Why are people so upset about the NSA having the ability to look through their private and electronic data?

It’s a problem because I can’t do my job ethically now without doublethinking.

Attorney here. Clients have received confidential information via email. I can also create confidential and privileged documents from a computer connected to the internet. Cloud storage is where I store some of my client’s confidential data. Also, I have had private conversations with clients via my cell phone.

The New York Times confirmed that privacy is not an expectation in this data. http://goo.gl/cZlSKC

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What is the lawyer’s obligation of confidentiality? ABA Model Rule 1.6. (a) Lawyers must not disclose information relating the representation of a client unless that client has given informed consent. This rule is not something a lawyer can break unless they actively share client data.

The rule was recently updated by the ABA. It now states that: (c) Lawyers must make reasonable efforts not to allow the accidental or unauthorized disclosure or unauthorized access of information relating to the representation or client. This is the most current version of the rule. While most states (including mine) do not hold lawyers to this standard yet, they will likely in the coming years. The difference is that a lawyer can violate this provision passively. If a client’s information were obtained by someone (even someone “unauthorized”) then the lawyer may be violating the rule.

Geez. Perhaps it is unethical for me to use email in order to communicate with clients. What now? Now, what? Well, my client can still communicate with me in two ways: in person at the office or by snail mail (composed manually, using a typewriter or other non-internet computer). That is what I could do. Are these steps “reasonable effort”? No! They are completely absurd. Because I have an ethical obligation to communicate competently, diligently, and promptly with my client, opposing counsel and the court. A bad lawyer would be one that creates huge inefficiencies in my work.

What do I do? Gmail is what I use.

This is a problem. First, messages between Outlook and Gmail don’t get encrypted. The NSA can then grab them as clear text. Google encrypts data in the face of backlash against NSA spying

. Google is not even internally secure against NSA.

What should you do?

1. I use Gmail with a strong password. I encrypt the hard drive of my computer and am discreet about what I say on the phone. My phone has access to my email so I use an unlock key to protect it. Many lawyers I know don’t take any of these precautions. Because there is nothing I can do, I accept that the NSA will automatically monitor my metadata. Gmail is my best attempt to prevent hackers from compromising my data. Gmail is more secure than any encryption used by high-end law firms, even though I don’t have any proof to support my belief.

2. I assure my clients that I will protect their data as best I can. They are told that they have no right to privacy online. Even emails that we consider confidential can be read by the NSA. We’re going to pretend you expect privacy when you email me, or I email you. If you’re looking for a lawyer that uses the same tools as Abe Lincoln, I will email you. You will usually get a shrug.

3. I believe I am providing the best possible service to my clients. I explain that I am trying to strike a balance between security and convenience. So, I weigh the tangible benefits that I and my client can get from communicating digitally with each other against the fact that the NSA has access privileged communication that it may not use for a while. I then always err to the side of convenience. That’s okay.

But here’s the truth: I thought it through and made it work. It’s something that most lawyers who I have spoken to regarding this dismiss as non-concern.

The Washington Post article linked above concludes by quoting Matthew Green (Johns Hopkins cryptography expert). Green stated that “the idea that humans can safely communicate is something we should fight to defend.” He said that he was not certain that this would happen, but that a lot of people will say it in the coming week. Let’s forget all about the NSA.

Let’s get back to your question. When you put “privacy”, it’s a snobbish way to say that the idea of humans being able to communicate safely isn’t important to you. It’s not as important as “counterterrorism.”

It’s very important to me. That’s why I am so upset.

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