General Practice, Solo & Small Firm Division

A service of the ABA General Practice, Solo & Small Firm Division

Technology eReport

American Bar Association - Defending Liberty, Pursuing Justice

September 2008

Vol. 7, No. 3

Columns

  • MacNotes »
    Should you get the iPhone G3?
  • TechNotes
    Minority Report brought us a vision of wonderful—and scary—technology. Has the vision become reality?
  • SurvivingEmail »
    List serve characters: the types who type. (Can you recognize yourself?)
  • Sites for Sore Eyes »
    Find out how to build your own search engine.
  • ProductNotes »
    CorelDraw Graphics Suite X4, Dragon NaturallySpeaking 10, and Quickbooks Pro 2007 for the Mac.
  • DivisionNotes »
    2008 Fall Meeting and National Solo & Small Firm Conference.

 

TechNotes
Trends in Technology

Eliminating Handheld Controls

A while back, I wrote about the thoughtfully developed future technology predicted in the film Minority Report. I focused there on the OLED display technology, the really cool transparent curved displays. In hindsight, that was the least of the cool technologies forecast by the producers of the film. Remember how Tom Cruise and his colleagues were able to manipulate the data and displays, using variants of the touch techniques Apple now uses for navigating the iPhone and iTouch? Even that technology may be behind the curve, giving way to true “gestural” interfacing. In fact, the BBC recently reported claims of a Gartner analyst that the mouse will be passé in three to five years.

That prediction may have some validity among the techie population, but what of the more than 80 percent of the world who have yet to get online? This technology could help them do so, because it has no moving parts to break or batteries to replace. If it’s already available in crude form in the home entertainment environment, given the convergence of personal computing and personal entertainment, it won’t be long before we see it in our office systems.

What?? Yes, Panasonic already has developed home video systems that eliminate the handheld remote control. Real-time facial recognition identifies you as the “commander” and displays your preferred menu. Gestural recognition allows you to navigate the menu and select from it. The facial recognition systems—also under development by Sony, Canon, and others—even recognize when you smile. Visual recognition of emotions! That’s nothing . . .

By the time you read this column, a headset is scheduled to have reached the market that will allow you to control a computer by merely thinking. Not yet sufficiently sophisticated to translate thought to language (i.e., thought to text on the screen), but it’s still a start. Just think about it—you no longer will have need to rant at your computer when it does something unexpected. Just think at it and punch at it in a VR application of Engineering Principle No. 1 (the swift kick principle).

This wondrous technology highlights a more difficult social issue—the extent to which we are depersonalizing our interactions. “Couch potato” has taken on an entirely new meaning. We sit (or stand) in front of our computer displays and travel the worlds of our choosing, but never get to smell the cool air before a summer storm, or share a bottle of wine with friends and family while watching a rafter of wild turkeys cavorting across the rolling greensward between homes and woods at Potter Pond in Lexington, Massachusetts, as I was doing while writing this column. A recent study of an industrialized nation (not the United States), conducted by Northeastern University, indicates that few of us ever travel far from home. The study demonstrated that fewer than one percent of the population traveled more than 1,000 km from home with any frequency; 83 percent of those tracked stayed mostly within 60 km (about 37 miles) of home. Almost half generally stayed within 10 km (about 6 miles) of home. Is it then any surprise that people’s perceptions of the world in which we live suffers from tunnel vision?

Our government is only encouraging this insularity by its actions. We can assume that every telephone conversation and electronic communication is being eavesdropped—at a minimum by computers screening for keyword triggers that will prompt human review by some anonymous intelligence specialist. Then the government is enforcing its virtually unfettered right to conduct warrantless searches and seizures of electronic devices and data at points of entry into the United States. Everyone is fair game: from unsuspected pedophiles carrying kiddieporn on their PDAs, to business executives carrying confidential proprietary design data on their notebooks, to bankers carrying personal identifying information about consumers in encrypted data files, to lawyers carrying privileged and confidential information¹ on a variety of media ranging from notebook hard drives to optical discs to thumbdrives to SD cards.

