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Lawyers Who Lie

Oct 01, 202241 min
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Episode description

Catherine Ross, a professor at George Washington University Law School, discusses whether the First Amendment protects lawyers who lie.
Richard Briffault, a professor at Columbia Law School, discusses the overhaul of the Electoral Count Act.
Adam Cooke, counsel with Hogal Lovells, discusses new class action lawsuits over website-browsing surveillance.
June Grasso hosts.

See omnystudio.com/listener for privacy information.

Transcript

Speaker 1

This is Bloombird Law with June Brusso from Bloomberg Radio. You can see them counting the ballots more than once, two, three, four, or five times. You would have to be a moron not to realize if that's voter fraud. Remember in the months after the presidential election, when Rudy Giuliani repeatedly claimed that the election had been stolen from former President Trump and that he had evidence of widespread fraud, and he wasn't alone. Other Trump attorneys like Sydney Powell made similar

baseless claims. An algorithm that probably ran all over the country to take a certain percentage of votes from President Trump and flipped them to President Biden, which we might never have uncovered had the votes for President Trump not been so overwhelming in so many of these states that it broke the algorithm that had been plugged into the system. Giuliani has been temporarily barred from practicing law in New

York and is facing possible disbardment. Powell could be disbarred after a suit brought by the State bar of Texas. So why don't lawyers lies have the same First Amendment protections as lies by others? Katherine Ross a professor at George Washington University Law School, has written about this in

a Bloomberg Law opinion piece. Is the public getting inured to lawyers lying after We saw a host of lawyers from Rudy Giuliani to Sydney Powell repeatedly lying about the election, and sometimes with outrageous lies that have been proven false over and over. That is a huge problem. Following and

even leading up to the election cycle. A lot of lawyers lied about what was going to happen, what had happened in terms of alleging voter fraud that did not occur at any level that could have effected the election outcome, and in at almost all of the very few substantiated cases of illegal voting were done by Republicans and could not have led to an overturning of the election results.

We're also still seeing it among all the election deniers who are running for public office in many of the states, and quite a few of those are lawyers, because lawyers are very active in public life. So I'm hoping that the public is not getting inured to this as just the cost of doing business. And I also think it's very important that the bar associations and the bar disciplinary committees not simply say, you know, this is what everybody is doing and there's not much we can do about it.

I think they really need to step up in the face of this flagrant and often proven round of lying about public affairs. You know, you have lawyers who come outside the courthouse and proclaim their clients innocence and say there will be a quit it. And lawyers who make arguments to the court and construe the facts or the law in their client's behalf. Perhaps not quite down the straight and narrow. Where's the line? Okay, First, let's start with what a lie is defined as in the law.

A lie is a false statement of fact that the speaker knows to be false and wants other people to believe. So some of what you're talking about we might think about as spimming or embellishment or opinion. I believe my client is innocent. I'm going to try to prove my client is innocent. Is not exactly the same thing as saying it is a fact that my client did not murder this person. And that's a dramatic example, but a lot of things are, you know, in a greyer zone.

Lawyers in almost every state operate under some version of the A b AS model rules of professional con up and those applied to attorneys who have clients, and that requires that the lawyer not lie to the court and also not lie to the public. And that second part is really important in terms of what's going on today.

And let me draw distinction here because some of our non legal listeners maybe thinking about some lawyer jokes that are you know that the profession is offended by, But there are a lot of jokes out there about lawyers who don't tell the truth or aren't the epitomy of virtue in practicing their profession. First of all, the reason those are quote unquote funny is because we do hold lawyers to a high standard, and lawyers hold themselves to

a high standard. And if that weren't the image that lawyers were trying to project or trying to live up to, I don't think those jokes would have a punchline. So I hope that people won't be looking at these very prominent laws about things that really affect the heart of our democracy and say, well, lawyers always lie. No, lawyers are not allowed to lie if they're representing clients, they're not allowed to lie to the court, and they're not allowed to lie to all of us. Explain why the

First Amendment doesn't fit in here? Some might ask, well, doesn't a lawyer have First Amendment projections like everyone else? Actually, I can understand why people would think that, but it isn't true. When people apply for membership in the bar, which allows you to have a license to practice law,

they undertake certain responsibilities. One is that they affirm that they're going to act as officers of the court and uphold the law and the integrity of the court system, and that subjects them to the discipline that can be applied by the Bar Association, which requires that the lawyers abide by the Code of Professional Conduct. And the Bar

Association is not the government. The First Amendment only binds the government where they We're talking about the lowest level employee in a local government all the way up to Congress and the President of the United States. Those are the people the entity that cannot abridge our First Amendment rights.

