Electronic Privacy: A Moderate FTC Attack on Advertisers and Commercial Exploitation of User History Information

Obviously, one of the biggest concerns for a lawyer is the confidentiality of client records and work product.

As recently reported on the Huffington Post, there are a number of major players on the Internet who see it fit to trawl for user information when visiting their sites.  While maybe not a big deal, other than the unwanted hassle of targeted advertising, other sensitive information could be a real problem where one is storing client files on the Cloud or where similar factors present themselves.

While one could say that he/she will never be using the Cloud to store client data, I think the reality is that there may be no realistic alternatives in the future for what we consider to be standard storage now (i.e., hard drives, USB drives, external drives, etc.).  It’s not all bad if we plan now and place a privacy/security infrastructure in place now.

Historically, the confidentiality between the learned professions and those are served by those professions has been largely respected and protected.  Current technology does not eliminate the legitimate public policy concerns underlying these privileges against invasion, disclosure, production, and admission into evidence before a court.  For better or worse, most public policy issues express themselves through the regulatory environment and the creation of a whole new set of laws and restrictions (as though we don’t have enough laws on the books).  This being said, until there is a way of getting people to better behave themselves, we will have to settle for making a complex legal system even more so.

Realistically, I think that we will all eventually end up storing and processing much of our information through services such as Dropbox, Windows Live, Google Docs, RocketMatter.com, and other cloud-based servers.  While it is easy to say that hard storage will never be eliminated, the same could have been said of the cassette tape, VCRs, eight-tracks, zip drives, and a whole host of other tech items that seemed to earn what we thought was a permanent place in our daily lives.  While the main focus on these forms of storage media were related to intellectual property rights, privilege issues have not been widely discussed in the legal field.  It may simply be that lawyers, as a profession, are way behind the technological curve.  However, I am fairly certain that our clients not only expect confidentiality of information, they rightfully demand it.

In a recent review by me of the Rutter Group’s treatise on Professional Responsibility, there was quite a bit of information in the privacy concerns that arise as a matter of professional ethics.  Most of the information related to state bars coming down on lawyers for advertising violations.  There was also a brief discourse on how Facebook and other social networking sites affect bias of the judiciary, public perception, and client confidentiality.  What was not provided was a solution to how attorneys can stay competitive, be environmentally friendly, and how they might protect information in a world of data retention that changes and advances by the day.  Thus, this all becomes an issue about what we are all willing to do in order to protect not only confidential client information, but our own reasonable expectations of privacy in our personal lives as professionals and regular citizens/consumers.

Notwithstanding the privacy concerns within our specific profession, the Federal Trade Commission (FTC) is working on some proposals designed to address the invasions of privacy occasioned by some of the sites specifically mentioned in the Huffington Post article.

In the report, the FTC asserts that, “Companies should incorporate substantive privacy protections into theirpractices, such as data security, reasonable collection limits, sound retention practices, and data accuracy,” and that, “Companies should maintain comprehensive data managementprocedures throughout the life cycle of their products and services.”  There are also a number of practical proposals set out as well:

  • Privacy notices should be clearer, shorter, and more standardized, to enable better comprehension and comparison of privacy practices.
  • Companies should provide reasonable access to the consumer data they maintain; the extent of access should be proportionate to thesensitivity of the data and the nature of its use.
  • Companies must provide prominent disclosures and obtain affirmative express consent before using consumer data in a materially different manner than claimed when the data was collected.
  • All stakeholders should work to educate consumers about commercial data privacy practices.

While I am ordinarily no fan of governmental interference with a Free Market Economy, I must say that I do agree with the conclusion that many of the cooking tracking, user-history exploitation, and unwanted targeted advertising schemes are the product of a lack of education on the part of Internet users.

Moreover, unlike the voluntary decision to go to a store or similar place, the decision to utilize the internet is one that often involves making a connection from one’s private location and the associated plethora of data that rests on our personal or business computers.  As indicated above, this is a huge concern especially for professionals who retain confidential information with respect to their clients.  One can only sadly imagine the potential liability exposure should a marketer get a hold of professional-user information that references specific clients and sensitive data associated with them.

Keeping up on these issues is a must for not only those of us in positions of trust, I strongly believe that there is a legitimate issue of safety that deserves the expenditure of governmental resources for preventative measures and, at a minimum, for the education of those who use the internet.

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Diversions for Lawyers: How About Some Angry Birds?

Angry Birds is just about one of my favorite diversions. As you can see from many videos of this app in action, this game is incredibly simple in concept, and yet a source of entertainment for days. The basic idea is that you have to sling an angry bird at a house of pigs who are trying to steal your eggs. Sounds silly enough, right? Angry Birds requires some skill in much the same way playing pool does. You have to figure out angles, velocity, and other factors in order to prevail over the pigs. There are many levels and the game is cheap for an app of this quality ($.99). Highly recommended for those of us looking for a quick diversion.  You might also want to check out CNet.com’s 25 Best Ipad Games review, which has pics and helpful descriptions of the games.  There are also a number of other interesting games available from Angry Birds Developer Rovio.

Microsoft Office 11 for Mac — Looks Good

Office Mac 2011 is definitely an upgrade from the 2008 version.  Among other things, the user interface has improved dramatically.  The various tools and tabs on the ribbon are useful and intuitive.  In fact, I would claim that the Mac version is better than the Windows version.  I still have to figure out the ribbon UI in Windows and gave up long ago.  One of my favorite additions to the Office Suite is the “Notebook” template, which is very much like the Notebook offering made by CircusPonies.com, without any significant cost differential.  Most of the templates are more on the consumer side and I am looking forward to seeing if my Windows-based pleadings templates will be compatible with the Mac version.  Another key issue will be looking at the ease of being able to insert tables for exhibit lists, witness lists, or for demonstrative courtroom exhibits.  The Powerpoint program seems equally intuitive and the interface is clean and understandable.  Again, the templates are are little simplistic, but easily tailored to meet the needs of a trial lawyer preparing a presentation with use of video clips from a deposition, pdf exhibits, images, and interactive elements. The spreadsheet element of Office is what one would expect and offers a number of good templates, including invoicing, timesheets, and other useful tools for the legal profession.  Finally, I really like the smooth interface between SkyDrive and the Suite.  I have been using SkyDrive or its predecessors for some time and have enjoyed the remote accessibility to my files, especially during trials and travelling.  SkyDrive also makes it easy to share files with clients, which is becoming more important as cloud-based technology develops.  All in all, the suite is just one more reason to justify the transition to Mac as an office tool.  While many of us in the legal world are stuck on Wordperfect, this offering may just be the reason to finally break the chains so that lawyers can more easily interact with clients (most of whom use Word).  I give this new version of Office a 9.5 out of 10.  If there were templates for pleading, I’d give it a 10.  For additional reviews see, TechRadar.com and ZDNet.com.  For an article on whether it’s worth your time, money and effort to upgrade your present office suite, you can see this MacWorld article which does a good job of speaking to this issue.