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The 4th Annual
Doing Business With DoD & The IC
Tuesday, December 3, 2019
Legal Issues In Defense & Intel Contracting In The New
Information Environment
Mr. Kevin Pomfret
Tuesday, December 3, 2019
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Presenter
Kevin D. Pomfret
Part...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
New Information Environment
“We...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Challenge of Increase in Tech T...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Key Legal Challenges
 National...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Data Ecosystem – New Platforms
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Data Ecosystem – New Applicatio...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Proposed CFIUS Regulations
 FI...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Data is Like Life
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Strata Heat Map
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Data Ecosystem
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Increased Concerns Over Unclass...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Cybersecurity vs. Privacy
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Perceptions of Privacy are Chan...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
…Creating a Privacy Paradox
St....
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Privacy is a Bucket for New Tec...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Several Initiatives in U.S. at ...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
California Consumer Privacy Act...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Value In Information Is In Aggr...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Role of Data Sharing/License Ag...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Other Challenges
 Derivative p...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Data Is Versatile, But Data May...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Liability
 Brocklesby v. U.S.,...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Integrated Coastal and Ocean Ob...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Where Are We Going?
 Future ap...
Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019
Questions
Kevin D. Pomfret
Part...
Legal Issues in Defense & Intel Contracting In The New Information Environment
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Legal Issues in Defense & Intel Contracting In The New Information Environment

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From the 4th Annual Doing Business with the DoD and The Intel Community. By Mr. Kevin Pomfret - WILLIAMS MULLEN.

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Legal Issues in Defense & Intel Contracting In The New Information Environment

