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Three Privacy Concerns For Your Clients In the Digital Age

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Marlon Brando once said, “Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite.” Unfortunately, Mr. Brando said this at a time when the world was much less connected — and he likely had great lawyers who could constantly protect his privacy without worrying what he would impulsively say on Twitter. Even though attorneys deal with this issue every day (think attorney-client privilege), the legal profession has failed to catch up to the dangers that arise for our clients by leaving their electronic footprint indelibly stamped on the Internet and in the cloud.

With this in mind, here are the three most recent and important privacy concerns your clients will likely face in the future.

1. Understand the extent of breadcrumbs your client is leaving behind.

While it may seem overwhelmingly obvious, the use of social media sites, posting on blogs, uploading pictures, and doing any other mundane action on the Internet will in many situations be irreversible and non-erasable. Unfortunately, if your client is dealing with a legal matter and they go on the Internet and carelessly (or with intent) disclose confidential information or comment on matters that impact their legal position, it will likely be important to know how far this information could be disseminated.

When faced with a breach of privacy that may have legal consequences, I try and get a detailed log from my clients of their online behaviors and activities. Rather than ask general questions about which social sites they use, I try and get a feel for how active they are online and what types of things they discuss. If the client reveals that they “over-share” online, it’s time to start a deeper discussion on the importance of reducing — if not stopping altogether — their social media exploits, at least until their matter is resolved. Keep in mind, however, that for many clients this may be difficult if not impossible. (Try to avoid looking at your mobile phone for just one day, and you’ll immediately appreciate the issue.)

Fortunately, there is a way for your younger clients to erase their youthful indiscretions — at least in California. The new law SB568 makes California the first state to require websites to allow people younger than 18 to remove their own postings on that website, and to clearly inform minors how to do so.

2. Always expect that your client’s confidential information will find a way out.

There’s an entirely new class of privacy-crushing tools available to everyone, and many of these tools are free. Email tracking software from Yesware and Streak integrate with Gmail and will notify the sender when their email was opened, track how long the email was read, provide the IP address of the recipient, and even give a fairly accurate location. In fact, many of these email tracking applications are so sophisticated that they can tell you when your email is being forwarded to others.

One good piece of advice to provide your client is to have them switch off their “auto load images” function in their email. Many of these email tracking programs imbed an invisible image into the email so when the user’s email application loads that image, the recipient data is immediately forwarded back to the sender with no approval necessary.

New communications technology from companies like Twillio give application developers the ability to record phone calls and even capture SMS messages without an individual’s knowledge. While we do have disclosure laws in place that generally protect against these issues, this is not necessarily stopping the developer community from creating applications in this area.

The moral to this story is to always expect that your client’s confidential information is going to leak out in one way or another. Have a discussion with your client about the steps that need to be taken to mitigate or defend against the matter if their confidential information circles back to bite them at a later date.

3. Be Aware of How Evolving Privacy Laws Could Help (Or Harm) Your Client.

Although this daily reduction of privacy seems to be spiraling out of control, many states are pursuing proactive and innovative measures that could profoundly change how attorneys strategically work with their clients.

In California, a tough new privacy law offering wide, sweeping protections is starting to roll out. The law affects nearly every business in the United States that operates a commercial website or online service and collects “personally identifiable information” (which means, under the law, “individually identifiable information about an individual consumer collected online by the operator from that individual and maintained by the operator in an accessible form). The law requires the operator to disclose how they will respond to Web browser “do not track” signals or other mechanisms that provide consumers the ability to exercise choice regarding the collection of personal information about their online activities if such information is collected. The new law prescribes that operators must “provide a clear and conspicuous hyperlink” contained in the privacy policy that provides consumers with an easy ability to “opt-out” of this data collection.

Because this impacts every operator of a website nationwide, the likelihood of immediate compliance with this law is low. As an attorney, you may want to consider how this can strategically help or harm your client’s case. For example, if a website operator is hacked and your client’s personal information is stolen and used in identity fraud, you can point to the site’s lack of a proper privacy policy under the new California law and use this privacy law to bolster your client’s case. The flip-side of this coin is that if your client operates a website, you are responsible for counseling them about compliance and proper privacy policies.

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2 Comments

  1. Richard Johnson says:

    Just doing some basic research on clients, witnesses and opposing parties I tend to find a lot of useful information freely available between what people voluntarily make public and what aggregator sites make available, even for free. More often than not it’s not very useful information but it’s rare these days not to go into a depo or trial and not have a lot of potential impeachment evidence handy thanks to the internet.

    • Everyday Law Staff says:

      Thanks for reading, Richard. We agree with you. It seems to be the world we live in.