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Adobe and the Digital Due Process Coalition Urge House and Senate Majority Leaders to Bring ECPA Reform Bills to the Floor

Posted by Mary Catherine Wirth, Associate General Counsel, Cloud Services

In April 2013, the Senate Judiciary Committee voted to send the bipartisan bill sponsored by Senators Patrick Leahy (D-Vermont) and Michael Lee (R-Utah) and known as the Electronic Communications Privacy Act (ECPA) Amendments Act of 2013 (S. 607) to the full Senate. At that time, we applauded this important milestone towards protecting the privacy of information stored “in the cloud.” Unfortunately, despite widespread bipartisan and tech industry support, seventeen months later, S. 607 has not yet been brought to the Senate floor.

An identical bipartisan bill in the House sponsored by Representatives Kevin Yoder (R-Kansas) and Jared Polis (D-Colorado) and known as the “Email Privacy Act” (H.R. 1852) likewise remains stalled — even though it is co-sponsored by over 260 members of the House (and a majority of the house majority).

This is why Adobe and other members of the Digital Due Process Coalition this week sent letters to Senate Majority Leader Harry Reid and House Majority Leader Kevin McCarthy, urging them to bring S. 607 and HR. 1852 to the Senate and House floors. You can read those letters here and here.

Both bills share a common and very important goal: amending ECPA so that the government may only access communications stored online when a search warrant has been issued by a judge upon a showing of probable cause.  The current version of ECPA was drafted in 1986, long before people stored so much of their personal information online, and gives Fourth Amendment protections only to some communications stored online and not to others.  Right now, communications stored online for more than 180 days become available to law enforcement and civil investigative agencies with only a court order or a subpoena (which are much easier to obtain than a search warrant) on the theory that they have been “abandoned.”  This may have made sense in 1986, but it does not make sense in 2014, when most of us store many years’ worth of private emails, photos and documents “in the cloud.”

At Adobe, we continue to believe that all of our customers’ private communications should receive full constitutional protections, regardless of whether they are stored at home, at work or in our cloud. This is why we hope to see the House and Senate take action on ECPA reform this year. We believe these bills would pass overwhelmingly, proving to Americans and the rest of the world that that the U.S. legal system values online privacy.  ECPA reform is critical to consumer and business confidence in adopting cloud services, and we will continue to work to help ensure these bills are signed into law.  More information, along with ways to show support for amending ECPA, is available on the Center for Democracy and Technology website.

Congressman Chris Stewart Visits Adobe Lehi

Posted by Brad Rencher, SVP and General Manager of Digital Marketing

On Wednesday, August 6, Adobe welcomed the newest member of the U.S. House of Representatives from Utah, Congressman Chris Stewart, to our Lehi building in Utah. Congressman Stewart represents a large number of Adobe’s employees living along the eastern half of the state. Congressman Stewart was accompanied by two of his congressional aides and his son during the visit. As Jonathan Francom and I showed the congressman around the beautiful Lehi facility, they talked about all kinds of issues and met with several employees at the site.

Blown away by what he saw at the Lehi campus, it is no surprise the Congressman asked about Adobe’s plans to grow even more jobs in the region and when he can expect to see the next building in the Adobe campus.

Some interesting facts about the congressman came out during his visit. Here are just a few. He authored a New York Times best-selling book; he graduated at the top of his class in officer and pilot training in the Air Force; and he holds three world speed records, including the world’s record for the fastest non-stop flight around the world. Impressive!

As part of Adobe’s ongoing efforts to interact with government officials around the world, we regularly host government officials from all levels of government at our facilities. We do so on a non-partisan and non-political basis with the hopes of fostering a healthy dialogue on issues which impact our employees, customers, and products in the global marketplace.

Congressman Stewart and his staff meet with Adobe employees

Congressman Stewart and his staff meet with Adobe employees

Making the Jump to Electronic Signatures

Posted by Dan Puterbaugh, Director, Associate General Counsel

Electronic signatures have been legal and enforceable in the United States since the passage of the ESIGN Act in 2000.  Yet despite the tremendous improvements in speed, efficiency, and reliability, many still feel wary of electronic signatures.

In fact, the paradox of e-signatures in 2014 is that many people know that they are legal and enforceable in the United States, yet some unease appears to prevent really robust adoption.  This unease seems to hinge on the belief that written signatures are trustworthy and reliable and the fear that electronic signatures are new and untested.  Neither of these beliefs is entirely accurate.