But when lawyers accept their license and use their license professionally, which allows them to earn a living, they submit to the bar's jurisdiction and the bar can hold them to account if they violate the code that says that they cannot lie to the court and they cannot lie in public about matters in which they are representing someone. Rudy Giuliani's law license was suspended. How did that happen? That happened because he was repeatedly flagrantly lying to the public

by alleging road in elections in many many states. When his factual errors were pointed out, he refused to retract, and he doubled down. Uh, and he was warned, and ultimately there was a preliminary hearing and his law license was suspended pending a complete investigation with hearings and so forth. And he challenged that in court and the judicial opinion upholding the state bars temporary decision because the suspension, not

a termination of his license was absolutely devastating. They laid out for dozens of pages his lives to the public, his list to the press, and indeed his skirting the truth in courtrooms, and the January six hearings by the House Select Committee, there was testimony to the effect that Giuliani had said, you know, paraphrasing, we don't have proof, but we have lots of a race. Well theories don't cut it for a lawyer speaking in court, or even

a lawyer speaking in public about such things. And that was after the suspension of his license and the court decision. So that's a good example of discipline working. Giuliani is facing another full hearing in the District of Columbia with respect to his district license to practice law, and a number of other attorneys who have lied about the election

are facing proceedings before their bar associations. And let me just say, to avoid seeming overly political, you know, one of the problems here is lies and the lies about moral lago which grow out of the whole Trump situation. You know, they're being told by Republicans, but Democrats are not immune to lying. So you may remember that President Clinton had problems with his Arkansas law license and ultimately reached a settlement because he had lied in a deposition

under oath. And in one legal filing, Sidney Powell made the argument to the effect that her lies were so outrageous that no reasonable person would have found them to be statements of fact. It's a wonderful strategy for somebody who has no defense. Um, it is true that you know the first Amendment status of lies is not quite as clear as the status of many other kinds of speech.

Lies were thought to be largely unprotected until twelve, when the Supreme Court issued a decision that said, no, they they're actually not outside the protection of the First Amendment, but suggested that there were some circumstances in which they could be regulated, and also that the scrutiny that a court would apply to something that inhibited lying might be

less than what it would apply to. Choose the most matic example, political speech that was true, although the courts can't get involved in deciding what is true and false because that smacks of the state determines truth and falsehood, and maybe incorrectly. But there is a sub category of laws that are so preposterous that no one would believe them. So if we go back to that legal definition of lying,

the speaker intends the listener to believe it. So if you engage in satire that isn't immediately recognizable as funny, like badly in satire, then one defense would be it's

so ridiculous nobody would believe it. And part of the problem with that defense is that she offered her statements in very serious contexts and continued to insist that they were true and to repeat them so it didn't look like I'm sort of making a joke, which is also one of Trump's occurring defenses for speech that might other wise be defamatory. Says oh, I was just joking, and we know he wasn't just joking. But in Sydney Pal's case, the judge said, no, you made this in too many places,

and you offered it as truth. And you may not have submitted papers to the court making these exact claims, but your filings in court were in service of the lies you were telling outside of court. So you can't now say it was a joke or it was just an exaggeration. In fact, that judge sanctioned Powell, made her pay the city of Detroit and other people involved as a lawsuit, and referred her to the Texas Bar for sanctions,

and that proceeding is ongoing. She's tried to have it dismissed in court and she failed, so those hearings are ongoing. So you mentioned Moral Lago, and at least one of the lawyers who represent former President Trump swore that there were no classified documents at Mara Lago and I think she added a term, to the best of my knowledge, something like that, after which, as we know, classified documents were seized by the FBI. Could the lawyers there be

charged with perjury or obstruction of justice? Absolutely? First of all, it's a federal crime to lie to a federal officer, much less to submit a document certifying something. This was clearly during her representation of clients. She violated the strictures on her as an officer of the court. She misled the federal government in a very broad and important way. And adding to the best of my knowledge is kind of it's like putting vassaline all over yourself or teflon.

