Jan L. Jacobowitz, director of the Professional Responsibility and Ethics Program at the University of Miami School of Law, believes that the experience attorneys gain by practicing mindfulness, “by noticing their minds moving off into distraction, and returning their attention to their breath,” makes them better equipped to deal with the unexpected, and better able to focus on and enjoy their work (Jan L. Jacobowitz, “The Benefits of Mindfulness for Litigators,” Litigation, Spring 2013 (39:2), at 27–29).
Jacobowitz points out that smartphones and the Internet have changed the way people communicate and quickened the pace of everyday life. She references the growing number of ethics opinions and disciplinary actions “stemming from the ability to express instantaneously an emotionally charged reaction in a blog post or the ease with which evidence found on Facebook may be improperly gathered or destroyed” (Id.).
Being mindful of privacy interests is just as critical. Garden-variety legal malpractice cases of the past involved blown deadlines and statutes of limitation. Malpractice cases nowadays are more likely to identify ethical breaches, especially where conflicts of interest or privacy violations have occurred, as damaging conduct falling below the standard of care.
The fact is, too many people are not mindful of privacy and passwords. Research by Broadband Genie found that 82 percent of its survey respondents had never changed the default passwords that came already installed on their wireless routers. Although changing the names to protect the innocent has been standard practice since the 1950s, more than 50 percent of the respondents never changed their passwords or anything else, or never even looked to see what was connected to their own networks (tinyurl.com/y3x7hwd9).
Fortunately, we have some mindful legislators. California, for example, enacted Civil Code §1798.91.04, requiring manufacturers of devices that connect to the Internet to preprogram their devices with unique passwords. It won’t prevent unmindful people from being hoist on their own petards, but perhaps it will reduce the numbers of their computers being used without their knowledge by malicious botnets.
Professor Jacobowitz also reports, as mindfulness concepts have become integrated into law school curricula, that students, in the context of professional responsibility, cannot pinpoint where the ethics portion ends and the mindfulness portion begins. “They seem to learn the rules almost without trying” (Jan L. Jacobowitz and Scott L. Rogers, “Mindful Ethics: A Pedagogical and Practical Approach to Teaching Legal Ethics, Developing Professional Identity, and Encouraging Civility,” St. Mary’s Journal on Legal Malpractice & Ethics, 2014 (4:1), at 198–214).
That’s good, because the rest of us must work at integrating these new-fangled technologies into our old-fashioned practices. Paradoxically, those who grew up in social networks are notoriously less concerned about privacy. They know privacy no longer exists.
Consider, if you will, just some of the ways in which new technologies are gathering information about us—for other people’s use. You can be identified these days by the way you walk, look, or smell. Cameras used by security firms and smartphones measure faces, chins, and eye sockets to a high degree of accuracy. Sound waves and light rays, used to measure ear shapes and sizes, might one day replace employee badges and hospital ID bracelets. Iris scanners operate even through eyeglasses and contact lenses. (India is collecting iris data on all of its 1.3 billion residents!) The FBI and the CIA use retinal scanners in the same way (Smithsonian, April 2019, at 16).
Banks and hospitals in Japan and South Korea (where fingerprinting is unpopular) identify people by vein patterns in their hands or faces. Odor sensors that detect volatile body chemicals while ignoring other scents may be used for airport security or health monitoring. Police cameras in Beijing and Shanghai can identify people from up to 165 feet away by recording and analyzing their gaits. People in prisons and amusement parks may soon be identified by scanning the lengths of their pinkies or the curvatures of their thumbs (Id.).
A company named Lyrebird offers new technology that can synthesize—that is, copy—anyone’s voice from just one minute of recorded audio. Lyrebird’s website bears the motto, “We create the most realistic artificial voices in the world.”
Lyrebird says it wants people to know they can easily be duped by audio, and hope this knowledge will prevent fraud: “By releasing our technology publicly and making it available to anyone, we want to ensure that there will be no such risks.” Well, what good will audio evidence be when any of it might be synthesized?
[I]t is much easier to identify a minefield when you observe others wandering into it than when you are about to do so.
We know mindfulness has become a really popular subject because lots of companies have begun selling mindfulness apps. There are hundreds. Some of the most popular ones make health claims with no research to back up their programs—they rely on the science of mindfulness in general to prove the worthiness of their product (Stephany Tlalka, “The Trouble with Mindfulness Apps,” Greater Good Magazine, August 24, 2016).
Dozens of mindfulness apps claim to benefit your brain in some manner. They seem to do no more than to “provide a link to the most recent mindfulness study taking place, or a comprehensive four-year meta-analysis on mindfulness and X, and then mention how their app relates—as if some sort of osmosis was taking place between the research study, in no way connected to the company itself, and the app” (Id.).
That’s why the Federal Trade Commission fined the creators and marketers of the Lumosity “brain training” program $2 million for deceptive advertising. Lumosity claimed its products would improve cognitive performance on a daily basis and protect against cognitive decline, but it didn’t have the science to back up these claims (tinyurl.com/zqf6vv6).
The Lumosity program consists of 40 games purportedly designed to target and train specific areas of the brain. The company advertised that training on these games for ten to 15 minutes three or four times a week could help users achieve their “full potential in every aspect of life.” The company sold both online and mobile app subscriptions, with options ranging from monthly ($14.95) to lifetime ($299.95) memberships (Id.).
Lumosity has been widely promoted through TV and radio advertisements on CNN, Fox News, the History Channel, National Public Radio, Pandora, Sirius XM, and Spotify, among others. It was marketed through e-mails, blog posts, social media, and on the Lumosity.com website. Lumosity also used Google AdWords to drive traffic to its website, purchasing hundreds of keywords related to memory, cognition, dementia, and Alzheimer’s disease, according to the FTC’s complaint (Id.).
Training with Lumosity was claimed to (1) improve performance on everyday tasks in school, at work, and in athletics; (2) delay age-related cognitive decline and protect against mild cognitive impairment, dementia, and Alzheimer’s disease; and (3) reduce cognitive impairment associated with health conditions, including stroke, traumatic brain injury, PTSD, ADHD, the side effects of chemotherapy, and Turner syndrome. The defendants also claimed that scientific studies proved such benefits. The complaint also charged the defendants with failing to disclose that some consumer testimonials featured on the website had been solicited through contests that promised significant prizes, including a free iPad, a lifetime Lumosity subscription, and a round trip to San Francisco (Id.).
“The problem is there’s very little evidence that progress on these Lumosity games has any impact on memory and cognitive functioning in the real world when you’re engaged in other tasks like adding up a bill at a restaurant or if you have a very busy day and you’re in a rush . . . and that’s really the point of contention here” (Id.).
The company was fined in part due to unfounded claims that its games “reduce or delay cognitive impairment associated with age or other serious health conditions,” according to the FTC ruling (Tlalka, supra).
Jon Kabat-Zinn, founder of the Center for Mindfulness at the University of Massachusetts Medical School, said: “You can’t stop the waves, but you can learn to surf.” Ellen DeGeneres has another perspective: “Accept who you are. Unless you’re a serial killer.”