The Brief No. 48: Is law disrupting the tech “establishment”?

 
 
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July 31, 2019

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This week, check out the Thomson Reuters Executive Legal Institute’s story on how Hire an Esquire’s Moneyball for legal hiring process came into being. It also highlights how law firms, long thought of as the last to adopt are ahead of the curve and the venture capital industry, in adopting psychometrics and data-driven methods of vetting talent into their hiring process.

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Fining Facebook: The FTC announced a $5B fine against Facebook. The related agreement took another stab at enforcing a previous FTC order regarding user privacy and transparency around user data. Among the major violations of the previous order, the tech giant continued to share data with 3rd parties after users opted out (including facial recognition data and phone numbers collected under the guise of added security). The new agreement mandates independent compliance and auditing of privacy as well as notifying authorities of data compromises. Directors and officers certify privacy compliance risking personal civil and criminal liability for false statements. Critics noted that $5B for years of major privacy violations is a cost of doing business for a company whose revenue was $16B in revenue last quarter and were concerned by the complete immunity officers received for past misdeeds. Many called for a comprehensive privacy framework to regulate tech companies.

Other (not so) Great Walls and Fines: While Facebook may have lost mall money to the FTC, Google lost some lunch money in an $11M class action settlement for age discrimination now pending court approval. The tech giant made promises to address and prevent future age discrimination without acknowledging wrong doing. But tech companies weren’t the only ones being mandated to spend “dos” and “tres commas” this week. The Supreme Court got in on the game, ruling 5-4 along party lines that the Trump administration could divert $2.5B of US Military funds to build a 100-mile wall along the 2,000 mile border between the US and Mexico. A wall along the entire border paid for by the Mexican government was a key campaign promise of POTUS, who had escalated Congressional denial of these funds to a major government shutdown that ended earlier this year. In response Trump has been attempting to divert military budget to his wall under the guise of a national emergency, which had previously been denied by lower courts.

BMueller, BMueller? The often elusive Mueller had his much anticipated day in Congress this past week. During his 7-hour monotone testimony, Mueller stuck to the script of his previously released 400-page report on investigations into Russian interference in the 2016 election. In mostly one-word answers he affirmed that Russia had interfered in the election, that the Trump campaign had welcomed Russian outreach, and lied to cover up their misdeeds. He also affirmed that Trump had not been exonerated and was not charged due to an opinion stating that a sitting president could not be prosecuted until he left office. Mueller warned that Russia and other countries were working on interfering in our elections as we speak. Hours later, Republican lawmakers once again blocked, resolutions focused on strengthening election security for the 2020 election.

One Step Forward, Five Steps Back: William Barr announced that the death penalty will resume with the execution of 5 particularly unsympathetic defendants this December. No federal executions have been performed since 2003 with the process under review; and many are anticipating that these same challenges may prevent the executions from moving ahead as planned. In other criminal justice news, a series on Law360 marked 7 months since the passing of the First Step Act pertaining to individuals in jail for federal crimes with an analysis on the impact thus far. The population of incarcerated women who have not been convicted but cannot make bail remains high as DA offices continue to pursue conspiracy drug charges against women who have knowledge of their partners’ drug dealing. Meanwhile, last Friday thousands of prisoners began the process of release under the first step act provisions for good behavior. This is due to the release of “The Prisoner Assessment Tool Targeting Estimated Risk and Needs” [PATTERN] which assesses risk and related sentence reductions under the bill. Still, with over half of the incarcerated population in the US in the state criminal system, a bigger impact of The First Step act may be that it’s bipartisan support has and may continue to serve as inspiration and permission to State’s tinkering with mandatory minimum laws.

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Hearing a lot about Facebook privacy violations and the related settlement but haven’t had the time to understand what it means to you? We recommend this <5 minute primer from the Wall Street Journal as a Facebook privacy violations and FTC settlement 101.

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