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Presidential Tweets and Self-Destructing Messages Under the Records Laws: The New Normal

Washington, D.C. of counsel Jason R. Baron published an article in Bloomberg Law titled “Presidential Tweets and Self-Destructing Messages Under the Records Laws: The New Normal.”

Jason discusses the recordkeeping challenges and legal developments that result from presidential tweets and other forms of communications used by White House personnel in the Trump administration.

Jason also notes that these legal developments raise a number of information governance issues that have direct applicability to private sector institutes.

Read "Presidential Tweets and Self-Destructing Messages Under the Records Laws: The New Normal."


Hidden Bias in the Black Box: Info Gov as a Key Check to Algorithmic Bias

by Jason R. Baron, Drinker Biddle & Reath, as seen on Legaltech News

With each passing day, we are 
 increasingly living in an algorithmic universe, due to the easy accumulation of big data. In our personal lives, we experience being in a 24/7 world of "filter bubbles," where Facebook has the ability to customize how liberal or conservative one's newsfeed is based on prior postings; Google personalizes ads popping up on Gmail based on the content of our conversations; and merchants like Amazon and Pandora feed us personalized recommendations based on our prior purchases and everything we click on.

While (at least in theory) we remain free in our personal lives to make choices in continuing to use these applications or not, increasingly often what we see is the result of hidden bias in the software. Similarly, in the workplace, the use of black box algorithms holds the potential of introducing certain types of bias without an employee's or prospective employee's knowledge. The question we wish to address here: From an information governance perspective, how can management provide some kind of check on the sometimes naïve, sometimes sophisticated use of algorithms in the corporate environment?

Algorithms in the Wild

An early, well-known example of the surprising power of algorithms was Target's use of software that, based on purchasing data (e.g., who was buying unscented lotions, cotton balls, etc.), was spookily able to predict whether a customer was likely pregnant. Target sent coupons for baby products to a Minnesota teenager's home before the teenager's father knew about the pregnancy, leading to a bad public relations episode. A different example is Massachusetts' use of a mobile app called Street Bump, where smartphones riding over potholes and the like would automatically report their location for local government to fix. The problem: the resulting map of potholes corresponded closely with the demographically more well-off areas of the city, as those were the areas where individuals knew to download the mobile app and could afford smartphones in the first place.

In workplace hiring decisions, facially neutral algorithms sometimes reveal a hidden bias based on how features are selected and weighted, or where certain variables used in the algorithm essentially function as "proxies" for real world racial or ethnic differences. For example, a software feature using the variable "commuting distance from work" as a factor in deciding which candidates to hire may, depending on local geography, discriminate based on race. As Gideon Mann and Cathy O'Neill stated in Harvard Business Review (12/9/16), "When humans build algorithmic screening software, they may unintentionally determine which applicants will be selected or rejected based on outdated information—going back to a time when there were fewer women in the workforce, for example—leading to a legally and morally unacceptable result."

Once on the job, employees may experience a very different kind of filter bias through software targeting the risk of internal threats to the company. The more advanced programs coming onto the market use sentiment analysis (e.g., algorithms looking at language used in emails) to predict whether certain individuals are more likely to display anger or other inappropriate behavior in the workplace. This capacity can be combined with matching up external sources of data on individuals obtained online, including credit report updates, crime reports, and certain types of medical information, to essentially triage the employee population into "high-risk" and lower risk categories, so as to target the keystrokes made by a few. If this all sounds like we have truly now entered a pre-crime, Minority Report world, it does.

IG and Its Role with Algorithms

What can or should be done? Mann & O'Neill suggest to avoid making decisions solely by use of an algorithm, but include what they call "algorithm-informed" individuals. They further suggest, "[w]e need to audit and modify algorithms so that they do not perpetuate inequities in businesses and society," with audits to be carried out either by inside experts or by hiring outside professionals. These are both sound suggestions.

Advocates of information governance (IG) argue that corporations with an IG program in place have a built-in mechanism to escalate data-related issues to a standing committee, consisting of either C-suite representatives or their delegates. In a growing number of corporate models, an individual with some kind of IG designation in their title will have been given authority to call together ad hoc groups to resolve specific data policy issues.

One could well imagine a chief information governance officer convening an ad hoc task force of the IG council, including a C-suite representative of the corporate human relations (HR) department, along with the person who approved or manages the data analytics software used by HR and a senior counsel, to perform the kind of "audit" of hiring practices envisioned above. Similarly, an ad hoc task force including the chief information security officer, senior HR office personnel, and other IT representatives and senior counsel could be asked to review how well internal monitoring of employees is working, and how much transparency or notice should be given to staff on such monitoring.

