Is Cloud Computing Ethical?

Is Cloud Computing Ethical?

In this age of increased technology, attorneys are turning to “virtual law offices” (VLO) and cloud technologies to maintain office files and information. There have been concerns raised about whether maintaining files online still complies with an attorney’s ethical obligations. Cloud computing is accepted by the Business and Professions Code and the Rules of Professional Conduct, but attorneys may be required to take additional steps to confirm that he or she is fulfilling ethical obligations with the cloud. There are no new or greater duties imposed on VLO, but attorneys are asked to be more cautious when taking this approach.

In a VLO, attorneys are able to communicate with clients through a secure internet portal. The attorney’s website can store information regarding the client’s case. The information on the client matters are password protected and encrypted. The State Bar of California understands the flexibility and convenience of legal services provided through VLO. However, this does not mean a client’s confidentiality could be sacrificed. Every lawyer, they believe, has a duty to “maintain inviolate the confidence, and at every peril to himself or herself, preserve the secrets of his or her client.”

Whether or not an attorney violates his or her duties to confidentiality when using technology will depend on the particular technology being used. Before using an technology in the course of representing a client, an attorney must evaluate:

  1. The level of security attendant to the use of that technology, including considerations of whether reasonable precautions may be taken using it.
  2. The legal ramifications to a third party who intercepts or accesses the electronic information.
  3. The degree of sensitivity of the information.
  4. The possible impact on the client of an inadvertent disclosure of confidential information.
  5. The urgency of the situation.
  6. The client’s instructions and circumstances.

We hope both our clients and other attorneys found this post useful in understanding the changing nature of the legal field. While the State Bar does not impose additional rules or restrictions on VOL, attorneys are asked to be more cautious when using a cloud. The information provided above comes from specific ethical guidelines from California’s State Bar. Opinions by other Bar Associations may vary.

Sources referenced:

  1. State Bar of CA Formal Opinion 2010-179
  2. CA State Bar Formal Opinion 2012-184
Facebook under fire for Facial Recognition Technology

Facebook under fire for Facial Recognition Technology

In a previous post, we discussed how we will be seeing a rise in litigation over biometric data in the near future. Facebook’s photo tagging lawsuit is one of the first examples. Despite Facebook’s attempts to throw out the case, a federal judge has permitted a class action lawsuit against the social media giant’s facial-recognition technology. The technology automatically matches names to faces in photos uploaded to Facebook. It was an attempt to make “tagging” friends easier for users and first became available in 2010.

The case was initially filed in Illinois and has since transferred to California. The suit alleges that Facebook’s facial-recognition technology violates an Illinois Biometric Information Privacy Act (BIPA) statute by not informing users about the collection of biometric data. Facebook has said that photo-tagging is disclosed in its terms of service and that users can opt out of the technology at any time. Judge Donato, the San Francisco federal judge who denied Facebook’s request to toss the lawsuit, said protecting the privacy of its users must be a priority for Facebook and that collecting biometric data without their permission is unethical. Facebook previously said they invented the technology to help users, but did not comment on Judge Donato’s decision.

Why is Facebook being targeted?

Facial recognition technologies have been widely used by other social media websites and apps as well. Snapchat is a great example. The app uses the front-facing camera to put “filters” on the user’s face. Like Facebook, Snapchat is known to use facial recognition technology to store information about its users. This brings up the question of why Facebook is being targeted, while other social media websites and apps seem to be getting a free pass. The answer is actually quite simple: Facebook is too good at facial recognition. When comparing Facebook’s facial recognition technology to the FBI’s system, Facebook performs much better. According to Facebook, they are able to identify a person correctly 98% of the time. The FBI’s General Identification system only identifies people correctly 85% of the time. Part of the problem with the FBI’s system is that they are only able to recognize photographs taken straight on, such as a mugshot, whereas Facebook can identify users in nearly any setting. The FBI also has a larger database than Facebook to search. Facebook’s facial recognition software has become one of the world’s most advanced systems in the world and this lawsuit may be seen as an attempt to curve their power and capabilities.

Sources referenced:

  1. ABA Journal
  2. USA Today
  3. NPR
Do lawyers have an ethical duty to replace hacked client funds? It depends.

Do lawyers have an ethical duty to replace hacked client funds? It depends.

