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IT News February 2020 Section of the State of Michigan Information Technology Letter from the 2019-2020 Chair Law Section Council 2019-2020 Michael Gallo

Dear State Bar of Michigan IT Law Section As a reminder, the 13th Annual IT Law Seminar New 2019–2020 Officers Members: will be held September 10, 2020, at the Inn at St. Chair: Michael Vincent Gallo Chair-Elect: Christopher J. Falkowski John’s in Plymouth, Michigan, and the Seminar Secretary: Michael James The Information Technology Law Section co- Committee is planning an exciting slate of topics McCandlish hosted an event with the and presenters! Treasurer: Karl A. Hochkammer Section at Wayne State University on Wednesday, November 20, 2019 titled “Foreign A strategic plan effort for the Section, which was Council Members Protection and Conflicting U.S. initiated by the 2018/2019 Council and the Immigration Practice: A Migraine for Attorneys”. Section Chair, Joellen Shortley, continues to Term Ending 2020 Robert Rothman coordinated the IT Law Section’s move forward. George Kimball, Michael Gallo  Keith Cheresko participation in this event, which had over 30 and this year’s volunteers are developing a  Michael James McCandlish very engaged attendees. concise set of goals that support the good works  Adam S. Rubin currently being done, and push forward with On January 16, 2020 the Privacy Law Committee some new initiatives.  Joellen Shortley met and had a lively discussion regarding “Data  Jeanne M. Whalen Subject Access Requests”, which looked at some A Bylaws Committee is working to update the

of the legal and practical issues that arise out of Section’s Bylaws to reflect best practices within Term Ending 2021 obligations to provide data subjects with access the Section and State Bar of Michigan. The  Onika C. Celestine to their data. To attend future Privacy Law Nominating Committee will be determining the  Kellie Kern DeMeritt meetings sponsored by the Committee, which number of Council seats that need to be filled for  Clifford “Kip” James Lanning, III are currently targeted for Thursdays in March, a three-year term beginning September 2020,  Kathryn L. Ossian June, September and December of 2020, please and will identify potential candidates for those  Elizabeth A. Storm contact one of the Committee Co-Chairs: Robert positions. Rothman, [email protected] or Keith Term Ending 2022 Cheresko, [email protected]. Last, but not least, Chris Falkowski, Keith  Christopher J. Falkowski Cheresko and Liz Storm are taking the lead in a  Michael Vincent Gallo The first Section of 2020 was held on January 9 special effort! The IT Law Section has agreed to  Karl A. Hochkammer in Birmingham, and hosted by Adam Rubin and sponsor an Information Technology Law theme  Katherine Dorr Kelley Shift Digital. Members who showed an interest in issue of the Michigan Bar Journal that is targeted  George Kimball volunteering for various Section efforts were for publication in May 2022, and will likely in-  Daniel M. Ungar invited to participate in the meeting, which clude three or four articles that will be a ‘must discussed various past and upcoming events. If read’ for anyone interested in IT law. Immediate Past Chair you are interested in attending a future Council Joellen Shortley meeting, or are considering volunteering to help In other words, there are a number of efforts with Section events or efforts, please contact me going on within the Section which you are invited Commissioner Liaison directly at [email protected]. The next to attend, volunteer for and support. Kara Rachel Hart-Negrich Council meeting, on April 2, 2020 will be limited to 30 minutes because right afterwards will be a Thank you, In This Issue special networking and panel presentation event! Michael Gallo • Letter from the 2019–2020 2019-2020 Chair, IT Law Section Section Chair On April 2, 2020, the IT Law Section will sponsor [email protected] • IT Section Annual “A Legal Look at New Technologies: Artificial 313-421-9544 Conference Committee Intelligence, Autonomous Vehicles and Robotic Update ( Inn at St. John’s Process Automation”, which will be moderated September 10, 2020) by Kathy Ossian, of Ossian Law P.C. Please see • Privacy Committee the ‘Save the Date’ notice below for more • Upcoming Section Events information. • Section Member Articles

Information Technology Section State Bar of Michigan February 2020 IT Law Section News  About the IT Law Section, Save The Date!