First, let’s explain our terms.  Written signatures are the handwritten signatures we are all familiar with.  Digital signatures, sometimes also call authenticated electronic signatures or (in the EU) advanced electronic signatures, use secure public/private key encryption to authenticate the identity of the signer as well as the integrity of the signed document.  They are highly secure but also quite cumbersome to implement and use since each participant in the process must first obtain a digital certificate or physical token from a certificate issuing authority.

On the other hand, electronic signatures are any electronic symbol reasonably related to a contract created with the intent to sign that contract.  This can range from electronically checking a box that indicates acceptance, typing one’s name into a data field or hitting an “Agree” button to a software license.  Because of their speed and ease-of-use, it is electronic signatures that represent the greatest opportunity to speed contracting processes for the largest number of businesses, governments and individuals.

Often, our reliance on written signatures is not warranted.  A simple examination of a typical written signature process makes this clear.  How does this process usually progress?  An agreement is finalized by phone or email.  The agreement is sent via email, fax or regular mail to a provided address.  Hours pass.  Days.  Weeks.  The seasons flicker by and at last the contract is returned.  Upon opening the envelope one sees a document that appears to be version sent, possibly from the same address, email address or fax number that it was sent to with a scrawl that might be from the person whom you believe has signing authority in what may or may not be his or her actual signature.  Yet, this is the process on which we rely.

If this weren’t reason enough to leave written signatures in the dustbin of history, they are also wasteful, slow and costly.  They delay business while the parties wait for signed documents to be returned.  It is often challenging to get signatures from people who are remote or traveling.  It is difficult to know the status of a document during signing process.  And once the agreement arrives, it inevitably has to be scanned so that it can be archived.  Assuming, of course, that it has not been lost along that way.

So, we find ourselves in an era where document generation, editing, exchange, routing and archiving are all done electronically.  It is only for this single act of signing that we are suddenly transported to the pre-digital age, print out a hard copy, pull out our ink wells, flourish our quills and sign.  Small wonder then that this fundamentally anachronistic process is so slow, clunky and prone to failure.

Compared to written signatures, electronic are much safer and easier to use.  Contracts can be signed from tablets and smart phones, allowing executives to sign documents while traveling or on vacation.  This eliminates the common problem of business grinding to halt while key signatories are tracked down.  Further, e-signatures allow all involved to maintain visibility into the real-time status of where each document is in the signing process.  Digital rights management can be enabled in documents giving all involved peace of mind that no alterations were made in the final versions.  Finally, electronic signatures are good for the environment and the bottom line.  Every time one can avoid a paper signing process, there are tremendous savings in paper, power, and reductions in carbon emissions from the jets and trucks of the express carriers that are so often used in getting paper-based deals done.

Considering the endless licensing agreements, partnership agreements, travel approvals, supplier contracts, business compliance agreements, non-disclosure agreements, offer letters, corporate policy acknowledgements, benefits enrollment forms, insertion orders, creative approvals, and other documents that even a moderately sized organization must execute, these incremental environmental and financial savings quickly add up.

Because of these facts, electronic signatures have become one of the primary mechanisms for executing agreements.  Those who use them not only find them a safe, effective way of doing business but they often remark that they could not imagine returned to paper-based processes.  For those who have not moved to electronic signatures, all that is required is that one swallow hard and make the leap.

 

Adobe Congratulates the 2014 Congressional Art Competition Winners in DC

Posted by Melissa Jones, WW Education Program Manager

For the second year in a row, Adobe co-sponsored the Congressional Art Competition, an event that allows high school students from across the country to submit artwork ranging from drawings and paintings, to photography and computer generated designs. Each year since the competition’s founding in 1982, these high school student winners have descended on Washington, DC to be honored in a national recognition ceremony. This year, winners from 419 congressional districts attended the event in the U.S. Capitol and had the unique opportunity to see their own artwork displayed in the hallways of our nation’s Capitol building.

Adobe was honored to participate in the recognition program again this year to help celebrate the students’ creative talent and their artistic achievements. As we look to the next generation of leaders, creativity is proven to be an essential quality that will drive innovation and solve many of society’s existing problems. A key emphasis of the Congressional Art Competition is that innovation is a trait not limited to those in STEM – Science, Technology, Engineering, Arts, and Math – fields such as engineering and programming. On the same note, creativity is not constrained only to those in the art world. Rather, the two concepts are increasingly interconnected: artists and creative professionals provide meaning, communicate ideas, and help us all see new solutions to persisting issues. To succeed, we must invest both in STEM and the arts in order to grow our economy and remain competitive as a nation. Creativity inspires hope, and these students will lead the kind of imaginative innovation that improves our lives and solves the novel problems we will face in the decades to come.