Along these lines, organizations might consider tasking a group of individuals—under the auspices either of the IG structure or as a freestanding committee—to perform a similar function to a present-day institutional review board, but limited to predictive software's effect on human subjects. Such an "algorithm review board" (ARB) would be tasked to provide approval and/or oversight of any use of analytics in the workplace aimed at targeting present employees or prospective hires, so as to serve as a check against possible hidden bias or a lack of notice where appropriate.

Some corporations (Microsoft and Facebook) have taken initial steps to implement, at least on a selected basis, an ethics review board being used in an equivalent way to an ARB. However, the practice remains rare across all industry verticals, notwithstanding the growing power of analytics in all aspects of daily life.

In his book, "The Black Box Society: The Secret Algorithms That Control Money and Information," law professor Frank Pasquale states that "authority is increasingly expressed algorithmically," and that "[d]ecisions that used to be based on human reflection are now made automatically." But, as computer scientist Suresh Venkatasubramanian has put it, "The irony is that the more we design artificial intelligence technology that successfully mimics humans, the more that A.I. is learning in a way that we do, with all of our biases and limitations."

This new reality calls for consideration of some kind of human intervention to serve as a quality control check on the black box (even if it means humans employing a second algorithm to check for bias in the first!) In the coming world we live and work in, adoption of some kind of IG framework that includes reviewing the possibility of algorithmic bias in the workplace will be appreciated by an increasingly sophisticated populace.

Jason R. Baron is Of Counsel at Drinker Biddle & Reath LLP in Washington, D.C.


Join IGI and Today’s General Counsel at the Information Governance Forum in Atlanta, November 3rd, 2016

There is still time to register for the Information Governance Forum on November 3rd, 2016 in Atlanta, GA at the Buckhead Club. Register, today!

The Information Governance Forum is the first program developed and delivered through new partnership between the IGI and Today’s General Counsel Institute (TGCI). The partnership between IGI and TGCI is focused on bringing IG insight to information professionals of all backgrounds and reflects the growing multidisciplinary nature of IG and recognizes the critical role that general counsels play in IG.

Based on a roundtable format that is ideal for emerging challenges like IG, this inaugural Forum will focus on facilitated conversations designed to rapidly increase your IG insight and fluency. Beginning with a discussion of IG as a concept, discipline, and market based on IGI’s Annual Report research, this day of peer discussion will move through a broad range of topics, each with a practical implication for IG programs at all levels of maturity.

Join members of the IGI Executive Team, Barclay T. Blair, Jason R. Baron, and Jay Brudz, and an amazing line of IG practitioner faculty who will help guide you through the day’s exciting agenda:

