Now more than ever, technology is influencing the way we do business, communicate, move through and around the world, access and manage our homes, receive and administer healthcare, make purchases, secure information, and protect our most valuable property. Morrison Foerster keeps pace with this rapidly evolving landscape across our internationally recognized corporate, finance, intellectual property, and litigation practices. MoFo Tech brings together our insights relating to fields such as blockchain and distributed ledger, cloud and as-a-service technologies, driverless cars, drones, fintech, computer hardware and software, the Internet of Things, semiconductors, and telecommunications. The MoFo Tech blog offers real-time, in-depth analyses of the trends and complex issues shaping the global technology industry.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

testimage.jpg

MoFo Tech

Scott Llewellyn’s practice focuses on complex litigation in federal and state courts around the country, with an emphasis on patent and trade secret disputes. Over the past decade, he has worked on some of the most significant, high–profile IP cases involving technology for televisions, smartphones, and self–driving cars, relying on 40 years of experience with computer hardware and software. Scott also has significant experience with business divorce cases before courts and arbitrators, involving a mix of trade secret, patent, tort, and contract claims relating to technology development and implementation.Scott also has successfully tried general commercial arbitration and agency matters, briefed and argued various appeals in federal appellate court, and tried more than 20 cases for the Denver City Attorney’s office, most of them jury trials.Scott also has an active pro bono practice, having worked on a variety of criminal and immigration appeals, and having represented Colorado criminal defense and mental health organizations in high–profile suits against the state of Colorado for violations of the constitutional rights of defendants.At MoFo, Scott serves on the board of the Morrison & Foerster Foundation. In the broader legal community, he serves on the boards of the Colorado Lawyers Committee and Drop in the Bucket (a charity that builds wells and sanitation systems in sub–Saharan Africa).After law school, Scott clerked for the Honorable Clarence A. Brimmer, District of Wyoming, and the Honorable Diarmuid F. O’Scannlain, Ninth Circuit. He was also previously an adjunct professor at the Georgetown University Law Center.

llewellyn_scott_blog_150x150.png

llewellyn_scott_common_640x280.jpg

llewellyn_scott_heroretina_2700x1160.jpg

llewellyn_scott_mobileretina_750x1040.jpg

llewellyn_scott_social_600x600.jpg

Partner

Scott Llewellyn’s practice involves complex litigation before state and federal courts around the country, with an emphasis on patent and trade secret disputes for high-tech companies, to which he brings more than 35 years of experience with computer hardware and software, in particular relating to the processing and transmission of audio, video, voice, and other types of data. Mr. Llewellyn has also tried commercial arbitration and agency matters; briefed and argued various appeals in federal appellate court; and tried more than 20 cases for the Denver city attorney’s office, most of them jury trials.

Scott F. Llewellyn

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

MoFo Tech brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry, covering fields such as blockchain and distributed ledger, cloud and SaaS technologies, driverless cars, drones, FinTech, computer hardware and software, the IoT, semiconductors, and telecommunications.

Mofo Tech testimage

Announcements

Welcome to the MoFo Tech Blog

Blog - Blog Disclaimer

Blog - Terms of Use

Blog - Privacy Policy

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

In-depth analysis of developments and trends impacting government contracting.

Government Contract Insights Blog

Government Contract Insights

Government Contracts Insights Blog

Govcon

News and thought leadership from lawyers who are adding value to the legal profession and the communities we call home.

  External-Link

MoFo + Blog

MoFo+ Together

MoFo Tech brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry, covering fields such as blockchain and distributed ledger, cloud and SaaS technologies, driverless cars, drones, FinTech, computer hardware and software, the IoT, semiconductors, and telecommunications.

