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Refocus technology contracts. Reassess tech provider selection. Ponder possible action against trade secrets theft.
That may seem like a wonky list of New Year’s resolutions. Maybe so, but it’s also a necessary one, said attorneys at international law firm Mayer Brown. Legal tech trends in 2018 to watch for include rewriting tech contracts to account for software that learns — think artificial intelligence; privacy and security taking on new significance in tech transactions; and the effects of an ever-increasing use of big data on litigation.
Lawyers in the Chicago-based firm’s technology transactions group gave a rundown of legal tech trends in a recent teleconference. Here’s what CIOs and business chieftains should be ruminating on this year.
Data becoming a core asset
Treating data as a core asset is not just for organizations in data-driven fields like digital marketing, stock trading and pharmaceutical manufacturing; it’s also for “companies that are not centered on data,” said Mayer Brown partner Brad Peterson. Encouraged by falling prices of storage, data processing and innovations in analytics engines, companies of all stripes are using connected devices that gather reams of data.
“Companies face an expanding number of digital connections and an absolute explosion of data. As a result, value has shifted to how companies integrate, orchestrate and curate those connections and how they gather, store and exploit data to achieve their missions,” Peterson said.
Companies are using advanced analytics tools that incorporate machine learning and AI to unlock value in data, he said — and a “critical fact” for tech transactions is these tools aren’t programmed; they learn.
“It is often difficult or even impossible to limit how they use data, or to explain why they deliver the insights that they deliver,” Peterson said. “The insights that these tools produce may not be protected by intellectual property laws at all and thus must be protected in different ways than traditional outputs.”
Such tools need to be “restricted to the rights that the contracting parties have in the input data,” and transactions need to center on what insights might be arrived at, not a promise of meeting requirements.
Data protection and security dominate
It’s likely no surprise that IT security is on a list of legal tech trends for 2018, given the recent rise in cyberattacks. In fact, said Mayer Brown attorney Rebecca Eisner, cybersecurity and also privacy are the “most hotly contested area” in technology contract negotiations, including cloud agreements, outsourcing arrangements and software development licensing. Businesses will have to adjust to new privacy and cybersecurity regulation in 2018, developing “reasonable contract terms and allocations of risk,” Eisner said.
Companies already are complying with state and federal privacy and security laws, including laws in 48 states and Washington, D.C., that mandate reporting of data breaches. Changes in 2018 include state and federal privacy and security laws — for example, financial institutions will have to satisfy new requirements from regulatory agencies such as the Federal Financial Institutions Examination Council.
For U.S. companies that do business with EU citizens, and process personal data on those citizens, the recently enacted EU-U.S. Privacy Shield agreement “continues to be an effective means of EU-to-U.S. data transfer,” Eisner said. But any company with ties to European customers will be subject to a new EU data protection directive, the General Data Protection Regulation, which will take effect in May. The directive will require companies to make technical and operational changes, and violations could cost them big — up to 4% of revenue.
Companies should have started preparing for such changes in 2017 — restrictions on profiling, for example, and accommodating the European “right to be forgotten” — with 2018 being the time for making “final touches for compliance.”
Companies with business operations in China will also have to reassess compliance obligations, Eisner said. China’s new cybersecurity law, which went live in June, requires that any data collected or generated in China be stored in China unless it can be proven that cross-border transfer of data is necessary to business. Most companies qualify for a grace period, which ends Dec. 31, to comply with the law.
No matter where in the world companies do business in 2018, Eisner said, “This is a good year to re-evaluate existing technology provider selection and due diligence practices, to check to ensure that security and privacy clauses are up to date and to refine the process for ongoing monitoring of third parties.”
Demand for digital services ushers in big changes
Companies are turning to avant-garde technologies to craft wholly new types of business, said Mayer Brown attorney Mark Prinsley, who works in the firm’s London office. One area that is rapidly growing in popularity is blockchain, the distributed ledger technology that forms the basis of digital currency bitcoin. The financial services industry has embraced blockchain for areas like trade finance, “where numerous people need to access the same information,” Prinsley said, adding that, “at the moment, this processing is done by quite antiquated methods.”
But it’s not just finance that’s embracing blockchain, he said. Kodak, for example, announced it would use blockchain technology to track the use of stock photos and help photographers earn income for use of their material. Indeed, the possibilities for the technology seem “limitless,” Prinsley said, and regulators in different industries will be looking to develop international standards for deploying it.
Data interoperability — “the rights and obligations of parties to share digital data effectively between competitors,” Prinsley said — will likely gain prominence in 2018. For example, under a U.K. finance platform regulation, if a bank turns down a small-business applicant for a loan, the bank is required to pass information about the applicant to designated financial platforms, which other lenders can access.
“The aim is to increase competition and availability of finance to small businesses in the U.K.,” Prinsley said. “A takeaway for business is to consider how new digital technologies might be adopted in a way which means data can be available, probably to competitors, in a rapid and open way.”
Prepare for anti-antitrust efforts, trade secrets litigation
Antitrust agencies will show more interest in companies using big data in 2018. Prinsley cited the EU commissioner on competition, Margrethe Vestager, who is looking into whether tech companies that control — and later sell — the data consumers hand over when they search and shop online are shutting out competitors.
