Time to Rumble
Who will survive?
For this round of the newsletter, we are setting up some brutal cullings (of your inbox and your company website) before a pastoral palate-cleanser. Happy Spring!
How We Do It: Inbox Thunderdome
In the legal departments of tech companies, there’s a scary reality: if you can thoroughly 100% complete every task on your plate, either the business is going nowhere, or your position is about to be eliminated. Product counsel in particular have very little rote work to cover, so time and brain space are precious. Some of the gap between what could get done and what actually gets done is about efficiency, which requires experimenting to figure out what tools work for you personally.
The rest, however, is brutal, split-second, strategic prioritization. When I need to prioritize, I don’t just focus on the most important things first and then deal with the rest of the list in the same way. The rest of the list gets a completely different approach. Sometimes, that approach is lighter or less thorough. Sometimes it’s not going to get done at all. Identifying what goes in what category and gets what treatment is something that takes experience and wisdom. Let’s look at those categories from least thorough to most thorough approach, so we can get overachieving lawyer brains through the most terrifying parts first.
Nopes. Trying to do everything for everyone is a path to burning yourself out and eventually failing your clients and colleagues anyhow. You have got to identify the things you are not going to look at. When I first started out, I got a lot of comfort from clearing out my inbox by answering every single email request, pinning every chat until I responded, and making myself in general as available as possible as a resource. Over time, as that became untenable, I crawled into a hole of overwhelm and shame at disappointing so many people. Salvation came through a fun game called Nope. To play Nope, all you have to do is hunt through your new pings and emails until you find one from a person you don’t recognize on a subject that isn’t your area of coverage. When you find this little gift, say out loud to yourself, “Nope!” and hit the delete key. You may choose to archive these notes, but I find that actually deleting them is more satisfying and effective.
The glory of Nope is that Noping an inquiry does not make it disappear from the universe. Just as toddlers learn that closing our eyes does not make the world vanish for the rest of humanity, the inquiry continues to exist in the heart and mind of the person who sent it. That person has the incentive and opportunity to pursue the inquiry as they see fit. If you were the right person to answer the question, fantastic! You will get a clarified follow up and can address it as needed. Otherwise, someone better equipped than you can take the reins; your precious minutes, both answering the email and shifting your overtaxed brain to think of the answer, are saved.
Is this a brutal approach? Yes. Will you occasionally miss immediately responding to a question you could have, or even should have, easily resolved? Absolutely. You are getting questions because you are competent and personable. Unless you train people otherwise, many will send you their problems because you are most likely to respond to them. This often requires that you project manage someone else’s crappy corporate communication strategy; you may even delay the right solution with your well intended flailing. Resist! Play Nope, enthusiastically and frequently, and you will empower others to solve their own problems.
Punts. This is essentially the kinder version of a Nope. Reserve it for when you get a request not in your assigned area that does not pique your interest, but a) comes from someone you like, respect, and/or need to cultivate a relationship with, or b) you’ve already Noped the request but it keeps coming back. Reply with a single polite sentence noting you cannot assist and offering anything you know about the right direction to proceed. I found it helpful to have a ready to go response for anyone asking for further help after a good solid Punt: “Sorry, I don’t have any more context on this one.”
I could call it a referral or something, but I don’t want to sugarcoat the reality. When you punt something, you wash your hands of it. Unless someone comes back with a very good reason why you should be further involved and bump the issue to MVP status, your job is done.
MVPs. One of my favorite moments in tech was realizing my product teams were not referencing “most valuable player” when they talked about MVPs. They were talking about building “minimum viable products,” the most bare bones version still able to ship. You use it for testing, to better understand overall demand, and hopefully to figure out some lessons before investing in an advanced version. Sometimes you learn you need a different approach; sometimes, you learn that the product didn’t need to exist at all. Time and headaches saved, and the designers and engineers rejoice.