The North Carolina State Bar released an ethics opinion regarding an attorney’s responsibility when a client’s money is stolen by a hacker. The ethics opinion, which did not address the legal liability of the attorney in such situations, focused on the attorney’s duties to maintain computer security. Attorneys should educate themselves about the risks of security banking and hire technology consultants for any advice. Staffers should be adequately trained on trust-account management and taking proper safety measures when it comes to client’s confidential information.

Attorneys have an ethical responsibility to replace the client’s stolen funds if the attorney’s failure to take safety precautions was the proximate cause of the trust account theft. In plain language, the attorney should replace the funds if the funds were lost as a result of the attorney’s mistake. The opinion provided a hypothetical scenario in which a lawyer carelessly wires money to a spoof email set up by a hacker. The lawyer had previously been told to contact the seller by phone before any transactions, but he did not bother to do that. As a result of the lawyer’s mistake, his client lost money. Instead of immediately wiring the money, the lawyer should have contacted the seller directly. By doing this, he might have found out about the hacker’s spoof email. In this case, the lawyer has an ethical duty to replace the funds.

Lawyers are advised to immediately notify their client of any stolen money and help them identify ways to cover the losses. The hope is that lawyers will be more careful with their client’s funds and take the best security measures to protect their client’s personal information. These ethical standards from the North Carolina State Bar are only standards and cannot be imposed on attorneys. There may not be a clear-cut answer on whether or not attorney’s should replace hacked client funds, but the State Bar has attempted to outline a set of ethical guidelines.

Source referenced: ABA Journal

Legal Challenges with Online Reviews

Legal Challenges with Online Reviews

If you have ever bought something on Amazon or tried to find a new restaurant to eat at, one of the first things you probably did was read reviews and consider what other people had to say about the product or the restaurant. Turning to Yelp or the reviews section on Amazon is becoming an ordinary thing. People selling these products and business owners know the value potential customers place in their reviews and they are trying their best to keep customers happy or prevent them from writing negative comments. Some business owners are even willing to pay random people, who have never bought the product or visited their business, to write positive reviews. Robert Lee found himself in the middle of an online review lawsuit after visiting a New York City dentist.

The Incident with the Dentist

Lee visited Dr. Stacy Makhnevich at Aster Dental when he was in desperate need of treatment for his toothache. Before Dr. Makhnevich treated Lee, he signed a “mutual agreement to maintain privacy” contract which said he would not be able to comment about the services of the business. The dentist, according to the agreement, had a copyright protection and Lee would not be able to publicly comment on her services. Lee received his treatment and later realized he was overcharged. In addition, Dr. Makhnevich would not give him the dental records he needed to be reimbursed by his insurance company. Lee started writing negative reviews of the dentist on Yelp and other dental sites. When Dr. Makhnevich read the reviews, she demanded the online companies take the reviews down. She also sued Lee for copyright infringement. Lee fought back and aimed to invalidate her copyright claim. In the end, the U.S. District Court for the Southern District of New York said the privacy agreement was null and void. The agreement was found to be deceptive and Lee was awarded more than $4,700.

The reason dentists like Dr. Makhnevich and other business owners are so aggressive about their online image is because a 2015 survey by Mintel Group Ltd. showed that 54% of people read online reviews before purchasing goods or services. Harvard Business School found that adding even one star to a restaurant’s Yelp page can increase business by 5-9%. However, consumers are very intelligent and can be very suspicious of companies with only positive reviews. This should serve as a warning to business owners.

Freedom of Consumer Speech

Consumers have certain rights in the market and one of these rights is to speak their mind about the products and services they purchase. Since more and more business owners are including consumer gag clauses into their agreements, there are laws being put in place to protect consumer speech. Strategic lawsuits against public participation, or SLAPP suits, specifically spell out consumers’ rights to post negative, fact-based reviews. California’s Civil Code 1670.8 made the state the first in the nation to give consumers the right to post negative, honest reviews on Yelp. Congress is working towards passing a nation-wide law similar to California’s.

Companies like Amazon and Yelp are working with the FTC to make sure no fake reviews are posted online. The FTC also says consumers cannot be reimbursed in any way for writing positive reviews. Amazon and Yelp have even stricter guidelines and use “artificial intelligence to determine whether a review is legitimate and whether the poster and marketer have a connection.” Some authors on Amazon believe the company is being too strict by taking down reviews of people who received the book for free. Fans of the author are also not permitted to post reviews. A petition has been started by several authors to get Amazon to change its online book reviews policy. However, this effort seems unlikely to succeed.