MoFo Tech

  Linkedin

MoFo LinkedIN

MoFo Tech Blog - RSS

Stay Connected

At the Intersection of Technology, Law, and Business

At the Intersection of Technology, Law, and Business

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Telecommunications

Artificial Intelligence

Asia

Blockchain

Cloud Services + SaaS

European Union

Financings

Fintech

Hardware

Intellectual Property

Internet of Things

Litigation

Mergers + Acquisitions

Privacy + Data Security

Regulatory

Software

Tech Talks

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

Subscribe

More

Strengthened AI Oversight in the Netherlands

Transforming Tomorrow: The Rise of AI in the Workplace

Current State of the AI VC Financing Market

The Bad Guys Have AI, Too

MoFo Tech Law Summit – Tech and Antitrust: Policy Shifts in the Second Trump Administration

Vendor procurement practices will continue to evolve in 2024 to reflect corporate AI risk management and governance policies. While companies are beginning to appreciate that vendor work product may be developed using AI tools unless their contracts specify otherwise, they have not fully appreciated what that means for their businesses.If, for example, an organization is hiring a service provider to produce a work of authorship, and the organization values the ability to preclude others from copying, distributing, publicly performing, or creating new works based on the vendor’s work, then the organization may want to consider building clear guidelines into the service provider’s contract for whether and how generative AI tools may be used. This is advisable because, at least as of now in the United States, the Copyright Office has made it clear that there are some substantial hurdles to obtaining copyright protection for generative AI output. Software is a work of authorship under the Copyright Act, so this applies not only to the use of generative AI to create artwork or reports but also to the use of generative AI for software development.Beyond intellectual property rights issues, vendor use of generative AI can also present challenges with respect to the accuracy, reliability, or biases in the output, as well as risks to confidentiality, data privacy, security, and safety. Different use cases offer different benefits and raise different concerns (and in some cases, little to no concern at all). As the use of AI in the enterprise grows, it is more important than ever to evaluate risks in light of the use case and develop procurement practices and contract terms that map to those risks.

sharron_stephanie_blog_150x150.png

sharron_stephanie_common_640x280.jpg

sharron_stephanie_heroretina_2700x1160.jpg

sharron_stephanie_mobileretina_750x1040.jpg

sharron_stephanie_social_600x600.jpg

Stephanie assists companies with technology and life sciences transactions, representing both private and public companies, from emerging growth through the Fortune 50. In particular, Stephanie focuses on helping companies that leverage data through technology in structuring their business and commercial transactions.

Stephanie Sharron

Stephanie Sharron is partner in the Palo Alto office and a member of the firm’s Technology Transactions Group. Clients turn to Ms. Sharron for advice on how to leverage data through technology and the related issues that apply to their business models in light of the rapid changes in business, technology and law.

Stephanie Lynn Sharron

mofo-tech-blog-image-clearglobe.jpg

AI Trends For 2022 - Export Control/CFIUS

mofo-tech-blog-image-clearglobe

Vendor procurement practices will continue to evolve in 2024 to reflect corporate AI risk management and governance policies. While companies are beginning to appreciate that vendor work product may be developed using AI tools unless their contracts specify otherwise, they have not fully appreciated what that means for their businesses.

AI Trends For 2024 - Vendor Procurement Practices and Generative AI

Courts are increasingly being asked: is AI a product or a service? AI companies currently operate within an undefined products liability space. As companies continue to innovate with AI, courts must grapple with complicated questions in cases involving AI technologies.Traditional product liability cases involve plaintiffs claiming an injury arising from a defective physical product. Purely software offerings, by contrast, are typically deemed “services” not subject to products liability. Like software, the “product” in AI cases is intangible—a software program, an autonomous system, or a decision-making algorithm.So where does AI fall on the spectrum between products and services?Courts have not reached a consensus.Companies are likely to face inconsistent results as courts around the country contend with these distinctions. MoFo continues to monitor these cases and provide updates to support companies navigating the growing pains inherent in emerging industries.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

bosman_erin_blog_150x150.png

bosman_erin_common_640x280.jpg

bosman_erin_heroretina_2700x1160.jpg

bosman_erin_mobileretina_750x1040.jpg

bosman_erin_social_600x600.jpg

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

park_julie_blog_150x150.png

park_julie_common_640x280.jpg

park_julie_heroretina_2700x1160.jpg

park_julie_mobileretina_750x1040.jpg

park_julie_social_600x600.jpg

Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

quinn_ashley_blog_150x150.png

quinn_ashley_common_640x280.jpg

quinn_ashley_heroretina_2700x1160.jpg

quinn_ashley_mobileretina_750x1040.jpg

quinn_ashley_social_600x600.jpg

Associate

Ashley E. Quinn is an associate in Morrison Foerster’s Class Actions + Mass Torts Group in the San Diego office. Ashley’s practice spans the product lifecycle. She defends clients in class actions, multidistrict, and other high-stakes litigation in state and federal court. 

