In a recent report, the New York Civil Liberties Union urged attorneys to bolster encryption and update the Model Rules of Professional Responsibility, amidst increasing hacking attempts. Cybercrime
While there has been a growing need for diligence in ensuring attorney-client communications remain secure, the coronavirus pandemic has exacerbated the situation. According to the NYCLU’s report, titled “Legal Cybersecurity in the Digital Age,” the recent migration of vast amounts of attorney-client communication to digital interfaces has acutely called attention to the lack of preparation for secure digital communications by many law firms. Further, the report claims, lawyers have failed to adhere to an updated definition of the competence rule that reflects the need to remain current with evolving technology and the risks associated with its use.
Over 100 law firms have faced a data breach incident since 2014, and the report notes that it is common to fall victim to cybersurveillance without even realizing it. Further, the use of platforms provided by internet companies, such as Microsoft and Google leaves attorneys vulnerable to data collection from the National Security Agency, which shares a full database of access with Canada, Australia, New Zealand, and the UK, while “partnering” still with other governments, such as Saudi Arabia and Israel. Further, the NSA has no filter in its data collection for privileged documents.
While there are many steps that attorneys can take to ensure that they maintain client confidentiality in digital interactions, one of the most crucial is to require all members of the profession to use end-to-end open source encryption. Further, using open source platforms, if possible, would protect communication from being accessed by any government actors. Finally, increased attention to cybersecurity vulnerability is crucial to prevent a future riddled with data breaches, in all areas of law.
Read the full report here.
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