Still Too Big to Sue

November 4, 2013

 

Class Action suits are one avenue to harass Big Data over its ever expanding ways to violate consumers’ privacy. But the potential for a settlement that rivals our national debt is not out of the realm, when most of the suits have millions or even hundreds of millions of plaintiffs and are based upon violations of the Wire Tap Act which allow for statutory damages of $10,000 per illegal wire tap.

 

The cases usually end up being settled by the violators agreeing to a cy pres award: a fund to give to organizations that educate consumers on privacy.  Cy pres awards have been coming under fire as not being true to their name, which means “as close as possible”. In class actions, they are used to allow the court to make an award that promotes the interests of the class members instead of giving an award to the class itself – which means that the plaintiffs get maybe $10 and some (questionable?) organizations get millions. The US Supreme Court had the opportunity to review a recent Facebook class action settlement but declined it today. The court’s reasoning indicates they might still be interested in addressing the issue, but that this was bad case to use because it had such bad facts: the injured plaintiffs didn’t like that the organization getting $9 million is controlled by Facebook. What could be wrong with that? To read more, see Online Powerhouses – Too Big to Sue.

Working and Playing in the Cloud – A Review of What’s Cool, Useful and Scary Up There

March 28, 2012

Tech Issues for  Lawyers, Non-Techies and Others Who Like Their Privacy

Have you soared into the cloud? Chances are you have tried this advanced technology, whether for work or personal use. The cloud, as the term is used today, has been around for general consumption since the mid 90s – were you an early yahoo or hotmail email account user? Today, the cloud refers to anything that involves delivering hosted service over the Internet. This can include a myriad of common computer services, like email, document and photo storage, computer backup and also more specialized, work-based systems for financials, sales, law practice management, employee performance management, expense management and customer service. If you need an Internet connection to get to it, it’s most likely in the cloud.

I’m a lawyer. Many of my colleagues have barely gotten to the email age, while others have virtual practices taking advantage of many of these services. The purpose of this blog is to help lawyers and other privacy-minded individuals without technical backgrounds understand what it means to put their documents, their business, their personal lives and their trust in the cloud.

While email has been a part of life for long enough now that most people understand it, the other cloud based systems are new enough that many people don’t know anything about how they work.  One type of cloud service that is appealing to lawyers is free – or cheap – document storage. Introduced only in the last few years, there’s Google Docs (2010), iCloud (2011), Dropbox (2007), Amazon Cloud Drive (2011), SugarSync (2006), SkyDrive (2007) and Mozy (2006), just to name a few.  They all provide a certain amount of storage for free and allow access to your documents anywhere you can catch a WiFi connection. They are very attractive for solo practitioners of any profession, small businesses trying to avoid building their own network, students, travelers, you name it. They all work pretty well too, although some have more features than others. But are they a good solution for you?

As lawyers, we have ethical requirements to keep our clients’ information confidential and to preserve the attorney-client privilege. Our governing bodies are struggling with giving guidance on whether any cloud based service satisfies ethical requirements. In contrast, the medical and financial fields are way ahead of us in dictating appropriate use of electronic media. HIPAA and HITECH proscribe many rules regarding storage and security of protected patient information. Financial services are subject to a complex array of legal, regulatory, interchange and payment processing rules governing electronic financial data. Somehow lawyers have resisted regulation here – but is that a blessing or a curse?

The guidance from the ABA and various state Ethics Committees is vague and impractical. They give an initial thumbs up to the cloud but then expect a relationship with a vendor that doesn’t exist (like unlimited liability and guaranteed confidentiality). There are some practical issues too. A simple review of the terms for these omnipresent document storage offerings reveals some flaws. The providers:

  • don’t promise to keep your data confidential;
  • don’t promise reliability;
  • can shut you off at any time;
  • can discontinue the service at any time;
  • can change their terms of service at any time;
  • may send your data anywhere in the world they have a server; and
  • may disclose your data without your knowledge to third parties because they deem it necessary

If you were my client, would you want your confidential information there?

But not all cloud offerings are alike. There are other cloud offerings that meet higher security standards and which can be used by even medical and financial professions. Lawyers have more targeted cloud offerings too, including Clio, Citrix, Law Loop, Livia, Lextranet, MyCase, Nextpoint, and Rocket Matter. Their websites will tell you not to be afraid of the cloud, but will they guarantee it? That’s a topic for future posts.