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[atlarge-discuss] Re: Confidentiality of Atty/Client Electronic Information
John and all,
Yes, and now DOD has decided to officially to adopt
Ipv6. Go figure...
Christiansen, John (SEA) wrote:
> Specific example of situation in which DB encryption might have been very
> helpful: Stollenwerk v. TriWest, class action based on Dep't o' Defense
> health benefits contractor's allegedly negligent failure to establish
> adequate security for hard drives and laptops including ID theft-worthy data
> on 562,000+/- individuals. I don't know whether or not the claims (when
> specified beyond the level of the complaint)include lack of encryption as
> negligent security, though recent discussions with some insurance folks
> indicate the data was not. But if the data wasn't, I'd sure try that theory
> . . .
>
> -----Original Message-----
> From: Gib Sorebo [mailto:gib@CAIS.COM]
> Sent: Friday, June 13, 2003 7:29 PM
> To: ST-ISC@MAIL.ABANET.ORG
> Subject: Re: Confidentiality of Atty/Client Electronic Information
>
> John,
>
> In my opinion, it seems like people are making too much of this supposed
> encryption exception in SB 1386. In some ways, it's just a redundant
> statement. Having access to data normally implies that one can read or
> somehow make sense of it. To the extent that people the law doesn't cover
> availability or integrity, it would be correct to say that the law doesn't
> address security in total.
>
> However, my concern is people interpreting encryption as some sort of magic
> solution. Notwithstanding the question of whether using a weak algorithm
> still provides some sort of safe harbor, the real issue seems to be whether
> the processes supporting the the encrypting and decrypting of the data are
> appropriate. Encryption does no good if it's done in the background by an
> application whose front-end uses weak or non-existent authentication.
> Ultimately, encryption is one form of access control. Its challenge is
> often how to give larger groups of employees (e.g., call center staff at a
> bank) access to an encrypted file. The other challenge is the type of
> encryption used. Volume encryption ensures that stolen or discarded hard
> drives don't result in sensitive information being retrieved. However, it's
> less useful when the data is moved to removable media or over the network.
> File-based encryption works great for passing files over networks and
> removable media, but it usually leaves unencrypted residue behind in the
> form of undeleted temporary files and readable data in the slack areas of
> the disk.
>
> That said, I think lawyers and other organizations should look into using
> encryption for their customer data, but they should not stop there. In the
> end, a bad implementation of encryption is not likely to provide a safe
> harbor. Moreover, I think companies need to start thinking about how they
> account for their data. The uses and disclosures provisions like those
> found in HIPAA are becoming the trend across the globe. If sensitive
> information shows up in the wrong hands, companies need to be able to defend
> their practices. For example, the information in question may have been
> disclosed legitimately. Organizations will need this documentation if they
> want to escape liability. Additionally, companies need audit and logging
> practices that better correspond to their business and regulatory
> requirements. Data uses and disclosures need to be recorded with
> information that includes: the employee accessing the information, the
> purpose for the access, who, if anyone, the information is being accessed on
> behalf of, and any other relevant information (e.g., a link to a scanned
> letter detailing the request). There needs to be more internal
> accountability for uses of customer data. Organizations will need to adhere
> to the priciples of minimum necessary requirements and separation of duties.
> The days when everything sat on share drive or web site that everyone had
> access to are gone. Even within law firms, lawyers need to consider whether
> client information should be disclosed to other partners or associates. It
> still may be covered by privilege, but the client's privacy concerns are now
> being elevated. Client consent needs to be obtained more explicitly.
> People's privacy rights are both practical (e.g., preventing identity theft)
> and principled. Organizations need to understand both and work with the
> client to develop a proper understanding of the process and obtain consent
> consistent with that understanding.
>
> Gib
>
> ----- Original Message -----
> From: "Christiansen, John (SEA)" <JohnC@PRESTONGATES.COM>
> To: <ST-ISC@MAIL.ABANET.ORG>
> Sent: Friday, June 13, 2003 5:57 PM
> Subject: Re: Confidentiality of Atty/Client Electronic Information
>
> > But in that vein - for all you lawyers with California clients out there,
> > will you have their data encrypted by July 1? If not, will you be prepared
> > to notify them if somebody gets unauthorized access to it? (SB 1386 doen't
> > exclude lawyers, far as I know).
