Ian Ballon, shareholder, Greenberg TraurigPhoto: Patricia Kutza
2014 may be the year that in-house counsel wishes what happens in America stays in America. Greenberg Traurig Internet law attorney Ian Fallon shared this perception as well as many others at his seminar on digital media and litigation strategy, held at Greenberg’s San Francisco office on January 28, 2014. He told a sold-out audience that the Internet, mobile and cloud-related litigation and legislation enacted in 2013 offers lawyers a mixed bag of challenges and opportunities.
Here are just a few highlights and takeaways from Fallon’s wide-ranging list of predictions.
Highlight: In-house counsel will continue to feel the trickle-down affect of Edward Snowden’s NSA leaks.
Takeaway: U.S. companies are starting to feel the blowback from foreign governments’ displeasure at NSA’s intrusive surveillance. “Companies are nervous about sending data to the States” says Ballon, citing Boeing’s recent failure to secure a Brazilian contract for its F/A-18 fighter jets, largely considered to be a done deal prior to revelations that NSA had monitored the personal communications of Brazil’s president and other goverment officials.
Highlight: Huge expansion of domain-name systems will put downward pressure on domain prices.
Takeaway: 2014 is the launch date for a barrage of top-level domain applications submitted to ICANN in 2013. Expect to see an explosion of new addresses, triggering a host of implications, Ballon says. “For brand owners there will be sunrise periods and the opportunity to object in advance, with all new registrars bound by the Uniform Dispute Resolution Procedure.” This crush of new domain names will also impact the value of individual names. In 2013, such top sellers like IG.com ($4.7M) and KK.com ($2.4M) reaped big bucks. But on the whole, except for certain key names, domain prices are trending lower and likely to continue in 2014.
Highlight: Privacy, text and spam control trolling litigators on the rise.
Takeaway: While there is much talk about patent trolls, class-action lawyers are also going after privacy, text and spam control, trying to find ‘gotcha’ cases that they bring largely to settle or get statutory damages, where there’s not any injury or harm. Defending these claims represents an increasing cost for businesses in the digital economy, he says. Ballon cautions clients: “There are cases that some lawyers are settling and that I personally feel they should have fought. You can win them. And if you settle for a small amount of money, you may still be sued in the next round when the next lawsuit-du-jour comes down. You don’t want to be seen as the company that will roll over easily. These type of companies tend to be sued over and over again.”
Highlight: New California laws offer children more digital forgiveness and leverage.
Takeaway: 2014 ushers in new California statutes that address revenge porn and online tracking policy disclosures. Garnering much publicity is its new “Online Eraser” law (takes effect in 2015) that requires websites to honor the requests of minors (under the age 18) who want to recant their user-generated content, such as social media postings. This is an interesting notion, says Ballon, because under California law minors are incompetent to enter into contracts yet its legislators created a law that assumes that minors are competent enough to enter into relationships with websites. “It really reflects the fact that not only companies but legislatures are dealing with the issue that so much of e-commerce is now engaged by people that are over the age of twelve (and therefore not subject to COPPA regulation) yet under the age of eighteen, making them still minors.”
Ballon recently released 2013 updates to the second edition of his “E-Commerce & Internet Law: Treatise with Forms,” which covers business-to-business and business-to-customer issues, regulatory issues and emerging trends.
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