In recent years, the
prevalence of data and information security breaches at major corporations have
become increasingly more commonplace. While general awareness may be
increasing, many companies are still neglecting to address serious information
security issues.
Breached data can include
proprietary or confidential information, trade secrets, personally identifiable
information, health-related data, privileged communications, and regulatory
data. Such data is often subject to preservation due to pending or
reasonably anticipated litigation, government investigation, due diligence, or
other applicable legal matter, meaning the data is routinely transferred and
shared with outside counsel for analysis and support of clients’ claims and
defenses.
Many law firms provide
guidance regarding information governance to clients, however more times than
not, firms fail to realize that they too are also responsible for following
similar guidelines. Appropriate precautions must be in place throughout a
firm to protect the integrity and sanctity of client data, prevent unauthorized
access, and to ensure timely remediation. However, firms must also have
this data available for litigation response, analysis, and review. Therefore,
keeping data entirely offline is rarely an option.
There are several pillars of
governance that law firms should consider when examining the handling of both
their own data as well as that of clients. As a fiduciary of their
clients’ data, firms that fail to address these issues will eventually find
themselves in an ethical nightmare, that when applied to a partnership creates
a considerable problem.
Information Storage,
Retention, and Remediation
Organizations must work to
ensure that data is protected from physical threats including loss of power,
environmental disasters, hardware failures, and theft. Thus, careful
planning and selection of datacenter features and location is paramount; some
qualities of preferable datacenters include geographically diverse co-location,
failover systems, backups of key data, backup power sources, cloud usage, and
encryption at rest and in transit.
Various options for hosting
data exist, however due to the prevalence of unreliable datacenters, clients
are now requesting that their firm disclose information about where and how
their data is stored, the protections in place to secure it, and data breach
response plans; some sophisticated clients even put law firms through
information security audits. Two very core compliance questions often
involve a few main categories of inquiry:
1. Industry-Standard
Compliance Protocols
As technology advances and
attacks become increasingly sophisticated, it is critical that data be secured
using industry accepted protections including but not limited to SAS 70[1], SSAE 16[2], and SOC1 – SOC3[3]. While the details of each are extremely
complex and beyond the scope of this article, firms should consider seeking
compliance with them because they are critical measures of standards.
Another key measure is the
“tier” system associated with datacenters, which can be summarized as follows:
|
Tier
|
Features
|
Datacenter
Availability
|
Offline
Time per Annum
|
|
Tier
1
|
Non-redundant capacity components (single
uplink and servers)
|
Guaranteeing
99.671% data availability
|
System will be completely down/offline/no
access for almost 29 hours a year
|
|
Tier
2
|
Tier 1 + Redundant
capacity components.
|
Guaranteeing
99.741% data availability
|
System will be completely down/offline/no
access for almost 23 hours a year
|
|
Tier
3
|
Tier 1 + Tier 2 + Dual-powered equipment and
multiple uplinks
|
Guaranteeing
99.982% data availability
|
System will be completely down/offline/no
access for almost 2 hours a year
|
|
Tier
4
|
Tier 1 + Tier 2 + Tier 3 + all components are
fully fault-tolerant including uplinks, storage, chillers, HVAC systems,
servers etc. Everything is dual-powered
|
Guaranteeing
99.995% data availability
|
System will be completely down/offline/no
access for around 27 minutes a year
|
The cost of provisioning
services in these tiers varies greatly, which obviously is a critical decision
factor for companies and firms alike. Note, of course, that nobody gets
to choose the downtime other than for scheduled
maintenance.
2. Data Availability and
Security
As previously mentioned, firms
need to provide data to authorized users when necessary. Often,
preservation data is only needed when it’s time to cull the data for document
review or analysis. Beyond that, having an entire preservation copy on
the network may not be necessary. If it is online for convenience of
reference, firms should consider setting up a VLAN (virtual network) that
allows the system to only exist within the firm’s physical network and only
allow access to specific employees.
