A General Counsel's Nightmare
California Lawyer

A General Counsel's Nightmare

June 2013

I was completely exhausted as I pushed my chair away from the hotel room's desk and turned off the light. I walked to the oversized bed, moved aside the small mountain of pillows, and crawled under the covers. For some reason, business trips to the East Coast always take more out of me than international travel.

It seemed like I had just fallen asleep when the overly loud ring of my cell phone interrupted a dream that had me wandering alone through the empty corridors of some federal courthouse I was unable to place.

The first words I heard on the phone were: "It's a dawn raid!"

Dawn raid? My brain refused to accept that some random drug dealer had awakened me from a sound sleep. But suddenly I recognized the voice of our country manager in Spain and realized that it was EU competition authorities, not drug-sniffing DEA dogs, that fueled the panic I heard in her voice. I'm the general counsel, so she called me.

I made reassuring noises as I stumbled over to my computer and forwarded to her the checklist I had prepared for exactly this type of unannounced "visit" from the authorities. My next call was to the Spanish competition law lawyer that a friend and former mentor had introduced me to at an International Bar Association conference in Madrid two years before. Satisfied that I had done all I could do, I went back to bed.

Of course the phone rang again. This time it was a newly minted vice president angry at me because the airline would not let him board his flight from Hong Kong to Beijing.

Though I was not quite sure why this was my problem, I eventually determined that he had made a rookie mistake, assuming that because he had never needed a visa on any of his numerous trips to Hong Kong, he would not need one for Beijing. I patiently (not really) explained that although the Hong Kong Special Administrative Region was most definitely part of the People's Republic of China, travelers and goods entering there were subject to different rules than when entering the mainland. I gave him the phone number for the Hong Kong-based lawyer who was my go-to guy for all Chinese legal issues, then hung up and tried once more to sleep.

I quickly found myself in the middle of a nightmare. In the dream, I was the GC and chief privacy officer of a start-up company that was skimming subscribers' raw browsing data using appliances placed in the data room of major internet service providers. The CEO was convinced there was no privacy issue because of language the ISPs had in their consumer agreements. I was not the only one who disagreed.

As my nightmare continued, I watched the CEO's televised testimony in front of a congressional committee while I cooked an aluminum pan of Jiffy Pop Popcorn over a tiny charcoal grill that contained my smoldering stock option papers. "Privacy is dead," he said in answer to a congressman's question. "Get over it."

I awoke in a pool of sweat to realize the dream was about a CEO I once met at a dinner party who tried to hire me for his start-up. I'd dodged that bullet. But just as I was falling back to sleep in a glow of smug satisfaction, a voice in the back of my head jarringly reminded me that I was the same genius who'd declined to even interview with an early-stage company called Facebook.

Now wide awake, I stared at the ceiling with no hope of further slumber. Surrendering to reality, I got up and started reviewing emails on my laptop.

As I skimmed through them, one with the subject line "Laptop with confidential data lost on NYC subway" caught my attention. It belonged to one of our sales guys; not good. But wait. He had actually followed the mandated procedures for encrypting all of the confidential data on the laptop. Maybe I was still dreaming. Better yet, when someone had attempted to use the computer's built-in data connection, our IT department was able to wipe the hard drive remotely. It doesn't get any better than that.

I decided to make one more attempt to fall asleep. As I drifted off, other GC war stories played through my head. The engineer who, in responding to a group email message about a severe customer problem, carefully and thoroughly reached an absolutely wrong conclusion, and then hit "Reply all" without noticing that three of the ten people he responded to were customers. And then there was the sensitive email sent to outside counsel but never actually received because the software's autocomplete feature filled in the wrong email address.

By the time the alarm rudely awakened me, my dreams had taken me back to that unidentifiable federal courthouse. But this time I recognized that it was in Atlanta, the site of a set of consolidated multi-jurisdiction lawsuits our company was defending against. At the start of a hearing, my local counsel was introducing me to the presiding federal judge as "the person lurking at the back of the courtroom." This, in a case where the plaintiffs had alleged that my company's software was "spyware."

As I sat up in the twisted sheets, I became very confused: I was not in a hotel room on the East Coast. I was in my own bedroom in California. Only then did I realize that the whole night had been a series of bad dreams.

"No more Greek yogurt at bedtime," I told myself.

Then I shook the cobwebs from my head and realized that, as with most dreams, some kernels of reality were mixed in. The "lurker" introduction really did happen. The CEO with the skimming appliance in telecom data rooms really had tried to recruit me, but by the time he testified in front of Congress he knew better than to say anything like "Privacy is dead, get over it," which was the line that Scott McNealy of Sun Microsystems made famous. (Eventually, Oracle bought his company.) On the other hand, no company I've been associated with has ever been the subject of EU regulatory raids, but others certainly have.

Rich Gray is the Silicon Valley-based vice president and group general counsel of Spirent Communications.

Reader Comments

Oscar - June 12, 2013
this is just a test....

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