About the IT Law Section Find Us! Information technology (IT) law is an exciting cross-disciplinary practice area that is growing in importance as forms of electronic communications and, advanced technologies On the State Bar of Michigan continue expanding at an aggressive pace in the U.S. and abroad. An IT is IT Law Section Website confronted with legal issues from a wide variety of traditional legal practice areas, http://connect.michbar.org/itlaw/ council including but not limited to , intellectual , , employment, first amendment, healthcare, tax, privacy/data protection and . The On Twitter application of long-standing as well as new legal principles to the area of information https://twitter.com/sbmitlaw technology makes the practice of IT law both very challenging and very rewarding. The IT Law Section strives to assist its members in staying up to date and informed in a legal On LinkedIn (private group) https://www.linkedin.com/ environment that is sometimes volatile and always in flux. groups/2993995

On Facebook Save the Date https://www.facebook.com/ MichiganITLawyers Thursday, April 2, 2020 IT Section Meeting 5:30-6:00 p.m. Membership Networking Reception with Appetizers and Beverages Annual Dues: $25. 6:00-6:30 p.m. Membership benefits Panel Presentation 6:30- 7:30 p.m. include: Q&A 7:30-8:00 p.m.

• IT Law Newsletter A Legal Look @ New Tech: • Quarterly Privacy Committee updates by Autonomous Vehicles/Use of Artificial Intelligence and Privacy Associates, LLC. Robotic Process Automation for Healthcare • Online group discussions Professionals and on Facebook and LinkedIn, Connect with us Online: Thomas M. Cooley Law School connect.michbar.org/itlaw/ 2630 Featherstone Rd., Auburn Hills, MI 48236

• Regular Section and Panel Speakers: Council Meetings: up- coming in 2020 - April 2, 2020, July 9, 2020 and Bill Jobes, Jobes Technology Solutions September 10, 2020 Specific applications in legal and healthcare fields and Basics of AI and RPA

Emily Frascaroli, Ford Motor Company Join the Section! Autonomous vehicles and liability issues If you are interested in joining, we will have a table for registration at our Jennifer Dukarski, Butzel Long April 2 meeting. Please The Ethics of AI and Machine Learning contact: Kellie DeMeritt, New Member Committee Moderator: Kathy Ossian, Ossian Law, P.C. [email protected] Contact Michael Gallo [email protected] RSVP at https://www.eventbrite.com/o/sbm-it-lawsection-18144784578

Information Technology Section State Bar of Michigan February 2020 IT Law Section News  Privacy Committee  Articles

Privacy Committee If you are interested in providing an update or article to spotlight for Members and are able to contribute, please send Keith Cheresko and Bob Rothman an email to [email protected] (Privacy Associates International LLC principals) co-chair the Privacy Law Michigan’s New Rules Provide for Second, the court Committee, which meets quarterly for and Planning of Electronic Dis- is now permitted by discussions on hot topics in privacy covery Issues MCR 2.411(H) to appoint a discovery mediator. and data protection. Further, in complex ESI cases, that mediator Upcoming 2020 Privacy Committee By now, most Michigan attorneys have learned can be an expert on ESI issues. Such media- Meetings: and studied the comprehensive rule changes tors had been sparingly used in Michigan cas- Thursdays, 5:30-7:00PM EST made to Michigan’s discovery rules, which took es involving mass production of ESI, but their March 19, June 18, September 17, effect on January 1, 2020. The headline has December 10 use was an open question since the procedure been that the new rules adopt many impactful was not clearly sanctioned by the rules. In Participation in the Privacy Law changes to Michigan’s discovery procedures. cases where the mediator is an expert, the new Committee is open to Section members For instance, interrogatories are limited to rule advises that the parties consider whether without additional charge. It is twenty, and in nearly all cases litigants must to expand the available communications that necessary to request to participate in exchange initial disclosures like they would in a this group to be added to the invite he or she may have with the court. Otherwise, federal court. list. You may sign-up when you join mediation details may be confidential and infor- the Section or at any time thereafter mation withheld from the court under MCR The rule changes also revise all the existing as long as remain a section member in 2.412(C). good standing. The committee provisions on electronically stored information, strongly encourages in-person meeting which are now abbreviated as “ESI” throughout These rules present an opportunity for litigators participation; however, on those the court rules. In most of the revised provi- to resolve discovery disputes by getting ahead occasion when you may not be able to sions, the law is not new, but the language is attend in person a call-in option may of them, and clarify what can do to pro- be available upon your prior request revised. For instance, the new rules provide vide a means for a resolution. during meeting registration. To join, the following: (1) a duty to identify ESI in a par- contact Keith at ty’s initial disclosures (MCR 2.302(A)(1)(d)); (2) Eric Kociba is both a business litigator and [email protected]. an explicit statement that ESI is the same as advisor to technology-oriented companies. He other when it comes to the duty to is a sole practitioner for the Law Offices of Eric Examples of Previous Topics M. Kociba, PLLC and of to Rossman preserve (MCR 2.302(B)(5)); and (3) a revised  Discussion of New York’s financial Saxe, PC. section on sanctions for failing to preserve ESI, services security — which still requires prejudice before sanctions What it means to those subject to can issue, and prevents the harshest sanctions New York’s unless a party intentionally deprived the other  Updates on California Consumer Upcoming Council Section Privacy Protection Act (CCPA) as of material information. (MCR 2.313(D)). well as privacy Meetings proposals being offered by Intel However, the rules also provide two “new” pro- and others in Washington cedures for practitioners who encounter ESI. First, new MCR 2.401(J)(1) permits a party to *Thursday, April 2, 2020  Insurance Security and Privacy legislation move for an ESI conference and ESI Discovery Plan. This ESI Conference is intended to dis- IT Section Meeting 5:30-6:00 p.m.  EU GDPR cuss advance issues with production, such as Networking 6:00-6:30 p.m.  Blockchain—What it is and how it the identification of types of ESI, the timeframe Panel Presentation 6:30- 7:30 p.m. works for production, a preservation plan, format, Q&A 7:30-8:00 p.m. Also see the January 2018 IT News for metadata, privilege log format, and allocation the article on The California Consumer Moderator: Kathy Ossian of expenses. Note that if a conference is held, Privacy Act of 2018 (CCPA). The law Ossian Law, P.C. the rule requires, at MCR 2.401(J)(3), that the was passed in June and amended in late September, and more changes are person attending for each party be “sufficiently Thomas M. Cooley Law School expected before the provisions versed” to “competently address ESI issues.” become operative on July 1, 2020. 2630 Featherstone Rd., The Rule then specifies that the Plaintiff’s attor- Auburn Hills, MI 48236 NEXT PRIVACY MEETING: ney is responsible for submitting an ESI Dis- covery Plan to the court within 14 days after Thursday, March 18 , 2020 – If you plan to attend, contact the conference. This ESI Discovery Plan would Michael Gallo, [email protected] Visit michbar.org/itlaw for provide a background on the case and an out- current updates and find us on line of decisions made. Facebook! Information Technology Section State Bar of Michigan February 2020 IT Law Section News  Section Updates