Encryption also provides for
protection of client data by ensuring that any data coming into or leaving the
firm is transported either on encrypted media or via SSL with TLS over the
Internet. The proper use of encryption software, such as VeraCrypt
protects against inadvertent leakage of data while in transit with common
carriers. Accordingly, law firms should train employees to send passwords
separately or over secondary communication sources to avoid providing an
interceptor with full access to the underlying data.
For data on firm servers,
information technology or security professionals should ensure that two-factor
authentication (2FA) is used, as it combines a username and password with a
second layer of security. Firms may also conduct routine audits to find
stale accounts present on the network, and also use “tripwire” software that
monitors client evidence repositories and maintains an access trail that allows
for alarms to be triggered upon certain events on the evidence.
While a firm may make
significant efforts to ensure that data is available when needed, it must also
consider the process surrounding secure destruction of data when appropriate.
This is a complicated process, requiring the case team to consider whether
preservation obligations exist, whether the data may be connected to other
matters, and whether a certification of deletion may be appropriate.
Device Management
Risk of theft remains a
prevalent issue for laptops and other mobile devices as they usually contain
sensitive business information. Once again, the proper use of robust
encryption can safeguard data from being disclosed to unauthorized parties.
Although members of a law firm’s IT group will traditionally keep an updated inventory of all workstations and devices in use by its employees, they may be unaware of devices received from clients, third parties, or opposing counsel. Proper procedures to account for these devices can help to avoid loss of data, inadvertent destruction, and/or infinite retention of the devices. As part of a firm’s device management policy, firm-appointed personnel should carry the responsibility of tracking any such devices, and creating chain of custody forms for original evidence.
Firms should also consider
employing Bring Your Own Device (BYOD) policies, which allow employees of the
firm to utilize their personal cell phones, tablets, computers, or other
devices for use with firm data. Mobile Device Management (MDM) software
can help to manage employees who seek to check corporate email on personal cell
phones and allows the firm or corporation to reset a device and remove firm or
corporate data from the device. Without such software an employee is able
to, easily forward company information via a personal mailbox on the device unbeknownst
to the company since the email would not be flagged on their email servers as
having been sent/forwarded. Citrix, Sudo Security, and Apple offer MDM
software.
Phishing and Social
Engineering
If an attacker is interested
in gaining access to firm information, various attack vectors may be
pursued. A highly effective yet very basic attack uses social engineering
by impersonating members of an organization (frequently IT), and convincing a
user to disclose passwords, documents, and other sensitive information.
This method doesn’t require the attacker to have detailed knowledge of
the underlying systems and relies on the victim to circumvent any security
measures, and thus is extremely low risk and carries with it the potential for
significant rewards.
Phishing on the other hand
relies on the untargeted distribution of fraudulent information to substantial
numbers of recipients. A phishing email may instead impersonate a common
social networking website demanding that a user reset their password. The
link may contain malicious software or direct the recipient to a third-party
website to steal their credentials.
The primary method of
preventing social engineering and phishing attacks is simply through user
education.
Additional Security
Considerations
Law firms are increasingly
adopting additional security precautions regarding the identification and
authentication of its users when accessing documents, networks, and devices.
The most basic precaution is having its users regularly create and revise complex
passwords.
In order to protect a firm
from information theft, a standard process for employee separation should be
implemented, involving device deactivation (or at least password resetting),
and return of all mobile devices and access cards.
Finally, when an employee is
traveling, domestically or internationally, devices should be properly
encrypted to prevent the disclosure of information in the case of physical
theft. If connecting to a public or potentially insecure network, employees
should always endeavor to utilize a VPN connection or through remote desktop
environment, such as Citrix.
Ethical Considerations
The American Bar Association
Model Rules provide broad guidance regarding ethical obligations. ABA
Model Rule 1.1[4] requires competence in selecting and using technology and calls for
attorneys who lack the necessary technical competence for security to consult
with qualified people who have the requisite expertise.
