by Brian Focht | May 8, 2015
You do everything you can to practice law ethically. You know the rules, you attend the local bar association CLEs, you even feel your moral obligation to do the right thing. But most of all, you know that if you do something stupid, it could cost you a lot: Your reputation. Your money. Your livelihood. Yet when you put your clients’ confidential information in the hands of third-party vendors, you’re taking a pretty huge gamble assuming that they feel the same way. When was the last time you put your third-party vendors through a security audit? When was the last time you asked about their specific policies and procedures regarding physical and data security? When was the last time you even asked: “hey, so where exactly do you keep this data?” Unless your answered “less than 12 months ago” (or some similar response, in the local vernacular of course), it’s time to do it again. Every third-party contractor that has access to your clients’ confidential information is a potential security vulnerability. Your vendors (probably) don’t practice law Although some of your vendors deal exclusively with attorneys (or have a massive attorney client base), most of your vendors don’t completely understand the unique privacy issues lawyers deal with. They certainly don’t take those issues into consideration by default. However, under your state bar’s rules, it’s very likely that you have an obligation to “oversee” your vendors to protect your clients’ information. Sound like a daunting task? It certainly can be. The key is to make sure that you’re taking all reasonable precautions. The best way to do that? Read through your third-party vendors’ terms of service.... read more
by Brian Focht | Jan 29, 2015
Usually I try to keep my posts educational and informative. After all, my mission is to help educate lawyers about technology and whatnot. But sometimes the best way to get people interested in a topic is to be entertaining. This afternoon, I was reading Jim Calloway’s newest post: The Poetic View of Law Practice Management. In it, he discussed a new tool that he learned about via the Huffington Post – Poetweet. It’s a tool that takes your Twitter feed and turns it into a poem. I was curious, so I entered my Twitter handle, @NCCyberAdvocate. Not satisfied with those results alone, I did a few more. And the absolutely ideal candidate? SCOTUSblog. I threw in a few more for fun, including two of The Cyber Advocate’s favorite legal tech gurus: Joshua Lenon from Clio, and the Lawyerist’s Sam Glover. Oh, and Joe Biden, just for good measure: Patent cases by SCOTUSblog Kansas to issue same-sex marriages. Unanimous vote against barriers Pursuit of a claim for damages That excluded abortion protesters. New cases from today’s Conference. This Term; will have a big impact. Dunderheads! Fie on your ignorance! The Child Status Protection Act. Court without filing cross-appeal. Of our Senate press credential: Preserve winning theory on appeal. Nigtmare will follow your decision. Be a good time to get in line. Discrimination based on religion. Permalink @SCOTUSblog * * * Using a by The Cyber Advocate To the flesh of the voter’s chest” Surveillance: The Complete Guide For Lawyers. Check out the rest: That you could ever provide.” Usually your security questions! For your new tablet or smartphone! Study offers... read more
by Brian Focht | Jan 20, 2015
Updated: January 21, 2015. Details below. In light of the recent massacre at the Paris headquarters of the Charlie Hebdo magazine, many have turned their focus on how such tragedies can be prevented in the future. Inevitably, many European leaders are calling for expansive new surveillance powers to help them fight terrorism. British Prime Minister David Cameron is seeking to revive legislation that bans apps and communication systems (email) that allow users to encrypt communication. French Prime Minister Manuel Valls has called for stronger surveillance of the internet and social media. UPDATE: The French government announced that as part of the response to the Charlie Hebdo attacks, the surveillance divisions would add 3,000 new workers, and draft legislation stripping rights of citizenship from those who were affiliated with terrorist groups would be introduced in March. The Italian government is seeking additional power to monitor the internet and create a “black list” of individuals who pose a security threat. Immediately following the march in support of Charlie Hebdo in Paris, 12 European Ministers issued a letter calling for major ISPs to more swiftly report and remove content that “aims to incite hatred and terror.” While some might view these proposals as a sincere attempt to fight terrorism, a closer examination reveals a darker truth. These proposals are cynical power grabs, hostile to privacy and free speech, and should be rejected. Here are 4 Alarming Ways Europe’s Surveillance Plan Should Scare You: 1) The proposed surveillance powers eviscerate the right to free speech. “We must respond to this exceptional situation with exceptional measures.” – French Prime Minister Manuel Valls The legislation being sought as... read more
