Data in Baskets

            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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