This issue is of particular importance to lawyers. California lawyers, for example, have the statutory duty “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. (Cal. Bus. & Prof. Code §6068(e)(1)). This duty is far broader than the attorney-client privilege. In addition to the duty under section 6068(e),

the custodian of materials protected by an evidentiary privilege owes a duty to the holder of the privilege [the client, the patient, the penitent] to claim the privilege and to take actions necessary to ensure that the materials are not disclosed improperly. ( E.g., [Cal.] Evid. Code, §§ 955 [attorney], 995 [physician], 1015 [psychotherapist]; …) Even if the custodian is suspected of a crime, when privileged materials in the custodian’s possession are seized pursuant to a search warrant, he or she still owes a duty to take appropriate steps to protect the interest of the privilege holders in not disclosing the materials to law enforcement authorities or others.

( People v. Superior Court, 25 Cal.4th 703, 107 Cal.Rptr.2d 323, 23 P.3d 563 (2001).) These principles are recognized by federal courts. ( See, e.g., Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955 (3rd Cir. 1984).) Then there are the duties imposed by privacy rights and implementing statutes, which add an additional layer of protection requirements on the files and data we maintain.

As a consequence of the tension between the conflicting duties imposed on lawyers to preserve the confidentiality of client and third-party information and the duties of lawyers to comply with process, protocols have evolved to deal with searches of information in the possession of lawyers typically involving the use of a special master. Those protocols do not exist in the context of searches at points of entry. In addition, the proliferation of data breaches at government agencies raises serious additional concerns about the security of seized data in the hands of any government agency.

In an attempt to alleviate these some of these concerns, on July 16, 2008, CBP issued a policy memorandum entitled Policy Regarding Border Search of Information, which purports to set forth “the legal and policy guidelines within which officers may search, review, retain, and share certain information possessed by individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border.” The policy memorandum states, in pertinent part:

      Attorney-Client Privileged Material. Occasionally, an individual claims that the attorney-client privilege prevents the search of his or her information at the border. Although legal materials are not necessarily exempt from a border search, they may be subject to special handling procedures.
     Correspondence, court documents, and other legal documents may be covered by attorney-client privilege. If an officer suspects that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the officer must seek advice from the Associate/Assistant Chief Counsel or the appropriate U.S. Attorney’s office before conducting a search of the document.

(Policy Mem. & E(3).) This document is an internal policy statement of CBP and “does not create any rights, privileges, or benefits for any person or party.” In other words, it provides cold comfort to any of us.

Moreover, because the exception speaks to search and says nothing about seizure, one easily can envision a scenario in which a lawyer’s electronics are seized at a point of entry, and then either cloned or kept until the level of suspicion is resolved or the CBP legal department or appropriate U.S. Attorney’s office decides what to do. Ultimately, the CBP legal department or the U.S. Attorney’s office easily could decide to allow CBP personnel to proceed with the search without the safeguards of a special master and a magistrate, and the lawyer whose data is being searched likely would never be the wiser.

What, then, are we to do when traveling outside the country with privileged and/or confidential information? The answer is surprisingly simple—don’t. Either use a VPN to remotely access data left on your servers at the office, or use “cloud storage”² to serve as the repository for your data.

The analysis doesn’t end there, however. CBP admits that its “examinations of . . . electronic devices are a crucial tool for detecting… information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.” Therefore, be sure that the software on your devices is legit, that you have no bootleg copies of operating systems or applications, and that any software or hardware that travels with you outside the country is not subject to export control restrictions.

Minority Report brought us a vision of wonderful technology, but we should never lose sight of the film’s basic premise: stop crime before it starts. Orwellian vision has been slow to develop, but that future is upon us. Don’t let it catch you.

We live in interesting times, and the prospects for the future—at least as to technology that will be useful to us—are bright.

1For example, attorney-client privileged material, other material containing the "confidences and secrets" of clients, attorney work-product, and material subject to court-imposed protective orders.

2Any of the online data storage services. Apple recently introduced MobileMe, which offers not only file storage but calendar and address book synchronization as well among your desktop, your notebook, and your iPhone. Your notebook and desktop can be either Windows or Mac based.

J. Anthony Vittal ( ), is in private practice with The Vittal Law Firm based in Los Angeles, California. A former member of the ABA Standing Committee on Technology and Information Systems, a member of the editorial boards for Tech eReport and the Technology & Practice Guide issues of GPSOLO, and a member of various technology-oriented committees of ABA Sections, he speaks and writes frequently on legal technology topics.

© Copyright 2008, American Bar Association.