ABA Model Rule 1.6[5] generally defines the duty of confidentiality
and broadly extends that duty to “information relating to the representation of
a client.” It’s now commonly accepted that this duty applies to client
information in computer and information systems as well. An amendment to
this rule added Comment 16[6], which requires reasonable precautions to safeguard
and preserve confidential information.
ABA Model Rule 1.4[7], Communications, also applies to attorneys’ use of
technology and requires appropriate communications with clients “about the
means by which the client’s objectives are to be accomplished,” including the
use of technology. It requires keeping the client informed and, depending
on the circumstances, may require obtaining “informed consent” and also
requires notice to a client of compromise of confidential information relating
to the client.
These rules set up broad
definitions regarding what an attorney should do in relation to holding data
and communicating. Some states have taken these broad principles and
developed more specific standards. For example, in Arizona, attorneys and
law firms are obligated to take competent and reasonable steps to assure that
the client’s confidences are not disclosed to third parties through theft or
inadvertence. Lawyers in Arizona must also recognize their own competence
limitations regarding computer security measures and take the necessary time
and energy to become competent or alternatively consult available experts in
the field.
Whereas, in California,
attorneys have an express duty “[t]o maintain inviolate the confidence, and at
every peril to himself or herself to preserve the secrets, of his or her
client.[8]” Rule 3-110(A)[9] also prohibits the intentional, reckless or
repeated failure to perform legal services with competence.
Massachusetts law, M.G.L. c.
93H[10], is unique in that it applies to “persons who own,
license, store or maintain personal information about a resident of the
Commonwealth of Massachusetts.” It requires covered persons to “develop,
implement, and maintain a comprehensive information security program that is
written in one or more readily accessible parts and contains administrative,
technical, and physical safeguards.” In addition to requiring a risk
assessment, the regulation contains detailed requirements for the information
security program and detailed computer system security requirements. Some
observers believe that this Massachusetts law will become a model for
comprehensive protection of personal information.
Finally, Nevada also has laws
that require “reasonable security measures” and encryption[11](NRS 603A.210 and NRS 597.970).
Cloud Storage and Ethics
Aside from the ethics opinions
above, the specific issues surrounding the use of cloud storage is a relevant
topic for attorneys as cloud storage offers convenience and savings. Thus
far, US ethics commissions have determined that it is ethical for lawyers to
use cloud computing, with most concluding that lawyers must take reasonable
steps to ensure that the firm’s confidential data is protected from
unauthorized third party access[12]. The ABA also provides a helpful map that
delineates cloud computing provisions by state[13].
Conclusion
A security policy is only as
strong as its weakest physical or digital link. Law firms must ensure that
their information governance policies and strategies consider both its own data
and the data of its clients. Although members of a case team may not know
the underlying protections and precautions that have been put into place within
the firm, they should be able to consult with IT in order to provide those
answers.
[3] https://www.cpa2biz.com/Content/media/PRODUCER_CONTENT/Newsletters/Articles_2012/CPA/Jun/Easy123.jsp
[4] Available at:http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html
[5] Available at:http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html
[6] Available at:http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6.html
[7] Available at:http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications.html
[9] Available at: http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3110.aspx
[11] Available at:
http://www.leg.state.nv.us/nrs/nrs-603a.html and
http://www.westernreportingservices.com/NRS597.970.pdf
[12] See generally: North Carolina State Bar Council
2011 Formal Ethics Opinion 6; Massachusetts Bar Association Ethics Opinion
12-03; Oregon State Bar Formal Opinion No. 2011-188; Professional Ethics
Committee of the Florida Bar Op. 10-2 (2011); New York State Bar Association’s
Committee on Professional Ethics Op. 842 (2010); Pennsylvania Bar Association
Ethics Opinion No. 2010-060 (2010); and Iowa Committee on Practice Ethics and
Guidelines Ethics Opinion 11-01 (2011).
[13] Available at:http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/cloud-ethics-chart.html#
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