IT Section Updates We would like to hear from you!

The Information Technology Section met in 2018—2019 to discuss changes to the Artificial Intelligence, Bylaws, a Section Name Change, and address the Section Strategic Plan. Questions were sent to Members. If you did not receive the email and, would like to provide and Licensing comments, please submit them to Michael Gallo [email protected] or use this link to answer the survey questions https://www.surveymonkey.com/r/XBGHJZP Terms, . We will be presenting the changes at our Annual Meeting September 10, 2020. Updates on Privacy and Technology Laws THE INFORMATION TECHNOLOGY LAW SECTION CO-HOST PROGRAM WITH INTERNATIONAL LAW SECTION

Thanks Robert Rothman U.S. attorneys and practitioners of Save the date! (Privacy Associates International LLC), are frequently the IT Law Section and the International requested to produce detailed Law Section for co-sponsoring the event at documentation and evidence to Wayne State University Law School support applications and petitions of On Thursday, Spencer M. Partrich Auditorium. their foreign clients seeking U.S. September 10, 2020, This past November, Moderator Betina immigration benefits. The European plan to attend Union (including the U.K.), South the 13th Annual Schlossberg, Principal at Schlossberg Legal, LLC discussed Foreign Privacy American nations and many other Information Technology countries have adopted strict laws and Law Seminar, Protection Laws and Conflicting U.S. Immigration Practice: A Migraine for rules preventing disclosure of wide at Attorneys with Marie Galindo, Legal swaths of personal information, The Inn at St. John's Counsel - and Latin America- employment records and family in Delphi Technologies, Keith Cheresko, documentation. This may run Plymouth, Michigan. Principal, Privacy Associates Interna- directly afoul of the U.S. government tional LLC, Robert Rothman, Principal, requests. Privacy Associates International LLC,

The seminar includes an and Adjunct Professor of Privacy and Pictured Below: Panelists at Wayne State Law School all-day educational event International Law at WMU Thomas M. discussing Immigration and Privacy Laws. This event Cooley Law School and Andreas was co-hosted by the Information Technology Section of informative topics, and the International Law Section for the State Bar of the IT Law Section's Seidel, Legal Counsel, Robert Bosch Michigan (November 2019). Annual Section Meeting, LLC.

lunch and a complimentary cocktail reception.

When available, additional information will be provided on the IT Law Section's calendar

http:// connect.michbar.org/ itlaw/home

See you there!