To further inspire self-expression and innovation, Adobe has provided each winner an opportunity to join the broader creative community with a free year-long subscription to Adobe’s Creative Cloud. I want to extend my warmest congratulations to all of the students who participated and shared their art with all of America. We can’t wait to see what you create next!

At the recognition ceremony with Michigan’s 2nd Congressional District Representative Bill Huizenga, Co-Chair of the 2014 Congressional Art Competition

 

 

 

 

 

Digital Disruption – Changing the Way Government Agencies Communicate

Posted by Erica Fensom, Head of Government Affairs Asia-Pacific@Erica_Fensom

The expectations of citizens interacting with government agencies have been transformed by private sector experiences. From mobile banking apps to location-based services and personalised retail experiences online, people now expect to be able to transact with organisations anytime, anywhere and on any device. Citizens would like the same service from their government.

Governments are embracing these trends with new policies enabling E-Government such as the eGov2015 programmes in Singapore and the NSW ICT Strategy in Australia. To be successful, changing the way government communicates with citizens across agencies requires change – in policies, process and technology.

Adobe is working with governments across the globe to help navigate this ‘digital disruption.’ New technologies are creating engaging online experiences for citizens using adaptive forms technology, analytics and dynamic social media tools. Mobile collaboration tools are allowing frontline public servants, such as police and social workers, to spend more time in the field with the community and less time on back-end administrative workflows. The opportunities are endless and the challenges to be successful are numerous, but can be overcome.

Next month in Sydney and in Singapore, Adobe is hosting one of Asia-Pacific’s leading marketing events of the year – Digital Marketing Symposium. We are dedicating a special afternoon breakout session to Digital Government. From social media strategy to online portals for citizens, discussions will focus on how government can take advantage of new technologies to enable e-Government policies.

Please join us July 22 in Sydney and July 24 in Singapore or join the conversation via #AdobeSymp.

An Important Milestone for Digital Due Process

Posted by Jace Johnson, Vice President of Global Government Relations and Public Policy

This week, digital due process got one step closer to reality as a majority in the United States House of Representatives now supports reforms to the Electronic Communications Privacy Act (EPCA).  The reforms are part of the Email Privacy Act (H.R. 1852), which creates a clear warrant-for-content standard and further protects the privacy of online communications.

Currently, under EPCA, online communications stored more than 180 days can be obtained by law enforcement with a simple court order or subpoena. As we noted last year, we believe our customers’ private communications deserve constitutional protections no matter where they are stored. Communications stored online for more than 180 days should receive the same protection as those stored on your hard drive. This is why we support the reforms to EPCA that will require a search warrant issued upon probable cause to obtain any communications of our customers stored online.

Adobe applauds the bipartisan coalition of 218 House members co-sponsoring the Email Privacy Act and urges the House Judiciary Committee to pass this bill without delay.

 

The Last Days of Patent Reform

Last Thursday marked the end of the patent reform effort. The Senate Judiciary Committee decided to pull the patent reform bill off of its agenda. Without a vote in committee, the bill will not move forward.

This marks a devastating and sudden end to a bipartisan and helpful attempt to rebalance the patent system and reduce the abuses in our current system. Patent trolls, as we have clearly documented, – are costing our economy billions of dollars and thousands of jobs. They are impacting every industry in America, large and small. Look at the businesses, advocacy groups, and innovators who came together on this effort: restaurants, hotels, casinos, grocers, travel agents, developers, the largest and smallest technology companies, retailers… the list goes on. A broad coalition of American businesses needed Congress to act, as only Congress can, to stop the abuse.

Instead, patent trolls have once again succeeded in protecting their multi-billion dollar assault on American businesses and workers.

It’s truly sad too, as patent reform is not a partisan issue. The White House supported reform. The House passed patent reform with enormous bi-partisan support, led by the efforts of Chairman Goodlatte and Congresswoman Lofgren and a large group of Representatives willing to act with integrity and fortitude. On the Senate side, Chairman Leahy courageously led the Senate Judiciary Committee to take on the trolls with hearings and the creation of a useful customer stay provision with the support and help of Senator Lee. Senators Cornyn and Schumer forged a compromise on important aspects of the reform like pleading and discovery. Senator Hatch led an effort to create a critical recovery of fees provision. Ranking Member Grassley also provided tremendous leadership on the committee in driving the reform effort forward. Consensus was building around a balanced and targeted reform that would have restored integrity to our honorable patent system.

