Technology

Published in Corporate Counsel Business Journal

Authors: Ronald J. Levine, Herrick litigator, and Richard Torrenzano of The Torrenzano Group

AI is zooming information at ludicrous velocity transforms how companies must prepare confidential material.
Are you ready for the new 2-hour digital day?

Despite good efforts, company “internal communication” is an oxymoron … that vanished into the digital domain.

Technology is advancing at AI warp speed, zooming information through cyberspace at ludicrous digital velocity. Corporate policies and procedures are simply not keeping pace, even those put in place a year ago are somewhat outdated. Missteps will be costly.

News alerts and headlines remind us that no organization is too powerful or too large to be immune from unauthorized leaks. Wall Street is littered with iconic brands, including social media giants, which have suffered leaks.

The highest levels of the U.S. Government and its allies have been struggling with sensitive leaks about defense and intelligence. Leaked documents first appeared on websites which reportedly U.S. agencies were not adequately monitoring. Even the U.S. Supreme Court had to mop up following public cyclones caused by unauthorized leaks of internal documents.

Are client policies, procedures and training programs up to date, locked and loaded?

Digital change is like a relentless ninja that pounces from any angle where no one is safe from surprising blows. The business cyber battlefield is full of surprises and change is the ultimate master of disguise.

Today’s digital environment is 24/7, global, with information retrievable instantly by everyone from anywhere and seen simultaneously by all constituents -- employees, customers, investors, suppliers, regulators, media, competitors and others.

Clients must be counseled that documents must be drafted with more than just great care, now with an understanding that everything can be instantly disseminated and read by a much wider audience.

Emails, texts, reports or other information, as well as the use of unauthorized platforms -- are all susceptible to leaks or regulatory breaches.

Accordingly, clients’ confidential communications should be sent to as few recipients as possible; those who truly need to know. Access to the company’s sensitive information must be restricted.

Big Brother is educating and watching.

Today, AI touches all aspects of our lives, as well as company operations. And if imaginable, this will intensify.

Annual reviews and training are critically important, along with signed confidentiality agreements which help drive home the importance of compliance with policies. If there is a breach, a formal disciplinary policy must be enforced.

Even with the best training, confidential information can slip through the cracks. For that reason, internal monitoring of employees’ practices and conduct in the dissemination of confidential information is critical. Importantly, employees should be informed in advance of policies and any monitoring.

Some leaks will not be prevented. When one occurs there are basic strategies which must be adopted.

Time is not on your client’s side.

In the Righteous Brothers 1965 hit, Unchained Melody, the duo sang: “... time goes by so slowly, and time can do so much.” Charming and romantic.

Today, instantaneous online forces demonstrate that time can indeed do so much.

In Richard Torrenzano’s co-authored book, Digital Assassination: Protecting Your Reputation, Brand or Business Against Online Attacks,he coined the term and a standard digital 8-hour response process.

Today, that concept is even more important, as the speed and magnitude of attacks and leaks dramatically escalated. We are now facing a “2-hour digital day.”

When a leak occurs — usually something that must be acknowledged or answered…your client will only have one or two hours for an initial response, as posts turn viral in today's instant, mobile environment.

If compounded with conflicting public statements written in gibberish or legalese… it becomes a fiasco.

The C- suite and legal counsel must be immediately engaged.

Unfortunately, many corporate cultures, business leaders and their advisors are simply not organized to operate at AI digital warp speed.

Confidential, sensitive documents leaked into the news. Actually, they are the news. Now what?

Once information has leaked it will spread online as if blowing on a dandelion. The dissemination will be accelerated by competitors and activist groups.

Any leaked information could easily find its way on a broadcast, in The Wall Street Journal, industry media … or before a regulatory or Congressional group.

No one can change how leaks of confidential information are covered by media. But there are several actions companies can take to prevent it or minimize damage. Attorneys must be fully familiar with the following best practices so they can advise their clients appropriately.

One governor, one voice.

Executives should be counseled to heed the warning of the British social commentator J.B. Priestley: “The more elaborate our means of communication, the less we communicate.”

In fact, unconnected people write various documents about the same or similar subjects: human resources, communications and marketing, investor relations, among others. All have different disciplines, points of view and writing styles.

However, every document -- internal and external, public announcements or regulatory filings -- on a particular issue should be coordinated to include the same exact language and terminology.

This is important as everyone can see everything at the same time, so all constituents receive the same messages.

While subject matters can be complex, documents must be written in simple English. Write as if you were addressing a first-year college class. Under no circumstance should it be written in gibberish, legalese or compounded by industry acronyms, that just sets up a disaster.

What do you want to say? Critically, what do you want to be received?

Decide exactly the purpose of your communication. Is it meant to share information, function as a call to action, change opinions, all of these ... or something else?

Does the document contain answers to basic questions stakeholders need or want to know ... not only what the company thinks they should know?

Key point: What messages are being received? One quick and simple test for any document is to ask an entry level employee to read it and then tell you two things about it. If their response is not the two messages you wanted to be received, consider rewriting.

Humans today have an attention span of approximately 8 seconds, and to some extent, that’s why Twitter’s 280 instant simple characters are popular. Most business executives and their senior advisors were not trained to write or think in this digital realm.

What is the tone of the communication?

Is the “tone” carefully calibrated to express appropriate levels of empathy or confidence, or both, for an ultimate outcome?

Importantly, statements must be humanized, not sterilized. A person’s name needs to be visible when issuing a comment or document, not just the company or department name.

In this era of consumer value and instant media, you would be surprised how many companies still use this impersonal and disengaging format in employee or customer communications.

Message to Clients: Don’t stop thinking about tomorrow.

It’s not a matter of if, but when – a black swan event hits your client’s company.

Was management’s mindset to create a plan, rehearse and assess it, and be ready to address if there is a leak? Or were they simply busy with other issues and mistakenly believed “it cannot happen here”?