It Takes More Than A Shingle to Be a Good e-Commerce Attorney

e-Commerce Is a Genre Practice

It's not a stretch to say that practicing e-commerce is a little like writing science fiction: It's a niche genre focused on technologies and possibilities, and involves a bit of many types of law, just as sci-fi involves many types of writing.

Ask yourself:

• Are you up on privacy laws?
• Do you know how libel and copyright law apply to Internet service providers ('ISPs')?
• How about online business taxation?
• Do 'COPPA' or 'COPA' make you immediately think of something besides a colloquial reference to a New York City police officer or a Barry Manilow song?

From privacy to business, to complex contracts to trade secrets to healthcare ' e-commerce law has it all, e-commerce specialist Stephen J. Meyers, a partner with Woodcock Washburn in Philadelphia, says.

'e-Commerce now embraces so many different fields of law that the first thing e-commerce attorneys should recognize is that omniscience is not given to them,' Meyers says.

That observation dovetails with advice from Olivera Medenica, of Wahab & Medenica in New York City. Medenica, a member of this newsletter's Board of Editors, is an expert in international business transactions, intellectual property rights and entertainment law ' all among the many intersecting areas of e-commerce law. Medenica suggests that e-commerce lawyers adopt humility and patience ' two traits, perhaps, that veteran lawyers might consider 'softer' characteristics. But they're useful.

'Your clients probably know more about technology than you do, and so you can learn from them,' she says of the need for humility, adding about patience, 'and opposing counsel might not be familiar with any of these issues at all.'

Although e-commerce attorneys aren't superhuman, they must be a certain type of lawyer ' a renaissance practitioner, for sure, with keen and diverse interests and curiosity ' if they're to serve their varied client base effectively.

'It would be rare, I think, for a single attorney to be skilled in all of the areas implicated by e-commerce,' Woodcock Washburn's Meyers says. 'These disciplines can run the gamut of subjects from state taxation of e-commerce to the operation of the HIPAA law.'

Consider: Nineteen states require companies to collect sales tax on online transactions, and HIPAA presents an even thicker morass of legal issues relating to privacy. For instance, telemedicine, with transactions ranging from the Internet transfer of patient data to digital storage of records in an electronic medical record ('EMR') system to tele-consultations, involves compliance with HIPAA and other laws ' such as the Privacy Act of 1974 (5 U.S.C. 552a (1998)) and the Freedom of Information Act ('FOIA,' codified at 5 U.S.C. 552 (1998)). Counsel must know what to tell e-commerce clients concerning these issues ' but two in a mass of concerns, and each of which has multiple elements. A spectrum of state laws also applies to HIPAA and e-business.

And such issues as online physical assessments and pharmaceuticals raise a quagmire of concerns best addressed by lawyers knowledgeable of the convergence of technology and commerce ' up-to-date e-commerce counsel. That, well-established e-commerce lawyers say, requires foresight and quickness.

'A good e-commerce attorney should not be hidebound, satisfied to look only to precedent to resolve e-commerce issues,' Meyers says. 'The Internet and Web are always going to overtake previous decisions and statutes, just as YouTube and Google preempted much of Congress' efforts to corral the Web in the DMCA (Digital Millennium Copyright Act).'

Oh, Yes, the DMCA

The DMCA is a prime example of why e-commerce counsel need versatility and adaptability (two more traits), because DMCA issues pop up aplenty in e-commerce. The law defines and affects online expression in the right to use content, among many other points. Lawyers must be up-to-date on how technology, court rulings and regulatory action affect their clients' business under the DMCA.

Then there's the touchy topic of children's access to Web site content and products sold online that might run afoul of such laws as the Children's Online Privacy Protection Act ('COPPA' ' on U.S.C. 15 '6501-6506). COPPA requires businesses conducting e-commerce with children to guard their safety and privacy, and to verify that children conducting online business are at least 13 years old, or have parental consent or a parent acting on their behalf if the children are under 13.

There's also CIPA, the Children's Internet Protection Act, not to be confused with COPPA ' and which shouldn't be confused with COPA, the Child Online Protection Act, which sought to restrict all Web sites' content, sexual or otherwise 'offensive,' from children, and was struck down last year by the Third Circuit as too restrictive.

