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:

➤➤ TCPA lawyer expects the unexpected in Facebook case before the Supreme Court.

➤➤ A state court gets Zoombombed.

➤➤ @realDonaldTrump will remain on Twitter after a nonprofit's failed attempt to compel Twitter to delete his account.

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

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Announcing Two Incredible Keynote Speakers for the Women, Influence & Power in Law Conference

WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

TCPA Community Readies For SCOTUS Battle

It's been a busy few days for Snell & Wilmer partner Becca Wahlquist. The Los Angeles partner specializes in Telephone Consumer Protection Act litigation, and since the U.S. Supreme Court granted cert in Facebook's TCPA case Thursday, Wahlquist has been helping clients decide if they want to continue to fight their cases or wait and see what the high court has to say.

"Some people want to press forward while the law is still on their side," she said.

But what exactly the justices will have to say about the law remains somewhat of a mystery.

The Facebook case, Facebook v. Duguid, seeks to squash a circuit split over a key TCPA definition: What the heck is an ATDS, or automatic telephone dialing system?

The law makes clear that companies cannot use ATDS to contact consumers without their consent, but courts have not agreed on the definition of the device. The U.S. Court of Appeals for the Ninth and Second circuits have ruled that an ATDS does not need to use a random or sequential number generator, it just needs to store numbers and dial automatically. The Eleventh and Seventh circuits, however, ruled earlier this year that a random or sequential number generator is essential to proving the illegal use of an ATDS.

"Considering how varied the opinions from the circuit have been, and so much in opposition, it will be hard to get a real good sense of how things are shaking out," Wahlquist said. "I'm really waiting for the oral argument to find out what questions are being asked."

The Facebook TCPA lawsuit brought by Noah Duguid, a non-Facebook user who received security alerts from the social media platform, is likely a case of a reassigned number, according to Facebook's petition. Wahlquist doesn't think SCOTUS will really touch the reassigned number issue; she suspects they'll zero in on the ATDS definition.

The Snell attorney said that she was on pins and needles waiting for SCOTUS to pick up the case, as the Federal Trade Commission issued more conflicting guidance, finding that a system is not an ATDS if calls are initiated manually. If the court hadn't picked up the Facebook case, Wahlquist said giant portions of her next year would have involved briefing on that issue.

She also suspects a flood of amici briefs on both sides. "There's so much money involved in this litigation—peoples' livelihoods depend on having a certain definition of this system."

Regardless of the ruling, she looks forward to having more certainty in TCPA litigation.

"At least we'll know what the law is, and then businesses can plan accordingly," she said.

Zoombomb Hits Close to Home

Earlier this week, an online state court hearing had some unexpected visitors. As San Francisco Superior Court Judge Ethan Schulman was making his way through his virtual law and motions calendar, several participants joined blasting expletive-laden music and dancing, according to a lawyer on the Zoom call.

The intruders interrupted Alison Cordova, one of the roughly 60 participants, as she was making arguments in a personal injury case against the city over a man who was shot and killed with a gun stolen from a police car.

Cordova, a partner with Cotchett, Pitre & McCarthy, which is co-leading a Zoom privacy class action in the Northern District of California, said the ordeal was frustrating. "We have professional, important things to get done," she said. "The public wants access to these hearings, and they should have it, but it shouldn't be abused."

She said it appeared that Schulman didn't have an administrator helping him lead the technical aspects of the videoconference. But she said the judge remained calm and collected and repeatedly booted the offenders from the meeting.

The Zoom call-in info and password is listed on the court's website, which is one way the public could enter the meeting.

Ken Garcia, the court's director of communications said that the hearing wasn't so much hacked, "as it was people joining the video conference who had no reason to be there." He said the court's IT staff is looking to see how the situation can be avoided in the future.

On the bright side, the dancing disruptors might appear tame in comparison to the pornographic content that made its way into a Florida court hearing last week.

'Not a Close Case': Section 230 Means Trump Can Tweet On

Backed by Section 230 of the Communications Decency Act, Twitter and its Cooley counsel batted away a lawsuit seeking a writ of mandate and declaratory judgement finding that President Donald Trump violated Twitter's rules and that the social media platform acted arbitrarily and capriciously in its enforcement of is policies against the President's account. The lawsuit also sought an injunction forcing Twitter to boot Trump's account from the website.

"In the court's view, this is not a close case: Twitter did not author the statements at issue; it did not edit them or otherwise materially contribute to their content; nor did it select them for publication," wrote San Francisco Superior Court Judge Ethan Schulman in an order Monday.

The plaintiff, a nonprofit called Constituents for Thoughtful Governance, alleged that Twitter has a "policy of non-enforcement" regarding Trump's tweets. Even if that was the case, Schulman found, Twitter still would not be responsible for Trump's posts.

"Twitter is immune under Section 230 for its exercise of a publisher's traditional editorial functions, including deciding whether to publish, withdraw, postpone or alter content supplied by a third party," he wrote.

Twitter motioned to strike the lawsuit on anti-SLAPP grounds, but the group claimed that the lawsuit fell within exemptions to the law.

The judge was unpersuaded. The public interest exemption would not apply, because the lawsuit would result in "less speech rather than more," according to the judge, and Twitter's advertising sales is not enough to qualify for the statute's commercial speech exemption. Even if the group and its California counsel Peter Borenstein did prevail on those arguments, the judge said that Trump's political Tweets fall squarely into an exception to those exemptions that aims to safeguard "the most important forms of protected speech."

On the Radar

The Machines Influencing Criminal Justice Decisions For courts, probation departments, parole boards, pretrial agencies, and other institutions, there's no lack of options. "Almost everybody that is going to use an assessment tool has an assessment tool, and when they go to make a change, they either look at what's out there or they decide to do something themselves. So from an economic perspective the market is pretty saturated," says Dr. Edward Latessa, a professor and director of the School of Criminal Justice at University of Cincinnati who helped develop the Ohio Risk Assessment System (ORAS), a set of 10 different assessment tools. Read more from Rhys Dipshan, Victoria Hudgins and Frank Ready here.

Goodwin Lands Former SEC Attorney, Cooley Blockchain Practice Co-Chair "They have not lost confidence," said Goodwin Procter partner Karen Ubell of cryptocurrency investors during the pandemic. "Investors are still deploying capital and finding innovative ways to utilize blockchain technology." Read more from Patrick Smith here.

Is The Rise in AI Use Damaging Junior Lawyers' Skills? "I think it's going to keep being the case where software is going to be developed to get rid of mundane tasks, but there are always going to be slightly different aspects to individual deals, so what I typically tend to say to trainees is that they can use AI to check things, but they need to do the manual one too," said an associate at a transatlantic firm. Read more from Hannah Roberts here.

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