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Lawyers, Double Check Your Cell Phone Security

By William Vogeler, Esq. on March 07, 2017 | Last updated on March 21, 2019

Read this, even if you think your phone is secure.

This update is about the law as much as the technology. Recent court decisions should give you more reasons to double check your cell phone.

And if you haven't secured your phone in the first place, then start with some basics:

1. Change your Passwords

If 1.5 billion email hacks are not reason enough to make you change your passwords, then consider that Yahoo's general counsel lost his job over it. The company concluded its lawyers and senior executives failed to conduct an adequate investigation of the incident.

Yahoo discovered the security breaches last year, and notified users repeatedly: change your passwords because user names, email addresses, telephone numbers, dates of birth and passwords were compromised. Cell phones with email connections, of course, were also compromised.

2. Check Your Ethics

Model Rule 1.6 provides that lawyers must "safeguard information relating to the representation of a client," including the "inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." As technology changes, the ethical requirements change with it.

Lawyers are expected to implement reasonable efforts, such as software and hardware safeguards and policies for internet, email,  and cell phone use to prevent the unauthorized access to their clients' correspondence, notes, and other records. When it comes to cell phones, that includes email, text messages, and other files.

3. Encrypt, Update Settings

Newer smartphones have built-in encryption technologies, and many apps also offer privacy protection. But users should check settings and update software regularly because even "anonymous" programs are not completely secure.

Whisper, for example, is a free app that allows people to communicate anonymously. However, it keeps geolocation information that can reveal a user's location. While a user can turn off geolocation services on a device, the company can still extract a location from IP data.

4. Guard Against Privilege Waivers

Increasingly, courts are finding that legal privileges can be lost through electronic communications. Uploading files to the cloud, for example, can waive confidentiality.

A federal appeals court said this month that uploading files online was "the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it."

5. Private Information May Become Public by Law

In California, the state Supreme Court ruled last week that personal phones, email accounts and other devices may turn otherwise private information into public records.

The court said that government employees who use private cell phones or personal devices for work-related communications must be available for public scrutiny. This extends to their communications with non-government workers and goes beyond mere waiver of a privilege; it means anybody has a right to obtain the information.

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