In August of
2014, hackers, evidently specialists in cloud security, released to 4Chan,
candid iPhone (amongst other smartphones) photographs taken by Hollywood
celebrities, who apparently believed that the photos would not be automatically
uploaded to Apple’s iCloud cloud storage service. Clearly, they were mistaken
in that assumption; iPhone
users upload their photos to iCloud by default. As
iOS devices become an increasingly popular item in the lawyer’s toolkit, this
episode should have been especially instructive for practicing legal
professionals.
Attorneys are, of
course, generally
obligated to keep information relating to their
representations of clients confidential. New York’s Rules of Professional
Conduct make clear that a lawyer shall exercise “reasonable care” in preventing
the disclosure of confidential information.
Various state bar
associations’ ethics committees have opined on the propriety of using cloud
services. The New York State Bar Association’s Ethics Committee has
stated that the “reasonable care” standard in
maintaining confidentiality should include the lawyer’s ensuring that the cloud
computing service has an enforceable security obligation, investigating what
security is used, and how the cloud computing service deletes or manages data. The opinion distinguishes between the storage
and the transmittal of data, while at the same time avoiding the use of the
phrases “data in motion” and “data at rest.”
Cloud computing and storage have become very popular in recent
years with mega cap tech companies providing such services for little to no
cost. As reliance on cloud services has grown, so have the risks. Attorneys may want to consider mitigating these potential risks by
diversifying; they may want to consider allocating their data assets with a
variety of cloud services, rather than putting all of their easter eggs in one digital
basket.
How has Apple’s security posture changed since 2014? How have data
protection regulations evolved since 2014?
With thanks to Aaron Collins, Esq.
Artwork by Martha C. Chemas, Esq. using Google Autodraw
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