Life Under the Cloud
It's been a year of big legal stories, but none bigger than the challenges of cybersecurity.
Your heart may still beat faster when you hear the words "snow day." The magic of those words is most potent when spoken by parents to young children lying in bed. (For those who haven't lived in a chilly climate, they translate to: No School!)
These days, some lawyers probably have a very different association with a similar phrase. For them, the second half of 2013 was filled with all too many "Snowden days." Each one brought a new revelation from former National Security Agency contractor Edward Snowden, and new questions and accusations directed at companies that suddenly had some explaining to do. The reaction of many lawyers was probably a strong desire to go back to bed.
The Snowden leaks were a part of one of the big stories for in-house lawyers last year: the challenge of ensuring the privacy and security of corporate communications. The story went way beyond Snowden, of course. Bring your own device (BYOD) was part of it. So were the disparities between privacy laws in different jurisdictions.
In a way, Snowden was an extension of the Wikileaks story a couple of years ago. But this time the leaks weren't U.S. Department of State cables. They included consumer data, and the ramifications were felt more directly in the corporate world—especially by companies like Microsoft, Google, Facebook and AT&T, which were criticized for allegedly cooperating with the government's vast data mining machine. (The companies have insisted that they cooperated no more than the law required.)
Snowden's disclosures have underscored the divergent privacy laws around the world—particularly those that govern the United States and the European Union. The gap has led politicians in Europe to question whether local standards ought to be established to regulate the Internet. It's one of the year's big stories, according to Matt Fawcett, general counsel of storage and data management company Netapp.
Fawcett sees cloud computing accelerating "a collision of privacy, cybersecurity and related concerns." And he worries that "bad facts (might) make bad law: Efficiencies created by technology may be subverted by a complex web of emerging privacy regulations and data sovereignty concerns." The big danger, he says: "High-profile breaches risk causing overreactions—well-meaning in intent but impractical."
What else commanded the attention of busy legal chiefs? "It's hard to imagine a bigger story generally for professional women, and therefore women in law," says Fiona Arnold, the general counsel of Vail Resorts Inc., "than the conversation sparked this year by [Facebook executive] Sheryl Sandberg's [book] 'Lean In.'" Arnold, who resigned at the end of November after seven years at the helm, goes on to say, "It has led to a deeper discussion around the hidden biases, gender pay inequality and the reasons women opt out of pursing their careers through partnership or senior executive leadership."
Outside counsel management is never far from a GC's mind, and last year there was a lot to think about. "What started a few years back in response to the recession," says Susan Hackett, founder of the consulting firm Legal Executive Leadership, "has now become an unseemly circus of daily stories that are shattering presumptions about the infallibility of the American Large Law Firm Business Model."
Hackett, Arnold and Fawcett all took aim at the practice of law. "This was the year of living dangerously for anyone in a firm who didn't produce sufficient profit RIGHT NOW," says Hackett. Arnold notes, "Disruptive ideas have been emerging with greater frequency, such as outsourcing legal work to cheaper legal markets." Fawcett says, "This year saw a surge in general counsel creating the 'operations' position in their departments, to realize the benefits and efficiencies of running the department more like a business." He adds: "Welcome to the modern world."
Another way to gauge big stories is to count readers' mouse clicks. We can only do that on CorpCounsel.com, of course, but the results are worth noting. For our readers, in-house compensation is always news. Our compensation survey yielded two of the 13 most-clicked stories of 2013 (including the one at the top of the heap), and a trend story on compensation also made the list.