But it all ended up being for naught. Patent trolls proved too powerful, once again, in American politics. A few special interests defeated the will and needs of the many. And that’s how this reform effort died.

Adobe will continue the battle against patent trolls, standing up for our customers, and refusing to settle meritless patent lawsuits. We applaud the Supreme Court’s recent decision on fee shifting, as at least one branch of our government has recognized the problem and seen fit to act, within its powers. And, we hope to continue this fight another day. In the interim, investors and hedge funds will continue to pour money into this lucrative business model, and job producing businesses and workers will suffer. And perhaps we will one day reach a tipping point where enough courageous lawmakers are willing to stand up for what is right, and end this abuse of the patent system.

Lawyer’s Encounter 25 Years Ago Foreshadowed Patent Wars

Posted by Mike Dillon, SVP, General Counsel and Corporate Secretary

Note: This op-ed first appeared in National Law Journal on May 5, 2014

Early in my career, when I was a law firm associate, one of my clients, a small networking company, received a curious letter. It was from an unknown company accusing my client of patent infringement and “inviting” it to pay a very large license fee.

What made the letter so strange was that the referenced patent had nothing to do with the products made by my client. Stranger still, after some investigation, we discovered the other company was little more than a thinly capitalized shell that appeared to have a single employee — an attorney who had purchased the patent from someone else.

Because it was rather novel, I discussed the letter with other attorneys in the firm and we concluded it must be a mistake, so I decided to call the other company to clarify things. It didn’t work out as I expected.

Instead, our discussion became increasingly heated (at least on my end) until I said: “There’s no way my client will pay a dime. They aren’t infringing.” To which I heard a calm voice reply: “Yes, they will, because the license fee I’m offering is less than what it will cost them to fight a patent lawsuit. It’s basic economics.”

It turns out I was wrong.

Since that telephone call some 25 years ago, patent trolls have overrun the U.S. patent system, spawning an entire industry of attorneys, technical and damages experts, and causing a significant drain on judicial resources.

Here’s a patent litigation fun fact: In 2012 alone, more than 60 percent of all patent cases were filed by patent trolls. That’s more than 2,900 cases in a single year that required the attention of a frequently overworked judiciary.

More importantly, it’s been an enormous diversion of money and ­resources from innovation and job creation. According to study released in 2012 by Boston University School of Law professor Michael Meurer and lecturer James Bessen, the cost to American businesses in 2011 was a staggering $29 billion. In an era of increasing global competition, this doesn’t bode well for America.

The question is: What do we do about it? We have to attack the economics of patents. What’s notable about the patent-troll problem is that these entities seldom win their lawsuits. But their business model isn’t predicated on going to trial; instead, it is dependent on casting as wide a net as possible knowing that some percentage of companies will pay a license fee rather than incur the cost of litigation.

Today, a company can expect to incur several million dollars for outside counsel, expert witnesses and jury consultant fees to defend a case involving a single patent. If multiple patents are asserted, the costs are significantly higher. In addition, a company’s finance, legal and engineering teams must spend time to support the company’s defense, time better spent on the company’s business.

The lawyer representing the patent troll who told me it was about “economics” was correct, of course. It is about economics — asymmetrical economics. A lawsuit by a patent troll potentially puts at risk a company’s products (in the remote case when a jury finds infringement), but more importantly requires a company to incur the costs described above. On the other hand, the cost to a patent troll is almost negligible.

Although there is some risk that a patent might be found to be invalid during the course of litigation, this happens infrequently. Also, lawyers for patent trolls are usually paid on a contingency basis. Consequently, the patent troll has little out-of-pocket expense but tremendous upside opportunity.

How can we rebalance a clearly out-of-balance system? The real answer lies with Congress. A number of proposed bills are pending in the Senate directed at patent reform and the patent-troll problem.

These bills contain different ­proposals that help address the issue. One of those proposals would require that patent-troll lawsuits against customers be stayed until the case against the company producing the allegedly infringing product is resolved.

Although helpful, however, most of these measures do not get at the root of the problem — the asymmetrical ­economics.

The solution is to change the standard for awarding attorney fees under federal patent law.

The presumption should be that legal fees and expenses will be awarded to the prevailing party. In December, the House passed what is referred to as the “Innovation Act” that provides just this. The Innovation Act is one of those rare pieces of proposed legislation these days that has true bipartisan backing in the House and from the president. At the same time, the Senate Judiciary Committee is working on various patent-reform bills.

