“zoom” Carefully: Confidentiality And Attorney-client Privilege For Attorneys
Technical developments that are helpful are often followed by unintended applications and abuses. For example, Zoombombing has “exploded” on many Zoom conferences with anonymous users uploading pornographic images, racist material, and other generally undesired buffooners, the newly coined phenomenon that refers to the unwanted intrusion of a person into a Zoom conference. Hackers face the risk of messing with Zoom conferences and Zoom-stored data mining. An anonymous participant shared pornographic material during a recent Los Angeles City Council Zoom meeting. To look at their Zoom settings and find out how to disable participants from getting video access, the city council had to take a 20 minute break.
In order to maintain the attorney-client privilege, which protects confidential legal correspondence between attorney and client, lawyers must be diligent. The privilege does not apply to correspondence with third parties other than those present to further the client’s interest in the consultation or to those to whom disclosure is fairly appropriate for the transmission of information or the fulfillment of the intent for which the lawyer is consulted, and includes the legal opinion and advice given by the lawyer in the consultation process.
The policy of Zoom notes that it gathers what it calls “customer content,” or “cloud recording content, and instant messages, files, whiteboards, and so on.” The “customer content” is the videos, the transcripts of those videos that are automatically created, any documents shared on the screen, and the names of Zoom participants, regardless of whether you have a Zoom account. In addition, it will balloon the electronic and written record, generating a greater record of possible threats to privilege down the road.
How can an attorney reconcile the defense of rights from inadvertent waiver by means of Zoom confidential communications with the fact that Zoom gathers and stores Zoom communications and the possibility that Zoom conferences are vulnerable to unauthorized intrusions? In California, for instance, “whether an attorney violates his or her confidentiality obligations.” It will depend on the specific technology being used and the circumstances surrounding its use when using technology to transmit or store confidential customer information.
Always be the host of any Zoom meetings that may require sensitive data, as the settings are managed by the host. And if you are in control of the environments, you can at least rest assured that you have taken the following fair measures to guarantee consumer confidentiality, and let’s face it, lawyers still insist on being in control. Second, do not log your meetings and do not allow your meetings to be transcribed and annotated automatically. Do not build a record that you most certainly do not have full control over. For non-lawyers and personal company, reserve these cool Zoom characteristics. Alternatively, take notes with a quill and parchment as your business partners demand that you do anyway, okay Zoomer? Second, stop using your Personal Meeting ID (“PMI”) since a “PMI is basically one ongoing meeting and after the party’s over, you don’t want randos to crash your personal virtual space.” Third, for each single meeting, create a random meeting ID. Fourth, lock down your sessions. Will you leave open the doors of your office with a sign that says come off the street and join us while we discuss sensitive customer issues? Finally, customize your Zoom settings to disable your meeting screenshots. After all, “reasonable care may require the lawyer to remain aware of technological advances and potential risks,” and “understanding the benefits and risks of relevant technology has been recognized as a requirement of jurisdiction.”
There are a few features in Zoom that you do not want to share with anyone in your office, but be careful how deep you dive into Zoom’s settings to preserve confidentiality and secure inadvertent waiver of attorney-client privilege. Finally, as lawyers, we are lucky to be able to efficiently perform crucial aspects of our employment supporting consumers through Zoom, a significant part of the workforce may literally not rely on Zoom to do the same, so let’s work hard to get it right.