Casey K.

A federal judge granted Madison Square Garden Entertainment Corp.'s (MSGE) motion to dismiss in a case where the plaintiff accused MSG of using biometric data and facial recognition software to identify and remove attorneys in their arenas/facilities who had sued them, in violation of several New York data privacy statutes. Judge Lewis Kaplan of the Southern District of New York wrote that the "profit" plaintiffs allege from using biometric data to ban adverse attorneys from events and discourage them from filing cases was too attenuated from the plain text and reading of the statute, which says it is "unlawful to sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information." In the short opinion (attached), he closes by saying "As objectionable as defendant's use of biometric data may be, it does not--at least on the facts alleged--violate Section 12-1202(b)." So to my attorney friends prepping that lawsuit against MSG, maybe wait until after the playoffs before filing? That or find one of those Mission Impossible masks to wear to the game. #sportslaw #dataprivacy #biometric #facialrecognition

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How are you helping your company to cope with evolving cybersecurity and privacy laws/regulations? It’s a fast-paced environment if ever there was one! Check out this recent summary and drop your thoughts below.

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What in the world is this American Privacy Rights Act, and what does it mean for advertising?!? Well, it could mean some significant changes. This Digiday article does a quality job of laying out its shifts for the industry.

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See below for official FAQs on Oregon’s #privacy law! #stateprivacylaws #privacypros #privacylaws #dataprotection

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Colorado just enacted HB 1130 into law, which amends the Colorado Privacy Act to add specific requirements for processing biometric data, especially in the employment context. Although the CO law mirrors BIPA in certain respects, it does not have a private right of action for noncompliance. A more in-depth summary to follow. https://lnkd.in/gWacnjcz #privacylaw #biometricdata

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Caveat issuers: A cyber breach - or just about any other problem - may result in an SEC "books and records" enforcement action. Stay informed: https://lnkd.in/gciZehiy #SEC #CyberSecurity #EnforcementAction

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Didn't see it coming...Chevron and cyber regs. Interesting to see how it'll play. Right up there with murder hornets on my 2021 scoreboard. Rulemaking authority has always been a thing. Now we'll have to think through exhaustion of administrative remedies and a (quasi?) de novo look at the circuit court level. Good cyber regs recognize a couple of truths: (1) they need to exist for the entire ecosystem, for the benefit of the regulated entity in question, and for individual consumers to continue being part of the digital economy; and (2) orgs of all sizes need to be funded (at some level) to facilitate compliance. This one can't be all stick. Privately owned infrastructure makes it hard. Takings anyone??

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We continue to see the US Government focusing more intently on the national security risks from investment from outside the United States, and not just China. Alongside that heightened review activity, we also see a more confrontational enforcement type of approach to reviews (i.e. more OFAC, less Commerce). CFIUS' latest proposed rule that we explore in the link below aims to further sharpen the edge on the tools at the Committee's disposal, and to cement some existing practices. I note in particular the intent to pressure parties to be more "responsive" to mitigation proposals, which is wholly one sided as CFIUS routinely waits until the last possible moment to propose off-the-shelf overcomplicated national security agreements, which require extensive changes to business operations. This is also a great opportunity to welcome Dave Allman to our K&L Gates CFIUS/international trade practice! He joins the team I've been working with now for over a year (!) including Steven Hill, Jamie Jackson, Andrew H. Tabler, Jeffrey Orenstein, Brian Hopkins, Catherine Johnson, Matthew Manning and EU colleagues working FDI such as Gabriela da Costa, Mélanie Bruneau, Dr. Annette Mutschler-Siebert M.Jur. (Oxford), Nikolaos Peristerakis. https://lnkd.in/e5e6PxzN

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Probably 70% of my recruiting practice is for BigLaw. That may be lower than many of my MLA colleagues. Why do I do so much work with mid-sized and smaller firms? A few reasons. In California we are spoiled for choice when it comes to boutiques -- both subject matter focused firms, and full-service boutiques are local institutions here. So, there are a lot of options! A lot of people don't want to work in BigLaw anymore/again/ever. My job is candidate-focused, so it's my job to find a role that matches what people want. It's definitely not my job to wedge them back into BigLaw because I don't have other options to offer them. In the last week MLA has begun a relationship with 3 new boutiques in Northern California, and the list grows all the time. Smaller firms allow associates to broaden out their practices -- their litigation teams do ALL kinds of work, because they don't have critical mass to have specialist strike teams. This model exists across corproate too - smaller firms' corporate teams may include M&A, ECVC, funds, tech trans... Being a generalist is appealing on its face but is also a great path to an in house role. Many, but not all, smaller firms offer better work/life balance. They may also be a more comfortable format for lawyers who want to know their colleagues more closely. So, don't rule out a smaller firm -- you may be surprised if you speak to them at just how much it sounds like the right fit.