> >
> > -----Original Message-----
> > From: Merrill, Charles [mailto:CMerrill@MCCARTER.COM]
> > Sent: Friday, June 13, 2003 2:53 PM
> > To: ST-ISC@MAIL.ABANET.ORG
> > Subject: Confidentiality of Atty/Client Electronic Information
> >
> >
> > To cover John's point, how about "The Confidentiality of Attorney/Client
> > Electronic Information" to include both communications and stored records?
> >
> >
> > Charles R. Merrill, McCarter & English, LLP cmerrill@mccarter.com
> > Four Gateway Center, 100 Mulberry St., Newark, NJ 07102-4056
> > Direct: 973.639.2009 - Fax: 973.297.3897 - Cell: 201.919.0970
> >
> >
> >
> >
> >
> >
> >
> > -----Original Message-----
> > From: jmessing [mailto:jmessing@LAW-ON-LINE.COM]
> > Sent: Friday, June 13, 2003 5:31 PM
> > To: ST-ISC@MAIL.ABANET.ORG
> > Subject: Re: Privileged communications
> >
> >
> > Agreed.
> > ---------- Original Message ----------------------------------
> > From: "Merrill, Charles" <CMerrill@MCCARTER.COM>
> > Reply-To: "Merrill, Charles" <CMerrill@MCCARTER.COM>
> > Date: Fri, 13 Jun 2003 17:29:25 -0400
> >
> > >Good point. In addition to encryption of information intentionally
> > >sent outside the defensive perimeter, we need firewalls to secure the
> > >defensive perimeter and access control to prevent unauthorized remote
> > >access to document databases.
> > >
> > >Unlike privacy rules such as HIPAA and GLB, I would not limit this to
> > >personally identifiable client information. Clients need to entrust
> > >confidential information to their attorneys that is inherently valuable
> > >even though it has no connection to the client's identity. For example,
> > >trade secrets.
> > >
> > >Charles R. Merrill, McCarter & English, LLP cmerrill@mccarter.com Four
> > >Gateway Center, 100 Mulberry St., Newark, NJ 07102-4056
> > >Direct: 973.639.2009 - Fax: 973.297.3897 - Cell: 201.919.0970
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > >-----Original Message-----
> > >From: jmessing [mailto:jmessing@LAW-ON-LINE.COM]
> > >Sent: Friday, June 13, 2003 3:46 PM
> > >To: ST-ISC@MAIL.ABANET.ORG
> > >Subject: Re: Privileged communications
> > >
> > >
> > >I would think beyond confidential communications the work product
> > >should also consider the compromise of personally identifiable client
> > >data on a law firm's network.
> > >
> > >>> ----- Original Message -----
> > >>> From: "Merrill, Charles" <CMerrill@MCCARTER.COM>
> > >>> To: <ST-ISC@MAIL.ABANET.ORG>
> > >>> Sent: Thursday, June 12, 2003 9:32 PM
> > >>> Subject: Re: Privileged communications
> > >>>
> > >>>
> > >>> > I've been looking and listening for a long time, and have come
> across
> > >>> > nothing in the press. When he was at ALAS, stoutly defending the
> > >>> > rectitude of ABA Opinion 99-319, Bill Freivogel used to remind me
> > >>> about
> > >>> the
> > >>> > absence of incidents every time our paths crossed. Schadenfreude.