  • Session 1: Information Governance and You: Framing the Discussion: Information Governance is a nascent discipline that many legal and other professionals are encountering for the first time. To help us establish a common frame of reference for the day’s discussions, our faculty will present and discuss key IGI research about how organizations define IG, who is in charge, and what projects they are actually doing.
  • Session 2: Who Is Doing IG, and What Are They Doing?: The best way to understand how to move forward with IG is to hear about actual examples of the IG projects and activities that organizations are doing. In this session we will hear from organizations that have adopted IG and learn: How they got started. Biggest challenges and how to overcome them. Tips for selling IG internally. How to promote IG: risk reduction or value creation?
  • Session 3: Identifying and Coordinating IG Stakeholders: In the group exercise, our faculty will take you through a battle-tested methodology for identifying the critical IG stakeholders and what they care about, while identifying areas where they are most likely to cooperate or resist. Throughout this exercise, we will learn ideas including: Why IG needs a new kind of senior leader at the C-level. Why a siloed approach to managing information will fail. How IG serves a coordinating function between the various facets of IG:
  • Session 4: The Federal Rules of Civil Procedure and IG: What You Can Do Today: In 2016, fewer developments in IG are as profound as the new changes to the US Federal Rules of Civil Procedure. These amendments lay the groundwork for fundamentally changing the way courts adjudicate proportionality and sanctions in e-discovery, potentially giving IG practitioners a new level of certainty in taking control of their information. But, organizations must move carefully and deliberately. Our peer discussion, led by FRCP and IG experts, will discuss the practical impact of the FRCP changes and what organizations must be doing today to address and take advantage of these changes in their IG programs.
  • Session 5: IG and Cybersecurity: The Role of the General Counsel and the IG Team: We see a new conversation about cybersecurity starting. Post data breach, institutions are not only asking, “How could we have protected this information better?” but also, “Why do we have this information in the first place?” Unfortunately most organizations have neither the corporate governance framework nor the business process to answer this deceptively simple question in a way that satisfies legal, IT, or the business. IG provides a potential solution to this problem, and GCs are well positioned with expertise, and authority to step up and lead. Our peer discussion in this session will focus on what GCs taking this on have learned and what the rest of us can take away about using IG for preventing, preparing for, and responding to data breaches and other cybersecurity challenges.
  • Session 6: Automating Information Governance: No less an authority than the US National Archives and Records Administration has declared that the future of managing and governing information is automation. However, automation can mean many things, from NARA’s “capstone” approach to email management that applies rules based on employee role, to the most sophisticated algorithmic forms of automated classification and discovery of data’s “meaning.” The good news is that many of these techniques have already been through a kind of trial by fire in the e-discovery realm, and IG practitioners have learned important lessons that can help us put these next-generation tools and techniques to work today.
  • Session 7: Quantified IG: Throughout the day we have focused on a wide range of immediate IG challenges that organizations face, and have learned ways to tackle them. However it is also critical for all of us to keep one eye on what’s next, so we are not (or at least less) surprised by macro and micro-trends in law, technology, corporate governance and other areas of business and life. One of these critical trends is what the IGI calls “Quantified IG” and it is about IG practitioners and programs adopting the data-driven techniques that are radically changing everything from how much food we eat and how much we exercise (i.e., through fitness trackers) to the most consequential public policy decisions about healthcare and global finance. However, in many areas of IG, decisions are still being made based on nothing more than tradition, supposition, and superstition.

The Forum will be an exciting, engaging, and interactive day. Don’t come expecting to sit on your hands. Register, today.

Skytop and IGI Events

How Does Information Governance Power the 21st Century Organization?

We have talked about our valued partner Skytop Strategies before - an organization that develops highly-engaging executive roundtable discussions around the globe on a range of topics that should be on the radar of every Chief Information Governance Officer and information leader in our community.

That's why we are excited to tell you about two great new events where we are partnering with Skytop to bring the IG message to executives and boards, and also to provide opportunities for IG professionals like you to learn and join that conversation.

Come to the May 19th Event in New York

The first event is The 21st Century Company - How It Creates Value, and for Whom which runs at Baruch College in Manhattan all day on May 19th, 2016. You can check out the full program here, but some of the highlights for IG pros are sessions on connecting risk management (a key facet of IG) to company performance; strategies for engaging diverse corporate stakeholders (a key challenge of IG); as well as discussion and insight from a stellar group of business leaders including:

  • Susanne Stormer, Vice President, Corporate Sustainability, Chief Sustainability Officer,  Novo Nordisk
  • David J. Westfall, Senior Director, Decision Support and Innovation Leader, AON Hewitt
  • Michael Madon, Chief Executive Officer, Ataata
  • Daryl Brewster, Chief Executive Officer, CECP
  • Livia Konkel, Director, Corporate Responsibility & Inclusion and Global Head, Diversity & Inclusion, Thomson Reuters
  • Karen Morris, Former Chief Innovation Officer, AIG
  • Chris Pinney, President and Chief Executive Officer. High Meadows Institute, Inc.

Discount for IGI Community Members

Even better, our partner Skytop is offering a generous 30% discount on event tickets to members of the IGI Community. To take advantage of this incentive, contact:

Colin Hines, Vice President of Delegate Engagement
Skytop Strategies

Cybersecurity and Information Governance

The second Skytop event we are excited about (and not just because we get to go to Rome) is the Skytop Global Cybersecurity Summit on  October 31st and November 1st, 2016. The importance of leadership from IG professionals on cybersecurity has never been more acute, which is why it is a major focus for the IGI. Our partnership with Skytop on this event will help us continue to fulfill our mandate to promote the adoption of IG around the world, and to provide opportunities for our community to learn and advance in their careers. It also helps us in our ongoing effort to expand the IGI footprint to Europe and beyond.

Barclay will be speaking at the Summit, which will convene 150 senior-level executives including heads of information technology, security, law, risk, governance, as well as audit and compliance, who are seeking solutions to complex cyber challenges in the market.

Stay tuned for more information on this great event.