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In this week’s compliance update, we’re diving into California’s two-pronged approach to regulate artificial intelligence (AI) in employment and other sectors. The California Civil Rights Council recently held a public hearing on proposed amendments to the Fair Employment and Housing Act (FEHA) to address discrimination from automated decision systems. These rules broadly define automated decision systems and require employers to prevent adverse impacts and bias. Testimony at the hearing urged the Council to refine definitions and scope, especially concerning employment agencies, the concept of screening (currently undefined), and simple automation driving processes, not decisions. California lawmakers are also considering AB 2930, which targets "algorithmic discrimination" across industries like employment, education, and healthcare. This bill mandates annual impact assessments, notification requirements, governance programs, and policy disclosures for employers using AI. Who will cross the finish line first in the race to regulate AI? Check out my Forbes piece, where I cover both measures and their impacts on employers: https://lnkd.in/gVTw_-c8 Thanks for reading and stay tuned for more background screening news! #ComplianceUpdate #AIRegulation #EmploymentLaw #CaliforniaLegislation #BackgroundScreening #AIInEmployment

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The United States Court of Appeals 5th Circuit just announced it will not adopt a proposed rule specifically requiring disclosure and other requirements for attorneys who use AI as part of their practice. Upon reflection, and based upon a lot of negative feedback on the proposed rule, they recognized that existing rules already cover the same situations. Specifically, attorneys are enforceably required to stand behind the truthfulness and accuracy of court filings. However, the court admonished litigants and lawyers alike that “I used AI” will not be an acceptable excuse for violating existing rules! Here is the formal notice from the court: https://lnkd.in/gJWyEyxg For color, here also are some recent news articles on this announcement: * Reuters: https://lnkd.in/gJmjWSqv * Bloomberg Law: https://lnkd.in/gaVqCkHi And, since I have it at hand, for your convenience, here is the full statement by the court: “The court, having considered the proposed rule, the accompanying comments, and the use of artificial intelligence in the legal practice, has decided not to adopt a special rule regarding the use of artificial intelligence in drafting briefs at this time. Parties and counsel are reminded of their duties regarding their filings before the court under Federal Rule of Appellate Procedure 6(b)(1)(B). Parties and counsel are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require. “I used AI” will not be an excuse for an otherwise sanctionable offense.” Personally, I think this court got it right. To the extent existing rules cover situations arising from use (or misuse) or AI, it is a good idea to apply those rules first before seeking to make more rules. In the event of demonstrable failures of existing rules, then perhaps it will be more practical to craft new rules to address the gaps that have been revealed. But it is, apparently, a very good idea to sound the alarm far and wide, loud and clear: sometimes generative AI provides incorrect or otherwise unsuitable information and it remains the duty of the attorney (among others) to carefully review and stand behind any work they pass forward. That concludes my public service announcement for today :-)

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#CEQA reform. I know, you don't believe it will happen. But the members of the influential Little Hoover Commission spent time thinking about CEQA and have published realistic recommendations that would make the process more predictable and fair. For example, the Commission proposes to reduce data dumps and late hits. The Commission also proposes a simple #infill #housing exemption that would not require multiple technical reports to support. Would love to see even one of the proposed reforms enacted. A summary of the report is here: https://lnkd.in/gWPQFBW9 The full report is here: https://lnkd.in/gB3_AqfH

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Join us as we discuss AI Strategies, Data Privacy and emerging trends in AI implementation

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Workplace and regulatory investigators – do you know your metrics?     This is a mistake many investigators make. I was no different. And the same likely applies to many law firms and other professional services.   Earlier in my career I didn’t know our metrics.    Nearly all my attention was focused on the quality of our investigations (for good reason), but I wasn’t sufficiently tracking the data related to our investigations:   ▪️ How many investigations were we bringing in each month? ▪️ How many investigations did we require to sustain workflow? ▪️ What proportion of our investigations are related to each type of allegation and how is this changing year over year? ▪️ What’s the average billable hours required to complete an investigation? ▪️ How are billable hours impacted by the nature of the allegations? ▪️ What’s the average cost of an investigation, and how does this change based on the allegations? ▪️ What’s the average profit per investigation? ▪️ And so many more…..   So how do metrics help you and your clients?   Focusing on our metrics ensures you have the right amount of work and the right people to deliver timely, high-quality investigations.   Analyzing billable hours and their variation with the nature of the allegations highlights areas for training and efficiency improvement.   Metrics track individual investigator performance and efficiency, ensuring you catch performance issues as early as possible and take steps to correct them.   Trends in the investigations being referred to you help identify the candidates you should be hiring to cover specific skills.   Metrics inform client discussion, particularly during intake when timelines and costs are frequently discussed (Clients love transparency!)   Finally, metrics help you monitor financial health, set budgets and set financial goals.    The bottom line – tracking metrics will make you a better investigator!    What metrics do you monitor to track your success? #workplaceinvestigations #investigations

