Technology

In a nutshell

Technology

Technology lawyers are experts on the rapidly changing laws and regulations surrounding complex communication technologies. Their classification as an attorney can vary – some fall under the IP umbrella, while others work within corporate or trial departments – but tech lawyers are united in their specialized industry expertise. Many narrow their focus to the telecommunications field, which deals with media such as telephones, cable, radio and the internet; others focus on information technology – which involves software, e-commerce and data privacy issues – or outsourcing, which oversees the provision of third-party services.

Whatever their specialty, a tech lawyer's primary role is to help clients abide by the complicated policies that pertain to certain technologies. In the US, such policies are by and large enforced by the Federal Communications Commission (FCC). Typical matters range from working on behalf of the government to promote fair market competition, to overseeing disputes between telecom corporations, to advising merging companies on contract negotiations.

Rapid advances in technology mean each generation of tech lawyers faces a shifting workload – attorneys today regularly contend with smartphone and internet-related matters, while their 20th century counterparts mainly dealt with telephone line technology, and attorneys in the 19th century grappled with the telegraph and other disruptive innovations.

What lawyers do

  • Advise companies on commercial transactions, including mergers, acquisitions, investments and the purchase of services, particularly those with antitrust issues.
  • Negotiate contract terms for companies acquiring new technologies or enhancing existing ones.
  • Handle diligence and draft transaction documents.
  • Assist with dispute resolution, often between telecom companies. Many disputes are cross-border and often fall under the IP bracket – for example, patent infringement cases.
  • Represent clients at trial, usually in the State Court.
  • Counsel communications companies, such as cable or internet providers, on their regulatory obligations.
  • Help companies learn how to protect their IT and web-based assets and defend themselves against cybersquatting and other data protection issues. 
  • Represent clients seeking the provision of IT services through a third party.
  • Assist the government to promote competition between telecom and other technology companies, and ensure services don't interfere with national security. 

Realities of the job

  • Technology transactions often require attorneys to work as part of a multidisciplinary team that incorporates lawyers from multiple fields, including IP, tax and corporate. “My role is like that of a quarterback,” Baker Botts' managing partner John Martin tells us. “I coordinate lawyers from other practice areas and disciplines to develop and implement an integrated solution and to address the client's many issues. It's a multifaceted approach.”
  • Technology is the perfect field for those wanting to experience ingenuity. "It is energizing and exciting to be around creative and inventive people," says Lori Lesser of Simpson Thatcher & Bartlett"These people are changing the world, saving the world and affecting how we work, how we get to work and run our lives online. It's a real privilege to work with these people."
  • The field is constantly changing thanks to developments in technology, which means “every deal is different and every transaction has its own challenges,” Martin says. “There's no cookie-cutter matter out there; each deal is unique, which makes this a challenging and intellectually stimulating field. Nothing is rote or routine, and the learning curve never plateaus.” This shifting workload also means “practitioners should be comfortable with ambiguity,” Cherie Kiser of Cahill Gordon & Reindel advises. “The law surrounding communications issues is constantly changing because the technology is dynamic. Developments are happening in real time in this sector, and lawyers are called upon by their clients to help shape and influence those laws. One should be comfortable with that lack of stability.”
  • Because technology lawyers are specialists, they typically “handle the majority of matters themselves rather than delegating projects or issues completely," Kiser says. This means even top-level partners are obliged to contend with grunt work like diligence at times. “Fortunately, matters are interesting!” she adds. Technology and telecom matters have “a language of their own that's highly technical and full of acronyms,” Kiser warns. As such, attaining a good grasp of the relevant jargon – accessible through industry trade journals and magazines – is a crucial aspect of the job.
  • Although a strong interest in technology is essential, a related degree is not necessarily a prerequisite. "You don't need to have a technology background from university," says Lesser. "You need to have the self confidence to know that you can be educated."
  • The area is a very good place for a lawyer who wants to hit the ground running. “It is an emerging field; it's very easy to make a name for yourself early,” says Lesser. “It's not a field with people with decades of expertise. The law is brand new and every time there is a law on trade secrets, patent law enforcement or EU law, everyone starts on day one. If you're eager to learn, inhale as much knowledge as you can you will quickly be as experienced as someone older.” Michael Steinig of Eversheds Sutherland backs this up: “Associates get more client interaction. They are negotiating what needs to go into documents very early in their career. One pro is the learning curve the associate goes on to advance.”
  • When working on the transactional side, building good client relations is at least as important as the outcomes of certain cases. “You can do a good job for your client and they say thank you, but you don't win,” says Steinig. “You don't have that high and low that you have in some other areas of law.”
  • A job as a tech lawyer isn't limited to a BigLaw firm, though an increasing number of matters are now handled by teams at private firms, thanks to the manpower and other resources such establishments have at their disposal. Options outside of BigLaw include serving as legal counsel for the FCC and going in-house with a telecom firm.

 

Current issues

June 2021

  • The Covid-19 pandemic led to a stark increase in remote working and growing reliance on the technology required to do this. As such, privacy technology and ways to protect businesses from data security threats have been a huge focus. Courts also had to adapt to these changes, including large numbers of trials going virtual and a rise in e-filings, electronic signings and conferences via video.
  • This also links to the growth of Internet of Things (IoT) devices, like smart homes and wearable tech, increasing the number of devices that criminals and hackers can target. For example, it was reported that President Biden might not have been allowed to bring his Peloton bike with him to the White House because of potential security threats linked to the device’s camera and microphone.
  • In March 2020, Amnesty International published a comment piece on its website that highlighted the US government’s role in “adopting robust regulatory measures and accountability mechanisms to ensure that AI advances rather than undermines human rights.” Key areas of concern for Amnesty were the development and use of Autonomous Weapons Systems (AWS); the protection of workers’ rights in light of AI advances that have automated aspects of jobs; and the use of AI and technology in the areas of policing and criminal justice.
  • As AI becomes increasingly prevalent in our society, questions of biases will continue to be posed. One argument has been made against the potential use by police forces of tools which could be discriminatory towards people of historically marginalized backgrounds. It’s important to remember that seemingly objective technology can take on the subjective perspectives of its creators – and that can lead to legal action.
  • With the advent of autonomous vehicles becoming a familiar site on our roads, the US will be developing and refining regulations that will determine their use. You can read up on what Dykema’s autonomous vehicle experts have to say about this exciting and complex development here. One of the benefits of using this technology became apparent in April 2020, when The Mayo Clinic in Florida began using autonomous vehicles to transport Covid-19 patients to testing labs to limit their contact with others.
  • The carbon footprint of tech companies has drawn more attention in recent years, meaning these companies will need to ensure they keep an eye on the environmental impact of their activities. One notable example is cryptocurrency: mining for Bitcoin and other currencies requires huge amounts of power, which is not always drawn from clean or renewable energy sources.
  • In late 2019, the Federal Aviation Administration proposed a new rule that called for unmanned aircraft systems – such as drones – to be remotely identified while in flight in US airspace (the Remote ID rule, in other words). This rule was finalized in January 2021, meaning most drones must have built-in ID capability. Introducing this should enable greater security via the tracking and identification of unauthorized drones but will also help to pave the way for the widespread use of commercial drones – something that companies like Amazon and Uber are keen to use to speed up those delivery times.