When panelists took the stage in February to launch the Law Track with a discussion of Hot Topics in Cyber-Law 2020, none of them could have predicted the ways in which the pandemic might shift their thinking about everything from the California Consumer Privacy Act to the international technology marketplace. Only a few months ago, Michael Aisenberg, Principal Cyber Policy Counsel at The MITRE Corporation, greeted session attendees recognizing the need to introduce important legal issues to the cybersecurity community.

At the time, the news headlines of great importance included public policy instruments that had been released since RSA Conference 2019. Paramount among those for Aisenberg were the National Defense Authorization Act (NDAA) for FY2020 and the OPEN Government Data Act (OGDA) of 2019.

While the importance of NDAA and OGDA have certainly not minimized since the pandemic, Aisenberg said that if he were to moderate the panel discussion today, “The emergence of a frank national crisis places one area of Hot Topics consideration into an even sharper focus: our nation’s ability to maintain and observe the normalcy of our national institutions.”

As it was for him in February, Aisenberg said that he still believes we must be able to assure that our November elections proceed, “With full and fair participation, and not be postponed, deferred, or disqualified because of some pandemic-related concerns.” How can we work toward that end? Well, many lawyers traveled to RSA Conference in February to attend the variety of sessions offered on the Law Track, and Aisenberg said they should volunteer to their home state/community election integrity oversight functions. “Non-lawyers are always welcomed as poll watchers and other party-based observers, assuring an incident-free election day,” he added.

Stephen Wu, Shareholder at Silicon Valley Law Group, who also sat on the panel, said that as a nation we have been focused too much on minimizing cost and maximizing profits in our private sector in the short run and not focused enough on infrastructure and preparedness for the long term. “Although the economy has had its ups and downs over the decades, it was our infrastructure that helped create the strong economic base we've enjoyed after World War II,” Wu said. The virus has revealed, according to Wu, a lack of preparedness. “Investing in infrastructure of various kinds left us vulnerable to the current virus crisis. We have similarly underinvested in cybersecurity over the decades, in both the public and private sectors,” he said.

In February, Wu discussed some AI data protection challenges, and new guidance and legislation to deal with those challenges. When asked what he would do differently today, Wu said, “Our next crisis may be an ‘artificial intelligence’ contagion in which AI replaces large swaths of workers.”

Wu predicted that we will be caught “flat-footed” again, lest we take some action to prevent huge social dislocations when AI hits its stride because, “The virus has taken all the mindshare away from preparing for the upcoming AI.”

As a final word on how the pandemic has impacted his thinking about cyber-law topics, Wu said, “The COVID virus is now making the economic case for why replacing humans with robots and AI systems is not only potentially more profitable but also perhaps a matter of survival for some companies. We are already seeing an acceleration of robotics and AI in light of the virus.”

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