Taking Fake Reviewers to Court

In 2015, Amazon named more than 1,000 John Doe users who created fake reviews. In an effort to provide customers with honest reviews, Amazon specifically shows “Amazon verified purchase” tags from consumers who bought the product. However, the problem of whether these people actually received the product and used it before reviewing it still remains. Many believe Amazon and other companies should not take their concerns over online reviews to the court because “the Communications Decency Act holds that an internet service provider can’t be held liable for something published by a third party—like a reviewer.” Amazon’s suit did lead to the shutting down of a few websites that sold reviews. Yelp filed a similar lawsuit against websites selling reviews and won by default when the defendant failed to show up to court. Both Amazon and Yelp agree that going to court is their last resort. They have practices in place to detect and stop fake reviewers before taking them to court.

New York Attorney General Eric T. Schneiderman has been working with Yelp and other companies to identify fake reviews. Many companies pay workers overseas $1-$10 per fake review, which is a violation of New York’s false advertising laws. A total of 19 fake review companies were identified and fined. Different states and the FTC are working together to stop these companies. The hope is that companies will come together to protect consumer rights and business owners will be more honest about their online image.

Source referenced: ABA Journal

 

Guidelines For Professional Conduct | United States District Court, Northern District of California

Professionalism includes Courtesy.

When I was a young, baby lawyer, gentlemanly conduct and professional courtesy was the norm.  Rare was the lawyer who felt compelled to make everything as difficult and unpleasant as possible for no better reason than to, well, make everything difficult and unpleasant.  That kind of conduct did not fair well usually and the source often received a return on his investment that prejudiced his client and tarnished his reputation.

Somewhere along the way, obnoxious and difficult behavior became more and more common until eventually it seems that to some, it was a badge of honor.  In certain jurisdictions acrimony became the norm not the exception.  Nothing good came from this.

Bemoaning this decline in civility among lawyers, many Courts have promulgated standards of conduct designed to guide the deviating lawyer back to the land of professionalism and civility.  Most recently, the United States District Court for  the Northern District of California (San Francisco) has published its own version of such standards.

Guidelines For Professional Conduct | United States District Court, Northern District of California.

It’s a good read and a poignantly reflective reminder for those of us that have always aspired to maintain the highest levels of respectful professionalism how to remain so.

 

 

Can Sharing a Web Link Lead to Copyright Infringement?

Most business and business savvy clients work in areas and on projects that involve regular, sometimes intensive, and often constant research.  Research is a constant!

And many people work from many places, researching at the office, at home or on the go. Many times this research involves the passing along of web links from one individual to another, and vice versa. Whether sharing news via e-mail, sync and data storage services, such as Drop Box, SkyDrive, Sugarsync, box.net., and many others; collaborative web portals, Social Media Sites, like Facebook, Twitter and Instagram;  we all use web links. They are easy to copy and paste and are so conveniently placed right in our address bar for easy access. We share these links all the time without a second thought. But is this legal?

Now a federal judge confirms that our actions are perfectly fine.

In a recent case, a plaintiff sued defendant for copyright infringement. The plaintiff claim was partially based on alleged improper use of web links, arguing that a web link provides the pathway to copyrighted material. The court found however that a web link does not itself contain copyrighted material and therefore does not infringe upon a copyrights owner’s rights under Section 106 of the Copyrights Act.

The hyperlink serves as a window through which one can view material, copyrighted or not.  Simply getting to the material presents no copyright infringement problem.   It is the steps taken after finding the material that present a mine field of challenges and potential trips.  Think twice ( or more) before downloading the material to your computer, or uploading it to a server.  As for merely sharing or clicking on a link, no harm done.

For now, we are free to continue our use of web link sharing without any copyright infringement fears.

Article Reference:

http://ow.ly/nXX4K

Lawyers Must Protect Client Confidences

Lawyers must protect client confidences at every peril, even to themselves. Storing client communications or data must be done in a manner that protects client privacy. WIth the advent and increase in use of cloud computing solutions, lawyers must remain mindful of the Legal Ethics Requirements Associated with Cloud Computing. Here are some guidelines: http://ow.ly/hXYRk