To Be or Not to Be (Connected)

Vol. 28 No. 4

By

James Ellis Arden practices law in the Los Angeles metropolitan area with a focus on legal malpractice, civil litigation, and appellate matters.

 

Connectedness is recognized by psychologists as an innate human need. “Social connectedness” is referred to as something determining both success in life and mental health. Some see pursuit of connectedness as one of the basic motivators underlying social behavior; the fundamental need for belonging and connectedness promotes social relationships.

This drive is seen in instant messaging and Facebook users who monitor availability of colleagues and exchange greetings even when they don’t want to exchange information. Awareness that others are online conveys connectedness even when there is no message exchange. Some research finds the need for connectedness to be the most important factor in making a choice between communication channels.

That explains a little about why everyone’s jumping on clouds, tweeting and twittering, and Facebooking. Most people have an emotional need to be connected. The complication: Because the designers of these new technologies want them to be as easy to use as possible, people don’t have to understand them in order to use them.

Legal ethics is involved because new technology is both seductive and also inherently risky. We all want the fastest, smallest, most powerful, and best looking thingamajigs, but lawyers must understand enough about this new technology to use it competently and not put at risk clients’ secrets or work product stored on a hard drive or in a smart phone.

New technologies may be misunderstood, misused, misapplied. Remember all the angst over Y2K? Although we’d been using computers and electronic timers for decades, lots of time and money—and perfectly good computers—were wasted on unfounded worries that the world would plunge into chaos on New Year’s Day 2000.

Lawyers have no ethical obligation to use new technology just because it is available. But lawyers must know about new technologies, stay abreast of technological advances, and consider the risks involved in using new technology.

Even printers can be targeted for attack nowadays. Network printers have been found to be infected with the Blaster and Sasser worms. Printers are loaded with more complex applications than ever and run all kinds of vulnerable services, and many have direct Internet connections. A network printer should be as secure as any server or workstation.

We all know by now that a computer lacking virus protection and intruder prevention software will soon become useless owing to viruses and malware attacks. We use WiFi networks, too, even though they are susceptible to interception by unauthorized users.

Networking your computer—that is, connecting it to other computers or computer networks—implicates many of the same concerns for privacy and security that arise when you use a publicly available computer or network, say at Starbucks.

Cloud service providers hawk the ability to access the cloud from any Internet browser that happens to be handy. But using public computers can be risky. Lawyers cannot afford to leave Internet footprints behind.

So if you use a publicly available computer to access your cloud service, your search history may be left behind, showing where you’ve been web surfing. To be safe, don’t log in to search engines or use their tools; block Google from placing cookies in your computer; regularly change your IP address; use a privacy app that deletes all search information when you’re done; don’t run searches using personal information—if you Google yourself, Google will correlate searches with your name; run sensitive searches, if you must, from a public hot spot that does not require you to log in; if your own Internet service provider (ISP) has a search engine (e.g., Comcast) don’t use it—your ISP already knows your IP address, so if you use its search engine, it can correlate your IP address to your searches and build a rather comprehensive profile about you.

As we all know, social networking sites generate lots of controversies and lawsuits. Many of them involve privacy violation claims. Generally, legal liabilities and obligations of social networking sites are determined under Section 512(c) of the Digital Millennium Copyright Act and Section 230 of the Communications Decency Act.

Using peer-to-peer software involves some special considerations, too. In United States v. Ladeau, No. 09-40021, 2010 WL 1427523 (D. Mass. April 7, 2010), the police remotely downloaded files from the defendant’s computer to use as evidence of his possession of child pornography. The defendant moved to quash, arguing the police had conducted a warrantless search of the defendant’s Gigatribe network, in violation of the Fourth Amendment. (Gigatribe is a peer-to-peer file-sharing program that allows users to share computer files with other users in their network.) The court referenced other courts’ holdings that “users of peer-to-peer software, such as LimeWire, do not have an objectively reasonable expectation of privacy in the contents of the computer they use to run the software,” noting that “anyone who installs and uses file-sharing software is opening his computer to anyone else with the same freely available program.”

So, the use of file-sharing software may extinguish any expectation of privacy and may give the government license to look through the computer.

One way to avoid the hazards associated with the newest technologies is to wait until they aren’t so new. You don’t need to be a complete Luddite—just operate on the if-it’s-not-broke-don’t-fix-it principle. (Saves money, too.)

Countless lawyers can’t live without a BlackBerry or smart phone. Yet, many of us have no use for one, or wouldn’t even know what to do with one.

At bottom, the question needing to be answered before connecting to any of these Pandora’s e-Boxes is what business purpose will it serve? Cloud services are among the newest things, but do you need them? Do your clients expect you to have such capability? Will it facilitate your representation or help you get things done?

If your business can remain competitive without being über connected, then stay away—you won’t have to monitor those connections, and you’ll have a little less risk to worry about.

On the same theory but a much smaller scale, consider that you can click to “disconnect” your computer modem at times when you don’t need an active Internet connection. You can’t get hit by Internet malware while you’re not actively connected.

In the words of the New York State Bar Association Committee on Professional Ethics (Op. 782, 2004), “Technology . . . is a queer thing. It brings you great gifts with one hand, and it stabs you in the back with the other.”

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