Information Technology Section State Bar of Michigan February 2020 How The California Consumer Privacy Act Could Affect Your Business Authored by Charumati Ganesh, Attorney, Varnum Attorneys at Law https://www.varnumlaw.com The California Consumer Privacy Act (CCPA) went into effect on What is Considered to be “Personal Information”? January 1, 2020. The CCPA affects all businesses collecting or Personal information includes any information relating to or capa- storing data about California residents (an estimated 500,000 ble of being associated with a particular consumer or household. businesses nationwide). It imposes significant compliance obliga- This includes email addresses, IP addresses, mailing addresses tions upon the businesses within its scope and carries large pen- and even just consumer names. There are some limited excep- alties for those who fail to comply. tions to this definition.

The California Attorney General released draft for the What Actions are Considered to be the “Collection” of Per- law on October 10, 2019. The comment period for the regulations sonal Information? was open until December 6, 2019. In that time, hundreds of Collection is defined as “buying, renting, gathering, obtaining, businesses weighed in on the regulations and expressed receiving or accessing” the personal information of a consumer by concerns about the law’s fast-approaching enforcement timeline any means. This includes receiving information either actively or and its many ambiguities and complexities. Final rules are not passively and observing the consumer’s behavior. expected until spring of 2020, and the Attorney General’s office will be able to enforce the rules starting July 1, 2020. What Does the CCPA Require Businesses to Do? The CCPA imposes extensive compliance obligations upon busi- Which Entities are Subject to the CCPA? nesses within its scope. It requires workforce training, specific The CCPA applies to any for-profit entity that: disclosures in privacy policies and mechanisms for handling con- i. i. does business in California; sumer requests to access or delete their information, among other ii. collects personal information about California residents (or things. has such information collected on its behalf); iii. determines on its own or jointly with others the purpose and Varnum’s data privacy and cybersecurity attorneys have already means of processing that information; and begun assisting domestic and international clients in a number of iv. meets one or more of the following criteria: industries with their CCPA compliance obligations. If you think • has annual gross revenues in excess of $25 million; you may fall within the scope of the CCPA and wish to discuss • annually buys, receives for a commercial purpose, sells this further, please contact Varnum attorneys Charumati Ganesh, or CIPP/US, [email protected] or Jeffrey Stefan, CIPP/ • shares the personal information of 50,000 or more con- US, [email protected]. sumers, households or devices; or • derives 50 percent or more of its annual revenue from selling consumers’ personal information. Article Submissions If you are interested in The Annual Meeting at the Inn of St. John (Plymouth, Michigan) submitting an article for an September 10, 2020 upcoming newsletter or for the May 2022 State Bar of Michigan Information Registration information will be available after March 1, 2020. Technology Feature, please send submissions to: The Annual Meeting will elect new Council Members and Daniel Ungar [email protected] address updates to the Strategic Plan and upcoming changes to the Bylaws.

The Program in Law and Technology (PILT) at the University of Dayton School of Law will celebrate its 30th Anniversary in 2020! This year’s seminar will be held on Friday, June 12, 2020 at the University of Dayton School of Law, Keller Hall. As of January 2020, confirmed speakers and topics include:

The unconstitutionality for double protection of IP under design patent and trade dress - Ken Germain, Wood, Herron & Evans, Cincinnati International privacy laws - Rob Carolina, Origin, Ltd, London, UK

More information will be shared when available, or you can monitor the University of Dayton School of Law ‘Events’ website, https://udayton.edu/law/events/index.php, which will updated with more information at a future date. A Legal Look @ New Tech: Autonomous Vehicles/Use of Artificial Intelligence and Robotic Process Automation for Healthcare Professionals and Lawyers

Moderator: Kathy Ossian, Ossian Law, P.C.

Thursday, April 2, 2020

Thomas M. Cooley Law School Information Technology Section Meeting 2630 Featherstone Rd. 5:30–6:30 p.m. Auburn Hills, MI 48236 Networking Reception w/ Appetizers 6:00–6:30 p.m. Panel Presentation 6:30–7:30 p.m. Q&A 7:30–8:00 p.m.