Ashley E. Quinn

mofotechblog-ip-600x295-lightbulb.jpg

Supreme Court Restricts the Extraterritorial Reach of U.S. Patent Law for Exported Goods

121901743

Courts are increasingly being asked: is AI a product or a service? AI companies currently operate within an undefined products liability space. As companies continue to innovate with AI, courts must grapple with complicated questions in cases involving AI technologies.

AI Trends For 2024 - AI: Product or Service? Product Liability in the Age of AI

U.S. state legislatures will continue integrating requirements for profiling and automated decision-making into consumer privacy laws, reflecting the growing impact and influence of AI. All comprehensive state consumer privacy laws that are currently in effect (California, Colorado, Connecticut, and Virginia) and almost all of those entering effect over the next few years (Delaware, Indiana, Montana, Oregon, Tennessee, Texas, and Utah) include concepts of automated decision-making and profiling and place restrictions on such activities.While definitions differ slightly across the U.S. state privacy laws, profiling generally refers to the evaluation of individuals’ personal aspects via the automated processing of their personal information. Most states require covered entities to offer an opt-out from profiling, and most require a data protection assessment for activities posing a “heightened risk of harm” to individuals, such as targeted advertising.California is leading these efforts by creating an independent watchdog, the California Privacy Protection Agency (CPPA), tasked with, inter alia, regulating the use of automated decision-making technology (ADMT). ADMT refers to any system, software, or process that processes personal information and uses computation to make decisions or facilitate human decision-making, including profiling. The CPPA <a href="https://cppa.ca.gov/announcements/2023/20231127.html" target="_blank">recently proposed</a> draft regulations that would require businesses to follow specific notice, opt-out, and access rules regarding their use of ADMT. These landmark regulations are expected to set the stage for other states’ enforcement of ADMT and profiling restrictions.Carson Martinez contributed to authoring this blog post.

AI Trends For 2024 - U.S. State Consumer Privacy Laws’ Focus on Automated Decision-Making and Profiling

storm_marijn_blog_150x150.png

storm_marijn_common_640x280.jpg

storm_marijn_heroretina_2700x1160.jpg

storm_marijn_mobileretina_750x1040.jpg

storm_marijn_social_600x600.jpg

Of Counsel

Marijn Storm specializes on the intersection of law and technology, with a focus on cutting-edge technologies, such as (generative) artificial intelligence (AI) and large language models, ethical tech, and biometrics. 

Marijn Storm

waldmannagarwal_marian_blog_150x150.png

waldmannagarwal_marian_common_640x280.jpg

waldmannagarwal_marian_heroretina_2700x1160.jpg

waldmannagarwal_marian_mobileretina_750x1040.jpg

waldmannagarwal_marian_social_600x600.jpg

Marian Waldmann Agarwal is a partner in the Privacy + Data Security Group at Morrison Foerster. She also co-leads the firm’s Artificial Intelligence Group and is a member of the global Environmental, Social, and Governance (ESG) Steering Committee.

Marian Waldmann Agarwal

Marian A. Waldmann Agarwal

mofo-tech-blog-image-16.jpg

AI Trends For 2024 - U.S. State Consumer Privacy Laws’ Focus on Automated Decision-Making and Profiling

Japan: Privacy Updates on Handling Personal Information in the “Digital Market”

mofo-tech-blog-image-16

U.S. state legislatures will continue integrating requirements for profiling and automated decision-making into consumer privacy laws, reflecting the growing impact and influence of AI. 