> > >>> >
> > >>> > Charles R. Merrill, McCarter & English, LLP cmerrill@mccarter.com
> > >>> > Four Gateway Center, 100 Mulberry St., Newark, NJ 07102-4056
> > >>> > Direct: 973.639.2009 - Fax: 973.297.3897 - Cell: 201.919.0970
> > >>> >
> > >>> >
> > >>> >
> > >>> >
> > >>> >
> > >>> >
> > >>> >
> > >>> > -----Original Message-----
> > >>> > From: David Hricik [mailto:hricik_d@Mercer.EDU]
> > >>> > Sent: Thursday, June 12, 2003 4:32 PM
> > >>> > To: Merrill, Charles; ST-ISC@MAIL.ABANET.ORG
> > >>> > Subject: Re: Privileged communications
> > >>> >
> > >>> >
> > >>> > As we head forward: is anyone aware of any interception of any
> > >>> > lawyer-client communication? I check with the insurers every
> > >>> > little
> > >>> once
> > >>> in
> > >>> > a while, and as of last time (six months ago) not a single claim.
> > >>> > Misdirection, yes; interception, no.
> > >>> >
> > >>> > David
> > >>> >
> > >>> > ----- Original Message -----
> > >>> > From: "Merrill, Charles" <CMerrill@MCCARTER.COM>
> > >>> > To: <ST-ISC@MAIL.ABANET.ORG>
> > >>> > Sent: Thursday, June 12, 2003 3:52 PM
> > >>> > Subject: Re: Privileged communications
> > >>> >
> > >>> >
> > >>> > > I agree with John that the ABA House of Delegates is out of
> > >>> > > reach by
> > >>> > August
> > >>> > > - probably procedurally impossible even if there were unanimous
> > >>> > > agreement now to a proposal. With apologies for those not
> > >>> interested
> > >>> > > in this
> > >>> > thread,
> > >>> > > I've attached a little article on the ABA 99-319 Opinion that I
> > >>> > > did last year, making the Carroll Towing and T.J. Hooper
> > >>> > > arguments and suggesting that after three years (now 4) it is
> > >>> > > time for the ABA to revisit the question. Chas
> > >>> > >
> > >>> > > Charles R. Merrill, McCarter & English, LLP
> > >>> > > cmerrill@mccarter.com
> > >>> Four
> > >>> > > Gateway Center, 100 Mulberry St., Newark, NJ 07102-4056
> > >>> > > Direct: 973.639.2009 - Fax: 973.297.3897 - Cell: 201.919.0970
> > >>> > >
> > >>> > >
> > >>> > >
> > >>> > >
> > >>> > >
> > >>> > >
> > >>> > >
> > >>> > > -----Original Message-----
> > >>> > > From: Christiansen, John (SEA) [mailto:JohnC@PRESTONGATES.COM]
> > >>> > > Sent: Thursday, June 12, 2003 12:04 PM
> > >>> > > To: ST-ISC@MAIL.ABANET.ORG
> > >>> > > Subject: Re: Privileged communications
> > >>> > >
> > >>> > >
> > >>> > > My take, based on discussions with various ethics and
> > >>> > > professional
> > >>> > liability
> > >>> > > types on this issue over the last few years, is that this it
> > >>> > > would
> > >>> be
> > >>> > better
> > >>> > > to lay the political groundwork soundly rather than try to move
> > >>> > > it that fast. Speaking of which it would be very helpful to have
> > >>> somebody
> > >>> > > from
> > >>> > that
> > >>> > > world involved - any ALAS lurkers out there willing to step up
> > >>> > > to
> > >>> the
> > >>> > plate?
> > >>> > >
> > >>> > > -----Original Message-----
> > >>> > > From: jmessing [mailto:jmessing@LAW-ON-LINE.COM]
> > >>> > > Sent: Thursday, June 12, 2003 8:54 AM
> > >>> > > To: ST-ISC@MAIL.ABANET.ORG
> > >>> > > Subject: Re: Privileged communications
> > >>> > >
> > >>> > >
> > >>> > > With the annual meeting coming up is there time and inclination
> > >>> > > to
> > >>> try
> > >>> > > to get a resolution of the House of Delegates approved through
> > >>> > > the Section
> > >>> > and
> > >>> > > on to the floor of the House?