No, CIPA is the federal law that requires schools and libraries participating in the E-Rate technology-grants program to institute policies and technology that blocks or filters Internet content on computers children use that would offend or harm them. The Federal Communications Commission, which mandates the policy, says CIPA addresses:

• Minors' access to inappropriate Internet matter;
• Minors' safety and security when using e-mail, chat rooms and other forms of direct electronic communications;
• Unauthorized access, including hacking and other unlawful activities, by minors online;
• Unauthorized disclosure, use and dissemination of personal information regarding minors; and
• Restricting minors' access to materials harmful to them.

Got that? See how these issues affect e-commerce clients? If not, crack the books, or cyberspace. And while you're at it, check out state laws passed after the courts killed COPA. There's nothing in e-commerce law like 'being there' ' wherever the needed information is ' for clients. It's what builds reputation, skill and revenue.

Flex Your Mind, and Your Practice

Being there ' that's a trait seasoned e-commerce counsel laud; put another way, it's being with it and being daring, but prudent.

'Phenomena such as Second Life and its avatars crop up that were never dreamed of in the philosophy of legislators, constantly rendering their handiwork, as the military says, OBE (overtaken by events),' Meyers adds. 'A lawyer willing to be among the first to strike out for a new territory, and not tread only in trails blazed by others, may suit an e-commerce practice better than his or her opposite.'

Medenica chimes in with flexibility.

'[You need] flexibility,' Medenica says. 'You are often dealing with new situations, new technologies. You need to be flexible in understanding how this impacts your client and the party with whom you are negotiating.'

Negotiation skills are important; e-commerce ventures often take parties into areas little-known and legally undeveloped.

'You need creativity ' you can't use 'form language' in all or most instances,' Medenica explains 'New situations require some creativity in being able to create a legal landscape that works for your client and is acceptable to 'opposing' counsel.'

Creativity plays a role in many areas of e-commerce law, from drafting content-sharing agreements to negotiating executive contracts. The 'e' in e-commerce is the same letter that begins the word ephemeral and, as e-commerce lawyer Stanley P. Jaskiewicz of Philadelphia's Spector Gadon Rosen and a regular contributor to this newsletter, often says about e-commerce businesses, 'Often, there's no there there.'

'In an industry that rewards innovation (innovation ' another important part of counseling e-commerce clients), e-commerce executives have demonstrated creativity in restructuring their perks, as well as their Web sites,' Jaskiewicz, also a member of our Board of Editors, wrote in a recent column. 'For example ' the need for remote work continues to be critical to e-commerce, and drives employee demand for perks that facilitate such work. With the stress of having to be available to everyone, all the time, everywhere, it's not surprising how many agreements specifically mandate certain health benefits, such as physicals and wellness programs, to keep executives alive and healthy; a dead e-commerce executive can't be replaced as easily as a failed router or hyperlink.'

Don't Forget Technology

Technology is e-commerce's backbone. J.T. Westermeier, of DLA Piper's Northern Virginia office, cautions e-commerce lawyers not to fall behind in technology knowledge.

Even if lawyers aren't techno-whizzes, 'they must be able to understand the technology applicable to e-commerce applications,' Westermeier, also an e-Commerce Law & Strategy Board of Editors member, says. e-Commerce technology is a many-faceted phenomenon. It involves how:

• Information is gathered;
• Information is stored;
• Data is backed up;
• Data breaches are handled;
• Long information should be held, and how;
• Personal data is encrypted;
• Terms-of-service agreements are accessed and displayed;
• Web-site and Web-page visits are tracked and the tracking disclosed;
• Clients communicate;
• Meetings are conducted; and
• Orders are taken and delivered.

These are all considerations ' just some of them ' in one aspect of e-commerce: technology.

Still, the core issues are legal ones, the experts say.

'If not at the core of e-commerce, then certainly within the vicinity, is a familiarity with intellectual property and, increasingly, privacy law,' Meyers says. 'An e-commerce attorney should have a solid grounding in at least these disciplines.'