You too will rejoice once you’re used to the MVP(ish) approach. When you spot an issue that truly needs your attention, think hard about the absolute least you can do to push it forward before getting more input. For information gathering, often a five minute discussion with someone you trust will orient you better than a half hour meeting with all the key players. And a short email documenting what’s settled and what’s still unknown will help you gauge how important the long tail of legal details really are to your colleagues and clients. If it turns out the issue needs more attention, it can easily graduate to High Priority status, but be stingy with what gets that label out the gate.
High priority. Truly, the promised land! You already know how to deal with these. Immerse yourself, build relationships, do whatever meditation or microdosing will bring you to full galaxy brain, and then create those beautiful guidance documents and slides you’ve been doing since law school. You’ll finally have the time to enjoy it now that you’ve knocked all the other crap off your list. Breathe deep this prioritized air.
Lookout: Pixel Thunderdome
As someone who covered Facebook’s ad tech stack for a year, I have great sympathy for any attorney trying to keep up with their client’s use of ads and analytics partners. I am also sorry to tell you that you really, really need to dig into them, because consumers and their attorneys are finding new and exciting ways to sue you over them.
California Invasion of Privacy Act (CIPA) claims have gained momentum since an unpublished district court decision rejected an SDK maker’s motion to dismiss a pen register case, holding that internet-based software may fall under CIPA’s definition of a “pen register” as a device (that you can pick up on eBay) or process. Since then, plaintiffs firms have filed multiple claims under the CIPA provisions covering pen registers and similar trap and trace technologies.
While there are some strong arguments against these interpretations of the statute (for instance, the plaintiff’s theory in Greenley would make the internet’s basic functioning a violation of CIPA), the lack of other precedent on these sections of CIPA makes assessing the risk in litigation difficult. And while other sections of CIPA require transmission of message content for a violation, the definitions of pen register or trap and trace devices include transmission of metadata.
Outside California, there are still plenty of paths to finding a similar demand letter on your desk. If you’re hosting video on your site, the Video Privacy Protection Act (VPPA) is a vector for similar suits (please enjoy this absolute heater of a response to one), and HIPAA is getting new application to social media integrations. The social media companies collecting this data from your users already assume they’ll face lawsuits and have massive legal teams and litigation budgets on the ready - most of the businesses using their tools do not. Further litigation and/or updated legislation may provide more clarity at some point, but in the meantime, defendants are stuck with broad interpretations that makes dismissal a risky bet.
In this gross limbo period, you can get a jump on these risks with a few starter steps:
Run a cookie analysis on your company’s site(s). There are a number of free options for this - I’ve used www.cookieyes.com and found it thorough and useful.
Identify which of the trackers firing on the site are sharing a cookie ID or other identifier with a third party such as an advertising partner.
Bring the results to the right person on your marketing team and find out what is actually creating value (or being used at all).
If, looking at the list of cookies and pixels with your business client, you’re able to delete everything on your worry list, congrats! You have resolved some nasty risk - flag this contribution to leadership and then go get a snack. If, however, your marketing friend is (and wants to continue) running campaigns with these tracking technologies, you’ve got some work to do (and hey, I can probably help!).
A Little Treat: Investigation by Nose and Hoof
A flock of sheep solving the murder of their shepherd - too weird? Too on-the-nose for these weird times? Perhaps, but if you’re like me, your brain is too active for a really dumb read, but too taxed for anything ethically or intellectually challenging. Three Bags Full by Leonia Swann follows a flock who’ve discovered their protector George dead and unravel what happened to him as sheep must - listening to the air and smelling out secrets. One could draw, if driven by workaholic guilt or tax-deduction needs, qualities in these ewes and rams that help product counsel shine - systemic thinking, close observation, acceptance that other beings’ perspectives may always feel deeply weird to you. Really, though, you’ll get an engaging whodunnit plot uncovered between hay-dry jokes and vivid, lingering moments of peace in a pasture on the Scottish coast.