> > >>> > >
> > >>> > > ---------- Original Message ----------------------------------
> > >>> > > From: "Christiansen, John (SEA)" <JohnC@PRESTONGATES.COM>
> > >>> > > Reply-To: "Christiansen, John (SEA)" <JohnC@PRESTONGATES.COM>
> > >>> > > Date: Thu, 12 Jun 2003 08:55:28 -0700
> > >>> > >
> > >>> > > >Hey, folks -
> > >>> > > >
> > >>> > > >It so happens I've been working this problem for
> > >>> > > >physician-patient email
> > >>> > > for
> > >>> > > >some time now and we've got a lot of work product up at
> > >>> > > >www.healthyemail.org. As some of you know I also have opinions
> > >>> > > >on this subject . . . so please count me in!
> > >>> > > >
> > >>> > > >John R. Christiansen
> > >>> > > >Preston | Gates | Ellis LLP
> > >>> > > >*Direct: 206.370.8118
> > >>> > > >*Cell: 206.683.9125
> > >>> > > >Reader Advisory Notice: Internet email is inherently insecure.
> > >>> > > >Message content may be subject to alteration, and email
> > >>> > > >addresses
> > >>> may
> > >>> > > >incorrectly identify the sender. If you wish to confirm the
> > >>> > > >content of this message and/or the identity of the sender
> > >>> > > >please contact me at one of the phone numbers given above.
> > >>> > > >Secure messaging is available upon request and recommended for
> > >>> > > >confidential or other sensitive communications.
> > >>> > > >
> > >>> > > >
> > >>> > > >-----Original Message-----
> > >>> > > >From: todd glassey [mailto:todd.glassey@WORLDNET.ATT.NET]
> > >>> > > >Sent: Thursday, June 12, 2003 8:16 AM
> > >>> > > >To: ST-ISC@MAIL.ABANET.ORG
> > >>> > > >Subject: Re: Privileged communications
> > >>> > > >
> > >>> > > >
> > >>> > > >Thanks Chuck - I like it too. So lets Rock and Roll all - This
> > >>> could
> > >>> > > >be a VERY VERY valuable thing that we can do, and it wont take
> > >>> > > >long either, that is to generate a "How-To Email with your
> > >>> > > >Attorney"
> > >>> Guide
> > >>> > > >and include in it
> > >>> > > a
> > >>> > > >statement of "Email Liabilities" as a Formal Notice Sheet for
> > >>> > > >the average Attorney and their clients.
> > >>> > > >
> > >>> > > >This is one of the key kinds of things that can happen here I
> > >>> > > >think... and
> > >>> > > I
> > >>> > > >hope you don't think I am going overboard here but:
> > >>> > > >
> > >>> > > >My proposal is as follows...
> > >>> > > >
> > >>> > > > 1) We need to think through what it is we are doing here,
> > >>> since
> > >>> it
> > >>> > > is
> > >>> > > >essentially creating a "notice-type" white paper as a formal
> > >>> > > >recommendation to the Bar Association. My take is that it would
> > >>> > > >be valuable to have a standard template and boiler plate for
> > >>> > > >this. Especially since what I am hinting around is a program to
> > >>> > > >develop a suite of these disclosures/guides...
> > >>> > > >
> > >>> > > >We also may want to include ones for Canada and our EU partners
> > >>> based
> > >>> > > >on
> > >>> > > the
> > >>> > > >global participation of our members. In fact there is a
> > >>> > > >possibility to create "Attorney's Technology Disclosure"
> > >>> > > >Drafts. These would/could be a set of general recommendations
> > >>> > > >to the Bar and
> > >>> others
> > >>> > > >regarding:
> > >>> > > >
> > >>> > > > Email
> > >>> > > > Disk Sanitizing and File Deletion
> > >>> > > > Backup Processes
> > >>> > > > Encryption in the Law Office and basic legal PKI issues
> > >>> > > >(after all we did the PAG right?)
> > >>> > > >
> > >>> > > > etc etc etc...
> > >>> > > >
> > >>> > > > 2) If #1 above works for you, then perhaps we need to use
> > >>> this
> > >>> > > >template to create document that this thread started bring to
> > >>> light,
> > >>> > > >that being the first instance of these white-paper's "the
> > >>> Attorney's
> > >>> > > >2003, Email Advisory".