As the use of AI in hiring and employment practices grows, U.S. states are increasingly regulating such use.Currently, Illinois, Maryland, and New York City require employers to inform applicants about, and obtain their consent for, the use of AI during the hiring process. New York City also specifically requires a bias audit for AI tools, the results of which must be published annually. Several other states—including California, Hawaii, Massachusetts, Oklahoma, Pennsylvania, New Jersey, New York, and Vermont Virginia, and Washington and also District of Columbia—are considering similar legislation, signifying a trend towards more regulation of AI in hiring and employment decisions.Outside of specific laws targeted at AI in the employment context, state consumer privacy laws are also relevant to the use of AI in employment. For example, California’s CCPA applies to employee personal information, and almost all state privacy laws require an opt-out for profiling in furtherance of decisions producing legal or significant effects concerning a consumer, including the provision or denial of employment.On a federal level, the Equal Employment Opportunity Commission issued <a href="https://www.eeoc.gov/newsroom/eeoc-releases-new-resource-artificial-intelligence-and-title-vii" target="_blank">guidance</a> in May 2023, emphasizing potential discrimination risks when using AI under the Americans with Disabilities Act and Title VII of the Civil Rights Act. Proposed bills like the 2023 <a href="https://www.congress.gov/bill/118th-congress/house-bill/5628/text" target="_blank">Algorithmic Accountability Act</a>, though not enacted, also suggest a possible move towards national regulation.Given this evolving landscape, state legislatures likely will continue to develop rules around the use of AI in employment.Carson Martinez contributed to authoring this blog post.

mofo-tech-blog-image-22.jpg

California Privacy Rights Act of 2020 Qualifies for November Ballot

mofo-tech-blog-image-22

As the use of AI in hiring and employment practices grows, U.S. states are increasingly regulating such use.

AI Trends For 2024 - U.S. Laws Will Focus on the Use of AI in Hiring

Privacy regulators, including the EU data protection authorities (EU DPAs), are expected to increase their scrutiny of data scraping to train AI algorithms. Data scraping involves the collection of large amounts of publicly available information, which may trigger obligations under privacy laws.While data scraping for AI training has only recently emerged on privacy regulators’ radars, action by the EU DPAs has been robust. In 2022, the Italian DPA <a href="https://www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9751323" target="_blank">fined</a> Clearview AI €20 million for scraping facial images and generating biometric information, rejecting the company’s claim that its legitimate interests provided a lawful basis for such processing. Subsequently, the <a href="https://www.dpa.gr/el/enimerwtiko/prakseisArxis/epiboli-prostimoy-stin-etaireia-clearview-ai-inc" target="_blank">Greek</a> and French DPAs each also imposed €20 million fines on Clearview AI, and the <a href="https://noyb.eu/sites/default/files/2021-01/545_2020_Anh%C3%B6rung_CVAI_ENG_Redacted.PDF" target="_blank">German</a> and <a href="https://edpb.europa.eu/news/national-news/2023/decision-austrian-sa-against-clearview-ai-infringements-articles-5-6-9-27_en" target="_blank">Austrian</a> DPAs have declared Clearview’s activities illegal.These investigations all focused primarily on the unlawful processing of sensitive data (i.e., biometric information), but the focus of the EU DPAs is anticipated to expand.Examples of the DPAs’ broader focus on data collection for AI training include the French DPA’s October 2023 guidance on the research and development of AI systems, which notes that the re-use of (public) datasets is possible only if the data were lawfully collected and the purpose of re-use is compatible with the initial collection purpose. Most recently, the Italian DPA announced in November 2023 an <a href="https://gpdp.it/home/docweb/-/docweb-display/docweb/9952078" target="_blank">investigation</a> into data scraping practices for AI training, to determine whether adequate measures are implemented to prevent the mass collection of personal information.Scrutiny of data scraping for AI training is not expected to remain limited to the EU. In August 2023, 12 multinational privacy regulators issued a <a href="https://ico.org.uk/media/about-the-ico/documents/4026232/joint-statement-data-scraping-202308.pdf" target="_blank">joint statement</a> cautioning companies that engage in web scraping and companies that publish large amounts of personal information to the web on the privacy risks and legal obligations related to scraping information.Carson Martinez contributed to authoring this blog post.

van-der-wolk_alex_blog_150x150.png

van-der-wolk_alex_common_640x280.jpg

van-der-wolk_alex_heroretina_2700x1160.jpg

van-der-wolk_alex_mobileretina_750x1040.jpg

van-der-wolk_alex_social_600x600.jpg

Managing Partner, Brussels

Alex van der Wolk, co-chair of Morrison Foerster’s preeminent Global Privacy & Data Security practice and managing partner of the firm’s Brussels office, employs his nearly 20 years of experience to advise global companies on their most complex data strategies and compliance programs governing all aspects of information management. 

