tripp.taylor@rila.org.

Fix These 4 Problems on Your Blog to Maximize Search Engine Optimization

Consultsweb Logo

1.   Make It Useful

Write about something that will provide value to the person reading it. Write with your audience in mind. Keep the writing simple but professional. Remember: Your clients do not have a law degree and if your writing confuses them, they will look for answers elsewhere.

Legal MarketingThink about your client base. Are they middle aged woman, seniors, mostly male, individuals with physical handicaps? Target your posts to their interests, needs and questions. Avoid general articles that could be for anyone. Have the reader in mind when you are writing content and show your expertise. Answer the reader’s unasked questions.

Targeting a specific demographic will help with the social signals as it will probably be shared more and will earn links. Fluff content may get you some rankings for staying relevant and regularly updating your website, but if an actual human goes on your site and does not find value in what you have posted, chances of a return visit are slim—and your ultimate goal should be people returning to your site based on the quality of its content.

2.   Make It Local

Think about your local area and any news or hot topics that you can cover in blog updates. Can you add unique value to these stories? The more your topics and writing speak to your local audience, the more engaged they will be with your site. Write about charities or events you are involved in.

3.   Engage the Audience

How does the page look? Content is not just words. Content can be text, images, videos, charts, graphics and data. Use video and image assets to help tell your story. Visual content engages the user and instills respect for the quality of the information presented on the page.

Also, long blog posts allow you to fit a lot of good information and keywords onto the page, but you will need to divide it in to short sections or into an FAQ format to enable visitors to scan the page for the information they seek.

Use your employees for feedback. Ask them to share your content. If three months have passed and no one has shared anything, it is time to start asking why.

4.   Get the Technical Details Right

Effective title structure is key to generating good organic traffic and a high-quality user experience. Utilizing headings (H1, H2, H3), alt text and description tagging is important for user experience (UX) and for search engines to understand and optimally display your content.

Article By:

Tanner Jones
Of:
Consultwebs.com, Inc.

10 Insights You Want to Gain from Your Social Media Monitoring

The Rainmaker Institute mini logo (1)

If you are participating in social media for your law firm, you should also be monitoring whether or not your time investment is paying dividends.

Social Media Insight

You should be creating Google Alerts or searching on Social Mention for the name of your law firm and the names of your attorneys at least once a month.  Create alerts for the areas of law you practice as well.  The social media blog site Buffer recommends you keep these 10 insights in mind when reviewing your results:

Sentiment — Are mentions generally position, neutral or negative?

Questions — Look for questions people may have that you can provide the answers to in your social media posts or blogs.

Feedback — If you see feedback on Avvo or Yelp or some other site that directly affects your firm, you need to listen and respond appropriately.

Links — keep track of who is retweeting or reposting your content and keep track of who is linking back to you.

Pain points — absorb what people are talking about online that is of concern to them and use that information to inform your future posts.

Content — this is where your alerts for your practice area come in handy.  Use these to mine for topics of interest to your target market.

Trends — recent court decisions or trending news in your practice area should be included in your posts so it is clear you are on top of all the trends.

Media — journalists spend a lot of time online so pay attention to the areas they are covering that might provide you with an opportunity to reach out as a spokesperson on those subjects.

Influencers — are there certain individuals who keep popping up in your feeds?  They may be someone it would be advantageous for you to know as an industry influencer.

Advocates — monitoring is a great way to find and recognize those people who are talking positively about you online.

Article By:

Stephen Fairley
Of:
The Rainmaker Institute

Alice v. CLS Bank: Supreme Court Continues to Grope in Dark for Contours of Abstract Idea Exception

Schwegman Lundberg Woessner

In Alice Corp. v. CLS Bank Int’l (2014), the Supreme Court unanimously affirmed the one-paragraph per curium opinion of the en banc Federal Circuit, which found all claims of U.S. Patent Nos. 5,970,479, 6,912,510, 7,149,720, and 7,725,375 invalid under 35 U.S.C. § 101 for being directed to an abstract idea.

The Court based its affirmance on an application of a two-step process outlined in Mayo Collaborative Services v. Prometheus Labs, 566 U.S. ___ (2012). The first step is the determination of whether the claims are directed to a patent-ineligible concept such as a law of nature, natural phenomenon, or abstract idea. This step implicitly includes the identification of the concept at issue. The second step is to determine if the claims recite “an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.”