More information at EMILY FRASCAROLI http://connect.michbar.org/itlaw/home

RSVP at https://www.eventbrite.com/o/sbm-it-law- Emily Frascaroli is Managing section-18144784578 Counsel of the Product Litigation Group for Ford Motor Company, including the Product Litigation, Asbestos, and Discovery teams. She also advises globally on automotive safety, regulatory, and issues, including a focus on autonomous vehicles and mobility. She has extensive experience handling complex product litigation cases, regulatory matters with NHTSA and other governmental JENNIFER DUKARSKI entities, and product defect investigations. She is also co-chair of the Legal and Insurance Working Group of MCity at the University of Michigan, and a lecturer at the Jennifer Dukarski is a Shareholder in BILL JOBES University of Michigan Law School Butzel Long’s Ann Arbor office where she teaches a class about the where she leads the firm’s legal issues involved with Connected and Autonomous autonomous vehicles. In 2017, she Mobility Team. A “recovering Bill Jobes is the CEO and Founder was appointed by Governor Rick engineer,” Jennifer uses her of Jobes Technology Solutions, a Snyder to the Michigan Council on experience to understand complex technology firm that provides I Future Mobility, and in 2019 she design and development cycles and ntelligent, automated and secure was appointed by Governor John issues in emerging technology. She for organizations looking Kasich to the DriveOhio Expert focuses her practice on the legal to enhance legacy applications and Advisory Board. She earned her JD issues arising from autonomous, create interoperability between its from Wayne State University and connected, electrified and shared partners. Before devoting all his was an editor of the Wayne Law mobility (ACES); intellectual time and resources into growing Review. She received her BS in property; Industry 4.0; digital Jobes Tech, Bill served in many aerospace engineering from the media; biometrics; the of roles from CTO, CIO, Program University of Southern California Things (IoT); privacy; cybersecurity; Manager and Software Developer. and her MEng in aerospace and blockchain. Jennifer was named His expertise spans many engineering from the University of one of the 30 Women Defining the industries, including Banking, Michigan. Prior to practicing law, Future of Technology in January Insurance Institutions, Health Care, she worked in engineering at both 2020 by Warner Communications Local and County Government. Ford and NASA. for her innovative thoughts and contributions to the tech industry. IT Law Section News  Privacy Committee  Articles

Technological-Competence Requirement Comes to Michigan By Jeffrey R. Hicks

You’ve probably seen some technical communication that contains confidential 2020 IT Annual pitfalls. Maybe a lawyer unwittingly hit and/or privilege information relating to Meeting Planning the “reply all” button. Or perhaps a the representation of a client” to ensure lawyer failed to realize that his electronic that the information “will not be revealed Committee redaction of privileged communication to unintended third parties.” Meets in February could be undone by a simple “copy and Contact Michael Gallo for paste.” What this Means for Attorneys more information What a Michigan lawyer must do to

Others have noticed, too. In 2012, the maintain technical competency is The 13th Annual American Bar Association amend- unclear, especially considering the State Information Technology ed Model Rule of Professional Conduct Bar of Michigan doesn’t require formal Law Seminar 1.1 to include a technical-competence continuing . But requirement that lawyers must “keep thankfully, the real world provides Thursday, abreast of changes in the law and its examples of what not to do. In September 10, 2020 practice, including the benefits and risks September, a federal associated with relevant technology . . . ordered Jones Day, an Am Law 100 firm, The Inn at St. John's .” In making this change, the ABA put and local counsel to show cause and in continuing learning of relevant explain why they failed to properly redact Plymouth, Michigan. technology on par with continuing study confidential grand- information and education of substantive changes in related to a criminal case involving their

the law. While the ABA’s Model Rules pharmaceutical-company client. Instead The seminar will include an all-day educational function merely as a suggestion to state of permanently redacting the PDF event bar associations, at least 35 states have documents, the lawyers merely of informative topics, followed suit and amended their ethical highlighted the text in black, allowing the the IT Law Section's rules to require that lawyers maintain text to be read if copied and pasted into Annual Section Meeting, technical competency. a new document. This follows other lunch and a similar high-profile redaction errors, such complimentary cocktail reception. Michigan isn’t far behind. Effective as those made by Paul Manafort’s January 1, 2020, an amendment to lawyers earlier this year. Michigan Rule of Professional When available, Conduct 1.1 will require a lawyer to So will adding a requirement to maintain additional information will maintain “knowledge and skills regarding technical competency end the accidental be provided on the developing technology that are reply-all e-mail? Probably not. But some IT Law Section's reasonably necessary to provide basic knowledge, such as how to calendar at competent representation for the client in properly redact PDF documents, may a particular matter.” And an amendment save you from a show-cause order, a lost http:// to Michigan Rule of Professional client, and a possible malpractice suit. connect.michbar.org/ Conduct 1.6 will require a lawyer to use itlaw/home this competency “when transmitting a If you are interested in providing an update or article to spotlight for Members and are able to contribute, please send an email to [email protected].

Information Technology Section State Bar of Michigan February 2020