> > >>> > > >
> > >>> > > >These disclosure-forms could also have a yearly recertification
> > >>> from
> > >>> > > >us as well to keep this information current. In fact I would
> > >>> > > >recommend that
> > >>> > > these
> > >>> > > >disclosures be time-limited recommendations which gives us a
> > >>> > > >Razor-Blade type relation to them and also means that they will
> > >>> > > >be kept current.
> > >>> > > >
> > >>> > > > This type of technical recommendation is in my opinion one
> > >>> > > > of
> > >>> the
> > >>> > > things
> > >>> > > >missing from the legal landscape now that will help attorneys
> > >>> > > >and their clients not only function better but to also be a
> > >>> > > >cornerstone in the
> > >>> > > process
> > >>> > > >of setting 'professional expectations"...
> > >>> > > >
> > >>> > > >
> > >>> > > >Just my 2 cents.
> > >>> > > >
> > >>> > > >
> > >>> > > >Todd
> > >>> > > >
> > >>> > > >
> > >>> > > >----- Original Message -----
> > >>> > > >From: "Chuck Miller" <xyron@PACBELL.NET>
> > >>> > > >To: <ST-ISC@MAIL.ABANET.ORG>
> > >>> > > >Sent: Thursday, June 12, 2003 7:51 AM
> > >>> > > >Subject: Re: Privileged communications
> > >>> > > >
> > >>> > > >
> > >>> > > >> Todd, um, I think you've hit on something. When the ABA made
> > >>> > > >> its ethics ruling, didn't it say something about how it was
> > >>> > > >> based in part on the then state of technology? Might not this
> > >>> > > >> committee
> > >>> also
> > >>> > > >> take on the task of creating a real analysis of the state of
> > >>> > > >> the technology and prepare a report with explanations and
> > >>> > > >> recommendations?
> > >>> > > >>
> > >>> > > >> Chuck Miller
> > >>> > > >> xyron@pacbell.net
> > >>> > > >>
> > >>> > > >> -----Original Message-----
> > >>> > > >> From: Information Security Committee
> > >>> > > >> [mailto:ST-ISC@MAIL.ABANET.ORG] On Behalf Of todd glassey
> > >>> > > >> Sent: Thursday, June 12, 2003 7:23 AM
> > >>> > > >> To: ST-ISC@MAIL.ABANET.ORG
> > >>> > > >> Subject: Re: Privileged communications
> > >>> > > >>
> > >>> > > >> Jon and group -
> > >>> > > >> ----- Original Message -----
> > >>> > > >> From: "Jon Stanley" <mjstanl@MAINE.RR.COM>
> > >>> > > >> To: <ST-ISC@MAIL.ABANET.ORG>
> > >>> > > >> Sent: Thursday, June 12, 2003 4:33 AM
> > >>> > > >> Subject: Re: Privileged communications
> > >>> > > >>
> > >>> > > >>
> > >>> > > >> > Prof Hricik wrote:
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> > >>>> My instincts always lead me to tell lawyers just to
> > >>> > > >> >
> > >>> > > >> > say: "No form of communication is without risk. If I use
> > >>> > > >> > a
> > >>> way
> > >>> > > >> > of communicating that you feel is too risky, just let me
> > >>> > > >> > know
> > >>> and
> > >>> > > >> > I'll stop."<<<<<<
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> > While argreeing, for the most part, with John's G's and
> > >>> > > >> > Prof Hricik's comments, I'm curious (not saying it's the
> > >>> > > >> > world's
> > >>> most
> > >>> > > >> > pressing, of
> > >>> > > >> even
> > >>> > > >> > my, most pressing question) about the following scenario:
> > >>> Let's
> > >>> > > >> > say
> > >>> > > >> the
> > >>> > > >> > client takes me up on Prof Hricik offer. Client says "I
> > >>> > > >> > think
> > >>> > > >> unencrypted
> > >>> > > >> > email is too risky for this particular case, but I need to
> > >>> > > >> > communicate
> > >>> > > >> in
> > >>> > > >> > email". So, I agree to encryption. Do I have a duty,
> > >>> minimual,
> > >>> > > >> > and reasonable, as it may be, to 'instruct' the client in
> > >>> > > >> > how encryption
> > >>> > > >> works,
> > >>> > > >> > at least to the extent she can receive the email?