With the global reach of e-commerce, counsel must also be aware of foreign law that affects clients ' something that 'speaks' to general acuity.

'e-Commerce attorneys must be monitory. They should ' anticipate that a client might unwittingly violate the European Directive of Privacy if the client's presence in Europe is recent,' Meyers adds. 'He or she will advise a client that its Web site promise not to disclose personal information must be adhered to, before the FTC cracks down on the client. Anticipatory, proactive counseling, then, is another valuable trait.'

All lawyers who commented for this article agree about the importance of IP in e-commerce. And Westermeier adds this advice for e-commerce lawyers:

• Know about e-commerce business models and how they work and fit into the regulatory scheme;
• Appreciate how intellectual-property legal strategies affect e-commerce applications;
• Know about Internet-related legal developments;
• Be particularly attentive to detail; and
• Be a good listener ' useful in many areas, but particularly for advising people who often are dreamers, and may have more imagination and drive than business savvy.

Last, But Not Least

And from Jacqueline Klosek, an e-commerce practitioner with Goodwin Proctor in New York City and a frequent speaker and author on e-commerce legalities, e-commerce counsel should be:

• Intellectually curious ' to have the desire to stay current with the rapidly changing legal environment;
• Innovative ' to find solutions to novel situations and adapt to change;
• Diplomatic ' to bring different constituencies to consensus and to deal with affiliates, clients and opponents; and
• Tenacious ' to keep at it, even when the going gets rough.

Now get practicing!

Some Qualities of Effective e-Commerce Counsel

• Versatility
• Creativity
• Humility
• Patience
• Diligence
• Adaptability
• Intellectual curiosity
• Negotiating skills
• Mental acuity
• Proactive
• Diplomatic
• Flexibility

Michael Lear-Olimpi is Editor-in-Chief of this newsletter. A veteran
journalist, he has written extensively on business process, technology and legal matters. Reach him at [email protected].

So, you want to be on the legal cutting edge, huh? You want to be an e-commerce lawyer!

Or maybe you're already there: a nimble niche-nifty practitioner directors and denizens of a strong, stable and speedily growing business sector seek and court.

But if you've grabbed the brass ring ' or you want to prepare to ' don't rest on your laurels too long. Experienced e-commerce counsel warn colleagues not to let the ever-shifting world of e-commerce catch them unaware. Traits of effective e-commerce counsel, culled from a cadre of some of these experts, follow.

e-Commerce Is a Genre Practice

It's not a stretch to say that practicing e-commerce is a little like writing science fiction: It's a niche genre focused on technologies and possibilities, and involves a bit of many types of law, just as sci-fi involves many types of writing.

Ask yourself:

• Are you up on privacy laws?
• Do you know how libel and copyright law apply to Internet service providers ('ISPs')?
• How about online business taxation?
• Do 'COPPA' or 'COPA' make you immediately think of something besides a colloquial reference to a New York City police officer or a Barry Manilow song?

From privacy to business, to complex contracts to trade secrets to healthcare ' e-commerce law has it all, e-commerce specialist Stephen J. Meyers, a partner with Woodcock Washburn in Philadelphia, says.

'e-Commerce now embraces so many different fields of law that the first thing e-commerce attorneys should recognize is that omniscience is not given to them,' Meyers says.

That observation dovetails with advice from Olivera Medenica, of Wahab & Medenica in New York City. Medenica, a member of this newsletter's Board of Editors, is an expert in international business transactions, intellectual property rights and entertainment law ' all among the many intersecting areas of e-commerce law. Medenica suggests that e-commerce lawyers adopt humility and patience ' two traits, perhaps, that veteran lawyers might consider 'softer' characteristics. But they're useful.

'Your clients probably know more about technology than you do, and so you can learn from them,' she says of the need for humility, adding about patience, 'and opposing counsel might not be familiar with any of these issues at all.'

Although e-commerce attorneys aren't superhuman, they must be a certain type of lawyer ' a renaissance practitioner, for sure, with keen and diverse interests and curiosity ' if they're to serve their varied client base effectively.

'It would be rare, I think, for a single attorney to be skilled in all of the areas implicated by e-commerce,' Woodcock Washburn's Meyers says. 'These disciplines can run the gamut of subjects from state taxation of e-commerce to the operation of the HIPAA law.'