  1. 1. The 4th Annual Doing Business With DoD & The IC Tuesday, December 3, 2019
  2. 2. Legal Issues In Defense & Intel Contracting In The New Information Environment Mr. Kevin Pomfret Tuesday, December 3, 2019
  3. 3. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Presenter Kevin D. Pomfret Partner Williams Mullen (703) 760-5204 kpomfret@williamsmullen.com
  4. 4. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 New Information Environment “We find ourselves again at a point where we have to reimagine how this magical mission of intelligence is going to be effective, because this is a world where the threats are to and through information. It is a world of ubiquitous technology, of digital connectedness and data abundance. And those three things are so different and will challenge so many things that we thought.” Sue Gordon, then Principal Deputy Director of National Intelligence, at GEOINT 2019
  5. 5. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Challenge of Increase in Tech That Collects and Uses Data  Growing number of technologies that can collect process, aggregate, analyze and visualize data.  Exponentially increases the value of each piece of data.  Much of this work goes on behind the scenes and only comes to light when either:  Something goes wrong.  There is a report in the media.  Data is an asset – need to protect value and reduce risk.  Legal and policy communities are trying to keep up.
  6. 6. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Key Legal Challenges  National Security  Cybersecurity/Privacy  Intellectual Property Rights  Data Quality
  7. 7. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Data Ecosystem – New Platforms
  8. 8. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Data Ecosystem – New Applications
  9. 9. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Proposed CFIUS Regulations  FIRRMA expands CFIUS’s jurisdiction to include covered investments by a foreign person in an unaffiliated U.S. business that maintains or collects sensitive personal data of U.S. citizens that “may be exploited in a manner that threatens to harm national security.”  In particular, the proposed rule identifies specific categories of data that constitute sensitive personal data only if the U.S. business (a) targets or tailors its products or services to sensitive U.S. Government personnel or contractors, (b) maintains or collects such data on greater than one million individuals, or (c) has a demonstrated business objective to maintain or collect such data on greater than one million individuals and such data is an integrated part of the U.S. business’s primary products or services. The proposed definition also includes all genetic information and generally carves out data pertaining to a U.S. business’s own employees.
  10. 10. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Data is Like Life
  11. 11. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Strata Heat Map
  12. 12. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Data Ecosystem
  13. 13. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Increased Concerns Over Unclassified Data  Cybersecurity Maturity Model Certification (CMMC)  Finalize in January 2020  Include in RFI’s in June 2020  Five levels of certification  Protects: o Federal Contract Information (FCI) o Controlled Unclassified Information (CUI)
  14. 14. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Cybersecurity vs. Privacy
  15. 15. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Perceptions of Privacy are Changing… St. Peter’s Square – 2005 Luca Bruno/AP
  16. 16. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 …Creating a Privacy Paradox St. Peter’s Square – 2013 Michael Sohn/AP
  17. 17. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Privacy is a Bucket for New Technologies That Make Us Uncomfortable
  18. 18. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Several Initiatives in U.S. at Federal Level  Congress has held several hearings and several bills have been introduced.  Industry is proposing federal legislation.  Federal Trade Commission holding hearings.  Suggests federal legislation is likely in next several years.
  19. 19. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 California Consumer Privacy Act  Privacy law broadly applicable to businesses (regardless of location) that collect personal information about California residents  Effective January 1, 2020 (though ahead of this date further amendments are expected and the CA Attorney General is to issue implementing regulations)  Data breach private right of action available from January 1, 2020  Privacy provisions enforceable by CA AG sometime between January 1, 2020 and July 1, 2020  Substantial new rights for CA residents  Significant operational impacts for covered business, likely require significant time and effort to prepare  Broad definitions and scope
  20. 20. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Value In Information Is In Aggregating and Sharing
  21. 21. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Role of Data Sharing/License Agreements  Data is licensed, not sold.  Both parties continue to have rights and responsibilities in data.  A data sharing/license agreement is where those rights and responsibilities are defined.  It is more than just a transfer of intellectual property rights – it is an allocation of risk.  If an issue is not covered in the agreement, parties are letting others decide who is responsible.
  22. 22. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Other Challenges  Derivative products  What constitutes a derivative product?  Meta Data  How is it accounted for in legal documents? o In description of what is being licensed? o In representations and warranties? o In indemnification language?
  23. 23. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Data Is Versatile, But Data May Not Be Suitable for All Purposes  The quality of data required for a particular application varies.  Accuracy  Completeness  Timeliness  Precision  How to allocate risk between parties?  Contract  Legislation  Insurance  Courts
  24. 24. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Liability  Brocklesby v. U.S.,767 F.2d 1288 (9th Cir. 1985) All of the defects in the Jeppeson Chart System stemmed from the Government’s alleged failure to establish a safe instrument approach procedure. “Jeppesen's charts are more than just a republication of the text of the government's procedures. Jeppesen converts a government procedure from text into graphic form and represents that the chart contains all necessary information. . . [a]s the manufacturer and marketer of those products, Jeppesen assumed the responsibility for ensuring that the charts are not unreasonably dangerous in their intended use.”
  25. 25. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Integrated Coastal and Ocean Observation System Act of 2009  Section 12304(e): Civil Liability – For purposes of determining liability arising from the dissemination and use of observation data gathered pursuant to this section, any non‐Federal asset or regional information coordination entity incorporated into the System by contract, lease, grant, or cooperative agreement under subsection (c)(3)(D) that is participating in the System shall be considered to be part of the National Oceanic and Atmospheric Administration. Any employee of such a non‐Federal asset or regional information coordination entity, while operating within the scope of his or her employment in carrying out the purposes of this subtitle, with respect to tort liability, is deemed to be an employee of the Federal Government.
  26. 26. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Where Are We Going?  Future applications will include information from a greater number of sources  Drones  Internet of Things  Small Sats  Future applications will require even a greater degree of accuracy, timeliness and completeness  Artificial Intelligence  Autonomous Vehicles  Smart Cities  Increases risks of error and damages
  27. 27. Legal Issues In Defense & Intel Contracting In The New Information Environment– 12/03/2019 Questions Kevin D. Pomfret Partner Williams Mullen (703) 760-5204 kpomfret@williamsmullen.com

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