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Micaela McMurrough

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Micaela McMurrough has represented clients in high-stakes antitrust, patent, trade secrets, contract, and securities litigation, and other complex commercial litigation matters, and serves as co-chair of Covington’s global and multi-disciplinary Internet of Things (IoT) group. She also represents and advises domestic and international clients on cybersecurity and data privacy issues, including cybersecurity investigations and cyber incident response. Micaela has advised clients on data breaches and other network intrusions, conducted cybersecurity investigations, and advised clients regarding evolving cybersecurity regulations and cybersecurity norms in the context of international law.

In 2016, Micaela was selected as one of thirteen Madison Policy Forum Military-Business Cybersecurity Fellows. She regularly engages with government, military, and business leaders in the cybersecurity industry in an effort to develop national strategies for complex cyber issues and policy challenges. Micaela previously served as a United States Presidential Leadership Scholar, principally responsible for launching a program to familiarize federal judges with various aspects of the U.S. national security structure and national intelligence community.

Prior to her legal career, Micaela served in the Military Intelligence Branch of the United States Army. She served as Intelligence Officer of a 1,200-member maneuver unit conducting combat operations in Afghanistan and was awarded the Bronze Star.

Contact: Read more about Micaela McMurroughEmail

On April 25, 2023, four federal agencies — the Department of Justice (“DOJ”), Federal Trade Commission (“FTC”), Consumer Financial Protection Bureau (“CFPB”), and Equal Employment Opportunity Commission (“EEOC”) — released a joint statement on the agencies’ efforts to address discrimination and bias in automated systems. 

The statement applies to “automated systems,” which are broadly defined “to mean software and algorithmic processes” beyond AI.  Although the statement notes the significant benefits that can flow from the use of automated systems, it also cautions against unlawful discrimination that may result from that use. 

The statement starts by summarizing the existing legal authorities that apply to automated systems and each agency’s guidance and statements related to AI.  Helpfully, the statement serves to aggregate links to key AI-related guidance documents from each agency, providing a one-stop-shop for important AI-related publications for all four entities.  For example, the statement summarizes the EEOC’s remit in enforcing federal laws that make it unlawful to discriminate against an applicant or employee and the EEOC’s enforcement activities related to AI, and includes a link to a technical assistance document.  Similarly, the report outlines the FTC’s reports and guidance on AI, and includes multiple links to FTC AI-related documents.

After providing an overview of each agency’s position and links to key documents, the statement then summarizes the following sources of potential discrimination and bias, which could indicate the regulatory and enforcement priorities of these agencies.

  • Data and Datasets:  The statement notes that outcomes generated by automated systems can be skewed by unrepresentative or imbalanced data sets.  The statement says that flawed data sets, along with correlation between data and protected classes, can lead to discriminatory outcomes.
  • Model Opacity and Access:  The statement observes that some automated systems are “black boxes,” meaning that the internal workings of automated systems are not always transparent to people, and thus difficult to oversee.
  • Design and Use:  The statement also notes that flawed assumptions about users may play a role in unfair or biased outcomes.

We will continue to monitor these and related developments across our blogs.…

Continue Reading DOJ, FTC, CFPB, and EEOC Statement on Discrimination and AI

Many employers and employment agencies have turned to artificial intelligence (“AI”) tools to assist them in making better and faster employment decisions, including in the hiring and promotion processes.  The use of AI for these purposes has been scrutinized and will now be regulated in New York City.  The New York City Department of Consumer…

This past week, co-defendants in a class action related to the theft of cryptocurrency engaged in their own lawsuit over alleged security failures.  IRA Financial Trust, a retirement account provider offering crypto-assets, sued class action co-defendant Gemini Trust Company, LLC, a crypto-asset exchange owned by the Winklevoss twins, following a breach of IRA customer accounts. …

On February 4, 2022, the National Institute of Standards and Technology (“NIST”) published its Recommended Criteria for Cybersecurity Labeling for Consumer Internet of Things (IoT) Products (“IoT Criteria”).  The IoT Criteria make recommendations for cybersecurity labeling for consumer IoT products, in other words, for IoT products intended for personal, family, or household use.