“It may be that we will see antitrust authorities around the world taking different views on this issue,” Prinsley said.
The digital era may have made it easier for people to steal trade secrets and turn them over to competitors, as the lawsuit that Waymo, Google’s driverless car company, filed against ride-sharing company Uber in February 2017. The suit alleges that ex-Google employees stole secret information and then launched its own autonomous auto company.
“The fact that the action was launched in the first place shows how vulnerable businesses are in an age of digitization,” Prinsley said, pointing to an EU directive that aims to standardize laws in EU countries against trade secrets theft. The directive will come into force in June and “may well be a straw in the wind for more trade secrets litigation in Europe.”
Getting in a bit late on Facebook Messenger, Google Wallet, and PayPal’s action, Apple Pay Cash is the latest peer-to-peer payment system from a tech giant. Apple’s mobile operating system has long had a tie-in with your credit card, thanks to the Apple Wallet app. Starting with iOS 11.2, however, the new Apple Pay Cash service lets the company play an even greater role in your finances. For those who are passionately dedicated to the Apple ecosystem, it has an appeal. But if you want to pay someone who doesn’t have an Apple device, you’re better off with a competitor, like Venmo, that offers cross-platform options, as well as more advanced payment features.
What Is Apple Pay Cash?
Since iOS 8.1, Apple Wallet has let you pay participating stores and websites from your iPhone, touch-free, using a credit card that you connect with the service. It hasn’t, however, been able to let you pay friends directly, as you can with Facebook Messenger, Google Wallet, PayPal, Venmo, and some bank apps. Unlike the previous Apple Wallet functionality, with Apple Pay Cash, you can actually store money in an Apple account, rather than just using Apple Pay as a conduit for a credit or bank card.
Getting Started With Apple Pay Cash
If you haven’t already done so, you first need to download and install iOS 11, specifically 11.2. You can force the update by visiting Settings > General > Software Update. If not, a slider switch in the Wallet & Apple Pay section of Settings lets you enable Apple Pay Cash. Once you slide this switch, you have to enter your Apple ID and password and accept a legal agreement stating that the services are provided through Green Dot Bank. The terms point out that Apple Pay Cash comprises two services: a virtual payment card and the
Pay Cash works with every Apple phone back to the iPhone 6, and on iPads starting with the Air 2 model. If you have a MacBook with Touch ID, you can use Apple Pay Cash, or you can connect an older Mac to your iPhone and pay that way. The service also works with all versions of the Apple Watch. Androids and other non-Apple devices are not supported.
Note that you’ll only be able to send money to other iOS users who have accepted the agreement, and you both have to have two-factor authentication set up for your Apple ID. Two-factor authentication provides additional security, but it’s stricter than the other payment services’ setup requirements. Note that setup also requires re-entering your credit card digits.
After I completed these steps, I was asked to add a debit card so that money could be transferred to my new bank account. You don’t have to do this to use the service, though—I didn’t. In all, however, the setup isn’t more involved than it is with Venmo, though Facebook Payments is easier than either.
Using Apple Pay Cash
As with Facebook Messenger’s Payments app, you send money via the Apple Messages app; the option is in the app tray at the bottom of the Messages’ screen. Just tap the A icon to open it. You then see a dollar amount that you can increase or decrease, and you can switch between paying and requesting. Venmo and Google Wallet require you to open their separate apps to make payments; so that’s a plus for Facebook and Apple, in that you access payments from an app you’re probably using regularly already.
When I tapped Pay to send $1 to a colleague and then hit the
You can also use Siri to pay someone, but that’s something also offered by Venmo. Apple Pay Cash, thankfully, doesn’t by default share your every transaction with a special-purpose social network, as Venmo does. With Venmo, unless you change privacy settings, any of your contacts can see exactly who you paid in a feed of transactions. Some may like like this, but it seems like an invasion of privacy to me. However, Venmo offers a couple of important advantages over Apple’s system: You can scan a QR code to verify your payee, and you can attach notes along with a payment. Venmo also lets you pay amounts smaller than $1, Apple’s minimum. Google Wallet, also available for iOS, adds the ability to split payments among multiple recipients.
If you receive money from a contact, it goes into your Apple Pay Cash virtual cash card. You can use that balance either by dumping it back into a connected bank account or to pay for something else via Apple Pay or Apple Pay Cash.
Apple Pay Cash, Venmo, and can all be used to shop at online retailers; PayPal (which also owns Venmo) may have the upper hand here, as the leading internet payment service. The biggest advantage of Venmo, PayPal, and Facebook Payments, however, is that they’re platform-independent—with any of them, you can send money to anyone, regardless of the operating system they use. And with any of them, you can make and receive payments from a web browser—not so with Apple Pay Cash. If you’re using Apple’s system and want to pay an Android user, you’re going to have to hand over dirty old dollar bills, for now.
Should You Pay the Apple Way?
Apple Pay Cash offers a relatively easy and secure way for iOS users to make peer-to-peer payments. But the tech giant is a bit late to the party, and, as with many things in Apple’s history, the service
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Microsoft News Center Staff
Tags: Games, Windows Store