In a nutshell
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' 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.”
- 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,” Kiser 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. Though not strictly required, a technical background is often preferred in the field. It's not unusual for a tech lawyer to have an undergraduate degree in engineering, business or computer science, and many have held previous careers in those industries before making the change to 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.
- 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.”
- The sector used to center around the US regulatory landscape exclusively; however, thanks to an increasingly global market, most technology and telecom 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.”
- A good example of the need for cross-border savvy took place in October 2015 when a ruling by the European Court of Justice that a data-sharing agreement (known as 'Safe harbor') between the US and EU was invalid left US tech firms (and their lawyers) scrambling. US tech giants like Facebook, Google and Amazon relied on this agreement to ferry users' personal data back and forth across the Atlantic. In February 2016, the EU and US reached agreement on a new safe harbor provision that should remedy the Europeans' concerns, but with the deal yet to be approved by EU member states, US tech firms are likely to remain jumpy for some time yet.
- And it's not just our friends across the pond that are worried about privacy. Controversy is growing over government surveillance, sparked by Edward Snowden's revelations that the National Security Agency (NSA) is keeping records of citizens' phone calls. Apple recently got into a courtroom brawl with the FBI, which demanded that it help them access an iPhone formerly belonging to San Bernardino shooter Syed Rizwan Farook.
- Tech companies and privacy advocates worried that granting the FBI's request would give the government a permanent backdoor into everyone's phones. Had Apple co-operated with the government, this might also have lead to pressure from more repressive governments for Apple to help them spy on their citizens. The FBI dropped the case after figuring out how to access the phone on their own. The courtroom struggle's not over, though: now Apple wants the FBI to tell them how they hacked the phone, so they can beef up their security.
- Yet companies are increasingly anxious about their own vulnerability to cyber intrusions. The Sony hack of 2014 did more than provide The Interview with free publicity. Sony wound up paying out over $5.5 million to a group of former employees whose data had been left exposed by the attack. A number of firms, including Crowell & Moring and Patterson Belknap have been beefing up their cybersecurity offerings.
- From delivering pizza to filming to helping to find lost mountaineers, the potential civilian and commercial uses of unmanned aerial vehicles (more commonly, and awesomely, 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.
- Job prospects for tech lawyers are especially robust, Kiser tells us. “I think we can safely predict that the demand to share information in a variety of formats will continue to grow!” Indeed, as Martin points out, “the landscape in the technology sector is constantly evolving, so there's a high demand for smart, hard-working lawyers to get involved. Technology is an attractive sector for new lawyers because there's always something over the horizon. This will be the case for the foreseeable future.”