Why lawyers are fucked.

by Jason Wilson on December 1, 2011

By Jason Wilson

I’ve been off the blogging circuit for a while, but I simply couldn’t resist posting about Carrier IQ. Only one link will do, and it’s to Wired’s Threat Level article on the subject. The long and the short of it is this: if you are a lawyer using a “smart phone” you probably don’t know what kinds of contractual concessions you’ve made. In short, you’re an idiot. And thus the title of this post, which is you’re fucked.

Deride the luddites all you want, but they won’t be crying when you’re the first lawyer to find him or herself on the wrong side of a third-party subpoena because you were too lazy to read a 100-page EULA. ┬áThe shit this kid Eckhart says (and shows) he found scares the crap out of me, particularly when I think about some software program tracking my login/passwords for secured accounts. If you, as a lawyer, don’t see this as a problem for both yourself and your clients, then you’re a fucking idiot.

Now, I’m not talking about spoliation violations here, like telling your client to clean up his Facebook page, but rather simple preventative measures, like not using a smart phone at all. Honestly, for lawyers I think there is more potential downside to smartphones than there is upside. I’m reminded of some well-known criminal cases here in Harris County, Texas where the clients phone call, if made by smart phone (read: time + location), would have been somewhat dispositive of the matter. The Carrier IQ business takes it to a whole other level as it relates to disclosure to third parties, and something I think lawyers should be concerned about.

But let’s face it. Lawyers are stupid. Not in the sense that they can’t research the law or try cases, but simply that they are like most consumers: they don’t understand or care to investigate the implications of useful technology. After all, if it’s good enough for consumers, it’s good enough for me (them). Besides, I get to play Angry Birds while waiting for my case to be called!

Many lawyers and C-Levels are rushing to adopt mobile technology as some type of competitive advantage, and yet most don’t even understand what it means to root a mobile OS and discover what hidden flaws are intentionally embedded in the systems. If this doesn’t concern you, as a practitioner, then it should. The existence of Carrier IQ should bother you on both a moral and an ethical level, not just for your own security, but your client’s as well. If you ignore it’s existence, then you do so at your own risk.

You’ve been warned.

[Image CC by AS220]

 

{ 8 comments }

Lenny December 1, 2011 at 12:15 pm

Thanks for the thought-provoking post Jason. Do you think the ABA has adequately responded to the rise of these new issues which bridge technology and ethics? I'm not aware if ABA SciTech section has published anything related to Smartphone data. Should they?

jasnwilsn December 1, 2011 at 2:43 pm

Lenny, good to hear from you!

No, the ABA hasn't responded and the only good technology related response I saw was the cloud email guidance issued earlier this year. The problem here is that no one knows what this technology is capable of doing, and lawyers (and other folks who should be concerned about secure devices, but aren't) are willing to blindly adopt technology as long as there is some productive upside, e.g., email, internet access, case law search, Angry Birds. Let's put aside the obvious personal privacy invasions and consider what this means for privilege. Have you taken reasonable steps to protect a communication with a client if you know this type of key and location logging program is on your phone? I would really be interested in hearing the debate on this and more smart phone data issues.

Riley December 1, 2011 at 1:07 pm

Interesting to hear a non-engineer's take on it. Keep fighting the good fight.

Toby Brown December 1, 2011 at 6:27 pm

And now I will argue both sides of this …

Lawyers 'waived' privilege with technology a long time ago. As an example – the Google and Gmail EULAs (a.k.a. TOS) clearly state that Google can read your email content and actually received publishing writes. The Carrier IQ situation is yet another example highlighting the state of too many lawyers, with their hands firmly grasped around their ankles.

And now the other side …

Lawyers who don't use technology are committing malpractice. Consider the lawyer who conducts their legal research exclusively in books, avoiding any of the fancy computerized online tools … and bills the client for that time. Or the ones who still haven't added an "e" in front of discovery. Or the ones who ride their horse to the courthouse and bill the client for the extra time it took. (OK – the last one took the concept to the extreme – but really makes the point).

However …

Your point is still valid – and well stated (as in I like the title). Lawyers' ignorance of technology and how to use it securely is downright scary.

jasnwilsn December 2, 2011 at 2:46 pm

Good points, lawyers have to use technology, but they also have to find a way to be informed about it. What I'd like to start seeing in software, hardware reviews is a discussion on privacy rights waivers under the E/ULAs. Don't just tell me about how awesome the product is, tell me about what it asks of me in terms of private data.

Venkat December 2, 2011 at 9:59 am

So disappointed by the title.

I thought it was going to be a piece on the ongoing Susskindian revolution!

jasnwilsn December 2, 2011 at 2:47 pm

Venkat,

I'll have more for you on that later.

JeffreyW December 21, 2011 at 4:42 am

These concerns are completely overblown. There is no chance any court would find a lawyer or client has blown the privilege because a third party or carrier has the ability to spy on a conversation that was otherwise conducted in private. Everyone knows technology exists from some one to point a dish at your glass window and decipher communications of the persons speaking inside; spys and federal cops can do this. So what? Google spying on your email or Verizon on your cell phone conversations would be treated just the same–no waiver.

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