I mean, you know, she's making clear I didn't really check this out and most recently or you know, I asked my client, but I didn't really press him. I didn't really look around. Subsequently, she said, um, well, it's really not my fault because other lawyers told me that all the documents have been submitted, and I signed the statement they told me to sign, or basically the statement

based on their representations. I don't know whether she wrote it or they wrote it, but she's basically saying not my fault. No, when you represent a client, the lawyer has an obligation before certifying to the federal government or saying something in court, to find out whether what your

client is telling you can be backed up by evidence. Now, sometimes clients do mislead their attorneys, but the attorney should be in a position to say, I did everything I could to try to verify what I was telling the court or the Department of Justice. You can't just go in and say, oh, you know, my client told me he didn't rob the bank, so I'm going to tell the court he didn't rob the bank, and I don't need to ask any questions but for documents. We have

other responsibilities as members of the bar. And since that time she made some other absolutely amazing statements that are comparable to Paul saying, oh, what I was saying about the stolen election in the Venezuelan dictator capturing our voting machines, that was just a joke. Abba actually said, I think within the last two three days. Um, it's possible that the empty folders labeled confidential at Moral Lago that were in the boxes seized under warrant by the federal government

contain invisible documents that no one can see. She said that in a cable interview, I really don't know how to respond to that one. Let's turn to the New

York Bar associations tell us what they've done. So the first report was by the New York County Bar Association, which, while not a huge organization, has long been a leader in civic responsibility, and they pointed out that there were lawyers who were telling verifiable falsehoods, factual falsehoods that were resulting in violence and threats of violence, for example towards the federal magistrate who issued the warrant for the search of moral Lago and events leading up to the attack

on the FBI building later that week. And then the New York City Bar Association, which is one of the largest bar associations in the country, issued a much more detailed report on lies about the search of moral Lago by attorneys and pointed out again that this can invoke violence against judges, FBI agents, everybody involved in law enforcement,

and other public servants. And I would compare that as well to the ongoing attacks on election workers, although that was not part of the report, and they said it's it's really important that lawyers should not make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect, or even if they're misleading, and they should not undermine the judicial process or the rule of law. Thanks so much, Catherine.

That's Catherine Ross, a professor at George Washington University Law School. Congress looks like it's closed to preventing the kind of constitutional crisis avoided during the presidential transition. In this week, a Senate committee approved the revamp of an seven law

that sets out congressional procedures for certifying presidential election. The legislation is intended to prevent a repeat of the presidential election, when former President Donald Trump and his allies sought to challenge the election results, leading to the insurrection at the Capital on January six. Both the Senate Majority Leader Chuck Schumer and the Senate Minority Leader Mitch McConnell support the bill.

Lawmakers are under pressure to find a compromise before the end of the year because of the likelihood that House Republicans, most of whom oppose the changes, will gain control of that chamber. Joining me as elections law expert Richard brafalt A professor at Columbia Law School, Rich tell us about

the current law, the Electoral Count Act. Yes, Well, the Electoral Countact was passed by Congress which sets out the procedure for the accounting of the electoral votes in Congress, for the raising and handling of complaints or questions about the electoral vote, and for the formal determination of who has won the president into election by declaring who's the winner of the electoral vote. And so the Senate bill is a bipartisan effort Republican Susan Collins and Democrat Joe Mansion.

What does it do? In general? It does three or four very significant things. First, it declares that the role of the vice president, who is technically the president of the Senate and who under the Constitution has to preside over this process, has an entirely ministerial role. The vice president says, as a stand up there and to clear what happens next, and says, here's the result that the

vice president has no substantive role. May have called this was one of the high points of the controversy the less election, when then President Trump insisted that then Vice President Pence had the authority to declare that certain electoral votes were invalid and not to count them, and Pence

himself said he didn't have that authority. This makes it clear that the vice president has no such authority, that the vice president's role is just ministerial, like a secretary, just there to say this is what it's a as, here's the result. So that's probably a very important thing. And everyone always thought that was the rule. But because Trump made such a noise and his support is about such a noise that the vice president could in effect

change the result, it's probably important that that be clarified. Second, it rather dramatically raises the threshold for objections. Under the current law. All you need to object to the electoral vote of a state and stop the whole process, and forced the two houses of Congress to meet separately to debate the objections is one member of the House and one member of the Senate, just one from each to object to say a state like the vote from Arizona

or the vote from Michigan. The Senate bill raises the threshold to one fifth of the House and one fifth of the Senate. Tou you need to have twenty senators an effect, and what would that be something like eighty seven members of the House objecting to a particular state, So that's a dramatic increase in the threshold. Those are

probably the two most prominent things. The bill narrows the grounds of objections really just down to to one is that the electoral winners weren't picked in the state in time, and the other there was some impropriety in the way an individual elector voted. And also creates a procedure for judicial challenges to the outcome of the election in a