IGI Celebrates 2nd Anniversary During Legaltech Week

Flashback to February 2015. Our team sat down the week after Legaltech New York exhausted and wondered how much better could it be then to celebrate a successful first year during one of the biggest legal technology events of the year.

Well year 2 is even better. The weather even cooperated.

We began the week on February 2nd with a session sponsored by IGI Charter Supporter Hewlett Packard Enterprise titled Ditch That Data to Mitigate Risk and Reduce Legal Spend featuring our Executive Director, Barclay T. Blair; Mark W. Cowing of Shook, Hardy & Bacon LLP; and Michael Simon of Seventh Samurai and moderated by Greg Clark of Hewlett Packard Enterprise.

Barclay also spoke that afternoon on Charter Supporter kCura’s session From Ashley Madison to the Sony Hack-Cybersecurity Strategy Best Practices for 2016. The panel also included Judy Selby of Baker Hostetler and John Loveland of Consilio and was moderated by Dean Gonsowski of kCura.

We held our anniversary party that night over 300 guests showed up to join us in our celebrations. Thank you to Guidance Software, Active Navigation, Bryan University, EDRM and Legal Technology Professionals Institute for sponsoring the event. This was the second year Active Navigation and Bryan University joined us to celebrate.

On February 3rd, we were up bright and early with our Advisory Board and Industry Committee members discussing the IGI’s plans for 2016 including our upcoming annual survey, benchmarking interviews, CIGO Summit, IG Boot Camps, and plenty of blogs, white papers, case studies and other publications that you can use for your IG programs.

Following our Advisory Board and Industry Committee meeting was a panel featuring IGI co-founder, Bennett Borden titled Questions and Answers: Analytics for Investigations & Compliance. The panel also featured Avi Gesser of Davis Polk, and Wardwell and Alex Ponce de Leon of Google and moderated by Alexis Clark of Charter Supporter Recommind.

IGI Co-Chair, Jason R. Baron spoke on a panel that afternoon titled The Science of Predictive Coding: How Has TREC Changed E-discovery and What Have We Learned From the 2015 TREC Total Recall Track? Jason’s co-panelists included Ralph Losey of Jackson Lewis and Jim Sullivan of Kroll Ontrack and was moderated by Emily Cobb of Ropes & Gray.

The IGI also held an Executive Dinner that evening at Mastro’s Steakhouse sponsored by IGI Supporters Viewpointe and ZL Technologies. Guests from organizations including NBCUniversal, McKesson Corporation, Baxalta, Wells Fargo and several other stayed late into the evening sharing small and big wins they had over the last year and what challenges and topics they would like to see the IGI address in 2016.

We finished the week on February 4th with a Keynote Panel: Private Network Servers, Deleted Emails & Texts and Other Controversies in the News featuring Jason R. Baron, Edward B. MacMahon, Jr. and the Hon. Shira A. Scheindlin and moderated by Daniel J.Capra of Fordham Law School.

It’s hard to believe we launched the Information Governance Initiative at Legaltech 2014 and we thank you for your continued support over the last two years. We’re looking forward to another great year and can’t wait to celebrate again with you next year.

Don’t forget to join or log in to our online community to check out how far we and the IG community have come.


Use Of Data Analytics In The Legal Profession Will Grow

The effective use of data analytics offers the promise of radically changing the legal landscape and the practice of law, for the better. But, the extent to which and how the legal profession and, in particular, in-house legal departments are taking advantage of these tools has not been clear. To find out, the Coalition of Technology Resources for Lawyers (CTRL) commissioned the IGI to conduct a survey on the adoption of data analytics by in-house legal departments across six use cases (e-discovery, legal matter management/billing, information governance, outcome/risk analysis, contract review, and selection of outside counsel. To find out more, read CTRL’s report, Data Analytic Trends in the Legal Community.

Beyond the six specific use cases, the survey asked respondents to make their predictions for how important data analytics would be in the legal profession in the future. As the infographic shows, an overwhelming majority (93%) of respondents said that data analytics would be more important and its use more common ten years from now. Further, nearly a third predicted its use would be “very important” and that it would be considered “indispensable.”

The infographic below highlights the six specific use cases as well as a few other interesting findings from the report. We encourage you to peruse the report in more detail to learn about legal departments’ use of data analytics.

To learn more about CTRL, check out their website and download a copy of their survey today. You can also download a copy of IGI’s Annual Report 2015-2016 at our community site for more information on how information governance is being used within organizations. Not a member? Join today.

CTRL Initiative Data Analytics