Consider: Nineteen states require companies to collect sales tax on online transactions, and HIPAA presents an even thicker morass of legal issues relating to privacy. For instance, telemedicine, with transactions ranging from the Internet transfer of patient data to digital storage of records in an electronic medical record ('EMR') system to tele-consultations, involves compliance with HIPAA and other laws ' such as the Privacy Act of 1974 (5 U.S.C. 552a (1998)) and the Freedom of Information Act ('FOIA,' codified at 5 U.S.C. 552 (1998)). Counsel must know what to tell e-commerce clients concerning these issues ' but two in a mass of concerns, and each of which has multiple elements. A spectrum of state laws also applies to HIPAA and e-business.

And such issues as online physical assessments and pharmaceuticals raise a quagmire of concerns best addressed by lawyers knowledgeable of the convergence of technology and commerce ' up-to-date e-commerce counsel. That, well-established e-commerce lawyers say, requires foresight and quickness.

'A good e-commerce attorney should not be hidebound, satisfied to look only to precedent to resolve e-commerce issues,' Meyers says. 'The Internet and Web are always going to overtake previous decisions and statutes, just as YouTube and Google preempted much of Congress' efforts to corral the Web in the DMCA (Digital Millennium Copyright Act).'

Oh, Yes, the DMCA

The DMCA is a prime example of why e-commerce counsel need versatility and adaptability (two more traits), because DMCA issues pop up aplenty in e-commerce. The law defines and affects online expression in the right to use content, among many other points. Lawyers must be up-to-date on how technology, court rulings and regulatory action affect their clients' business under the DMCA.

Then there's the touchy topic of children's access to Web site content and products sold online that might run afoul of such laws as the Children's Online Privacy Protection Act ('COPPA' ' on U.S.C. 15 '6501-6506). COPPA requires businesses conducting e-commerce with children to guard their safety and privacy, and to verify that children conducting online business are at least 13 years old, or have parental consent or a parent acting on their behalf if the children are under 13.

There's also CIPA, the Children's Internet Protection Act, not to be confused with COPPA ' and which shouldn't be confused with COPA, the Child Online Protection Act, which sought to restrict all Web sites' content, sexual or otherwise 'offensive,' from children, and was struck down last year by the Third Circuit as too restrictive.

No, CIPA is the federal law that requires schools and libraries participating in the E-Rate technology-grants program to institute policies and technology that blocks or filters Internet content on computers children use that would offend or harm them. The Federal Communications Commission, which mandates the policy, says CIPA addresses:

• Minors' access to inappropriate Internet matter;
• Minors' safety and security when using e-mail, chat rooms and other forms of direct electronic communications;
• Unauthorized access, including hacking and other unlawful activities, by minors online;
• Unauthorized disclosure, use and dissemination of personal information regarding minors; and
• Restricting minors' access to materials harmful to them.

Got that? See how these issues affect e-commerce clients? If not, crack the books, or cyberspace. And while you're at it, check out state laws passed after the courts killed COPA. There's nothing in e-commerce law like 'being there' ' wherever the needed information is ' for clients. It's what builds reputation, skill and revenue.

Flex Your Mind, and Your Practice

Being there ' that's a trait seasoned e-commerce counsel laud; put another way, it's being with it and being daring, but prudent.

'Phenomena such as Second Life and its avatars crop up that were never dreamed of in the philosophy of legislators, constantly rendering their handiwork, as the military says, OBE (overtaken by events),' Meyers adds. 'A lawyer willing to be among the first to strike out for a new territory, and not tread only in trails blazed by others, may suit an e-commerce practice better than his or her opposite.'

Medenica chimes in with flexibility.

'[You need] flexibility,' Medenica says. 'You are often dealing with new situations, new technologies. You need to be flexible in understanding how this impacts your client and the party with whom you are negotiating.'

Negotiation skills are important; e-commerce ventures often take parties into areas little-known and legally undeveloped.

'You need creativity ' you can't use 'form language' in all or most instances,' Medenica explains 'New situations require some creativity in being able to create a legal landscape that works for your client and is acceptable to 'opposing' counsel.'

