First Amendments Rights versus Security – What side should an attorney be on when it comes to his firm's software.

Last week, I discussed educational bodies banning photos taken at school from being posted on social media – “Self- Awareness in the Wild, Wild West World of Zoom” (posted September 14, 2020).  There are inherent First Amendment rights issues:  Students’ ability to talk openly with the public about what they think about their school, classmates, and faculty versus other students’ ability to have open discussions of thoughts, popular or not, without the fear of public scrutiny and (verbal and physical) threats.  Now the Courts have provided us a new lens to discuss this balance.

CNN reports that a Federal Judge in California has stayed the Government’s download ban of WeChat in the United States.  WeChat is a popular social chat application (app) that allows people to talk around the world.  The Plaintiffs note that WeChat is one of the very few chat apps that the Chinese Government allows to be used in its country.  Plaintiffs argue that their ability to communicate with others in China will be significantly interfered with if the ban were to be allowed.  The Government contends that there is a security risk, and its use should not be allowed in the U.S.  The judge determined that at this point, the Government has not provide[d] enough evidence that it is narrowly tailored to resolve the US government's national security concerns with respect to the app.  So, the ban is stayed, for now.  But, the question that needs to be asked by attorneys is, what does this mean for us?

Obviously, if a software program is banned in the U.S., we cannot use it:  It’s illegal.  But our concerns go beyond just whether or not software, hardware, or cloud service is “banned” in the U.S.  We need to consider whether it is safe to use.  Rule 1.6(c) requires us to secure our clients’ confidential information.  Rule #1.1, Comment, #8, requires us to be up to date in our knowledge of technology and how we use it to practice law (or at least have third party assistance in its use).  The concern for attorneys should be when pieces of technology have glaring red flags that they may want to find another platform to do their clients’ work.  Otherwise, they may find themselves with a bar complaint or two?

MTC

Self-Awareness in the Wild, Wild West World of Zoom. 🤠

I came across an ABA article recently where Harvard Law School is arguing comments made in a classroom setting should not be placed on social media.  In this instance, a student was observed cleaning his gun during a zoom class.  A fellow student took a screen capture of the other and posted it on social media with commentary.  Harvard took offense and has created a policy to prevent future action - it reflects on some issues we should consider and a reminder of the ongoing big takeaway.

(Remember, this blog let alone this post is not offered to provide legal advice, nor does it create an attorney-client relationship between blogger and reader.)

First, whether we appear in court or a classroom, via video conference or in person, we are in "public".  There is no general video conference exception in the law (at least that I am aware of).

Second, there is no classroom-student-teacher "privilege".  There is an attorney-client and doctor-patient privilege.  But, I have not heard that "classroom-student-teacher 'privilege'" been proposed by the ABA.

Lastly, while schools may have more authority to inhibit speech on school grounds, facilities, and newspapers, this policy seems to really smack against the student-poster's First Amendment Rights to free speech.  Moreover, the posting of a fellow student cleaning his gun while in class has not been referenced to any deliberative discourse he made in class. Indeed, if he actually brought a gun to an in-person class, there would be an immediate safety concern.  Recall the GA student who was suspended (and later reversed) for posting a hallway shot of her school not following social distancing for COVID.  Assuming he/she did not use the school's social media channels to make the post, this could all be fair game.

I don't know the answers to this. Given the recent explosion of Zoom meetings in various context due to COVID, various laws related to it will need some time to catch up.  But there is a takeaway:  You need to be mindful of what you are doing during a video meeting, conference, hearing, etc.  Wear pants (be mindful of what you are wearing), don't bring weapons (be mindful of what you are doing), and be careful what can be viewed behind you (be mindful of your setting).  The ease of sending something on social media and the lack of editorial filters makes it a matter of several simple clicks for the world to know something you did not mean to share.  And the internet has a long memory.

MTC

Shout Out! Prior Podcast Guest Brett Burney and his wife Stephanie discuss Technology, Working From Home, and Homeschooling in this Pandemic!

In keeping with this week's theme of "Going Back to School from Home," I want to do a "Shout Out" to prior podcast guest and friend of The Tech-Savvy Lawyer.Page Brett Burney and his wife Stephanie. Both work full time from home, Brett in the legal arena, and Stephanie as an educator (who has been homeschooling their children for years). Recently on the Apps in Law Podcast, Brett and Stephanie discuss their challenges of homeschooling and how tech plays a part in their personal lives, their work lives, and raising two children all while working from home.

It's a great listen for those who have children and even for those who don't. It will give those without kids a better appreciation of the challenges that those with children at home have due to the Pandemic. Plus, whether you have kids at home or not, you may pick up a good tech tip or two!

Enjoy!

Preparing for a COVID school year - cutting out the noise.

Preparing for a COVID school year - Getting through the Noise!

Recently, CNET published an article about how tech employees who are parents with school-age children at home fear their employers will not give them consideration of their work/home balance issues as we head into the new school year.  Attorneys with children have this same concern. In any dynamic, schooling children this year will be a challenge (whether by a single parent or by a two-parent household).  Flexibility and understanding will be key this academic year as we move the legal process forward.  I’d like to suggest some tech tips this week (over several postings) that may be of use to these households and may well serve any home.

Consider getting some Headphones not only for yourself but for your children.  When each member of your house is using headphones to communicate with the person(s) on the other end of your phone or screen, that is at least one less source of noise traveling in your house.  And when the classroom gets a little raucous, that will be something that you won’t have to listen to.  Likewise, your children won’t have to overhear your clients, boss, fellow staff, etc., talk about that boring legal stuff.  You may even want to get a couple of different types of headphones.

Personally, I am a fan of wireless headphones, and I have three different types.

I have what I call my basic pair:  I love my AirPods!  (Remember, Air Pods can be used for both Windows and Macs! – see my article here.). The best thing about them is you can use one at a time.  This allows you to charge the one you are not using, and when the battery goes down on the one you are using, you can just switch them out.

I have a pair of on the ear headphones to assist with noise-canceling for important meetings.  Note these are not “noise canceling” headphones that actively cancel out noise.  I’ve been enjoying the Bose SoundLink On-Ear Bluetooth Wireless Headphones for many years.  These sit on the ear.  When I bought them, I compared the “noise canceling” model with the sans model and noticed a negligible difference (and not worth the $50? upgrade).  The over the ear model was a little too warm for my preference.  ADDED BONUS:  If the power is drained for Bluetooth, you can use the enclosed wire to hook up your headphones to your computer’s mic and possibly to your phone or tablet if it has the right mic input or you have the right conversion dongle.

Lastly, I have my “sports” pair that I use for working out.  They are a pair of in-ear Bose SoundSport Free.  The grip is a little better than my regular Air Pods and the sound, being Bose, is so much better than my Air Pods.  They also serve as a good backup should the need arise.

Happy Lawyering!!!