United States: How To Prevent Data Theft From Lost Devices

Technology can be a blessing and a curse for attorneys. While technology enables attorneys to be able to conduct business on the go, it also puts client and firm data at risk. In the United States, someone loses a cellphone every 3.5 seconds. More than 3 million cellphones are stolen every year. More than 12,000 laptops are lost in airports each week. Other portable electronic devices, ranging from BlackBerrys to iPads to many others are lost just as frequently Almost every attorney's portable electronic device includes some confidential client information.

Most attorneys today conduct business in roaming offices, traveling with huge amounts of client information with them via portable electronic devices. When those devices are lost or stolen, it is tantamount to leaving the doors of the law office unlocked or welcoming a thief to break in. The attorney's and clients' information is readily available for the taking.

California attorneys also have duties to clients that are impacted by technology. Per California State Bar Formal Opinion No. 2010¬179, attorneys are supposed to consider several factors when accessing or transmitting confidential client data over a wireless or personal network that is not subject to high levels of security: (1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security; (2) the legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information; (3) the degree of sensitivity of the information; (4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product; (5) the urgency of the situation; and (6) the client's instructions and circumstances, such as access by others to the client's devices and communications.

The greatest cyber risk to an attorney or law practice today is not an overseas cyber¬terrorist hacking into the law firm's database and accessing confidential data. Instead, the most significant and most likely risk for the average law practice is that an attorney or employee with law firm data on their laptop, tablet or smartphone leaves it at the gym or in the airport.

Fear not, this cyber risk is also one of the easiest risks to address.

No one needs to convince attorneys of the importance of cybersecurity. From identity theft to a data security breach at the law practice, attorneys understand that the risk is real and needs to be addressed. The question is not whether to take action, but how.

One problem is that most people just throw money at technology problems. This option includes hiring consultants who take full advantage of the information gap between what most attorneys know and what most attorneys actually need to know. High¬priced lingo often translates into complicated systems that may or may not offer benefit.

Four simple steps can effectively address the most common threats. While these steps are no substitute for professional advice, these steps do address the cyber risks that often worry attorneys the most.

Step One: Password¬ protect devices

All law firm personnel should be required to use passcode¬ or password¬protected portable electronic devices—no exceptions. A better option is to require two¬step authentication to log into law firm systems.

Even something as simple as an unlisted phone number in the wrong hands (especially in domestic relations or criminal defense practices) is a breach of the duty to maintain confidences. This breach can result in serious consequences for both the attorney and the client.

In practice, this protocol has two implications. First, every portable electronic device must be capable of having a password or passcode. The cost of upgrading existing equipment for firm personnel pales in comparison to the risks of unprotected portable electronic equipment.

Second, require that this password or passcode feature be activated on every device, from phones to computers. Inevitably, it is the one laptop without password protection that is stolen or lost.

Step Two: Activate location and remote¬ erase options

A feature that exists on most new devices is the ability to locate the device if lost or stolen and, if desired, to remotely erase all content on the device. Both features should be activated to minimize risk to the firm.

Step Three: Apply protocols to portable storage devices

There are additional protocols for attorneys and law firm personnel who use transportable data via thumb drives, disks, memory sticks and other data devices. Documents, files and other sensitive information are routinely downloaded onto one of these devices.

More than 4,500 flash drives are left at dry cleaners in a year, with thousands more left in taxicabs. Worse yet, memory sticks transported by attorneys or law firm personnel typically contain some of the most sensitive client data, not to mention the metadata that is also hidden with the documents.

While enforcing a password or passcode requirement for portable electronic devices is possible (although still an undertaking), policing password or passcode requirements for portable storage devices can be even more challenging. The best place to begin is in the downloading process.

Protocols requiring any information downloaded from a firm's systems to a portable storage device to be password¬protected should require confirmation at the time the information is downloaded. After that, it is too late to police.

Step Four: Address Wi¬-Fi risks

There are almost 5 million hot spots around the world where Internet users can access data. Retail establishments like Starbucks and Dunkin' Donuts provide Wi-Fi access. Most hotels and airlines now also provide access. Even law firms often provide Wi-Fi access to employees and guests.

Free, publicly accessible Wi-Fi services are rarely secure. The biggest threat for attorneys using free Wi-Fi security is the ability for someone else to hijack a signal—positioning the third party between the attorney and the connection point. Instead of talking directly with the hot spot, the attorney is sending information to the third party.

The third party has access to every piece of information that an attorney sends out on the Internet, including client information, important emails, credit card information, and even security credentials to the law firm's business network.

Once someone has all of that information, including security credentials, they have the potential to access the law firm's systems at any time. There is also the risk of computer vandalism through malware aimed at disrupting and/or damaging an attorney's computer systems.

One option is to avoid unsecured Wi-Fi hot spots. However, such a step is unnecessary and unduly restricts the utility of portable devices. An equally effective step is encryption of data. Through software, attorneys and law firm personnel can make sure that all data transmitted over a public network is encrypted.

Another step is to use a VPN (virtual private network) for communicating confidential information. Assuming the law practice's network is encrypted, the VPN effectively imports the encryption into all communications. In effect, a VPN, even when used over a public network, operates as if the attorney is the office using the office computer. Security protocols at the office are then imported wherever the attorney may be online accessing law firm information.

One easy solution is to keep the Wi-Fi turned off when the attorney is not using it. When the Wi-Fi is on, it is possible for it to connect to a network without the attorney even knowing it. It is an unnecessary risk, albeit remote.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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