Videoconference-Bombing, Alexa, and Other Teleworking Traps in the Time of COVID-19

The coronavirus pandemic has forced millions of workers to work remotely — resulting in a drastic increase in videoconferencing. In December 2019, the maximum number of daily meeting participants, both free and paid, conducted on Zoom was approximately 10 million, but by early April the company had reported 200 million daily participants.[1] The number of users has continued to skyrocket, and an April 22, 2020, statement revealed that there are 300 million Zoom participants per day.[2] Other videoconference providers such as Skype, Microsoft Teams and Webex are seeing a similar surge. As we adjust to the new daily reality of working remotely, the legal profession is becoming more and more reliant on technology.

With the transition to video hearings, video mediations and video depositions, it is vital that attorneys understand the technology that they need to utilize. Lawyers are required to provide diligent and competent representation and communicate with clients pursuant to the American Bar Association’s (ABA’s) Model Rules of Professional Conduct (“Model Rules”) 1.1, 1.3 and 1.4. Comment 8 to Rule 1.1 of the Model Rules provides that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. . . .” Accordingly, attorneys may need to integrate certain new technologies into their practice. Nevertheless, attorneys need to be aware that the use of new technologies may create ethical and professional issues.

The maintenance of client confidences is addressed in Rule 1.6 of the Model Rules, which provides that “[a]ttorneys shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by [another exception].” The rule further provides that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”[3] In implementing new technologies, it is critical that attorneys be aware of the potential risk of disclosing confidential information.

Best Practices in Using New Technologies

Videoconference providers have made headlines recently, not only for the meteoric increase in users as a result of the pandemic, but also for potential security issues relating to the storage, encryption and potential exposure of user data. The issues that have been exposed largely apply to broader technology concerns as a whole and highlight the need for attorneys to be informed in evaluating technologies.

In using any new technology, it is important that users pay close attention to what access rights they are granting. Users should also be aware of whether the technology is backing up records of meetings and conversations to the cloud or another readily accessible location. In the event the meetings and conversations are being backed up, attorneys should ensure that they know the location of the backups and the security of those file locations. Lastly, users should be aware of what types of encryption are used in transmitting communications. Users should also understand the potential risks and keep up to date regarding new technological advancements.

Application of Technology

A primary concern associated with new videoconferencing technologies is the possibility of having privileged or confidential conversations exposed to uninvited third parties during the course of the meeting. Videoconference “bombing” has gained notoriety in recent months and refers to when unknown third parties dial in to meetings — often exposing the participants to offensive material. This, apart from being disturbing, distracting and unprofessional, is a concern under Model Rule 1.6 to the extent it discloses to a third party information relating to the client’s representation without the client’s consent.

In order to avoid such situations, it is best practice to require a password for entry into meetings. Additionally, whenever possible, individuals hosting meetings with external attendees should circulate a randomly generated meeting invitation. This will ensure that participants are not able to continue to dial in to the host’s future meetings. To the extent assigning a new meeting code is not possible, users should investigate alternative methods of controlling access to their meeting rooms. For example, Zoom enabled a “Waiting Room” feature, which gives the host more oversight and control over who is able to join the meeting. The “Waiting Room” acts as a virtual staging area for holding participants in case there is an overlap between meetings.

Use of Technology Within the Home

The environmental changes surrounding our use of technology at home create additional concerns and potential pitfalls for accidentally disclosing client information. As children are being homeschooled online, attorneys should be cognizant of what other videoconferences are going on in the background while discussing privileged or confidential materials with a client. The use of headphones rather than external speakers may be helpful in minimizing the likelihood of third parties overhearing confidential or privileged information. Attorneys should take particular caution when outdoors or on patios and shared spaces.

Additionally, given the increased frequency of videoconferences for multiple clients, it is important that each attorney ensure that there is no visible confidential or privileged information on his or her desk during videoconferences. Similarly, when sharing screens over a video chat platform, attorneys should check to ensure that nothing privileged or confidential is visible to viewers prior to initiating the screenshare. This may require disabling email notifications temporarily to avoid having them pop up at an inopportune time. Lastly, attorneys should pay close attention to those personal devices and automated assistants that may be listening and transcribing portions of privileged or confidential conversations — particularly Alexa and Siri.

By remaining vigilant regarding new technology, attorneys can adapt to the “new normal” and provide competent service to their clients.