state to be done in an expedited way. And then clarifies that, in light of all the talk about the power of state legislatures, that any state legislative action that applies the election will count only if it was passed before election day. So you can't have state legislatures after election day trying to pass laws that under the result

when those are probably the highways. A number of other more minor things, but limiting the power, declaring the limited the limited nature of the power of the vice president, raising the threshold for objections, narrowing the categories of objections, providing for expedited judicial review of challenges. Oh, and there's

one more thing. There's a language in the current law that talks about what happens in the case of a failed election, and that was clearly meant to be things like an election was thrown off by a natural disaster. But some people, again trying to make trouble, would argue with the old election is one where we don't think the election went the right way, or we think that

there were problems with the voting process. So the new law, the law would very clearly indicate that a state election would allow the state to delay the selection of the electors something that results from an extraordinary and catastrophic event um which I have to find by state law only. That would be something along the lines of a major hurricane or a flood. Surprisingly, got near unanimous approval by

the Rules Committee. Not surprisingly, the one objection came from Senator Ted Cruz, who of course led an effort to challenge Biden's election victory. He said, quote, this bill is all about Donald J. Trump. It is about Donald Trump, isn't it. Yes, I mean everyone agrees that the old the current Electoral Account Act is flawed. It's very unclear.

There's a lot of inconsistencies in it. Uh, they're particular problems if there's a disagreement from within a state as to know one chief state official stating the winner was one person. The governor says one thing, and maybe the chief Justice of the state Supreme Court or the Secretary of State of the state says something else. So there

are a lot of uncertainties in it. There was always a problem with the that low, very low threshold of objections, although until recently it had never been used, or it had hardly been used, i should say, But certainly the election of attack on Congress in January six just sort of highlighted the significance of these uncertainties and the extreme importance of getting them resolved. Did it surprise you that Senate Minority Leader Mitch McConnell announced support of the bill

and a number of other Republicans. Not really. I mean, I think everyone realizes that the current law is a mess, that it creates more problems than it solves, that this this surprising debate about the role of the vice president.

It really seems who could possibly believe that one person could change the election, especially one person with an a stake in the outcome, Since the vice president is either going to be up for re election for vice president, or also the vice president has been running for president. You know, how one person could could legally change the outcome. You know a lot of these things just didn't make a lot of sense, but we saw how it could be weaponized in January six. So I think it's important

to have it resolved. And it doesn't clearly help one side or the other. I mean, in the vice president is going to be a Democrat, you know, Kambel Harris is the person is gonna be standing up there and counting the results, So it doesn't necessarily help one side or the other. The House passed a companion bill last week. Does it differ from the Senate bill in many ways.

The most obvious difference is that raises even higher the threshold for an objection to an electoral vote the Senate, as just to remind you, the current law is one person from each chamber. The Senate raises it to one fifth of each chamber. The House would raise it to one third of each chamber, which is a much higher threshold. I think there are other differences, but that's probably the

most significant one. Let's discuss what it doesn't protect. So the laws that have been passed in states making it more difficult to vote. Have you kept track of you know,

how many states have done that a lot. I don't have a specific number, but uh, and and and doing it in many different ways, and making it harder to register, and making it harder to vote, making it much harder to vote absentee in certain states, changing the procedures for challenging electors to make it easier for people to challenge voters. I mean, there's a lot of different of pushbacks in many states that are going to make it harder for people to vote than it was in This doesn't address

any of that. Senator Schumer early on had wanted to fold the electoral college reform, the electoral account reform into a broader voting bill, voting rights bill, but which did pass the House but was filipbustered in the Senate. So he, you know, ultimately agreed that it was absolutely crucial to deal with these electoral college problems, and so you know, kind of exceeded to the Republican objections in Congress to

federal law protecting the rights of voting in elections. And so this this bill, either both the House and the Senate bill only dealing with the procedures for accounting the electoral votes come the November elections. There may be next year many election deniers who will be in positions of power over elections. This Electoral Count Act doesn't address that either. No, no, no, not at all. I mean they're like this. The electoral contact proceeds from what happens after the states have had

their election and their results are announced. I mean what happened in is we had the elections were held, who results were announced? Uh, they were challenged, the challenges were all rejected. Uh, the elector of the electors met and cast their votes, and you still had objections. So this doesn't really address anything really before that leading up to

the decision who has won at the state level. This is addressed is solely all what happens in Washington, which again really until had never seen anything like this in terms of the level of uncertainty of objections. So it does get rid of a number of the issues that surprisingly uh kind of emerged his big issues in January one, thanks for being on the show. Rich that's Professor Richard

