Welcome back for another week of What's Next, where we report on the intersection of law and technology. Here's what we've got for you today:

>> Privacy might not be the top concern for a Congressionally appointed commission that could shape the future of AI law.

>> What will telehealth regulations look like after the pandemic?

>> Uber's legal team makes cuts.

Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

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What EPIC's FOIA Case Might Reveal About the AI Commission's Priorities

In December, the Electronic Privacy Information Center convinced a federal judge in Washington, D.C., to order the National Security Commission on AI to comply with a Freedom of Information Act request.

EPIC's goal behind its lawsuit was to create more transparency around the AI Commission, an independent group Congress created to "advance the development of artificial intelligence" and offer policy proposals in the interest of national security. Originally, the commission did not post agendas and meeting notices, and didn't even have a website, said EPIC Counsel John Davisson.

Since the order, EPIC has received 150,000 pages from the AI Commission, and Davisson said the center is "just starting to scratch the surface."

From the documents, Davisson said it's clear the AI Commission is focused on resource allocation, development of human capital, and ensuring the U.S. maintains an edge in the global realm of artificial intelligence, especially over China.

But with the scant mention of privacy concerns and some language cautioning against Europe's "privacy-first approach" to regulations, it's possible protecting privacy and human rights are not at the top of the commission's to-do list.

Davisson said besides shining a light on how AI policy is being created, the primary goal of the legal action is to ensure the commission is taking privacy and human rights safeguards seriously as it crafts possible advice for the federal government. "There are some signs from the commission that this is a tertiary consideration," he said.

But that's a sentiment that could be shifting. Earlier this month, the AI Commission released a white paper on the privacy and ethics of contact tracing during the global health crisis. "We were very impressed, they hit all the right notes," Davisson said.

U.S. District Judge Trevor McFadden of the U.S. District Court for the District of Columbia has yet to rule on the Commission's partial motion to dismiss EPIC's claims under the Federal Advisory Committee Act. The commision claims the act does not apply since it "is not an advisory committee," according to a memorandum in support of the motion.

"We think artificial intelligence is an immensely complicated subject area that requires the sustained attention of experts, so we think it's great this commission exists, but it's important that among those top considerations the commission be looking at privacy, human rights and civil liberties, also," Davisson said.

 

Pandemic Routes Telehealth on the Regulatory Fastrack

We can add telehealth to the long list of things that will not return to "business as usual" after the pandemic subsides, according to DLA Piper's Kristi Kung.

The Surgeon General, Congress, federal agencies and state legislatures have promoted telemedicine and loosened certain regulations amid the pandemic to safely and efficiently treat patients as the pandemic overwhelms healthcare providers.

Certain jurisdictions have eased requirements around reimbursements, privacy and cybersecurity, licensure and prescriptions.

For instance, The U.S. Department of Health & Human Services' Office of Civil Rights, which enforces HIPAA, has issued a notice of enforcement discretion during the pandemic. The notice provides HIPAA leniency to telehealth providers acting in good faith who use non-public facing technologies to remotely care for patients. That means healthcare companies can use platforms such as Zoom for Healthcare, Skype for Business, Google Meet and GoToMeeting without entering a business associate agreement with those companies. The agency warned, however, that Facebook Live, Twitch and TikTok are not covered under the notice.

The Office of Civil Rights did encourage healthcare providers to seek safeguards such as encryption, but "if they're using them in good faith, even if they might have been negligent in applying certain safeguards available through the technology, supposedly the notice of enforcement discretion would apply and OCR would not penalize them for any potential breach that would occur," Kung said.

Kung does expect these privacy regulations to snap back after the pandemic, but she also anticipates more stringent laws in response to spikes in cybercrime as businesses transition to remote operations.

"With privacy issues raised through contact tracing programs and biometrics, I think we're going to see a lot more states that take interest in those privacy laws and create some additional laws to address those risks going forward," she said.

But telehealth providers shouldn't expect the same grace from the U.S. Department of Justice. Kung said U.S. attorneys often see telemedicine as a vehicle to commit fraud. "The DOJ is very skeptical of telemedicine, and we're likely to see a lot of enforcement actions come out after the pandemic, with respect to even services delivered during the pandemic," she said.

Tony West, Uber senior vice president, chief legal officer, delivers a keynote address at Bloomberg Law's In-House Forum West. Photo: Jason Doiy/The Recorder

 

Uber's Payroll Cuts Bleed Into Legal

Last week, Uber announced that 3,000 more jobs were on the chopping block as a result of the pandemic-induced economic spiral. The announcement came almost two weeks after the company announced that 3,700 customer support and recruiting employees would lose their jobs. CEO Dara Khosrowshahi said, in addition to the job cuts, the company would shutter or streamline 45 global offices and is looking into folding other ventures, such as Uber Freight, according to the Wall Street Journal.

Law.com's Sarah Tincher reported that the legal department was not spared from the cuts.

Uber launched a Talent Directory to help former employees market themselves to potential employers. At least 18 members of the legal department have opted in to be featured on the Talent Directory as of Tuesday.

"I'm deeply sorry we're facing these unprecedented circumstances that have required us to make some very hard, very tough decisions," Chief Legal Officer Tony West said in an email to his team Monday. "Yet those decisions don't diminish the important contributions our former teammates have made to building Uber, and I know the talent, skill, grit and optimism that made them valued members of Team CLO are qualities that will always be in demand—global pandemic or not."

 

On the Radar

Meet the Hacker Groups Snatching Law Firms' Client Data "This shows for law firms, no matter the practice you have—this isn't just being a supplier to a bank—you could be practicing family law or in this case entertainment law and it makes you a lucrative target," said Mark Sangster, vice president and industry security strategist of cybersecurity firm eSentire. Read more from Victoria Hudgins here.

Female Justices Were Cut Off More Than Colleagues During Phone Arguments, Study Says "I doubt CJ Roberts purposely exercises ideological favoritism here. I hope making him aware of the pattern will help him better execute the tough job of running a meeting while participating in it," Richard Primus of the University of Michigan Law School said on Twitter. Read more from Marcia Coyle here.

Former Tesla In-House Lawyer Takes on GC Role For Lucid Motors "I was a bit concerned about switching to a new job in the middle of a pandemic," he said. "But, frankly, it's gone off seamlessly and the company has remained incredibly productive while working remotely." Read more from Phillip Bantz here.

Thanks for reading. We will be back next week with more What's Next. Stay safe and healthy, everyone!