Technology

In a nutshell

TechnologyTechnology 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' technology sector chair 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 2018

  • The rapid rise of cloud computing has made it a “very hot topic” in the sector, Baker Botts' John Martin tells us. “It's at an active and evolving stage, which lends itself to many interesting issues in terms of stability of service and allocation of risk. Think about your mobile device and all the data it contains – that's now being stored in the cloud rather than the device itself, which means you as a consumer will require on-demand services and updated info from the technology provider.” On top of that, data protection itself has become an area of huge expansion for many law firms. For example, if a New York-based official in a multinational company accesses HR data for staff based in Frankfurt, they may be in breach of the Data Protection regulations as EU regulations are much stricter than those in the US.
  • Cybersecurity is therefore a concern of both law firms and their clients. Having large troves of confidential customer/client information stolen despite promising to keep it safe is highly damaging. On 3 January it emerged that most microprocessors were vulnerable to two types of attack named 'Meltdown' and 'Spectre.' While moves have been made to address the issues, companies such as Intel have already been hit by by at least three class-action lawsuits over these vulnerabilities. Companies who employ cloud technology are among those most at risk.
  • The sector used to center around the US regulatory landscape exclusively; however, thanks to an increasingly global market, most technology and telecoms companies have expanded their business internationally, “which in turn requires us to broaden our capability as legal advisers by collaborating with foreign counsel to apply our US-based knowledge transnationally.”
  • As content-sharing technology becomes increasingly dominant, companies need to be as inventive as possible to protect their intellectual property and remain profitable: “As we have more and more devices we change how people view content and make money off content and there are winners and losers,” says Lori Lesser.
  • Competition, influence and regulation concerns have been raised over tech platforms such as Google, Facebook and Amazon. By some estimates, Amazon captures over 40% of online shopping in America; in some countries Google processes more that 90% of web searches, while Facebook boasts the world's largest pool of personal data from its two billion monthly users.
  • Content on social media has also had seismic affects on the real world. Recent political decisions have arguably been affected and badly predicted by the patterns in which people share content, as well as the perceived rise in 'fake news' the use of these platforms by the media as well as the provider's responsibility to keep their service 'clean' will undoubtedly be hot topics as they continue to expand. In January, Facebook announced that it is altering its newsfeed algorithm so that users will see less content from sensation-seeking publishers and websites.
  • From delivering pizza, to filming, to helping to find lost mountaineers, the potential civilian and commercial uses of unmanned aerial vehicles (more commonly known as drones) have proliferated. Clients are increasingly keen to discover how best to utilize these flying machines, and that means navigating a host of legal and regulatory issues. With all these unmanned aircraft whizzing about the sky, safety is a prime concern, but considering that drones were developed for intelligence purposes, so is privacy. Law firms have been setting up practice groups to help their clients navigate this spaghetti-esque tangle of regulations.
  • 3D printers have also created quite a stir, particularly in the IP and product liability worlds. All that is needed to 3D-print something is an electronic schematic and a 3D printer, and the technology is already capable of producing prosthetics, aircraft parts and even rudimentary firearms. 3D printers are becoming more affordable and accessible, which raises the specter of their being used to produce unauthorized copies of patented inventions.
  • The continuing development of self-driving cars will bring with it numerous ethical issues concerning with whom the culpability would lie in the case of an accident and whether the technology will protect the itself, the operator or other road users.
  • With a main focus on making our lives easier, technology has the power to simplify outsourcing deals. “Large outsourcing deals usually take nine months with several people working on it. Cloud deals are a lot less work and a lot quicker; they are more of a commodity. The power of that technology is able to replace the larger service agreements,” says Michael Steinig. “You don't need a 20-page establishment document, just click a button. The volume of the deal increases, but not so much the complexity.”
  • An exponential increase in the availability of digital data and computing power alongside the development of more sophisticated algorithms is continuing to push the boundaries of AI. Many warn of the dangers of AI's presence in the workplace, warfare and its legal ramifications. Others also highlight the problem of companies such as Alphabet, Google and Microsoft monopolizing AI talent and expertise. By one estimate, companies globally have completed around $21.3 billion in M&A related to AI last year – 26 times more than in 2015.
  • Law firms are already beginning to take advantage of the practical uses available for AI, from using computers to tackle grunt work such as document analysis to employing machine learning to predict outcomes of cases based on past analysis, previous court decisions and human reactions.
  • New laws and policies are being invented as space travel becomes cheaper and commercially viable. In the US, The Space Resource Exploration and Utilization Act of 2015 for example allowed the president to 'promote the right of US commercial entities to explore outer space and utilize space resources, in accordance with such obligations, free from harmful interference, and to transfer and sell such resources.' Similarly, Luxembourg's deputy prime minister, Etienne Schneider, recently announced that “Luxembourg is the first adopter in Europe of a legal and regulatory framework recognizing that space resources are capable of being owned by private companies.”
  • With 2,569 deals struck, the technology sector hit its highest annual deal count since 2001, as investors looked toward the latest developments in the industry such as autonomous vehicles and blockchain technology.

 

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