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The lesser of two weevils

by Joe Kaczrowski | Aug 10, 2015

Much has been made of a lawyer's duties and obligations under the model rules with respect to technology and client data. The often overlooked part of the equation, however, is practicality or necessity. Is there a case where not only does the reward outweigh the risk but where the risk is almost a non-factor in the decision? Or perhaps the better question is when you cannot avoid the risk, how can it be minimized?

Experts often say that you should never use a public wi-fi network; it is not secure and anyone can see what you are doing. And that is perhaps the best policy. But is there an option when you must access the internet from a public location? 

One option that may be available to you is to use your cellular network. If not, are you out of luck? Using a public network is like talking on your phone on the bus, like showing your desktop through an overhead projector while you work, like sending client data on a postcard, or whatever analogy you prefer. If there is any expectation of privacy, it's not much. A password-protected network may restrict access somewhat but does not offer much additional security (and those passwords are often posted/shared openly and changed infrequently).

Whether at Caribou, a hotel, or in court, if you must use a public network, consider a VPN product (Virtual Private Network). SSL (Secure Socket Layer) helps, but not every website uses it. A VPN creates a private or trusted connection that encrypts your communication and activity. There are a number of available products/services out there, most fairly reasonably priced. For example, PC Magazine recently listed "The Best Free VPN Services for 2015" as well as an earlier (April 2015) list of "The Best VPN Services for 2015." Many of these programs work on multiple devices and platforms, and often require little more than download and the click of a button (plus a subscription, of course).

A VPN is not a cure-all for security and privacy. Like any service, you are relying on the expertise of a third party. Also, depending on the specific implementation of the service, some protocols may be more secure (or less hackable) than others. And of course a VPN offers little resistance to government surveillance programs. 

A memorable albeit somewhat sensationalist analogy compares internet access with sex: the only truly safe option is abstinence, but if you must access the internet then a VPN is the equivalent of using a condom. 

Many states (not yet including Minnesota) apply a "reasonable care" standard when weighing in on various technologies and a lawyer's duties under the model rules. Taking no measures is likely unreasonable (and going to the other extreme and "off the grid" may be as well), but use of a VPN is something a lawyer may want to consider, especially given its relatively low cost.