06 November 2014

Cloud Computing and the Family Law Lawyer

The Law Society of British Columbia has adopted changes to the Law Society Rules to address cloud computing for lawyers who store, or are considering storing, practice data in the cloud; the changes are based on the recommendations contained in the final report (PDF) of the Cloud Computing Working Group. Cloud computing allows data like emails, contact lists, photographs and so forth to be stored in a remote server and synced between various devices like a smartphone and a laptop, so that when you change something on one device you change it on all of your devices. Cloud computing can also allow you to store more important files, like word processing documents and spreadsheets.

 The Working Group identified a number issues raising significant concern with cloud computing, including these:
  • privacy and the security of stored data from third party intrusion;
  • lawyers' compliance with protection of privacy legislation;
  • lawyers' compliance with Law Society auditing standards for electronic files;
  • security of stored data from loss in the event of service failure;
  • the reliability of the service provider;
  • security of stored data from seizure by service provider;
  • the status of stored data after termination of service provider; and,
  • providing notice to clients as to where their data is being stored.
Perhaps most importantly, the Law Society has also adopted a thirteen-page (thirteen!) checklist (PDF) for lawyers considering using cloud computing. Among other things, the checklist asks lawyers to consider whether there are any laws, including federal and provincial privacy legislation, that restrict placing client data in cloud servers located or accessed outside of Canada. This last little bit strikes me as being especially worthy of note given that the USA PATRIOT Act (the title of the act is an acronym) allows US government agencies to rummage through electronic communications and gather data from US and non-US citizens without the necessity of probable cause or judicial oversight.

Now, I would expect that most family law lawyers don't rely very much on cloud computing, or at least not knowingly. (Here's a tip: if you can access a file on your office computer from home without logging into your office network, you are probably storing that file in the cloud.) However, DivorceMate has recently rolled out a version of its very popular support calculation program that relies on cloud technology to allow users to run numbers on the fly, in court or in an interview, and relies on Microsoft's cloud technology... which means that the data is stored on Microsoft's servers in the US, backed up by Microsoft in the US, and is therefore available to government agencies in the US should they care to look at it.

This raises some pretty serious concerns about client confidentiality. I spoke to the DivorceMate people this summer about the cloud issue and they said that they were aware of the problem. Although they don't have a  work-around for the storage problem yet, they did note that you can access their software in the cloud and simply elect not to save your calculations, so that the data doesn't wind up being stored Microsoft's servers. They may have another solution by this point.

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