by Brian Focht | Dec 4, 2014
Part 2 of 2 (See Part 1 here) Fitbit is a neat little device for tracking your activity. Importantly, Fitbit (and similar devices) creates, and stores, data. A lot of data. About you. And that data is a tempting target in litigation. But be warned, the implications of using Fitbit data in court should terrify you! 5) Even Inadmissible Evidence Just Needs an Expert! So let’s assume that Fitbit data, whether in raw or comparative form, requires an expert to be introduced (I hope…). What, exactly, will the expert testify to? Obviously, they have to be able to testify that the information is authentic and accurate. They’ll have to prove the chain of custody, and then relate what the data actually says. Or… … none of that has to happen, because in most jurisdictions, an expert can rely on inadmissible evidence to form their opinion! (See Fed. R. Evid. 703). Personally, I have to believe that any reasonable judge would preclude the raw Fitbit data from being entered into evidence on its own. But if an expert in data analytics, relying on a public database of similar data, presents an expert opinion based on the Fitbit data, what will a judge do? As long as there is a “scientific methodology” to the expert’s analysis, you’ll likely hear those dreaded words: “Goes to weight, not admissibility.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995). At this point, the expert’s testimony has the imprimatur of the court, regardless how effectively you challenge his credibility. Raw Fitbit data has a lot of holes that likely precludes admissibility, but once an expert gets involved, the waters get a LOT murkier. It’s... read more
by Brian Focht | Dec 3, 2014
As originally reported in The Atlantic, the first case using Fitbit data as evidence is currently underway in Canada. The plaintiff in a personal injury lawsuit, a personal trainer, wants to use Fitbit data to support her case. The plaintiff believes that the Fitbit data shows that her physical activity level is lower than baseline for her age and profession. However, instead of using the raw data, plaintiff has retained a data analytics company called Vivametrica to provide expert analysis. Using data collected from “industry and public research,” Vivametrica claims to be able to compare one person’s Fitbit data to the general population. It’s potentially game-changing evidence. It should be great. It’s not. Fitbit is a neat little device for tracking your activity. Importantly, Fitbit (and similar devices) creates, and stores, data. A lot of data. About you. And that data is a tempting target in litigation. But be warned, the implications of using Fitbit data in court should terrify you! 1) There is No Uniform Standard. Fitbit is merely one of many available wearable health stat devices. Jawbone has the UP, Nike has the Fuelband. None of them track exactly the same data. While the Garmin Vivosmart measures your sleep, the Jawbone UP24 claims to recognize between light sleep and deep sleep. Some track calories burned, but do so without tracking your heart rate. Some track stairs, some just track elevation change, and some don’t track vertical change at all. While that may not matter much in Chicago or New York, imagine walking around San Francisco and not taking hills into consideration. Do you know which one you use? It’s coming... read more
by Brian Focht | Nov 21, 2014
Part 2 of a 2-part series (see Part 1 here) Why does your client tell you their story? What reason do they have to be completely honest? If you’re an attorney, you say it’s because the attorney needs the whole story to adequately represent the client. But if you’re on the other side of the deal, you probably only feel 100% comfortable being completely honest because of the attorney-client privilege. You believe that what you tell your attorney is secret, confidential, protected. What happens when your client’s belief in your ability to keep a secret erodes? What happens when your belief in your own ability to keep a secret erodes? What happens when our society itself has to reexamine the nature of privacy? Without the belief that certain actions are private – whether by their nature or due to efforts like encryption – trust is elusive. Our clients may not trust us enough to speak candidly. Worse, we might start to fear our own ability to keep information secret, and instruct our clients to keep information to themselves. Well, thanks to some of our country’s fine wireless carriers, we have two new reasons to question that whole “privacy” thing: 2) AT&T is de-crypting encrypted emails. Let’s say we’re willing to accept the privacy invasion by Verizon as something we accept by using technology. What about those situations where we are using technology based on the express understanding of privacy? Well, that’s what you’re doing when you send an encrypted email. You’re using a system that keeps your data hidden, with the express understanding that only the recipient, provided they... read more
by Brian Focht | Nov 20, 2014