With more than a decade of experience, Mr. van der Wolk helps clients develop privacy strategies for digital transformations, industrial IoT, telematics, Big Data, commercial and marketing programs, a

Alex van der Wolk

Alex van der Wolk, co-chair of Morrison Foerster’s preeminent Global Privacy & Data Security practice and managing partner of the firm’s Brussels office, employs his nearly 20 years of experience to advise global companies on their most complex data strategies and compliance programs governing all aspects of information management.

martinez_carson_blog_150x150.png

martinez_carson_common_640x280.jpg

martinez_carson_heroretina_2700x1160.jpg

martinez_carson_mobileretina_750x1040.jpg

martinez_carson_social_600x600.jpg

Carson Martinez is an associate in the Litigation Department of Morrison Foerster’s Boston office.

Carson Martinez

mofo-tech-blog-image-2.jpg

mofo-tech-blog-image-2

Privacy regulators, including the EU data protection authorities (EU DPAs), are expected to increase their scrutiny of data scraping to train AI algorithms. Data scraping involves the collection of large amounts of publicly available information, which may trigger obligations under privacy laws.

AI Trends For 2024 - Privacy Regulators Will Increase Scrutiny of Data Collection for AI Training

EU data protection authorities (DPAs) will likely start enforcing the requirements of the EU AI Act, the world’s first comprehensive AI regulation, despite the Act likely not entering into full force until 2026.The AI Act is designed to apply in addition to the EU General Data Protection Regulation (GDPR), extending the reach of requirements by covering AI systems trained with data that is not subject to GDPR and scenarios where providers don’t qualify as “controllers” under GDPR. Despite these differences, many of the AI Act’s risk management obligations cover the same topics as those in the GDPR, but in a more specific manner. This creates a synergy that enables DPAs to interpret the GDPR in a manner consistent with the requirements of the upcoming AI Act, on topics such as:<ul><li dir="ltr">Impact assessment: The AI Act’s requirement for a risk management system is akin to the GDPR’s data protection impact assessment (DPIA), focusing on preemptive risk identification and mitigation;</li><li>Data governance: The AI Act’s data governance requirements, including the appropriate use of training datasets, aligns with the GDPR’s requirements of fair and lawful use of personal information;</li><li>Human oversight: The AI Act requires ensuring appropriate human oversight, which shows similarities to the (negatively formulated) prohibition on automated decision-making (with limited exceptions) under the GDPR.</li></ul>Recent developments already show that the DPAs are not waiting for the AI Act to enter into force. For example, in July 2023, the French DPA <a href="https://www.cnil.fr/fr/intelligence-artificielle-le-plan-daction-de-la-cnil" target="_blank">stated</a> that it will focus on entities processing personal information to develop, train, or deploy AI systems to ensure these entities have met GDPR requirements, including by carrying out data protection impact assessments, adequately informing individuals, and allowing people to exercise privacy rights. The Spanish DPA recently provided <a href="https://www.aepd.es/en/prensa-y-comunicacion/blog/artificial-intelligence-transparency" target="_blank">guidance</a> on the distinction between “transparency” under the GDPR and the use of the same term in the AI Act, and the Italian DPA is <a href="https://www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9952078" target="_blank">investigating</a> the online collection of personal information to train AI algorithms.Carson Martinez contributed to authoring this blog post.

mofo-tech-blog-image-1.jpg

In the Public Eye: USPTO Issues Report on AI

mofo-tech-blog-image-1

AI Trends For 2024 - EU DPAs Will Apply Requirements of the EU AI Act