Creativity plays a role in many areas of e-commerce law, from drafting content-sharing agreements to negotiating executive contracts. The 'e' in e-commerce is the same letter that begins the word ephemeral and, as e-commerce lawyer Stanley P. Jaskiewicz of Philadelphia's Spector Gadon Rosen and a regular contributor to this newsletter, often says about e-commerce businesses, 'Often, there's no there there.'

'In an industry that rewards innovation (innovation ' another important part of counseling e-commerce clients), e-commerce executives have demonstrated creativity in restructuring their perks, as well as their Web sites,' Jaskiewicz, also a member of our Board of Editors, wrote in a recent column. 'For example ' the need for remote work continues to be critical to e-commerce, and drives employee demand for perks that facilitate such work. With the stress of having to be available to everyone, all the time, everywhere, it's not surprising how many agreements specifically mandate certain health benefits, such as physicals and wellness programs, to keep executives alive and healthy; a dead e-commerce executive can't be replaced as easily as a failed router or hyperlink.'

Don't Forget Technology

Technology is e-commerce's backbone. J.T. Westermeier, of DLA Piper's Northern Virginia office, cautions e-commerce lawyers not to fall behind in technology knowledge.

Even if lawyers aren't techno-whizzes, 'they must be able to understand the technology applicable to e-commerce applications,' Westermeier, also an e-Commerce Law & Strategy Board of Editors member, says. e-Commerce technology is a many-faceted phenomenon. It involves how:

• Information is gathered;
• Information is stored;
• Data is backed up;
• Data breaches are handled;
• Long information should be held, and how;
• Personal data is encrypted;
• Terms-of-service agreements are accessed and displayed;
• Web-site and Web-page visits are tracked and the tracking disclosed;
• Clients communicate;
• Meetings are conducted; and
• Orders are taken and delivered.

These are all considerations ' just some of them ' in one aspect of e-commerce: technology.

Still, the core issues are legal ones, the experts say.

'If not at the core of e-commerce, then certainly within the vicinity, is a familiarity with intellectual property and, increasingly, privacy law,' Meyers says. 'An e-commerce attorney should have a solid grounding in at least these disciplines.'

With the global reach of e-commerce, counsel must also be aware of foreign law that affects clients ' something that 'speaks' to general acuity.

'e-Commerce attorneys must be monitory. They should ' anticipate that a client might unwittingly violate the European Directive of Privacy if the client's presence in Europe is recent,' Meyers adds. 'He or she will advise a client that its Web site promise not to disclose personal information must be adhered to, before the FTC cracks down on the client. Anticipatory, proactive counseling, then, is another valuable trait.'

All lawyers who commented for this article agree about the importance of IP in e-commerce. And Westermeier adds this advice for e-commerce lawyers:

• Know about e-commerce business models and how they work and fit into the regulatory scheme;
• Appreciate how intellectual-property legal strategies affect e-commerce applications;
• Know about Internet-related legal developments;
• Be particularly attentive to detail; and
• Be a good listener ' useful in many areas, but particularly for advising people who often are dreamers, and may have more imagination and drive than business savvy.

Last, But Not Least

And from Jacqueline Klosek, an e-commerce practitioner with Goodwin Proctor in New York City and a frequent speaker and author on e-commerce legalities, e-commerce counsel should be:

• Intellectually curious ' to have the desire to stay current with the rapidly changing legal environment;
• Innovative ' to find solutions to novel situations and adapt to change;
• Diplomatic ' to bring different constituencies to consensus and to deal with affiliates, clients and opponents; and
• Tenacious ' to keep at it, even when the going gets rough.

Now get practicing!

Some Qualities of Effective e-Commerce Counsel

• Versatility
• Creativity
• Humility
• Patience
• Diligence
• Adaptability
• Intellectual curiosity
• Negotiating skills
• Mental acuity
• Proactive
• Diplomatic
• Flexibility

Michael Lear-Olimpi is Editor-in-Chief of this newsletter. A veteran
journalist, he has written extensively on business process, technology and legal matters. Reach him at [email protected].