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!