Fault of Columbia Law School. Since the ruling by the Third Circuit Court of Appeals in Philadelphia In August, at least nine new class action suits have been filed in Pennsylvania against well known companies such as Zillo, Lowe's, Expedia, Auto Zone, and Chewies and Michael Stores, accusing them of violating the state's Wire Tapping and Electronic Surveillance Control Act by the use of software that allows them to monitor

their customers website browsing, recording mouse movements, keystroke search terms, information input into the websites, and content viewed. The providers of the software say it helps their customers tweak their websites to provide a better experience for users, and reject the claim that it creates privacy risks. My guest is Adam Cook of Hogan Levels, So first of all, tell

us about this session replace software what it does? Sure, so, Session Replaced software is a particular technology that is used by a number of websites, everything from retailers to manufacturers

and all sorts of other companies. Basically any company that has some type of web presence where they interact with consumers in some way, and the software enables companies and other entities and organizations that host these websites to learn a little bit more about how consumers are interacting with their websites and services they offer online, and so one of the key features is to gather more information about

their websites or how their websites are being useful. In other ways, they can redesign or retool their website to make them more accessible and useful tent consumers. So it's effectively trying to kind of capture how a consumer navigates

on the website. So if someone, for example, goes onto X website and um is looking to purchase the product, but you know, gets a certain way in the process, but then kind of drops it and leaves it and and doesn't continue with the purchase, the entity they host the websites will kind of want to know, Okay, well, was was the process by which a consumer has to to purchase so complicated? And they have to jump through various different pages and enter some information one page and

other information on the page. So we make it so hard for the consumer that they just kind of threw up their hands and gave up. And can we redesign our website in a way that makes the consumer experience more smooth? And so that's kind of a kind of typical use case for this type of software is to kind of improve organizations ability to interact with end users who are navigating to their websites and trying to take advantage or utilize whatever service or products they're they're offering.

Do they also use this to let's say, do some companies use this to sell the information to marketing firms, etcetera. I think there are a host of different uses for this. I'm not specifically aware of particular entity that um use it for that particular reason, but it's that's certainly utilized for a lot of reasons to understand more about consumer engagement and the like. So what are the specific complaints the plaintiffs are making in these lawsuits that are based

on wire tap laws? So what kind of initial point is that? You know? These suits are not a vintage type of action. These dates back a couple of years at least um and they cover a range of different entities that have been sued. So again, kind of many different industry sectors that all have some type of connection

to kind of end users and consumers. And I would say everything from companies that are selling various home improvement products to companies that are involved in real estate transactions and everything kind of in between have been have been targeted in the kind of the essence of these claims is that this session replay software is violative of state wire tap laws because they purportedly intercept communications between the end consumer and the web you know, the entity that

they're navigating to ABC dot com or x y Z dot com. And so they're they're basically alleging that, hey, I was trying to navigate to this website and was trying to you know, learn more information or purchase some product. And the fact that some of my information about what I was doing on the website was shared with a third party service provider that helps a company set up and kind of run these tools. That that is the

quote unquote violation of the wire Tap Act. And those wire tap statutes are of course decades old, um and both under both the federal version and the state law version. And these studes that really arise into the state law versions. They've been primarily brought under Florida in California law, and um most recently under Pennsylvania law. Of course, there's some others out there, but that's the main thrust of them,

i'd say, or is under those three states. So before we got to this Third Circuit decision, or when lower courts have thrown these out pretty consistently, what's the legal basis that they throw them out under. Yeah, it's a great question. So it's actually been a number of different factors, one of which is that the wire tap law simply doesn't apply because it was not meant to effectively impose

liability for this type of activity. Basically it's an analytic you know, some type of analytics on consumers interaction with a website. There's also been um some decisions that have found effectively consent, so that consumers appliedly or otherwise have consented to this type of thought where um based on disclosures and in their own conduct regarding what was going

on on the website they were navigating to. So there's kind of a host of different reasons that in which courts have found that these these claims just simply lack merit at the pleading stage. So now let's talk about what happened at the Third Circuit. One of these lawsuits was dismissed by the lower court judge. And what did

the third circuits say? Yeah, so the I believe the lower court rejected the claim at the summary judgment phased finding that the Pennsylvania wire tap Statute effectively did not apply to this alleged conduct and was inapplicable because you know, the plaintiff plaintiff conduct just simply didn't fall under the statutory definition of a lot of an actionable interception, and the Third Circuit reverse first that District Court decision and

remanded it um effectively holding that the Pennsylvania statute could impose liability for these particular allegations. Although I'll note that the Third Circuit was careful to say that there could be other defenses to this alleged violation of the Pennsylvania statute, including consent, and it was remanding the case back to the district court to consider those issues in the first instance.