> > >>> > > >>
> > >>> > > >> WOW - what a brainstorm - Thanks Jon - this group could put
> > >>> > > >> together a submittal to the larger ABA on exactly this issue.
> > >>> > > >> In fact I would like to see the ISC, as it is the
> > >>> > > >> "Information Security Committee" carry this sword all the
> > >>> > > >> way. What we should
> > >>> do
> > >>> > > >> is to build a "erccomendation of
> > >>> > process"
> > >>> > > >> and
> > >>> > > >> a basic note that Attorney's could give to their clients
> > >>> > > >> about Email
> > >>> > and
> > >>> > > >> encrypting it. What this could very well become is one of the
> > >>> most
> > >>> > > >> commonly seen information sheets between Attorney and Client
> > >>> > > >> and would also help to bring this WG's name and products to
> > >>> > > >> the forefront of todays
> > >>> legal
> > >>> > > >> process.
> > >>> > > >>
> > >>> > > >> I think this is at most a two or three page document and we
> > >>> should
> > >>> > > >> be able to charter this effort and complete it in a month or
> > >>> > > >> two
> > >>> at
> > >>> > > >> most I would think.
> > >>> > > >>
> > >>> > > >> Any comments?
> > >>> > > >>
> > >>> > > >> > Assume, for the sake of
> > >>> > > >> > this fact pattern, that the client knows enough to conclude
> > >>> that
> > >>> > > >> > she
> > >>> > > >> does
> > >>> > > >> > not want unencrypted email sent to her, but not much more
> > >>> > > >> > about the technical issues implict in her choice.
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> > Jon Stanley
> > >>> > > >> >
> > >>> > > >> > 207-799-6852
> > >>> > > >> >
> > >>> > > >> > http://www.jonstanleypa.com
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> >
> > >>> > > >> > To unsubscribe send the following in the body of a message
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> > >>> > >
> > >>> > >
> > >>> >
> > >>> ********************************************************************
> > >>> *
> > >>> ***
> > >>> ****
> > >>> > > ************************************************************
> > >>> > > This email message from the law firm of McCarter & English, LLP
> > >>> > > is
> > >>> for
> > >>> > > the sole use of the intended recipient(s) and may contain
> > >>> confidential
> > >>> > > and privileged information. Any unauthorized review, use,
> > >>> disclosure
> > >>> > > or distribution is prohibited. If you are not the intended
> > >>> recipient,
> > >>> > > please contact the sender by reply email (or
> > >>> > > helpdesk@mccarter.com) and destroy
> > >>> > all
> > >>> > > copies of the original message.
> > >>> > >
> > >>> > >
> > >>> > >
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> > >>> >
> > >>> ********************************************************************
> > >>> *
> > >>> ***
> > >>> ****
> > >>> > ************************************************************
> > >>> > This email message from the law firm of McCarter & English, LLP is
> > >>> > for
> > >>> the
> > >>> > sole use of the intended recipient(s) and may contain confidential
> > >>> > and privileged information. Any unauthorized review, use,
> > >>> > disclosure or distribution is prohibited. If you are not the
> > >>> > intended recipient,
> > >>> please
> > >>> > contact the sender by reply email (or helpdesk@mccarter.com) and
> > >>> destroy
> > >>> all
> > >>> > copies of the original message.
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> > >
> > >***********************************************************************
> > >*****
> > >************************************************************
> > >This email message from the law firm of McCarter & English, LLP is for
> the
> > >sole use of the intended recipient(s) and may contain confidential and
> > >privileged information. Any unauthorized review, use, disclosure or
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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 131k members/stakeholders strong!)
"Be precise in the use of words and expect precision from others" -
Pierre Abelard
===============================================================
CEO/DIR. Internet Network Eng. SR. Eng. Network data security
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number: 214-244-4827 or 214-244-3801
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