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Clapper, FISA, and the Future of Data Breach Litigation



Wednesday, May 29, 2013
1:00 PM - 2:30 PM ET
Product Code - LGA146
Speaker(s): Edward R. McNicholas, Sidley Austin LLP; Stephanie K. Pell, SKP Strategies, LLC
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The Foreign Intelligence Surveillance Act (FISA), permitting physical and electronic surveillance and collection of “foreign intelligence information,” became law in 1978 and has been continuously amended over the years, particularly after September 11, 2001. Recently, its expiration date was extended until 2017.

Clapper v. Amnesty International USA represents efforts by the civil liberties community to challenge certain aspects of how the FISA Amendments Act of 2008 “modernized” national security surveillance. It raises significant issues regarding cybersecurity in a world of enhanced information sharing. The decision itself is a fascinating example of judicial deference to Congress’ complex balancing of national security and civil liberties interests. It also has important implications for data breach cases because it stands for the idea that a fear of possible future privacy harms is not enough to bring a lawsuit.

Educational Objectives:

• Learn about the structure of surveillance under FISA.
• Understand the challenge that Clapper presented.
• Find out how to deploy Clapper outside of the national security context.

Who would benefit most from attending the program?

General counsel as well as attorneys and other professionals focused on cybersecurity, information security, enterprise risk management and privacy as well as counsel representing telecommunications companies.

Program Level: Advanced

Credit Available: CLE. For more information, please click on the “CLE Credit” tab.

Edward R. McNicholas, Sidley Austin LLP; Stephanie K. Pell, SKP Strategies, LLC

Edward R. McNicholas, Sidley Austin LLP
Edward R. McNicholas is a partner in the Washington, DC office of the international law firm Sidley Austin LLP and a global coordinator of its Privacy, Data Security, and Information Law practice. His practice focuses on clients facing complex information technology, constitutional and privacy issues. He has significant experience with a wide range of Internet and information law matters involving privacy and data protection, electronic surveillance, information security, cybersecurity, cloud computing, e-commerce, and national security. Mr. McNicholas previously served as an Associate Counsel to President Clinton, where he advised senior White House staff regarding various Independent Counsel, congressional and grand jury investigations.

Mr. McNicholas earned a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review. He earned an A.B. from Princeton University and served as a clerk for the Honorable Paul Niemeyer on the U.S. Court of Appeals for the Fourth Circuit.

Stephanie K. Pell, SKP Strategies, LLC
Stephanie K. Pell, founder of SKP Strategies, LLC, provides legislative, policy and government relations consulting across the cluster of communications privacy issues found at the nexus of law enforcement, national security, commercial and consumer interests, including electronic surveillance and wiretapping; location-based information and services; cloud computing; cybersecurity; information sharing; and data retention issues. In October 2012, Ms. Pell became a Non-resident Fellow at Stanford Law School’s Center for Internet and Society and, in conjunction with that affiliation, has authored a forthcoming article about the legal, technological, political and policy implications of United States v. Jones, 132 S. Ct. 945 (2012) entitled "Jonesing For a Privacy Mandate, Getting a Technology Fix—Doctrine To Follow," which will be published in the May 2013 symposium edition of the North Carolina Journal of Law and Technology.

Prior to founding her current firm, Ms. Pell served as Counsel to the Judiciary Committee of the U.S. House of Representatives (on detail from the Department of Justice), where she was the Democratic Majority’s lead counsel on Electronic Communications Privacy Act (ECPA) reform and PATRIOT Act reauthorization during the 111th Congress. Prior to leaving the Department of Justice in January 2011, Ms. Pell had been a federal prosecutor for over fourteen years, working as a Senior Counsel to the Deputy Attorney General, as a Counsel to the Assistant Attorney General of the National Security Division, and as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the Southern District of Florida. She was a lead prosecutor in U.S. v. Jose Padilla (American Citizen detained as an enemy combatant prior to criminal indictment and trial) and in U.S. v. Conor Claxton (IRA operatives who purchased weapons in South Florida and smuggled them into Belfast, Northern Ireland during peace process negotiations). Ms. Pell earned undergraduate, master’s, and law degrees from the University of North Carolina at Chapel Hill.

This program’s CLE-credit eligibility varies by state. Bloomberg BNA is an accredited provider in the states of New York, California, Pennsylvania, Texas and Virginia, and most other jurisdictions grant CLE credit on a per-program basis. At this time, Bloomberg BNA does not apply directly to the states of Florida, Rhode Island, Montana and Hawaii although credit is usually available for attorneys who wish to apply individually. Additionally, the following states currently do not grant credit for Bloomberg BNA OnDemand programming: Arkansas, Ohio, Nebraska, and Delaware. All requests are subject to approval once the live webinar has taken place or the customer has viewed the OnDemand version. Please contact the Bloomberg BNA accreditations desk if you have specific questions that have not been addressed.

If you have further questions regarding a specific state or how to file for CLE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditation Coordinator.

Hardship Policy
Bloomberg BNA offers a hardship policy for attorneys earning less than $50,000 per year. If an attorney wishes to take advantage of this option, he or she must contact Bloomberg BNA directly. For attorneys who are unemployed or earning less than $35,000 per year, a full discount off the price of the program will be awarded upon written proof of hardship. Attorneys earning between $35,000 and $50,000 per year will receive a 50% discount off the price of the program. Any attorney working in the public service sector also qualifies for a special price. If you have further questions regarding the hardship policy or seek additional information, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditations Coordinator, or email us at accreditations@bna.com.

Questions
For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at http://www.abanet.org/cle/mandatory.html.

• Bloomberg BNA Subscriber - Webinar and OnDemand formats $149
• Non-Subscriber - Webinar and OnDemand formats $224
• CD with webinar registration $75
• CD without webinar registration $224 / $149

Only paid registrants are eligible for CLE credit for both webinars and OnDemand offerings.

Registration for Legal & Business programs is simple. You may either visit the registration page to register –or– call 1-800-372-1033, Option 6, and refer to the date and title of the program. Lines are open Monday through Friday from 8:00 a.m. to 8:00 p.m. ET.