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State law was recently amended to require the Auditor of State (AOS) to develop training materials detailing Ohio’s fraud reporting system and the means of reporting fraud, waste and abuse. ⏺ The training will be available on the AOS’s Training webpage at: https://lnkd.in/g8C3enrh. ⏺ Current district employees and school board members are required to complete the training by November 29, 2024. ⏺ Each new employee or elected official must confirm receipt of the training material within 30 days after taking office or beginning employment. ⏺ The training is required every four years for each employee or elected official. ⏺ Certificates will be provided once the training is viewed. AOS encourages districts to collect these certificates from employees and school board members and retain them for audit. AOS encourages districts to develop a process for communicating the statute, bulletin and training materials to new employees and school board members and has created a sample tracking spreadsheet for districts to use. Additional information about this requirement and a copy of the sample tracking spreadsheet can be found in AOS Bulletin 2024-005 - https://lnkd.in/gDYic3Th.

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🍿Popcorn, anyone? Ninth Circuit Court of Appeals hears oral argument today in Netchoice v. Bonta on CA’s Age Appropriate Design Code Act. Recall that district court judge Freeman granted Netchoice’s motion for a preliminary injunction on the basis of several reasons including that the restrictions violated the 1A by giving the government unconstitutional control over online speech, and requiring consumers to divulge more personal information, exacerbating the stated privacy concerns. A fuller breakdown of that ruling can be found here: https://lnkd.in/eEZbmsay Many states have since enacted their own age appropriate design code acts, and state AGs are openly exploring age verification or filtering expectations in their enforcement of comprehensive privacy laws, so how the 9th Circuit rules in this matter and the reasoning in support can have far reaching implications. Also whispers of FTC dropping #commercialsurveillance rulemaking in August. The ruling could have relevance to these too. #privacylaws #childrensprivacy #adtech Kelley Drye Advertising Law https://lnkd.in/eMZUujnC

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Do not count out the states on #AIenforcement. New advisory out by the Massachusetts Attorney General's Office outlining specific #consumerprotection considerations when marketing, offering, or using #AI. From past experience, when you see a regulator put out a bulletin/advisory/press release focusing on a particular business practice, it's fairly common to see that office pursue enforcement actions afterwards for practices that conflict with the AG's notice outlining their concerns with practices they're seeing in the marketplace. Some highlights include: 1️⃣ Falsely advertising the quality, value, or usability of AI systems    2️⃣ Supplying an AI system that is defective, unusable, or impractical for the purpose advertised 3️⃣ Misrepresenting the reliability, manner of performance, safety, or condition of an AI system 4️⃣ Offering for sale or use an AI system in breach of warranty, in that the system is not fit for the ordinary purposes for which such systems are used, or that is unfit for the specific purpose for which it is sold where the supplier knows of such purpose 5️⃣ Misrepresenting audio or video content of a person for the purpose of deceiving another to engage in a business transaction or supply personal information as if to a trusted business partner as in the case of deepfakes, voice cloning, or chatbots used to engage in fraud  6️⃣ Failing to comply with Massachusetts statutes, rules, regulations or laws, meant for the protection of the public’s health, safety or welfare 7️⃣ Violating anti-discrimination laws (the advisory warns AI developers, suppliers, and users about using technology that relies on discriminatory inputs and/or produces discriminatory results that would violate the state’s civil rights laws) 8️⃣ Failing to safeguard personal data utilized by AI systems, underscoring the obligation to comply with the state’s data breach notification requirements, (statutory and regulatory requirements -- Note MA has very robust data security regulations). PSA: Can't hurt to confer with your counsel on how your practices stack up to these issues. That's less 💲 than responding to a subpoena. Kelley Drye Advertising Law Kelley Drye & Warren LLP https://lnkd.in/egxfdRZr

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