Unprecedented

Duration: 20:01

How far should the arm of the law reach when it comes to data stored overseas?

That's a question that courts continue to struggle with, even after U.S. tech companies scored a landmark win last year in favor of limiting what authorities can obtain when it comes to foreign-stored data.

Prosecutors investigating crimes in their jurisdiction demand access to suspects' emails and other communications no matter where the data is stored. But companies say complying could put them in conflict with the legal privacy frameworks of other countries. Lately, companies like Google Inc. and Yahoo Inc. have been on the losing side of the battle.

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In this podcast, we talk to Morgan, Lewis & Bockius partner and former Department of Justice criminal attorney Mark Krotoski to understand the controversy around the scope of the 1986 Stored Communications Act. What he sees is a novel, technical issue colliding with an ill-fitting legal framework. "Because of that—and because there's no established precedent—you're getting different decisions from different judges," Krotoski says.

Ahead of a U.S. Senate Judiciary Committee hearing on the scope of the law this week, Krotoski says courts are looking to the legislature to help settle the fight—something Google has also called for. "I think most would agree that if Congress weighed in we'd have more clarity as to the limits and guidelines for the collection of data. But until then, we've got this old statute that has to be applied in this new, evolving area."

Duration: 32:18

In this episode of Unprecedented, we talk with Cogan Schneier, a reporter for The National Law Journal who wrote about the groundbreaking privacy and civil rights lawsuit when it was filed last week. "While the lawsuit doesn't have any smoking gun … if it were to make it past the initial stages and say go into discovery, there would be a lot of interesting information that would likely come out of that," Schneier says.

We also hear from Andrew Wright, an attorney in the Obama White House who's now a law professor at Savannah Law School and a contributor to the legal news blog Just Security. Wright puts the case in its historical context — stretching back to the Watergate break-in — and talks about some of the hurdles it will likely face in court.

Duration: 19:38

Autonomous vehicles have been in the news a lot lately. Tesla Motors was just hit with a class action lawsuit alleging that its autopilot technology puts drivers in danger when engaged. And in March, the California Department of Motor Vehicles released proposed regulations for fully autonomous vehicles—the kind that wouldn't have a driver at all. It was a move that left a lot of people thinking that the future of transportation is getting here a lot faster than we thought.

But with all this advanced technology, is the law ready to deal with who should be held liable when there's a crash? In this podcast, we hear from insurance litigator Dennis Cusack of Farella Braun + Martel, Ford Motor Co. in-house counsel Emily Frascaroli, and Baker McKenzie's Lothar Determann, who has written about the "open" driverless car. If there's one takeaway, it's that things are about to get complicated for automakers.

"I think the presumption we're going to have out the outset is that, if there is an accident with a fully autonomous car, the car and the manufacturer, are going to be at fault," Cusack said.

Duration: 21:16

The lawsuit by Waymo, Google's autonomous car division, against Silicon Valley rival Uber is not your normal trade secrets case. The litigation has moved at a breakneck clip since being launched at the end of February. Waymo has alleged an elaborate plot by Uber to steal highly valuable technology and cover its tracks. A top engineer at Uber has invoked the Fifth Amendment. And the judge has flagged the case to federal prosecutors for a possible criminal investigation.

In this episode of Unprecedented, we talk with veteran federal prosecutor-turned-white collar defense lawyer Jeffrey Bornstein of Rosen Bien Galvan & Grunfeld. Speaking at his San Francisco office, Bornstein gives us a look at how the criminal aspects of this case could play out, and also argues that the judge in the case may be setting a "dangerous precedent" by pressuring the Uber engineer, Anthony Levandowski, to yield his Fifth Amendment rights.

We also hear from James Pooley, a lawyer for Orrick, Herrington & Sutcliffe in Palo Alto who has been on the front lines of efforts to strengthen legal protections for trade secrets. He tells us that while Waymo's lawyers have enjoyed some limited success, they'll have to jettison at least some of their 121 claimed trade secrets moving forward. "I don't think there's any doubt that they're going to winnow down that list," he said. "The first rule of something like this is, 'Listen to the judge,' and the judge has told them he thinks this is way too broad."

Duration: 34:11 When Rajesh De was first approached about joining the National Security Agency as its general counsel, advisers warned him he might be the last person standing between a free democracy and an Orwellian surveillance program. The reality wasn't quite so dramatic, says De, who also served in the Obama White House and is now a partner at Mayer Brown. But during his tenure, what was long known as "No Such Agency" was forced to confront just how secret it really needed to be after the leaks by Edward Snowden. In this episode of Unprecedented, De talks about surveillance reforms post-Snowden, the role of cybersecurity attorneys in an era of state-sponsored hacking, and draws a line between leaks of White House gossip and spilling classified information. "I do think the government has a solemn responsibility not to be overly secretive," he says.

Duration: 28:49 The litigation finance industry is heating up in the U.S. as new funders enter the market and hire away Big Law attorneys to fill their ranks. Another sign of this trend: Burford Capital, one of the largest litigation funders, recently announced it had poured almost half a billion dollars into litigation finance in just the first half of this year after its game-changing acquisition of Gerchen Keller. In this episode of Unprecedented, Burford managing director and Gerchen Keller alum Travis Lenkner talks about the effect of all that money pouring into the legal system. "The changes that might be brought on by litigation finance are no different from the changes that clients in complex commercial litigation matters have been pushing now for many years," he says. Lenkner also talks about why the industry is growing, and what happens when funding becomes commonplace.