The Court avoided providing “the precise contours of the ‘abstract ideas’ category” by relying on the similarity between Alice’s claims for intermediated settlement and Bilski’s claims for hedging. The Court characterized the Bilski claims as “a method of organizing human activity.” Accordingly, while only three justices signed Justice Sotomayor’s concurrence, stating that “any claim that merely describes a method of doing business does not qualify as a ‘process’ under §101,” the unanimous decision does implicate business methods as likely directed to abstract ideas.

At the Federal Circuit, the splintered opinion included a four-judge dissent that argued that the system claims should be patent-eligible even though the method claims were not. The Supreme Court disagreed with this view, finding that if the system claims were treated differently under §101, “an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept” which would “make the determination of patent eligibility depend simply on the draftsman’s art.” To convey patent-eligibility, the claims at issue must be “significantly more than an instruction to apply the abstract idea … using some unspecified, generic computer.”

In my previous post regarding the oral argument before the Supreme Court, I noted that the Court seemed to be looking for reasonable and clear rules regarding the limits of the abstract idea exception to patentable subject matter, but did not get such a rule from any party. Perhaps as a result, this case was decided purely on its similarity to Bilski, and without providing much guidance as to the scope of the exception.

My thanks to Domenico Ippolito for this posting.

© 2014 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.

Article By:

Steven Lundberg
Of:
Schwegman, Lundberg & Woessner, P.A.

Wisconsin’s Password Protection Law Mandates Review of Policies and Practices

Godfrey Kahn

Wisconsin has joined the ranks of other states who have limited the circumstances under which employees or applicants can be required to provide access to his or her personal Internet account. The Social Media Protection Act (2013 Wisconsin Act 208) became effective April 16, 2014. The new law makes it illegal for an employer to request or require an employee or applicant to disclose personal Internet account access information. A parallel prohibition within the Act applies to educational institutions and landlords.

A “personal Internet account” is defined as an Internet-based account that is created and used by an individual exclusively for purposes of personal communications. With the passage of the Act, employers are now prohibited from:

  • Requesting or requiring an employee or applicant, as a condition of employment, to disclose access information to the individual’s personal Internet account or to ask the individual to grant access to or allow observation of that account.
  • Discharging or otherwise discriminating against an employee for exercising his/her right to refuse to disclose personal Internet account access information.
  • Refusing to hire an applicant because the individual did not disclose personal Internet account access information.

While the law primarily protects the privacy of employees and applicants, it also offers employers a limited degree of protection. Specifically, employers can:

  • Request or require an employee to disclose access information to the employer in order for the employer to gain access to or operate an employer-provided (or employer-paid) electronic communications device provided by virtue of the employee’s employment relationship or used for the employer’s business purposes.
  • Discharge or discipline employees for transferring proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.
  • If the employer has reasonable cause, conduct an investigation or require an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account or to conduct an investigation of any other alleged employment-related misconduct, violation of the law or violation of the employer’s work rules. During the investigation, the employer can require the employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
  • Restrict or prohibit an employee’s access to certain Internet sites, while using an employer-provided (or paid for) electronic communications device, or while the employee is using the employer’s network or other resources.
  • View, access or use information about an employee or applicant that can be obtained without access information or that is available in the public domain.
  • Request or require an employee to disclose his or her personal electronic mail address.

A person who has been discharged, expelled, disciplined, or otherwise discriminated against for reasons provided under this law may file a complaint with Wisconsin’s Department of Workforce Development (the “DWD”).

Employers should make sure that their employment policies and practices conform to the requirements of 2013 Wisconsin Act 208. In particular, employers should make sure that employees using employer-provided or paid for electronic communication devices for business purposes do not have any expectation of privacy in such devices or the communications that flow from them.

In addition, employees should be informed that they are prohibited from disclosing proprietary or confidential information or financial data to anyone using personal Internet accounts and only for legitimate business reasons if using an employer-provided account. Lastly, employers should make sure that their employment policies are clear in reserving the right to conduct, and in expecting employees to cooperate in, investigations concerning the unauthorized transfer of proprietary, confidential or financial information.

Article By:

Jon E. Anderson
Of:
Godfrey & Kahn S.C.