Part 1 of a 2-part series (See Part 2 here) Why does your client tell you their story? What reason do they have to be completely honest? If you’re an attorney, you say it’s because the attorney needs the whole story to adequately represent the client. But if you’re on the other side of the deal, you probably only feel 100% comfortable being completely honest because of the attorney-client privilege. You believe that what you tell your attorney is secret, confidential, protected. What happens when your client’s belief in your ability to keep a secret erodes? What happens when your belief in your own ability to keep a secret erodes? What happens when our society itself has to reexamine the nature of privacy? Without the belief that certain actions are private – whether by their nature or due to efforts like encryption – trust is elusive. Our clients may not trust us enough to speak candidly. Worse, we might start to fear our own ability to keep information secret, and instruct our clients to keep information to themselves. Well, thanks to some of our country’s fine wireless carriers, we have two new reasons to question that whole “privacy” thing: 1) Verizon and AT&T are using “Perma-Cookies” to track you. Recently, it was learned that a division within Verizon, called the “Precision Insights Division,” has been tracking internet searches made from your mobile device. This information, which includes the precise time the search was made and, more importantly, your exact location, are being collected as part of your individual profile, to be sold to advertisers for more precise marketing. Oh, and... read more
by Brian Focht | Sep 22, 2014
I’ve arrived in Chicago, at the stunning Radisson Blu Hotel, ready for day 1 of the 2014 Clio Cloud Conference. Since my presentation on Law Firms in a BYOD World isn’t until tomorrow afternoon, I’ve decided to keep a live blog of the conference. Check back for new updates throughout the day!... read more
by Brian Focht | Sep 16, 2014
I was reminded this morning by a post from the esteemed Kevin O’Keefe that I have forgotten to share on this site that I will be speaking at the 2014 Clio Cloud Conference next week in Chicago. The list of presenters includes a remarkable Who’s Who of legal technology thinkers and writers… and then there’s me! #164585984 / gettyimages.com Seriously folks, I was honored to be asked to discuss the impact of the Bring Your Own Device (“BYOD”) trend on law firms, and what steps should be taken to make sure attorneys are complying with legal and ethical duties to keep confidential information safe. Having written on the topic in the past, I have updated my sources, and I will be providing additional posts in the upcoming days with great information for firms and attorneys regarding ways to improve security while getting the most out of mobile devices. I apologize for my lack of posts lately. A dramatic increase in my case load, coming at the exact same time that my fiancee and I are planning our wedding, has limited my free time to 4-5 hours per day, which I prefer to use for sleeping. I will remedy this problem shortly. In the mean time, I would like to thank my fiancee for not minding too much that I’m jet-setting off to Chicago for three days during this insanely busy time! If you have the opportunity to attend the Clio Cloud Conference, I strongly encourage you to do so. The list of speakers, including the aforementioned Mr. O’Keefe, Richard, Susskind, and Sam Glover, is impressive, and I’m certainly looking... read more
by Brian Focht | Jun 30, 2014
Imagine a world in which one of the two certainties of modern life – taxes (the other is death… you know the quote) – was simple, easy, and most amazingly, fast. (Now try reading that last sentence with the music for John Lennon’s Imagine playing in your head… now try not hearing that music. Sorry.) Think about it – most of the information you include in your taxes is already in your previous year’s version. Of the information that’s not, most of it has already been submitted to the IRS and state revenue agencies by the respective banks, lending institutions, medical institutions and other large corporate entities that process information considerably faster than you do. Want proof? Most of those valuable “Forms” that get sent to you containing information on your health savings account or your student loan interest statements have already been received, and approved by, the IRS. So why isn’t there a free, online way to file your taxes that can be completed in a couple of minutes? TurboTax, that’s why. The Problem: Free, Simple Online Tax Returns For years, legislators have attempted to find a way for taxpayers to file their taxes simply and quickly. The laws, supported by both Presidents Ronald Reagan and Barack Obama, and currently in place in several European countries, would allow taxpayers to file their taxes based on information already collected by the government, with the option for individuals to adjust or modify the information where needed. (Honestly, how many times have you entered a number other than the ones on the forms you receive, anyway?) Such a system would potentially save middle-income Americans thousands... read more
