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Top 5 Technology Legal Traps for AssociationsVenable LLP

August 24, 201010:45 AM – 12:00 PM

ASAE Annual MeetingLos Angeles, CA

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Electronic Contract Enforceability– Electronic contracts are generally enforceable in the

same manner as paper contracts – Electronic Signatures in Global and National Commerce Act (E-SIGN) took effect October 1, 2000

– However, the Statute of Frauds and the manner in which the assent to the electronic contract is made (or not made) can limit enforceability of electronic documents

– Mere notices are not always enforceable

Specific Terms and Conditions for Online Use of Intellectual Property– Notify users that content is protected intellectual property– State that unauthorized reproduction, distribution or

exhibition is prohibited– Consider using Terms and Conditions of Use

#1 – ONLINE / ELECTRONIC CONTRACTS

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#2 – SOCIAL MEDIA ISSUES

Copyright Infringement Risk in Interactive Websites– Includes websites that allow users to post

material that could violate others’ copyrights– Safe Harbor – Digital Millennium Copyright Act

(1) Organization must only host the material(2) Organization must avoid “publisher” status

Imposters & Social Media– (Tony) LaRussa v. Twitter, Inc., No. 03:2009cv02503

(N.D. Cal. filed June 5, 2009)

– Create a policy for creating and enforcing an “official” online identity

– Respond promptly to imposter claims or related activity

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#3 – TRADEMARK ISSUES

Watch Out for Trademark Violations through Keywords/SEO – Avoid using third-party trademarks as keywords– Remember that online advertisers don’t always enforce

restrictions on using certain terms that may be third-party trademarks

– Consider purchasing or registering own trademark as keyword and communicate with appropriate search engine or online advertiser if trademark is used improperly

Unauthorized Use of Trademark in User or Account Name– Periodically search for trademark violations in usernames and

avatars– Consider purchasing or registering own trademark as account

name and communicate with appropriate operator if trademark is misused

Monitoring Domain Names– Front Running – Register domain name with trademark

application and conduct online searches for websites with similar domain names

– Drop Catching – Timely renew domain names

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#4 – TECHNOLOGY USAGE ISSUES

Payment Card Industry Data Security Standard

– If using credit or debit cards to process payment transactions, be aware of the compliance requirements associated with PCI Data Security Standards

– Implement data protection and safeguards

Risks Associated with Employee Use of Mobile Devices

– Easier to avoid virus protection measures on the main network. Be careful with mobile devices or remote access. Consider anti-malware protection for mobile devices. Enforce permissible download policy.

– Protect sensitive information on lost or stolen mobile devices – remote data deletion, etc.

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#5 – EMPLOYEE ISSUES

Unauthorized Disclosure of Trade Secrets– Restrict remote employee access to, or disclosure of,

trade secrets to prevent authorized use– Monitor use of trade secrets on mobile devices– Prevent employees from storing trade secrets on

unauthorized mobile devices– Require employees to promptly report security breaches

Employer Risks Associated with Employee Content on Mobile Devices– City of Ontario v. Quon et al. – employer can monitor

employee texts on work phones– Ellender v. Neff Rental, Inc. - employer liable when

employee caused accident while conducting business on employer-issued phone

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Questions?

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contact information

Jeff TenenbaumChair of Nonprofit

Organizations PracticeVenable LLPWashington, DCjstenenbaum@venable.comt 202.344.8138

www.venable.com/associationswww.venable.com/associations/publications

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the road ahead for ABC CORPORATION