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The 'Soft Underbelly' of Cybersecurity Meets Legal Ethics
Legal departments for business organizations rate cybersecurity, regulation and ethics compliance among their chief concerns, and they are well aware of surveys showing law firms to be the “soft underbelly” of business security due to weakness of their cybersecurity. Lawyers and law firms are often behind trends but very good at playing catch-up. In the area of cybersecurity, the American Bar Association's Model Rules of Professional Conduct can help serve as a guide.
The Model Rules are drafted by and for lawyers and, yes, they include lots of flexibility (read, wiggle room) with expressions of “reasonableness.” But these rules express a commitment to improve awareness and competence in technology usage.
Technology awareness includes such issues as encryption and other safeguards of various Internet services and many more. Lawyers and law firms must ask and answer several questions for their own operations and for effectively advising clients. What does a candidate service provider do by way of capturing and using metadata and content it acquires through the service? Guard it securely? Sell it to others? With filtered privacy information? Mine it to create more profits? What are its duties under its Terms of Service and governing law to notify subscribers of data usage, breach, or loss of stored data? How does the provider accept new instructions to delete or correct data relating to the subscriber? What are its encryption, anti-hacking, anti-theft measures? How and when does it give access to federal and state government officials?
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