A recent report issued by the Federal Trade Commission (FTC) found that some web hosting services marketing their services to small businesses are not providing email authentication and anti-phishing technologies as part of their standard service offerings. The report, issued by the FTC’s Office of Technology Research & Investigation, examined the security features of hosting plans offered by 11 web hosts that provide their services to small businesses.

The report found that only a few of the hosts reviewed by the FTC notify users of their email authentication technologies while certain of the hosts do not support such technologies. Email authentication protects domains from being used in phishing scams. Domain-level authentication can verify the domain from which a message claims to be sent. In addition, an emailing domain can instruct receiving email servers how to handle unauthenticated messages, and can send a message to receiving servers to send alerts to the emailing domain when spammers attempt to send messages that claim to be from an address at the emailing domain.

As of this past Monday, 11 US mayors have signed a pledge defending “net neutrality” in their cities and towns. The pledge, titled “Cities Open Internet Pledge,” was introduced by Mayors Bill de Blasio of New York, Ted Wheeler of Portland, and Steve Adler of Austin at this year’s South By Southwest in Austin, Texas.

As discussed in a recent post, the Federal Communications Commission (FCC) recently published the final rule repealing net neutrality, the open internet framework that restricted internet service providers (ISPs) from prioritizing, slowing, or blocking data and information flowing through their networks. The FCC is replacing net neutrality with a network management disclosure regime that will require ISPs to disclose information about network management practices, performance characteristics, and commercial terms of service.

On Friday, March 23, Morgan Lewis counsel Emily Lowe and associate Ben Klaber, and Avere Systems Director Scott Jeschonek will present on the emerging “Shared Responsibility Model” for security being used by vendors of cloud technology and will provide tips on implementing and utilizing cloud services. This webcast is the first in the lunchtime series, “Talking Tech with Pittsburgh,” where Morgan Lewis and business leaders from Pittsburgh and the surrounding areas will discuss top technology trends impacting business and related legal risks and benefits in the contracting process.

Learn more and register.

KPMG reported in a recent survey that the top trend for 2018 is the adoption of intelligent automation (IA) as a business strategy. The survey, which KPMG publishes on a quarterly basis, reviews global business services, IA, and related service delivery market trends.

KPMG found that 62% of respondents believe that IA and digital labor are the trends that will have the largest positive impact on the respondents’ organizations in 2018. One of the business concerns driving the adoption of IA is the challenge that organizations have in finding, training, and keeping talent, which was the largest negative trend that respondents predict when looking ahead to 2019.

On Monday, March 5, Morgan Lewis partners Barbara Murphy Melby and Anastasia Dergacheva and associates Ksenia Andreeva and Valentina Semenikhina will present on the webinar “Spotlight Russia: A Briefing for Russian Companies on Key Contracting Issues in Software and IT Services Transactions,” where they will discuss key issues that companies in Russia should consider when contracting for software and technology services. Topics will include the following:

  • A review of the top 20 issues to consider when licensing commercially available software
  • Tips on drafting performance and ownership provisions consistent with business requirements that also protect the company’s interests
  • A primer for the company considering outsourcing as a business strategy

Learn more and register >

If you’re tired of deal fatigue, and if worrying about its signs and root causes has you feeling sapped, the best thing to do is to return to fundamentals. In this third and final installment, we explore how you can employ the deal process to mitigate and even avoid the drudgery and fallout of deal fatigue.

The Deal Process

If you’re trying to speed along the deal process, the Emperor Augustus would advise you to festina lente, or make haste slowly. It’s important to remember that each stage of the deal process serves at least one important function. Knowing how to assess the need for each function, and the best way to accomplish it, is the key. So it’s acceptable to hasten, but only thoughtfully and deliberately—otherwise your deal will get ahead of the process, which could lead to some of the deal roadblocks we explored in our prior posts.

Take, for example, establishing a base case. A thorough assessment of the current environment is critical to understanding many things, including what you are trying to address by doing the deal, pressure points and organizational change issues, and financials. In other words, a good base case is required in order to competently recommend a path forward, and the interesting things you learn in developing the base case will inform down-selection and contract negotiations.

This week, the Federal Communications Commission (FCC) published the proposed final rule repealing “net neutrality,” the open internet rules that classified internet service providers (ISPs) as common carriers under Title II of the Communications Act of 1934 (the Act). Under net neutrality, previously enacted by the FCC through the Open Internet Order of 2015, ISPs were restricted from prioritizing, slowing, or blocking web traffic through their networks, including by implementing paid prioritization “fast lanes” that favored certain web traffic over others.

The new regulatory regime implemented by the FCC repeals the net neutrality restrictions, reinstating the prior classification of ISPs as less regulated “information services” under Title I of the Act (rather than common carriers) and eliminating the web traffic conduct rules imposed by the Open Internet Order. In place of net neutrality will be a new network management disclosure regime that requires ISPs to disclose information about network management practices, performance characteristics, and commercial terms of service.

Thinking about monetizing your website with targeted ads? If so, you should have a basic understanding of the potential issues and associated risks when making online advertisement media buys. Although the Interactive Advertising Bureau’s Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (the IAB Terms) are considered “industry standard” by advertising and media companies, and are used either entirely or as the basis for ad-buying agreements, the following points should be taken into consideration by website operators in order to avoid or minimize unexpected results.

Industry Standard

Sometimes “industry standard” can be a good thing. The IAB Terms are generally industry standard and are designed to balance the risk of each party. This can cut down on negotiation time, and give the parties comfort that the agreement is in line with recognized industry norms.

Potential Issues and Associated Risks

Notwithstanding the general acceptability of “industry standard” terms, the following potential issues should be noted if you host a website on which ads will be placed, since they may have unexpected results.

Not that long ago, companies were concerned about the ramifications of putting all their data in a cloud, including how they would get that data out, so only certain discrete aspects of systems and storage infrastructure were being moved to the cloud. Fast forward a few years and, for cost and other reasons, the current trend is for companies to make wholesale replacements of services and move those services to the cloud. With more software and services being offered in the cloud, it’s important to understand the responsibilities of each party and the risk allocation between them.

Shared Responsibility

Cloud services agreements generally employ a “shared responsibility model,” which is an allocation of responsibilities between the cloud provider and the customer. Issues arise when either cloud services agreements are used for multiple business units and services without a clear understanding of the responsibilities of the customer with respect to the data they’re moving to the cloud, or the customer does not understand that it has its own distinct responsibilities with respect to its data.

Among the many ways in which artificial intelligence (AI) technologies are enhancing business functions, the inefficiencies and labor-intensive organizational aspects of the contracting process present many fertile opportunities for improvement through the application of AI. A recent article in the Harvard Business Review discusses the contracting challenges current AI technology can help to alleviate and the contracting process changes required to adapt to AI contracting tools, as well as understanding the limits of AI.

Dealing with Contract Volume Using AI

As the article notes, one of the most significant contracting challenges facing organizations is managing a high volume of agreements. Even with a centralized database for contract documents, organizations often have no efficient way to extract data from those contracts or see, for example, how a warranty clause is worded across a number of different customer agreements. AI software tools can extract that data from contract documents and clarify and organize content, which can help organizations contract more efficiently and manage existing contracts more effectively.

Tracking and Enforcing Contracting Language Standards

Another significant challenge in the contracting process, especially for high-volume customer or vendor contracts based on standard templates, is ensuring conformity to template language and efficiently tracking deviations from form language. For instance, if an organization is seeking to impose uniform contract terms around the use of company trademarks and trade names, AI software tools can help track that language across divisions and could be configured to recognize keywords that indicate the trademark usage language is needed in a contract.