The purpose of the publication, as described by NIST, is to identify “key elements of a potential labeling scheme.”  The publication makes clear, however, that the scheme would not be established or managed by NIST, but rather “by another organization or program,” referred to in the publication as the “scheme owner.”  The identity of the scheme owner is undetermined, but it “could be a public or private sector” entity.

The publication of the IoT Criteria represents another step toward a national cybersecurity labeling scheme for consumer IoT products.  We should expect that the framework established by NIST in this publication will serve as a model for these requirements.

IoT Criteria Framework.  The IoT Criteria establish recommended considerations for three key aspects of a potential cybersecurity IoT labeling program:

  1. Baseline Product Criteria
  2. Labeling
  3. Conformity Assessments

…
Continue Reading NIST Publishes Recommended Criteria for Cybersecurity Labeling for Consumer Internet of Things (IoT) Products

On January 4, 2022, the Federal Trade Commission published a warning to companies and their vendors to take reasonable steps to remediate the Log4j vulnerability (CVE-2021-44228).  The FTC provided a list of recommended remedial actions for companies using the Log4j software.  The FTC’s warning references obligations under the FTC Act and Gramm Leach Bliley Act…

On December 15, 2021, the U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency (“CISA”) announced the publication of a warning for “critical infrastructure owners and operators to take immediate steps to strengthen their computer network defenses against potential malicious cyber attacks” before the upcoming holiday season.  CISA’s warning emphasizes that “[s]ophisticated threat actors…

On November 8, 2021, New York Governor Kathy Hochul signed a new electronic monitoring law (S2628) requiring New York businesses that monitor or intercept employees’ e-mails, telephone calls, or internet usage to notify employees in writing of these practices.  The new law amends the state’s civil rights law and takes effect on May…

On May 12, the Biden Administration issued an “Executive Order on Improving the Nation’s Cybersecurity.”  The Order seeks to strengthen the federal government’s ability to respond to and prevent cybersecurity threats, including by modernizing federal networks, enhancing the federal government’s software supply chain security, implementing enhanced cybersecurity practices and procedures in the federal government, and creating government-wide plans for incident response.  The Order covers a wide array of issues and processes, setting numerous deadlines for recommendations and actions by federal agencies, and focusing on enhancing the protection of federal networks in partnership with the service providers on which federal agencies rely.  Private sector entities, including federal contractors and service providers, will have opportunities to provide input to some of these actions.In particular, and among other things, the Order:
  • seeks to remove obstacles to sharing threat information between the private sector and federal agencies;
  • mandates that software purchased by the federal government meet new cybersecurity standards;
  • discusses securing cloud-based systems, including information technology (IT) systems that process data, and operational technology (OT) systems that run vital machinery and infrastructure;
  • seeks to impose new cyber incident[1] reporting requirements on certain IT and OT providers and software product and service vendors and establishes a Cyber Safety Review Board to review and assess such cyber incidents and other cyber incidents; and
  • addresses the creation of pilot programs related to consumer labeling in connection with the cybersecurity capabilities of Internet of Things (IoT) devices.

The Order contains eight substantive sections, which are listed here, and discussed in more detail below:

  • Section 2 – Removing Barriers to Sharing Threat Information
  • Section 3 – Modernizing Federal Government Cybersecurity
  • Section 4 – Enhancing Software Supply Chain Security
  • Section 5 – Establishing a Cyber Safety Review Board
  • Section 6 – Standardizing the Federal Government’s Playbook for Responding to Cybersecurity Vulnerabilities and Incidents
  • Section 7 – Improving Detection of Cybersecurity Vulnerabilities and Incidents on Federal Government Networks
  • Section 8 – Improving the Federal Government’s Investigative and Remediation Capabilities
  • Section 9 – National Security Systems

The summaries below discuss highlights from these sections, and the full text of the Order can be found here.

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Continue Reading President Biden Signs Executive Order Aimed at Improving Government Cybersecurity

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