In case you did not know, “NSW” is cyberspeak for “Not Safe for Work”.  This typically refers to photos, videos, articles, chat memes, or any data you may not want on your work computer because of nudity, blue humor, offensive language, etc.  It’s the type of stuff that, if your boss finds on your computer, you would likely get fired!  But what if NSW data is part of the job?  What if your boss doesn’t mind (especially in the solo and small firm practices), but big brother does?!

I’m not necessarily talking about direct government monitoring, although there is a concern with FISA warrants.  I’m talking about the online services that host or back up our office files.  Some attorneys represent some of the seedier defendants out there – serial killers, rapists, child molesters, and pornographers.  Some of their evidence is truly NSW, and that is being extremely polite.

I came across this New York Times article, A Dad Took Photos of His Naked Toddler for the Doctor. Google Flagged Him as a Criminal. that raised, in my mind, some alarms.  It’s about parents who took photos of their young children naked because the parents had medical concerns about their kids– the respective children had a rash in an intimate part of their body.  “Google” police, through a software algorithm, flagged it as child porn.  The police were alerted, the accounts locked, and the account owners were denied access to their years’ worth of data, including family photos.  (This reminds me of a story from two decades ago out of Cincinnati someone was developing photos where they called the police because they came across a picture of a child being bathed in a bathtub. 🙄)

In the cases discussed by the Times, the respective parents worked with the police and were cleared of charges.  In two particular cases, each parent took nearly ten years to get access back to their data.  But to no avail.  Google, in IMHO an extreme effort of caution, never reinstated the parents’ respective accounts.  And in some instances, Google just deleted accounts!  Now imagine you are an attorney using G-Suite or a similar service, and your account is flagged because one of the clients you have requires you to hold certain NSW or even something less nefarious as having a photo your spouse sent you because it was an innocent picture of your unclothed baby.

First, you get a call from the police.  You have to explain to them who you are, what you do, and whom you represent.  Now you have concerns that the police may show up with a warrant to gain access to your attorney-client privileged information.  All the while, you are defending yourself as being a suspected criminal.

Next, you must consider when does your bar disciplinary counsel become involved?  Does this type of police activity warrant self-reporting to the bar?  How do you keep client information confidential in these types of circumstances?  What do you do when the prosecutor comes to your office with a subpoena?  What if you lose access to your client’s information because “Google” no longer allows access to your office files?  So, you not only lose access to one client but to all your clients! Worse yet, what happens if your office files are just deleted as the service no longer wants to risk having you as a customer!!!  What should you do?

First, make sure you have multiple backups in different types of media in different locations.  See my article Help Prevent Your Law Office's Data Loss! (it might be a couple of years old, but it still rings true today!) for a more in-depth discussion about backing up your office files.  Second, scrutinize your service providers’ terms.  Does it have an appeals process if there is questionable material in your files?  Is the service “monitoring” your data?  (IMHO, I’d never run a firm on Google services, given that it makes money through your web activities).  Lastly, consider having only offline copies of this type of material.

Whether it’s part of your job or innocent family photos, back up your data!

MTC.

Happy Lawyering!!!