Addressing the imbalanced economics in our patent system will be one of the truest tests of reform. Once this happens American companies can get back to focusing on innovation and job creation.

Electronic Signature Adoption in Australia’s New Digital Economy

Posted by Jon Perera, Vice President of EchoSign

What country has the highest smartphone penetration worldwide, has high demand for workers with digital marketing skills and is the fastest growing market for e-signature adoption compared to the United States and the United Kingdom?

In addition to being known for fantastic beaches and friendly koalas, Australia is gearing up for innovation in the global digital economy. In recent months, I visited Canberra and Sydney for a meeting with customers and government officials to talk about e-signature use in Australia. I found a huge interest from both business and government sector clients in how e-signature solutions can enable cost savings and environmental benefits.

Earlier this year, Adobe released new research showing that Australia was lagging behind the US and the UK in the adoption of e-signature solutions, however, use of this technology is growing much faster than in these other countries.

In January 2014 Adobe surveyed over 100 of our customers in Australia to understand adoption levels of electronic signatures and how business and governments can extend usage. Key results included:

  • 100% of respondents agree that e-signature solutions increase business efficiency
  • 76% of respondents believe governments should do more to promote the use of electronic signatures

Many respondents believed that more needs to be done to drive awareness of the legality of e-signatures in Australia, which are a safer solution than wet signatures and can create a digital audit trail.  Along with cost savings, electronic signatures can also help business and governments to streamline workflows and increase efficiency as contracts can be signed on any device, at any time. There are also significant environmental benefits from paper reduction.

The United States is the leading adopter of e-signatures with approximately 11% adoption by business. The UK is in second place with approximately 3.5% adoption by business, while Australia has approximately 2% adoption rates. While these rates are lower in Australia, we are seeing very high growth rates and I expect e-signatures to become more prevalent over the next three years.

The government of Australia is also taking a proactive approach to drive new technology adoption with the federal government’s plan for E-Government and the Digital Economy and state initiatives such as the NSW ICT Strategy in New South Wales. I look forward to continuing to work with these leaders in business innovation and new technology adoption in Australia.

A Big Week for Innovation

Posted by Dana Rao, Vice President of Intellectual Property and Litigation

There aren’t many policy issues that unite technology companies and travel agents, grocery stores, and real estate professionals. Patents policy are one of those issues. This week companies big and small, across almost every sector of our economy, will train their eyes on Washington to see what happens at the Supreme Court and across the street at the U.S. Capitol. They’ll do so buoyed by the hopes that our judicial and legislative branches can bring balance to our patent laws. As both a patent holder and a patent defendant, we’re hoping for two things: a reaffirmance by the Supreme Court that software is patentable and action by the Senate to end the abusive practices of patent trolls.

Today, the U.S. Supreme Court begins oral arguments in the case of Alice Corporation vs CLS Bank International. At the heart of the case is whether software is patentable. The eventual ruling will have broad ramifications on legitimate innovation. As I outlined in a blog earlier this month, an abstract idea combined with implementation details is patentable, whether the invention is made in software or any other medium for invention. That idea is in line with previous Court rulings and can help us separate the “good” software patents from the “bad”.  Refocusing our patentable subject matter test on what matters, whether an idea will preclude every way of implementing a concept, instead of an ephemeral and ever-changing assessment on whether the latest technology is “fit for patenting”, will allow us to continue to grow our innovation economy.

Soon, the Senate Judiciary Committee will mark up a bipartisan bill introduced by Committee Chairman Patrick Leahy and Senator Mike Lee. I testified before the Committee late last year and noted that the Leahy/Lee bill was an important first step in moving reform forward and reducing the $29 billion impact patent trolls have on the innovation economy. I’m happy to see Senator Leahy pushing forward with these critical reform efforts.

As the Committee considers patent reform legislation, Adobe encourages them to adopt other critical reform efforts, including Senator Cornyn and Grassley’s legislation which strengthens patent law’s fee shifting standard, reforms pleading requirements, and streamlines discovery in patent cases. In addition, Adobe supports Senator Hatch’s legislation providing discretionary bonding, which will ensure awarded fees are actually paid by the patent troll or their investors. When combined, this legislative package can protect true innovation—abstract ideas coupled with specific implementation details—while significantly reducing frivolous claims brought by patent trolls.

Innovators and industries from across America are watching, anxious to see the nation’s highest court and greatest legislative body act on an issue of critical importance to our economic vitality. Let’s keep patents strong, but let’s also end the abusive practices that are undermining businesses and the integrity of our patent system.