So it was very much a kind of statutory interpretation driven decision, interpreting the Pennsylvania wiretap law and based on that decision, finding that the District Court had, in its view, misread the statute and then remanding it for further basically further analysis and consideration, including for other defenses that defendants had raised below. So the Third Circuit It's decision only apply or only hold the Third Circuit courts. Could this

decision have implications outside the Third Circuit? Good question, I think because the decision is so specific to the Pennsylvania statute and analyzing the language under that law and you know what is a both what is an interception under that law and then effectively, um, you know what is actionable under that statute. I think that the you know it's important and impact beyond Pennsylvania law and the Third Circuit will likely be limited because again it's so it's

so specific to the statute. That said, I would expect Plaineft lawyers in other courts dealing with other statutes to potentially try to cite it as persuasive authority and interpreting other state laws. But I think that will have limited impact,

again because it's so sewet interrest to the Pennsylvania statute. So, since companies who do business on the internet are doing business in every state, could plaintet's just bring these suits in Pennsylvania, as they've done in recent lawsuits against Zilo Lowe's, Expedia, AutoZone, Chewies, and Michael Stores. There's certainly a challenge for defendants in light of the Third Circuit decision here and that they are likely to see additional lawsuits, and that actually is

definitely seems to be the case. An office today or late last week, UM the defendants in the third Circuit case just about a notice of supplemental authority to the Third Circuit, pointing out that I believe it was ten um.

District court cases have been filed since the Third Circuit's decision alleging violations the state wiretap law, including by the same name plain of Um at issue in the third Circuit case Ashley Popa or Papa, and so UM this does this does appear to be triggering additional litigation, and it includes several cases by the same firm litigating the third Circuit case, again bringing claims into the Pennsylvania statute. So this does seem like it is leading to a

kind of rush of additional litigation here. Time will tell whether the Third Circuit either kind of reconsiders its decision and light of the um petition for for rehearing or rehearing on bank, and also whether kind of how disrecords deal with this. Perhaps consent um will be an issue that kind of dooms these additional cases. And there obviously

are a bunch of other arguments open to defendants. So it's unclear how much what legs these cases will have, but it certainly is not stopping plain offs from from testing the waters here and fling filing additional cases. And when we talk about consent, are they talking about that check mark that almost every website you go to requires you to check I agree just to get on the site. Is that the consent that they're talking about. I think

consent can take many different forms. I think certainly one form of consent would be a consumer agreeing to terms own conditions or terms of use that apply to the website and you know, the purchase products or services through

that website. And yeah, I think often it will be effectively UM some type of either it's kind of part of the purchase flow that a consumer goes through where they'll see a reference to those or have to click through them um, and it'll it'll likely be included in one of the terms in that And that's so I think that is certainly in a possibility for how consent would arise. But there are certainly other ways in which consumers can manifest um consent to terms and these types

of scenarios. And is the concern of privacy advocates also that some important personal information of consumers could be leaked by mistake or by a breach. Yeah, that's a good question. I think there is an important distinction here between UM kind of the session replay and related types of software

and data UM considered security concerns more generally. I think, UM, the any any time you navigate onto a website, data is moving back and forth and everything like that, And simply because data is kind of in motion and going around doesn't mean that there's that that itself creates kind

of an existential data security threat. I think whether session replay software collects and logs s data about consumer interactions with websites, UM does not mean that, you know, ifso facto, that that creates data securities challenges for the entities that collected. And I'll give you one example would be, say a session replay software is collecting information about user interactions with a some third party website that it's helping to set

this up for. You know that third party vendor may very well have very robust data security controls and have a number of factors in pace that is going to mitigate the risk of any anything happening to that data, so I don't I don't see a kind of direct tie between session replay software and kind of data security concerns. Um more. Generally, thanks for being on the show. Adam. That's Adam Cook of Hogan Levels, And that's it for

this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every week night at ten p m. Wall Street Time. I'm June Grossow, and you're listening to Bloomberg

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